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You are therefore not authorized to pay it out of any funds in your hands as marshal. Said account and the correspondence in connection therewith are herewith returned.
PAY OF OFFICER OF THE ARMY UPON CONVICTION BY THE CIVIL COURTS OF THE PHILIPPINE ISLANDS.
An officer of the Army who was convicted by the civil courts of the Philippine Islands, and released under bond pending the final determination of an appeal to a higher court, is "absent without leave" within the meaning of section 1265, Revised Statutes, pending the determination of said appeal, and, under the provisions of the above section, he is not entitled to pay during such absence.
(Assistant Comptroller Mitchell to the Secretary of War, June 14, 1905.)
In your communication of June 3, 1905, you request a reconsideration of the decision rendered by me on April 29, 1905. In your communication you say:
"On April 15, 1905, your decision was requested upon a question which had arisen in connection with the payment of Maj. Frank DeL. Carrington, First Regiment of Infantry; and I beg to acknowledge the receipt of your decision of April 29, 1905, upon the question so presented in advance of payment.
I find, however, upon an examination of the case as originally submitted, that some facts which are believed to be essential to its determination were not so fully presented as they should have been in my communication of April 15; and I have caused a report to be prepared by the JudgeAdvocate-General in which the orders under which Major Carrington acted are fully set forth. I inclose a copy of that report and, in view of the new matter which it contains, I have the honor to request that you give the subject such reconsideration as you may deem warranted by the facts so presented."
It appears from the report of the Judge-Advocate-General transmitted by you that Major Carrington was assigned to the command of a provisional battalion of Philippine Scouts, in November, 1903; that he was subsequently detailed for duty in connection with the Philippine exhibit at the Louisiana Purchase Exposition; that while so detailed it was charged that he had falsified vouchers and misappropriated and
embezzled moneys belonging to the Philippine government; that in March, 1904, he was relieved from further duty in connection with the exposition; that on June 28, 1904, having arrived in Manila, he was assigned to temporary duty therein for the purpose of straightening out his accounts; that no military prosecution was instituted, but that he was prosecuted by the civil authorities and convicted; that pending further proceedings in the supreme court of the Philippine government he has been released on bail.
In my decision of April 29, 1905, I said:
"Section 1265, 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." The Judge-Advocate-General in his report says:
"Major Carrington's official status is that established by his instructions of June 28, 1904; he has temporary station in Manila pending the settlement of his accounts with the Philippine treasury. That status may and should be terminated by the division commander whenever he is advised that Major Carrington's case has been finally settled; and his status will then be determined by the decision of the court of last resort. "Meantime, as has been said, Major Carrington has been released on bail and it is important to consider the effect of such release upon his military status. Bail having been given the principal passes into the custody of his sureties and, save for such duress as is imposed by his bail bond, he is a free agent until, in conformity to the conditions of the bond, he is required to appear in court to abide any judgment which may there be rendered."
If the Judge-Advocate-General intends to imply by the above language that Major Carrington, by reason of his still retaining a technical status of military duty, although he may not in fact have actually resumed the performance of his duties, is not to be regarded as absent without leave while released on bail by the civil authorities, I can not concur with him.
I am of opinion that an offender, while released on bail for appearance at court for trial, remains in the custody of his bondsmen, as agents of the court. (See 2 Comp. Dec., 352.) In describing the nature of bail, Blackstone (Bk. III, p. 290) says:
"The defendant is bailed or delivered to his sureties, upon their giving surety for his appearance, and is supposed to continue in their friendly custody instead of going to jail."
In State v. Brown (16 Iowa, 316) the court said:
"A man's bail are the jailers of his own choosing, and they are bound to have him as much in the power of the court as he would be if in the custody of the proper officers."
In Clark's Criminal Procedure, page 83, it is said:
"A man's bail are looked upon as his jailers of his own choosing and the person bailed is, in the eye of the law, for
many purposes, esteemed to be as much in the prison of the court by which he is bailed as if he were in the actual custody of the proper jailers.'
I am therefore of opinion that Major Carrington must be regarded as absent without leave, being in the custody of his bondsmen, and not performing military duty. I am therefore constrained to adhere to my decision of April 29, 1905.
MEDICAL ATTENDANCE TO RETIRED OFFICERS OF THE ARMY DETAILED TO DUTY AT EDUCATIONAL INSTITUTIONS.
A retired colonel or lieutenant-colonel of the Army detailed, under the act of November 3, 1893, to duty at an educational institution, being entitled, under the provisions of the act of March 2, 1905, to the full pay and allowances of a major on the active list, is entitled to such medical attendance and medicines at the expense of the United States as are authorized for a major on the active list; but under the provisions of said act of March 2, 1905, a retired officer above the rank of colonel is not entitled while so detailed to said allowances.
(Assistant Comptroller Mitchell to the Secretary of War, June 14, 1905.)
By your letter of June 7, 1905, I am in receipt of an inquiry from the Surgeon-General of the Army, asking my decision on a question raised by Lieut. Col. E. G. Fechét, retired, as to whether retired officers of the Army on duty at educational institutions under the act of November 3, 1893 (28 Stat., 7), are entitled under existing law to medical attendance and medicines at the expense of the United States.
From the accompanying papers it appears that by Special Order 143 of June 18, 1904, by direction of the President under the act of November 3, 1893 (28 Stat., 7), Lieutenant-Colonel Fechét upon his own application was detailed as professor of military science and tactics at the University of Illinois, Champaign, Ill., to take effect August 10, 1904. There is inclosed a voucher in duplicate for medical attendance furnished the officer by a civilian physician during April, 1905: and the inquiry is submitted in connection with that account. Section 1225, Revised Statutes, as amended by the act of September 26, 1888 (25 Stat., 491), provides:
"The President may, upon the application of any established military institute, seminary, or academy, college or university within the United States * * * detail an officer of the Army or Navy to act as superintendent or professor thereof.
The act of November 3, 1893 (28 Stat., 7), provides:
"That section twelve hundred and twenty-five of the Revised Statutes, concerning details of officers of the Army and Navy to educational institutions, be, and the same is hereby, amended so as to permit the President to detail under the provisions of said act not to exceed one hundred officers of the Army of the United States; and officers on the retired list of the Army may upon their own application be detailed to such duty, and when so detailed shall receive the full pay of their rank."
Under the law as it stood at the time it was held in 7 Comp. Dec., 92 (1900), as follows:
* * *
"Par. 1028, Dig. 2d Comp. Dec., vol. 1, says: 'Medicine and medical attendance for an officer * * are considered as allowances. " It seems clear that medicines and medical attendance can not be considered as part of the pay of an officer, and they must therefore be regarded as in the nature of an allowance which is not authorized to be given a retired officer detailed under the act of November 3, 1893, supra.
The act of March 2, 1905 (33 Stat., 831), provides:
"That retired officers of the Army above the grade of major, heretofore or hereafter assigned to active duty, shall hereafter receive their full retired pay, and shall receive no further pay or allowances from the United States: Provided further, That a colonel or lieutenant-colonel so assigned shall receive the full pay and allowances of a major on the active list."
In the case of Col. J. H. Calef, decided May 18, 1905 (11 Comp.), it was said:
"retired officers detailed to colleges under the provisions of the act of November 3, 1893, are assigned' to active duty within the meaning of the act of March 2, 1905, and are entitled only to the rates of pay authorized by that act. Payment should accordingly be made to Colonel Calef for services on and after March 2, 1905, of only the full pay and allowances of a major on the active list."
I am therefore of opinion that a (retired) colonel or lieutenant-colonel detailed to an educational institution under the