« SebelumnyaLanjutkan »
IN RE CLAIM OF GIACINTO LICARIONE, LATE MUSI. CIAN U. S. MARINE CORPS, FOR PAY BETWEEN DATE OF EXPIRATION OF ENLISTMENT AND RECEIPT OF DISCHARGE.
An enlisted man remains in the service until receipt of his discharge, or
until such action is taken as will render him legally chargeable with notice thereof, notwithstanding the expiration of his term of enlistment during his absence on a furlough granted at his own request.
August 31, 1895. The claimant appeals from the decision of the Auditor for the Navy Department of July 10, 1895, which reads as follows:
• Your claim for arrears of pay has been disallowed for the reason that it appears from a letter from the commandant of the Marine Corps that you were notified that your term of enlistment would expire April 7, 1895, but that you preferred to go with the band on its concert tour rather than remain here and receive your discharge at the date of the expiration of your term of enlistment."
The indorsement of First Lieutenant Pendleton states that,
66 Musician Licarione was on furlough with the band, United States Marine Corps, from March 25 to May 5, this year. Before leaving he was notified that his term of enlistment would expire April 7, and that it was doubtful whether he would be entitled to any pay for serving overtime, in case he did not return in time to receive his discharge.”
It appears by the letter of Major Goodloe, paymaster, United States Marine Corps, of May 25, 1895, that it was “deemed advisable to withhold the pay of Musician Licarione for the
overtime,' and he was instructed to submit a claim to your office for same.” The reason given for so withholding the pay is that this claim was analagous to that of a man in hospital remaining after the expiration of his term of enlistment, for the sole convenience and benefit of the man concerned, in accordance with paragraph 5, article 831, Navy Regulations, 1893.
In this view I do not concur. It does not appear that the claimant was directed to return to receive his discharge at the expiration of his term of enlistment, and it is evident that there was no concealment of his whereabouts in accompanying
the Marine Band upon its concert tour which would have prevented his discharge being sent to him from headquarters, the receipt of which would have terminated his service. It was therefore due to no fault or laches on the part of the claimant that he did not receive the formal discharge necessary to sever his connection as an enlisted man in the Marine Corps, but his status continued because his superiors did not see that his discharge was delivered to him at the expiration of his five years' enlistment, to wit, on April 7, 1895.
It is well settled that until a soldier's discharge is issued and delivered to him, or until such action is taken as to make him legally chargeable with notice of his discharge, he remains in the service and is entitled to all the emoluments arising therefrom, unless they are forfeited in pursuance of law or by a sentence of a court-martial. If the discharge had been issued and delivered, or mailed to its proper address, he would have become legally chargeable with notice if the failure to receive it arose from his own fault; but until the discharge, or something equivalent thereto, has been duly issued the enlisted man can not be charged with notice of the same. From the discharge in this case it appears that the same was not signed by the commandant until May 6, 1895, and that it was delivered on the same date.
In Allstaedt v. United States (3 C. Cls. R., 284) it was held that an officer's right to pay to the date of his actual discharge can not be defeated by an order of the War Department directing him to be mustered out and discharged as of a prior day, notwithstanding the fact that his term of service was extended by a leave of absence granted at his own request.
The Auditor's decision is therefore reversed and the account is restated in accordance with this opinion.
EDW. A. BOWERS,
SALARY OF MEMBER OF WORLD'S COLUMBIAN
COMMISSION AS “AUDITOR” FOR THE COM. MISSION.
The executive committee of the World's Columbian Commission, having
the powers of the Commission when that body was not in session, was not authorized to create and fill the office of auditor when such office could not have been created by the Commission itself except by an amendment to the by-laws on a two-thirds vote.
September 4, 1895. SIR: In yours of the 26th March you inclose a voucher in favor of Hon. James D. Butt, a member of the World's Colum. bian Commission from West Virginia, for salary at the rate of $6 per day, claimed to be due him as an "auditor” of the World's Columbian Commission, payable from the appropriation "Expenses, committee on awards, World's Columbian Commission (reimbursable)." You ask whether the same can properly be paid from the appropriation above mentioned.
An examination of the voucher and of other papers inclosed with your communicatiov' shows that the compensation claimed is for services rendered from September 1, 1893, to January 15, 1894; that Mr. Butt's claim is founded upon the action of the executive committee of the World's Columbian Commission at a session held September 28, 1893, in which it was resolved that James D. Butt and Charles K. Holliday, jr., formerly . members of a subcommittee of the committee on audit of the Commission, “be, and are hereby, created officers of the World's Columbian Commission. The title of said subcommittee shall be “Auditors of the World's Columbian Commission.?” It was further resolved
" That each of the said auditors of the World's Columbian Commission shall be paid the sum of $12 per day for his services, to be apportioned as follows:
“Six dollars a day each, chargeable to the appropriation of the World's Columbian Commission as already allowed for subsistence of Commissioners, and $6 a day each, chargeable to the appropriation of the committee on awards, made by Congress and approved March 3, 1893 (reimbursable), for the payment of judges, examiners, etc.; and be it further
“Resolved, That said additional compensation,'or the amount chargeable to the appropriation of the committee on awards made by Congress and approved March 3, 1893 (reimbursable), for the payment of judges, examiners, etc., shalı take effect September 1, 1893.”
Article 4 of the by-laws of the World's Columbian Commission is entitled “Officers of the Commission,” and provides for a president, five vice-presidents, a secretary, a directorgeneral, and a board of lady managers.
Article 15, entitled “Salaries of officers," prescibes the salary of the president, the secretary, and the director-general, and does not provide salaries for any other officers.
Article 10, entitled “ Departments and standing committees, provides for a “Committee on auditing, consisting of four Commissioners—
“Who shall examine and pass upon all claims or vouchers properly chargeable against the sums of money appropriated by the Congress of the United States, from time to time, to the World's Columbian Commission, other than the per diem and expenses of Commissioners, the salaries of officers which are fixed by the law, the by-laws of the Commission, or the authority of the Commission, its executive committee, or board of reference and control."
Article 5, entitled “Executive committee,” provides for an executive committee, which
Committee, when the Commission is not in session, shall have all the powers of the National Commission, except in cases in which the act of Congress requires the action of the Commis. sion or a majority of the Commissioners."
The article further provides that, "This committee shall select such employees and agents as may be necessary, shall define their duties, and fix their compensation: * * * *
Article 20, entitled “Amendments," is as follows: “Amendments shall only be made by a two-thirds vote of the Commissioners present; and all propositions to alter or amend shall be referred to the committee on rules, by-laws, and regulations, and be by it considered before any final action thereon by the Commission."
Section 19 of the act of April 25, 1890 (26 Stat., 66), creating the World's Columbian Commission, provides :
“That the Commissioners and alternate Commissioners appointed under this act shall not be entitled to any compensation for their services out of the Treasury of the United States, except their actual expenses for transportation, and the sum of six dollars per day for actual subsistence for each day they are necessarily absent from their homes on the business of said Commission. The officers of said Commission shall receive such compensation as may be fixed by said Commission, subject to the approval of the Secretary of the Treasury, which shall be paid out of the sums appropriated by Congress in aid of such exposition."
From a reading of all these provisions, it is clear that no member of the Comunission is entitled to receive compensation other than the per diem in lieu of subsistence, unless he be a regularly appointed officer of the Commission. The Commis
11268_VOL 2- 7
sion have by their by-laws designated their own officers, and have by article 20 also prescribed the method by which their by-laws may be amended. The action of the executive committee, in creating the offices of "auditors of the World's Co. lumbian Commission” was not taken in the manner prescribed by the by-laws, and in fact could not have been so taken, as amendments to the by-laws could only be made by the Commission itself.
It seems to me entirely clear that the by-law conferring upon the executive committee all the powers of the National Com
intend to confer upon that committee a power greater than the Commission themselves possessed, so as to authorize the creation of officers wben the Commission could not have done so except by a vote of two-thirds of their own body.
I am clearly of the opinion, therefore, that Mr. Butt is not entitled to the compensation which he claims, and that the voucher is not a proper charge against the appropriation, “Expenses, committee on awards, World's Columbian Commission (reimbursable)."
I have delayed answering your communication at the request of Mr. Butt, in order that he might furnish me with a brief upon the question presented, which brief has received my careful consideration. Respectfully, yours,
R. B. BOWLER,
Comptroller. The SECRETARY OF THE TREASURY,
IN RE SUGAR BOUNTY,
Under section 8 of the act of July 31, 1894, requiring the Comptroller of
the Treasury to approve, disapprove, or modify decisions by the Auditors making an original construction or modifying an existing construction of statutes, the Comptroller is authorized to disapprove the Auditor's construction allowing payment from an appropriation made by Congress when he is convinced that the object for which the appropriation is made is one for the accomplishment of which the Consti
tution does not warrant the Congress in applying the public money. The appropriation in the act of March 2, 1895, for the payment of bounty
on sugar produced prior to the date of the repeal of the bounty provisions of the act of October 1, 1890, is not an appropriation of public money for a public purpose within the powers granted to Congress in the Constitution.