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“organization” for the purposes of that section if in existence prior to July 1, 1922, and not considered an organization for the purpose of pay of commissioned officers under section 109 of the national defense act. If, therefore, a unit or detachment not designed or established to operate en masse normally and prior to July 1, 1922, was not so organized as to require among its members at least one officer whose pay was dependent on drills of the unit or detachment, section 14 is not authority to pay an officer $240 a year additional for commanding such unit or detachment after that date. Questions with respect to units or detachments established subsequent to July 1, 1922, should be determined by their composition and the purpose for which they are established and by comparison with analogous units or detachments in existence prior to July 1, 1922.
The first five of your questions relate to the headquarters personnel for Coast Artillery for fixed defenses, specially authorized for the National Guard, consisting of three to five companies, the headquarters personnel consisting, respectively, of 3 officers and 20 enlisted men, 4 officers and 26 enlisted men, and 6 officers and 36 enlisted men.
The headquarters personnel is authorized "for assignment to fixed defenses," and it is not contemplated that normally the individual companies under the supervision or command of the officer in charge of the headquarters shall function in unison. The placing of separate companies of coast artillery under the administrative supervision of one officer does not create an organization. The ranking officer and the headquarters may have administrative functions, but the administrative supervision over three or more separate companies does not constitute the companies so supervised an organization. Accordingly, the officers of the headquarters below the grade of major are entitled to armory-drill pay as officers not belonging to organizations of not more than four-thirtieths of the monthly base pay of their grades, and officers above the grade of captain to not more than $500 per year, subject to the conditions and limitations of section 109 of the national defense act. None are entitled to additional pay of $240 a year for being in command of an "organization" less than a brigade having administrative functions.
Your next question relates to battalion and brigade headquarters companies, commanded by a battalion or brigade staff officer or aide, and consisting of one officer, other than the staff officer commanding, specially authorized for the National Guard, and 41 and 45 enlisted men, as provided in Tables of Organization No. 27-P and 22-P, respectively. The staff officer as such is entitled to pay as an officer not belonging to an organization and is therefore not entitled to additional pay as for being in command of an organization, not being a member thereof. As to the additional officer you state:
In each of these cases an additional officer (lower in rank than the commanding officer) has been authorized to be assigned to the headquarters companies in order to meet the need in the National Guard service for two officers with each company, so that the unit might qualify to receive armory drill pay during the absence of one of the officers on account of illness or for other
This additional officer performs merely company duties and does not command the organization or perform administrative duties in connection therewith.
It is assumed that the officers are staff officers assigned to the staff of the respective commanders for duty with the headquarters companies. If so, the officers are entitled to pay as officers not belonging to organizations.
A further question relates to a medical officer below the grade of major assigned to command the medical detachment of a regiment consisting of 25 enlisted men. The medical detachment of a regiment was not an organization for the purpose of determining the pay of commissioned officers prior to July 1, 1922, under section 109 of the national defense act. No material change has been made in its composition, and nothing in section 14 of the act of June 10, 1922, requires a change in the armory drill pay of any of the medical officers of a combatant regiment. The medical officer whose duties include supervision of the enlisted personnel of the medical detachment is entitled to pay as an officer not belonging to an organization, and he is not entitled to the additional pay of $240 a year as an officer in command of an organization less than a brigade having administrative functions.
Payments made under regulations and tables of organizations as heretofore understood will not be disturbed, but payments made after the promulgation of this decision will be made in accordance with the views herein expressed.
Your questions are answered accordingly.
VOLUNTARY SERVICES IN EMERGENCIES.
The action of a vessel in going out of its course and delaying its voyage when
responding to a call for assistance from an Army transport which had sprung a leak, brings it within the exception to the rule against the employment of voluntary service under section 3679, Revised Statutes, as amended by the act of February 27, 1906, 34 Stat. 49, and the extra expense or cost so incurred by the vessel rendering such assistance, when it can be
definitely ascertained, is properly payable from public funds. Decision by Comptroller General McCarl, June 12, 1923.
Middleton & Co. have applied for review of settlement No. W-882268, dated February 15, 1923, wherein was disallowed their claim on behalf of their client, the owners, master, and crew of the S. S. Rexmore for services rendered in standing by the U. S. Army transport Crook, January 10 and 11, 1922.
It appears that the U. S. Army transport Crook, carrying about 965 troops and 150 ship's company, was on January 10, 1922, westward bound, about 500 miles east of New York, N. Y., when it was discovered that the vessel was making water in No. 1 hold; that the pumps were started, but the water continued to rise at the rate of 5 inches per hour. At about 4 p. m. a radio message was sent out giving the position of the Crook and asking any ship in the vicinity to please stand by as 1,100 persons were aboard. In reply to such message the captain of the S. S. Recomore, which vessel was bound for London, replied that he would pass the position of the Crook in about three hours. About 8 p. m. the Rexmore reached the position of the Crook, reversed her course, and proceeded with, stood by, the Crook until about 2.30 a. m., January 11, 1922, at which time the captain of the Rexmore was notified that his services were no longer needed as the Crook was then out of danger. The nature of the damage or reason for the leak could not be determined until certain cargo was shifted, which required several hours' work. After such cargo was shifted it was found that the leak was caused by five rivets being loose and one small hole in the shell plate eaten through by rust. The necessary repairs were made by the crew of the Crook.
The services of the Rexmore consisted of promptly coming to the aid of the Crook and accompanying her until the leaks were discovered and stopped. Such service involved a deviation of about 166 miles from the course of the Rexmore and delayed her voyage to London, England, about 12 hours, but did not subject her to any danger or peril.
The actual cost of operating the Rexmore for 12 hours, together with the actual profit lost during such time, is shown to have been £147 8s. 4d.
The claimants did not make claim for any definite amount, but stated that if their views were desired they considered that they ought to be paid £500. This amount is in excess of the true value of the services rendered, and such excess, if paid, would be in the nature of a reward for salvage services. Ordinarily salvage services contemplate an impending sea peril, the going out in tempestuous weather, the risk of life, danger of the entire loss of property, and the skill employed in saving it from complete loss. None of these conditions appear to be present in the instant case.
The claim is one of services rendered under sudden emergency involving the loss of human life or the destruction of Government property. See section 3679, Revised Statutes, as amended by the act of February 27, 1906, 34 Stat. 49.
The provisions of this statute relate particularly to the acceptance of what is termed voluntary service, and the implication of the statute is that claims against the United States arising under the conditions stated may be considered. Such claims are more or less in the nature of equities and are generally for submission to the Congress for authority to make compensation therefor. If, however, a tangible service appears to have been rendered for which definite compensation can be computed, there appears no reason why, if an appropriation be available, settlement and adjustment should not be made through this office. See Section 236 of the Revised Statutes.
At the time of sending out the call for any ship in the vicinity to stand by it is shown that there were thirty-six inches of water in the hold of the vessel and the water continued to rise higher, notwithstanding the fact that the pumps were put into action. The nature of the damage and cause of the leak were not known, but such condition imperilled the ship and the lives of the 1,100 persons on board. It is shown that the compliance with the request to stand by required the Rexmore to change her course, involved a deviation of some 166 miles, and delayed her voyage approximately 12 hours. The actual cost of operating the vessel plus the profit lost during the time in question is found to be £147 8s. 4d., and is considered just and reasonable compensation for the service.
For payment therefor the appropriation for Transportation of the Army and its supplies for the fiscal year 1922 is determined to be available.
The £147 8s. 4d. hereby allowed will be paid at the rate of exchange current at date of settlement, but not in excess of the rate $4.8666 to the pound sterling.
TRAVELING EXPENSES_FEDERAL PROHIBITION AGENTS AS WIT.
NESSES IN STATE COURTS.
The State and Federal Courts having concurrent jurisdiction in the enforce
ment of the National Prohibition act, Federal prohibition agents attending proceedings under that act in a State court are acting in their official capacity and their expenses may be paid from the appropriation under
which they are officially operating. Bees and mileage may be paid from the appropriation "Fees of witnesses,
United States Courts," to persons possessing information and willing to make affidavit for the purpose of aiding prohibition enforcement officers, and who are subpoenaed to appear before a judge or a United States Com
missioner to make affidavits as a basis for issuing a search warrant. Comptroller General McCarl to the Secretary of the Treasury, June 13, 1923.
There has been received your letter of May 7, 1923, as follows:
In many States there is a close cooperation between State and Federal officers in the enforcement of the prohibition laws. Criminal cases are often made in State courts under the State laws, although Federal agents assist in securing evidence on which the criminal information is filed. In this class of cases Federal agents are subpænaed as witnesses in State courts. It appears that in the State of Wisconsin Federal agents so subpoenaed can collect witness fees and mileage.
Since the salaries and necessary travel expenses of Federal prohibition agents are paid from appropriations for the enforcement of the national prohibition act, your opinion is requested as to whether or not fees and mileage in cases indicated above may be properly accepted by such agents; and, if so, could funds so collected be used as a partial reimbursement to the appropriation out of which salaries and necessary traveling expenses of such agents are paid. If such fees and mileage may be properly accepted by Federal prohibition agents, but may not be used as reimbursements to appropriations, please state what disposition should be made of them.
Title XI of public law approved June 15, 1917 (40 Stat. 228), referred to in Title II, section 25, of the national prohibition act, provides: “The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.” It sometimes happens that persons possessing information and willing to make affidavits for the purpose of aiding prohibition enforcement officers to obtain search warrants are located at places where there is no judge or commissioner. In these cases difficulty is at times experienced in obtaining the appearance of such persons before the proper officer as witnesses.
In view of the foregoing your opinion also is requested as to whether or not the appropriation for procuring evidence against violators of the national prohibition act is available for the payment of travel and subsistence expenses incident to the appearance of witnesses before a judge or commissioner for the purpose of making affidavits as the bases of issuances of search warrants in connection with the detection of violations of the act.
The appropriation for the expenses of enforcing the national prohibition act of March 3, 1921, 41 Stat., 1274, is in part as follows:
For expenses to enforce the provisions of the “National Prohibition Act" and the act entitled “An Act to provide for the registration of, with collectors of internal revenue, and to impose a special tax upon, all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or cocoa leaves, their salts, derivatives, or preparations, and for other purposes," approved December 17, 1914, as amended by the "Revenue Act of 1918,” including the employment of executive officers, agents, inspectors, chemist, assistant chemist, supervisors, clerks, and messengers in the field and in the bureau of internal revenue in the District of Columbia, to be appointed as authorized by law; the securing of evidence of violations of the Acts, and for the purchase of such supplies, equipment, mechanical devices, laboratory supplies, books, necessary printing and binding and such other expenditures as may be necessary in the District of Columbia and several field offices, and for rental of necessary quarters $7,500,000 :
Section 2 of the national prohibition act, effective October 28, 1919, 41 Stat., 306, provides in part as follows:
The Commissioner of Internal Revenue, his assistants, agents, and inspectors, shall investigate and report violations of the War Prohibition Act to the United States Attorney for the district in which committed, who shall be charged with the duty of prosecuting, subject to the direction of the Attorney General, the offenders as in the case of other offenses against laws of the United States; and such Commissioner of Internal Revenue, his assistants, agents, and inspectors may swear out warrants before United States commissioners or other officers or courts authorized to issue the same for the appre hension of such offenders and may, subject to the control of the said United States attorney, conduct the prosecution of the committing trial for the purpose of having the offenders held for the action of the grand jury.
The States and Federal Government having concurrent jurisdiction in the enforcement of the national prohibition act, prosecutions