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IN RE APPLICATION OF MAJ. GEORGE C. REID FOR REHEARING OF CLAIM FOR PAY AS MAJOR PRIOR TO JUNE 14, 1894, AND HIS APPEAL FROM THE ACTION OF THE AUDITOR FOR THE NAVY DEPARTMENT IN CHECKING HIS PAY ON ACCOUNT OF OVERISSUE OF FORAGE.

In order that the Comptroller of the Treasury may grant a rehearing

upon a final settlement made by the Second Comptroller, the evidence produced by the claimant in support of his application must not only be nero, but also material; i. e., such evidence as might have justified a different conclusion had it been presented and considered at the time

of the Second Comptroller's settlement. The accounting officers have no jurisdiction, upon the settlement of the

cash account of a disbursing officer, to disallow a legal and proper charge for supplies purchased and received, because it may appear that the supplies were used for a purpose not considered proper by the accounting officers, the jurisdiction of the latter over property accounts being limited by the act of March 29, 1894, to charging an officer responsible for public property with such losses to the Government as may be certified to them in the manner provided in section 1 of said act.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

November 29, 1895. On May 1, 1894, the major, adjutant, and inspector of the Marine Corps was retired, and a vacancy was thereby created in that office. George C. Reid, then a captain of the line of that Corps, was nominated by the President to fill the vacancy. The nomination was confirmed by the Senate May 9, his commission signed by the President May 18, but Major Reid did not receive bis commission until June 13, on which date he formally accepted the same, and on June 14, 1894, took the oath of office.

The question having been raised as to the right of Major Reid to the increased compensation pertaining to his new position from May 2 to June 14, 1894, the matter came properly before the Second Comptroller, and that officer, under date of September 17, 1894, after reciting the facts of the case, decided as follows:

“ The law in regard to promotions in the Army will be found in sections 1204 and 1205 of the Revised Statutes. When the promotion in any particular line or department (is made) in ordinary course (sec. 1204) by seniority, the pay in the higher

graile commences from the date of the vacancy. But if the promotion is made out of the line, it is regarded as a new appointment, and the pay in the bigher grade does not commence until the officer accepts the appointment and takes the oath (Digest Second Comp. Dec. vol. 1, sec. 1101; vol. 2, sec. 755; par. 1448, Army Regulations, 1889.)

"A staff appointment conferred on an officer in the line of the Army is not a promotion, but an original appointment. Its pay will therefore commence from the date of the officer's acceptance. (Oct. 13, 1851, Army Paymasters' Manual, 1869, par. 144.) This has been the ruling of the accounting officers in all claims of this nature. It therefore follows that Major Reid is not entitled to the increased pay and allowance of his present position prior to the date of acceptance and taking the oath of office.”

This decision was incidentally reaffirmed by the Comptroller of the Treasury in his decision of May 4, 1895, in the case of Capt. Randolph Dickens (1 Comp. Dec., 419), who was promoted to fill the vacancy created by the appointment of Mr. Reid to the office of adjutant.

Major Reid asks a rehearing of his case, and in support of his application insists that as he was ordered to and in fact entered upon the discharge of the duties of his new position May 28, 1894, his action constituted an acceptance of said office. He contends, apparently, that his entry upon the duties of his office May 28, 1894, is such a material fact, newly presented, as entitles his case to a rehearing. This fact may not have been before the Second Comptroller at the time he rendered his decision of September 17, 1894. If not, it would be new evidence, and entitled to weight as such. But that evidence can not be held to be material in this case, for the reason that the decision of the Second Comptroller was " that Major Reid is not entitled to the increased pay and allowance. of his present position prior to the date of acceptance and taking the oath of office.”

Had the decision of the Comptroller been based wholly upon the point of nonacceptance of his new position, the contention of Major Reid that he was entitled to the additional pay and allowances pertaining to his new position would be entitled to consideration; but as the taking of the oath of office was also held by the Second Comptroller to be an indispensable prerequisite to entitle him to such increased pay and allowances, the new evidence is immaterial, as there is no claim that the oath was taken prior to June 14, 1894.

Under the rule laid down by the Supreme Court in the case of United Stutes v. Bank of Metropolis (15 Pet., 401) there is no authority for a succeeding officer to reopen cases decided by his predecessor, except on the presentation of newly discovered material evidence, and as no new material evidence has been presented a rehearing is denied.

Major Reid also appeals from the action of the Auditor for the Navy Department in directing that $33.54 be checked against his pay on account of an issue of forage to him for the period between May 2 and June 13, 1894.

This matter came before the Auditor in the form of a voucher in the cash accounts of Maj. H. B. Lowry, quartermaster of the Marine Corps. The voucher in question shows that the quartermaster purchased and received in May and June, 1894, bay, oats, and straw to the value of $46.80. Incidentally it appears on the voucher and papers attached thereto that the forage was intended for and was issued to Major Reid as his allow. ance for forage for two horses from May 2 to June 30, 1894.

The Auditor held that Major Reid's right to forage in kind for two horses from May 2 to June 13, 1894, depended solely on the fact as to whether he was major and adjutant during that time, and as the Second Comptroller had decided, in a case properly before him, that Reid did not become major until June 14, 1894, therefore he was not entitled to forage for his horses prior to that date. Acting on this view of the case, the Auditor disallowed $33.54 of the voucher in question, denying to the quartermaster that amount of credit in his accounts.

Subsequently, at the request of the quartermaster, the Auditor directed the paymaster of the Corps to stop an equal sum from the pay of Major Reid. Major Reid appeals from this action of the Auditor in ordering the stoppage of pay.

In the consideration of this question the main point to be determined is, Had the Auditor jurisdiction over the matter in controversy?

The voucher upon which this question arose is one evidencing the purchase and receipt of forage to the amount of $46.80. It also, by a notation on the same and papers attached, attempts to show what disposition has been made of the property received. Objectionable as this procedure may have been in any event, it was not serious so long as the proper accounting officers of the Treasury possessed equal jurisdiction over the money and property transactions of the quartermaster. Both the disbursement of the money and accounting for the prop. erty received could be considered at the same time.

Prior to March 29, 1894, the Auditor had jurisdiction over both money and property transactions of the quartermaster of the Marine Corps. The act of March 29, 1894 (28 Stat., 47), provides:

"That instead of forwarding to the accounting officers of the Treasury Department returns of public property intrusted to the possession of officers or agents, the Quartermaster-Gen. eral, the Commissary-General, the Commissary-General of Subsistence, the Surgeon-General, the Chief of Engineers, the Chief of Ordnance, the Chief Signal Officer, the PaymasterGeneral of the Navy, the Commissioner of Indian Affairs, or other like chief officers in any Department, by, through, or under whom stores, supplies, and other public property are received for distribution, or whose duty it is to receive or examine returns of such property, shall certify to the proper accounting officer of the Treasury Department, for debiting on the proper account, any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him.

“ SEC. 2. That said certificate shall set forth the conditions of such officer's or agent's property returns, that it includes all charges made up to its date and not previously certified, that he has had a reasonable opportunity to be heard and has pot been relieved of responsibility; the effect of such certificate, when received, shall be the same as if the facts therein set forth had been ascertained by the accounting officers of the Treasury Department in accounting.

6 SEC. 3. That the manner of making property returns to or in any administrative bureau or department, or of ascertaining liability for property, under existing laws and regulations, shall not be affected by this act, except as provided in section one; but in all cases arising as to such property so intrusted the officer or agent shall have an opportunity to relieve himself from liability.

"SEC. 4. That the heads of the several Departments are bereby empowered to make and enforce regulations to carry out the provisious of this act.

“SEC. 5. That all laws or parts of laws inconsistent with the provisions of this act are hereby repealed.”

The effect of the act above quoted is to divest the Auditor of the jurisdiction theretofore possessed by him over the property accounts and transactions of officers of the Navy Department, and to relieve him of all responsibility in relation to the disposition of property intrusted to said officers, except in cases where the officer whose duty it is to receive or examine returns of such property, shall certify to the proper accounting officer of the Treasury Department (the Auditor), for debiting on the proper account, any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him.”

Under this act the duty and responsibility of determining questions relating to the correct disposition or loss of property in the Marine Corps has been transferred to, and vested in, the proper officer in the Navy Department, and it seems clear that the Auditor will have no authority over, or in relation to, the property mentioned in the cash voucher evidencing the pur. chase of the forage under consideration until he has been fur. nished with a certificate required by section 1 of said act.

The fact that the papers with the cash voucher show the purpose for which the purchase of the forage was made is an incident merely, and does not seem sufficient to transfer jurisdiction over the forage as property. From the known powers and duties of the quartermaster of the Corps, it must be admitted that he had authority to purchase forage and hold the same for use and issue. That being the case there was nothing illegal in the purchase of the forage; the wrong lay in its issue, or disposition, and it rests solely with the Navy Department to correct that wrong.

Jurisdiction over property accounts can not be given to the Auditor by injecting papers into cash accounts tending to show what disposition has been made of the property. Such evi. dence may well be excluded from the cash accounts, and the responsibility for determining questions relating to property accountability be left where it properly belongs, where the law has placed it.

No question has been raised against the voucher under dis. cussion considered merely as evidence of a purchase and disbursement of money. The articles purchased were proper for the service, the price reasonable, the receipt acknowledged, and payment sufficiently shown. Those facts being admitted, credit should be given as claimed. There being no disallow. ance against the quartermaster in this matter, there will be no occasion or authority as yet for a stoppage of the pay of Major Reid. Both the quartermaster and Major Reid will be relieved of all charge growing out of this voucher.

The attention of the Secretary of the Navy should be called

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