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This section was amended by the act of June 30, 1902 (32 Stat., 543), as follows:
"Amend section 1389 by striking out in the eighteenth and nineteenth lines thereof the words within the meaning of this section' and inserting in lieu thereof the words 'for all purposes."
I am of opinion that the only effect of this legislation upon contracts of employment is that the days therein declared to be holidays are to be treated in the same manner that they would be treated if they were Sundays. If, therefore, under his contract of employment an employee would not be required to work on Sunday, and would not be entitled to receive pay therefor, if he did not work on that day, under this legislation he would not be required to work on the days declared to be holidays, and if he did not work on those days he would not be entitled to pay for such days.
2. Provisions for pay of per diem employees on holidays. The joint resolution of April 16, 1880 (21 Stat., 304), provides as follows:
"That the employees of the Government Printing Office shall be allowed the following legal holidays with pay, to wit: The first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and such day as may be designated by the President of the United States as a day of public fast or thanksgiving; Provided, That the said employees shall be paid for these holidays only when the employees of the other Government departments shall be so paid: And provided further, That nothing herein contained shall authorize any additional payment to such employees as receive annual salaries."
The joint resolution of January 6, 1885 (23 Stat., 516), provides as follows:
"That the employees of the Navy-Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Washington, or elsewhere in the United States, shall be allowed the following holidays, to wit: The first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days."
The joint resolution of February 23, 1887 (24 Stat., 644), provides as follows:
"That all per diem employees of the Government, on duty at Washington or elsewhere in the United States, shall be allowed the day of each year which is celebrated as 'Memorial' or 'Decoration Day' and the Fourth of July of each year, as holidays, and shall receive the same pay as on other days.'
Section 46 of the act of January 12, 1895 (28 Stat., 607), also specifies additional holidays for employees of the Government Printing Office.
These provisions authorizing per diem employees to receive pay on the holidays specified therein are distinct from the provisions declaring specified days to be holidays in the District of Columbia. The provisions declaring New Year's Day, Fourth of July, Christmas, and Thanksgiving Day to be holidays were enacted June 28, 1870; and the provision declaring Washington's Birthday to be a holiday was enacted January 21, 1879. But it was not until April 16, 1880, that the provision authorizing the employees of the Government Printing Office to receive pay on these days was enacted; and it was not until January 6, 1885, that such authorization was extended to other per diem employees. Moreover, on February 23, 1887, per diem employees were authorized to receive pay for Decoration Day, but this day was not made a holiday in the District of Columbia until August 1, 1888; and although Inauguration Day and Labor Day were made holidays therein on June 18, 1888, and June 28, 1894, respectively, per diem employees other than in the Government Printing Office have not been authorized to receive pay for those days.
I am therefore clearly of opinion that neither per diem employees nor day laborers are authorized by these provisions to receive pay for the Saturday holiday provided for by section 1389 of the Code of Laws for the District of Columbia, unless they work during such holiday.
ESCAPE OF A PRISONER THROUGH NEGLIGENCE OF A DEPUTY MARSHAL.
A deputy marshal was guilty of negligence in permitting a convicted prisoner whom he was taking to prison to sit in a railroad car unshackled and on the side of the car seat next to an open window, and the prisoner having escaped by jumping out of the car window, the deputy is not entitled to reimbursement of his expenses.
(Comptroller Tracewell to L. E. Bennett, marshal, July 30, 1904.)
I have received your letter of 22d instant, as follows:
"Office Deputy John M. Weeks, of this district, has presented to me for payment an account in the case of the United States v. Jim Rogers, charged with carrying a weapon, convicted before Commissioner Jennings at Sapulpa on the 7th of July, and fined the sum of $50 and costs, and sentenced to imprisonment in default of payment thereof. It appears from this account and the explanation attached thereto by Deputy Weeks that while this prisoner was in the custody of the deputy and en route to Muskogee he made his escape by jumping through the car window.
"As the deputy did not deliver the prisoner to the jail at Muskogee as directed in the final commitment, and from his statement, if correct, does not seem to have taken sufficient precaution to secure the prisoner, I am in doubt about the payment of the account and submit the same to you for your decision."
The explanations submitted by the office deputy are as follows:
"The prisoner in this case was committed to jail for carrying a revolver and was turned over to me to take to Muskogee jail. It being a case of misdemeanor, I placed him in the custody of guard until I could get a train out for Muskogee. The guard had him overnight and when he turned him over to me in the morning he said to me that I need have no fear of him, as he felt sure that he would not try to get away; but believing I had a criminal I kept very close guard over him at all times, and especially when off the train, and he at no time showed the least disposition to break away. This being the case and the offense so small, the sentence so light, I felt that it was useless to shackle him in any way; hence he was not in any way confined. I was, however, sitting beside him on the car, but he was next the window, and it raised, and
when well out of Boynton, Ind. T., about 15 miles from Muskogee, he jumped through the window and made his escape. I had just turned around to observe something on the opposite side of the road when he, as if by magic, doubled himself up and rolled out of the window. I was powerless to stop the train for the reason that it was a mixed train, one coach attached to a long freight train and no connection with engine by rope or otherwise, hence the train ran on while the prisoner ran the other way and made good his escape."
The only question raised by your request for decision is one of negligence.
Where a prisoner escapes the law imputes negligence. See United States v. Nix (189 U. S., 199 et seq.). The burden of proof is on the person permitting the escape to show that it was not the result of negligence. In other words, he must show that he took all reasonable precautions to prevent an escape.
Taking the statement of the deputy who suffered this escape, it is far from showing that he used ordinary precautions to prevent just what happened. He did not handcuff the prisoner, nor do I hold that handcuffing or otherwise shackling a prisoner being conveyed to jail on a conviction for an ordinary misdemeanor, such person not being considered either a dangerous or desperate character, is necessary to prevent an inference of negligence; but when such precaution is dispensed with, the officer so transporting a prisoner should be the more careful and not permit such prisoner in the full possession of all his power to sit next to an open window in a train, such as described by this officer, where it was impossible to use a bell cord or otherwise stop the train, upon the prisoner taking advantage of a slowing up of the train usual to such class of trains to make his escape.
Upon the showing of facts in this case such escape was the result of the negligence of Deputy Weeks, and you are not authorized to pay him the expenses so incurred.
PAYMENT OF REGISTRATION FEE ON REGISTERED
The appropriation for contingent expenses of the Marine Corps is applicable to the payment of registration fees on letters which the regulations of the Corps require to be registered.
(Assistant Comptroller Mitchell to the Secretary of the Navy, August 1, 1904.)
I have received by your reference of July 27, 1904, a communication from the assistant paymaster, U. S. Marine Corps, to the brigadier-general commandant, dated June 20, 1904, as follows:
"I have the honor to herewith transmit a letter from the postmaster, San Francisco, Cal., dated May 15, 1901, relative to registration fees on official mail matter here. Although a copy of this communication was furnished to the quartermaster of the Corps on July 8, 1901, and he then reimbursed me by check No. 4273 for an expense incurred from my private funds in meeting this situation in an emergency, he has since, except upon one occasion, failed to honor my requisitions for postage stamps for this public purpose. A requisition dated May 19, 1904, for stamps of 5, 2, and 1 cent designation for meeting the registration fee of 8 cents, as well as for foreign correspondence, is retained with this indorsement by the quartermaster, U. S. Marine Corps, dated June 14, 1904:
1. Respectfully returned to the assistant quartermaster, U. S. Marine Corps, San Francisco, Cal., with the information that the assistant quartermaster, U. S. Marine Corps, on duty at these headquarters has been directed to procure 50 5-cent postage stamps for foreign postage for use in the office of the assistant paymaster, U. S. Marine Corps, San Francisco, Cal. There is no specific appropriation for the purchase of stamps for any other purpose.'
2. It is very desirable that certain letters from this office. containing checks shall be registered. If the Government, as represented by the Quartermaster's Department, declines now to meet this expense, it becomes important to this office to know who will bear the responsibility in the event of loss of remittances which it is deemed here desirable to register. Moreover, the Navy Regulations, article 983, paragraph 5, enjoin upon this office the registry of certain described communications. It follows that either the Government must meet this expense or the Government must modify its regulations, for it is scarcely just that a situation shall be created by divers