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The Secretary has exercised the discretion vested in him and authorized the payments to be made in cash; therefore there is no authority for making any other disposition of the money. As Louis Pielle is not the original allotter and patentee, or heir at law of such, in this case, he is not entitled to payment of this money. To make payment to him on the authority or consent of the owner would be recognition of an assignment of a claim in disregard of section 3477, Revised Statutes.
As the Secretary has not authorized the expenditure of this money for the benefit of the Indian, and there is no indication of his intention of doing so, it is not necessary at the present time to consider the question whether the payment of a claim, which at best is of no higher character than an equitable demand, could be considered as an expenditure for the Indian's benefit.
The decision of the Auditor is disapproved, and the claim should be disallowed.
EDW. A. BOWERS,
MODIFICATION OF CONSTRUCTION OF ACT OF MARCH 3, 1885, RELATING TO LOSS OF PRIVATE PROPERTY OF OFFICERS AND ENLISTED MEN OF THE ARMY, ARISING IN CLAIM OF LIEUT. JOHN M. CARSON.
The act of March 3, 1885, provides for three classes of circumstances
under which officers and enlisted men of the Army are entitled to reimbursement for the loss of private property in the military service of the United States, provided that the Secretary of War shall have first decided that the property so lost was “reasonable, useful, neces. sary, and proper for such officer or soldier while in quarters, engaged
in the public service in the line of duty:” First. Where the claimant can show that the loss occurred without fault
or negligence on his part; Second. Where the property lost was shipped on board an unseaworthy
vessel by order of a properly authorized officer, in which case it is not required to affirmatively show that he was not guilty of fault or negligence; and
Third. Where the property was lost through the action of the claimant in
preferring to save the property of the United States at the same time that his own was in jeopardy, which necessarily implies the neglect of his own property for the sake of saving the Government from loss, if possible.
June 26, 1896. Under date of June 1, 1896, the Auditor for the War Department rendered a decision modifying a construction placed on the act of March 3, 1885 (23 Stat., 350), by the Second Comptroller. The Auditor has submitted his decision to this office for approval, disapproval, or modification. This law provides:
"That the proper accounting officers of the Treasury be, and they are hereby, authorized and directed to examine into, ascertain, and determine the value of the private property belonging to officers and enlisted men in the military service of the United States which has been, or may hereafter be, lost or destroyed in the military service, under the following cir. cumstances:
6. First. When such loss or destruction was without fault or negligence on the part of the claimant.
“Second. Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment.
“Third. Where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances. And the amount of such loss so ascertained and determined shall be paid out of any money in the Treasury not otherwise appropriated, and shall be in full for all such loss or damage: Provided, That any claim which shall be presented and acted on under authority of this act shall be held as finally determined, and shall never thereafter be reopened or considered: And provided further, That this act shall not apply to losses sustained in time of war or hostilities with Indians: And provided further, That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, in his discretion, shall decide to be reasonable, useful, necessary, and proper for such officer or soldier while in quarters, engaged in the public service in the line of duty: And provided further, That all claims now existing shall be presented within two years, and not after from the passage of this act; and all such claims hereafter arising be presented within two years from the occurrence of the loss or destruction."
The Second Comptroller, in construing this act as to the causes of the loss, decided, November 8, 1893, that property of officers and enlisted men of the Army could be paid for only when lost under the circumstances specified in clauses“second” and “third," and then only when such loss or destruction was without fault or negligence on the part of the claimant, treating clause "first” as in the nature of a proviso limiting the other two clauses. This was a reversal of the former construction placed upon this law.
The decision of the Auditor for the War Department is too lengthy to be quoted in full, but so far as it relates to the causes of loss may be stated substantially as follows: That it is suffi. cient to bring a case within any one of the three clauses to give a claimant the right to recover under the act above cited. In this view I concur. The Auditor states that the decision of the Second Comptroller, of November 8, 1893, “virtually elimi. nated the first section of the act as an independent cause of action, and attached it to the second and third sections, thereby modifying and restricting the meaning thereof.” As the ground for his holding, the Second Comptroller said:
“ The statute as printed is divided into “first,' «second,' and third.' Independently of these specifications it is apparent that only two classes were intended to indicate when payment should be made. The first clause commences with when,' the others with "where.' If it was intended to state three distinct instances when payment should be made, the change of expression would not occur; each clause would commence with 6 when' or with “where. If the first clause is not limited by the second and third clauses, then it is unlimited, except by the action of the Secretary of War, and payment must be made for the loss of all private property belonging to officers and enlisted men of the Army. * * * There is no limit of the amount, value, or kind of property, if the Secretary of War sball decide the articles to be reasonable, useful, necessary, and proper for such officer or soldier while in quarters engaged in the public service in the line of duty."
The language adopted in the act reimbursing officers and men of the Navy for loss of private property, so far as the use of “when” and “where” is concerned, is identical with this, and as heretofore held (ante, p. 30) in constructing that act, this change in language does not reduce the classes of cases in which claims may be made for such losses. To hold that the “first” clause has no independent force as a basis of a claim but must be regarded as words of limitation to the “ second"
and third" clauses, appears to me a strained and unwarranted construction of this law.
As stated by the Auditor
“ Under the third clause, it would seem that a loss could not be without fault or negligence of the soldier, because the relief is granted in contemplation of the fact that he will neglect his own interests and sacrifice his own property to save that of the Government, and it is offered as an inducement to the soldier to neglect his small personalinterests that the larger and more valuable ones of the Government may be subserved. It would nullify that section of the statute if it were necessary to couple it with the first section.” *
No recovery could possibly be had under the clause numbered "third” if it were necessary to show that the loss was without fault or negligence of the soldier. Such an absurd intention can not rightly be imputed to the framers of the law.
The true construction of clause “second” is that the claimant is entitled to reimbursement without being required to affirmatively show that he was not guilty of negligence, 6 where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer author. ized to give such order or direct such shipment.” The leading idea in this clause is that the loss would be attributable to the unseaworthiness of the vessel, and that the soldier sustaining the loss would have no option as to the shipment on said vessel and no responsibility for a loss under such circumstances.
Clause "first” stands alone as an independent basis for a claim and was intended to reach cases not covered by the other two clauses. This clause is broader in its scope than the two succeeding ones, but absence of fault or negligence must be proven if the claim is made under it. Broad as this clause is, it does not cover every case of loss an officer or soldier might sustain in his reasonable, useful, and necessary” property while he was in the military service. To come within the terms of the act the property must be in military use at the time and subject in some degree to superior authority in its disposition. To state the case negatively, property stored in some place distant from camp, post, or garrison, free from military use and control at the time, does not come within the purview of this act.
I do not share the apprehension of the Second Comptroller that, if the construction I have placed upon the act should prevail, all losses of every kind of property must be paid for by the Government if certified by the Secretary of War to be reasonable, useful, necessary, and proper for the officer or soldier while in quarters. My views coincide with that of Secretary of War Endicott in a memorandum found in this case as follows:
" This sthe act in question describes in general but very specific words the articles for the loss of which the Government will be liable.
"They must be useful and necessary articles, thereby excluding all articles of ornament and decoration and including only those essential for the proper performance of the duty required; they must be reasonable, that is, in their number and value, and proper in view of the rank of the officer or eulisted man, and of the character and kind of duty he is engaged in. - In other words, while in quarters engaged in the public service in the line of duty the Government must indemnify him for the loss of those articles of personal property belonging to him wbich he must have in order properly to perform that duty. For no other articles of personal property in his possession, and lost at the time, will the Government be liable. The articles must not only belong to him, but must be used by him and for him alone, as it were, personal to him in the performance of his duty.
“Not only is this conclusion reached through the meaning of the words themselves, but the manifest object of the limitation of liability is to include only the articles which the necessities and the requirements of his situation in the public military service compel him to have, and to use in the line of duty when in quarters. If this limitation is overstepped, and all articles of personal property natural and common for an officer to have and collect at his quarters, far, perhaps, in excess of his actual needs, and not necessary to him in the performance of his duty, the Government becomes insurer, a liability clearly not intended to be imposed by the act.
“This being the opinion of the Secretary of War as to the scope of the act, it is clear
“First. That personal property belonging to the officer or enlisted man, but in use by the members of his family, is to be excluded.
"Second. That all clothing, such as he would usually wear in the public service while in quarters and in the line of duty, he may be indemnified for if lost; and also for all furniture and such articles of household use proper, reasonable, and necessary for him to have in his quarters, such as the regulations prescribe for him to occupy as an officer or enlisted man.
166 Third. That clothing not necessary or proper for him to wear in the line of duty is excluded. That in the matter both of clothing and household effects necessary and proper for him to have, while in every case it should be considered that a fair, just, reasonable amount should be allowed to him for which he