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the necessary expense thereof is properly payable by the United States.

In this case the naval secretary of the Light-House Board has certified that it was necessary for the health of the officers and crew (of the tender) that the body should be removed and interred.”

The amount was therefore allowed.

I concur in the above rulings. In the present case, however, it is not clearly shown by the papers sent with your letter whether they properly apply, for it does not appear that there may not be a balance of salary due to Oscar Le Besque sufficient to liquidate these expenditures, nor is it shown that he has not other property which could be subjected to the pay. ment of these expenses. It has been a long-established practice of the Treasury Department to pay to the widow or the legal representatives of a deceased employee of the Government the balance of salary due such employee without administration in the event that the same does not amount to more than $100, but before such payment is made it is always required that proof shall be furnished that the burial expenses have been paid, such expenses usually forming a first lien against the person's estate.

In a case like the present one, if it is shown that the man has no other estate than the balance of salary due to him, and the salary is sufficient to pay the burial expenses, it seems that, upon the presentation of the usual affidavits, the payment of the expenses of the last sickness and burial might be made from the salary; and if the case is one coming within the rulings above quoted, and the amount of salary due and unpaid is insufficient to pay the expenses, then the remainder thereof might be paid from the appropriation from which the expenses of the tender Pansy were payable when the death of Le Besque occurred. Respectfully, yours,





When the name of a person has been erroneously omitted from the official

list for the payment of prize money, or bounty, a correction may be made before payment has commenced. After payment has commenced, and part of the crew paid, it is not within the power of the Executive Departments to correct the error.


January 15, 1896. The Auditor for the Navy Department has rendered the fol. lowing decision, dated December 20, 1895, and transmitted it to the Comptroller of the Treasury for approval, disapproval, or modification, as required by section 8 of the act of July 31, 1894 (28 Stat., 208):

" John Wood, late private, United States Marine Corps, has presented a claim to this office for prize money and bounty for destruction of enemies' vessels and capture of New Orleans, as follows: New Orleans, No. 1, $50.20, prize money to captors; New Orleans, No. 2, $29.92, prize money to captors; New Or. leans, No. 3, $13,54, bounty destruction of enemies' vessels, act July 7, 1884 (23 Stat., 244).

“The sum of $527,735.84 was apportioned April 30, 1874, to the officers and men composing Admiral Farragut's fleet, and is known as award No. 1.

“The sum of $317,063.31 was apportioned July 28, 1875, in like manner, and known as award No. 2.

66 The sum of $143,644.47 was appropriated by act of July 7, 1884 (23 Stat., 244), and was apportioned August 5, 1884, in like manner, and known as award No. 3.

“The name of John Wood does not appear on any of the lists of those entitled to share in the distribution. But his name does appear on the rolls of the crew of the Portsmouth, one of the vessels composing Admiral Farragut's fleet at New Orleans. For some reason not known to this office his name was omitted from the lists of those entitled to share in the awards. He now claims that he was attached to the Portsmouth during the time that vessel was with Admiral Farragut's fleet, and the rolls of that ship on file in this office show that he was a member of the crew of that vessel. The Secretary of the Navy has authorized his name to be placed upon the prize list. (Section 4642, R. S.) At least 90 per cent of the amounts have been paid, and there is no money available from which the claim can now be paid.

“In 1862 Secretary of the Navy Hunt held that prize money had in all cases been so apportioned among the persons whose

names are borne upon the prize lists as to exhaust the entire fund for distribution, and that the share of each person remains to his credit until paid. The Navy Department had no authority to order any alteration or correction of the prize list upon which apportionment had been made, and thus recognizing claims for the payment of which there are no available funds; that Congress alone can grant relief in such cases. While Secretary Hunt held that the Navy Department had no authority to order the alteration or correction of the prize list upon which apportionment had been made, other Secretaries have authorized it, and, as I understand, the person whose name was added to the list was paid the same amount as those in whose favor the original distribution was made. I think that practice was illegal; that this office has no authority over the claim, for the reason that the apportionments have been made and that the appropriations have been exhausted.

"I therefore submit the question to you for approval or disapproval."

When an enemy's vessel has been captured or destroyed, and the gross amount of money to be distributed and the vessels entitled to share in such distribution duly ascertained, the Secretary of the Navy furnishes the Auditor for the Navy Depart. ment with a list of the officers and men forming the complement of the vessel entitled to share in the award. Thereupon the Auditor makes out the prize list, assigning to each person his share of the amount assigned to the vessel, and payment is then made to each person upon proper application.

Before payment has been commenced it is both competent and proper to correct any discovered errors in the list; but after payment has been made to a part or all of the men whose names are found on the list a new name can not be added without increasing the gross amount of the award to said vessel, or by taking the sum assigned to another to pay the person whose name has been added. The gross amount can not be increased, for the reason that there is no appropriation out of which the increase can be paid; and it needs no argument to show that money belonging to one person can not legally be used to pay a debt due another.

The fact that in some cases new names have been added can not be pleaded in support of a practice wholly without warrant in law.

I fully concur in the decision of Mr. Hunt, Secretary of the Navy, as stated by the Auditor, that the executive officers of the Government are without power to remedy the wrong which may have been committed. This class of cases seems peculiarly to call for Congressional relief. The decision of the Auditor is approved.

EDW. A. BOWERS, • Assistant Comptroller.



While it is the duty of a marshal to call the attention of the court to an

error in calculating the mileage of a juror, yet if he has not seen the error he can not, under section 846, Revised Statutes, be charged with the excessive mileage paid by him on the taxation of the court.


January 16, 1896. Mr. J. J. McAlester, United States marshal for the Indian Territory, appeals froin the settlement by the Auditor for the State and other Departments of his account for fees of jurors for the half year ending December 31, 1894.

In the settlement made by the Auditor the following disallowance was made:

“P. H. Littlepage was paid $11.10 for 122 miles' travel; $6.10 is the amount he should have been paid—$5."

Mr. McAlester claims that notwithstanding the error he is entitled to receive credit for the amount he has actually paid, because section 846, Revised Statutes, provides “that no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commissioner, shall be so reexamined as to charge any marshal for an erroneous taxation of such fees or costs.” The certificate of the clerk as to the payment of this juror was in the following form:

“ORDER TO PAY PETIT JUROR. “United States court for the Indian Territory. “And now, to wit, at the September term, 1894, of said court: It is ordered by the court that upon filing proof of attendance and the number of miles traveled by each juror and time occupied in coming to and going from the court from and to his place of residence the marshal of the United States pay to each the amount due for his mileage and attendance as a juror. And that this order be entered upon the minutes of the court, together with the names of the jurors and the

amount so due to them; and that the same be certified to the marshal as part of the expenses of the present term of court.


Residence. No. of days. Amount.
of doce lamount No.of Amont


Total miles.


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"I, Joseph W. Phillips, clerk of the United States court in the Indian Territory aforesaid, do hereby certify that the foregoing is a true copy of an order of the said court made on the 12th day of September, A. D. 1894, and that in pursuance of said order I have taken the proof of attendance, time occupied in travel, and mileage of the juror aforesaid, and that I have entered the same, together with the order, upon the minutes of the said court. Of all of which the above is a true copy.

"In testimony whereof I do hereunto set my hand and affix the seal of said court, at S. McAlester, in said Territory, this 12th day of September, A. D. 1894.

"Jos. W. PHILLIPS, Clerk.

“By P. L. MYNCETT, Jr., Deputy.The pay roll upon which payment was made is an exact copy of so much of the above as includes the name, residence, number of days, number of miles and the various amounts, and contains the following certificate:

"I certify that the within named witnesses were entitled to sums set opposite their respective names, as appears from the records of the court and the affidavits.of said witnesses filed in this office.


“By C. P. BRUER, Deputy." It will be noticed that the order of the court provides that the marshal of the United States pay to each the amount due for his mileage and attendance as a juror," and requires that there be entered upon the minutes of the court the names of the jurors and the amounts so due to them, and that the same be certified to the marshal as part of the expenses of the court.

In the present case the amount certified to the marshal by the clerk, although the same amount as entered upon the minutes of the court as the amount taxed by the court for the fees and mileage of the juror, was not in fact the amount which should have been so taxed, for the clerk made an error in calculating the amount due for mileage.

The certificate given to the marshal did not specifically show bow the clerk had arrived at the amount which he taxed as

11268—VOL 2- 23

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