As the warrants of arrest in the cases for which the marshal claims the fees disallowed by the Auditor must necessarily have shown upon their face the offense with which the defendants were charged, and as the alleged offense therein charged was not in fact an offense, because of the repeal of the statutes which had previously made it so, the marshal was under no obligation to arrest the defendants, and, in fact, under the above-cited authorities should not have done so. Under the circumstances it seems too clear for argument that no claim arises in his behalf against the United States for services which he was never legally called upon to render and which therefore he should not have rendered. The action of theˆ Auditor is therefore affirmed.

R. B. BOWLer,
Comptroller.

IN RE CLAIM OF EDWARD M. PAINE FOR PAY, ALLOWANCES, AND TRAVEL PAY.

When an officer receives an honorable discharge upon his resignation tendered at the request of his superior officer who formally recommends that he be discharged for the good of the service as incompetent, it is an involuntary discharge and not by way of punishment for an offense. Under these circumstances the officer is entitled to traveling allowances as provided in the act of January 29, 1813 (2 Stat., 794; sec. 1289, Rev. Stat.).

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 28, 1896. Edward M. Paine, by his attorney Harry J. Chapman, esq., of Bangor, Me., appeals from the decision of the Auditor for the War Department as evidenced by settlement No. 212041, dated November 10, 1894, disallowing the claim for pay and allowances upon the ground of overpayments in excess of credits, and the claim for travel pay upon the ground that he was discharged for his own convenience and therefore not entitled to travel pay.

The claimant insists that he did not voluntarily leave the service, and therefore the Auditor erred in disallowing his claim for travel pay.

The records show that Edward M. Paine was enrolled November 2, 1861, at Orono, Me.; mustered into service November 15, 1861, to serve three years as a private in Company F, Twelfth

Maine Infantry; promoted to first lieutenant, Company G, Ninety-sixth United States Colored Troops, August 19, 1863; and discharged at Fort Morgan, Ala., October 5, 1864, the date he received the order for his discharge. The reasons for his discharge are set forth in the record as follows.

In his resignation, dated September 19, 1864, Lieutenant Paine said:

"I have the honor to tender my resignation as first lieutenant in the Ninety-sixth United States Colored Infantry on account of being twice overlooked in promotion when there were vacancies, and others (my juniors) promoted, also, when asking redress for the same, was requested to tender my resignation by the colonel commanding."

It was indorsed by Captain Young, commanding his company

"I respectfully recommend that this officer be dismissed the service. He is totally incompetent to perform the commonest company duty. The service will be benefited by his dismissal;"

and by Colonel Cobb, commanding the regiment

"Approved and respectfully forwarded, with the recommendation that this officer be discharged for the good of the service. He is incompetent."

Upon the facts above stated he was discharged in orders of which the following is a copy:

"SPECIAL ORDERS,

"No. 260.

"HDQRS. DEPT. OF THE GULF,
"New Orleans, September 26, 1864.

"15. The following named officers, having tendered their resignations, are honorably discharged the military service of the United States, with condition that they shall receive no final payments until they have satisfied the Pay Department that they are not indebted to the Government:

"First Lieut. Edward M. Paine, Ninety-sixth United States Colored Infantry.

"By command of Major-General Hurlbut:

"C. S. SARGENT, "First Lieutenant and Acting Assistant Adjutant-General."

He was furnished transportation to New Orleans, La., as shown by the quartermaster's indorsement on his discharge order and by his own statement, and paid in New Orleans, La., October 10, 1864, to October 4, 1864, inclusive.

His discharge was honorable. The records and evidence clearly show that his resignation was tendered at the instance of his superior officer and accepted for the good of the service, and not for the officer's convenience. It must therefore be regarded as an involuntary discharge, and as it was not by way of punishment for an offense, it entitles the officer to traveling allowances under section 15, act of January 29, 1813 (2 Stat., 794; sec. 1289, Rev. Stat.).

The decision dated September 13, 1893, in the case of Cooper (B. P. B. D., 30, 192), is overruled, and the practice under the decisions in Digest Second Comp. Dec., vol. 3, secs. 1446 and 1447, is restored.

Upon reexamination of the above-mentioned claim, I find and certify that there is due from the United States to the claimant, on revision of his account, the sum of three hundred and sixteen dollars and seventy-seven cents ($316.77) as per statement of differences herewith.

EDW. A. BOWERS,
Assistant Comptroller.

IN RE APPEAL OF H. C. COWLES, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF

NORTH CAROLINA.

1. A commissioner is not entitled to a fee from the United States for administering to a marshal the oath required by the act of February 22, 1875, to be taken by the marshal in proving his accounts before presenting them for the approval of the court.

2. In re Totten (2 Comp. Dec., 213), as to oaths to accounts of deputy marshals explained and affirmed as to accounts subsequent to July 1, 1895.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 29, 1896.

Mr. H. C. Cowles, a United States commissioner for the western district of North Carolina, 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 was the following:

"For swearing marshals and deputy marshals to various charges in their accounts, disallowed. The marshal must bear the expense of such charges for certifying to his accounts, and deputy marshals are only required to be sworn to their accounts for a quarter as a whole."

On the appeal of Commissioner Totten (ante, p. 213), it was held that a commissioner was not entitled to receive fees for swearing deputy marshals to the amount of fees which they were entitled to receive in each case; that the only requirement by the Department of Justice was that they should swear once to the whole account. That decision was based upon the regulations of the Department of Justice issued July 1, 1895, which contain the following:

"The deputy must swear to his voucher. The affidavit should be in the following form:

66

66

District of

:

to

deputy United States marshal for said district, being duly sworn, deposes and says that the above account for dollars and cents for services performed and expenses incurred by him from 189, is true and correct; that the services therein charged for were actually and necessarily rendered; that the expenses charged were actually and necessarily incurred and paid by him in lawful money; that in each case where an arrest was made the defendant was taken before the nearest circuit court commissioner, or the nearest judicial officer having jurisdiction under existing laws, and that all mileage charged is for travel made with cost to the marshal or deputy.

66

"Deputy Marshal. "Sworn to and subscribed before me this the

189-.

day of

"This affidavit must be executed before an officer having general authority to administer oaths, and must be on or attached to the last page of the voucher. It is not necessary to swear to each page of the voucher, but one oath as to all the services and charges of the deputy during a quarter is sufficient. If any fees for making arrests or for travel are made by the marshal, he also must make affidavit as to the defendants having been taken before the nearest commissioner or judicial officer, and that the travel was not without cost.”

When the decision in the Totten Case was rendered the Comptroller was under the impression that similar regulations had previously prevailed. In this it appears that he was in error, and therefore charges for swearing deputy marshals in each case have since been allowed in all cases prior to July 1, 1895. Since that date the regulation above quoted applies and it is manifest that a commissioner is not entitled to any fees for swearing a deputy marshal to his account, for according

to the form prescribed the account should be sworn to before a clerk, or "before an officer having general authority to administer oaths." A commissioner has not such authority. (United States v. Hall, 131 U. S., 50; United States v. Reilly, 131 U. S., 58.)

As the account now under consideration is for a period later than July 1, 1895, the regulation above quoted prevails andi so much of the action of the Auditor as relates to deputy marshals must be affirmed.

2. As to so much of the disallowance as relates to swearing marshals to their accounts is concerned, the charge stands upon a somewhat different footing, although the forms prescribed by the Department of Justice require an oath to be taken before a clerk and not before a commissioner. In United States v. Van Duzee (140 U. S., 169), Mr. Justice Brown, after referring to the act of February 22, 1875 (18 Stat., 333), requiring officers of the courts to present their accounts duly sworn to for approval, said:

"It follows from this section that the officer has performed his duty by rendering' his account in proper form to the court, with the proper affidavit or oath in support of the actual and necessary performance of the services therein charged. He is not concerned with the method of verification adopted by the Government for its own convenience and protection, and is no more liable for the expense of entering the orders of approval of such accounts, or for the certified copies of such orders, than he is for the expense of auditing such accounts at the Treasury Department.”

In that case it had been previously said:

"But the expense of taking the oaths and executing the proper bonds is not so chargeable, since it is the duty of persons receiving appointments from the Government to prepare and tender to the proper officer the oaths and bonds required by law; in other words, to qualify themselves for the office."

And the charges for approving the accounts of court officers were said to rest upon the same principle as the previous item of filing these bonds and appointments.

In United States v. Allred (155 U.S., 591), Mr. Justice Brown, after referring to the case of United States v. McDermott (140 U. S., 151), said:

"So also in United States v. Van Duzee (140 U. S., 169, 171, item 3) we held that where there was an express act of Congress requiring clerks, marshals, and district attorneys to render their accounts to the court, and to prove in open court by oath, to be attached to such account, that the service had