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honorable discharge, in view of the joint resolution of June 11, 1896, extending the benefits of sections 1426 and 1573, Revised Statutes, to all enlisted persons in the Navy, I have to advise you that such payment may properly be made.

The joint resolution referred to was clearly intended to cover the cases of all enlisted men in the Navy at the time of its passage as well as those who should thereafter enlist, and is as follows:

"That the benefits of honorable discharge, as conferred by section fourteen hundred and twenty-six of the Revised Statutes, and of three months' pay upon reenlistment after honorable discharge, as conferred by section fifteen hundred and seventy-three, upon seamen, ordinary seamen, landsmen, firemen, coal heavers, and boys, be, and the same are hereby, extended and made applicable to all enlisted persons in the Navy. And all accounts of paymasters who have made payments to enlisted men, not of the classes named in sections fourteen hundred and twenty six and fifteen hundred and seventy three of the Revised Statutes as if they had been included in the provisions of said sections, shall be allowed and passed by the accounting officers of the Treasury as if they had been included in said sections."

The purpose of this resolution was to legalize the practice of paying all enlisted men upon reenlistment the three months' extra pay, which had crept into the service without warrant of law. This practice doubtless arose from the fact that the honorable discharge provided for in section 1429, Revised Statutes, was confused with the honorable discharge granted under section 1426. The object of the honorable discharge provided for in section 1429 is stated in that section to be "as a testimonial of fidelity and obedience," while the honorable discharge provided for in section 1426, taken in connection with section 1573, is seen to be for the purpose of holding out the three months' extra pay to the six lowest classes of enlisted men in the Navy, as an inducement to reenlistment.

That this very evident intention of the law was recognized by the Navy Department appears from an examination of the older regulations of the United States Navy. In the Regula tions of 1865, paragraph 1148, it is provided as follows:

"Any fireman, coal heaver, seaman, ordinary seaman, landsman, or boy, who reenlists for the term of three years within three months after an honorable discharge, pursuant to the act entitled 'An act to provide a more efficient discipline of the Navy,' approved March 2, 1855, and to the act approved 11268-VOL 2-39

June 7, 1864, is entitled to three months' pay according to the rating borne upon his discharge, although the reenlistment may take place immediately after such discharge. This gratuity is conferred only on enlisted men; stewards and other persons who are appointed are not entitled, though possessing such a discharge."

But by the recent joint resolution Congress has seen fit to extend the privileges arising from honorable discharges upon reenlistment far beyond what was originally provided.

The act of March 2, 1855 (10 Stat., 627), providing in the first instance for honorable discharges, is entitled "An act to provide a more efficient discipline for the Navy," and section 1 of that act gives authority to the Secretary of the Navy to grant the honorable discharge as a testimonial of fidelity and obedience to those of the crew who enlisted for three years he might deem entitled thereto, while section 2 provides that—

"If any seaman, ordinary seaman, landsman, or boy shall reenlist for three years, within three months after his discharge, he shall, on presenting his honorable discharge, or on accounting in a satisfactory manner for its loss, be entitled to pay during the said three months, equal to that to which he would have been entitled if he had been employed in actual service."

This shows from the origin of this legislation the distinction between the honorable discharge per se and the honorable discharge as carrying to certain classes of enlisted men, originally only four, the three months' extra pay.

The Navy Department, in its general order of April 7, 1855, carrying this act into effect, provides as follows:

"Whenever any seaman, ordinary seaman, landsman, or boy, who shall have received the 'honorable discharge' from the Navy authorized by the 'Act to provide a more efficient discipline for the Navy,' approved March 2, 1855 (form of which has been prescribed by the Department), shall, within three months from the date thereof, present said 'honorable discharge' at any naval rendezvous, if he shall answer the description of such discharge, and shall be physically qualified, he shall be enlisted for three years, and, upon his transfer to a receiving ship shall be entitled to receive three months' pay, equal to that to which he would have been entitled if he had been employed in actual service' in the rate specified in the honorable discharge."" (Register, United States Navy, 1856, p. 135.)

The act of June 7, 1864 (13 Stat., 120), added two other classes to whom an honorable discharge carried with it the

privilege of extra pay upon reenlistment, to wit, firemen and coal heavers, the lowest grades in that branch of the service, the same as the four lowest grades in the seaman branch of the service, were allowed such extra pay upon reenlistment.

The first naval regulation carrying out the provisions of the act of 1864, amending the act of 1855, provided specifically for the six classes of enlisted men mentioned in said acts as entitled to three months' extra pay upon reenlistment. (Naval Regulations of 1865, par. 1148.) The provisions of paragraph 1148 of the Regulations of 1865 were carried into the subsesequent Naval Regulations to and including those of 1870; but the Naval Regulations of 1876 (p. 100, par. 13) substituted the words "any person" for the words "any seaman, ordinary seaman, landsman, fireman, coal heaver, or boy," in providing for the payment of the three months' extra pay upon reenlistment. How this change came to be made is not apparent, and no reason can be assigned therefor, unless it be, as above suggested, that the honorable discharge provided for in section 1429, Revised Statutes, was confounded with that of section 1426 and section 1573.

This departure could not have arisen from supposing that the four classes or grades enumerated in the statute were intended by Congress to include all enlisted men in the Navy, for the four grades first provided for and the two others subsequently added constituted at the time such legislation was enacted only a portion of the enlisted men in the Navy. There existed many other grades of enlisted men not properly belonging to or branches of the grades mentioned, among which were yeomen, and the selection of the four original grades and of the two subsequent ones was doubtless induced by the fact that these grades were receiving the lowest pay of any enlisted men in their respective kinds of service. Since the passage of this joint resolution, however, the question is no longer material.

Respectfully yours,

Pay Inspector GEORGE A. LYON,

EDW. A. BOWERS,
Assistant Comptroller.

United States Flagship New York.

IN RE APPEAL OF STEPHEN WHEELER, CLERK UNITED STATES CIRCUIT COURT FOR THE WESTERN DISTRICT OF ARKANSAS.

The act of February 26, 1889, allowing to a defendant as of right a writ of error to the Supreme Court in capital cases without security for costs, and making it the duty of the clerk to certify up the record, does not authorize the clerk to charge against the United States fees for such services. TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 17, 1896.

Mr. Stephen Wheeler, clerk of the United States circuit court for the western district of Arkansas, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending December 31, 1895.

Among the items disallowed by the Auditor is the following: "Charges for filing bills of exceptions, assignments of errors, and entering orders thereon and entering stays of judgments; for issuing citations and writs of error and copies of same with certificate, and for making transcript for Supreme Court, with certificate and seal, are disallowed as defendant's costs (see 2 Comp. Dec., 221), $326.60,"

In reply Mr. Wheeler says:

"The act of Congress of January 25, 1889 (25 Stat., 655), permits a person convicted of a capital offense in a circuit court to sue out a writ of error and take an appeal to the Supreme Court at the expense of the United States.

"The decision of the Comptroller, as published on page 221, volume 2, Decisions of the Comptroller, could not apply to charges disallowed as above cited, for the laws cited by the Comptroller in support of his decision were passed long before the act of January 25, 1889, under which these fees are charged. "These items have been charged in my account every quarter since May 1, 1889, and invariably allowed. Under the same law the clerk of the Supreme Court is compelled to perform his services in connection with the appeal and is paid for the same by the United States."

Section 6 of the act of February 26, 1889, referred to by the clerk, provides:

"That hereafter in all cases of conviction of crime the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be reexamined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error, under such rules and regulations as said court may prescribe. Every such

writ of error shall be allowed as of right and without the requirement of any security for the prosecution of the same or for costs. Upon the allowance of every such writ of error it shall be the duty of the clerk of the court to which the writ of error shall be directed to forthwith transmit to the clerk of the Supreme Court of the United States a certified transcript of the record in such case, and it shall be the duty of the clerk of the Supreme Court of the United States to receive, file, and docket the same."

It is to be noticed that said section provides that "every such writ of error shall be allowed as of right and without the requirement of any security for the prosecution of the same or for costs," but it does not say that the defendant shall not be liable for the costs, much less that these costs are to be paid by the United States. It may well be that Congress may have seen fit to allow a defendant in cases of the character provided by said section to have his case reviewed by the Supreme Court without giving security for costs or even without rendering him liable for the same, and yet may not have intended that the United States should pay to the clerk the fees which ordinarily would have been chargeable to the defendant. When Congress intends that services ordinarily payable by a defendant are to be paid by the United States such intention is usually clearly expressed, as in section 878, Revised Statutes, where it is provided that the fees of witnesses subpoenaed on behalf of a defendant shall be paid by the United States. It must not be overlooked that compensation is not given for every service required of an officer who receives his compensation by fees. (See United States v. Patterson, 150 U. S., 65-69, and United States v. King, 147 U. S., 676.) The case seems to be one within the principle decided in 2 Comp. Dec., 221, relied upon by the Auditor.

Mr. Wheeler is mistaken in his statement that the services required of the clerk of the Supreme Court under said act are paid for by the United States. It does appear, however, that Mr. Wheeler has received fees for these services heretofore, but an investigation of the matter fails to show that the question was ever presented for the personal decision of the Comptroller, the fees having been allowed in a routine way by the clerks who passed Mr. Wheeler's accounts. The fact that Mr. Wheeler has been paid in the past more money than the law authorized him to receive will not justify the continued payment of fees which are not provided for by the statute.

R. B. BOWLER,

Comptroller.

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