By section 396, Revised Statutes, the duties of the Postmaster-General are described as, inter alia, "To superintend generally the business of the Department, and execute all laws relative to the postal service." Even in the absence of such a provision, which, however, certainly authorizes the direction that the Second Assistant Postmaster-General shall perform the services above indicated, it would clearly be within the power of the head of the Post-Office Department to require such services of his assistant. It is the established practice, in the absence of any prohibition, to authorize payment of the actual expenses of any civil employee of the Government when ordered away from his usual place of service. In the present case, such payment is clearly implied, if not specifically authorized, by section 4019, Revised Statutes. As the duties to be performed by the Second Assistant Postmaster-General are those relating to the service for which the appropriation for Inland transportation by railroad routes was made, his expenses are a proper charge against that appropriation, and may therefore be paid therefrom. Respectfully, yours, The POSTMASTER-GENERAL. R. B. BOWLER, IN RE APPEAL OF LIEUT. HARRY GEORGE, UNITED STATES NAVY, FOR COMPENSATION FOR LOSS OF PERSONAL EFFECTS ON THE UNITED STATES COAST SURVEY STEAMER MCARTHUR. The property of a naval officer serving upon a Coast Survey vessel, lost or destroyed by shipwreck of such vessel or other marine disaster, is not lost "in the naval service" within the meaning of the act of March 2, 1895. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, February 13, 1896. The Auditor for the Navy Department disallowed the claim of Lieutenant George for personal effects lost and injured on the United States Coast Survey steamer McArthur, which was sunk in the harbor at Seattle, Wash., from overloading one side of the vessel with coal sent suddenly through the chutes, causing the vessel to take water through her air ports. The ground of the Auditor's disallowance on December 12, 1895, is as follows: "The Comptroller of the Treasury decided May 7, 1895, in the case of Paymaster Ball, that the words 'shipwreck or other marine disaster,' as used in the act, meant shipwreck or marine disaster to the ship itself, involving the total or partial destruction or casting away of the ship." From this decision the claimant appeals, alleging that the sinking of the ship, under the circumstances, was a marine disaster, and that the fact that she was subsequently raised does not affect the question. Without passing upon the point raised by the claimant's appeal, I am clearly of the opinion that he can not be compen sated for the damage done to his personal effects under the act of March 2, 1895 (28 Stat., 962), which provides only for reimbursement to officers and seamen for private property "lost and destroyed in the naval service by shipwreck or other marine disaster, under the following circumstances: First. When such loss or destruction was without fault or negligence on the part of the claimant; An examination of the sections of the Revised Statutes relating to the Coast Survey shows that service in the Coast Survey is not naval service. Section 4684, Revised Statutes, provides: "The President shall carry into effect the plan of the board, as agreed upon by a majority of its members; and shall cause to be employed as many officers of the Army and Navy of the United States as will be compatible with the successful prosecution of the work; the officers of the Navy to be employed on the hydrographical parts, and the officers of the Army on the topographical parts of the work; and no officer of the Army or Navy shall receive any extra pay out of any appropriations for surveys." Section 4687 provides: "Officers of the Army and Navy shall, as far as practicable, be employed in the work of surveying the coast of the United States, whenever and in the manner required by the Depart ment having charge thereof." From these sections it is apparent that the officers employed upon the Coast Survey work are detached from military service and placed under the control of a civil branch of the Government. Their first duty is to the Superintendent of the Coast Survey as the representative of the Treasury Department, and they are subject to his orders while engaged in this service. It is true that to some extent naval discipline is maintained on board Coast Survey vessels, but this is by regulation of the head of the Coast Survey, who adopts the Navy Regulations for the government of officers "except in so far as these may be inconsistent with the special service in which they are engaged." (General Instructions for Hydrographic Parties, 1894, par. 285.) It is also true that the pay of these officers continues to come from the appropriations made for their respective military establishments, but the other expenses in connection with this work are paid out of the appropriations for the Coast Survey. It can hardly be contended that an officer of the Army engaged upon Coast Survey work is in the naval service; yet if the claimant as a naval officer can obtain reimbursement for this property, I can see no reason why an Army officer can not do likewise. The obstacle to such reimbursement in both cases is that, while the officers are respectively in the Navy and Army, and in that sense in the naval or army service, the service they are performing is not naval service, and the property is not "lost and destroyed in the naval service," as is required by the statute, but is lost in the performance of service for a civil branch of the Government. The disallowance of the claim is accordingly sustained and the appeal dismissed. EDW. A. BOWERS, IN RE APPEAL OF COMMANDER J. D. GRAHAM, UNITED STATES NAVY, FOR DIFFERENCE BETWEEN "OTHER DUTY PAY" AND "SEA PAY." The accouuting officers have no jurisdiction to reopen settlements made by their predecessors, because a subsequent decision of the courts has so changed the construction of the law under which the settlements were made as to warrant a different result in the settlements. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, The claimant appeals from a decision of the Auditor for the Navy Department, of November 16, 1895, refusing to reopen his account for the difference between "other duty pay" and 11268-VOL 2-26 "sea pay," from February 25, 1890, to July 26, 1890, for the reason that the claim has been rejected by former accounting officers of the Treasury. It appears that on February 19, 1890, claimant was detached from the navy-yard at New York and ordered to proceed to Richmond, Va., to relieve Felix McCurley of the command of the U. S. monitors at that place. He reported and took the command thereof on February 25, 1890. On July 1, 1890, he made claim for "sea pay" while on this duty. The claim was examined and reported on July 26, 1890, by the then Fourth Auditor, who recommended that the claim be disallowed, and this recommendation was approved by the then Second Comptroller on the 29th of the same month and the claim was disallowed by him. The matter was acted upon at that time at the urgent request of the claimant, against the suggestion of the accounting officers to allow the matter to await a decision of a similar question then pending in the Court of Claims. There is no claim that any mistakes in matters of fact or errors arising upon calculations have been made, or new and material testimony discovered. The rehearing is asked upon the same state of facts that existed when the claim was first rejected. The authorities fully sustain the position that the accounting officers have no jurisdiction to reopen settlements made by their predecessors, when, by a subsequent judicial decision changing the construction of a law under which the settlements were made, another result would be arrived at in the settlement. The cases in support of this proposition are numerous and too well known to require reference. In Waddell's Case (25 C. Cls. R., 327) the Chief Justice said: "The law has been too well settled to be in doubt at this time, that public officers can not open and reexamine cases decided by their predecessors except for fraud, mistake in matters of fact arising from errors in calculation, or newly discovered material evidence." Attorney-General Browning, in 12 Opin. A. G., 386, said: "No subsequent decision, upon a doubtful or controverted question of law, essentially modifying a prevailing rule which was applied to the settlement of an account, would authorize the reopening of it, with a view to a readjustment of it in accordance with such decision." Upon this subject see decision of Comptroller Bowler of January 25, 1894, in the claim of Parsons. (Bowler's First Comp. Dec., 156.) I am clearly of the opinion that the action of the Auditor in refusing to reopen the claim of Commander Graham was correct, and said action is hereby affirmed. EDW. A. BOWERS, PRO RATA DISTRIBUTION OF AMOUNT APPROPRIATED FOR A CERTAIN CLASS OF CLAIMANTS. Under the act of March 2, 1895, making provision for payment of damages to certain settlers on Indian lands, the amount appropriated being insufficient to pay all valid claims in full should be divided pro rata among the claimants, none of the claims being entitled to priority over the others. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, February 19, 1896. SIR: I am in receipt of your communication of February 4, 1896, in reference to the payment of certain claims for damages allowed to settlers upon the Crow Creek and Winnebago Indian reservations arising from their removal therefrom in accordance with the President's proclamation of April 17, 1885. As provided by the act of July 31, 1894 (28 Stat., 208), you have reported your original construction of the statutes providing for the payment of certain of these claims, the said statutes being the act of October 1, 1890 (26 Stat., 659), the act of August 15, 1894 (28 Stat., 307), and the act of March 2, 1895 (28 Stat., 899). You state: "The act of October 1, 1890, directed the Secretary of the Interior to designate a special agent of the Interior Department to make inquiry and report to him all claims for losses of all persons who in good faith, between the 27th of February, 1885, and the 17th day of April, 1885, settled upon and made claim under the land laws of the United States to any of the lands in the Crow Creek and Winnebago reservations which by the proclamation of the President of February 27, 1885, were declared to be open to settlement. By the same act the Secretary of the Interior was directed to transmit said report to Congress with his recommendation thereon. |
