court and was paid $5 per day. Deduct five days as bailiff at $2 per day, $10." It is the duty of the marshal to attend all sessions of the court. He may do this personally or by deputy. If two courts are sitting at the same time in two different places he is entitled to a per diem fee of $5 for each court, if in each court he is either in attendance personally or represented by a deputy (Bowler's First Comp. Dec., 187). When Mr. Pepper attended as the representative of the marshal he did so as the marshal's deputy, and as such was entitled to such proportion of the $5 per diem fee as under his contract with the marshal he was entitled to receive for the services rendered by him to the marshal (section 841, Rev. Stat.). At the same time he acted in his capacity as deputy marshal, as the representative of the marshal, for which the marshal earned a fee of $5; he claimed also to be acting as bailiff and entitled to the compensation of $2 per day provided by law for a bailiff under section 715, Revised Statutes. A bailiff is merely a sheriff's or marshal's officer or deputy. The duties he performs are those which a marshal or a deputy marshal may and should perform while in attendance upon court. It is well settled that one person may receive the compensation of two distinct and separate places or employments which are not incompatible and both of which places he actually fills at the same time (United States v. Saunders, 120 U. S., 126). Under the principle of this decision it has been held that a crier and a messenger of the court were two distinct, compatible offices, and might be held by the same person, who would therefore be authorized to receive the emoluments of both positions (Preston v. United States, 37 Fed. Rep., 417). In that case it was shown that the duties of a crier and a messenger were distinct, were not performed at the same time, and that "one duty was in no wise connected with or in continuation of the other." Such can not be said of the duties of a deputy marshal and a bailiff. They are practically the same, and the positions are not distinct and separate so as to render one man capable of holding both at the same time. A deputy marshal while not representing the marshal in court may no doubt be designated by the marshal to act as bailiff and receive the compensation provided by section 715 for that position, notwithstanding the fact that he is also a deputy marshal and might perform the same duties in that capacity. The reason why he is entitled to receive the compensation of a bailiff is because when in attendance upon the court in addition to the marshal he does not act as a regular deputy, but as a bailiff, and the statute specifically provides the compensation. In the present case, attempting to act in both capacities at the same time and the positions being identical, and he in fact acting as the representative of the marshal in his capacity as a deputy marshal, he is not entitled to the compensation provided for a bailiff. The action of the Auditor is therefore affirmed. R. B. BOWLER, CLAIM OF APOTHECARY AT NAVY-YARD FOR RATIONS. Under the provisions of section 1579, Revised Statutes, an apothecary in the Navy on duty at a navy-yard and not attached to a receiving ship nor to the ordinary of a navy-yard is not entitled to a ration. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, SIR: I am in receipt of your letter of March 4, 1896, transmitting the request of Francis Wood, apothecary, United States Navy, to be allowed a ration while on duty at the navy-yard, Washington, D. C. You request a decision upon the ground that "the question is one involving a payment to be made. under the direction of the accounting officers." As this would be true in case the ration was commuted, as is the usual prac tice, this office would have jurisdiction, and I have the honor accordingly to advise you that under section 1579 of the Revised Statutes the said Wood is not entitled to a ration while performing his present duty. Section 1579 provides that "No person not actually attached to and doing duty on board a seagoing vessel, except the petty officers, seamen, and ordinary seamen attached to receiving ships or to the ordinary of a navy-yard, and midshipmen, shall be allowed a ration." From Wood's statement it appears that his duties pertain to the navy-yard; he is therefore not attached to a receiving ship nor to the ordinary of a navy-yard, which is the only service where petty officers, seamen, and ordinary seamen are entitled to rations when not doing duty on a seagoing vessel. In Button v. United States (20 C. Cls. R., 423) it was decided: "The term 'ordinary of a navy-yard,' as used in Revised Statutes, section 1579, refers to ships laid up in ordinary at a navy-yard. The meaning of the section is that petty officers, seamen, etc., though not upon a 'seagoing vessel,' may be allowed a ration if actually attached to and doing duty' on shipboard. But it does not extend to the apothecary of the Naval Academy." See also Herbert v. United States (21 C. Cls. R., 53). The Century Dictionary defines the term "ordinary,” as used in the Navy, as "the state of a ship not in actual service, but laid up under the charge of officers; as, a ship in ordinary (one) laid up under the direction of the officers of the navy-yard or dockyard)." From the above it clearly appears that although the apothecary's services may be required at "seamen's quarters," he is not attached either to a "receiving ship" or to the "ordinary of the navy-yard," within the meaning of section 1579, Revised Statutes, and is therefore not entitled to a daily ration. The mere facts of payment by a State of officer's pay and allowances to a man while engaged in recruiting or organizing troops, and the reimbursement of the State by the United States under the act of July 27, 1861, are not sufficient to show that he had the status of an officer, or. to enable him to count the time he was so paid in making up the nine months' service required by law to entitle him to veteran bounty under joint resolution of January 13, 1864, on a subsequent enlistment. If he was not enlisted or commissioned he had no military status while so serving. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, March 11, 1896. Jacob Kiefer was enrolled and mustered into service January 5, 1864, to serve three years as a private in Company I, Twentieth Pennsylvania Cavalry, and was discharged May 8, 1865, on surgeon's certificate of disability for ventral hernia. He was paid $300 recruit bounty (joint resolution, January 13, 1864) for said service. His claim for veteran bounty in said service, based upon prior service in the Twenty-seventh Pennsylvania Infantry and Third Pennsylvania Heavy Artillery, was disallowed by settlement No. 146258, dated May 20, 1891, upon the ground that as his prior service in the Twenty-seventh Pennsylvania Infantry and Third Pennsylvania Heavy Artillery, which was stated as from May 5, 1861, to September 3, 1861, and from January 12, 1863, to March 4, 1863, was less than nine months, he is not entitled to veteran bounty. As a preliminary to the settlement of other claims, the Auditor for the War Department has transmitted the papers in the case to this office for rehearing, based upon newly discovered record evidence. The evidence which the Auditor submits as new and material is a service in the Twelfth Pennsylvania Cavalry, and evidence of payments by the State of Pennsylvania for service prior to muster, and the question is presented whether a commissioned officer should not be credited with service from enrollment in making up the nine months. "The muster-in roll of Company H, Twelfth Pennsylvania Cavalry, dated March 17, 1862, reports him enrolled November 18, 1861, at Philadelphia, to serve three years, and mustered into service as first lieutenant February 24, 1862. "Opposite his name on this roll the following remark appears: 'Discharged while at Philadelphia, Pa., April 12, 1862, by order of the Adjutant-General United States Army, 21st March, 1862, for being mustered in through false pretenses-certificate of discharge given, signed by Colonel Ruff, United States Army."" (Reports from Record and Pension Office, dated October 5, 1895, and November 14, 1895.) He appears to have been paid by the State of Pennsylvania $282.07 pay and allowances from November 8, 1861, to January 21, 1862, as second lieutenant. It does not appear that he was otherwise paid for the said service. To entitle the claimant to veteran bounty in the Twentieth Pennsylvania Cavalry, he must have previously been enlisted and have served not less than nine months, and have been honorably discharged. General Orders 191 and 216, AdjutantGeneral's Office, series of 1863, joint resolution December 23, 1863 (13 Stat., 399), and joint resolution January 13, 1864 (13 Stat., 400). It does not appear that he was honorably dis charged from the Twelfth Pennsylvania Cavalry, or that he was legally mustered into service in said regiment and entitled to count said service to make up the nine months' prior service. (See Digest Second Comp. Dec., vol. 3, sec. 308.) On December 18, 1895, the War Department reported— "That no record has been found of any case in which the War Department has recognized and counted the time for which a man was paid by a State as a commissioned officer prior to his muster into service, or prior to the date from which he is considered as commissioned, in making up nine months' service to entitle him to recognition as a veteran volunteer." On March 9, 1896, the War Department reported as follows: "It appears from the muster-in roll of Company K, Third Pennsylvania Heavy Artillery, that Jacob Kiefer was enrolled September 4, 1862, and mustered into service as second lieutenant January 12, 1863. "No enlistment paper of him as of this organization has been found on file in this office. As he was not mustered into service as a member of this company in any grade prior to January 12, 1863, when mustered as second lieutenant, he had no military status in this organization prior to that date." (Statement of services and indorsements.) It does not appear that Jacob Kiefer ever served as an enlisted man prior to his enlistment in the Twentieth Pennsylvania Cavalry, and his prior services as a commissioned officer, even if his service in the Twelfth Pennsylvania Cavalry were counted, do not amount to nine months. The mere facts that he was paid by the State the pay and allowances of an officer while engaged in recruiting or organizing troops, and that the State was reimbursed by the United States under the act of July 27, 1861 (12 Stat., 276), are not sufficient to show that he had the status of an officer, or to enable him to count the time he was so paid in making up the nine months' service required by law to entitle him to veteran bounty on a subsequent enlistment. The evidence of such payment is therefore immaterial. It not appearing that there was any error in calculation in settlement No. 146258, and no newly discovered material evidence having been produced, a rehearing is denied. EDW. A. BOWERS, The AUDITOR FOR THE WAR DEPARTMENT. |