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therefore your communication is treated as a request for a decision in advance of payment to Major Carrington rather than as an appeal from any decision of the Auditor.
Section 1265, of the Revised Statutes, provides:
"Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When absent without leave they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.
The term "absent," as used in this section, means absent from duty. An officer who is absent from duty without permission granted by competent authority is "absent without leave." I think, therefore, that an officer of the Army who is arrested and held in custody by the civil authorities, without permission to be absent granted by proper military authority, must be regarded as absent without leave.
The provision in this section that officers who are absent without leave shall forfeit all pay during such absence “unless the absence is excused as unavoidable," implies that where the absence is excused as unavoidable they shall not forfeit their pay.
Paragraph 1399, Army Regulations, 1904, provides as follows:
"Officers and enlisted men in arrest and confinement by the civil authorities will receive no pay for the time of such absence; if released without trial, or after trial and acquittal, their right to pay for the time of such absence is restored."
This regulation is an official declaration that where an officer of the Army who has been arrested and held in custody by the civil authorities is either released without trial or acquitted after trial, his absence "is excused as unavoidable;" but that where he is convicted his absence is not to be so regarded.
I think, however, that this declaration has reference to the final disposition of the civil proceedings. Where, therefore, as in the case presented, an officer has been convicted and an appeal to a higher court has been granted, I am of opinion that the final disposition of the case should be awaited before
it can be determined whether his absence is excused as unavoidable. But until this question is determined in the affirmative I am of opinion that an officer of the Army so absent without leave is not entitled to pay during his absence.
I have the honor, therefore, to reply to your question in the negative.
PAY OF A SPECIAL AGENT OF THE GENERAL LAND OFFICE WHILE SUSPENDED.
A special agent of the General Land Office, who was suspended by the Secretary of the Interior without pay pending the investigation of charges against him, is not entitled upon being subsequently restored to duty to compensation for the time he was suspended.
(Decision by Comptroller Tracewell, May 4, 1905.)
The Auditor for the Interior Department has reported for approval, disapproval, or modification, a decision modifying an existing construction of a statute as follows:
"I submit for your approval, disapproval, or modification, my decision that there is due from the United States to C. A. Lounsberry the sum of $692.95, on account of salary as a special agent of the General Land Office at $1,200 per annum for the period from October 11, 1903, to May 8, 1904, during which time the said special agent was suspended from duty, by direction of the Secretary of the Interior, pending an investigation of charges of official misconduct.
"The claimant was appointed by the Secretary of the Interior April 28, 1897, 'a special agent of the General Land Office at a salary of $1,200 per annum,' and paid such salary from that date to October 10, 1903, out of the annual appropriations for 'Protecting public lands, timber, etc.:'
"Depredations on public timber, protecting public lands, and settlement of claims for swamp land and swamp-land indemnity: To meet the expenses of protecting timber on the public lands, and for the more efficient execution of the law and rules relating to the cutting thereof; of protecting public lands from illegal and fraudulent entry or appropriation, and of adjusting claims for swamp lands, and indemnity for swamp lands, forty thousand dollars: Provided, That agents and others employed under this appropriation shall be selected by the Secretary of the Interior, and allowed per diem, subject to such rules and regulations as he may prescribe, in lieu of subsist
ence, at a rate not exceeding three dollars per day each and actual necessary expenses for transportation, including necessary sleeping-car fares.'
"The claimant was suspended by the Commissioner of the General Land Office by letter of October 7, 1903, in the following words:
"SIR: October 5, 1903, the Acting Secretary of the Interior approved the recommendation of this Office made upon the report of Special Inspector E. B. Linnen preferring charges against your official conduct, that you be suspended from further duty as a special agent of this Office pending an investigation.
"You are hereby accordingly suspended from further duty from and after the date of the receipt of this letter.
"I inclose here with copies of the records in the case, and you will be given thirty days to answer the charges therein made.
* * * "
"He was restored to duty, by direction of the Secretary of the Interior, by the Commissioner's telegram of May 9, 1904, as follows:
"Restored to duty. Report at your headquarters. Letter follows.'
"This claim is approved for payment by the Secretary of the Interior upon the recommendation of the Commissioner of the General Land Office in a carefully considered presentation of the law and the facts.
"At the time the charges were preferred against this claimant, or at any other time, it was clearly within the power of the Secretary of the Interior to remove him from the position or office of special agent, and to terminate beyond question the obligation of the United States for the payment of his salary. (9 Ct. Cl., 375; 30 Ct. Cl., 222; 33 Ct. Cl., 186; 10 Comp. Dec., 361; 167 U. S., 324.) The Secretary elected not to take this course. The claimant was not dismissed from the service. He has at all times been 'special agent of the General Land Office at a salary of $1,200 per annum,' since the date of his appointment, April 28, 1897.
Upon the revocation of the order suspending the claimant from the performance of his duties as special agent he was not required to take an oath of office, have his name entered upon the roll of employees, or do any other thing required in cases of original appointments, promotions, or changes in the official status of employees.
"The form and words employed by the Commissioner in his telegram to the claimant of May 9, 1904, are significant in determining his accepted relationship to the public service at that time:
"C. A. LOUNSBERRY,
Special agent G. L. O., Fargo, North Dakota. "Restored to duty. Report at your headquarters. * * * "The Commissioner did not say: 'You are restored to the office of special agent. Take the oath and report for instructions to the register and receiver at Fargo."
"The telegram was addressed to the claimant as a special agent of the General Land Office, and the fact that he was the incumbent of such office, with established headquarters, fully recognized.
"The word suspended imports that the person suspended is still the incumbent of the office; that the interruption of the performance of its duties is temporary and provisional.' Attorney-General Hoar. (13 Op. Att. Gen., 221.)
"Paul C. Lellman, a draftsman at $1,400 per annum in the office of the surveyor-general of Idaho, whose salary was payable from a lump appropriation For clerks in the office of the surveyor-general of Idaho,' recovered a judgment in the Court of Claims for his salary during a period within which he had been suspended from duty by the surveyorgeneral, for the reason that the work in that office was insufficient to justify the further employment of said draftsman. This suspension was approved by the Commissioner of the General Land Office November 9, 1897, but on May 27, 1898, the Commissioner revoked the action of the surveyor-general, and directed the restoration of Lellman.
"In this case Justice Weldon, delivering the opinion of a unanimous court, said:
"It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power having jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be due him during the time of such suspension.' (37 Ct. Cl., 135.)
This decision being a modification of an existing construction of law, conflicting with my decision, approved by you on appeal numbered 9580 in the Ernest Robitaille case, is submitted for your consideration."
In the case of Lellman v. United States, supra, to which the Auditor refers, the court said:
"It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power having jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be due him during the time of such suspension."
In that case the Commissioner of the General Land Office revoked the action of the surveyor-general in suspending the claimant, although his action had previously been approved. It appears that the Court of Claims regarded this revocation as an annulment of the suspension ab initio. In the case under consideration herein the special agent, after having been suspended seven months, was restored to duty. The suspension was not a removal, and a new appointment was not necessary to restore him to duty.
It is a general rule relating to the tenure of officers that where a suspension does not operate to produce consequences materially differing from those caused by a removal, it will be regarded as a lesser power included in the power of removal. (Am. and Eng. Ency. of Law, vol. 19, p. 562j.) There may be some officers, therefore, who are not subject to suspension, although subject to removal. But in the case of an ordinary employee I think there is no such exception, unless made by some provision of statute.
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 placed on leave of absence without pay for five months, 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 Supreme Court said:
"While under the regulations of the Department an employee is not entitled to a 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 in effect 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 fur