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Section.
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UNITED STATES ARMY REGULATIONS.

(EDITION 1889.)

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162 33€ 652

DECISIONS

OF THE

COMPTROLLER OF THE TREASURY.

USE OF CONTINGENT FUND OF THE NAVY

T:EPARTMENT.

Section 3683 of the Revised Statutcs reqnires that the written order therein

mentioned shall be given by tho, head of the Department before the articles to be paid for from the contingant fund are procured, and a subsequent approval is not sufficient. ,

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

July 2, 1895. SIR: I am in receipt of your letter of the 29th altimo, with reference to my decision of June 22 (1 Comp. Dec., 5661, construing the provisions of sections 3683 of the Revised Statutes. You state that it is the practice of the Navy Department to apportion annually the contingent fund to the various bureaus thereof according to their several requirements. In view of this apportionment you ask whether the purchase of each article procured and paid for from the contingent fund must be by order precedent of the Secretary of the Navy, or whether such an apportionment coupled with the Secretary's subsequent approval of the purchase is a compliance with the requirements of section 3683, Revised Statutes.

In reply I have the honor to advise you that, in my opinion, section 3683 requires that the order of the Secretary shall be given in advance of the purchase of any article which is to be paid for from the contingent fund. The language of the section probibiting the use of the contingent fund in the purchase of any articles except such as the head of the Department shall, aby written order, direct to be procured,” clearly shows such

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to have been the intention of Congress in enacting this law. The apportionment of the fund in the manner suggested and the subsequent approval by the Secretary of its expenditure is not such a compliance with the requirements of section 3683 as will authorize the passing of the accounts of the disbursing officer making the payments. Respectfully, yours, EDW. A. BOWERS,

Acting Comptroller. The SECRETARY OF THE NAVY.

IN RE APPEAL OF GEORGE COWIE, JR., CHIEF ENGINEER U. S. N., FROM THE DECISION OF THE AUDITOR FOR THE NAVY DEPARTMENT, DISALLOWING HIS CLAIM, FOR SEA PAY WHILE TEMPORARILY PERFORMING DUTY ON THE U. S. R. S. VERMONT.' .

An officer of the Navy on shore duty at a navy-yard is not entitled to pay

for sea duty, though required by the commandant of the navy-yard, in addition to his regular duties, to perform duty in examining recruits.in place of the chief engineer of a recruiting ship at anchor at the gard during the temporary illness of that officer.

TREASURY DEPARTMENT, :- OFFICE OF COMPTROLLER OF THE TREASURY,

July 2, 1895. The claimant, who is a chief engineer in the United States Navy, was ordered on two occasions by the commandant of the New York Navy-Yard, where he was performing shore duty, to report to the commanding officer of the Vermont for the purpose of examining recruits during the sickness of Chief Engineer Hannum. He claims that he is entitled to sea pay during the two periods that he was performing this duty on the Vermont, which duty was by the terms of his orders “ Temporary duty during the illness of Chief Engineer Han. num," and was to be “in addition to your present duty.” The Auditor for the Navy Department has disallowed his claim for sea pay under the above circumstances, and this disallowance, in view of the well-settled law in such matters, I must sustain.

Under the decisions in United States v. Symonds (120 U.S., 46), and United States v. Strong (125 U. S., 656), interpreting sec. tion 1571, Revised Statutes, it is well settled that the actual nature of the duties performed and not their designation by the head of the Navy Department determines the question as to whether an officer is at sea or on shore duty. From the record in this case it is not apparent that any order emanated from the Secretary of the Navy detaching the claimant from his shore duty at the New York Navy-Yard, and it does not appear that he in any way severed his connection with the duties assigned him as engineer officer of the yard. His duties in connection with the Vermont were not inconsistent with his yard duties, and under ordinary circumstances both could be performed by the same officer. He continued to be carried on the rolls of the navy-yard, and so far as appears was not compelled to mess or live upon the Vermont while he was on this temporary duty.

In the recent case of Barnette v. United States, decided March 18, 1895, by the Court of Claims, Judge Nott, in interpreting section 1571, Revised Statutes, states: “The statute does not make an arbitrary or fanciful distinction in pay. Its imperative terms were intended to do away with a constructive sea service which formerly existed, and its manifest purpose is to help officers meet the additional expenses incident to sea service as compared with shore duty. * * * The provision was probably placed in the statute to prevent a person being placed on sea-service pay by an authority lower than that of a Department.

The case of Carpenter v. United States (15 C. Cls. R., 247), is conclusive of the question involved herein. Carpenter, the claimant, was on duty as paymaster at the Pensacola NavyYard when he was ordered to take charge of the accounts of four ironclads then at anchor at the navy-yard, but in commission for sea service. The order recited that the duties thus assigned were to be in addition to his other duties at the navy. yard. He kept the accounts of both at the paymaster's office in the navy-yard. The court decided that he was not under the record "on duty at sea” during the time that he had charge of the accounts of these vessels; that he remained subject to the discipline of the yard and not of the ironclads, and that he was not a part of the complement of the ironclads. He continued to perform his duties as paymaster at the navy-yard. So, in this case, Chief Engineer Cowie continued the performance of his duties as engineer at the New York Navy-Yard while also performing the additional duty of examining recruits

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