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therefore comes under the first clause, and following the rule as laid down by the Comptroller, he would only be entitled to leave or waiting orders pay.
"One of the objects of ordering an officer to a hospital for treatment is to allow him mileage or reimburse him for his traveling expenses. Until the decision in the Baker case, supra, it had never been held by the Navy Department nor the accounting officers that the fact that an officer was ordered to a hospital, or was in a hospital when detached from duty, was in a duty status and entitled to duty pay.
"In view of the long and continued practice of the Navy Department and the accounting officers of allowing leave or waiting orders pay to an officer of the Navy whose incapacity for duty is determined by a board of medical survey, and he is formally detached, I am of opinion that Paymaster Woods was not in a duty status, and is not entitled to the pay of an officer on duty, while under treatment in the Naval Hospital, Mare Island, Cal., and at the Army and Navy Hospital at Hot Springs, Ark."
With the papers in the case appears the following order to Mr. Woods from the Chief of Bureau of Navigation, dated Washington, D. C., August 18, 1904, in addition to the orders quoted by the Auditor:
"In compliance with your request of August 8, approved by the commanding officer of the Army and Navy Hospital, and upon the recommendation of the Surgeon-General of the Navy, when you have been discharged from further treatment at said hospital, you will proceed to your home, and you are granted sick leave of absence for three months, to date from your arrival home.
"Immediately upon your arrival home, report your local address in full, and the date of your arrival, to the Bureau of Navigation; see articles 240 and 241, Navy Regulations, 1900. "Comply with article 1677, paragraph 3, Navy Regulations."
Claimant has been a commissioned officer of the Pay Corps of the Navy since before the passage of the act of March 3, 1899, known as the Navy personnel act, and was commissioned paymaster March 3, 1903.
By section 1556 of the Revised Statutes, the annual pay of paymasters in the Navy during the first five years after date of commission is as follows: "When at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave or waiting orders, two thousand dollars."
If upon the facts stated claimant was on shore duty from June 17 to August 19, 1904, he should receive shore-duty pay
for such period, as provided by said section 1556, less any amount he has already received for such period, and section 13 of the act of March 3, 1899 (30 Stat., 1007), as amended by the act of June 7, 1900 (31 Stat., 697), has no application to his case, for the reason that his pay is greater under said section 1556 than it otherwise would be under said acts of March 3, 1899, and June 7, 1900.
In the case of Baker v. United States, No. 23027, decided by the Court of Claims March 28, 1904, cited by the Auditor, the facts were that Baker, while a surgeon, United States Navy, and attached to the U. S. S. Bennington, was detached from duty on board said vessel and placed on waiting orders with permission to proceed to his home at his own expense, and while on such waiting orders he was on May 13, 1897, ordered to proceed to the United States naval hospital at Mare Island, Cal., for treatment, which order he obeyed, reporting at said hospital for treatment May 13, 1897; he was discharged from further attendance at said hospital October 20, 1897, and ordered to proceed to his home and await orders.
Upon the above facts Baker presented a claim to the Auditor for the Navy Department for the difference between shoreduty pay at the rate of $2,400 per annum and leave or waitingorders pay at the rate of $2,000 per annum, from May 13 to October 20, 1897. The Auditor disallowed the claim, and Baker appealed to the Comptroller. In a decision by this office, May 27, 1898 (4 Comp. Dec., 651), the action of the Auditor in disallowing said claim was affirmed on the ground that Baker's status of an officer on leave or waiting orders was not changed by said order directing him to proceed to a hospital for treatment. In other words, that decision, in effect, was that if an officer while on leave or waiting orders was ordered to a hospital for treatment he was entitled only to such pay while in hospital as pertained to his status prior to going to hospital. In the above case, upon the facts stated, the Court of Claims rendered judgment in favor of Baker against the United States for $173.01, or the difference between shore-duty pay at the rate of $2,400 per annum and leave or waiting-orders pay at the rate of $2,000 per annum, from May 13 to October 20, 1897. (See also Collins v. United States, 37
Ct. Cl., 222, and Ackley v. United States, No. 23982, decided by the Court of Claims February 6, 1905.)
In the case here presented it appears from the orders set forth above that Mr. Woods was by order of June 16, 1904, supra, detached from duty as pay officer of the U. S. S. Buffalo and ordered to proceed to Hot Springs, Ark., for treatment in the Army and Navy Hospital at that place. In obedience to said order of June 16, 1904, he proceeded to Hot Springs and reported June 24, 1904, at said Army and Navy Hospital for treatment and remained in said hospital under treatment until August 19, 1904, when he was discharged from treatment in said hospital. During the whole period in question-June 17 to August 19, 1904—while traveling to the hospital and while receiving treatment therein, claimant was obeying orders issued by competent authority and which he was bound to obey, and in doing so I am of opinion he was in the performance of duty as much so as if he had been performing any other duty in obedience to orders which he was bound to obey.
Upon the facts stated I am of opinion that claimant was entitled to receive shore-duty pay from June 17 to August 19, 1904, and he will be allowed to recover on this claim shoreduty pay less amount already paid him as pay during said period.
The proposed decision by the Auditor is not approved.
CLAIM FOR REFUNDMENT OF STAMP TAX ON EXPORT BILLS OF LADING.
The appropriation made in section 2 of the act of June 27, 1902, for the refundment of sums illegally assessed and collected for stamps used on export bills of lading is a permanent indefinite appropriation.
Claims filed under the act of June 27, 1902, for the refundment of sums illegally assessed and collected for documentary stamps used on export bills of lading are not claims for the redemption of documentary stamps, within the meaning of the act of June 30, 1902, which limits the time in which such claims may be filed.
(Decision by Comptroller Tracewell, February 18, 1905.)
The Auditor for the Treasury Department has reported for approval, disapproval, or modification a decision making an original construction of a statute as follows:
"I have received the claim of Oelrichs & Co. for the amount paid by them for stamps used on export bills of lading, stated as $1,400, and which is allowed by the Commissioner of Internal Revenue for $1,495.69, as per his findings of facts, as follows:
"IN RE: THE CLAIM OF OELRICHS & CO., NEW YORK, N. Y., FOR THE REFUNDING OF $1,510.80 PAID FOR DOCUMENTARY STAMPS USED ON EXPORT BILLS OF LADING.
"Finding of facts.
"On or after July 1, 1898, Oelrichs & Co. purchased and affixed, or caused to be purchased and affixed, to each 15,108 bills of lading issued for goods exported from New York City, a seaport or place in the United States, to foreign ports or places, documentary stamps to the value of 10 cents.
"On April 15, 1901, the United States Supreme Court decided in the case of Fairbank v. United States that a stamp tax on an export bill of lading was equivalent to a tax on the articles included in that bill of lading, and therefore a tax or duty on exports, and in conflict with the constitutional prohibition. By the act of June 27, 1902, the Secretary of the Treasury was authorized and directed to refund sums paid for documentary stamps used on export bills of lading, such stamps representing taxes which were illegally assessed and collected.
"The claim was filed in the office of the collector June 25, 1904. The stamps do not accompany the claim for the reason that the bills of lading to which the stamps were affixed were sent abroad to destination of the export shipments.
"The claim is hereby allowed under the act of June 27, 1902, for $1,495.69, being the amount paid for stamps used on 15,108 bills of lading, less 1 per cent discount allowed when the stamps were purchased.
"A schedule of export bills of lading to which the stamps were affixed accompanies the claim.
J. W. YERKES,
"The claim arises under section 2 of the act of June 27, 1902 (32 Stat., 406), which act the Assistant Comptroller decided July 5, 1904, in case of claim of Ely Bernays was permanent legislation, and the appropriation therein made for the refundment of the taxes specified must be regarded as available until the refundments therein authorized have been made.'
"The claim was sworn to June 17, 1904, and $1,400 was specified as the amount for which a refund was asked and demanded.
"The claim was filed with the collector of internal revenue June 25, 1904, and was received by the Commissioner of Internal Revenue November 25, 1904.
"The Commissioner called for additional evidence in the case, whereupon the claimants furnished a schedule of 15,108 bills of lading, upon each of which they claim to have affixed stamps of the value of 10 cents which amounts to $1,510.80, being $110.80 more than the amount stated in the claim. The schedule appears to have been filed with the Commissioner of Internal Revenue in December, 1904, with claimant's statement that at time of filing the claim it was impossible to know the exact amount to be refunded, therefore the claim was estimated at about $1,400.' That schedule, which is now attached to claim, was prepared, and it was found that the various items enumerated on said schedule amounted to more than the amount claimed in the estimated claim.
"The Commissioner of Internal Revenue has made his allowance, based on the amount of the schedule, although the increased amount thereof of $110.80 over the claim filed June 25, 1904, is barred under the provisions of circular of August 24, 1904, Department No. 84, Internal Revenue No. 663, which applies the act of June 30, 1902 (32 Stat., 506), providing for the redemption of documentary and proprietary stamps if presented prior to July 1, 1904, to the claims arising under section 2 of the act of June 27, 1902, in the following language: Under this amendment to the act of March 12, 1902, no claim for the refunding of an amount paid for documentary stamps on export bills of lading will be entitled to consideration unless presented prior to July 1, 1904.'
"In view of the decision of the Assistant Comptroller in the aforesaid Ely Bernay's case that the act of June 27, 1902 (32 Stat., 406), is permanent legislation, I have decided that the claims arising under section 2 of said act for refund of the amount paid for stamps used on export bills of lading are not subject to the act of June 30, 1902 (32 Stat., 506), by which the time for the presentation of claims for redemption of documentary and proprietary stamps is limited to July 1, 1904, and that they may be filed after July 1, 1904, without restriction as to time, and be settled and paid from the permanent appropriation provided for the purpose."
In my decision of January 31, 1905, in the case of the claim of Rochel and Werkan, in which the effect of section 5 of the act of June 20, 1874 (18 Stat., 110), upon the permanent indefinite appropriation made by section 3195 of the Revised Statutes was considered, I held that the provisions of that act, that the Secretary of the Treasury shall cause all unexpended balances, with certain exceptions specified therein, which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund, do not apply to permanent indefinite appropriations. I therefore concur with