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provided further, That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, in his discretion, shall decide to be reasonable, useful, and necessary, and proper for such officer or soldier while in quarters, engaged in the public service, in the line of duty."
The facts in this case appear to be as follows:
The claimant, while in command of the light battery stationed at West Point, in December, 1902, was the owner of the horse in question, which was used by him in the military service of the United States, and that claimant placed said horse in the artillery stables at said station, where he continued to be quartered until said horse was ordered to be killed in May, 1904.
The Secretary of War has certified that it was reasonable, useful, necessary, and proper for the claimant to have had said horse while on duty in the public service.
That in September, 1903, glanders was discovered to exist among the horses in said stables. That from May 18 to 21, 1904, the mallein test was applied to claimant's horse and it was discovered that he had the glanders; and that thereafter in the same month, upon the recommendation of a board of survey and by direction of the commanding officer, the horse was killed for the protection of other public animals.
Brig. Gen. A. L. Mills, Superintendent of West Point Academy, in his indorsement of November 8, 1904, says:
"The officer was not compelled in the first instance to keep his horse in the military stables by the orders of superior military authority. The officer was in command of the light battery stationed at the Military Academy and was authorized to keep his private horses in the military stables. Due to the fact that other stable room was unprovided for his private horses and that his private horses were used by him in the performance of his military duties, it may properly be said that through military necessity he was obliged to keep his horse in the said stables. Subsequent to the discovery that glanders existed among the horses of this stable he was prevented by superior military authority from removing his horse from said stables, or would have been prevented had he made a request or demand to be allowed to remove said horse.
"Glanders was not known to exist in the said stables at the time the horse Billy' was placed in the stables.
The board is of the opinion that the horse suffered from glanders contracted while quartered in the artillery stables.'
"I concur in the opinion of the board and believe that the date when this horse contracted the disease was prior to the date of the first inoculation, November 21 and 22, 1903."
The evidence of Captain Greble is to the effect that while. his horse was in the upper story of the artillery stables, and before he had contracted glanders, he was, by superior military authority, removed to the lower stables and there placed in quarantine with other horses infected with glanders, and that he did not contract the glanders until after he was so placed in quarantine.
It would seem from the above statements that claimant in placing his horse in the stables in question not only exercised such care as an ordinarily prudent man would have exercised in the care of his private horse, but that the placing of said horse in said stables and allowing it to remain there was a military necessity.
It is well known that glanders is an infectious and loathsome disease, dangerous alike to man and beast, and that it is practically incurable. When it became known that the horse had the glanders-an infectious and incurable disease-in order to prevent the disease from spreading and to save the lives of other animals the horse was killed.
I think it sufficiently appears that without any fault or negligence on the part of the claimant the horse contracted the disease under the circumstances stated, and that he was destroyed to prevent the spread of said disease by proper military authority, as already stated. Under the circumstances stated the claimant is entitled to recover the reasonable value of the horse at the time he contracted said disease.
The board of survey recommends that the claimant be reimbursed to the amount of $125 for said horse.
It appears that the claimant paid $76 for this horse at auction about one year before he contracted glanders, and in the absence of other satisfactory evidence as to his value at the time he contracted the disease this might and probably should be taken as a fair measure of his value when he contracted said disease. (3 Comp. Dec., 639; Burke et al. v. Pierce et al., 83 Fed. Rep., 95.)
In 3 Comp. Dec., 639, it was said by my predecessor, in deciding a claim under the above act for the value of a horse lost or destroyed in the military service, that
"The purchase price of an article is more likely to be a fair measure of its value than the estimate placed upon it after the purchaser obtains possession of it. The purchase price should not be exceeded without good cause shown.
Without approving or disapproving the rule as stated by my predecessor, I think it is an established rule of law that the price paid for an article is a proper element to be considered in a proceeding involving its value at a subsequent time. See Burke et al. v. Pierce et al. (supra).
The evidence in this case indicates that this horse was probably bought for less than his fair value at the time and that he was more valuable at the time he contracted the glanders than he was at the time he was bought by the claimant. All the evidence, except the fact that he was bought for $76 less than a year before, shows that he was of the value of $125 at the time he contracted the disease of glanders. In view of the evidence before the board of survey and of the statements of the claimant and Henry M. Dutcher, veterinary surgeon, in response to specific inquiries relating to the value of this horse, from this Office, I am of the opinion. that he was of the value of $125 at the time he contracted the disease of glanders.
The action of the Auditor in disallowing the claim is overruled and the amount of $125 so disallowed is now allowed.
SUBSISTENCE RECEIVED BY RETIRED ENLISTED MEN OF THE MARINE CORPS WHILE INMATES OF THE GOVERNMENT HOSPITAL FOR THE INSANE.
Retired enlisted men of the Marine Corps are a part of the Marine Corps, within the meaning of section 4843, Revised Statutes, which provides for the admission to the Government Hospital for the Insane of insane persons belonging to the Marine Corps.
No deduction should be made from the monthly allowance of $9.50 received by retired enlisted men of the Marine Corps, under the act of March 16, 1896, "in lieu of allowance for subsistence and clothing," on account of the subsistence which they necessarily receive while inmates of the Government Hospital for the insane.
(Assistant Comptroller Mitchell to the Secretary of the Navy, January 19, 1905.)
By your reference of the 16th ultimo I am in receipt of a communication dated December 13, 1904, from Capt. William
G. Powell, assistant paymaster, U. S. Marine Corps, in which he submits the question as to whether Private O'Neill, a retired enlisted man of the Marine Corps, while an inmate of the Government Hospital for the Insane, is entitled to receive the full amount of $9.50 per month allowed by law in lieu of allowance for subsistence and clothing; or whether, while so an inmate and subsisted therein by the Government, a deduction should be made from said $9.50 for subsistence, and if so, the amount thereof.
The acts retiring enlisted men of the Army and of the Marine Corps are the acts of February 14, 1885 (23 Stat., 305), and September 30, 1890 (26 Stat., 804).
The act of February 14, 1885, provides:
"That when an enlisted man has served as such thirty years in the United States Army or Marine Corps, either as a private or as a noncommissioned officer, or both, he shall, by making application to the President, be placed on the retired list hereby created, with the rank held by him at the date of retirement; and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired.”
The act of September 30, 1890 (26 Stat., 804), repeats the above provision and adds thereto a proviso relative to the computation of time for war service in reckoning the thirty years' service necessary for retirement, which proviso is not here material.
Under section 1612, of the Revised Statutes, and the above retirement acts, as construed by the courts and the accounting officers, retired enlisted men of the Marine Corps receive the same pay and allowances as retired enlisted men of the Army. (Digest Second Comp. Dec., vol. 2, sec. 895; 1 Comp. Dec., 136; 2 id., 141; 4 id., 28; 10 id., 555; Kingsley v. United States, 24 Ct. Cl. R., 220; United States v. Kingsley, 138 U. S., 87; Walton v. United States, 31 Ct. Cl. R., 201.)
The allowances" which under said acts a retired enlisted man of the Army was entitled to have commuted to him consisted solely of rations and clothing; surgeons, medicines, hospitals, nurses, fuel, quarters, etc., which were furnished to the troops collectively, and in which they possessed no individual or commutable right, not being included therein. The ration to be taken as the basis of the computation for rations was the regular duty or service ration, 30 cents per
day, as distinguished from the furlough, travel, and other rations allowed under special circumstances and peculiar to the character of the service performed. Enlisted men on retirement were therefore allowed a fixed daily commuted rate of rations of three-fourths of 30 cents, or 224 cents a day. (McKenna v. United States, 23 Ct. Cl., 308.)
At said rate retired enlisted men of the Army and of the Marine Corps continued to be paid until the passage of the army appropriation act of March 16, 1896.
tions, 1895, par. 138.)
The act of March 16, 1896 (29 Stat., 62), provides:
"For pay of the enlisted men of the Army on the retired list, three hundred and eighty-six thousand two hundred and eighty-seven dollars and twenty-five cents: Provided, That hereafter a monthly allowance of nine dollars and fifty cents be granted in lieu of the allowance for subsistence and clothing."
As retired enlisted men of the Army and Marine Corps received the same allowances prior to the passage of the above act, the accounting officers have construed it as in pari materia with former statutes on the subject, and as changing in like manner the allowance to retired enlisted men of the Marine Corps.
By said act a monthly payment of $9.50 was substituted for the former allowance for subsistence and clothing; the former allowance for subsistence was 22 cents per day, and said 22 cents per day was three-fourths of the regular duty ration allowance of enlisted men of the Army at the time of the passage of the retirement acts, supra.
In discussing the question of whether a deduction should be made from said $9.50 for the travel rations or commutation thereof received by a retired enlisted man for travel to his home upon retirement, this office held that
"The act granting the $9.50 per month in lieu of clothing and subsistence operates to repeal pro tanto all statutes by which three-fourths of the allowances to a soldier on the active list can be paid to a soldier on the retired list. Whatever it may be called, he is required to take the increase in his pay as a substitute for all allowances for subsistence and clothing. "The subsistence referred to in said act is, however, clearly limited to the ordinary subsistence and has no reference to subsistence while traveling under orders properly issued. (11 Comp. Dec., 80. See also MS. Dec. to Col. C. H. Whipple, January 17, 1905.)"
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