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Each of said apprentices after enlistment had been furnished an outfit of clothing not exceeding in value $45, as authorized by the act of March 1, 1889 (25 Stat., 781), which provides:
"That in order to encourage the enlistment of boys as apprentices in the United States Navy, the Secretary of the Navy is hereby authorized to furnish as a bounty to each of said apprentices after his enlistment, and when first received on board of a training ship, an outfit of clothing not to exceed in value the sum of $45."
In execution of said act article 1395 of the Navy Regulations, 1900, was established, which was amended by General Order No. 52, dated July 1, 1901.
The said order provides:
"An outfit of clothing not exceeding in value the sum of forty-five dollars shall be furnished to apprentices and landsmen for training; apprentices to receive the outfit after arrival at a training station and landsmen for training after reporting on board a receiving or training ship or at a training station. When not transferred immediately to a training station, apprentices may be furnished upon enlistment with such portions of the outfit as are necessary for health and comfort. Landsmen for training, discharged for disability not incurred in the line of duty, or by request, during the first six months of enlistment, shall refund the full value of outfit received, and half the value thereof if so discharged between six months and one year after enlistment. Apprentices discharged for such disability, or by request, during the first three months of enlistment, shall refund the full value of outfit received and one-half the value thereof if so discharged between three months and one year after enlistment.
"Where landsmen for training or apprentices are discharged after one year from date of enlisting, or for disability incurred in the line of duty, no refund of cost of outfit shall be required."
The said apprentices having been discharged in less than one year after date of enlistment on account of physical disability not incurred in the line of duty, and the claimant having failed to check their accounts with the value or onehalf the value of the clothing previously furnished them as a bounty, the Auditor made the said disallowances, being the amounts paid the said apprentices on discharge in excess of what they would have been entitled to had said checkages been made in obedience to said order.
It appears that 24 copies of said General Order No. 52 were received at the naval training station, Newport, R. I., on
August 28, 1901, and were distributed shortly afterwards among the officers attached to said station, a copy thereof being placed in the claimant's office, he being absent at the time on special duty at Port Royal, S. C. He returned on September 10, 1901, and as the said order had been misplaced, he did not see it until October 17, 1901.
The claimant contends that as he was not aware of the provisions of said order until after he had closed all the said accounts, excepting in the cases of J. W. Wells and S. A. Ellis, discharged October 27, 1901, and November 27, 1901, respectively, he should not be held accountable for not obeying them, and, furthermore, that the portion of the said order requiring apprentices discharged within one year after enlistment for disability not incurred in the line of duty to refund the cost or one-half the cost of the outfit previously furnished them, is inconsistent with law and therefore void.
The question as to whether the claimant is entitled to credit for the said disbursements made by him depends upon whether the above quoted regulation is valid.
At the request of this Office this latter question was submitted by the Secretary of the Treasury to the AttorneyGeneral and in response he has given his opinion dated November 8, 1904, in which he holds that the said regulation is void.
In said opinion the Attorney-General states:
"It is necessary, in order to determine whether the regulations in question are valid, first to examine the language of the statute above quoted, for the purpose of ascertaining whether that language is mandatory or permissive.
"The purpose which Congress had in mind when it enacted this legislation was to encourage boys to enlist as apprentices in the United States Navy, and with this end in view Congress authorized the Secretary to furnish as a bounty to each of said apprentices after his enlistment, and when first received on board of a training-ship, an outfit of clothing not to exceed in value the sum of forty-five dollars.
"Taking up the particular point of interpretation, the question to be considered is whether the words is hereby authorized' are mandatory or permissive. The general rule is that, where Congress confers a power upon an executive officer which involves the rights or interests of private individuals or the general public, the language used by Congress is to be considered as imposing a duty rather than a discretion. While the ordinary meaning of the language above quoted is
generally permissive, yet as used in law it is often mandatory and equivalent to imposing an imperative obligation.
"Congress undoubtedly did not intend that the Secretary of the Navy should have such discretionary power with respect to furnishing the bounty authorized by the act here under consideration as would enable him to furnish it in one case, and in another case to decline to furnish it.
"In a number of cases decided in the Federal courts, the word 'may,' which is practically synonymous with the word 'authorize,' has been held to be mandatory and not permissive when embodied in a statute.
"In the case of the Supervisors v. United States (4 Wall., 435, 445) in which the phrase 'may, if deemed advisable,' was under consideration, the court said:
"The counsel for the respondent insists, with zeal and ability, that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors, and that judicial action can not control the discretion with which the statute has clothed them. We can not concur in this view of the subject.'
"The rule stated by Black on Interpretation of Laws (p. 156), is as follows:
Thus it is well settled that "may" in any statute is to be construed as equivalent to "shall" or "must" when the public interests or rights are concerned, and when the public or third persons have a right de jure to claim that the power granted shall be exercised. "The result seems to be," says a learned writer, "that when a public power for the public benefit is conferred in enabling terms, a duty is impliedly imposed to exercise it whenever the occasion arises. These terms are then, in effect, invariably invested with a compulsory force." (See, also, 15 Op. A. G., 621; 24 Id., 594; Sedgwick on Construction, etc., 375, 377.)'
"In my opinion the language used by Congress in the act here under consideration is to be construed as imposing upon the Secretary of the Navy an imperative obligation and not mere discretionary power. The whole purpose of the act is to encourage the enlistment of boys as apprentices in the United States Navy,' and upon the Secretary of the Navy is imposed the duty of executing the provisions of the statute.
"Taking up now the validity of the regulations issued by the Secretary of the Navy on July 1, 1901, in pursuance of the Act of Congress bereinbefore quoted.
"Section 1547 of the Revised Statutes provides:
"The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, with such alterations as he may since have adopted, with the approval
of the President, shall be recognized as the regulations of the Navy, subject to alterations adopted in the same manner.'
"It is a well-settled rule of judicial construction that the regulations issued by the Secretary of the Navy, in conformity with the section of the Revised Statutes above quoted, are valid and have the force of law, when they are not inconsistent with the statute under which they are issued by the Secretary. "The regulations here under consideration provide that any apprentice 'discharged for disability not incurred in the line of duty * during the first three months of enlistment, shall refund the full value of outfit received and one-half the value thereof if so discharged between three months and one year after enlistment.' The act of Congress which authorizes the Secretary of the Navy to furnish a bounty to apprentices does not contain any language from which the inference could be drawn that apprentices discharged within one year after date of enlistment shall refund any part of the clothing outfit previously furnished them as a bounty. Congress has offered the bounty as an inducement to boys to enlist as apprentices in the United States Navy, and when the offer is accepted by any person, the right to such bounty accrues when the applicant is first received on board of a training ship.
"In my opinion it would be an erroneous interpretation of the statute to hold that, in case an apprentice were discharged within a year after the date of his enlistment for disability not incurred in the line of duty, he would be obliged to refund any portion of the bounty furnished him at the time of enlistment. This disability may or may not be incurred through any fault or negligence on the part of the apprentice, but according to the regulations here under consideration he would be compelled to refund the bounty, or a portion thereof, if he were discharged for such disability, in view of the fact that he would be incapacitated for further service.
"In the case of Glavey v. United States (182 U. S., 595, 605), Mr. Justice Harlan, in delivering the opinion of the court, said:
"The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supplemental to, but not in conflict with, the statutes defining his powers or conferring rights upon others. The contrary has never been held by this court.'
"Webster defines 'bounty' as a 'premium offered or given to induce men to enlist into the public service,' and this appears to be a proper and intelligible definition, indicating very
clearly that a bounty is given as an inducement for services to be rendered, and not as compensation for such services.
"In the absence of any authority whatever in the act of Congress, in pursuance of which the regulations here under consideration were issued by the Secretary of the Navy, I am of the opinion that such regulations, so far as they provide for a refund of the bounty, or any portion thereof, in case an apprentice is discharged for disability not incurred in the line of duty, are inconsistent with law and void.
"It has appeared to me proper thus to determine the case on the merits. But there is another ground on which the conclusion might safely be rested, and which therefore established the view that the regulations are invalid. They were issued on July 1, 1901, and it does not appear that they have ever received the approval of the President, as required by section 1547, Revised Statutes, for all regulations issued since July 14, 1862. Such approval in terms prescribed by the law is manifestly essential to give validity to regulations as having the force of law. * * *
"For the foregoing reasons the question presented in your communication is answered in the negative.
I concur in the opinion of the Attorney-General, and as the said payments made by the claimant were in pursuance of law he is entitled to credit therefor.
Under the view I have taken of this case it is unnecessary to decide whether the placing of the said order in claimant's office was sufficient to charge him with notice thereof. The action of the Auditor is disapproved.
PURCHASE OF TIME BOOKS FOR THE GOVERNMENT HOSPITAL FOR THE INSANE.
"Time books" for the Government Hospital for the Insane are blank books within the meaning of section 87 of the act of January 25, 1895, which provided that all printing, binding, and blank books for the Executive Departments should be done at the Government Printing Office, and therefore the purchase of said time books from private parties is not authorized.
(Assistant Comptroller Mitchell to the Secretary of the Interior, November 18, 1904.)
I have received your communication of October 31, 1904, as follows:
"I have the honor to request a reconsideration of so much of your decision of August 31, 1904, approving the action of