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After in effect accepting his resignation by appointing him to a diplomatic post, the action of the President on May 25, 1869, by which he attempted to restore him to the Army by placing him on the retired list with full rank of captain, was entirely without warrant of law. (Mimmack v. United States, 97 U.S., 426; United States v. Corson, 114 U.S., 619; Winthrop's Digest Judge Adv. Gen. Op., p. 666, sec. 9.) For by section 1094, Revised Statutes, retired officers are still officers of the Army. (United States v. Tyler, 105 U. S., 244.)
The fact that on December 23, 1869, the President assigned Badeau to active duty in Washington, and that he served on such duty until the following spring, can not alter his status.
The claimant insists that the acts of March 3, 1875, and of March 3, 1891, are curative, and that he is entitled to their benefit by a literal construction of the phrase, “any retired officer of the Army whose name was upon the retired list prior to the passage of the act of March 3, 1875;" that as his name was in fact borne upon the retired list prior to the passage of the act of 1875, he falls within the benefits of the act of 1891.
In this view I can not concur, for it clearly appears that only those who were legally upon the retired list are entitled to the benetits arising therefrom. In the well-considered opinion by Attorney-General Miller upon the case of Captain Badeau (19 Opin. A. G., 609, on page 613), it is said:
“But it is needless to cite further authorities to the proposition that by this statute fact of March 30, 1868] the action of Lieutenant Badeau, in accepting a diplomatic office, vacated his military office and put him out of the Army. The fact that his name remained on the rolls has no significance. It is simply evidence of a mistake of law in making those rolls. * * * But it must be remembered that Lieutenant Badeau, as the result of his statutory resignation, had been out of the Army and his place therein vacant almost six years before the act of 1875 was passed. The act of 1875, when speaking of names on the retired list, meant names there legally, not by mistake either of law or fact. The question is not whether the act of 1875 could retain a retired officer, within its provisions, in the Army, but whether it could put a mau who had resigned and been six years a civilian back in the Army.”
This reasoning in reference to the act of 1875 is equally applicable to the act of March 3, 1891, under which Badeau now claims. In the one case the language is, “and every such officer now borne on the retired list shall be continued thereon notwithstanding the provisions of section 2, chapter 38, of the act of March 30, 1868,” while in the act of 1891 the officers of the Treasury are directed "not to suspend or withhold the pay of any retired officer of the Army whose name was upon the retired list prior to the passage of the act of March 3, 1875," notwithstanding he had held a diplomatic or consular position. From this language it is clear that, as decided in reference to the act of 1875, only those officers whose names were legally on the retired list can claim the benefits of the act of 1891.
It is true that in Badeau v. United States (130 U.S., 439) the court in terms declined to pass upon Badeau's status, in the following language: “Whether by order of the Secretary of War, July 3, 1878, the claimant's name was properly restored to the retired list we are not called upon to determine in this case, because even were that so we do not think his petition can be sustained.” As the question was not necessarily involved in the case, it was not decided, for the court held that the acceptance of a diplomatic or consular position by an officer of the Army thereby vacated his military office, which is the essential and fundamental fact in this case.
It can not be said that by passing the act of 1891 the Presi. dent and Senate appointed Badeau, as one of a class, to the Army, for appointments can not be made by general legislation applicable to a class. Such legislation would be unconstitutional. “The Constitution contemplates that an appointment shall be made upon the separate consideration, first by the President and afterwards by the Senate, of each individual case by name, and upon its own merits."
In view of the Attorney-General's opinion heretofore cited, as well as of any reasonable construction of the law, I must hold that since May 19, 1869, Adam Badeau has not been an officer of the United States Army upon either the active or the retired list; that the fact that his name was carried on the rolls as an officer on the retired list is of no consequence, inas. much as the same was placed there illegally and without warrant of law; and that therefore he is entitled to none of the benefits claimed by him under the act of March 3, 1891. The claim of Badeau will be disallowed.
EDW. A. BOWERS,
SUBSISTENCE OF ENLISTED MEN IN NAVAL HOS. PITALS AFTER EXPIRATION OF TERM OF ENLISTMENT.
Enlisted men of the Navy, required by the regulations to contribute to
the fund for Navy hospitals, may be subsisted by the Navy Department in naval hospitals after their term of enlistment has expired without being charged with Navy rations.
July 3, 1895. SIR: I have received your letter of the 18th ultimo, inquiring whether George Bradley, quartermaster third class, should be charged with 30 cents per diem for subsistence while in hospital after his term of service and pay in the Navy had expired and ceased.
In reply I have to say that the Navy Regulations appearing to bear on this subject are as follows:
Paragraph 1173, Navy Regulations of 1865:
“No person enlisted for the naval service is entitled to pay whilst at a naval hospital after the expiration of his term of enlistment, but he may be retained for hospital treatment."
With slight change this paragraph has been carried into the Navy Regulations of 1893, to which you are referred.
Article 1128, Regulations of 1893, paragraph 1, is as follows: “No person in hospital shall be discharged from the service for physical disability, except upon the recommendation of a board of medical survey.”
Article 1150, Regulations for 1893, is as follows: "The Secretary of the Navy shall deduct from the pay of each officer, seaman, and marine in the Navy at the rate of 20 cents per month for each person, to be applied to the fund for Navy hospitals.” ,
It will be seen from the foregoing that each person while in the naval service is compelled to contribute 20 cents per month for the support of the Navy hospitals, and some benefit ought to and must necessarily accrue to them for this contribution.
Acting on the recognized justice in the matter, it has been the practice of the Navy Department to subsist enlisted men in hospital after the expiration of their terms of enlistment, and without charging them with the value of the Navy ration. This has been done on the ground that the men contracted
disabilities while in the service, and their pay and ration money ceased at the expiration of their terms of enlistment, and the Government owed them the benefits of an institution which they had contributed to support.
It is believed that it is competent for the Navy Department to decide that enlisted men may be subsisted in naval hospitals after the terms of their enlistment have expired, without charge for the Navy rations. Under the practice prevailing for many years the paymaster should not charge George Bradley with the value of the Navy ration while in hospital after the expiration of his term of enlistment and his pay in the service has ceased. Respectfully, yours,
EDW. A. BOWERS,
Acting Comptroller. HENRY C. MACHETTE,
Paymaster, U. S. R. 8. Independence, Mare Island, Cal.
TRANSPORTATION OF SAILORS AND MARINES
OVER PACIFIC RAILROADS. The provision in section 1 of the act of March 3, 1879, for the proper ad
justment of accounts of Pacific railroads for transportation of the Army and transportation of the mails, does not apply to transportation of the Navy so as to authorize the same method of adjustment for the services rendered by such railroads in the transportation of sailors and marines.
July 8, 1895. SIR: I have received your letter of the 24th ultimo, in which you submit for my decision the question whether sailors and marines can be transported by rail between the Atlantic and Pacific stations and the accounts for the cost incurred thereby over the bond-aided portion of the route be adjusted in the same manner as are those for the transportation of the Army and transportation of the mails under the provisions of section 1, act of March 3, 1879 (20 Stat., 420).
The act above mentioned provides:
“That for the proper adjustment of the accounts of the Union Pacific, Central Pacific, Kansas Pacific, Western Pacific, and Sioux City and Pacific Railroad companies, respectively, for services which have been or may hereafter be performed for the Government for transportation of the Army and transportation of the mails, the Secretary of the Treasury is hereby authorized to make such entries upon the books of the Department as will carry to the credit of said companies the amounts so earned or to be earned by them during each fiscal year and withheld under the provisions of section fifty-two hundred and sixty of the Revised Statutes, and of the act of Congress approved May seventh, eighteen hundred and seventy-eight.”
The mode of procedure under the act above quoted is to adjust the accounts for the services rendered by the bondaided railroads in furnishing transportation for the Army in the same manner as accounts are settled for services rendered other branches of the Government, until the point is reached where it becomes necessary to designate an appropriation to be charged. Instead of charging an appropriation available for current use, a fictitious designation is used known as “Army transportation, Pacific railroads." By this means the bond-aided roads secure a credit on their bond account to the extent of the value of the services rendered, and the regular appropriations are not drawn upon or diminished in payment for said transportation. The directeffect of this practice, authorized by the act above cited, is to increase the appropriation for the transportation of the Army to the extent of the value of the services rendered by the bond-aided railroads for that branch of the service. The substance of your inquiry is understood to be, whether a similar plan can not be adopted for services rendered the Navy Department by said bond-aided railroads.
It will hardly be questioned that the adoption by the Navy Department of the course pursued in respect to the transportation of the Army would have the effect of increasing the appropriation available for the use of the Navy Department beyond the amount named in the acts of appropriation.
Section 3679, Revised Statutes, provides:
“No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract for the future payment of money in excess of such appropriations.”
This section, standing alone, seems to prohibit the course pursued in respect to transportation of the Army. At this point, however, the act of March 3, 1879 (20 Stat., 420), comes in and modifies the provisions of section 3679, Revised Statutes, making an exception to the general prohibition found in said section so far as “transportation of the Army and transportation of the mails” are concerned.