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EXPENSE OF TRANSMITTING SALARIES OF OFFI. CERS AND MEN OF THE NAVY DETAILED TO SERVICE WITH THE FISH COMMISSION.

The expenses incurred in the payment by a Navy paymaster of the salaries

of the officers and men of the Navy serving on a Fish Commission vessel, when the funds are sent by express to the commanding officer or by check to his order, are payable from the Navy appropriations as in the case of payments to other officers and men of the Navy.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

December 5, 1895. SIR: I am in receipt of yours of October 31, asking whether the cost of cashing official checks of the Navy Paymaster who pays the officers and men attached to the United States Fish Commission steamer Fish Hawk can be refunded to the commanding officer of said ship, who was obliged to pay said expense.

By reason of the provision in the deficiency appropriation act of May 31, 1880 (21 Stat., 151), relating to the vessels of the United States Fish Commission, the Fish Hawk is officered and manned by the Navy Department, appropriation for the pay of the officers and men being annually made in the appropriation acts for the naval service. In consequence these officers and men are paid by Navy paymasters. It appears that no pay. master is attached to the ship Fish Hawk, but that the officers and crew of that vessel are paid by the pay inspector stationed at the navy-yard at Washington. Under an order of the Secretary of the Navy of July 22, 1895, as follows:

“You are authorized to send to the Fish Hawk, either by check or cash (per express) at the expense of the United States Commission of Fisb and Fisheries, the necessary amount required each month for the payment of the salaries of the officers and crew of that vessel, the commanding officer of said vessel to be held responsible for the transmission of the proper receipt to you." the pay inspector sends the necessary amount to pay the officers and men to the commanding officer of the vessel, either in cash, by express, or by his check on the Treasury. The question presented in your letter is whether the expense of cashing these checks or of sending the cash by express, as the case may be, is properly payable from the appropriations for the Comunission of Fish and Fisheries. Section 3648, Revised Statutes, prohibits the advance of public money, but authorizes such advance to disbursing officers under the order of the President. Section 3614 requires all disbursing officers other, than officers of the Army and Navy to give bonds before advances shall be made to them. Under these provisions the President has authorized advances to be made to officers of the Army and Navy and to disbursing officers under bond, so that the method adopted by the Secretary of the Navy for the payment of the officers and men on the Fish Hawk was no doubt authorized, but it is not seen how the Secretary of the Navy could require that the expense of getting the money sent to the commanding officer of the Fish Hawk should be paid from the appropriations made for the United States Commission of Fish and Fisheries, these appropriations not being under his control.

Under the provisions of section 3620, which requires disbursing officers to keep money advanced to them on deposit with the Treasurer of the United States, except where the Secretary of the Treasury in certain cases otherwise provides, the Secretary of the Treasury, by Circular No. 107 of 1876, dated August 24, 1876, provided that “no allowance will be made to any disbursing officer for expenses charged for collecting money on checks." It appears that prior to that time a practice had prevailed of paying the expense of cashing checks under circumstances substantially similar to those now under consideration and that this regulation was made to stop that practice. Section 3648, however, provides that the President may direct advances to persons in the military and naval service employed on distant stations, where the discharge of the pay and emoluments to which they may be entitled can not be regularly affected, and Congress annually appropriates in the appropriation acts for the naval service, under the head of " Pay, miscellaneous," for “ Transportation of funds, exchange.”

The expense of cashing checks, under the circumstances above described, to pay officers and men of the Navy, if at service on a naval vessel, would be payable from this appropriation. As the law requires the vessels of the Fish Commission to be officered and manned by the Navy Department, an appropriation for their pay is made under the appropriations for the naval service, and as they, therefore, are paid by Navy paymasters it is not seen why the expense of making such pay

ments is not a proper charge against the appropriation “ Pay, miscellaneous," as much as if these officers and men were in fact on a vessel under the control of the Secretary of the Navy. The payment of this expense out of the appropriatious for the Fish Commission certainly can not be made, because, unless the expense is one specifically provided for under the Navy Department for the reasons above suggested, payment thereof would be prohibited by the regulations of the Secretary of the Treasury, and no specific appropriation therefor is made by Congress for the Fish Commission. Respectfully, yours,

R. B. BOWLER,

Comptroller. The COMMISSIONER OF FISH AND FISHERIES.

IN RE APPEAL OF H. T. MELONEY, OLERK OF THE

UNITED STATES CIRCUIT COURT OF APPEALS. A clerk of a United States circuit court of appeals is entitled, under

section 2 of the act of March 3, 1891, to collect from the Government its costs in cases in which it is a party, and, under section 9 of said act, to retain, for his personal compensation, from the costs and fees collected by him, after payment of his necessary office expenses, a sum

not exceeding $500 per annum in addition to his salary. A clerk of a United States circuit court of appeals is not entitled to charge

and collect from the Government the per diem fees and mileage allowed
to clerks of the circuit.court by section 828 of the Revised Statntes.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

December 5, 1895. Mr. H. T. Meloney, clerk of the United States circuit court of appeals for the fourth circuit, appeals from the settlement by the Auditor for the State and other Departments of his account from June 16, 1891, the date upon which that court was organized, to December 31, 1894, in which he claims from the United States fees for services rendered by him as clerk in cases in wbich the United States were a party, based upon the fees prescribed by the rules of the Supreme Court of the United States for such services. He also claims fees of $5 a day for attendance on the court, and mileage at 5 cents a mile each way when traveling from his office, where he is required to reside, to the place where the court was held, in accordance with the provisions of clause 18 of section 828, Revised Statutes, prescribing the fees of clerks of the circuit and district courts of the United States.

None of these fees was allowed by the Auditor because of the decision of the First Comptroller of October 21, 1893 (in re account of H. T. Meloney, Bowler's 1st Comp. Dec., 98), in which it was held that the salary of $3,000 per annum provided for a clerk of the circuit court of appeals was exclusive, and that no per diem fees, mileage, or other compensation could be allowed. No question was presented in that account of the right of the clerk to receive from the Government the fees prescribed by the rules of the Supreme Court for services rendered by him to the Government in cases in which the Government was a party, and that question was not decided. Section 2 of the act of March 3, 1891 (26 Stat., 826), establishing the circuit courts of appeals, provides for the appointment of clerks of such courts, prescribes their duties and a salary of $3,000 a year. Said section further provides:

“The costs and fees in the Supreme Court now provided for by law shall be the costs and fees in the circuit courts of appeale; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United. States in the same manner as is provided in respect of the costs and fees in the Supreme Court.”

Rule 24 of the rules of the Supreme Court prescribes a table of fees and costs which, by reason of the language above quoted from section 2 of the act of March 3, 1891, has been adopted by the various circuit courts of appeals. Section 4 of said rule 24 provides:

“ Neither of the foregoing sections shall apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States."

While this section clearly prohibits the taxing of the costs of one party against the other in cases in which the United States are a party, it does not prohibit the clerk from collecting from the parties to a suit in which the United States are a party, including the United States, the fees for the services rendered by him to the respective parties, and such has been the uniform construction placed upon that rule in the Supreme Court, founded, no doubt, upon the case of United States v. Ringgold (8 Pet., 150), wherein it was held that while costs could not be taxed against the United States, they might be compelled to pay their own costs. In the Supreme Court the fees due from the United States to the clerk for the services rendered by him in cases in which they are a party are not in fact collected, because there is always a large surplus of fees

collected by the clerk from parties other than the United States and which he is obliged to cover into the Treasury The fact that he does not collect fees from the United States because such surplus exists would not preclude the clerk from collecting the fees if such surplus did not exist; hence, clerks of circuit courts of appeals may collect froin the United States the costs for which they are liable in cases in which they are a party when such collection is necessary to enable such clerks to pay the necessary expenses of their office and the amount which they are entitled to retain for their personal compensation from the fees collected by them.

It was originally the opinion of the First Comptroller's Office that a clerk of a circuit court of appeals was not authorized to retain for his own personal compensation any of these fees, and such was the opinion of the Comptroller in the former settlement of Mr. Meloney's accounts. (Bowler's 1st Comp. Dec., 98.) Since that time, however, the case of Morton v. United States (59 Fed. Rep., 349; s. c. on appeal, 65 Fed. Rep., 204) has been decided. The question presented in that case was whether a clerk of a circuit court of appeals could retain for his own personal compensation out of the costs and fees collected by him any amount over and above the expenses of his office. The amount involved in that case was $371.20, for which the clerk was given a judgment. Judge Baker, who delivered the opinion in the district court, construed section 9 of the act of March 3, 1891, which provides “ that the marshals, criers, clerks, bailiffs, and messengers shall be allowed the same compensation for their respective services as are allowed for similar services in the existing circuit courts," as authorizing such retention to an amount not exceeding $500, so as to make the total amount retained by a clerk of a circuit court of appeals for his own personal compensation from salary and fees combined $3,500 a year, the compensation prescribed by section 839 for a clerk of the circuit court. On appeal the opinion of the majority of the court was delivered by Judge Woods. He questioned the reasoning of Judge Baker's opinion, but held that as the amount involved did not exceed $500 the judgment of the court below should be affirmed, agreeing to this extent with Judge Baker. Judge Jenkins delivered a separate opinion assenting to the affirmation of the judgment below, but criticising the reasoning of Judge Woods's opinion and substantially agreeing with the opinion of Judge Baker. The question has been set at rest for the future by the provision in the

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