Compensation of Soldiers-Extra Duty. field; and enlisted men, now or hereafter detailed to special service, shall not receive extra pay for such services beyond that allowed to other enlisted men." By the first clause it was taken out of the power of anyone to withdraw for special services men at the front, without the consent of the commanding officers in the field. In this way those who were held responsible for the success of the Army were given the power to prevent the reduction of their forces through special details made by those in authority who were not in the field. The second clause was intended to take away from the soldier the inducement to seek such detail for extra pay. The freedom from danger enjoyed by those specially detailed was ample compensation for the difference in amount of labor. In my opinion the intention of Congress in the last clause of the section was to abolish extra pay entirely. Senator Wilson, of Massachusetts, who reported the bill from the committee in which it had been prepared, made a short statement of its provisions, to be found on pages 976, 977, and 978 of the Congressional Globe for the third session of the Thirty-seventh Congress, 1862-63, part 2. Section 35 in the act as it passed was section 34 in the bill as reported. On page 978 he states section 34 as follows: "Section 34. Details to special service are to be made only with consent of the commanding officer in the field, and no extra pay for special service to be allowed." Attorney-General Bates' opinion is based on what must be regarded as a very narrow construction of the language used, and fails wholly to give effect to the intention of Congress, standing-out in every line of the whole act, to increase the fighting force. His reasoning is that the prohibition is not against extra pay, but against extra pay beyond that allowed to other enlisted men, which he says was provided by the act of 1819 and of 1854. This is based on the words taken literally, without regard either to the rest of the act or the existing state of the law. And even in this narrow view the construction can not be supported. The words "other enlisted men" mean, of course, enlisted men other than those to whom reference has previously been made. The only enlisted men previously referred to are those "now or hereafter detailed for special service." The clause may Compensation of Soldiers-Extra Duty. be correctly paraphrased, therefore, as follows: "And enlisted men, now or hereafter detailed to special service, shall not receive extra pay beyond that allowed to enlisted men not so detailed." Enlisted men, not detailed to special service, received no extra pay. And, therefore, men detailed to special service were to receive none. Another objection to the construction of Attorney-General Bates is that it renders the clause nugatory and useless; for, thus construed, it worked no change in existing law. Before the section was enacted, there was no authority to give enlisted men extra pay except that contained in the acts of 1819 and 1854, and the extra pay thus authorized was, of course, limited by the terms of those acts. The effect of Attorney-General Bates' opinion, therefore, was to give the clause in question the effect of forbidding that which there was no authority or power to do before it was passed. While this is often done in penal statutes, and sometimes may be done where the question of authority is doubtful, it is certainly not usual in a case like that under consideration, where there was not the slightest ground for claiming the previous existence of such authority, and where, so far as appears, no claim of the kind had ever been made. The act of March 1, 1864 (13 Stat., 38, 39), is a legislative construction of section 35, opposed to that of AttorneyGeneral Bates. Section 2 provides that "the thirty-fifth section of the act entitled 'An act for enrolling and calling out the national forces and for other purposes,' approved March three, eighteen hundred and sixty-three, shall not be deemed hereafter to prohibit the payment to enlisted men employed at the Military Academy of the extra-duty pay heretofore allowed by law to enlisted men when employed at constant labor for not less than ten days continuously." This plainly implies that before the passage of this act, the thirty-fifth section of the act of March 3, 1863, had properly been deemed to prohibit the payment of any extra-duty pay to enlisted men. Nor is the question affected by the fact that in the act of February 9, 1863 (12 Stat., 643), an appropriation was made for the fiscal year beginning July 1, 1863, and ending June 30, 1864, for extra pay to soldiers employed on constaut labor under the acts of 1819 and 1854. Section 35 of the Compensation of Soldiers-Extra Duty. draft act was passed some three weeks later and took away any authority impliedly conferred by this appropriation act to give soldiers extra-duty pay. A similar appropriation in the Army appropriation act for the year ending June 30, 1865, passed June 15, 1864 (14 Stat., 126), must be satisfied by a reference to section 2 of the act of April 1, 1864 (13 Stat., 39), above referred to, which in effect repealed section 35 of the draft act so far as it applied to enlisted men on duty at the Military Academy. Moreover, the services upon which the claim under consideration is based were rendered in September and October, 1863, that is to say, in the fiscal year ending June 30, 1864, while the appropriation act of June 15, 1864, applied only to services. rendered during the fiscal year ending June 30, 1865. The difficulty in the construction of section 35 arises from the use of the word "extra" before pay and of the clause beginning "beyond that," etc. Either might have been omitted and the section would have been much clearer. But the unnecessary and confusing attempt at emphasis, by the use of both, can not change the meaning, which, for the reasons given, plainly is that extra pay for enlisted men should be abolished. The result is that the opinion of Attorney-General Devens must be followed and that the opinion of Attorney-General Bates must be overruled. The claim of Bronson should be rejected as for extra pay not authorized by law. The excuse for the length of this opinion is in the fact that two former Attorneys-General have disagreed as to the proper construction of this statute. Very respectfully, WM. H. TAFT, Solicitor-General. The ACTING SECRETARY OF THE TREASURY. Approved: W. H. H. MILLER. Liability of Disbursing Agents for Money Deposited in Bank. LIABILITY OF DISBURSING AGENTS FOR MONEY DEPOSITED IN BANKS. A special disbursing agent of the Board of Town-site Trustees of Oklahoma Territory who deposited moneys received by him as such agent in two banks that suspended payment, with his sureties, is liable for any loss that may arise from the failure of these banks, and he is not relieved from liability by the fact that these banks were designated by the board of trustees as places of deposit. The regulations of the Secretary of the Interior, providing for the designation by the town-site board of a bank for the depositing of money in the hands of the disbursing agent, must be construed in the light of sections 3639 and 3620 of the Revised Statutes to limit power of designation by the board to banks which are lawful depositories of public money within the statutes, which these banks were not. The fact that some of the money so deposited was collected from assessments, and never in the Treasury, is immaterial, inasmuch as it was public money, and his bond expressly bound him to account for all public moneys coming into his hands. DEPARTMENT OF JUSTICE, SIR: By letter of the 3d ultimo you submitted to the Attorney-General an opinion of the Assistant Attorney-General assigned to your Department, together with the correspondence on which the opinion had been rendered, with the request that the same be considered, and that you be advised whether the Attorney-General concurs therein. The question to be considered is whether one Hay and the sureties on his official bond as special disbursing agent are liable to the United States for moneys received by him as such disbursing agent and deposited by him with private banking firms in Norman and Guthrie, Okla. Hay was a member and secretary of Board No. 4 of Town-site Trustees of Oklahoma Territory, appointed by the Secretary of the Interior under the act of May 14, 1890 (26 Stat. L., 809), and was designated by the Secretary as special disbursing agent for the board. As such he gave bond conditioned that he should "at all times, during his holding and remaining in said office, carefully discharge the duties thereof, and faithfully disburse all public moneys, and honestly account, without fraud or delay, for the same, and for all public funds and property which shall or may come into his hands." Liability of Disbursing Agents for Money Deposited in Banks. The first section of the act under which this board of trustees was appointed, required that after the entry of the town-site had been made by them, as therein directed, the Secretary of the Interior should provide regulations for the proper execution of the trust. Number 19 of the regulations (10 Land Decisions, 666 et seq.), made and promulgated in accordance with the act, defined the duties of the disbursing agent, and, among other things, provided that he should "deposit all the sums received by him at least once a week, and when practicable, daily, in some bank designated by the board," and should "pay the same out only on his checks countersigned by the chairman of the board of which he is secretary, which checks, after they are honored, shall be filed with his account as vouchers." The town-site board of which Hay was secretary and disbursing agent designated the Commercial Bank of Norman as a place for the daily deposits of moneys in his hands as such agent, and the Commercial Bank of Guthrie as the bank to which he should transfer his weekly balances. Hay had on deposit with the former some $1,615, and with the latter $3,262.83, when both banks suspended payment. The question is whether Hay and his sureties are liable for any loss which may arise from the failure of these banks. A preliminary objection is made to his liability for the loss of a part of the sums on the ground that it was collected from assessments made and never in the treasury. It was, however, money properly paid into his hands as a special disbursing agent, and was public money, while there, because the United States was responsible for its proper disposition, whatever that might ultimately be. His bond expressly bound him to account for all public moneys coming into his hands. The main question is whether the designation of the banks by the board of trustees as places of deposit relieved Hay from the loss. This must be answered in the negative. Hay was a disbursing officer of the United States, and was forbidden by sections 3639 and 3620, Revised Statutes to deposit the public money in his possession in any other place than with assistant treasurers of the United States, or in some place designated as a depository by the Secretary of the Treas |