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States v. Saunders, 120 U. S., 129; Bartlett v. United States, 197 U.S., 230; Woodwell v. United States, 214 U. S., 82; Evans v. United States, 226 U. S., 567.) The President's letter of appointment is addressed to Mr. Richards as “ disbursing clerk, Treasury Department.” It does not provide for compensation, and the apparent intent and purport of the appointment is to impose this service upon Mr. Richards as an added duty under his appointment as disbursing clerk of the Treasury Department. (Woodwell v. United States, su pra.)

Under no circumstances could compensation for his services in disbursing the Tariff Board appropriation be lawfully paid to Mr. Richards unless he held, as disbursing agent for the board, a separate place or employment with compensation fixed by law or by regulation.

Compensation was not fixed by law nor by the letter of appointment. It is stated, as a fact, that the President authorized the Tariff Board to fix the salaries of all persons employed under the act except the salaries of members of the board. The only evidence bearing on the matter of compensation to be paid to Mr. Richards for disbursing these appropriations is the following letter:

“ JUNE 29, 1912. “ Mr. W. S. RICHARDS, Disbursing Agent, Tariff Board,

Washington, D.C. “DEAR SIR: This is to confirm the verbal arrangement had with you by the Tariff Board under the terms of which you were to receive as compensation for your services as disbursing agent for the Tariff Board the following:

“ From date of appointment by the President, November 26, 1909, to June 30, 1911, at the rate of five hundred dollars per annum ($500).

“From and after July 1, 1911, at the rate of three hundred dollars per annum ($300).

“ The said compensation to be paid from moneys appropriated for carrying into effect section 2 of the tariff act approved August 5, 1909. * Respectfully,

* (Signed) HENRY C. EMERY, Chairman." This letter merely evidences a prior oral understanding of uncertain date that Mr. Richards should receive compensation for these services. The compensation is a matter of personal arrangement, and the letter therefore does not fix the compensation of the position of disbursing agent and is not equivalent to a regulation fixing said compensation.

Payment of the salary in question is prohibited by sections 1764 and 1765, Revised Statutes.

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CONSTRUCTIVE SERVICE PAY TO OFFICERS OF THE NAVY ON APPOINT

MENT FROM CIVIL LIFE.

A midshipman of the Navy who, previous to his resignation on account of

physical disability, makes application for permission to take the examination for appointment as assistant paymaster in the Navy, takes such examination, passes, and is duly appointed, is not appointed “ from civil life" within the meaning of the act of March 3, 1899, so as to entitle him to a credit in computing his pay of five years' constructive service.

а.

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Decision by Comptroller Downey, March 17, 1914:

E. H. Barber, assistant paymaster, United States Navy, applied February 21, 1914, for a revision of the action of the Auditor for the Navy Department in settlement No. 93509, dated November 17, 1913, disallowing his claim for five years' constructive service in computing his pay as assistant paymaster from September 4 to 30, 1912, under the provision contained in section 13, act of March 3, 1899 (30 Stat., 1007), as follows:

that all officers, including warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years' service."

The auditor disallowed the claim because

“ Claimant to be entitled to pay as an assistant paymaster with the rank of ensign after five years (constructive service), under section 13 of the act of March 13, 1899, must have been appointed from civil life. By evidence in the hands of the auditor there was no intention on the part of claimant to detach himself finally from the naval service of the United States. His request of April 29, 1912, to be examined for the Pay Corps of the Navy, while he was yet a midshipman, negatives any intention on his part to enter civil life. Any thoughts he might have had of a livelihood outside the naval branch were only in case all efforts to remain within it failed and he had to consider the outside as a last resort. The interval between the date of claimant's resignation as a midshipman and his appointment as assistant paymaster is, under the circumstances, not considered as breaking the continuity of his service. (See 14 Comp., 608.).”

The appellant states: “This appeal is submitted as being entirely distinct from the case of Baker, Comptroller's Decision XIV, 608, in that my resignation was demanded by the Navy Department under threat of dismissal, and it was accordingly tendered. My resignation as a midshipman, United States Navy, was not tendered in order to accept appointment as assistant paymaster in the Pay Corps of the Navy. My mental, moral, and physical qualifications for such appointment had not been determined, nor was I even designated to appear for examination for appointment at the date of resignation. Entrance into the Pay Corps was entirely problematical and in accordance with section 1397, Revised Statutes.

“I was in no way restored or reappointed to the service, as in the case of Stirling, Comptroller's Decision of February 29, 1912.

“I fail to see that the auditor's contention relative to my desire to remain in the service as a line officer or to reenter the service as a staff officer has any bearing on the case.

"In reference to paragraph 6 of the auditor's letter attention is respectfully invited to the case of Crowell, Comptroller's Decision, December 20, 1907, XIV, 393."

It appears that appellant was appointed a midshipman at the Naval Academy August 3, 1908. He failed to pass the required annual physical examinations in 1911 and 1912 on account of defective hearing, but was permitted to finish the course at the academy, with the understanding that he would resign upon its completion. On April 29, 1912, while a midshipman, he requested permission to take the examination for appointment as assistant paymaster in the Navy, and on May 4, 1912, was advised that his request would be given due consideration when applicants were being selected to take the examination. Presumably, he graduated with his class June 7, 1912. On July 10, 1912, the superintendent of the Naval Academy, in accordance with instructions from the Secretary of the Navy, directed appellant to tender his resignation as a midshipman immediately with the alternative of being dropped. He accordingly tendered his resignation, which was accepted on July 15, 1912. The next day (July 16) he was authorized to take the examination for appointment as assistant paymaster, to be held July 22, 1912, at the navy yard, Washington, D. C. He passed the examination and was commissioned on August 28, 1912, as an assistant paymaster in the Navy, with the rank of ensign, from August 22, 1912, and he accepted the appointment on September 3, 1912. His bond was approved September 4, 1912.

The case of Baker (14 Comp. Dec., 608), cited by the auditor, is similar to the present case. Baker, like the appellant, was a midshipman at the Academy and failed to pass his physical examination on account of defective hearing. He was therefore requested to tender his resignation. He made application for transfer or appointment to the Civil Engineer Corps of the Navy, and requested that the matter of his resignation as midshipman be suspended until his application had been acted on. This request was granted, and after he had been examined and found qualified, his resignation previously tendered was accepted.

It was said in the decision (p. 612):

“ The resignation was not accepted until October 5, 1906. But before it was accepted the application for transfer or appointment to the Civil Engineer Corps had been approved by the Secretary of the Navy and Mr. Baker had passed the required physical examination for such transfer or appointment. Before its acceptance it was in

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the mind of the Secretary of the Navy and in the mind of the appellant that he should continue in the service, but in another branch thereof; there was no thought of retiring from the naval service and going into civil life, and the mere fact that in the ordinary course of departmental business a few days elapsed between the formality of the acceptance and the formality of transfer or appointment does not in my opinion have the effect to bring him into the Navy from civil life within the meaning of the above provision of the statute so as to entitle him to be credited for computing his pay with five years' service.

“He was instructed and trained at the Naval Academy at the expense of the Government and for the time he was there is entitled to be credited in computing his longevity pay,

“The purpose of the statute allowing officers appointed to the Navy from civil life to be credited for computing their pay with five years' constructive service, was to place them on an equal footing in computing longevity pay with officers who graduate at the Naval Academy. Other considerations enter into the case here presented than were involved in the case of Crowell (14 Comp. Dec., 393), which distinguishes the one from the other. Crowell did not graduate at the Naval Academy, and the facts showed that he was out of the service when he received his appointment as assistant paymaster.”

The two cases differ in this in the Baker case it was definitely determined that he would be appointed as assistant civil engineer before his resignation as midshipman was accepted, while in the present case the matter of appointment at the time of the acceptance of appellant's resignation had not definitely been determined. However, it had been determined to allow him to take the examination for appointment as assistant paymaster which is evidence of the intention to appoint him if he should be found qualified on examination. Baker was also actually out of the service a shorter time than the appellant in the present case. These differences, however, are not decisive of the question. The crucial test is the intent of the parties. Appellant knew that he could not remain in the line of the Navy, and by making application for examination for appointment in the Pay Corps, where presumably the physical requirements are not so strict, he evidenced his desire and intention to continue in the service. The department evidenced its intention to continue him in the service, provided he should be found qualified, by granting his request. The delay was only that necessarily incident to the reentry under the circumstances, and does not have the effect to bring him into the Navy from civil life within the meaning of the above provision of the statute so as to entitle him to be credited for computing his pay with five years' service. (See Alger v. United States, 151 U. S., 365, 385; United States v. Thornton, 160 U. S., 654; Stirling v. United States, No. 31507 Ct. Cl., decided April 14, 1913; 18 Comp. Dec., 663; 66 MS. Comp. Dec., 281, 292, July 24, 1913; id., 489, July 30, 1913; 67 id., 322 October 21, 1913.)

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PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE.

Payment, from a lump-sum appropriation, of a per diem in lieu of subsistence

in the form of a commuted reimbursement of living expenses is unauthorized unless specifically provided for by law, and such payments may be made only when expressly provided for as a part of compensation.

Comptroller Downey to G. F. Graham, disbursing clerk, Interstate Commerce Commission, March 17, 1914:

I have your letter of March 10, 1914, inclosing voucher in favor of Henry D. Lyon, signal inspector, for per diems in lieu of subsistence and transportation from January 1 to 31, 1914, while employed in the field away from his official headquarters, and requesting my decision as to whether you are authorized to pay him the per diem allowance for January 1, and also from January 14 to 29, during which period he was at his home at Montrose, N. Y., under orders from the commission.

The facts are further stated in your letter, as follows:

“ The official station or headquarters established by the commission for this inspector is Washington, D. C., but his work is performed entirely in the field, with an occasional visit to Washington, D. C., on official business. It is noted in Mr. Lyon's account that he was at Montrose, X. Y., on January 1, and also from January 14 to 29, where he maintains his home, and during that period he was employed in checking plans and specifications of train-control systems and other safety devices. Mr. Lyon, at his personal expense, has installed at his residence laboratory and mechanical facilities for conducting such investigations and tests, and was ordered to his home for that purpose.'

It is understood that Mr. Lyon is a block-signal inspector, at $1,800 per annum, to which position he was transferred on January 1, 1914, from the safety-appliance inspector's roll, and that this employment was made subject to and under fiscal regulations of the commission dated April 14, 1913, which provide in part as follows:

“ 2. Per diem will be allowed employees, in addition to their regular salaries, when traveling under orders of the commission and while away from their official headquarters, Sundays and legal holidays included, during continuous duty.”

It appears that upon the days above set forth on which Mr. Lyon was employed at Montrose, N. Y., he was away from his official headquarters under orders of the commission, and is therefore entitled to the per diem of $1.50 fixed by the commission in its order dated April 14, 1913, for each of said days, and you are authorized to pay the same if the voucher is properly certified to and approved.

This conclusion is predicated solely on a consideration of the question as to whether Mr. Lyon is entitled to per diem for the particular time and under the particular circumstances in question, assuming

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