suant to regulation; and third, where the officer is simply ordered into hospital for treatment, or is compelled by sickness to go to hospital, without an order granting him sick leave or detaching him from duty. In the first and second cases leave or waiting orders' pay should be allowed, and in the third case such pay as pertained to the duty he had been performing prior to going to hospital. It would be absurd to hold that every time an officer was compelled by ill health to go into hospital for temporary treatment he is thereby detached from the service to which he had been ordered by the Secretary. It rests with the Secretary to so detach him and place him upon "leave or waiting orders." Formerly in the regulations of the Pay Department, United States Navy, the following appeared: "Officers on shore duty granted sick leave are allowed duty pay for one month only while so absent and not detached." This order, promulgated in 1872, attempted to grant and limit an arbitrary allowance, but the decisions of the Supreme Court in the cases of the United States v. Symonds (120 U. S., 46), and United States v. Strong (125 U. S., 656), holding that the Secretary of the Navy can neither diminish nor increase the rate of compensation established by law for a given kind of service, led probably to its omission from the existing regulations. Illness is an incident to any kind of service, and while the rate of pay provided in section 1556, Revised Statutes, is dependent upon the character of the service performed irrespective of naval regulations or orders in contravention thereto (United States v. Symonds, supra), yet in my opinion illness alone can not alter the character of the service, and consequently the pay attached thereto under the provisions of this section. Respectfully, yours, L. A. FRAILEY, EDW. A. BOWERS, Pay Inspector, United States Navy, Washington. IN RE CLAIM OF JOHN S. ANGLE FOR PAY AND ALLOWANCES AS ASSISTANT SURGEON ONE HUNDRED AND TWENTY-THIRD PENNSYLVANIA INFANTRY. The word "pay" in the laws providing for the pay and allowances of officers and enlisted men of the Army has a distinct and technical signification, and when used alone in the sentence of a court-martial does not affect the right of the accused to his pecuniary allowances. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, December 14, 1895. John S. Angle, M. D., of Strafford, Pa., appeals from the decision of the Auditor for the War Department, as evidenced by certificate No. 214297, dated January 22, 1895, disallowing his claim for pay and allowances as assistant surgeon One hundred and twenty-third Pennsylvania Infantry. Claimant was mustered into service as assistant surgeon One hundred and twenty-third Pennsylvania Volunteers August 22, 1862, to serve nine months, and was dismissed with a "forfeiture of pay from the 24th day of September, 1862," by sentence of general court-martial, approved February 13, 1863, and promulgated in General Orders, No. 13, headquarters Army of the Potomac, February 18, 1863. He was absent without leave from September 24, 1862, to December 1, 1862, inclusive. He was paid all pay and allowances in full from August 22, 1862, to September 23, 1862, by Major Hutchins, paymaster, United States Army, and is not entitled to any pay or allowances from September 24, 1862, to December 1, 1862, inclusive, for the reason that he was absent without leave during said period, as found by a court-martial. (Sec. 1326, Army Regulations of 1861.) Prior to July 15, 1870, as at present in the cases of enlisted men and some officers, the compensation of officers and enlisted men of the military forces of the United States consisted of pay and allowances. Secs. 12, 13, and 14, act of May 30, 1796 (1 Stat., 483), etc. When used alone the word "pay" has a distinct and technical signification; hence it was held under section 5, act of July 19, 1848 (9 Stat., 247), and the act of February 19, 1879 (20 Stat., 316), that the grant of "three months' extra pay" did not include allowances. United States v. Emory (19 C. Cls. R., 267, and 112 U. S., 510); Digest Second Comp. Dec., vol. 1, secs. 1147 and 1148. A sentence forfeiting "pay" or "pay and bounty" does not affect the right of the accused to a pecuniary "allowance." (Digest Judge-Advocate-General's Opin., ed. 1880, p. 271, sec. 3: Digest Second Comp. Dec., vol. 3, sec. 517.) The effect of the sentence "to be dismissed the service of the United States with forfeiture of pay from the 24th day of September, A. D. 1862," in this case, in addition to depriving the claimant of any right to travel pay and subsistence, as the discharge was by way of punishment for an offense (sec. 1289, Revised Statutes), was to deprive him of his pay proper from December 2, 1862, when he returned from absence without leave, to his discharge, on February 20, 1863, being the date on which he is regarded as having received notice of his dismissal. He is entitled to his allowances as assistant surgeon One hundred and twenty-third Pennsylvania Volunteers from December 2, 1862, to February 20, 1863, including pay and allowances for a private servant not an enlisted man employed from December 2, 1862, to January 20, 1863, inclusive, amounting to $135.47, as per statement of differences herewith. EDW. A. BOWERS, AND GAUGERS EXPENSES OF STOREKEEPERS WHEN TRANSFERRED FROM ONE WAREHOUSE TO ANOTHER. Under sections 51 and 63 of the act of August 28, 1894, providing for general bonded warehouses and the compensation and expenses of storekeepers, and storekeepers and gaugers, such officers are entitled to their expenses when traveling under orders between special and general bonded warehouses, as well as between distilleries. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, December 17, 1895. SIR: I am in receipt of your communication of July 17, inclosing certain papers in regard to the claim of Arthur L. Webb, storekeeper and gauger in the first district of California, for reimbursement of traveling expenses incurred by him in going from a special bonded warehouse in Los Angeles to a general bonded warehouse in San Francisco under order of the Com missioner of Internal Revenue. You ask whether reimbursement for the traveling expenses of the storekeeper and gauger may be made under the provisions of section 63 of the act of August 28, 1894 (28 Stat., 567). That section is as follows: "That storekeepers, and storekeepers and gaugers, when transferred from one distillery to another, either in the same district or in different districts, shall receive compensation not exceeding four dollars per day during the time necessarily occupied in traveling from one distillery to the other, together with actual and necessary traveling expenses." Literally it only provides for a reimbursement of expenses when a storekeeper or a storekeeper and gauger is transferred "from one distillery to another"; but as the duties of a storekeeper are entirely in connection with a bonded warehouse, the manifest purpose of the statute is to authorize the payment of the expenses when such storekeeper is transferred from one warehouse to another, the majority of such warehouses being in fact attached to distilleries. No difficulty would arise in placing this construction upon said section 63 were it not for the provisions of section 51 of the same act "That the Commissioner of Internal Revenue shall be, and is hereby, authorized, in his discretion and upon the execution of such bond as he may prescribe, to establish one or more warehouses, not exceeding ten in number, in any one collection district, to be known and designated as general bonded warehouses, and to be used exclusively for the storage of spirits distilled from materials other than fruit, each of which warehouses shall be in the charge of a storekeeper or storekeeper and gauger, to be appointed, assigned, transferred, and paid in the same manner as such officers for distillery warehouses are now appointed, assigned, transferred, and paid;" for when the act of August 28, 1894, was passed, storekeepers and storekeepers and gaugers were transferred from one distillery warehouse to another without the payment of their actual and necessary traveling expenses, and the word now used in said section must refer to the time when the act was passed, and not to that immediately after its passage. Section 64 of said act, "That the officer holding the combined office of storekeeper and gauger, under the provisions of the legislative, executive, and judicial appropriation act approved August fifteenth, eighteen hundred and seventy-six (Nineteenth Statutes, page one hundred and fifty-two), may be assigned by the Commissioner of Internal Revenue to perform the separate duties of a storekeeper at any distillery, or at any general or special bonded warehouse, or to perform any of the duties of a gauger under the internal-revenue laws. And the said officer, before entering upon the discharge of such separate duties, shall give a bond to be approved by the Commissioner of Internal Revenue for the faithful discharge of his duties in such form and for such amount as the Commissioner may prescribe." Under this section, a storekeeper and gauger may be appointed storekeeper at any distillery warehouse, or at any general or special bonded warehouse, and may be transferred from one of said warehouses to another. If a literal construction, therefore, is placed upon section 63, the result will be that a storekeeper and gauger, when transferred from one distillery warehouse to another distillery warehouse, can have his actual and necessary traveling expenses paid, but if he is transferred from one distillery warehouse to a special or general bonded warehouse, or vice versa, he can not have his expenses paid. I am, therefore, of the opinion that, taking these various sections of the act of August 28, 1894, into consideration, the construction to be placed upon section 63 is that a storekeeper or a storekeeper and gauger may receive his actual and necessary traveling expenses when transferred from one warehouse to another, warehouses and not distilleries being the places where a storekeeper and a storekeeper and gauger perform their duties. This seems to be a case where the letter of the statute should give way in order that the evident intention of Congress as drawn from the whole act may be carried out. If section 51 had created a new class of officers for general bonded warehouses instead of authorizing the appointment and assignment to such warehouses of a class of officers already in existence, the literal provisions in regard to their transfer and pay also made in that section would probably have prevailed uninfluenced by section 63, but as no new class of officers was created and as section 64 provides for the assignment of the same class of officers to the different character of warehouses section 63 seems to authorize payment of their expenses when traveling from one warehouse to another. Therefore the actual and necessary expenses of Mr. Arthur L. Webb, in going from a special bonded warehouse in Los Angeles to a general bonded warehouse in San Francisco, may be paid. Respectfully, yours, The SECRETARY OF THE TREASURY. R. B. BOWLER, |