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shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said State to date of return thereto.'
"The act making appropriation for the naval service for the fiscal year 1902, approved March 3, 1901 (31 Stat., 1108), provides:
"That officers of the Navy and officers and enlisted men of the Marine Corps who have been detailed, or may hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States, shall be considered as having been detailed for "shore duty beyond the seas," and shall receive pay accordingly, with such additional pay as may be provided by law for service in island possessions of the United States.'
"Under the operation of the naval personnel act of March 3, 1899, which provides: That after June 30, 1899, commissioned officers of the line of the Navy, and of the Medical and Pay Corps, shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for officers of corresponding rank in the Army. * the claimant claims that the 10 per cent additional pay authorized by the acts of May, 1900, and March 3, 1901, should be calculated upon the maximum pay of his grade during the time. he was on shore duty at the United States naval station, Cavite, P. I., and until he arrived at San Francisco, Cal.
"In 6 Comp. Dec., 946, it was held in effect that under the acts of May 26, 1900, and March 3, 1901, supra, authorizing 10 per cent additional, the pay proper' to officers detailed for shore duty beyond seas, that the words 'pay proper as used in the acts must be held to mean the minimum pay of the grade as fixed by law.
"In accordance with the decision the 10 per cent additional authorized to officers of the Navy detailed for shore duty 'beyond seas' has been calculated upon the minimum pay of their grade.
"The Court of Claims in the Irwin case (38 C. Cl. R., 103) held that:
"Pay proper is pay regulated by service. It depends upon the officer's longevity. Longevity arises out of the length of service and is founded on that. The pay proper in such a case is determinable upon an officer's lustrum, the amount he is to receive for every five years' period of service.' The decision of the Court of Claims in the Irwin case was affirmed by the Supreme Court in the case of The United States v. Mills.
"From May 31, 1901, to September 25, 1901, the claimant was a lieutenant in the Navy, which, by section 1466 of the
Revised Statutes, corresponds in rank with a captain in the Army.
"By section 1261 of the Revised Statutes, the pay of a captain in the Army, not mounted, is $1,800 per annum, and by section 1262 is entitled to be credited with 10 per cent. of his current yearly pay for each term of five years' service. As the claimant had been in the service more than twenty years his pay would be $2,520 per annum, which was the maximum pay of his grade from May 31, 1901, to September 25, 1901, and under the decision of the Court of Claims in the Irwin case, affirmed by the Supreme Court in the Mills case, the 10 per cent additional pay for service beyond seas' should be calculated upon the $2,520, which would make his annual compensation $2,772.
"From September 26, 1901, to May 19, 1903, the date he was detached and ordered to proceed to his home, he held the grade of a lieutenant-commander in the Navy, which, by section 1466 of the Revised Statutes, corresponds in rank with a major in the Army.
"By section 1261 of the Revised Statutes the pay of a major in the Army is fixed at $2,500 with increased pay for length of service, and as the claimant had served more than twenty years in the Navy he would be entitled to $3,500 per annum. By calculating the 10 per cent additional pay on the maximum pay of his grade he would become entitled to $3,850 per
"By settlement in this office August 11, 1902, the claimant was allowed difference of pay on promotion from September 26 to December 31, 1901, with 10 per cent additional pay for service beyond seas on the minimum pay of his grade, in accordance with the Comptroller's decision (6 Comp. Dec., 946), which period of time is not included in this decision as a new construction of the law. (2 Comp. Dec., 401.)
"Following the rule laid down by the Court of Claims and affirmed by the Supreme Court, supra, I am of opinion that during the period the claimant was on shore duty beyond seas,' i. e., from May 31, 1901, to May 10, 1903, he is entitled to have the 10 per cent additional pay authorized by the acts of May 26, 1900, and March 3, 1901, credited to him on the maximum pay of his grade.
"Second. I am of opinion and so decide that after his detachment from shore duty at Cavite, and while returning to San Francisco, Cal., on a mail steamer, he was not detailed for shore duty beyond seas' within the meaning of the proviso in section 13 of the personnel act of March 3, 1899, as that proviso contemplates service on shore beyond seas (see also Comp. Dec., December 29, 1904), and is not entitled to the additional pay."
It was held in the decision of this office dated December 29, 1904, that a captain in the Navy while traveling on a commercial steamer under orders detaching him from shore duty in Hawaii and directing him to proceed to San Francisco was not detailed for shore duty "beyond seas" within the meaning of the proviso in section 13 of the navy personnel act, and was therefore not entitled to the 10 per cent increased pay provided by the acts of May 26, 1900, and March 2, 1901, but was entitled only to the pay of an army officer of corresponding rank (not including the 10 per cent increase), reduced by 15 per cent during such passage.
As more than one year has elapsed since the date of the Auditor's settlement of August 11, 1902, I have no jurisdiction to render a decision in regard thereto. It is understood, however, that the said decision does not embrace the period of time covered by said settlement. With this understanding the Auditor's decision is approved.
ACCEPTANCE OF VOLUNTARY SERVICES.
The granting of permission to a proposed vendor to install, at his own expense, and for trial purposes only, an appliance on a vessel, or in a navy-yard, is not an acceptance of voluntary services, within the meaning of section 3679, Revised Statutes, as amended by section 4 of the act of March 3, 1905.
(Comptroller Tracewell to the Secretary of the Navy, April 14, 1905.)
By your reference I am in receipt of a communication from C. W. Raes, engineer in chief, Bureau of Steam Engineering, Navy Department, dated the 23d ultimo, in which he inquires whether the granting of permission to a private party to install an appliance on a naval vessel or in a navy-yard for trial, provided there is no expense to the Government, is the acceptance of voluntary service for the Government within the purview of section 3679 of the Revised Statutes, as amended by section 4 of act of March 3, 1905 (Public, No. 217). You request my decision of the question submitted to you by Engineer Raes.
Section 3679 of the Revised Statutes, as amended, in so far as material, provides:
"No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any Department or officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than one hundred dollars or by imprisonment for not less than one month.”
"Service" means the performance of some duty or labor for another; "voluntary service," the performance of some duty or labor freely or of one's own accord for another.
Where the title remains in the proposed vendor, without any agreement for sale, the labor and expense incurred by said proposed vendor in the installation of an appliance on a naval vessel or in a navy-yard for trial purposes only is, in my opinion, labor and expense incurred by said vendor for his own benefit and in his own behalf as an incident to or necessary concomitant of a proper exhibition of his appliance for sale, and is not "service" or "voluntary service" within the meaning of section 3679 of the Revised Statutes as amended.
The installation of an appliance by a vendor for trial purposes only not being "voluntary service," you could not by granting permission for said installation "accept voluntary service for the Government" within the meaning of said law. If said permission be granted, however, it should be with the distinct understanding that if the Government does not see fit to enter into any agreement for the purchase of said appliance it shall be removed at the expense of the proposed vendor.
FRENCH SPOLIATION CLAIMS.
A French spoliation claim acquired by a member of a firm in the distribution between the partners of the partnership assets upon final dissolution of the partnership is not "held by assignment" within the meaning of the proviso to the act of February 24, 1905, which provided that no claim therein appropriated for should be paid if held by assignment.
(Decision by Comptroller Tracewell, April 17, 1905.)
The Auditor for the State and other Departments has submitted the following decision for approval, disapproval, or modification:
"The act of February 24, 1905 (Public No. 99, page 62), contains the following appropriation:
"On the vessel schooner Theresa, William Williamson, master, namely:
"William W. Cronmiller and Edmund C. Scott, administrators of John Royer Champagne, twenty-one thousand three hundred and four dollars and fifty-nine cents.'
"The said act (p. 64) also contains the following:
"Provided, however, That any French spoliation claim appropriated for in this act shall not be paid if held by assignment or owned by any insurance company. But this shall not apply to any claim of a class heretofore paid under the act approved March third, eighteen hundred and ninetyone, entitled "An act making appropriations to supply deficiencies in appropriations for the fiscal year ending June thirtieth, eighteen hundred and ninety-one, and for prior years, and for other purposes," and paid under the act approved May twenty-seventh, nineteen hundred and two, entitled "An act for the allowance of certain claims for stores and supplies reported by the Court of Claims under the provisions of the act approved March third, eighteen hundred and eighty-three, and commonly known as the Bowman Act, and for other purposes.
The act of March 3, 1891 (26 Stat., 908), referred to in the above proviso did not prohibit the payment of claims that were held by assignment, and such claims were paid.
"The act of May 27, 1902 (32 Stat., 233), referred to in the above proviso did contain a prohibition as to payment of claims held by assignment, but also the following words: 'But this shall not apply to any claim of a class heretofore paid under the act approved March third, eighteen hundred and ninety-one
"It appears that a portion of Champagne's claim is held by