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He claimed commutation for sea travel from Manila, P. I., to San Francisco, Cal., as first lieutenant Company G, Second Oregon Volunteer Infantry.
The Auditor disallowed the claim because
“Officer was paid commutation for land travel from San Francisco, Cal., to Portland, Oreg., place of enrollment, in full.
“Having been discharged under General Orders, No. 5+, of 1899, he was entitled to free transportation for the sea travel for which commutation is claimed. At the date he was discharged he was under orders to proceed with his organization to San Francisco, Cal., for muster out, and the organization was mustered out at that place on August 7, 1899. If he had remained with it until he was mustered out he would have been furnished transportation to San Francisco, Cal., at no appreciable cost to the Government, and he would have been required to furnish his own subsistence for that journey.
"Having applied in writing for his discharge under General Orders, No. 51, of 1899, it seems clear that he intended to waive his right to traveling allowances from Manila, P. I., to San Francisco, Cal., and thus accept fully the conditions of that order. Having deliberately, and with a full knowledge of all his rights under the law, accepted the conditions of General Orders, No. 54, of 1899, he is not entitled to more than he would have received had he complied with the orders and returned with his organization to San Francisco, Cal., and hence he is not entitled to commutation for sea travel as claimed.”
Officer was mustered into service as second lieutenant, Company G, Second Oregon Infantry, May 13, 1898, at Portland, Oreg.; promoted to first lieutenant December 3, 1898, and discharged as such per Special Orders, No. 157, June 12, 1899, at Manila, P. I., under the provisions of General Orders, No. 54, A. G. O., dated March 22, 1899.
Said General Orders, No. 54, provide that “when volunteer organizations serving in * pine Islands receive orders to proceed to the United States for muster out of service, officers and enlisted men of such organizations whose service has been honest and faithful, who desire to remain in those islands, may be discharged by commanding generals of departments upon written applications approved by their respective company and regimental commanders.
Officers ** * discharged under this order will be entitled to travel allowances for the land travel involved from the place of their discharge to the place of their enlistment. For the
* * the Philip
sea travel, the special orders issued by the commanding generals of the departments for the discharge of officers will state in each case that the officer is entitled to free transportation *** on any United States transport leaving the island for the United States within one year from the date of discharge."
Special Orders, No. 157, Headquarters Department Pacific and Eighth Army Corps, dated June 12, 1899, issued in pursuance of General Orders, No. 51, supra, provide that“the Second Oregon Volunteer Infantry having been ordered to the United States for muster out, the following officers and enlisted men of that regiment will be discharged the service of the United States at Manila, P. I., under the provisions of General Orders, No. 51, c. S., Headquarters of the Army, Adjutant-General's Office, viz:
"Free transportation for the officers and free transportation and subsistence for the enlisted men named above will be furnished at any time within one year after the date of discharge on any available United States transport leaving this port to San Francisco, Cal.
“By command of Major-General Otis."
The travel allowances law in force at date of discharge was section 1289, Revised Statutes, which provides that, “when an officer is (honorably) discharged from the service (except by way of punishment for an offense) he shall be allowed transportation and subsistence from the place of his discharge to the place of his residence at the time of his appointment, or to the place of his original muster into the service. The Government may furnish the same in kind, but in case it shall not do so, he shall be allowed travel pay and commutation of subsistence, according to his rank, for such time as may be sufficient for him to travel from the place of discharge to the place of his residence, or original muster into service, computed at the rate of one day's pay for every twenty miles."
It appears from the records and evidence in the case that at the time of claimant's discharge from the service and for some months prior thereto he was on detached duty at the Presidio de Manila (a penitentiary). At the time of his discharge he was under orders to proceed to the United States with his regiment for muster out and discharge from the service.
Had he remained with his regiment he would have received free transportation for the sea journey and commutation of travel allowances for the land part of journey. The claimant asked for and obtained his discharge at Manila in order that he might remain in the Philippine Islands and accept civil employment at the Presidio de Manila. His discharge was asked for and granted under the conditions named in General Orders, No. 54, supra. It must be assumed that claimant was fully aware of the conditions named in said orders, and that when he asked for his discharge under them he signified his willingness to accept the conditions prescribed, if the Government should grant his request.
The claimant, in consideration of the Government's releasing him from service, which would enable him to accept civil employment in the Philippine Islands, waived his statutory right to travel allowances for the sea portion of the journey, and agreed to accept in lieu thereof for such portion of the journey free transportation in kind good at any time within a year.
The legal right of the Government to make such conditions is, I think, clearly recognized. (Shutle v. Thompson, 15 Wall., 159; White v. Insurance Co., 4 Dill. C. C., 183; John Grimley v. The United States, 32 Ct. Cl., 285; sec. 373, vol. 3, Dig. of Dec. of Second Comptroller.)
An officer or an enlisted man may or may not accept the conditions imposed, but if, with a full knowledge of all his rights under the law he does accept and act upon them, he is bound thereby.
In the present case the claimant was offered free transportation between Manila and San Francisco, good at any time within a year from time of discharge. This was strictly in accordance with the orders under which he was discharged. The Government thereby fulfilled its obligations to the claimant, and I think the latter is now estopped from setting up a claim for travel allowances under the general statute between the places named.
The Auditor's action is affirmed.
PAY OF PER DIEM EMPLOYEES AT THE WASHINGTON BARRACKS FOR SATURDAY HALF HOLIDAYS.
Neither per diem employees nor day laborers at the Washington Barracks
are entitled to pay for the Saturday half holidays provided for by section 1389 of the Code of Laws for the District of Columbia unless they
work during such holidays. (Comptroller Tracewell to the Secretory of War, July 30, 1904.)
By reference by your authority by the Chief of Engineers, dated July 19, 1904, of a communication from Capt. Stepben Sewell, dated July 15, 1904, you request my decision of a question presented therein, as follows:
“1. Referring to the application for a half holiday with pay, made by the men employed by the United States at Washington Barracks, D. C., I have the honor to submit the following question, and request that the decision of the Comptroller of the Treasury may be obtained:
*2. If the men employed at Washington Barracks are entitled, by the terms of their employment, to a holiday, with full pay, on the first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and Thanksgiving Day, under the joint resolution approved January 6, 1885 23 Stat., 516); and if they are entitled to a holiday with full pay on Decoration Day, under the provisions of the act of February 23, 1887 (24 Stat., 6+4); and if they are entitled to a holiday with full pay for Labor Day, under the provisions of the act of June 28, 1894 (28 Stat., 96), are these same men entitled to a holiday with full pay, every Saturday after twelve o'clock, noon, under the provisions of the act to establish a code of law for the District of Columbia,' approved March 3, 1901, as amended by the acts of January 31, and June 30, 1902, which provides, in section 1389, as amended, that:
56. The following days in each year, namely, the first day of January, commonly called New Year's Day; the twentysecond day of February, known as Washington's Birthday; the Fourtń of July; the thirtieth day of May, commonly called Decoration Day; the first Monday in September, known'as Labor's Holiday; the twenty-fifth day of December, commonly called Christmas Day; every Saturday, after twelve o'clock, noon; any day appointed or recommended by the President of the United States as a day of public fasting or thanksgiving, and the day of the inauguration of the President, in every fourth year, shall be holidays in the District, for all purposes.'
“In the decisions of the Comptroller of the Treasury, July, 1901-June, 1902, VIII, p. 220, referring to the joint resolution approved January 6, 1885, to the act approved February 23, 1887, and to the act approved June 28, 1894, it is stated:
* It has been held that these statutes appiy only to those employees, who, although receiving per diem compensation, are permanently or continuously employed whenever their services can be utilized, and not to such as are hired for temporary service for a few days at a time, the service of the latter class being merely incidental to their main employment elsewhere.'
“Again, in the same volume of decisions, as quoted by the Judge-Advocate-General, it is stated:
per diem employee is one who is employed by the day and paid a certain sum for a day's wages. One who is not employed by the day, but whose day is measured by the day, is not a per diem employee. The right of such person to employment for a stated period longer than a day, even if the period be uncertain in duration, prevents such employee from being considered or treated as a per diem employee.' (VIII Comp. Dec., 236; ibid., 694.)
“If I understand these quotations correctly, we have no per diem employees, properly so-called at Washington Barracks. Men are employed with the tacit understanding that their employment shall continue as long as there is work for them and they perform it satisfactorily. A man is permitted to quit on one day's notice or without any notice at all, but that does not seem to me to change his status.
“3. I think the question might be raised, under the decisions above quoted, whether these men are entitled to any pay at all for a legal holiday. As a matter of fact, under the various decisions that have been rendered in the matter of holiday pay, the custom has grown on day labor work under officers of the Corps of Engineers in Washington, of paying a man for a holiday, provided he has worked every working day that the weather permitted for a considerable period, including the holiday; a minimum period of one day before and a week after the holiday, or a week before and one day after has been adopted as a sort of arbitrary limit; I do not know its origin; it has been the custom ever since I have been on duty in Washington. In my own case, where the minimum period has settled the question of whether a man should bave his holiday pay, I have required that the entire period, both before and after the holiday, should have been spent in actual work; so that stormy weather during this period operated to deprive a man of his holiday pay, unless he was on the pay roll much longer before and after the holiday than the minimum Jimit. Where a man has been irregular in his attendance at work, due to his own negligence, I have also refused