that payment of a per diem under the regulations of the commission is authorized.

Question as to the authority to pay a per diem to employees under existing regulations is not raised for the purpose of interfering with such payments to the extent of disallowing credit for those made or even interfering with payments to be made in connection with services rendered, for the propriety of the payments is probably a question of form rather than substance, but such payments, under existing conditions, are at least questionable.

It is noted that the regulation quoted above provides for the allowance of a per diem "in addition to their regular salaries." If this means, using Mr. Lyon's case as an illustration, that his salary is $1,800 per year and that his living expenses, commonly called subsistence, as distinguished from travel, are being commuted at a given rate per day, then such payments are not only unauthorized, but are unlawful. Unless otherwise authorized by law, one traveling on Government business may be paid only actual expenses, and commutation is unauthorized.

If, on the other hand, Mr. Lyon being paid from a lump-sum appropriation, it is intended to fix his compensation at $1,800 per year and a stipulated per diem, he to subsist himself, and the per diem in lieu of subsistence being paid him expressly as a part of his compensation, such payments would be authorized.

I have not at hand a copy of Mr. Lyon's appointment. If it is silent on the subject, and the question is to be determined from the regulation, it is unsatisfactory, the language used to accomplish the probable object being unfortunate.

Assuming that what the commission was aiming to do was that which it might do, I am not for the present inclined to make any question about its per diem payments, but will transmit to the commission a copy of this decision, with suggestion that either appointments be put on such a basis as to authorize per diem payments as a part of compensation or that payments of expenses be put on an actual expense basis.

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INSTALLATION OF AN ICE-MAKING PLANT.

The installation of an ice manufacturing plant when not accompanied by an emergency which could not be anticipated or foreseen does not come within the scope of a contingent appropriation, and therefore the appropriation, Contingent, Bureau of Yards and Docks, 1914," act of March 4, 1913 (37 Stat., 899), is not available for payment of the expenses incurred in installing an ice-making and refrigerating plant at the Naval Disciplinary Barracks, Port Royal, S. C.

Comptroller Downey to Secretary of the Navy, March 18, 1914:

I have your reference of March 9, 1914, requesting my decision ast to whether the appropriation, "Contingent, Bureau of Yards and

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Docks, 1914," act of March 4, 1913 (37 Stat., 899), is available for payment of an accompanying voucher in favor of the Vilter Manufacturing Co., Milwaukee, Wis., in the amount of $4,937 for furnishing and delivering at the Naval Disciplinary Barracks, Port Royal, S. C., an ice-making and refrigerating plant with appurtenances, including ammonia distiller, and furnishing services of an expert to superintend the installation of said plant, and if not, as to what appropriation is properly chargeable with the expenditure. The act of appropriation reads:

Contingent, Bureau of Yards and Docks: For contingent expenses that may arise at navy yards and stations, $30,000."

This installation was made pursuant to the terms of contract dated April 23, 1913, with said company. At the time of the execution of this contract, the foregoing appropriation was designated to meet the expense of the installation, but the Navy disbursing officer now seems to doubt its availability for this purpose and suggests that the matter be referred to this office for decision.

The necessity for the installation of this plant is stated to be as follows:

"After the establishment of the Disciplinary Barracks at Port Royal, S. C., it was found necessary to provide in some manner for the preservation of meats and fresh provisions intended for the subsistence of those confined there; also to secure a regular supply of ice for the cooling of drinking water, etc."

The term "contingent expenses" ordinarily implies such small miscellaneous expenses as were unforeseen or could not well be enumerated or anticipated. No showing is made that the expense in question was unforeseen or that it could not have been anticipated when submitting the estimates. On the contrary, it appears that authority existed in the appropriations at the time to purchase ice if needed for the purposes mentioned, and it would therefore seem that there was no immediate demand to manufacture ice for said purposes. It was perhaps desirable and convenient to manufacture it, but that did not create such a contingency as to authorize the use of the appropriation before mentioned. Moreover, its installation involves an annual expense for its maintenance without specific authority of law.

The installation of an ice-manufacturing plant is an undertaking of such character and magnitude as to be far removed from the ordinary purposes of a contingent appropriation, and when not accompanied by an emergency which could not be anticipated there would seem to be no basis for a holding that it was within the scope of such an appropriation. I must therefore conclude that the expense in question is not properly chargeable to the appropriation, “Contingent, Bureau of Yards and Docks, 1914."

Nor do I find that Congress has given any authority, express or implied, for this installation in any of the other appropriations under your control. An appropriation which may be used for the purchace of ice is not ordinarily available for the purchase of an ice machine for the manufacture of ice. (6 Comp. Dec., 324.) You are therefore advised that the expense in question, not having been authorized by Congress, is not properly chargeable to any of the appropriations under your control.

MEXICAN BOUNDARY COMMISSION.

The appropriation "Water boundary, United States and Mexico, 1914," is available to pay salaries and expenses of American members of the International Boundary Commission established under authority of the treaty of March 1, 1889, and for no other purpose.

There was no authority of law for the creation of a commission to study the questions in connection with the equitable distribution of the waters of the Rio Grande, hence payment of the salaries and expenses of members of said commission is prohibited by section 9 of the act of March 4, 1909 (35 Stat., 1027).

Comptroller Downey to the Secretary of State, March 18, 1914:

I have your letter of the 12th instant requesting my decision as to whether the appropriation "Water boundary, United States and Mexico, 1914," is available for the payment of the salaries and expenses of

"(1) The International Boundary Commission, authorized by the treaty of March 1, 1889, and extended by later treaties, and

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(2) The commission to study the questions in connection with the equitable distribution of the waters of the Rio Grande, which was established in 1896, in pursuance of a concurrent resolution of Congress, approved (?passed) April 29, 1890, and a protocol of May 6, 1896, between Mexico and the United States."

The appropriation in question was made in the Diplomatic and Consular act of February 28, 1913 (37 Stat., 688, 692), under the heading "International (water) Boundary Commission, United States and Mexico," and reads:

"To enable the commission to continue its work under the treaties of eighteen hundred and eighty-four, eighteen hundred and eightynine, and nineteen hundred and five, $25,000."

This is a specific appropriation and its terms are unambiguous. Hence it is clearly available for the payment of expenses, including salaries, necessarily incident to the work therein mentioned, and for no other purpose.

The statutory provision that all sums appropriated shall be expended solely for the purposes for which appropriated and no other is so old and so well understood that it hardly needs citation.

The commission referred to is undoubtedly the International Boundary Commission, created under authority of the treaty of March 1, 1889 (26 Stat., 1512), Articles I and II of which provide:

"ARTICLE I. All differences or questions that may arise on that portion of the frontier between the United States of America and the United States of Mexico where the Rio Grande and the Colorado Rivers form the boundary line, whether such differences or questions grow out of alterations or changes in the bed of the aforesaid Rio Grande and that of the aforesaid Colorado River, or of work that may be constructed in said rivers, or of any other cause affecting the boundary line, shall be submitted for examination and decision. to an international boundary commission, which shall have exclusive jurisdiction in the case of said differences or questions.

"ARTICLE II. The International Boundary Commission shall be composed of a commissioner appointed by the President of the United States of America, and of another appointed by the President of the United States of Mexico, in accordance with the constitutional provisions of each country, of a consulting engineer, appointed in the same manner by each Government, and of such secretaries and interpreters as either Government may see fit to add to its commission. Each Government separately shall fix the salaries and emoluments of the members of its commission."

This treaty or convention, by the terms of Article IX thereof, was to remain in force for a period of five years from the date of exchange of ratifications, but its duration was extended from time to time by subsequent conventions-the latest of which, concluded November 21, 1900 (31 Stat., 1936), provided:

"The said convention of March 1, 1889, as extended on the several dates above mentioned, and the commission established thereunder, shall continue in force and effect indefinitely, subject, however, etc."

The treaties or conventions of 1884 and 1905 set forth the principles which are to govern the commission in rendering its decisions relative to boundary line matters.

The work which this commission is authorized to perform and for which, alone, the appropriation, supra, is available is work incident to the examination and determination of differences or questions arising from causes affecting the boundary line on that portion of the frontier where the Rio Grande and the Colorado River form the boundary line between the United States and Mexico. For the expenses of that commission in connection with that work the appropriation in question is available and for none other.

This answers the only questions involved in your submission that I have jurisdiction to decide, but in view of the data, arguments, etc., submitted, relative to the legal status of the so-called water commission or Commission to Study the Questions in Connection with the Equitable Distribution of the Waters of the Rio Grande, it

may not be improper to make a few observations in connection therewith in response to your request.

With reference to this commission attention is invited to section 9 of the act of March 4, 1909 (35 Stat., 1027), which provides:

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SEC. 9. That hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other Government establishment in connection with any such commission, council, board, or other similar body."

It has been suggested in connection with this submission that the protocol of May 6, 1896, made in pursuance of the concurrent resolution of April 29, 1890, is a law authorizing the creation of this commission to study the questions in connection with the distribution of the waters of the Rio Grande.

Said resolution and protocol read:

66 CONCURRENT RESOLUTION.

"Concerning the irrigation of arid lands in the valley of the Rio Grande River, the construction of a dam across said river at or near El Paso, Tex., for the storage of its waste waters, and for other purposes.

"Whereas the Rio Grande River is the boundary line between the United States and Mexico; and

"Whereas by irrigating ditches and canals taking the water from said river, and other causes, the usual supply of water there from has been exhausted before it reaches the point where it divides the United States of America from the Republic of Mexico, thereby rendering the lands in its valley arid and unproductive, to the great detriment of the citizens of the two countries who live along its course; and

"Whereas in former years annual floods in said river have been such as to change the channel thereof, producing serious avulsions and oftentimes and in many places leaving large tracts of land belonging to the people of the United States on the Mexican side of the river, and Mexican lands on the American side, thus producing a confusion of boundary, a disturbance of private and public titles to lands, as well as provoking conflicts of jurisdiction between the two Governments, offering facilities for smuggling, promoting the evasion and preventing the collection of revenues by the respective countries; and

"Whereas these conditions are a standing menace to the harmony and prosperity of the citizens of said countries and the amicable and orderly administration of their respective Governments: Therefore