The Interstate Commerce Commission has held that: "A carrier may lawfully establish a scale of charges. applicable to a specific commodity, and graduated reasonably according to value. The cost of carriage is not the only element in the carrier's charges a carrier is subject to a certain insurance liability. It would seem proper, therefore, that when its insurance risk is enlarged by reason of increased value of the goods intrusted to it, it may provide for a reasonable increase in its charges. We hold that it is in contravention neither of the letter nor the spirit of the law for the carrier to provide a higher rating for goods of special value than it applies to goods of the same class but of lower value."

It further held in considering the provision for 20 per cent increase above the quoted rates, when not subject to the conditions of the uniform or standard bill of lading, that:

"The stipulation that 'shipments not made as above provided are subject to an additional charge of 20 per cent' is unreasonable. A certain differential between rates which leave the carrier's liability unlimited and rates which provide for a limited liability is obviously proper, but the differential should exactly measure the additional insurance risk which the carrier assumes when the liability is unlimited. An increased charge of 20 per cent is manifestly out of all proportion to the larger risk involved, and its virtual effect is to restrict the public to rates calling for limited liability." (See decision May 14, 1908, No. 933.)

Upon a reconsideration of the case my former decision is adhered to.

FORFEITURE OF GUNNERY PRIZES BY SENTENCE OF COURTMARTIAL.

Gunnery prizes, authorized by the naval appropriation act of March 3, 1909 (35 Stat., 756), are not forfeited by a court-martial sentence imposing loss of pay.

Assistant Comptroller Mitchell to the Secretary of the Navy, January 15, 1910:

By your reference of the 5th instant of a letter from Lieut. A. Bronson, U. S. N., ordnance officer of the U. S. S. Montana, dated December 3, 1909, you request my decision as to the right of F. C. Zastrow, boatswain's mate, first class,

to be paid his share of a gunnery prize under circumstances stated by Lieutenant Bronson as follows:

"F. C. Zastrow, boatswain's mate, first class, of this vessel recently became eligible, as captain of a gun's crew winning a Navy prize on record target practice, to receive a gunnery prize amounting to $11.46, payable from the appropriation Gunnery exercises,' 1910. In compliance with regulations the amount of the prize was credited to Zastrow's account on the pay rolls, but the pay officer of this vessel then decided that he could not properly pay Zastrow his prize money on special money requisition, because of the fact that Zastrow is in debt to the Government owing to a checkage of his pay by sentence of a court-martial."

By your reference you state:

"The court-martial sentence referred to in the within letter reads as follows: 'Solitary confinement on bread and water for thirty (30) days, with full ration every third (3d) day, and to lose pay amounting to one hundred and forty-seven dollars and forty-seven cents ($147.47).'

"By Navy Department General Order No. 24, July 1, 1909, it was provided:'(3) Loss of pay for both summary and deck courts should be expressed in dollars and cents, not days' pay, and should be based upon the actual pay, not including extras for mess cook, gun pointer, acting coxswain, etc.' This order is in accordance with Comptroller's decision of May 27, 1908, in which it was held that the word 'pay' as used in the act of May 13, 1908, includes only 'the base pay of the enlisted men and * * * such pay as is permanent.' As summary courts-martial are authorized by the Articles for the Government of the Navy to impose forfeiture of pay only, it follows that the court in this case could not legally have sentenced Zastrow to lose any cash prize to which he might become entitled for target practice, even had it so intended.

"In view of the Attorney-General's opinion of November 7, 1906 (26 Op., 77), section 1766 of the Revised Statutes, referred to in the preceding indorsement hereon, has no application to this case.'

A sentence imposing a forfeiture affects only the thing forfeited. Where pay only is forfeited, only pay is affected, and where allowances only are forfeited pay is not affected. The indebtedness created by the sentence is of the thing forfeited and other credits due or becoming due the man should not be checked.

As the sentence in Zastrow's case decreed a forfeiture of pay only, the question for determination is whether or not the share of Zastrow in the gunnery prize involved is pay.

These prizes for the current fiscal year are authorized in the naval appropriation act of March 3, 1909 (35 Stat., 756), not under "Pay of the Navy," but under "Bureau of Navigation," as follows:

"Gunnery exercises: Prizes, trophies, and badges for excellence in gunnery exercises and target practice; *

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The prizes are awarded in accordance with chapter 12 of "Instructions for Target Practice," as follows:

"Prizes for excellence in gunnery are awarded in accordance with the following instructions: A first, second, or third prize will be awarded to the best gun crew of each distinct type of gun on board each ship.

"First, second, and third prizes will be awarded to the best gun crews of the various calibers and types in the entire Navy."

The award seems to be clearly a "prize" as defined by Webster, as

"That which is obtained against the competition of others; anything carried off as the result or award of a contest; the thing striven for; and hence, anything offered to be competed for, or as the inducement to or reward of effort."

"Pay" in a very broad sense may be held to be all that is included in the terms "compensation," "emoluments," and even "perquisites," but in naval and military affairs the word usually has a more limited sense and has generally been held to mean salary or wages for services, and distinguished from allowances, the other form of compensation.

It is a well settled rule of law that penal statutes are to be construed strictly. (23 Am. and Eng. Enc. of Law, p. 375.) Zastrow's sentence was by a summary court-martial. These courts were created by section 1624 of the Revised Statutes, known as Articles for the Government of the Navy. Such courts are empowered by article 30 to sentence petty officers and persons of inferior ratings, among other things, to "loss of pay." Applying the rule as to the strict construction of penal statutes the "pay" authorized to be forfeited

must be held to be pay in its strict sense, and this can not include prizes.

I am therefore of opinion that Zastrow's share in the gunnery prize was not forfeited by his court-martial sentence.

As the sentence did not create a general indebtedness, but only against his pay, section 1766 of the Revised Statutes referred to in your endorsement, quoted above, has no application in my opinion to probibit the payment of the prize awarded. The prize awarded should be paid.

ADDITIONAL PAY OF ENLISTED MEN OF THE NAVY DESIGNATED AS NAVY MAIL CLERKS AND ASSISTANT NAVY MAIL CLERKS. When enlisted men of the Navy take the required oath and enter upon their duties as Navy mail clerks and assistant Navy mail clerks, as provided in the act of May 27, 1908 (35 Stat., 417), by order of their commanding officer, and are recommended by said officer for designation from the date on which they entered upon their duties, which recommendation is subsequently approved by the Secretary of the Navy and the designation made by the Postmaster-General, such enlisted men are entitled to the additional pay provided for in the act of May 27, 1908, supra, from the date on which they took the oath and entered upon their duties.

Decision by Assistant Comptroller Mitchell, January 15, 1910:

Benoit Joseph Ellert, chief yeoman, U. S. Navy, appealed December 6, 1909, from the action of the Auditor for the Navy Department in disallowing, by settlement No. 99920, dated November 29, 1909, his claim for pay as assistant Navy mail clerk, on board the U. S. S. Maine, from December 10, 1908, to June 5, 1909. The Auditor disallowed the claim because Ellert took the oath required before the date of his designation as such clerk by the Postmaster-General. The Auditor bases the disallowance upon decisions of this office of September 18, 1909 (50 Ms. Comp. Dec., 998), and October 19, 1909 (51 id., 314), and 8 Comp. Dec., 521.

The act of May 27, 1908 (35 Stat., 417), providing for navy mail clerks and assistant navy mail clerks, so far as necessary for consideration in this case, is as follows:

"That enlisted men of the United States Navy may, upon selection by the Secretary of the Navy, be designated by the Post-Office Department as 'Navy mail clerks' and 'assistant navy mail clerks,'

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"Each mail clerk and assistant mail clerk shall take the oath of office prescribed for employees of the postal service and shall give bond to the United States in the sum of one thousand dollars for the faithful performance of his duties as such clerk, * * *They shall receive as compensation for such services from the Navy Department, in addition to that paid them of the grade to which they are assigned, such sum in the case of mail clerks not to exceed five hundred dollars per annum, and in that of assistant mail clerks not to exceed three hundred dollars per annum, as may be determined and allowed by the Navy Department."

General Order No. 74, Navy Department, of June 7, 1908, provides rules for carrying the above provision into effect. Paragraph 8 of the order is as follows:

"8. Commanding officers shall recommend to the Secretary of the Navy competent and desirable enlisted men of the Navy under their command to render service as navy mail clerks and assistant navy mail clerks, and the names of those selected will be submitted to the Post-Office Department for designation. The department shall be informed by letter of the date of the execution of the oath of office of each naval mail clerk and assistant navy mail clerk and of the date of termination of such service."

The letter of W. B. Caperton, captain, commanding officer, U.S. S. Maine, to the Secretary of the Navy, dated on board the Maine, North River, New York, December 10, 1908, recommending Ellert for designation is in part as follows:

"1. In accordance with Departmental General Order No. 74, dated June 27, 1908, governing the recommending and appointing of Navy mail clerks and assistant Navy mail clerks: I have to respectfully recommend that Marcus E. West, chief yeoman, U. S. Navy, be appointed as Navy mail clerk, and Benoit J. Ellert, chief yeoman, U. S. Navy, be appointed as assistant Navy mail clerk for the vessel under my command.

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"6. In order to immediately facilitate the efficient handling of the mails aboard this vessel, I have directed West and Ellert to take and subscribe the required oath of office to-day, which are inclosed herewith; and it is respectfully requested that should this recommendation be approved by the Navy Department, and confirmed by the Post-Office Department, that their appointments as Navy mail clerk and assistant Navy mail clerk may begin from the date of taking of the oath of office."