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tional employees had been transferred to the District of Columbia to perform the same duties that had been performed by the original employees in the office of the Surgeon-General, I think their continued employment would have been in contravention of those provisions.
I am, therefore, of opinion that unless a purveying depot should be established in the District of Columbia having duties distinct from the duties of the employees of the office of the Surgeon-General of the Public Health and MarineHospital Service, whose employment and salaries are specifically provided for in the appropriation for that office, the payment of employees therein from the general appropriation for the Public Health and Marine-Hospital Service is prohibited by those provisions.
In view, however, of the fact that the duties of purchasing and issuing the medical and other supplies has been performed at New York City for six years, and that during this time Congress has provided for the employees of the office of the Surgeon-General for other duties, I am also of opinion that the duties of purchasing and issuing such supplies must be regarded as distinct from the duties for which these employees have been provided, and that therefore you are authorized to establish a purveying depot in the District of Columbia and to pay the employees employed therein from the appropriation for the Public Health and Marine-Hospital Service.
PAYMENTS BY DISBURSING OFFICERS TO ENLISTED MEN OF THE NAVY SERVING UNDER FRAUDULENT ENLISTMENTS.
As the contract between the United States and an enlisted man of the Navy who had deserted and fraudulently reenlisted is merely voidable and not void, a disbursing officer is entitled to credit for proper payments made thereunder where he made such payments without knowledge of the fraud and prior to the rescission of the contract by the Government.
(Decision by Assistant Comptroller Mitchell, May 31, 1905.)
H. T. Skelding, paymaster, United States Navy, appealed May 8, 1905, from the action of the Auditor for the Navy Department in settlement dated March 6, 1905, of his accounts for the second, third, and fourth quarters, 1904.
Because the enlistments of George Palmer, Peter Fuller, and James Davis were subsequently discovered to be fraudulent the Auditor disallowed three payments of $45 each for amount of outfit of clothing furnished them as recruits on the receiving ship Wabash in the third quarter of 1903.
The paymaster requests that he be relieved of said disallowances.
The records of the Navy Department show that James Farrell enlisted March 16, 1900, for four years as landsman; deserted June 30, 1902; reenlisted January 15, 1903, for four years as landsman under the name of George Palmer; tried by general court-martial, found guilty of fraudulent enlistment and desertion; served six days on the Wabash and was transferred to the Franklin with $2.47 unpaid. (G. C. M. O., No. 47, dated March 6, 1903.)
Frederick Miller enlisted November 15, 1901; deserted November 19, 1901. He reenlisted February 5, 1903, under the name of Peter Fuller; deserted March 2, 1903, and transferred to deserter's roll, with $20.02 unpaid. (G. C. M. O., No. 75, dated April 21, 1903.)
Clive Palmer Browne enlisted November 21, 1900, as apprentice, third class; discharged as undesirable April 5, 1902; reenlisted February 25, 1903, for four years as landsman for training under the name of James Davis. Transferred to Minneapolis with $4.20 due; tried by G. C. M. O., No. 73, April 13, 1903, and found guilty of fraudulent enlistment.
The men were convicted under the act of March 3, 1893 (27 Stat., 716), which provides that fraudulent enlistment and the receipt of any pay or allowance thereunder are made punishable by general court-martial. A fraudulent enlistment is one procured by means of willful misrepresentation in regard to the applicant's qualifications or disqualifications for the service, or the intentional concealment of a disqualification, without which misrepresentation or concealment the applicant would have been rejected. (4 Comp. Dec., 54.)
The evidence shows that the appellant, the paymaster of the receiving ship Wabash, was directed by the commanding officer at the time of enlistment to credit the three alleged recruits involved with $45 each, and that neither he nor the commanding officer had any knowledge that said enlistments were fraudulent.
The question involved, therefore, is whether the paymaster is entitled to be credited with the amount of the bounty paid as stated.
The act of March 1, 1889 (25 Stat., 781), provides:
"That in order to encourage the enlistment of boys as apprentices in the United States Navy, the Secretary of the Navy is hereby authorized to furnish as a bounty to each of said apprentices after his enlistment, and when first received on board of a training ship, an outfit of clothing not to exceed in value the sum of $45."
In execution of said act article 1395 of the Navy Regulations, 1900, was established, which was amended by General Orders, No. 52, dated July 1, 1901.
Said order provides in part:
"An outfit of clothing not exceeding the value of $45 shall be furnished to apprentices and landsmen for training; apprentices to receive the outfit after arrival at a training station, and landsmen for training after reporting on board a receiving or training ship or at a training station
* * * "
It does not appear that there was anything peculiar about the enlistment of the three men involved from which it could be inferred that they had served previously in the Navy under other names, nor was it known by the appellant that such enlistments were fraudulent until after their transfer from the receiving ship and subsequent trial by court-martial.
The contracts with the Government made by the men whose payments of bounty are in dispute, were voidable and not void, and I am of the opinion that until rescinded by the action of the Government any proper payments made to them by the disbursing officer must be considered as legally made and he should be entitled to credit for the same.
The amount of $135 will therefore be allowed.
PAYMENT TO ADMINISTRATOR AFTER PAYMENT TO NEXT OF KIN.
Where letters of administration appear regular on their face, and the court had jurisdiction to issue them, their legality, so far as the accounting officers are concerned, is not a subject of inquiry. Letters of administration issued by a court without jurisdiction to issue them are absolutely void.
Where letters of administration have been issued by a court of competent jurisdiction, and no negligence is shown in their procurement, the administrator is entitled to an amount due the deceased from the Government, notwithstanding payment thereof had previously been made to the next of kin of the deceased.
(Decision by Comptroller Tracewell, May 31, 1905.)
Michael Quinnan appealed August 29, 1904, from the action of the Auditor for the War Department in settlement dated July 9, 1904.
He claimed pay, clothing, deposits, and effects as administrator of the estate of Patrick Coggins, first class private, Hospital Corps, United States Army.
The Auditor disallowed the claim because
"As there was no evidence in the case nor any filed by claimant showing that soldier left a will, and as claimant did not allege that soldier left a will or that he intended to apply to the court for letters of administration, the amount found due was paid to the soldier's father."
By previous settlement, dated March 4, 1904, the Auditor found due the estate of Patrick Coggins, deceased, and payable to his father, Michael Coggins, the sum of $422.43, consisting of the following items:
Pay from July 1 to August 3, 1903.
Deposits, $300; interest, $10.55..
In pursuance of said settlement payment was made to the father by draft on the assistant treasurer at New York April 16, 1904.
Soldier enlisted May 24, 1902, at Albany, N. Y., as a firstclass private, Hospital Corps, United States Army, and died as such while in the hospital August 3, 1903, at Corregidor Island, Manila, P. I.
He had previously served in the Fourth United States Cavalry from April 9, 1889, to April 8, 1894; in the Hospital Corps, United States Army, from April 26, 1894, to April 25, 1899; and in the Ordnance Department from May 23, 1899,
to May 22, 1902. His fourteenth year of continuous service began May 24, 1902, date of his enlistment; his fifteenth, May 24, 1903. He sailed from the United States for the Philippines July 1, 1902; arrived there July 29, 1902; and served there continuously until his death.
On July 20, 1903, at Corregidor Island, Manila, P. I., soldier addressed an affectionate letter to his uncle, Michael Quinnan, Watervliet, N. Y., a portion of which reads:
"Now I am going to tell you a secret. I may die over here at any time. If I do, all I possess is yours, which will be considerable considering who I am. If I get my health over here there is lots of money to be made. Only last month I deposited $300."
On September 11, 1903, a letter was received by the Auditor from M. H. Fallon, in behalf of said Quinnan, uncle, advising of the receipt by Quinnan of above letter from soldier and requesting that the personal property left by soldier be sent to Quinnan.
On September 23, 1903, the Auditor replied that settlement of amount due soldier could only be made to nearest of kin or to legally appointed representative.
On October 12, 1903, two letters were received by Auditor from said Fallon, one stating that it was believed that soldier left a will leaving his personal effects to his uncle, and the other inclosing letter from soldier to his uncle, referred to above.
November 25, 1903, the personal effects of soldier were transmitted to said uncle.
On December 31, 1903, the Auditor received a letter from Tracey & Cooper, attorneys, representing said uncle, stating that soldier's body had been sent to Watervliet, N. Y., and buried by said uncle, and requesting to be advised as to amount due soldier.
On January 2, 1904, Auditor replied that settlement could be made to Quinnan
"Only upon proof that soldier left no nearer relative than uncle, and that he is the only uncle the soldier had, and that he left no aunt or uncle. If this can not be fully established by the affidavits of two disinterested persons, the amount due, which is about $400, may be paid to the administrator of soldier's estate, upon application by such person, accompanied by a duly certified copy of letters of administration."