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The records of the office of the Auditor for the Navy Department show that in April, 1899, the War Department transported to their homes the remains of deceased officers and enlisted men of the Navy and Marine Corps, who lost their lives outside of the continental limits of the United States, at a cost of $712.40, and that in January, February, and March, 1900, the War Department transported to their homes remains of deceased officers and enlisted men of the Navy and Marine Corps, who lost their lives outside of the continental limits of the United States, at a cost of $860.90. This was done before the passage of the act of June 7, 1900. At the time said service was rendered I am not aware of any law which authorized it. By settlement made by the Auditor for the Navy Department, May 27, 1904, army appropriations, "Bringing home remains of officers and soldiers who die abroad," 1899, 1900, were reimbursed, respectively, for said $712.40 and $860.90, from said appropriations made by the acts of June 7, 1900, July 1, 1902, and February 18, 1904, supra.
The act of April 27, 1904, is available alike for disinterring and transporting to their homes the remains of officers and enlisted men of the Navy and Marine Corps who have died or been killed and buried inside, as well as those who have died or been killed and buried outside, of the United States.
I am of opinion that the words "past obligations," as used in the provisos to the acts supra, were not intended to be used in the sense of strict legal obligations. If they were so intended, then there was no authority of law for reimbursing the War Department for said services, for the reason that at the time they were rendered there was no law authorizing them, and no legal obligations binding upon the Government could have been thus created. By said reimbursement the Secretary of the Navy adopted the act of the War Department in rendering said service as his act.
If the Secretary of the Navy could adopt the acts of the War Department as his own, and reimburse the War Department for expenses incurred in disinterring and transporting to their homes the remains of officers and enlisted men of the Navy and Marine Corps in April, 1899, and January, February, and March, 1900, before the passage of any of said acts, it is difficult to see why he may not, if he sees fit to do so, adopt the acts of the claimant in disinterring and trans
porting to his home the remains of his son before the passage of the act of April 27, 1904, as his own, and reimburse him for necessary expenses incurred in rendering said service.
I am not prepared to say that the payments and reimbursements to the War Department as stated were illegal. If claimant had allowed the remains of his son to remain buried in the cemetery at Mare Island until after the passage of the act of April 27, 1904, the Secretary of the Navy under said act could have caused said remains to have been disinterred and transported to their home at the expense of the United States.
All the acts supra, including the act of April 27, 1904, are beneficial statutes, and should be liberally construed so as not to defeat what seems to have been their general purpose.
I am of opinion claimant may be reimbursed or paid the necessary expenses incurred by him in disinterring and transporting to his home the remains of his son, not to exceed what it would have cost the Government had it rendered said service, providing the Secretary of the Navy will approve said service and such payment, but not to include any expense incurred by claimant after the remains reached the home of the deceased.
COMMUTATION OF RATIONS TO A RETIRED ENLISTED MAN WHILE TRAVELING FROM PLACE OF RETIREMENT TO HIS HOME.
Under paragraph 146, Army Regulations of 1901, and the act of February 14, 1885, which provided for the placing of enlisted men and noncommissioned officers of the Army on the retired list, an enlisted man is entitled to subsistence, or commutation thereof, while traveling from the place of his retirement to his home.
(Decision by Assistant Comptroller Mitchell, August, 10, 1904.)
Frank Dye appealed June 8, 1904, from the action of the Auditor for the War Department in settlement dated April 4, 1904.
The records of the War Department show that soldier was placed on the retired list August 4, 1903, at Calbayog, P. I., by virtue of Special Orders, No. 140, issued June 16, 1903,
from the headquarters of the Army, and which read as follows:
"5. By direction of the President, under the provisions of the act of Congress approved February 14, 1885, as amended by act of Congress approved September 30, 1890, the Assistant Secretary of War directs that the following-named enlisted men be upon their own application placed upon the retired list created by that act, to take effect upon receipt of this order at the posts where they may be serving, and repair to their homes: *
"Commissary Sergeant Frank Dye, Fourteenth Infan
The Quartermaster's Department will furnish the necessary transportation. It being impracticable for these soldiers to carry rations of any kind, commutation therefor will be paid in advance for the necessary number of days' travel. The journeys are necessary for the public service.
"By command of Lieutenant-General Miles."
The papers in the case show that the claimant received transportation from the place of retirement to his home; that he received subsistence in kind for a portion of the journey, and that he was paid commutation of rations for twenty-three days of the journey at the rate of $1.50 per day, in all a period of seventy-seven days, viz, from August 5 to October 20, 1903, during which he received the pay and allowances of a commissary sergeant on the retired list.
He claimed commutation of rations at $1.50 per day while traveling from Calbayog, P. I., the place of his retirement, to Vancouver, Wash., his home, from August 5 to October 20, 1903, a period of seventy-seven days. He was retired while holding the grade of commissary-sergeant, Fourteenth U. S. Infantry.
The Auditor disallowed the claim because
"he is not entitled to commutation of rations while traveling to his home as a retired soldier."
The act of February 14, 1885 (23 Stat., 305), provides:
"That when an enlisted man has served as such thirty years in the United States Army or Marine Corps, either as a private or as a noncommissioned officer, or both, he shall, by making application to the President, be placed on the retired list hereby created, with the rank held by him at the date of retirement, and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired."
The act of March 16, 1896 (29 Stat., 62), provides that thereafter a monthly allowance of $9.50 shall be granted to a retired enlisted man in lieu of the allowance for subsistence and clothing.
Paragraph 146, Army Regulations, 1901, provides that upon the approval of an enlisted man's application for retirement an order will be issued
"transferring him to the retired list and directing that transportation and commutation of subsistence during necessary travel will be given him."
The first construction placed upon the act of February 14, 1885, supra, was that it was so far equivalent to a discharge as to entitle the soldier placed on the retired list to the usual travel allowance to the place of enlistment.
General Orders, No. 55, Adjutant-General's Office, of May 6, 1885, provided that
* "Retired soldiers are entitled to the usual travel allowances to the place of enlistment."
In 1888 Second Comptroller Butler decided that retired soldiers were not discharged from the service within the meaning of section 1290 and were not entitled to travel allowances provided for in said section, but were entitled to transportation in kind to the place of enlistment or home. (Digest of Second Comp. Dec., sec. 874.) He does not give his reasons for this holding other than to place it on the ground that they are not discharged within the meaning of section 1290 of the Revised Statutes. It is apparently based on the theory, however, that while the Government may retire a soldier at any place, just as they may discharge him at any place, still when retired at a place other than his home or place of enlistment he so far retains the status of a soldier in the service as to be liable to be ordered to his home or at least to be considered as traveling under orders for the purpose of the Government returning him to his home, so as to cast upon the Government the obligation to pay his expenses for such travel, and that he has a right to expect this under his contract of enlistment; or, in other words, that he will be retired at his home or place of enlistment or be returned thereto without expense to him.
General Orders, No. 43, Adjutant-General's Office, of May 2, 1889, provided that
"No discharge will be given, however, and the soldier will be regarded as continuing in service upon the retired list, but will be dropped from the rolls of his former command. * * Retired soldiers will be ordered to their homes with transportation in kind and subsistence."
It will thus be seen that it has been the practice of the Government to so far retain control over soldiers placed on the retired list as to order them to their homes and furnish them transportation in kind and subsistence for the period of travel necessary to enable them to obey this order. (See General Orders and Army Regulations above quoted.)
There can be no question that the Secretary of War would have the right to order them to their homes and retire them there. In such a case they would be entitled to transportation in kind and subsistence, or commutation thereof.
They are not discharged from the service within the meaning of section 1290 of the Revised Statutes; but while they do not continue in the Army neither do they have the status of a discharged soldier. (Murphy v. United States, 38 Ct. Cl., 511, 521.) There are, therefore, no special provisions of law governing their traveling allowances while returning to their homes or place of enlistment when retired away from home or the place of enlistment.
The law does not state at what place they shall be placed on the retired list, but a reasonable inference from the policy of the Government in dealing with its officers and soldiers is that the retirement provided for would take place at the home or place of enlistment of the soldier, or that provision would be made for returning him thereto if retired at another place and he desired to go to his home or place of enlistment.
I am of the opinion, therefore, that it was within the province of the Secretary of War, in the execution of the acts of February 14, 1885, and September 30, 1890, to make the regulation requiring that a retired soldier be ordered to his home and furnished transportation in kind and subsistence, or paid commutation in lieu thereof.
This amounted to a practical construction that the acts of February 14, 1885, supra, and September 30, 1890 (26 Stat., 504), required the soldier's retirement at his home or place of enlistment, or, if retired at another place, that he be returned thereto without expense to him if he desired to go. It is not