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December 16, 1904, was found guilty of being drunk while a member of the guard, and sentenced as approved by the Department, to solitary confinement in double irons, on bread and water for 20 days, with a full ration every 5th day, and to lose 3 months' pay, amounting to $10.40.'
“3. The pay Private Powell was receiving at the time of his trial was in the sum of $15.00 per month, less usual checkage on account of hospital fund of twenty cents monthly; a loss of three months' pay computed at said rate would have been in the amount of $41.10, instead of the sum stated in the excerpts quoted. The principle laid down by your office in such a case seems to be that contained in your decision in the case of Mark Burns, private, U. S. Marine Corps, dated June 11, 1897 (3 Comp., 696), that -"the addition of the amount by way of further description of a thing already sufficiently definite, although erroneous, will be treated as simply an error of calculation, or as coming within the doctrine of falsa descriptiona non nocet, and will not be allowed to defeat the clearly expressed purpose of the sentence. While sentences of forfeiture are to be strictly construed, yet a strict construction should not operate to defeat the intention, and mistakes may be corrected to carry out the evident intent.'
"4. This office does not understand that it necessarily follows that the same considerations determine the intent of a summary court-martial as to forfeiture of pay, involved in their sentences, for such courts habitually employ a different phraseology to express their will in these cases. Nor does this office understand that there is authority to charge as a checkage of forfeited pay an amount greater than such as has been approved for by the Secretary of the Navy. Looking at the matter, however, as being one of authority to pay out rather than one of holding back, the views of your office in the case of Mark Burns, private, U.S. Marine Corps, above cited, are sufficient to raise doubt as to the propriety of the payment of $1.00, otherwise due this man. "It is therefore respect, fully requested that a decision be rendered by your office as to the propriety of including this sum as a credit in the pending settlement in favor of Private Powell."
The sentence of the summary court-martial in Powell's case, as shown by the Navy Department's records, was:
"to solitary confinement in double irons, on bread and water for 20 days, with a full ration every fifth day, and to lose three months' pay, amounting to $10.10."
This sentence was approved by the Navy Department.
The sentence, then, included the forfeiture of three months pay.
I do not think the error made in computing three
months' net pay as $40.40, when the man's net pay for three months actually amounts to $14.40, renders the sentence uncertain or ambiguous. At the most it was an erroneous computation or an inaccuracy. The pay of an enlisted man of the Marine Corps is fixed by law and when he is sentenced by a court martial to lose three months' pay there can be no doubt as to the amount forfeited. The statement in the sentence of the amount of money forfeited is mere surplusage and the meaning of the sentence is certain and unambiguous, notwithstanding an inaccuracy in that statement.
If this man's pay had amounted to $40.40 and the sentence had said to lose three months' pay, amounting to $14.40,"I do not think he could have been deprived of three months' pay and $4 in addition thereto.
I am of opinion that it was the intention of the court, and the sentence should be so construed, that Powell should lose three months' pay. In settling with him, therefore, you should deduct three months' pay, whatever that may amount to, less hospital dues.
COMPUTING COMPENSATION OF SURFMAN IN THE LIFE-SAVING SERVICE FOR A FRACTIONAL PART OF A MONTH.
Where a surfman in the Life-Saving Service was absent on account of sick
ness from the 1st to the 13th, inclusive, of a 28-day month, and was then discharged for disability, his substitute is entitled for his services during said thirteen days to thirteen-thirtieths of a monthly installment of the surfman's pay; and for his services as a temporary surfman during the remaining fifteen days of said month he is entitled to fifteen-thirtieths of the monthly installment of the pay of a temporary surfman.
(Comptroller Tracewell to the Secretary of the Treasury, March
24, 1905.) I am in receipt of your letter of the 21st instant as follows:
“Levi A. Kelley, a surfman of the Peaked Hill Bars lifesaving station, second district, was absent on account of sickness February 1 to 13, 1905, inclusive, at the close of which period he was discharged on account of disability. William W. Bowley served in his place as a substitute up to the date of Kelley's discharge and as a temporary surfman to till the
vacancy for the remainder of the month. Should Bowley receive $65 for a full month's service in February, or should he receive only twenty-eight thirtieths of $65?
" John Kelly, of the Point Bonita life-saving station, thirteenth district, served fifteen days in February, 1905, as a temporary surfman. On February 16 he was engaged as
regular surfman at said station and served the remainder of the month. As his services were continuous during the entire month, first as a temporary surfman and then as a regular surfman, is he entitled to $65 for his services, or should he be paid for only twenty-eight thirtieths of $65?
*Your decision is requested as to the amounts which should be paid in the cases stated above."
The Regulations of the Life-Saving Service of 1899 make a distinction between a temporary surfman and a substitute. They provide as follows:
“Sec. 186. A temporary surfman is a person who fills a vacancy in a crew until the engagement of a regular surfman, and he will be entitled to receive the pay to which a regular surfman would be entitled for the same period, and will be paid upon the station pay roll."
“Sec. 189. A substitute is a person employed by the keeper to supply the temporary absence of himself or any member of his crew during the active season.
“SEC. 191. A substitute will be paid the full amount to which the absent surfman would be entitled if on duty, the payment to be made in the manner set forth in section 96.”
A substitute does not fill any position but performs the duties of a person who does fill a position, for which the person is required to pay him the amount to which he would be entitled if on duty.
If Levi A. Kelley, the regular surfman, had been on duty from February 1 to 13, inclusive, he would have been entitled to thirteen-thirtieths of the monthly compensation for this period. William W. Bowley, his substitute, is entitled to the same amount.
The position of temporary surfman is a distinct employment, and for service under said employment for a part of February he should be paid one-thirtieth of the monthly pay for each day actually served, or in the case stated fifteenthirtieths of the monthly compensation.
Section 192 of the Regulations of the Life-Saving Service provides:
- Temporary surfmen and substitutes do not become members of a life-saving crew, and therefore will not be entitled to the benefits provided by section 7, act of May 4, 1882, nor their widows and children to those of section 8 of that act. No report of the employment of substitutes need be made to the Civil Service Commission."
Temporary surfmen and regular surfmen hold separate and distinct employments though the salary of each is the same, and the position held by each for a part of a month may be the same. Where the position of surfman is held by one person for a part of a month under temporary employment, and for the remainder of the month under regular employment, such person should be paid as for two employments. He should be paid one-thirtieth of the monthly compensation for each day's service under each employment, but not to exceed thirtythirtieths of the monthly compensation of the position held. In the case stated fifteen-thirtieths should be paid for the employment as temporary surfmen and thirteen-thirtieths for the employment as a regular surfmán.
PRINTING FOR THE MARINE CORPS.
The Marine Corps is not a part of an “Executive Department," within the
meaning of section 87 of the act of January 12, 1895, which requires that all printing for the Executive Departments shall be done at the Government Printing Office, and therefore the purchase of printed streamers from private parties for the use of a Marine Corps recruiting party is authorized.
(Assistant Comptroller Mitchell to Col. F. L. Denny, quarter
master, Marine Corps, March 27, 1905.) I have received by your reference through the Secretary of the Navy the following letter addressed to you by Capt. G. C. Thorpe, U. S. Marine Corps, on recruiting duty at St. Paul. Minn., dated March 4, 1905:
“1. In inviting attention to the item 'printing' as an expenditure in office expense’ mentioned in the attached voucher, I have the honor to state that at the time the billposters commenced displaying the Marine Corps posters it became evident to me that “streamers' were necessary to call attention to the address of the recruiting offices. I accordingly had 'streamers' printed as per the attached sample copy.
The streamers were printed at St. Paul by Harmon & Dow Company, for which they present a bill for $3.50.
You request my decision as to whether or not in view of the provisions of section 87 of the act of January 12, 1895 (28 Stat., 622), the bill for the printing can be paid from the public funds.
Section 87 of the act of January 12, 1895, is as follows:
“All printing, binding, and blank books for the Senate or House of Representatives, and for the Executive and Judicial Departments, shall be done at the Government Printing Office, except in cases otherwise provided by law."
This provision is identical with section 3786 of the Revised Statutes.
The language "for the Executive and Judicial Departments," as used in the statute, was intended to apply to the Executive and Judicial Departments as established and organized at the seat of government, and it has been so held.
The Marine Corps is a part of the naval establishment, but it is not a part of the Navy Department as established at the seat of government; it is under the supervision of the Executive Departments, but that relation to the Department is not the same as being a part of it.
An opinion of Attorney-General Devens (15 Op. Att. Gen., 263) throws light upon the question. It was rendered in construing, at the request of the Postmaster-General, sections 5 and 6 of the act of March 3, 1877 (19 Stat., 33), by which the Departments were authorized to transmit letters and packages through the mails free of charge. It involved the meaning of the words “Executive Departments," and the AttorneyGeneral said:
“ The several Executive Departments are by law established at the seat of government; they have no existence elsewhere. Only bureaus and offices can be deemed bureaus and offices in any of these Departments which are constituted such by the law of its organization. The Department, with its bureaus or offices, is in contemplation of the law an establishment distinct from the branches of the public service and the offices thereof which are under its supervision. Thus, the office of