May 9, 1918, extends right of naturalization to Japanese in the military or naval service, and that some courts have denied them naturalization.

The Auditor for the Navy Department submitted to the Comptroller of the Treasury for approval or disapproval his opinion that Japanese who have been granted certificates of naturalization by the lower courts of the United States under the act of May 9, 1918, are not entitled to the benefits of the increased pay provided in General Order No. 34 of November 28, 1906. The Comptroller in decision of March 3, 1921, 27 Comp. Dec., 770, stated that—

In view of the diversity of opinion in the inferior Federal courts as to whether Japanese may be naturalized under the act of May 9, 1918, 40 Stat., 542, notwithstanding section 2169 Revised Statutes, and in the absence of an authoritative decision by the United States Supreme Court, the auditor's decision is approved.

Upon request of the Secretary of the Navy for a reconsideration of this question the Comptroller of the Treasury in letter of April 7, 1921, refused to modify said decision as to right to pay under General Order 34, except as to payments made by disbursing officers prior to the date of decision March 3, 1921, which payments he stated would not be disturbed. In that letter he also made the following statement:

As to transfer to the Fleet Naval Reserve of Japanese holding naturalization certificates issued under authority assumed to be given by the act of May 9, 1918, the legality of these transfers in the last analysis must rest upon the determination by the courts of the validity of the naturalization certificates held by the men transferred. As to transfers accomplished prior to March 3, 1921, I see no objection to continuing the men already transferred in their present status in the Fleet Naval Reserve. The Navy Department's action in thus changing the status of the men by transferring them to the Naval Reserve, where citizenship is a requisite, in the present state of the law, is of doubtful legality. As, however, the transfers heretofore made were accomplished under what seems to have been a misapprehension of decisions of this office, their right to membership in the Fleet Naval Reserve will not be challenged by the accounting officers until their status as to citizenship shall have been authoritatively determined as herein indicated.

Since right to membership in the Naval Reserve Force is limited to citizens of the United States, 39 Stat., 587, it follows that the Comptroller's action in thus recognizing such certificates of naturalization with respect to the status of men transferred to the Fleet Naval Reserve and refusing to recognize the same certificates as conferring right to pay under General Order 34 is questionable. Such recognition results in allowing the men to continue in receipt of retainer pay, which is just as much predicated on citizenship as is pay under General Order 34, and which is much greater than pay under that order.

A certificate of naturalization is a grant of political privileges, and, like other public grants, is subject to revocation or cancellation if found to have been unlawfully or fraudulently procured. Such certificates is prima facie evidence that the grantee is lawfully en

titled to citizenship. That evidence, however, is rebuttable by evidence that it was unlawfully or fraudulently procured. A certificate issued to one of a class of persons to whom the law positively denies admission to citizenship would be null and void on its face.

It follows that a certificate of naturalization, though granted by the court in proceedings in which the Government was heard in opposition, as provided in section 11 of the act of June 29, 1906, 34 Stat., 599, does not confer upon the grantee vested rights as against the Government, since such is not an adversary proceeding which estops the Government from thereafter questioning the validity of the certificate.

While it is not within the province of this office to finally determine whether a certificate of naturalization was lawfully procured, it is within the authority of this office to determine whether such certificate is sufficient evidence to establish the grantee's right to pay, which can legally accrue only to citizens of the United States; and in all cases where there is evidence to show that the certificate was unlawfully or fraudulently procured, it is the duty of the accounting officers to withhold benefits accruing to citizens only.

In the case in question the certificate of naturalization was granted under authority of the act of May 9, 1918, 40 Stat., 542, which act prescribes the procedure and requirements necessary on the part of persons serving and who have served in the military and naval forces of the United States to secure certificates of naturalization. Under authority of that act some of the Federal courts issued certificates of naturalization to Japanese in the military and naval service, while other Federal courts refused to issue certificates of naturalization to such Japanese.

The fact that some of the courts refused to issue such certificates, while it may create a doubt as to the authority conferred by the act, does not prove that the act confers no such authority, especially since other Federal courts have construed that act as authorizing the naturalization of Japanese in the United States military or naval service.

Under the present status of the construction of the act of May 9, 1918, by the courts it can not be said that there is no authority of law for issuing certificates of naturalization to Japanese in the military or naval service of the United States, and since such certificates were issued under the courts' decisions that full authority of law existed therefor, I am of opinion that is the duty of the accounting officers to accept such certificates as sufficient evidence that the grantees thereof are lawful citizens of the United States and entitled to any pay that may accrue to them by reason of such citizenship and their service in the Army or the Navy.

Accordingly the auditor's settlement is reversed.

TRAVELING EXPENSES-ARMY AND NAVAL OFFICERS DETAILED TO CIVIL BRANCH.

Officers of the Army and Navy who are detailed for duty with the United States Shipping Board or any other civil branch of the Government are entitled to the same traveling allowances that they are entitled to when assigned to luty in the military or naval service and no other unless specific provision is made by statute for other traveling allowances.

Comptroller General McCarl to the Chairman, United States Shipping Board, August 31, 1921:

By letter dated February 3, 1921, addressed to the former Comptroller of the Treasury, decision was requested by the then chairman of the United States Shipping Board of a question presented, as follows:

Pursuant to section 4 of the act of September 7, 1916, 39 Stat., 729, under which the Shipping Board was established certain officers of the Army and Navy have been from time to time detailed to the United States Shipping Board and have by the United States Shipping Board been assigned to the United States Shipping Board Emergency Fleet Corporation for duty.

In your opinion of March 15, 1920, regarding Capt. G. L. Carden, you state: "Officers detailed under this provision of law are required to serve under such detail without any increase in compensation or allowance, and the payment to them of any additional compensation, or allowance equivalent thereto, on account of such detail would be in direct contravention of the provisions of section 1765, Revised Statutes."

We have been reimbursing these officers for travel expenses incurred in accordance with the fiscal regulations of the United States Shipping Board Emergency Fleet Corporation, and your opinion is requested as to whether your opinion of March 15, 1920, is to be construed as limiting reimbursement for travel in accordance with the fiscal regulations of the department from which said officer has been detailed.

What particular regulations of the department are concerned has not been set out, but I do not understand the reference to the "fiscal regulations of the department from which said officer has been detailed" as relating to the travel regulations which generally concern only civilian employees.

The decision to which you refer, 26 Comp. Dec., 570, held specifically that payment to these detailed officers of any additional allowances would be in direct contravention of law.

The traveling allowances of officers of the Army and the Navy are fixed by law and regulations and the payment, by reimbursement or otherwise, of an amount in excess of the allowances as so fixed is the payment of an additional allowance within the meaning of the law and the decision referred to.

Even as early as June 8, 1893, it was held in the case of officers of the Army and Navy detailed under authority of law for duty in connection with the Government exhibit at the World's Columbian Exposition and whose traveling allowances were a proper charge against the appropriation for said exhibit, that officers serving under such details were entitled only to the regular allowances fixed by law and regulations for said officers as such. Decisions of First Comptroller

Bowler, page 5. It was urged in that case that such a ruling would work a great hardship on the officers detailed, but in that connection it was said, page 10

However unjust it may be to compel Army and Navy officers to remain in Chicago at their own expense while in attendance upon the Chicago exposition, the Comptroller, while exercising quasi-judicial functions, is no more permitted than are the judiciary to make legislation. His duties are to construe the acts of Congress as he finds them, and if they work a hardship in certain cases, the remedy lies with Congress and not with the accounting officers of the Government.

In the same volume, page 88, it was held that Army officers detailed for service on a boundary commission under the direction of the Secretary of State were entitled to no travel or other allowances in addition to those fixed by law for officers of the Army generally. Like ruling was made with reference to an Army officer detailed for duty in connection with the Bering Sea Tribunal of Arbitration, id., 275. See also case of an officer of the Army detailed as an assistant to the Engineer Commissioner of the District of Columbia and traveling under orders of the board of commissioners, id., 11, and case of officer of the Army detailed to Hot Springs Reservation and traveling under orders of the Secretary of the Interior, id., 96.

The decisions of the Comptroller of the Treasury were uniformly to the same effect. See 1 Comp. Dec., 87; 3 id., 192, 332, 588, 703; 8 id., 789; 12 id., 510, and unpublished decision of March 8, 1921, on the appeal of J. F. Victory, disbursing agent for the National Advisory Committee for Aeronautics. Therefore, it is now well established that officers of the Army and Navy who are detailed for duty in civil branch of the Government are entitled to the same traveling allowances that they are entitled to when assigned to duty in the military or naval service and no other unless specific provision is made by statute for other traveling allowances.

any

Answering your question specifically, I have to advise that not only the decision to which you refer, but numerous other decisions, extending over a period of nearly 30 years, limit the travel allowances of officers of the Army and Navy detailed to other services to such allowances only as are fixed by law and the regulations of the service from which detailed.

With reference to the payments heretofore made I assume that in the audit of the accounts in which credit is claimed for such payments appropriate action has been or will be taken in accordance with established principles.

OPERATION AND MAINTENANCE OF THE ARLINGTON BUILDING. The statutory transfer of unexpended balances of appropriations and all personnel, facilities, property, etc., of the Bureau of War Risk Insurance to the Veterans' Bureau by the act of August 9, 1921, 42 Stat., 147, establishing the Veterans' Bureau as an independent establishment directly

under the President, did not include the appropriations for maintenance and operation of the Arlington Building nor the personnel employed thereunder which remain under administration of the Secretary of the Treasury through his chief clerk.

Comptroller General McCarl to the Director, United States Veterans' Bureau, August 31, 1921:

I have your letter of August 27, 1921, requesting decision as to the legality of a proposed transfer of the personnel and the unexpended balances of appropriations provided by law for operation and maintenance of the Arlington Building from the Treasury Department to the Veterans' Bureau.

The appropriations in question are carried by the legislative, executive, and judicial appropriation act of March 3, 1921, 41 Stat., 1264, 1265, 1273, under the Treasury Department as providing for administrative and contingent expenses of that department, the building having been occupied by the Bureau of War Risk Insurance, a subordinate bureau of the Treasury Department, since its purchase and completion by the Government, and having now been assigned by the Public Buildings Commission to the Veterans' Bureau.

The act of August 9, 1921, 42 Stat., 147, established the Veterans' Bureau as an independent establishment directly under the President. abolished the office of Director of the Bureau of War Risk Insurance, and transferred the powers and duties pertaining to that office to the Director of the Veterans' Bureau. The act also specifically transferred all personnel, facilities, property, etc., of the Bureau of War Risk Insurance to the Veterans' Bureau and made unexpended balances of appropriations for carrying out the provisions of the war risk insurance act available for expenditure by the Veterans' Bureau as the director thereof may deem necessary for the purposes of the act. This statutory transfer, however, does not include the personnel and appropriations for maintenance and operation of the Arlington Building, the said personnel and appropriation having to do with such operation only, which had theretofore been under the control and administration of the chief clerk of the Treasury Department, and not under the Bureau of War Risk Insurance or involved in the administration of the business of that bureau which was transferred to the Veterans' Bureau.

The appropriations in question consist of a statutory salary roll of assistant superintendent, mechanics, engineers, etc., and an appropriation for operating expenses of the building. In addition to these provisions the appropriation act provides that $30,000 of the appropriation "Salaries, Bureau of War Risk Insurance," shall be credited to the appropriation for the office of the chief clerk and superintendent, Treasury Department, and be available for the employment of personnel in that office.