that such a regulation was a limitation upon the right given the competitor or candidate by statute, was not authorized by the statute and was therefore invalid.1 Card 3305, February, 1898.

423. Sections 3 and 4 of the act of 1878, were expressly repealed by the act of June 30, 1892. The first act provided for a system of examination by which the persons mentioned therein could be recommended to the President for appointment as second lieutenants, while the second provides an arrangement for making a list of eligibles from which only, and in the order in which the names stand on the list, the President can make appointments of enlisted men to the grade of second lieutenant. Card 4044, April, 1898.

424. Held, that under sec. 3 of the Army Appropriation Act of June 18, 1878, the filling of vacancies in the army by the appointment of meritorious non-commissioned officers to the grade of second lieutenant before all the graduates of the Military Academy have been assigned, would be at variance with the law. Card 3305, June, 1897.

425. The act of July 30, 1892, relating to the appointment of enlisted men as second lieutenant specifically requires two years previous service in the army. This requirement is mandatory and cannot be waived. Card 2065, February, 1896.

426. After his discharge from the service a non-commissioned officer no longer belongs to that class of enlisted men from which, under the act of July 30, 1892, vacancies in the grade of second lieutenant may be filled after the appointment of the Military Academy graduates. Card 3577, October, 1897.

427. If an enlisted man, after having passed the final examination for appointment as second lieutenant under act of July 30, 1892, and before appointment, is, upon due examination by medical officers of the army found physically disqualified for such appointment, or an already existing physical disqualification is discovered or reported, the Secretary of War may and should withhold the appointment.* Card 3577, October, 1897.

428. Held, that when a soldier holding a "certificate of eligibility" under the act of July 30, 1892, either marries or ceases to be a soldier he is no longer eligible for appointment under the act. Card 4118, May, 1898.

429. Sec. 3 of the act of July 30, 1892 (G. O. 79, A. G. O. 1892), provides "that no more than two examinations shall be accorded to the same competitor." And par. 27, A. R. (30 of 1901), provides "that an applicant who twice fails in competitive examination to obtain a certificate of eligibility as candidate for promotion cannot again compete for To the same effect, see opinion of Attorney General of April 7, 1898. * See, opinion of Attorney General of June 16, 1898.

that position." Held that the regulation correctly interprets the statute as meaning the competitive mental examination. The physical examination required is merely preliminary to the mental, and a failure to pass it does not constitute an examination within the meaning of the statute. There must be two failures to pass the competitive mental examination to render the candidate ineligible for further examination. Card 9521, January, 1901.

430. A recess appointment is not continued by a new appointment and commission during a session of the Senate; the latter is a new and distinct appointment.' Card 2805, December, 1896.

431. Held that as the Volunteer Army Act of April 22, 1898, contains no express provision for the appointment by any one of the regimental (field and staff) officers of a volunteer regiment composed of companies taken from two or more States, the President may under section 2 of Article 2 of the Constitution, appoint them. Card 4624, July, 1898. 432. Held that as there is no law authorizing the transfer of a volunteer officer as such to a lieutenancy in the regular army, the words "civil life" as used in section 5 of the act of March 2, 1899, providing for the appointment of second lieutenants in the regular army, should be construed to include officers of the volunteer army; in other words the appointment of a volunteer officer as second lieutenant in the regular army would under this section be an appointment from civil life. Cards 6024, March, 1899; 6553, June, 1899.

*

433. Section 7 of the act of March 2, 1899, provides that "no person in civil life shall hereafter be appointed a judge-advocate, paymaster or chaplain * who is more than forty-four years of age. The words "civil life" as here used should be given their usual signification and therefore would not include persons in the military service as officers of the volunteer army. In construing section 5 of this act as set forth in the preceding section it was necessary to depart from the ordinary rule that words are to be taken in their usual signification, to avoid the absurd conclusion that officers of the volunteer army were, by reason of being such, ineligible for appointment as 19 Wheaton, 720, 721; 2 Opins. At. Gen., 336; 1 Fed. Rep. 104, 109; 20 Fed. Rep. 379, 382; Dig. Dec. 2d Comp. (1869), vol. 1, § 152, p. 22.

2 If a volunteer regiment is made up of separate companies or battalions contributed by two or more States, the governor of each State would be entitled to appoint the officers of the companies or battalions by them respectively contributed in a body. He would not be entitled to appoint the regimental officers to which the regiment is entitled by reason of its organization in that form. The same would apply to a battalion. If a battaliou is made up of companies contributed by two or more States, the governors respectively of each State would be entitled to appoint the officers of the companies, but the officers of the battalion as such would be appointed by the President of the United States. In all cases where appointments to such organizations are to be made by the President, the same law as to number and rank would apply that applies to regiments authorized by the laws and regulations applicable to the Regular Army. (Opin. At. Gen., July 20, 1898.)

second lieutenants in the regular army. But in construing section 7 of the act there is no such obstacle. Moreover, both of these statutory provisions affect the President's appointing power and should be construed most favorably to it. Such was the construction placed on section 5, supra, and such is the construction suggested for section 7. Before this legislation no restriction in the matter of the age of appointees for the offices of judge-advocates, paymasters, and chaplains was imposed on the appointing power, and legislation to that effect should not be construed as creating any further restriction than the actual language demands. Held, therefore, that a person holding a commission as major and paymaster in the volunteer army who is past the age of forty-four years is eligible for appointment as major and paymaster in the regular army. Card 6553, June, 1899.

APPROPRIATION.1

434. It is a familiar general principle adopted and acted upon in the executive departments that appropriations made in conformity with estimates, and based upon them, imply an authority to expend the appropriated funds for the articles designated in the estimates and a legislative sanction of the objects for which the appropriations were asked. LI, 666, May, 1887; 41, 105, May, 1890.

435. Estimates may be a legitimate means of construction of appropriation acts based on them. But an appropriation cannot be construed as appropriating for a certain article specified in the estimates, unless it either names that article or designates a class of objects within which it may be fairly and reasonably embraced. In the latter case it may be presumed that Congress had in view the particular article and intended to make provision for it. 54, 112, June, 1892.

436. An appropriation made for a particular fiscal year is available, for the payment of proper charges against it incurred during that year, for a period of two years after the expiration of the fiscal year. It then lapses and is no longer available. 63, 337, January, 1894. Thus, where the annual Army Appropriation Act, of June 13, 1890, making appropriations for the fiscal year ending June 30, 1891, appropriated as usual a certain sum for "barracks, quarters and other buildings," held that, to have the benefit of this appropriation for the repair and reconstruction of the public buildings at Jefferson Barracks,

As to appropriations by implication, see 4 Comp. Dec., 325; 6 id., 514. 'See Ohio r. Thomas, 173 U.S., 276-282.

See 6 Comp. Dec., 912.

*See 1 Comp. Dec., 170; 2 id., 547, 615; 3 id., 41, 623; 4 id., 553; 5 id., 318; 6 id., 815, 898.

Mo., it would be necessary that such work should be contracted for within that fiscal year, and that the funds appropriated should be availed of and expended within two years from the date of expiration of the fiscal year. 49, 320, October, 1891.

437. Section 3690, Revised Statutes, provides that "all balances of appropriations contained in the annual appropriation bills and made specifically for the service of a fiscal year, and remaining unexpended at the expiration of such fiscal year, shall only be applied to the payment of expenses properly incurred during that year, or to the fulfillment of contracts properly made within that year; and balances not needed for such purposes shall be carried to the surplus fund. This section, however, shall not apply to appropriations known as permanent or indefinite appropriations." Held, with respect to this section: (1) Where supplies are both ordered and delivered within the fiscal year or a contract is made providing for their delivery within the year, the appropriations for that year are chargeable therefor, unless it clearly appears that the amount was manifestly and largely in excess of the needs of the year, including in such needs the keeping of a reasonable stock on hand. (2) Where a contract is made within the fiscal year providing for deliveries within the year, the appropriation for that year would be chargeable therewith even if the actual deliveries were not made until after its close, subject to the limitation stated in (1). (3) Where a contract is made within a fiscal year, providing for delivery of supplies to begin in that year, and the deliveries are completed after its expiration, the appropriation for that year would be properly chargeable, if it appears that the supplies delivered after the expiration of the year were required to replace inroads made during the year on the "reasonable stock on hand." In such a case the supplies could be considered as "for the service of that year." (4) If a non-perishable article is needed for a given fiscal year, either for actual use or to keep a reasonable stock on hand, its purchase during that year should be charged to the appropriation for that year, even though its use may be continued for several years. (5) Where a contract for a building is made and construction begun within a fiscal year, the appropriation for that year would seem to be properly chargeable therewith, even though the construction is not completed until some time after its expiration. Card 8525, June, 1900.

1See Secs. 3679, 3690, 3691, R. S., and sec. 5, act of June 20, 1874 (18 Stat. L. 110); Digest Dec. Second Comp., Vol. 3, p. 31; Decisions of 1st Comptroller, p. 82 (1893-94). For a review of the laws and decisions relating to the covering into the Treasury of balances of appropriations not used, see Decisions of the Comptroller of the Treasury, Vol. 3, p. 623.

"Congress intends that each annual appropriation should bear the burdens of the particular year for which it is granted, and that it should be for the proper use of that year, and no other." 6 Comp. Dec., 815, 819.

438. Money appropriated for the improvement of rivers and harbors is not available for the payment of damages suffered by individual citizens on account of injury to their property, caused by the negligence of the employees of the Government or the defective construction of a public work.1 54, 390, July, 1892.

439. The River and Harbor Appropriation Act of July 13, 1892, contained the provision: Improving East River and Hellgate; removing obstructions"-a specified sum. Held, in view of Sec. 3678, Rev. Sts., that such appropriation was not legally available for the payment of a claim, interposed by certain tug-owners for personal services in assisting to put out a fire on a dredge used by the Government in the improvement. 63, 386, February, 1894.

440. Held that the funds appropriated by Congress for the improvement of the Ohio River were not legally available for the removal of an ice gorge closing a part of the river opposite Cincinnati and threatening the destruction of floating property. 57, 293, January, 1893.

441. An appropriation act contained a simple appropriation-" for improving" a specified part of a river named: so much. Id that such appropriation was not legally available for the reimbursement of U. S. employees for losses of personal effects caused by the sinking, without their fault, of a vessel employed in the improvement. 44, 87, November, 1890.

442. Id that the expense of attending a congress of engineers in Paris, in July, 1869, incurred by an engineer officer detailed for the purpose as a representative of the Corps of Engineers of our Army, would clearly not be a legal charge against the appropriation for the improvement of rivers and harbors in that officer's "district." 55, 134. August, 1892.

443. Under an appropriation for the "improvement of the Yellowstone National Park," held that the Secretary of War would be authorized to purchase a bridge, the private property of a person who, before the park was reserved, had constructed the same over the Yellowstone River on one of the principal thoroughfares and where a bridge was indispensable; such bridge being in good condition and clearly an "improvement." 62, 15, October, 1893.

444. Under the appropriation in the army appropriation acts"for expenses of courts martial and courts of inquiry, and compensation of witnesses," held that the legal fee of the proper official for a certified copy of a marriage certificate, necessary to be used in

That the United States is not legally responsible for such claims, see § 784, post. This claim was also of the class of claims for unliquidated amounts, the allowance of which is beyond the authority of the head of an Executive Department. See § 769, post, and note.