DECISIONS

OF THE

COMPTROLLER OF THE TREASURY.

DETERMINATION OF SUFFICIENCY OF EVIDENCE IN CLAIMS UNDER SECTION 8 OF THE ACT OF MAY 4, 1882 (22 STAT., 57).

The question as to sufficiency of evidence to substantiate a claim of a minor child of a deceased surfman, under section 8 of the act of May 4, 1882 (22 Stat., 57), is one for the determination of the accounting officers and an opinion rendered thereon by the Surgeon General, Public Health and Marine-Hospital Service, is not conclusive. As to sufficiency of evidence, see opinion.

Decision by Comptroller Downey, July 7, 1913:

Roy L. and Herbert L. Davis, minor children of Samuel N. Davis, deceased, a former surfman at the Bodie Island Life-Saving Station, Wanchese, N. C., appealed June 9, 1913, from the action of the Auditor for the Treasury Department in settlement No. 30393, dated October 9, 1912, in disallowing their claim of $1,200 for benefits under the provisions of section 8, act of May 4, 1882 (22 Stat., 57), as follows:

"SEC. 8. That if any keeper or member of a crew of a life-saving or lifeboat station shall hereafter die by reason of perilous service or any wound or injury received or disease contracted in the LifeSaving Service in the line of duty, leaving a widow, or a child or children under sixteen years of age, such widow and child or children shall be entitled to receive, in equal portions, during a period of two years, under such regulations as the Secretary of the Treasury may prescribed, the same amount, payable quarterly, as far as practicable, that the husband or father would be entitled to receive as pay if he were alive and continued in the service: Provided, That if the widow shall remarry at any time during the said two years, her portion of said amount shall cease to be paid to her from the date of her remarriage, but shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any; and if any child shall arrive at the age of sixteen years during the said two years, the payment of the portion of such child shall cease to be paid to such child from the date on which such age shall be attained, but shall be added to the amount to be paid to the remaining beneficiaries, if there be any."

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This section was amended by the act of March 26, 1908 (35 Stat., 46), but said amendments have no bearing on the claim in question. The facts as they appear from the papers in the case are as follows: On August 22, 1891, when Samuel N. Davis made application for reenlistment as a surfman, J. E. Wood, acting assistant surgeon, Marine-Hospital Service, certified "that he is physically sound.”

On September 1, 1891, said Davis reenlisted as a surfman, and on September 3, 1891, he was taken sick and became unfit for duty. He continued unfit for duty, but was continued on the rolls until October 31, 1891, when he was discharged.

On October 3, 1891, J. E. Wood, acting assistant surgeon, reported as follows:

"ELIZABETH CITY, N. C., October 3, 1891.

"To SUPERINTENDENT OF THE LIFE-SAVING SERVICE.

"DEAR SIR: S. N. Davis, a surfman in Bodie Island Life-Saving Station came to me this a. m. for the purpose of being examnied relative to his discharge from the service. From what I can learn from the history of his case I think he had an attack of malarial fever, attended with muscular rheumatism in the left shoulder and back, and from fear of a return and from his physical appearance at this examination would advise his resignation be accepted.

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Respectfully,

"J. E. WOOD, "Acting Assistant Surgeon."

While employed as such surfman, Samuel N. Davis was paid a salary of $60 per month during the active season from August 1 to May 31. He died on March 12, 1895.

Per settlement No. 12890, dated October 19, 1909, payment was made to his administrator in the amount of $95 for pay from September 4 to October 31, 1891, under provisions of section 7 of said act of May 4, 1882, on account of disability incurred in line of duty.

The claim now under consideration is presented for the benefits accruing for the period of two years after the death of said surfman (Mar. 13, 1895, to Mar. 12, 1897), under the provisions of section 8 of said act. On March 27, 1912, by direction of the General Superintendent of the Life-Saving Service, said claim was referred to the Surgeon General, Public Health and Marine-Hospital Service

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with the request that he will state hereon whether, in his opinion, the inclosed evidence of death, and that it resulted from disease contracted in the line of duty in the Life-Saving Service should be considered sufficient."

On March 29, 1913, it was returned with the following indorse-`

ment:

"Respectfully returned to the General Superintendent Life-Saving Service with the opinion that the evidence of death herewith

submitted, and that it resulted from disease contracted in the line of duty in the Life-Saving Service should be considered sufficient. "By direction of the Surgeon General.

"PAUL PREBLE, "Assistant Surgeon."

Is it sufficiently shown that Samuel N. Davis died from disease. contracted in the Life-Saving Service?

In section 7 of the same act providing for continuance on the rolls in case of disability it is provided that disability shall be determined in such manner as shall be prescribed in the regulations of the service. It is notable that no such provision is contained in the section under which this claim is filed. The auditor rejected the claim bethe evidence submitted does not substantiate a just and equitable claim against the Government under the provisions of section 8," etc. The question then is before this office.

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The surgeon, whose opinion was asked as to the sufficiency of the evidence on the question under consideration, might have given a binding opinion on a similar question under section 7, if that was the method prescribed in the regulations of the service for the determination of that question, but I find no such authority vested in him in connection with the determination of this essential question under section 8.

It is to be observed that on the 22d day of August, 1891, in connection with an application for reenlistment, the examining surgeon found and certified that the applicant was "physically sound."

He reenlisted on September 1 and was taken sick on September 3 and did no duty thereafter, but one day of possible service intervening between the day of his reenlistment and his illness. He applied for a discharge, saying "there is nothing I have against the service, only it don't agree with my health and will be injurious to it at present," and the examining surgeon certified that he "looked as if he had been sick," and that, from the history of the case, he concluded it must have been "an attack of malaria with acute rheumatism in his shoulder," and that he advised his resignation because he feared "the exposure from his duties would cause a return of his trouble."

He died March 12, 1895, about three and a half years afterwards. The attending physician first visited him professionally "during the middle or latter part of 1894," nearly, or perhaps, fully three years after his retirement, and found him suffering from some sort of lung trouble, which he diagnosed as chronic bronchitis, to which diagnosis he held for some time, but finally concluded that "he must have a severe case of tuberculosis.”

There is no connection between the ailment and the service except the reported statement of the patient that he had contracted a cold.

during his service. The other testimony is simply as to his inability to work after he returned to his home from the station and his condition thence to the time of his death.

His beneficiaries may not be estopped by his application for reenlistment and the result of his physical examination then had as to any claim predicated on disease theretofore contracted, but so far as the evidence bearing on the question is concerned we certainly are forced to assume that he was sound physically at the time of his reenlistment.

There is no evidence that he was subjected to any exposure on the 1st day of September, the day of his reenlistment, or on the next day, or on the third before he was taken sick. The only testimony as to that illness is that he had an attack of "malarial fever attended with muscular rheumatism in the left shoulder." Three and one-half years after that illness he died, according to the testimony, of tuberculosis.

Possibly strict proof ought not to be required in cases of this kind, but it ought at least be sufficient to lead us reasonably to the necessary conclusion, and in this case it is but little, if any, better than guesswork to say that the disease of which this man died was contracted in the service.

I have very grave doubts about the correctness of the construction heretofore put upon this statute, but since the conclusion on the question discussed must of itself control the result, it is not necessary to consider other questions.

The disallowance by the auditor is affirmed.

PURCHASE OF SUPPLIES FOR POSTAL SERVICE.

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The postal service is not an executive department or other Government establishment in Washington" within the meaning of the act of June 17, 1910 (36 Stat., 531), therefore the purchase of supplies for such service may be made independently of said act.

Comptroller Downey to the Postmaster General, July 7, 1913:

I am in receipt of your letter of June 30, 1913, requesting my decision of a question therein stated as follows:

"For my guidance in procuring supplies for the postal service please advise me whether this department may lawfully make contract for supplies for said service independently of the act of June 17, 1910, the supplies desired being like the standardized supplies included in the general supply schedule or similar thereo, and to be delivered in Washington either for consumption by the post office and the other postal service agencies here, or for storage and subsequent reshipment to post offices and other postal service agencies located in different parts of the United States.

"The postal service is a field service made up of over 50,000 post offices and other agencies, only three or four of which are located in Washington. Although it is under the supervision of the Postmaster General, it is not a part of the Post Office Department proper (see 11 Comp., 601). Separate appropriations are made for its support, and Congress has provided a different method for purchasing its supplies than has been provided for the purchase of supplies for the executive departments and Government establishments in Washington."

The act of June 17, 1910 (36 Stat., 531), is limited in its scope and application to "the executive departments and other Governments establishments in Washington" (decision of this office dated June 20, 1913, 19 Comp. Dec., 834), and therefore has no application to the postal service, which is not an executive department or other Government establishment in Washington, but a field service.

For the reasons stated at some length in the decision cited supra, your question is answered in the affirmative.

APPOINTMENT OF ADMINISTRATOR BY SUPREME COURT OF THE DISTRICT OF COLUMBIA.

An administrator appointed by the Supreme Court of the District of Columbia can not be recognized as the "duly appointed" administrator of a deceased Army officer as contemplated by the act of June 30, 1906 (34 Stat., 750), where it appears that the domicile of the officer at the time of his death was not in the District of Columbia, and that there were no debts and no assets in said jurisdiction other than the claim against the United States.

Decision by Assistant Comptroller Warwick, July 7, 1913:

By settlement No. 488314, dated November 8, 1912, the Auditor for the War Department disallowed claim of Allen S. Mebane et al. as the nephews and nieces of John A. Mebane, formerly a cadet at the United States Military Academy and second and first lieutenant, Artillery. The claim was for longevity pay and allowances due the officer and was disallowed by the auditor for the reasons stated as follows:

"Having failed to file the necessary evidence to complete the case, the claim is therefore disallowed."

The evidence which the auditor had called for was a full and complete family history of the officer, as that he left surviving him no widow nor child; the names and dates of death of his father and mother; the names of all the brothers and sisters he ever had, with the names and dates of death of those who had died and of the children, if any, they left surviving them. To this request for evidence