« PředchozíPokračovat »
the service for some time at $800 per year and is promoted in the month of February to $900 per year should be paid fifteenthirtieths at $800-$33.33—and thirteen-thirtieth's at $900— $30-$63.33. It does not seem to me that this is correct, for his salary at $800 would be $66.67, while with a promotion he would receive a less amount, i. e., $63.33; for a new appointee I can readily see that it should be thirteen-thirtieths, but for an old clerk this would be a step backward, and promotion not desirable."
You suggest in a postscript that your office is a second-class office.
The act of March 2, 1889 (25 Stat., 843), provides:
"That the Postmaster-General be, and he is hereby, authorized to classify and fix the salaries of the clerks attached to second-class post-offices, from and after July first, eighteen hundred and eighty-nine, as hereinafter provided: Provided, however, That the aggregate salaries as fixed by such classification as shall be made under this act shall not exceed the several sums appropriated by this act for the services authorized to be classified, namely: * * Mailing clerks, letter distributors, dispatchers, registry clerks, stamp clerks, and money order clerks, five classes, salary graded in even hundreds of dollars, from six hundred dollars to not exceeding one thousand dollars per annum.
* Provided, That, when the salaries herein before stated are adjusted and fixed, no clerk or employee shall be promoted or advanced in grade or salary without the approval of the Postmaster-General, in accordance with the requirements of section four hundred and sixty-four, Postal Laws and Regulations, edition of eighteen hundred and eighty-seven.'
Paragraph 4 of section 291 of the Postal Laws and Regulations of 1902 provides:
"Postmasters will make no appointments to fill vacancies, or original appointments of clerks or other employees, who are paid from the clerk-hire allowances made by the PostOffice Department without first submitting a nomination to the First Assistant Postmaster-General (Division of Salaries and Allowances) and receiving his approval thereof."
It will thus be seen that there is no distinction between the positions in first and second class post-offices and the manner of filling such positions. In each case, as was said in my decision of the 8th instant, the law creates separate and distinct positions-clerks of different classes. It will also be seen from the regulation above quoted that no distinction is made between appointments to fill vacancies and original ap
pointments. In each case they are treated as new appointees in the new position to which they are appointed.
If this promotion had been made in a 31-day month, the advantage would have accrued to the person promoted. It was fractional service and must be paid according to time actually served.
I see no reason to modify my decision of the 8th instant, and payments should be made as therein directed.
MOUNTED PAY TO OFFICER OF THE ARMY WHILE
An officer of the Army belonging to a light artillery battery, duly organized and equipped, is entitled to the mounted pay of his organization while a student at the Artillery School, notwithstanding that while a student he was not required to be mounted.
(Decision by Assistant Comptroller Mitchell, March 13, 1905.)
Frank E. Harris appealed April 25, 1904, from the action of the Auditor for the War Department in settlement dated April 12, 1904.
He claimed difference between mounted and unmounted pay from August 25, 1896, to April 7, 1898, as second lieutenant, Battery E, First Artillery Corps.
The Auditor disallowed his claim because
"That during the period claimed he was a student at the artillery school at Fort Monroe, Va., which did not require him to be mounted."
The Chief of the Record and Pension Office, War Department, April 4, 1904, reports that
"Second Lieut. Frank E. Harris, First Artillery (now captain Artillery Corps), from August 1, 1896, to April 7, 1898, belonged to Light Battery E, First Artillery. He left the battery August 24 and joined at Fort Monroe, Va., September 1, 1896. He was a student at the artillery school at Fort Monroe, Va., from September 1, 1896, to April 1, 1898, when he left and rejoined his battery April 5, 1898.
"He was transferred from Light Battery E to Battery D on April 7 and left the light battery April 9, 1898."
Section 1261 of the Revised Statutes provides that officers of the Army "shall be entitled to the pay therein stated after their respective designations." The pay stated after the desig
nation "second lieutenant" is of two rates, viz: "mounted, fifteen hundred dollars a year," and "not mounted, fourteen hundred dollars a year."
During the period claimant was a student at the artillery school, at Fort Monroe, Va., he belonged to and was borne on the rolls of Light Battery E, First Artillery. The question is whether during said period he is entitled to the pay of a "second lieutenant, mounted," or that of a "second lieutenant. not mounted."
Section 1270, of the Revised Statutes, provides
* That officers of the Army and of volunteers assigned to duty which requires them to be mounted, shall, during the time they are employed on such duty, receive the pay, emoluments, and allowances of cavalry officers of the same grade, respectively."
Cavalry officers receive the pay of officers mounted.
Army Regulations, 1895, in force during the period in question, provide:
Par. "1301. The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: Officers of the staff corps below the rank of major, officers serving with troops of cavalry, officers of a light battery duly organized and equipped, authorized aids duly appointed, officers serving with companies of mounted infantry, and officers on duty which in the opinion of the department commander requires them to be mounted, and so certified by the latter on their pay vouchers."
Par. "1302. Department commanders will announce, in orders, the authority obtained from the Secretary of War for mounting companies of infantry, giving the date from which such mounted service commences, and termination of the
"1903. Muster rolls and returns of light batteries and companies of mounted infantry will show the number, date, and source of order authorizing mounted service. The pay accounts of officers charging mounted pay will contain the same information. A copy of the order will be attached to the first muster rolls prepared after the battery or company has been equipped or mounted: a copy of the order discontinuing such service will appear on the first muster rolls prepared after its discontinuance."
By paragraph 1301, Army Regulations, supra, it is expressly provided that officers of light batteries duly organized and equipped are entitled to the pay of mounted officers. I am
informed verbally by the Pay Department that during the period in question Light Battery E, First Artillery, was duly organized and equipped, and this being true its organization was required to be mounted, and by the above regulation its officers were entitled to mounted pay.
In United States v. Crosley, decided January 28, 1905, the Supreme Court in construing the above regulations and section 1270, Revised Statutes, supra, said:
"We think these sections (paragraphs 1302 and 1303, supra), with section 1301 of the Army Regulations above quoted, read in the light of the statute (Rev. Stat., sec. 1270), giving to army officers the pay of cavalry officers of the same grade when assigned to duty which requires them to be mounted, indicate a general purpose to give to officers of the Army mounted pay when their duties are such as may require them to be actually mounted, or are such as may at any time subject them to the necessity of rendering mounted service. The particular section (1301) under which it is insisted that a naval aid is entitled to mounted pay, designates officers who either are or may be required to be mounted in the discharge of their duties, and likewise to 'officers on duty which, in the opinion of the department commander, requires them to be mounted, and so certified by the latter on their pay vouchers.'
"This paragraph was intended to include the particular classes of officers who are entitled to pay as mounted officers. under the classification in the first part thereof, and gives the benefit of the higher rate of compensation to other officers, not expressly named therein, whose duties require them to be mounted. It may be true, as argued at the bar, that there may be times when the duties of an aid to a major-general will not require him to be mounted. But, as we understand the Army Regulations, such officers may be at any time required to render mounted service, and are therefore given the pay of. that class."
(See, also, Crosley v. United States, 38 Ct. Cl., 82; Richardson v. United States, id., 182, 194; MS. Dec., vol. 28, p. 498; 29 id., 164.)
In view of the above authorities I am of opinion claimant was entitled to pay as a mounted officer during the period in question.
The action of the Auditor is reversed, and I find a difference in favor of the claimant of one hundred and seventy-eight dollars and fourteen cents ($178.14), being the difference between mounted and unmounted pay refunded by him for period from August 25, 1896, to April 7, 1898.
AUTHORITY OF AUDITOR TO RECEIVE AND EXAMINE CLAIMS WHICH HAVE BEEN DISCONTINUED IN THE COURT OF CLAIMS.
An auditor is authorized to receive and examine a claim which has been discontinued in the Court of Claims and presented to him for settlement.
(Decision by Assistant Comptroller Mitchell, March 13, 1905.)
The Auditor for the Navy Department has submitted, for approval, disapproval, or modification, his decision of February 23, 1905, as follows:
"In 1900 Lieut. David F. Sellers, by his attorneys, filed in the Court of Claims a claim for pay as aid to Rear-Admiral Kautz.
"In his petition he alleges that he became entitled to extra pay at the rate of two hundred ($200) dollars a year, in addition to the pay of his rank, by virtue of section 1261 of the Revised Statutes, as made applicable to the officers of the Navy by section 13 of the navy personnel act of March 3, 1899. He also claimed the pay of a captain in the Army, 'mounted.' "The Supreme Court in the case of The United States v. Crosley decided, January 28, 1995, that an aid to a rear-admiral was entitled to the extra pay authorized to an aid to a major-general in the Army, but was not entitled to mounted pay. On January 30, 1905, the claimant's attorneys filed in the Court of Claims a, motion to discontinue, of which the following is a copy:
IN THE COURT OF CLAIMS.
666 No. 22312.
66 DAVID F. SELLERS v. THE UNITED STATES.
Motion to discontinue.
"Comes now the claimant, by his attorneys, and representing that the pay for which claim in the above-entitled action may now be paid in the Treasury Department, and claimant therefore moves that this case be discontinued.
GEORGE A. & WM. B. KING,
"Filed January 30, 1905.
"On February 7, 1905, the claimant, by his attorney, filed in this Office a copy of the above motion, and asks that the claim be readjusted, in accordance with the decision of the