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decreased by short periods in cases where soldiers were held in service or discharged before expiration of service for the convenience of the Government, will be considered in determining the ordinal number of an enlistment."
In an opinion of the Judge-Advocate-General of the Army, dated March 15, 1905, and approved by the Assistant Secretary of War March 20, 1905, it was held as follows:
"It was, therefore, impossible for a volunteer enlistment to be made for the three-year period, which is the kind of enlistment to which General Orders, No. 48, March 15, 1904, War Department, exclusively applies; and it is the opinion of this office that, in determining the purchase price of a discharge under the order, only complete enlistments of three years, increased or decreased by short periods in cases where soldiers were held in service, can be considered in determining the ordinal number of an enlistment." (See Circular No. 18, War Department, March 31, 1905.)
Under General Orders, No. 48, supra, the first service not being a completed enlistment of three years, it can not be taken into consideration in determining the ordinal number of soldier's enlistment. The second service was therefore the soldier's first ordinal enlistment, and the soldier having had more than two years' service all told, he was entitled under the abovenamed order to purchase his discharge at the rate fixed for the greatest number of years' service under the first ordinal enlistment, which is $80. It appearing that the soldier paid for his discharge the sum of $100, he is entitled to a refundment of $20 of the purchase price so paid.
Upon a revision of the above-described account I find a difference in favor of claimant of twenty dollars ($20), being a refundment of so much of the purchase price of his discharge, which was collected from him.
PAY OF RETIRED OFFICER OF THE NAVY.
A retired officer of the Navy who was retired from active service under section 1443, Revised Statutes, with the rank and pay of a rear-admiral, as provided in section 11 of the act of March 3, 1899, is entitled to three-fourths of the old navy sea pay of a rear-admiral.
(Assistant Comptroller Mitchell to W. W. Woodhull, paymaster, April 27, 1905.)
I have received your request for a decision as to whether Joseph Foster, pay director, U. S. Navy, retired, is entitled
to three-fourths the old navy sea pay of a rear-admiral, or only to three-fourths the pay of a brigadier-general of the Army.
It appears by the Navy Register that Mr. Foster entered the Navy October 19, 1863, and while a pay director with the rank of captain was placed on the retired list by the following order:
"NAVY DEPARTMENT, "Washington, December 10, 1902.
"SIR: The President having approved your application, dated December 2, 1902, to be retired from active service, you are, by his direction, transferred to the retired list of officers of the U. S. Navy from December 9, 1902, in accordance with the provisions of section 1443 of the Revised Statutes, and with the rank of rear-admiral, in accordance with the provisions of section 11 of an act of Congress, approved March 3, 1899, entitled 'An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States.'
"W. H. MOODY, Secretary.
"Pay Director JOSEPH FOSTER,
"Navy-Yard, Portsmouth, N. H:"
Section 1443, Revised Statutes, provides:
"When any officer of the Navy has been forty years in the service of the United States he may be retired from active service by the President upon his own application."
Section 11 of the navy personnel act reads:
"That any officer of the Navy, with a creditable record, who served during the civil war, shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade."
He is therefore entitled to three-fourths the sea pay of a rear-admiral of the nine lower numbers (Gibson v. U.S., 194, U. S., 182).
Section 7 of the navy personnel act (30 Stat., 1004) provides:
"That each rear-admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowances as are now allowed a brigadier-general in the army."
Section 13 of the same act provides:
"That no provision of this act shall operate to reduce the present pay of any commissioned officer now in the Navy;
and in any case in which the pay of such officer would otherwise be reduced he shall continue to receive pay according to existing law."
This section 13 was so amended by the act of June 7, 1900 (31 Stat., 697), as to provide that:
"Nothing therein contained shall operate to reduce the pay which but for the passage of said act would have been received by any commissioned officer at the time of its passage or thereafter."
It was held by the Court of Claims in the case of Silas W. Terry v. United States (39 Ct. Cl., 353) that a rear-admiral of the Navy of the nine lower numbers is entitled under the provision of the navy personnel act and of the act of June 7, 1900, above quoted, to the old Navy pay of a rear-admiral.
It was decided by this office (11 Comp. Dec., 347) that the Terry decision should be followed by the accounting officers in the settlement of pay accounts of rear-admirals of the nine lower numbers.
As Pay Director Foster is entitled to three-fourths the pay of a rear-admiral of the nine lower numbers, I am of opinion that he may be paid three-fourths the old Navy sea pay of a rear-admiral, i. e., at the rate of $4,500 per annum.
COMPENSATION OF CONSULAR OFFICERS OUT OF FEES COLLECTED AND SERVICES RENDERED AT CONSULAR AGENCIES.
Where a consular agency is discontinued and a new agency established in the same district and the former agent appointed to the new agency, the latter is an appointment to a new office, and the agent is entitled to only a pro rata of the maximum of $1,000 for his services at each agency.
A consular agent is entitled to retain one half of the fees collected at his agency up to the limit of $1,000, or a pro rata thereof, and must remit the other half, quarterly, to the principal consular officer of his district, and if at the end of the fiscal year the retained half exceeds $1,000 he must also remit the excess; but if the retained half is less than $1,000, he may be paid, direct from the Treasury, one-half of the compensation earned by him for services to American vessels and seamen up to the limit above set out.
The principal consular officer is entitled to retain for his personal compensation all the fees remitted to him by consular agents in his district up to the limit of $1,000, without respect to the incumbency or maximum of the agent, provided the consul is in office the full year; and if the remittances amount to less than $1,000, he may be paid, direct from the Treasury, one half of the compensation earned by agents in his district for services to American vessels and seamen, up to the limit above indicated, but he is not entitled to the remaining one half, although it is not needed to make up the agent's maximum, and is in fact a surplus or excess.
(Decision by Comptroller Tracewell, April 28, 1905.)
This is an appeal filed March 25, 1905, by R. E. Holaday, United States consul at Santiago de Cuba, for the revision of so much of his account for fees collected and services rendered to American vessels and seamen at consular agencies during the fiscal year ending June 30, 1904, as was finally settled by the Auditor for the State and other Departments, per certificate dated March 7, 1905.
Under paragraph 510 of the Consular Regulations of 1896 consular agents are entitled, as compensation for their services, to such pay from the Government as their official services to American vessels and seamen may entitle them, and to such fees as they may collect, or to so much thereof as may be determined by the President, not exceeding $1,000 a year, and their principals to the residue not exceeding $1,000 a year. (See also sections 1703 and 1733, Revised Statutes, and paragraph 520 of said Regulations.)
Under these laws and regulations the agent was entitled to all collections and fees for services up to the limit, $1,000, and his principal to the residue, provided it did not exceed a like limit (4 Comp. Dec., 546), but by executive order, taking effect July 1, 1898 (Departmental Circular of August 26, 1898), the compensation of the agent was limited to one-half, and he was required to remit, quarterly, to his principal, the remaining half; and if at the end of the year the retained half amounted to more than $1,000, he, the agent, was also required to remit the excess, but if such half was less than $1,000 the agent might be paid direct from the Treasury one-half of the fees earned by him for services to American vessels and seamen, or a sufficient amount thereof to make up the $1,000.
This Executive order did not modify former provisions touching the rights of consuls to the balances remitted to them by consular agents, but by Departmental Circular of November 11, 1898, it was declared as follows:
"The principal consular officer will be entitled to retain of the fees so received by him from his agencies, the sum of $1,000 in the aggregate during the fiscal year as his compensation; but in case such fees shall not amount to $1,000, he will then be entitled to receive from the Treasury one-half of the fees prescribed by the tariff of official fees for such services as were performed at his consular agencies, provided such half shall not, in addition to the fees collected at the agencies and to which the principal officer is entitled, exceed the maximum amount which he is allowed by law for superintending the agencies, viz, $1,000."
The facts in the case now under consideration are substantially as follows:
Prior to the dates below mentioned, there were no consular agencies in Mr. Holaday's consular district, but in the early part of 1903 it was decided to establish such agencies at Gibara and Banes, and on June 2, 1903, Mr. George Bayliss was appointed consular agent at the Gibara agency, but no agent was appointed at Banes.
Mr. Bayliss entered upon the duties of the agency at Gibara July 9, 1903, and continued to exercise them until December 31, 1903, when the agency at that place was discontinued, and on January 1, 1904, he entered upon the duties of the office at Banes, he having been thereto appointed on October 26, 1903.
It may be well to state here that under section 12 of the act of June 26, 1884 (23 Stat., 53, 56), consular officers are prohibited from charging or collecting fees from American vessels and seamen for any official services rendered them, but must present their claims for such services directly to this Department. This prohibition, however, does not extend to services rendered foreign vessels and seamen, but they (consular officers) are required to collect and account for all fees for such services, and it is from collections of this character that the compensation provided by the above statutes are primarily payable. In this opinion the two classes of earnings will be designated separately as "fees" and "services."