Appropriation-Transfer. in accordance with the laws of Minnesota, and shall not exceed in the aggregate five thousand dollars." The act of March 3, 1881 (21 Stat., p. 481), reads as follows: "For reservoirs upon the head waters of the Mississippi River and its tributaries, one hundred and fifty thousand dollars; and this sum, together with the sum of seventy-five thousand dollars heretofore appropriated for the construction of a dam at Lake Winnibigoshish, shall be expended at such places on said head waters of the Mississippi River and its tributaries as the Secretary of War shall determine: And it is provided, That compensation for any private property taken or appropriated for any of said improvements, and all damages to private property caused by the construction of any of said dams, by flowage or otherwise, shall be ascertained and determined under and in accordance with the laws of the State in which such private property is situated. And the Secretary of the Interior is hereby authorized and directed to ascertain what, if any, injury is occasioned to the rights of any friendly Indians occupying any Indian reservation by the construction of any of said dams, or the cutting or the removing of trees or other materials from any such reservation for the construction or erection of any of said dams, and to determine the amount of damages payable to such Indians therefor; and all such damages to private property and to friendly Indians, when ascertained and determined in the manner herein directed and provided, shall be paid by the United States: Provided, however, That such damages shall not exceed ten per centum of the sums hereby and heretofore appropriated for the construction of said reservoirs." Upon these statutes the question arose whether the damages to private property resulting from any of said improvements were to be paid out of the funds so appropriated. Assuming that they were to be so paid, you state that in 1882 the Secretary of the Treasury transferred $15,966.90 of these appropriations from the books of the War Department to those of the Interior Department, for the payment of damages of the character above described sustained by the Chippewa Indians; that the Indians refused to accept this sum in settlement of such damages, and by act of August 19, 1890 (26 Appropriation-Transfer. Stat., p. 357), Congress made a further appropriation, in the following words: "To enable the Secretary of the Interior to pay the Chippewa Indians of the State of Minnesota the amount of the several sums, not hitherto paid, awarded them by commission appointed December second, eighteen hundred and eighty-two, for damages sustained on account of the building of dams and reservoirs on Lake Winnibigoshish, Cass Lake, and Leech Lake, one hundred and fifty thousand dol lars, to be in full payment for all damages and claims of whatever nature on account of the construction and maintenance of such dams and reservoirs." * Only $333.73 of the $15,966.90 transferred as above having been expended, the question now arises whether the unexpended balance of the sum so transferred may be retransferred to the War Department, and thus again become a part of the original appropriation for the construction of the reservoirs. In my opinion, the appropriations of $75,000 and $150,000, first above recited, were general and were available for the payment as well for the property taken and damages sustained by reason of the improvements, as for the actual work of such construction. Hence the transfer of the $15,966.90 to the Interior Department for the payment of such compensation and damages was, I think, authorized by law. I think the appropriation of $150,000 in full for such claims by the act of 1890, operated to relieve the amount transferred from the War to the Interior Department books from the use to which, by such transfer, it had been assigned, and to make it proper that such fund should be retransferred and become a part of the original appropriation from which it was taken as if the transfer had never been made. The transfer of the money from the books kept in the Treasury for the War Department to those kept for the Interior Department was a matter of bookkeeping and convenience only, upon the theory that money to be paid to the Indians should be paid through the Interior Department, rather than through the War Department. The necessity for holding the fund in the Interior Department being at an end, there would seem to be no reason why the unexpended balance should not go Absence on Pay. back to the original fund. This is, of course, upon the supposition that the money has not been covered back into the Treasury. Section 4 of the act of March 3, 1883, chapter 128, inhibits heads of Departments and the Executive from granting leave of absence to Department clerks with pay and without charging the time against the period of absence allowed annually by law, in every case except that of the sickness of the clerk concerned. DEPARTMENT OF JUSTICE, SIR: Your letter of the 14th ultimo relating to the question of authority to direct or authorize leaves of absence for Department clerks with pay and without charging the time against the annual leave of absence, has, with the letters inclosed therewith, received careful consideration. Section 4 of the act of March 3, 1883, has reference to the service of clerks and other employés of the several Departments of the Government, and the concluding paragraph thereof (22 Stat., 564) is as follows: "All absence from the Departments on the part of said clerks or other employés in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." This enactment, which is obligatory upon all who are vested with authority in the premises, appears to prohibit the Executive from authorizing leaves of absence beyond thirty days in any one year except in case of the sickness of the clerk or employé concerned. In Chisholm v. The United States, decided January 11, 1892, the Court of Claims considered section 4 of said act of March 3, 1883. It is stated in the opinion of the court, that— "Prior to this legislation the 'principal officer' in each of the Executive Departments had full discretion in the man Ocean Mail Service-Contract. agement of this and kindred minor matters in the Department which he administered, and leaves of absence depended entirely upon his discretion, exercised through the appropriate subordinates." It is stated that the statute is "one of limitation upon a power necessarily implied as an incident to Executive responsibility;" and that it "recognizes a privilege to a certain leave of absence during the year." Upon the question presented by your letter the court declares that "The act authorizes leaves of absence to be granted for thirty days in any one year with pay; it prohibits pay for a longer absence than thirty days in any one year (even if leave be properly given), but with this exception, that pay may be given for an absence exceeding the said thirty days in any one year when sickness is the cause of that extended absence." Although the patriotic service which has occasioned this inquiry is one that is rightfully entitled to such favorable consideration as can be given under the laws, yet, in view of the phraseology of the statute, and of such constructions thereof as have been made, it is my opinion that heads of Departments, and the Executive of the United States, are, alike, inhibited by the enactment from granting leaves of absence to Department clerks with pay and without charg ing the time against the period of absence allowed annually by law, in every case except that of the sickness of the clerk concerned. Very respectfully, The PRESIDENT. W. H. H. MILLER. OCEAN MAIL SERVICE-CONTRACT. The Postmaster-General may accept a proposal from the Pacific Mail Steamship Company, the holder of a contract with the Government for performing second-class mail service, to perform first-class mail service under the subsidy act of March 3, 1891, chapter 519, on the condition that if the proposal be accepted, the existing contract shall be rescinded, but the company should be required to stipulate for the safety of the Government that, in consideration of the above, the existing contract shall, at the option of the Government, be void in case some other party than the company shall be the successful bidder for firstclass service. Ocean Mail Service-Contract. DEPARTMENT OF JUSTICE, January 30, 1892. SIR: Your communication of January 21, 1892, lays before me for an opinion the following case and question: "A contract has been entered into with the Pacific Mail Steamship Company, of New York, to carry the mails of the United States from San Francisco to Hongkong, via Yokohama, under the provisions of an act entitled 'An act to provide for ocean mail service between the United States and foreign ports, and to promote commerce,' approved March 3, 1891, for a term of ten years begun November 1, 1891, in vessels of the third class for the first two years of the term, and in vessels of the second class for the remaining eight years of the term, being in accordance with the proposal of the said company which was rendered in response to the Postmaster-General's advertisement of July 15, 1891. "The company is now desirous of performing the service between the ports named in vessels of the first class in lieu of those of the second class covered by the contract; and the better service would, in my judgment, be advantageous to the public interest. A contract for the improved service could not, of course, be let except to the lowest bidder in response to an advertisement to be hereafter issued. If such an advertisement were published and the Pacific Mail Steamship Company should be the lowest bidder, and a contract awarded to it in vessels of the highest class, the company would insist that the contract for the same should include a provision for the annulment of the contract now in existence for vessels of the lower grade. Without an understanding that a stipulation of this kind would be included in the contract the company would not care to bid in response to an advertisement. It therefore becomes important to determine whether the Postmaster-General is authorized in law to accept a proposal, and to execute a contract thereunder, which contained a provision for the annulment of the former contract and the substitution of the other in its stead. I will thank you to inform me if, in your judgment, an acceptance of this kind and the execution of a contract accordingly are authorized by the law." To answer your communication in the negative would be to place a restriction on the powers of the Postmaster 5687-VOL 20-20 |