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The question now for determination is whether the subsistence received at the hospital for the insane was an element entering into the $9.50; if so, it should be checked against it as a double furnishing of the same thing.
If apart from the $9.50, and received by him independently thereof, the further question arises as to whether it is an expense for which he should reimburse the hospital, and which should be deducted from the monthly amount to which he is otherwise entitled.
The Revised Statutes provide:
"SEC. 4838. There shall be in the District of Columbia a Government Hospital for the Insane, and its object shall be the most humane care and enlightened curative treatment of the insane of the Army and Navy of the United States and of the District of Columbia."
"SEC. 4843. The superintendent, upon the order of the Secretary of War, and of the Secretary of the Navy, and of the Secretary of the Treasury, respectively, shall receive, and keep in custody until they are cured, or removed by the same authority which ordered their reception; insane persons of the following descriptions:
"First. Insane persons belonging to the Army, Navy, Marine Corps, and Revenue-Cutter Service."
The law establishing in the District of Columbia a Government Hospital for the Insane has for one of its objects the care and curative treatment of the insane of the Army, Navy, and Marine Corps, and there is nothing in the law that indicates any purpose on the part of Congress that any charge shall be made against any of the insane of the Army, Navy, or Marine Corps while they are patients in said hospital.
Retired enlisted men of the Marine Corps are in my opinion a part of the Marine Corps, within the meaning of the above provisions of the Revised Statutes relative to the establishment of a Government Hospital for the Insane.
No charge has, I am informed, hitherto been made to retired enlisted men of the Army or Marine Corps for treatment in said hospital, nor has any deduction been made on that account from pay and allowances due them as such retired enlisted men.
Congress each year appropriates for the maintenance of this institution, and includes in said appropriation a specific provision for "the support, clothing, and treatment" of the insane of the Army, Navy, and Marine Corps. (Sundry civil
act of April 26, 1904, 33 Stat., 487.) These appropriations are separate from and in no wise under the direction or control of the War or Navy Departments, and in addition to the appropriations made annually for the support of these Departments, including the Marine Corps. The "support" of Private O'Neill while at said hospital, including subsistence, is provided for and payable from the hospital appropriation, supra; that for the payment of his "allowance" as a retired enlisted man, from the naval appropriation act of April 27, 1904 (33 Stat., 347).
Section 4849 of the Revised Statutes provides:
"Whenever it appears in the case of any insane person whose insanity commenced while he was a resident of the District of Columbia, that he is able to defray a portion but not the whole of the expenses of his support and treatment in the Government Hospital for the Insane, the board of visitors of the hospital is authorized to inquire into the facts of the case; and if it appears to the board, upon such inquiry, that such insane person has property and no family, or has more property than is required for the support of his family, then, as a condition upon which such insane person, admitted or to be admitted upon the order of the Secretary of the Interior, shall receive or continue to receive the benefits of the hospital, there shall be paid to the superintendent from the income, property, or estate of such insane person such portion of his expenses in the hospital as a majority of the board shall determine to be just and reasonable, under all the circumstances."
The provisions in the above section have no application to the insane of the Army, Navy, or Marine Corps. The Government provides for the insane of its Army, Navy, and Marine Corps at its own expense; but the law is different as to insane persons resident of the District of Columbia, where it appears that such insane person has property and no family, or has more property than is required for the support of his family, in which case
"There shall be paid to the superintendent from the income, property, or estate of such insane person such portion of his expenses in the hospital as a majority of the board shall determine to be just and reasonable, under all the circumstances.'
I am of opinion that no deduction should be made from the retired pay and allowances of Private O'Neill because of any subsistence which he may receive while a patient in said hospital.
FOLIO FEES OF CLERK OF THE DISTRICT COURT IN OKLAHOMA TERRITORY.
A clerk of the United States district court in the Territory of Oklahoma is not entitled to folio fees for drawing his own affidavit as to the manner of drawing juries; there being no compensation provided by law for such service.
(Decision by Comptroller Tracerrell, January 23, 1905.)
The Attorney-General, upon the administrative examination of the account of N. E. Sisson, clerk of the United States district court for the seventh judicial district of Oklahoma, for the half year ending June 30, 1904, among other things, disapproved and deducted folio fees aggregating $4.05, claimed by the clerk for drawing his own affidavit, "as to the manner of drawing jurors," upon the ground that there was "no fee provided for such service.".
The Auditor for the State and other Departments in the settlement dated September 15, 1904, of the account allowed the fees referred to, whereupon the Attorney-General, by communication filed November 19, 1904, requested the revision of the Auditor's said allowance.
On November 21, 1904, I addressed a letter to Mr. Sisson, notifying him of the Attorney-General's request, at the same time stating that if he desired to reply thereto that he do so by December 12, 1904, otherwise the matter would be taken up and disposed of. To that letter no reply has been received.
These facts are not stated as a basis for any decision upon the merits of the question raised by the Attorney-General, but only to show that claimant has had full opportunity to submit his views thereon.
This question of fees for services performed by this clerk in the drawing of juries, was before me in several of its aspects on the appeal (No. 9751) of Mr. Sisson from disallowances, by the Auditor, in the settlement of his account for the half year ending December 31, 1902, and for the reasons stated in my decision thereon (MS. Dec., vol. 28, p. 439), fees for certain services rendered by the clerk in connection with such drawing were allowed.
Upon examination, however, I find that no fees for drawing his own affidavit were involved in that appeal, because no such
charge was made or claimed in the account then under revision, and upon examination of his accounts for the half years ending June 30 and December 31, 1903, respectively, I find no charge for drawing such affidavits.
Thus it is seen that it has not been the practice of the clerk to make such charges, nor of the accounting officers to allow them, the account now under revision being the first, so far as I am advised, in which the charge is made or allowed, therefore these charges are not supported by long practice, and must stand or fall under the fee statutes.
The clause of clerks' fee bill under which the fees now at issue are claimed provides as follows:
"For entering any return, rule, order, continuance, judgment, decree, or recognizance, or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents."
This clause may be divided into three subclauses: First, for entering any return, etc.; second, for drawing any bond, and third, for making any record, etc.
The first subclause relates only to entries on the journal or minutes (United States v. Kurtz, 164 U. S., 49), and it is clear that the services in question are not within its provisions, nor do they fall under the second subclause, because it is limited to the drawing of bonds, nor do they come within the third subclause unless the drawing of these affidavits is the making of a "record, certificate, return, or report" within the meaning of said third subclause.
In Fink's case (6 Comp. Dec., 540) it was held that the receipt given by the clerk to the marshal for moneys (fees and costs) did not come within the third subclause, supra, and that the clerk was not entitled to folio fees therefor, and it seems to me that the principles apply here, because the affidavits referred to are neither certificates, returns, nor reports, nor is the drawing of them the making of a record for which folio fees are provided.
So I conclude that the only fees provided by law, in connection with these affidavits, are for entering or recording them on the journal or minutes of the court, and I find upon examination that such fees have been charged and allowed; therefore, there being no fee provided by law for the service. indicated, the allowances by the Auditor were erroneous and
will be overruled. (United States v. Shields, 153 U. S., 88; United States v. Clough, 55 Fed. Rep., 373; Robinson's case, 5 Comp. Dec., 172; Marvin's case, 6 id., 382, 398; Van Duzee's case, 7 id., 272; De Groff's case, 8 id., 863, 866; O'Hair's case, 9 id., 226.)
Accordingly the Auditor's allowance of the charges in question is overruled and the amount allowed, $4.05, is now disallowed.
PAYMENT OF JUDGMENT AGAINST THE DISTRICT OF COLUMBIA.
Where Congress prohibits the payment of a judgment, such prohibition operates to restrain the accounting officers from paying such judgment, notwithstanding any legal rights that may have become vested in the judgment creditor.
(Comptroller Tracewell to the Secretary of the Treasury, January 24, 1905.)
By your reference, dated January 19, 1905, of a transcript of a judgment of the Court of Claims, dated January 13, 1905, in favor of Thomas M. Steep for $879.78, for a debt due from the District of Columbia, payable March 1, 1876, you request an expression of my views as to the payment of the amount of the judgment.
It appears that claimant brought suit against the District of Columbia under the act of June 16, 1880 (21 Stat., 284), and that judgment was rendered in favor of the claimant May 29, 1882, for $8,274.58, which amount was paid; that April 2, 1895, a motion by the claimant for a new trial was allowed; that December 7, 1896, judgment in favor of the claimant for the amount stated above, namely, $879.78, was rendered; that December 10, 1896, the Government filed a motion for a new trial, which motion on January 13, 1905, had not been disposed of, and that on that date the transcript of the judgment transmitted by you was issued.
By certificate of the clerk of the court dated January 23. 1905, since transmitted by you, it further appears that the court on that day filed an order dismissing the motion by the Government for a new trial, and that no appeal in the cause had been taken.
In this class of cases, payment of the amount of the judg