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the Auditor in his decision that the appropriation made by section 2 of the act of June 27, 1902 (32 Stat., 406), for the refundment of moneys paid for documentary stamps used on export bills of lading, which is a permanent indefinite appropriation, is applicable to the payment of this claim.
I also concur with the Auditor in his decision that this claim is not subject to the provision in the act of June 30, 1902 (32 Stat., 506-507), that no claim “for the redemption or allowance for stamps” shall be allowed unless presented within two years after the purchase of said stamps from the Government, excepting documentary and proprietary stamps issued under the act of July 13, 1898, which stamps "may be redeemed” upon presentation prior to July 1, 1904. But my reason for this conclusion is not because the appropriation herein referred to is available until the refundments therein authorized have been made.” This fact alone would not operate to except such refundments from the limitation prescribed in the act of June 30, 1902, supra. But they are excepted therefrom for the reason that the appropriation provides for the refundment of “sums paid for" documentary stamps used on export bills of lading, because such stamps represented “taxes which were illegally assessed and collected." Therefore claims thereunder are not made " for the redemption or allowance for stamps," and therefore are not within the meaning of the provision in the act of June 30, 1902, supra, limiting the time for the redemption of documentary stamps.
The decision of the Auditor is approved as modified.
EXPENSES OF SUBSISTING CHINESE PRISONERS. Expenses incurred for the care and custody of a Chinese prisoner after an
order for his deportation has been issued, but while an appeal from such order is pending, are properly payable from the appropriation for the Department of Justice without regard to the result of the
appeal. (Comptroller Tracewell to the Attorney-General, February 18,
1905.) I have received your letter of 13th instant, as follows:
“On the 18th ultimo the Department of Commerce and Labor sent to the Auditor for the State and other Depart
ments an account of William R. Bates, United States marshal for the eastern district of Michigan, as special disbursing agent, for $13.73, under the appropriation Enforcement of the Chinese-exclusion act, 1904, disapproved. On the 24th ultimo the Auditor wrote the Secretary of Commerce and Labor, returning the account, saying:
"Apparently this account was sent from your Department through error. It appears that the claim is that of a field deputy marshal for transporting a Chinese prisoner from Lansing to Detroit after an order of deportation had been issued while an appeal is pending. Under the decision of the Comptroller of the Treasury of December 6, 1904, in the case of Marshal J. H. Shine, these expenses are payable from the judiciary appropriation.
"" It is therefore suggested that the account be returned to Marshal Bates with the instructions to present the same to the Department of Justice in the usual way.'
* The account has now been submitted to the Department of Justice by the marshal, with a letter dated the 3d instant.
“ The Shine case was one where the execution of the order of deportation was stayed by the Commissioner, and the decision states that under such circumstances the order of deportation, in so far as its execution is concerned, is the same to the marshal as though no such order had been issued,' but the Deparment has not construed it to mean that the mere taking of an appeal, of itself, produces the same effect, and has therefore continued to act upon the view that, until the appeal is decided, the appropriation from which the expenses are to be paid can not be determined.
“The Auditor, in his letter above quoted, construes your decision in the Shine case as making the expenses of a Chinese prisoner after an order of deportation has been issued, but wbile an appeal is pending, payable from the judiciary appropriation.
“Under the provisions of the act of July 21, 1894, section 8, the account is now submitted for your decision whether, when an appeal is pending from an order of deportation, the expense in connection with the care and custody of the prisoner is to be paid from the judiciary appropriation without regard to the result of the appeal.”
In 5 Comp. Dec., 47, it was held' that the expenses of deporting Chinese persons who have been convicted of being unlawfully in the United States, which accrue after the order of deportation has been delivered to the marshal, are payable from the appropriation for the enforcement of the Chinese exclusion act.” (See also 5 Comp. Dec., 382.)
In the Shine case (11 Comp. Dec., 266) where appeal had been taken by the Chinaman and the order of deportation was suspended pending the hearing of an appeal to the district court, after stating the rule in 5 Comp. Dec., supra, I said:
“It follows from the rule that the expenses which accrue prior to the time when the writ is ready for execution must be borne by the judiciary appropriation.”
It was to obviate the difficulty which frequently arises, by reason of the length of time between the date of appeal and the date of actual deportation, of the uncertainty of the appropriation available, that I held that the delivery of the order of deportation to the marshal was determined by the time or dates when it was ready for execution, which may be weeks and months after the original order of deportation by a commissioner. In other words, it is my opinion that an appeal properly taken, eo instante, operates as a supersedeas without any formal order by a commissioner or the court to that effect; to hold otherwise, it seems, would permit the recurrence and continuance of the very difficulty alluded to in 11 Conto. Dec., 266, supra, of determining by the marshal or the jailer out of which appropriation such expenses incurred prior to the time when the writ is ready for execution, are payable.
I conclude, therefore, that on a proper appeal by a Chinaman, the expense of his care and custody is a charge against the proper judiciary appropriation “ without regard to the result of the appeal.”
COMPUTING PAYMENTS OF ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH.
Where a person was appointed to a clerkship in the Post-Office Depart
ment at $900 per annum on the fourth day of a 28-day month, and the position had been vacant the first three days of said month, he is entitled for the remainder of the month to one-thirtieth of the one
twelfth part of $900 for each day's actual service. Where a clerk in the Post-Office Department was absent on leave, without
pay, two days in a 28-day month, one-thirtieth of his monthly salary should be deducted for each day he was absent.
Where a clerk in the Post-Office Department was promoted on the sixth
day of a 28-day month from a position at $1,200 per annum to one at $1,400 per annum, and the position to which he was promoted had been vacant the first five days of the month, he is entitled for his serrices during said month to one-thirtieth of the monthly pay of each
grade for the actual number of days served in said grade. A clerk in the Post-Office Department who was promoted, on the sixteenth
day of a 28-day month, from a position at $900 per annum to one at $1,000 per annum, to succeed a person who had served up to and including the 15th of said month, is entitled for his services during said month to pay for fifteen days at the rate of $900 per annum and for thirteen days at $1,000 per annum.
(Comptroller Tracewell to R. B. Merchant, disbursing clerk,
Post-Office Department, February 21, 1905.) I am in receipt of your letter of the 16th instant, requesting my decision on the questions therein stated, as follows:
“I have the honor to request your decision as to the proper amounts of salary to be paid in the following cases:
“No. 1. An appointment has been made to a $900 clerkship in this Department, to take effect February 4, the clerkship having been vacant since January 23. Shall the person so appointed receive twenty-seven thirtieths of one month's pay, or shall he receive twenty-five days' pay, from February + to February 28, for the actual time of service!
"No. 2. A $1,200 clerk is reported as absent for two days, son written leave, without pay, in the present month of Feb
ruary. Should he be paid twenty-eight thirtieths of one month's salary on account of this absence of two days, or should he be paid for twenty-six days, the actual amount of service?
“No. 3. An employee is promoted from $1,200 to $1,400 per annum, to take effect February 6, the new office having been vacant since the 1st of the month. Shall the employee so promoted be paid for five days at $1,200 and twenty-five days at $1,400, or for five days at $1,200 and twenty-three days at $1,400?
* No. 4. A clerk serving at $900 per annum is promoted to a $1,000 clerkship on the 16th of February, succeeding a person who has served up to and including the 15th. For what number of days shall he be paid at $900 and $1,000 per annum, respectively.”
Assuming that each of your questions has reference to annual salaries, I will answer them in the order stated:
1. He only served a part of the month, and should be paid for the actual number of days served-twenty-five-at one
thirtieth of his monthly rate of pay for each day. (11 Comp. Dec., 24; id., 48; id., 84.)
2. He occupied the position for the entire month, and should be paid the entire month's salary, less such deductions for absence as is authorized by law, viz, two days at onethirtieth of his monthly salary for each day. He should be paid twenty-eight thirtieths of his monthly pay. (11 Comp. Dec., 130, 132.)
3. The service in each of the grades mentioned represents only a fractional part of a month in each, and as there is money sufficient to pay him for the actual number of days served in each grade, you are authorized to pay him at the rate of onethirtieth of the monthly pay of each grade for the actual number of days served in said grade, or for five days at the rate of $1,200 per annum and for twenty-three days at the rate of $1,400 per annum. (11 Comp. Dec., 24.)
4. You are authorized to pay him for fifteen days at the rate of $900 per annum and for thirteen days at the rate of $1,000 per annum.
PAY OF A FOREMAN MACHINIST IN THE NAVY
DEPARTMENT FOR WORKING OVERTIME.
A foreman machinist in the department of steam engineering at the Mare
Island Navy Yard is not entitled to additional pay for working overtime.
(Assistant Comptroller Mitchell to the Secretary of the Navy,
February 21, 1905.) I have received your request of the 7th instant for my decision as to whether E. B. Hussey, foreman machinist in the department of steam engineering, navy yard, Mare Island, Cal., is entitled to pay for overtime service rendered under circumstances explained by him as follows:
“I respectfully present a claim for overtime work performed, by direction of the head of the department of steam engineering, on Saturday night, January 21, and Sunday, January 22, amounting to twenty hours straight time, which, at my rate for overtime, amounts to twenty-two and one-half ($22.50) dollars.
“The work in question consisted of replacing the tubes in the condenser of the steam engineering plant with new ones and taking the slack out of the main engine belt.