PLACING OF A COMMISSIONED OFFICER OF THE REVENUE-CUTTER SERVICE ON LEAVE OF ABSENCE WITH HALF PAY.

The Secretary of the Treasury is not authorized to place a commissioned officer of the Revenue-Cutter Service, whose compensation is fixed by law, on leave of absence with half pay, as a punishment for an offense.

(Comptroller Tracewell to the Secretary of the Treasury, March 30, 1905.)

In your communication of March 9, 1905, you request my decision of a question which you therein present as follows:

"1. Herewith is transmitted for your decision the claim of Capt. O. S. Willey, Revenue-Cutter Service, for difference between one-half pay and full pay from August 16, 1904, to February 15, 1905, inclusive, during which period he was on leave of absence.

"2. This officer's compensation was reduced to one-half pay by Special Orders, No. 33, dated August 11, 1904, a copy of which is inclosed.

"3. There are also inclosed copy of Department letter of July 26, constituting the board of investigation in this case, and the report and findings of the board, dated August 8,

1904.

"4. The records of this Department show that Captain Willey received half pay from August 16, 1904, to February 15, 1905, inclusive."

The revenue-steamer Woodbury, while under the command of Captain Willey, having collided with a merchant steamer during a thick fog in the harbor of Portland, Me., on July 18, 1904, a board of investigation was ordered by the Secretary of the Treasury, which reported upon the facts and recommended that he be reprimanded and "placed on leave of absence for one year on half pay." The findings of the board were approved by the Secretary of the Treasury, and the punishment recommended was mitigated by placing Captain Willey "on leave of absence on half pay" for a term of six months.

The Regulations of the Revenue-Cutter Service, prescribed by the Secretary of the Treasury April 4, 1894, and approved by the President, contain the following provisions relating to the punishment of offenses:

683. Punishment shall be in strict conformity to law and in accordance with the usages of the sea service."

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Section 731 provides for convening a board of investigation to investigate offenses committed by officers.

762. In all cases of conviction it is the duty of the board, when called upon, to recommend a punishment adequate to the character and nature of the offense committed."

"763. The following are the only punishments that can be recommended by the board for infliction upon a commissioned officer:

"1. Summary dismissal from the Service.

"2. Suspension from duty on waiting-order pay.

"3. Reduction of rank in his own grade.

"4. Retention of his present number on register for a specified time.

"5. Commitment within bounds afloat or ashore. "6. Official reprimand.

"7. Recommendation embodying two or more of the punishments from 2 to 6, inclusive.

At the time these regulations were made, section 2753 of the Revised Statutes provided a lower rate of pay for officers of the Revenue-Cutter Service on waiting orders than that provided for them while on duty. But section 3 of the act of April 12, 1902 (32 Stat., 100), provides that the commissioned officers of that Service shall receive the same pay and allowances, except forage, as are provided by law for officers of corresponding rank in the Army. It is provided by section 1265 of the Revised Statutes that officers of the Army shall receive full pay while on waiting orders. After the passage of this act the provision in section 763 of the Regulations, supra, authorizing a board of investigation to recommend as a punishment "suspension from duty on waiting-order pay," if interpreted literally, became futile. It is further provided by section 1265 of the Revised Statutes that officers of the Army absent with leave for other causes than sickness or wounds, exceeding thirty days in one year, shall receive half pay only. Probably for these reasons the board recommended action which it was thought would have an effect similar to that of the original provision of the regulations before the change in the law took place. As previously indicated, this recommendation was approved by the Secretary of the Treasury, but the punishment recommended was mitigated. Thereupon the Secretary ordered

"2. That Capt. O. S. Willey is hereby placed upon leave of absence on half pay, and to so remain for a term of six

months."

It is provided in Department Circular No. 3 of 1902 that officers of the Revenue-Cutter Service may be granted leave of absence not exceeding thirty days "in any one fiscal year on full pay." It appears from the records of this Department that Captain Willey was not absent with leave during any other part of the fiscal year 1905 than the six months during which he was placed on leave with half pay.

The substantial question which arises in this case is wnether the Secretary of the Treasury had authority, as a punishment for an offense, to place a commissioned officer, whose compensation is fixed by law, on leave of absence with half pay without his assent.

In the case of Chisolm v. United States (27 Ct. Cl., 94), a clerk in the Treasury Department, whose compensation was fixed by law, was absent by reason of sickness for more than thirty days in one year. During her absence another person, called a substitute, was employed to perform her duties, and the salary was divided between the two. The absent clerk accepted her share of the salary without protest, and the court held that she thereby assented to the arrangement and dismissed her petition.

In United States v. Murray (100 U. S., 536), it was held that a clerk in the Treasury Department, whose compensation was fixed by law, who had been granted a leave of absence, without pay, for five months from February 1, 1874, and who at the expiration of that period was dismissed, was not entitled to compensation for that period. In the opinion in that case the court said:

"While under the regulations of the Department an employee is not entitled to leave of absence with pay for more than thirty days in any one year, there is nothing to prevent the Secretary from putting him on furlough without pay at any time, if the exigencies of the service require it. He may be dismissed absolutely, and it is difficult to see why, if this can be done, he may not be furloughed without pay, which is the effect of a partial dismissal. If he desires to be free from all obligations to serve in the future, he may resign; but if he permits his name to continue on the rolls, it must be on such terms as are imposed by the Department. In this case an extraordinary demand for clerical service caused an early partial exhaustion of the appropriation for the year, and it became necessary to dispense with a part of the force, so as to reduce the expenses of the office. Absolute dismissals were not made, but, as a favor to the clerks, their names were kept

on the rolls without pay. Murray remonstrated against what was done, but seems to have preferred the furlough to an absolute discharge. Under these circumstances, having rendered no service, he cannot claim compensation."

The conclusion appears to have been based on the fact that the Secretary had power to dismiss him absolutely, and that, to be furloughed without pay had the "effect of a partial dismissal." The same view was also taken in the Chisolm case.

In Glavey v. United States (182 U. S., 595) the facts were as follows: While the claimant in this case was holding the office of local inspector of vessels the Secretary of the Treasury appointed him special inspector of foreign steam vessels, without additional compensation. A salary of $2,000 a year was provided by law for the latter office. The claimant performed the duties of both offices and received the salary of the former office only, without protest, and without requesting payment of the salary of the latter office. Subsequently he brought suit for the salary of the latter office. The court, in deciding in favor of the claimant, said:

"The purpose of Congress, as indicated by the act of 1882, was to compensate the services of a special inspector of foreign steam vessels by an annual salary of a specified amount. It was not competent for the Secretary of the Treasury, having the power of appointment, to defeat that purpose by what was, in effect, a bargain or agreement between him and his appointee that the latter should not demand the compensation fixed by statute." (Id., pp. 608-609.)

It is a well-established principle of law that executive officers have no authority to increase or diminish the compensation of an officer, where such compensation has been fixed by law, either by order or by regulations.

In Adams v. United States (20 Ct. Cl., 115, 117) the court said:

"The law creates the office, prescribes its duties, and fixes the compensation. The selection of the officer is left to the collector and the Secretary. The appointing power has no control, beyond the limits of the statute, over the compensation, either to increase or diminish it.

In Goldsborough v. United States (Taney's C. C. Dec., 80) the court said that where a statute declares that an officer or agent

"shall receive a certain compensation for his services, which is specified in the law, undoubtedly that compensation can

neither be enlarged nor diminished by any regulation or order of the President, or of a Department, unless the power to do so is given by act of Congress.'

In United States v. Williamson (23 Wall., 416) the Supreme Court said:

"It is not in the power of the executive department, or any branch of it, to reduce the pay of an officer of the Army. The regulation of the compensation of the officers of the Army belongs to the legislative branch of the Government."

There is no legal distinction in this respect between the pay of officers of the Army and the pay of other officers.

In United States v. Symonds (120 U. S., 49) the Supreme Court said:

"But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was, in fact, sea service, or to increase his compensation by declaring that to be sea service which was, in fact, shore service.".

And referring to regulations made by the Secretary of the Navy the court further said:

"He may, with the approval of the President, establish regulations in execution, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others."

In view of all the decisions I am of opinion that the placing of Captain Willey on leave of absence with half pay was not authorized by law, and that therefore that portion of the order directing the reduction of his pay to half pay was inoperative.

Notwithstanding this conclusion it might be said that Captain Willey was absent from duty for six months, and that, under the provisions of section 1265 of the Revised Statutes, if he was absent with leave for other causes than sickness or wounds, he is entitled to only half pay for such absence in excess of thirty days, and if he was absent without leave he would forfeit all pay during such absence. But I think the term "absent with leave," as used in these provisions, means absent from duty with permission granted upon the request or with the assent of the officer, and that the term "absent without leave," as used therein, means absent from duty without permission or authority. And I do not think either of