I do not think the circumstances hereinbefore stated as existing in this case can be regarded as excepting it from the operation of the well-established rule that payments for medical attendance for civilian employees of the Government are unauthorized unless provided for in the contract of employment or by valid regulation or statutory enactment.

The question submitted is answered in the negative.

AVAILABILITY OF AN APPROPRIATION AFTER THE EXPIRATION OF THE FISCAL YEAR FOR WHICH IT WAS MADE.

A part of an appropriation contained in the act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs for the fiscal year ending June 30, 1913, was not used during that fiscal year: Held, That under the provisions of section 7 of the act of August 24, 1912 (37 Stat., 487), and in view of the fact that similar appropriations for many years have been construed as limited to the fiscal year for which made, the particular unused part of the appropriation was not available after June 30, 1913.

Assistant Comptroller Warwick to the Secretary of the Interior, August 4, 1913: I have your letter of July 31, 1913, requesting my decision of a question as follows:

The Indian appropriation act, approved August 24, 1912 (37 Stat., 518, 520), provides:

"For construction, lease, purchase, repairs, and improvements of school and agency buildings, and for sewerage, water supply, and lighting plants, and for purchase of school sites, four hundred and eighty thousand dollars: Provided, That out of the above amount the following expenditures shall be made, to wit: Thirty thousand dollars for the construction of buildings for agency headquarters on the Coeur d'Alene Reservation in Idaho; ten thousand dollars for general repairs and improvements at the Yankton Agency in South Dakota; fifteen thousand dollars for improvements at the Fort Bidwell School in California, as follows, seven thousand dollars for the erection and construction of a water and electric-light system, three thousand dollars for sewerage system, three thousand dollars for a steam laundry, and two thousand dollars for complete heating system of the school and accessory buildings.'

"This appropriation has been entitled by the Treasury Department in its digest of appropriations for the fiscal year 1913, Indian school and agency buildings, 1913.'

"I beg to be advised whether the part of the appropriation which provides the sum of $15,000 for improvements at the Fort Bidwell School, California, lapses and is not available for use after the expiration of the fiscal year 1913, or whether the money remains available for application to the specific purposes named in the act.

"It may be said that the purposes for which the money is to be expended are defined with as great exactness as would seem practicable, and further that no distinction is apparent between this case and an item for a specific building purpose in connection with a

school, such as Albuquerque School, for instance, having its own appropriation.

"The appropriation for Fort Bidwell was not used during the fiscal year 1913, and I would appreciate an early decision in order that the construction matters which have been pending in the Indian Office for several months may go forward as soon as practicable."

The act of August 24, 1912 (37 Stat., 487), provides that:

"SEC. 7. No specific or indefinite appropriation made hereafter in any regular annual appropriation act shall be construed to be permanent or available continuously without reference to a fiscal year unless it belongs to one of the following five classes: Rivers and harbors,' 'lighthouses,' fortifications,' 'public buildings,' and 'pay of the Navy and Marine Corps,' last specifically named in and excepted from the operation of the provisions of the so-called 'covering-in act' approved June twentieth, eighteen hundred and seventyfour, or unless it is made in terms expressly providing that it shall continue available beyond the fiscal year for which the appropriation act in which it is contained makes provision."

The appropriation of $480,000, with direction to use $15,000 thereof for improvements at the Fort Bidwell School, is contained in the act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs for the fiscal year ending June 30, 1913. Therefore that appropriation of $480,000 is not available for use after that date, except in fulfillment of contracts properly entered into before that date. (Sec. 3690, R. S.)

While a separate item of appropriation of $15,000 for this school might have been construed in former years to be an item within the class of "public buildings," there was no such item appropriated. The act from which section 7 is quoted was approved the same day (Aug. 24, 1912) as the Indian appropriation, and whether the appropriations in the latter act were "made hereafter" or not, in view of the fact that similar appropriations for construction, lease, etc., of school and agency buildings for many years have been construed as limited to the fiscal year for which made, I would not be justified in changing and broadening this interpretation of section 3690 of the Revised Statutes in view of the specific rule of interpretation contained in section 7 of the act of August 24, 1912 (37 Stat., 487).

HEAT AND LIGHT ALLOWANCE FOR QUARTERS OF NAVAL OFFICERS. The quarters which a naval officer assigned to temporary duty away from his regular station is entitled to have heated and lighted at Government expense are those occupied by him at his temporary station, unless during the period of the officer's assignment to temporary duty his permanent quarters are occupied by his family or persons dependent upon him for support, in which case the officer is entitled to heat and light allowance for his permanent quarters only.

1

Assistant Comptroller Warwick to the Secretary of the Navy, August 4, 1913:

By your reference of the 14th ultimo my decision is requested of two questions submitted by the pay officer, United States navy yard, Washington, D. C., as follows:

"(a) Shall Capt. H. S. Knapp, United States Navy, ordered to temporary duty at Newport, R. I., in addition to his present duties at Washington, D. C., be allowed heat and light or commutation thereof at Washington D. C., or at Newport? Capt. Knapp has given up his residence in the city of Washington during such temporary duty.

"(6) Shall Capt. W. R. Shoemaker, United States Navy, ordered to temporary duty at Newport, R. I., in addition to his present duties at Washington, D. C., be allowed heat and light or commutation thereof at Washington, D. C., or at Newport? Capt. Shoemaker has temporarily closed his house in Washington, D. C.”

The heat and light allowances to which officers of the Navy are entitled are those actually necessary for the quarters which they occupy-subject to certain limitations and conditions prescribed in regulations by the Secretary of War. It is the quarters which the officer's duty makes it necessary for him to occupy that the law contemplates shall be heated and lighted at Government expense. If an officer be assigned to temporary duty, he is entitled to have his quarters at his temporary station heated and lighted at Government expense, provided he does not retain quarters at his permanent station during the period of his absence. When an officer, with permanent station at a place where he is entitled to commutation of quarters, is assigned to temporary duty at some other station he may continue, during the period of his temporary absence, to have the quarters which he was occupying at his permanent station at the time of his assignment to temporary duty, heated and lighted at Government expense so long as said quarters are occupied by his family or persons dependent upon him for support. But if said quarters are not so occupied, it will be considered that the officer has relinquished his quarters at his permanent station, and he will be entitled to heat and light allowances for only the quarters occupied at his temporary station.

I understand from the statement of the pay officer that Capt. Knapp has given up his quarters in the city of Washington. If such be the case, he is entitled to heat and light allowances for the quarters actually occupied at Newport.

If the statement that "Capt. Shoemaker has temporarily closed his house in Washington, D. C.," means that the house occupied by him as quarters while on duty at his permanent station has been and will continue to be unoccupied during the period of his temporary absence, and that no heat or light has been or will be furnished by the Government for use therein during said period, he also is entitled to heat and light allowances for the quarters actually occupied at Newport.

STOPPAGE OF PAY OF AN OFFICER OR ENLISTED MAN OF THE ARMY. Stoppage of pay of an officer or enlisted man of the Army for absence from duty is not authorized under the provisions of the act of August 24, 1912 (37 Stat., 572), unless the absence is on account of disease, not injury, resulting from causes stated in the act.

In the absence of fraud or plain error a finding by the military authorities as to the cause of the disease and the period of absence from duty on account thereof is conclusive.

Decision by Assistant Comptroller Warwick, August 6, 1913:

The Auditor for the War Department reported July 31, 1913, for approval, disapproval, or modification, his decision of that date making an original construction of a statute as follows:

"A claim has been submitted to this office by Hugh F. Garvey, late private, Troop F, Fifth United States Cavalry, for pay from November 10, 1912, to March 21, 1913, the date of his discharge.

"This soldier's final statements gives the reason for discharge as 'Certificate of disability per 2d ind. W. D., A. G. O., March 15, 1913, on account of loss of vision, left eye, due to rupture of eyeball. Disease not incurred in line of duty.'

"The final statement also bears, under the head of Due the United States,' the following: For stop pay from November 10, 1912, date of discharge, G. O. 31, W. D. 1912.'

"The Adjutant General, under date of July 18, 1913, reported as follows:

"WAR DEPARTMENT,

66 "THE ADJUTANT GENERAL'S OFFICE, "Washington, July 18, 1913. "Respectfully returned to the Auditor for the War Department, with the information that the records show that Hugh F. Garvey, late pvt., Troop F, 5 Cav., became unfit for duty Nov. 10, 1912, by reason of loss of vision left eye, due to rupture of eyeball, accidentally incurred Nov. 10, 1912, by being struck by elbow of a comrade. while engaged in a drunken brawl, not in line of duty.

"H. O. S. HEISTAND, Adjutant General.'.

666

"The act of August 24, 1912 (37 Stat., 572), relating to the subject of pay for absence from duty, reads as follows:

"Provided, That no officer or enlisted man in active service, who shall be absent from duty on account of disease resulting from his own intemperate use of drugs, or alcoholic liquors, or other misconduct, shall receive pay for the period of such absence from any part of the appropriation in this act for the pay of officers or enlisted men, the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of War.'

"General Order No. 31, dated War Department, September 12, 1912, prescribes the method for determining the cause of such absence within the purview of this statute. These regulations prescribe that the company commander and surgeon shall determine whether

an officer or enlisted man is absent from duty due to causes within the purview of the statute above quoted, and further provide that— "When the company commander and the surgeon are in accord, the finding, if approved by the commanding officer, shall be final.’ "Said regulations further provide

"When it has been determined in the manner hereinbefore prescribed that an enlisted man has been absent from duty due to causes within the purview of the statute above quoted, the proper commanding officer will make notation to that effect on the pay rolis or on final statements giving the inclusive dates of the absence, and the paymaster will make deduction of pay for such period.'

"The question arises as to whether, under this statute, the accounting officers are authorized to review the action of the officers designated in the regulations issued by the Secretary of War in making deductions from enlisted men's pay.

"The statute prescribes the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of War.' This language appears to be clear and unambiguous, and gives the Secretary of War the exclusive right to prescribe regulations to determine the time and cause of such absence. That the absence of Pvt. Garvey from November 10, 1912, to March 21, 1913, comes within the purview of the act of August 24, 1912, supra, appears to have been determined in accordance with the regulations prescribed by the Secretary of War. I am therefore of opinion, and so decide, that when it has been determined, in accordance with the regulations prescribed by the Secretary of War, that an officer or enlisted man has been absent from duty for causes specified in said act, it is not within the jurisdiction of this office to allow any claim for pay deducted in accordance with such determination.

"If it were within the jurisdiction of this office to determine whether the absence came within the purview of this act or not, I would be inclined to hold that only such absence as resulted from the natural consequence of the soldier's intemperate use of intoxicating liquors, drugs, or other misconduct would deprive him of pay, and that an accident such as resulted to this soldier, and which might have occurred without the soldier having indulged in intoxicating liquors, would not authorize a deduction from his pay."

The statute construed by the auditor clearly provides that pay shall be stopped for absence from duty "on account of disease" resulting from the causes stated. The Secretary of War is authorized to establish a procedure and regulations to ascertain the time of absence" and the cause thereof." This authority does not extend to a determination, final upon the officers and men and the accounting officers of the Treasury, of the question of whether or not the pay is properly withheld. The absence with consequent loss of pay must be on account of disease. Where there is disease the determination of "the cause thereof" is to be reached according to the procedure and regulations established, and such procedure and regulations must be understood and construed to relate to disease and the