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27, 1902, do not apply thereto, but if the application for such refund is properly made within the time prescribed by section 3228 of the Revised Statutes, a refund should be made under authority contained in section 3220 of the Revised Statutes.

TRANSPORTATION OF REMAINS OF DECEASED

EMPLOYEES OF THE ISTHMIAN CANAL COMMISSION

The provision in the act of June 7, 1897, that “hereafter the heads of

Departments shall not authorize any expenditure in connection with transportation of remains of deceased employees, except when otherwise specifically provided by law," has no application to the Isthmian Canal Commission, and said Commission is therefore authorized to contract with its employees for the payment, as a part of their compensation, of the expenses of transporting their remains, in the event of their death, to their homes in the United States.

(Comptroller Tracewell to Theodore P. Shonts, Chairman

Isthmian Canal Commission, June 20, 1905.) I am in receipt, by your direction, of letter of the 14th instant, from Col. Clarence R. Edwards, chief of office, Isthmian Canal Commission, requesting my decision as to whether you are authorized, under a proper contract of employment between the Commission and its employees, to pay the expenses of transporting the remains of deceased employees from the Isthmus to their homes in the United States.

It appears that the contracts now existing between the Commission and its employees contain the following provision:

“Free medical and hospital attendance in case of illness is provided, and free transportation to a port in the United States upon the termination of satisfactory service, the character and length of such service to be determined by the bead of the Department.”

I do not think the language of the above provision is broad enough to include expenses of transporting the remains of deceased employees to their homes, and I have the honor, therefore, to advise you that, under such a contract, payment of expenses of this character is unauthorized.

I am of the opinion, however, that the Commission has

authority to contract with its employees for the payment, as a part of their compensation, of the expenses of transporting their remains, in the event of their death, to their homes in the United States. The provision in the act of June 7, 1897 (30 Stat., 86), that “hereafter the heads of Departments shall not authorize any expenditure in connection with transportation of remains of deceased employees, except when otherwise specifically provided by law," has no application to the Isthmian Canal Commission, as that Commission is neither a department of itself nor under the control of any department, within the meaning of said act, but has been placed by Congress directly under the control of the President of the United States.

REIMBURSEMENT OF

OF AN EMPLOYEE OF THE CENSUS OFFICE FOR TRAVELING EXPENSES.

An employee of the Census Office who, while on field duty in Florida,

was suspended by the Secretary of Commerce and Labor without pay as a matter of discipline, and who, while so suspended, was ordered by the Director of the Census to proceed to Washington, D. C., is entitled, upon the approval of said order by the head of the Department, to reimbursement of traveling expenses incurred by him in obeying same.

(Comptroller Tracewell to the Secretary of Commerce and Labor,

June 20, 1905.) In your communication of June 15, 1905, you request my decision of a question which you therein present as follows:

“The Secretary of Commerce and Labor found it necessary to suspend Mr. James C. Cassidy, a clerk in the Bureau of the Census, at $1,200 per annum, from duty, granting him leave of absence without pay, as a matter of discipline, for the period from April 27 to May 26, 1905, both dates inclusive. At the time of Mr. Cassidy's suspension he was detailed to field duty in Florida. Shortly after the date which commenced the period of leave of absence without pay Mr. Cassidy was ordered to Washington, D. C., by a telegram from the Director of the Census.

“The Department is considering the question of reimbursing Mr. Cassidy's traveling expenses from his field station in Florida to Washington, D. C., and I will thank you to advise me whether the disbursing clerk of the Bureau of the Census will receive credit for payment of such expenses."

I am of opinion that the order of the Director of the Census, if approved by you, placed Mr. Cassidy on duty for the purpose of complying therewith, and that, in such case, the travel having been made under orders in the performance of official duty, he is entitled to reimbursement of the actual necessary traveling expenses incurred by him while so traveling

EXPENSE OF SUBSISTING CHINESE PRISONER.

The expense of subsisting a Chinese prisoner during the time when the

execution of the order for his deportation was suspended by the district attorney is properly payable from the appropriation for the judiciary. (Comptroller Tracewell to the Secretary of Commerce and

Labor, June 21, 1905.) I am in receipt of your communication of 14th instant as follows:

"The Department is in receipt of a request from John H. Sargent, special disbursing agent at Fort Townsend, Wash., for instructions relative to the payment of expenses for maintenance of a Chinese person in whose case the writ of deportation was received by the United States marshal on July 28, 1901, and who was deported by said marshal on March 21, 1905.

“The Chinaman in question, Fong Doon, was arrested by Inspector Harris at Cut Bank, Mont., on July 10, 1904, and ordered deported on July 28, 1904. No appeal was taken by the Chinaman named, but as the Department was desirous of investigating the methods of his entry into the United States from Canada the Attorney-General was requested to issue to the Cnited States marshal at Helena, Mont., proper instructions to stay his deportation and to secure his removal to Helena, Mont., in order that he might be used as a witness in the investigation.

* In accordance with the above request, the AttorneyGeneral telegraphed the marshal to stay deportation in the case of the Chinaman in question and to remove him to the jail at Helena. As there was no order of the court issued in this case to stay the execution of the writ of deportation, you are requested to advise the Department if the expenses for the maintenance of the prisoner prior to the execution of the writ are a proper charge against the appropriation for ‘En

forcement of the Chinese exclusion act,' or wbether, under your decision dated December 6, 1904, they should be paid by the Department of Justice."

In the decision referred to by you, In re Shine (11 Comp. Dec., 265), it was held by me, quoting from the syllabus, that

“The expense of subsisting a Chinese prisoner during the time when the order for his deportation is suspended, either pending an appeal to the district court or by an order of a commissioner granting a stay of execution, is properly payable from the appropriation for the Department of Justice and not from the appropriation for the enforcement of the Chinese exclusion laws.

I see no difference in principle in the case presented by you, which contemplates an intervention by the Attorney-General in the execution of the order of deportation from those in the decision above cited.

The true test for determining when a judiciary appropriation ceases and the appropriation under your control begins, regardless of the sources of intermediation, whether by the court, commissioner, or Attorney-General, is the time, which is always ascertainable, when the writ is ready for execution and deportation is actually begun. See 11 Comp. Dec., 447 and MS. Dec., vol. 32, p. 4, emphasizing and elaborating the principle announced in the Shine case supra.

In the case submitted by you the original writ of deportation was issued to and received by the marshal July 28, 1904, its execution suspended by the Attorney-General until March 21, 1905, at which time the Chinaman in question was actually deported.

Under the facts and the law in the case, I have the honor to advise you that the expenses for the maintenance of the prisoner in question between the dates above mentioned are a proper charge against the proper appropriation under the control of the Attorney-General.

FEES OF DEPUTY MARSHAL FOR TRANSPORTING PRISONERS UNDER WARRANT OF EXTRADITION.

Under the provisions of the act of June 21, 1902, fees of a deputy marshal

for transporting prisoners under a warrant of extradition are properly

payable out of the appropriation for the expenses of the judiciary. (Comptroller Tracewell to W. R. Compton, marshal, June 21,

1905.)

I have received your letter of 13th instant as follows:

"I have the honor to submit herewith voucher of Charles Hettig, field deputy marshal, Butfalo, N. Y., for transporting Walter Lambert, alias William Lambert, and Austin Watkins, alias James Watkins, from Butfalo, N. Y., to New York, N. Y., under a warrant of extradition, together with a copy of the warrant and the indorsement thereon.

"Are the charges in the voucher properly chargeable against the United States or should the amount thereof be paid by the representative of the British Government direct to Deputy Hettig?

** Does the jurisdiction of the marshal as such cease upon the presentation to him, or to the jailer, of the warrant of extradition by the person authorized to execute same and the custody of the prisoners is demanded by the one so designated, or upon the execution of the final commitment issued by the commissioner holding the defendants for extradition?

“Was the deputy in this instance acting as the representative of the British consul from the time he took into his custody the above-named prisoners until he delivered them at New York?

“Am I authorized to pay Deputy Hettig his share of the fees charged in the voucher, or should he collect same from the British consul?”

The several questions propounded by you may be answered collectively.

Section 5272, Revised Statutes, provides that,

“ It shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so committed to be delivered to such person as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person so authorized to hold such person in custody, and to take him to the territory of such foreign government, pursuant to such treaty.”

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