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IN RE APPEAL OF WALLACE M. SHELBY, LATE ACTING COLLECTOR OF INTERNAL REVENUE FOR THE SEVENTI DISTRICT OF KENTUCKY.

A person appointed by a collector of internal revenue as his deputy with

the understanding that he should not perform any of the duties of the position, and who in fact performed no duties, can not receive the compensation of the office.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY, .

February 4, 1896. Mr. Wallace M. Shelby, late acting collector of internal rev. enue for the second district of Kentucky, appeals from the settlement by the Auditor for the Treasury Department of his account for the quarter ending March 31, 1895. The Auditor disallowed a voucher for the compensation of John T. Shelby, as deputy collector, for the entire month of March, amounting to $163.60. The circumstances under which the disallowed claim arose were as follows:

One Thomas M. Shelby was the collector of internal revenue for said district. He died on February 19, 1895. His eldest son, Wallace M. Shelby, was his chief deputy, and upon his death became the acting collector, under the provisions of section 3149, Revised Statutes, and entitled to receive the full compensation of the office of collector under the provisions of section 3150. This compensation was paid to him while he continued to be the acting collector. As acting collector le appointed his brother, John T. Shelby, deputy collector, to fill. the place made vacant by his becoming the acting collector, and paid to said John T. Shelby the salary attached to that position, which is the amount disallowed by the Auditor.

It appears, in affidavits made by John T. Shelby, that said John T. Shelby was the legal and confidential adviser of his father while collector, and acted in that capacity for his brother Wallace while acting collector; that in order that his stepmother, his father's widow, who was left with a large family of children, might receive temporarily the salary which the father would have received if living, it was arranged between his brother, the acting collector, and himself that the acting col. lector should, for the time being, not only perform the duties of collector, but do the actual work of the deputy collector's

position to which John T. Shelby was appointed; that the entire amount of the compensation of the collector should be paid to their mother, and that the amount of the salary which John T. Shelby was to receive should be retained by Wallace Shelby while acting collector, that being the amount which be had previously received while deputy collector, and that John T. Shelby should receive nothing. That arrangement was carried out. These statements are corroborated by Wallace M. Shelby. At the end of the month John T. Shelby resigned his position, and while he held the same he performed no services; and from his own statement it clearly appears that when he was appointed it was understood that he should not perform the services, and that he accepted the appointment with that understanding and solely for the purpose of obtaining the extra compensation of the position for the purposes above stated.

The right to receive the salary or other compensation of an office generally depends upon the legal holding of the office under a legal appointment or election after proper qualification, and not upon the mere possession of the office and the performance of its duties, although the salary or emoluments of an office are intended as compensation for services rendered. Exceptions to this principle, as, for instance, where a person is prevented from holding the office by the wrongful acts of the Government or another incumbent, have no application to the case now under consideration and need not, therefore, be specified.

Where, therefore, an appointment is inade with the understanding that no service is to be performed, and solely to enable the appointee to obtain the compensation attached to the position, the appointment is in the nature of a fraud upon the Government, and there is no such holding of the office as would authorize the payment for services impliedly but not actually rendered. The facts above enumerated clearly show that Mr. Shelby never intended to perform the duties of the office or to hold it in any way other than to receive the emolu.. ments thereof. This intention never to fulfill the duties of the office was practically an intention to abandon the office immediately upon his appointment, and a person abandoning an office is not entitled to compensation from the time of abandonment. Under the circumstances it can hardly be said that Mr. Shelby

ever accepted the appointment, and therefore never held the position of deputy collector,

The exact duties of a deputy collector are not defined by statute. They are, however, such as the collector himself may perform, the deputy being simply his assistant. It follows, therefore, that if the collector should perform the duties of his assistant, he would be simply performing his own duties and not those of another person, although if he had an assistant who was in fact performing the duties of his position, the labor of the collector would have been lessened. The compensation granted to the collector and to his deputy was given for the payment of two persons holding the different positions, and not for the payment of one person who should perform all the duties expected of both.

It is fair to state that Mr. Shelby, in claiming the compensation of the office, frankly stated the facts on the voucher transmitted in the account of his brother, the acting collector. The Commissioner of Internal Revenue, who had not previously known of the facts of Mr. Shelby's appointment, immediately disapproved of its payment, and it was disallowed by the Auditor. The action of the Auditor is affirmed.

R. B. BOWLER,

Comptroller.

CLAIM FOR REIMBURSEMENT OF EXPENSES OF LAST SICKNESS OF DECEASED PENSIONER AND PROBATE COURT EXPENSES.

The expense in having a guardian appointed for a pensioner is not an ex

pense of the last sickness and burial within the meaning of the act of March 2, 1895, authorizing the reimbursement of persons paying such expenses.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

February 4, 1896. M. B. Gorman, of Defiance, Ohio, appeals from the action of the Auditor for the Interior Department, as evidenced by his decision (No. 4226) of October 23, 1895.

This claim is for $174.28 for reimbursement for expenses incurred in the last sickness and burial of Bridget Welch, née Cabill, late a pensioner under certificate No. 403244.

In the settlement of this claim the Auditor allowed the sum of $115.63, and disallowed $58.65 for the reason that the items objected to were not expenses incurred during the last sickness and burial. An item of $9 was charged for rent and groceries, covering a period of two weeks. The last sickness was only of two days' duration; therefore only $1 was allowed on this item.

Another item disallowed was $50.65 for probate court expenses, etc., growing out of the fact that the pensioner's condition of mind was such as to require a guardian, and the claimant was appointed and qualified as such.

Under the act of March 2, 18995 (28 Stat., 964), the use of the accrued pension is limited to the payment of such expenses as were incurred during the last sickness and burial of the pensioner in cases where said pensioner left no widow or minor child under 16 years of age. The court expenses do not appear to have had any connection with the last sickness and burial, and while no doubt necessary and proper, the law does not authorize their payment from the accrued pension. The action of the Auditor is affirmed.

EDW. A. BOWERS,

Assistant Comptroller.

IN RE APPEAL OF WALTER ANDERSON, UNITED STATES COMMISSIONER FOR THE DISTRICT OF SOUTH DAKOTA.

A commissioner will not be allowed fees for issuing a temporary mittimus

for the custody of a defendant for part of a day only, except in extraordinary cases showing the necessity therefor, as it is ordinarily the duty of the marshal to keep the defendant in custody.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

February 5, 1896. Mr. Walter Anderson, United States commissioner for the district of South Dakota, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending September 30, 1895.

Among the items disallowed by the Auditor were fees for issuing certain temporary mittimuses and making copies thereof as unnecessary, because issued upon the same day in which either another temporary mittimus was issued or upon the same day that the final commitment was made or a recog. nizance given.

Mr. Anderson made a statement, which was attached to his account, that in no case were a temporary mittimus and a final mittimus or final bond or two temporary mittimuses made out on the same day unless both were in his judgment necessary. He stated that in some cases the witnesses had been up all night traveling, and were in no condition to go upon the stand without some rest; that the deputy marshal had been up all night guarding the defendant and was desirous of rest; that the sheriff would not hold a United States prisoner without a written authority; and therefore that temporary mittimuses were necessary. The account to which this statement was attached was approved by the court under the provisions of the act of February 22, 1815.

An examination of the account shows that in 17 cases, being all the cases in the account, 35 temporary mittimuses were issued, and that in every case at least one temporary mittimus was issued for the custody of the defendant for a part of a single day only.

Fees for issuing temporary mittimuses were allowed in United States v. Ewing (140 U. S., 142), the court holding such a temporary mittimus authorized in proper cases. Mr. Justice Brown, who delivered the opinion in the case, said:

6. We do not wish to be understood as holding that a mittimus is necessary in all such cases to authorize the detention of the accused, especially if the keeper of the jail be, as is frequeutly the case, a deputy marshal of the United States; but that it is within the discretion of the commissioner to issue such writ, if in his opinion the safe custody of the prisoner requires this precaution; and if there be no abuse of such discretion we do not feel at liberty to review his action. Stafford v. United States, 25 0. Cls., 280. Nor do we consider a mittimus necessary every time a prisoner is taken out and returned to jail, pending his examination, since an order of the court or the district attorney, under the statute, would be a sufficient protection to the officer."

In the Stafford Case cited by the court, fees for temporary mittimuses were allowed in cases where a hearing was adjourned from day to day, as there were no conveniences for keepiug the defendants outside of the jail and the jailer refused to receive them without a warrant of commitment.

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