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"Under date of May 27 Mr. John F. Wallace writes the following letter:
C Mr. C. M. STRONG,
"Acting Auditor, Isthmian Canal Commission, Panama. "SIR: I have the honor to inform you that I have authorized the general quartermaster to approve for me, and by my direction, vouchers to the value of not exceeding $100. "Very respectfully,
"JOHN F. WALLACE, "Member Isthmian Canal Commission and "Executive Committee, Chief Engineer.'
Vouchers for payment are now being sent to this office bearing the following inscription: 'Approved and payment authorized, by direction of the chief engineer. Edw. L. King, General Quartermaster.'
"I have the honor to request your decision as to whether vouchers approved in this manner will be acceptable to the accounting officers of the Treasury."
Treasury Department circular No. 52, of April 29, 1903, prescribes that—
"5. Vouchers for services or supplies must contain a certificate of the proper officer that the services have been rendered, and in case of supplies that they have been delivered, and show by whom received."
It is left to the particular department to designate the proper officer to make the required certificate, except where such officer is designated by law.
In the present case, the Isthmian Canal Commission, by the adoption of the resolution of May 24, supra, designated the head of the department of canal construction (Mr. J. F. Wallace) as the proper officer to approve vouchers for expenditures made by that department on the Isthmus of Panama.
The law is well settled that where power is given to a public officer, which requires the exercise of judgment and discretion, such power can not be by him delegated to another (Mechem on Public Officers, p. 567). The approval of vouchers for the expenditure of public moneys is no mere formality, but requires the exercise of judgment and discretion as to the necessity for the expenditure and other matters in connection with it.
I am therefore of the opinion that Mr. Wallace is not authorized to delegate to the quartermaster-general, or any
one else, power to approve vouchers, but that such approval, so long as the resolution of May 24, supra, is in force, must be evidenced by his personal signature.
FORFEITURE OF PAY BY SENTENCE OF SUMMARY COURT-MARTIAL.
Pay of an enlisted man of the Navy which has been forfeited by sentence of a summary court-martial may properly be charged against pay which had accrued prior to the approval of the sentence.
(Decision by Assistant Comptroller Mitchell, June 13, 1905.)
L. R. Dorris, late chief machinist's mate, U. S. Navy, appealed, May 8, 1905, from the action of the Auditor for the Navy Department in settlement, dated April 13, 1905, disallowing his claim for $210, the amount checked against his account in pursuance of the sentence of a summary courtmartial held on board the Independence February 7, 1905.
The Auditor disallowed the claim because:
"He received a sentence by summary court-martial involving a loss of pay amounting to $210, which was approved by competent authority, and the checkage was therefore correct."
It appears from the report of the Judge-Advocate-General of the Navy, dated February 23, 1905, that the claimant was-“tried by summary court-martial on board the Independence, February 7, 1905, was found guilty of being drunk on the New Orleans February 5, 1905, where he had been sent in a working party, and sentenced, as approved by the Department, to solitary confinement in double irons, on bread and water, for thirty days, with a full ration every third day, and to lose three months' pay, amounting to $210."
Articles for the government of the Navy provide:
"8. Such punishment as a court-martial may adjudge may be inflicted on any person in the Navy
* * drunkenness * * * " "(1) Who is guilty of * "30. Summary courts-martial may sentence petty officers and persons of inferior ratings to any one of the following punishments, namely:
"(2) Solitary confinement, not exceeding thirty days, in irons, single or double, on bread and water, or on diminished rations.
"(8) Extra police duties, and loss of pay, not to exceed three months, may be added to any of the above-mentioned punishments."
Article 1831, Navy Regulations, 1900, provides:
"(1) Sentences of summary courts or parts thereof, which involve loss of pay, in direct terms, can not lawfully be executed until approved by the Secretary of the Navy, and must, therefore, be referred to him
It thus appears that the said sentence and the approval thereof was in accordance with the laws and regulations applicable thereto.
The claimant's term of enlistment expired on February 13, 1905, and he was paid up to and including that date, less the three months' pay amounting to $210 forfeited by said
As the claimant was entitled to pay for only seven days after the promulgation of the said sentence and as the loss of pay is not limited by the sentence to the pay of any particu lar designated months, the question arises as to whether said loss of pay is legally chargeable against the pay due at the time of the promulgation of the sentence or is it operative only on pay accruing after that date.
The Judge-Advocate-General of the Army held, in 1876 and 1877, that in such case the forfeiture of pay
"is legally chargeable against the pay due and payable to the soldier at the next pay day after the promulgation of the approval of the sentence and, if no pay is then due or that due is not sufficient to discharge the forfeiture, against the pay due and payable at successive pay days till the entire forfeiture is satisfied. The forfeiture, upon the promulga tion and notice to the party of the approval of the same, becomes a debt due to the United States and may legally constitute a charge against the pay then due the party." (Par. 1387, Dig. Op. Judge-Advocate-General, 1901.)
I think the above rulings correctly state the principle which should govern in the absence of any regulation to the contrary.
General Order No. 53, dated July 22, 1878, of the AdjutantGeneral's Office, provided that a sentence of a court-martial promulgated in orders after that date, which adjudges forfeiture of a soldier's pay and is silent as to the commencement of the forfeiture, does not apply to pay accrued prior to the promulgation.
This rule has since been followed in the Army (See Army Reg., par. 951 of 1895, par. 1052 of 1901, par. 984 of 1904;
Dig. Second Comp. Dec., vol. 2, sec. 377; MS. Dec., vol. 28, p. 808.)
There is no regulation in the Navy on the subject. I understand, however, that the practice in the Navy has been and is in accordance with the opinion of the Judge-Advocate-General of the Army quoted above.
In the absence of a regulation in the Navy to the contrary, and in view of the practice in the Navy, I am of opinion that said loss of pay for three months, amounting to $210, is legally chargeable to the pay accrued to claimant prior to the approval of said sentence.
The action of the Auditor is affirmed.
CLAIM OF A CONSTABLE FOR KEEPING AND BOARDING AN ESCAPED PRISONER.
The claim of a constable for keeping and boarding an escaped prisoner from the Fort Belknap Indian Reservation prior to the arrest of the prisoner by the marshal, is not a proper charge against any apppropriation for the Department of Justice, but is payable from the special appropriation, under control of the Secretary of the Interior, for general incidental expenses of the Indian service.
(Comptroller Tracewell to C. F. Lloyd, marshal, June 13, 1905.)
I have received your letters of 11th and 27th ultimo, and voucher of one Michael Buckley, a constable, for services rendered in capturing one Jim Brown, a half-breed Indian, an escaped prisoner from the Fort Belknap Indian Reservation in Montana. The constable's account is for the keeping and board of said escaped prisoner for four days in November, 1904, amounting to $30.
The facts as they appear from the papers submitted are as follows:
"This prisoner was arrested on November 17, 1904, at the Fort Belknap Indian Reservation, for committing an assault with a deadly weapon on a white clerk in the Indian trading store at the agency. He was arrested by the Indian police and placed in the guardhouse, and during that night made his escape. On this information W. R. Logan, superintendent and special disbursing agent at the Fort Belknap Indian Agency, telephoned the constable, Michael Buckley, at Har
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lem, a small town outside the reservation, to arrest and hold the prisoner.
"The matter was at once brought to the notice of the United States commissioner at Harlem, J. C. Elder, who authorized the constable to hold the prisoner until the arrival of the deputy United States marshal and the deputy United States attorney. Upon their arrival on November 22 warrant was issued by the commissioner, charging assault as above, and served by the deputy marshal, and the prisoner taken into custody by the deputy; at the hearing the prisoner was bound over in the sum of $2,000 to appear before the United States grand jury, which convened in Helena; the prisoner the same night making his escape from the deputy."
It appears that the arrest of the defendant, upon his escape from the reservation, was not effected by the marshal or under his authority or by any such officer as is contemplated by section 846, Revised Statutes, so as to make a judiciary appropriation chargeable with any expense incurred in the care and support of such prisoner before the arrest by the deputy marshal.
On the foregoing facts, upon the suggestion of the AttorneyGeneral, you submit for my determination the question of your authority to pay the account of said constable.
The general rule laid down in 8 Comp. Dec., 127, is the one applicable to the facts in this case, viz:
"Where authority is exercised by a special class of officers in the arrest of persons for violations of the laws of the United States, all expenses incident to such arrests are defrayed by the Government and paid out of appropriations made for certain purposes, and not until prisoners come into the custody of the United States marshal by virtue of a duly recognized authority can it be said that a judiciary appropriation may be available for the payment of such expenses."
The superintendent and special disbursing agent at the Fort Belknap Indian Reservation is a special officer of the Interior Department.
I am informed that the expense in question is of a kind incident to the performance of duty by the special officer mentioned, which, if true, would make a proper bill payable out of the special appropriation under the control of the Secretary of the Interior, found in 33 Stat., 203, viz:
"For general incidental expenses of the Indian service in Montana, including traveling expenses of agents and pay of employees, eight thousand five hundred dollars."