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March 27, 1865, commissioned as captain and assistant quartermaster of volunteers. His service was continuous from August, 1861, to March 27, 1865, on which date he was, by order of President Lincoln, dismissed the service, but on June 9, 1865, an order was issued by President Johnson revoking the order of dismissal and restoring him to his former position; by an order issued from the War Department under date of June 19, 1865, he was assigned to duty as division quartermaster of the First Division, First Army Corps, with the temporary rank, pay, and emoluments of major in the Quartermaster's Department under the act of July 4, 1864. He held the latter position until October 7, 1865, when he was honorably mustered out of the service of the United States; he brought suit to recover pay as a captain and assistant quartermaster of volunteers from March 27, 1865, to June 9, 1865. It was held by the Supreme Court that the effect of the order of March 27, 1865, dismissing Corson from the service, was to sever his relations with the Army, and that he could not regain his position and become entitled to the emoluments of the office which he had held, by means of a subsequent order revoking the order of dismissal and restoring him to his former position.
The principles decided in the above cases are as applicable in cases of removal of civil officers as in cases of removal of officers of the Army.
I have, therefore, to advise you that if the notice of the removal of Mr. Baker was unqualified, and if he received the notice thereof prior to the date of the revocation thereof, you are not authorized to pay him the salary of the office for any period subsequent to the date of his receipt of such notice.
REIMBURSEMENT OF AN OFFICER OF THE MARINE CORPS FOR TRAVELING EXPENSES.
Where an officer of the Marine Corps who was traveling under orders from Cavite, P. I., to Guam, L. I., was notified by telegraph while at San Francisco, Cal., awaiting the arrival of a vessel to Guam, that his order to proceed to Guam was revoked and for him to proceed to the Mare Island Navy-Yard, he will be considered as in the status of a traveler abroad from the time he left Cavite until the receipt of said telegraphic order, and is entitled to reimbursement of necessary expenses incurred by him at San Francisco while awaiting the arrival of the vessel to Guam and prior to the receipt of said telegraphic order.
(Acting Comptroller Mitchell to the Secretary of the Navy, January 12, 1905.)
I have received your letter of the 3d instant, transmitting the claim of G. H. Mather, first lieutenant, United States Marine Corps, for reimbursement of traveling expenses alleged to have been incurred while traveling from Cavite, P. I., to San Francisco, and while at San Francisco, en route to Guam, L. I., in obedience to the following order dated June 11, 1904:
"You are hereby detached from the marine barracks, naval station, Cavite, P. I., and from such other duty as you may be performing, will proceed to Guam, Ladrone Islands, and will report to the governor thereof for duty at the marine barracks there."
It appears that claimant arrived at San Francisco about September 16, 1904, and while awaiting the sailing of a vessel from that port to Guam he received the following telegraphic order dated October 1, 1904:
"Orders to Guam suspended. Proceed without delay to marine barracks, navy-yard, Mare Island, and report to commandant for temporary duty.'
You request my decision as to whether claimant "is entitled to reimbursement for expenses incurred at San Francisco, Cal., in view of the fact that original orders authorizing travel from Cavite, P. I., to Guam, L. I., were suspended while claimant was at San Francisco."
Officers of the Marine Corps are entitled to mileage while traveling under orders in the United States, and actual personal expenses while traveling abroad under orders.
In 10 Comp. Dec., 751, it was held that an officer of the Marine Corps while traveling under orders from Cavite, P. I., to Guam, L. I., via San Francisco, was traveling abroad during the whole journey, and that the expenses incurred at San Francisco while awaiting further transportation was an incident of such travel for which he was entitled to reimbursement.
I am of the opinion that the claimant in the case under consideration was in the status of a traveler abroad from the time he left Cavite until he received the said telegraphic order at San Francisco, suspending the order of June 11, 1904, and
directing him to proceed to Mare Island, and that the necessary expenses incurred by him at San Francisco while awaiting the sailing of a vessel to Guam, and prior to the receipt of the said telegraphic order, was an incident of his travel abroad for which he is entitled to reimbursement.
No opinion is expressed as to the items of the claim or the amount that should be allowed.
LEAVE OF ABSENCE TO CLERKS AT FIRST AND SECOND CLASS POST-OFFICES.
The leave of absence of not exceeding fifteen days in any one fiscal year allowed to clerks at first and second class post-offices by the specialleave act of October 1, 1890, is inclusive of intervening Sundays and legal holidays, notwithstanding Sundays and legal holidays are specifically excluded in computing the annual leave of clerks of the Executive Departments under the act of February 24, 1899.
(Comptroller Tracewell to the Postmaster-General, January 17, 1905.)
I have the honor to acknowledge the receipt of your communication of the 10th instant, wherein you request to be advised as to whether the fifteen days' leave of absence in a fiscal year allowed to clerks in first and second class post-offices who have performed service for one year is inclusive of Sundays and legal holidays or exclusive thereof.
You state that it has been the practice of your Department since the passage of the act of February 24, 1899, excluding Sundays and legal holidays in the computation of the thirty days' annual leave allowed to clerks in the Executive Departments, to compute the fifteen days' annual leave allowed to clerks in first and second class post-offices by the act of October 1, 1890, as exclusive of Sundays and legal holidays, and that you have so proclaimed it in your Postal Guide.
Clerks in first and second class post-offices are governed by the special leave law act of October 1, 1890 (26 Stat., 643), which provides:
"That from and after July first, eighteen hundred and ninety, the clerks and employees attached to first and second class post-offices and the employees of the mail-bag repair shops connected with the Post-Office Department of the United
States, whether employed by the month, day, or otherwise, be allowed leaves of absence, with full pay, for not exceeding fif teen days in any one fiscal year: Provided, That no clerk nor employee be granted a leave under the provisions of this bill until he has performed service for one year."
It is the intent of the Congress which passed said act which must govern in determining the question submitted. In order to arrive at said intent we must look first to the language used and give to it its ordinary and popular meaning.
Unless there is an expressed intention to exclude them, the generally accepted rule is that in the computation of time the intervening Sundays or holidays will be included. (The Mary E. Baird, 97 Fed. Rep., 977; York's case, 1 Abb., U. S., 503; Pressed Steel Car Co. v. Eastern Railway Co., of Minnesota, 121 Fed. Rep., 609; The Tug E. W. Corgas, 10 Ben., U. S., 474; 92 N. W. Rep., 1069; Am. and Eng. Encyclopedia of Law, 2d ed., vol. 28, p. 222; 20 Op. Att. Gen., 718.)
The clause "not exceeding fifteen days in any one fiscal year" in the act of October 1, 1890, supra, interpreted in its ordinary sense, as defined by the courts, mean fifteen days inclusive of intervening Sundays and holidays.
Leave laws in pari materia with this, silent as to Sundays and holidays, have been so construed.
The leave of absence of "not exceeding fifteen days in any one fiscal year" allowed to employees of the Government Printing Office by the act of June 30, 1886 (24 Stat., 91), afterwards extended to thirty days (act of August 1, 1888, 25 Stat., 352), was computed and construed as inclusive of Sundays. (Harrison v. United States, 26 Ct. Cl., 259.)
Likewise, under the leave laws applying to the Executive Departments (acts of March 3, 1883, 22 Stat., 563; March 3, 1893, 27 Stat., 715; March 15, 1898, 30 Stat., 316, 317; July 7, 1898, 30 Stat., 653), prior to the act of February 24, 1899, intervening Sundays and holidays were included in the computation of both annual and sick leave. (5 Comp. Dec., 436; 20 Op. Att. Gen., 717; 22 id., 78.)
Said act of February 24, 1899 (30 Stat., 890), provides:
"That the thirty days' annual leave of absence with pay in any one year to clerks and employees in the several Executive Departments authorized by existing law shall be exclusive of Sundays and legal holidays.”
The effect of the above statute, as construed by this Office, was to take the annual leave only out of the general rule of computation heretofore announced, viz, that of including intervening Sundays and holidays, and to thereafter exclude Sundays and holidays in its computation; but not to change the preexisting laws relative to sick leave, and that it should continue to be computed as before, inclusive of intervening Sundays and holidays. (MS. Dec. vol. 23, p. 329.)
It is the province of Congress to enact laws, not to explain or interpret them. To declare what the law shall be is a legislative power; to declare what the law is or has been is a judicial power. The utmost effect to be given to a second legislative declaration as to what was the true intent and meaning of a statute is to regard it as an alteration of the existing law in its application to future transactions. It can not reverse or affect judicial decisions, or inject into an existing. statute a meaning which the courts have declared that it did not possess, or contrary to its previous judicial interpretation. (Ogden, admr., v. Blackledge, executor, 2 Cranch, 276; Postmaster-General v. Early, et al., 12 Wheat., 148; Union Iron Co., v. Pierce, 4 Bliss, U. S., 327; State of Pennsylvania v. The Wheeling and Belmont Bridge Co. et al., 18 Wheat., 421: Koshkonong v. Burton, 104 U. S., 679; Am. and Eng. Encyclopedia of Law, 2d ed., vol. 26, p. 697.)
The utmost effect to be given to the act of February 24, 1899, supra, is in my opinion to declare what the law shall thereafter be in reference to the annual leave of clerks in the Executive Departments; what the law as to other clerks and other leave was prior to its enactment remains unaffected thereby.
I have therefore to advise you that in my opinion the intent of Congress in enacting the act of October 1, 1890, supra, was to include intervening Sundays and legal holidays in the computation of the fifteen days' leave therein granted, notwithstanding anything contained in the act of February 24, 1899.