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Under the provision of the act of Congress above quoted, enacted since the receipt of your communication, the Secretary of the Navy is authorized to permit allotments by officers of the Navy and the Marine Corps under such regulations as he may prescribe.
While this legislation removes the apparent bar heretofore existing against any allotments by Naval and Marine officers, it does not cover the special objections to the case in hand, and upon a full consideration, it is concluded that further payments can not be made under the existing allotment. Allotments of pay are not assignments, but are simply orders on the paymaster in the nature of powers of attorney, authorizing payments to be made to certain designated persons, who are thereby empowered to receive and receipt for the same. They do not give a vested right to the money allotted, and are revocable at the pleasure of the officer granting the same, in which case the beneficiary is without remedy against the United States. (Digest Second Comp. Dec., vol. 1, sec. 72.)
They do not create any privity of contract or relation with the United States so as to require any release or acquittance from the allottees as against them. The only authority which Bellis had under this allotment was to execute a receipt which would be binding as against the person making the allotment, upon receiving the money allotted to him. Such being the nature and legal effect of allotments, and being intended, as shown by law and regulation, for the support of the family or relatives of the grantors thereof, or for their own savings, the supervening insanity of Bellis operates to revoke the allotment made in his favor, and no payments can now be made thereon. Since Bellis does not appear to be a member of the allotter's family or his relative, it must be presumed, in order to sustain this allotment at all, that he was to aid in carrying out its legalized purposes, either by disbursing the money to that end or by furnishing supplies to the family or relatives of the allotter. His insanity renders it impossible for him to perform this service, and although his trustee might execute a receipt which would bind the estate over which he is trustee, he can not act for him in carrying out the purposes of the allotment nor execute a valid receipt for Cadet Todd.
As regulations will doubtless be made by the Secretary of the Navy, at an early date, to carry out the provisions of the recent legislation on the subject of allotments, it would be proper for the Secretary to define the requirements of the
Department as to the regulation that "checks shall be drawn
Assistant Comptroller. Pay Director F. C. Cosby,
United States Navy, Washington.
APPEAL OF F. C. PECK, UNITED STATES MARSHAL
FOR THE NORTHERN DISTRICT OF NEW YORK.
When a marshal having custody of a prisoner lodges him with a jailer or
other person without a mittimus or other warrant of commitment he
June 27, 1896. Mr. F. C. Peck, United States marshal for the northern district of New York, appeals from the Auditor's settlement of his fee and expense account for the quarter ending June 30, 1895. Among the items disallowed by the Auditor were several charges for committing prisoners where the marshal had no mittimus or other warrant of commitment.
It appears in these cases that the deputy marshals having arrested certain persons accused of crime lodged them in jail for safekeeping while on their way to the place where the commissioner who was to hear the case lived or, after arriving at such place at night, to await the hearing on the next day.
Section 829, Revised Statutes, prescribing marshals' fees, provides : “ For every commitment or discharge of a prisoner, fifty cents."
A commitment is defined in Bouvier as follows:
“The warrant or order by which a court or magistrate directs a ministerial officer to take a person to prison.
" The act of sending a person to prison by the means of such a warrant or order.” ,
It is evidently for the latter act that the fee of 50 cents is provided in section 829. When a marshal arrests a person on a warrant, he is authorized to hold the accused until he is brought before a proper officer for examination and is finally bailed, committed, or discharged. The warrant is the marshal's justification for holding the accused. He has no other authority. It is not necessary, however, that he should always keep
manual possession of the accused; "he may put him in a proper place of confinement, either with or without a mittimus, as the case may require.” (Bishop on Criminal Procedure, sec. 32.) And he may in any other proper manner provide for the guard. ing of the accused by lodging him with any person of his own selection. It can hardly be contended that every time he hands the accused over to some other person, as his agent or servant, he is entitled to receive the fee of 50 cents, as for committing him; and if he is able to have the accused lodged with a jailer rather than with some other person, the act of putting him into the custody of the jailer is no more a commitment than the act of placing him in the custody of any other person of his own selection. The jailer in such a case acts as the servant of the marshal, the accused continuing during that time in the official custody of the marshal and never coming into the official custody of the jailer as jailer. (See Gilbert v. United States, 23 C. Cls. R., 218–225.)
It has been the uniform practice of the accounting officers to disallow all claims for fees for committing prisoners under the circumstances above recited, and in my opinion that practice is correct, and for the reasons given above will prevail. The action of the Auditor is therefore affirmed.
R. B. BOWLER,
IN RE CLAIM OF G. W. BAIRD, CHIEF ENGINEER,
UNITED STATES NAVY, FOR SEA PAY. The character of the service of a naval officer is strictly determined by
his orders, and where the order directs him to report "for duty in charge of the machinery" of an ironclad at a navy-yard, and he subsequently receives similar orders for other ironclads while performing this duty, and the order relieving him from this duty recited that he was “detached from duty connected with the ironclads at the nary. yard” in question, such orders do not assign him to duty on board the first of the vessels named, and he is not entitled to sea pay for the
performance of duties in obedience to said orders. His assumption that he is attached to the ironclad does not change his
status, and the accounting officers can allow only the pay that he is entitled to receive for the performance of the duties required by his orders.
June 30, 1896. The claimant appeals from the decision of the Auditor for the Navy Department of May 11, 1896, disallowing his claim
for the difference between other duty and sea pay from March 9, 1880, to June 2, 1882, while performing duty in connection with certain ironclads at the Washington Navy-Yard. The grounds of the Auditor's decision are as follows:
“ The accounting officers have, since the Supreme Court de. cided the case of Lieutenant Symonds (120 U.S., 46), required the officer claiming sea pay while attached to ironclads, or other vessels lying at navy-yards, a certificate from the claimant that he was required to have his quarters on board, to wear his uniform, to mess on the vessel, and was not permitted by the rules of the service to live with his family. Mr. Baird certifies that he had his quarters on the Montauk, messed on board, etc., but was permitted to remain on shore at night. It is evident, therefore, that he did live with his family, and consequently under the practice that has heretofore prevailed, his claim for sea pay can not be allowed."
Without passing upon the sufficiency of the grounds above set forth for the Auditor's disallowance, I hold that his claim must be disallowed for the reason that Chief Engineer Baird was not in fact attached to any vessel during this period, as will be seen by the following orders.
On February 10, 1880, he received this order:
“On the reporting of your relief, Passed Assistant Engineer E. A. Magee, on the 12th instant, you will regard yourself detached from the Vandalia, proceed home, and wait orders.”
On March 9 he received this order:
“ Report to Commodore Febiger, without delay, for duty in charge of the machinery of the ironclad steamer Montauk, at the navy-yard, Washington.”
On October 22, 1880, he received this order:
“ In addition to your present duties, report to Commodore Pattison, to have charge of the machinery of the ironclads Saugus and Wyandotte.”.
On July 14, 1881, he received this order:
66 In addition to present duties, report to Commodore Pattison, charge of Passaic's machinery, as relief of Passed Assistant Engineer Richard Inch."
On November 1, 1881, he was ordered:
“ In addition to your present duties, you will also have charge of the machinery of the ironclad Saugus.”
His order detaching him, of June 3, 1882, was as follows: " You are hereby detached from duty connected with the ironclads at the navy-yard, Washington, and will proceed to Wil.
11268—VOL 2— 42
mington, Del., without delay, for continuance on special duty assigned you in reference to the Fish Commission steamer Albatross.
From the above orders it appears that he was not assigned to duty on board the ironclad steamer Montauk, but was ordered to report to the commodore in command of the Washington Navy-Yard - for duty in charge of the machinery” of the Montauk. From time to time it appears from the above orders that, in addition to this duty, he was directed to take charge of the machinery of other ironclads. He was not attached to those vessels nor was he detached from the Montauk to perform this other duty. His function seems to have been to care for the machinery of such vessels as either lay or might from time to time come to the Washington Navy-Yard; and when he was severed from that duty his order does not relieve him from duty on board the Montauk, but he is “ detached from duty connected with the ironclads at the navy-yard, Washington.” Surely, in view of this, it can hardly be claimed that there was any warrant for him to assume that he was attached to the Montauk. By comparison with the order which he received before coming to this duty at the navy-yard in connection with the machinery of various ves. sels, it will be seen that there he is specifically directed, “ you will regard yourself detached from the Vandalia." If he had been attached to the Montauk, his order should have read, 6 You are hereby detached from duty on the Montauk." The fact that he subjected himself to the discipline of the ship and had quarters and messed on the Montauk can not alter his status as fixed by the order issued to him by the Secretary of the Navy. Why he should have thus construed his order is not apparent nor material.
For the above reasons I therefore sustain the Auditor in disallowing Chief Engineer Baird's claim for the difference between other duty and sea pay during the period in question, while acting under the orders of March 9, 1880.
EDW. A. BOWERS,