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"6. If the plan suggested can be carried out there will be 2 third lieutenants for whom there are no vacancies in the grade of second lieutenants, 21 cadets, and vacancies for 14 new cadets to be appointed, and your opinion is desired as to whether this action can be taken and the 14 new cadets appointed."
The question of the promotion of officers of the RevenueCutter Service to take effect from date of vacancy was considered in 9 Comp. Dec., 1, in which, quoting from the syllabus, it was held that:
"Under the provision in section 3 of the act of April 12, 1902, that commissioned officers of the Revenue-Cutter Service shall receive the same pay and allowances that are provided by law for officers of the Army of corresponding rank, the rule that officers of the Army who are promoted by seniority are entitled to the pay of the grade to which promoted from the date of the vacancy therein is applicable to officers of the Revenue-Cutter Service."
Under the rule that officers of the Army who are promoted by seniority are entitled to the pay of the grade to which promoted from the date of the vacancy therein it is held that a vacancy occurs in the lower grade as of the date of the vacancy in the higher grade, and that when an officer is so promoted from the lowest grade a vacancy occurs therein which may be filled by a new appointment. The new appointment does not take effect, however, until accepted. (Sec. 1455, Army Regulations of 1901.)
But the particular question presented by you in this case is whether the three third lieutenants referred to, the grade of third lieutenant being the lowest in the service, can be at once promoted to vacancies now existing in the next higher grade, although they have not yet passed the requisite examination, so as to create vacancies to which cadets may be appointed, instead of third lieutenants, as provided by the act of July 31, 1876. (19 Stat., 107.)
Paragraph 16, of the Regulations of the Revenue-Cutter Service of 1894, contains the following provision:
"No officer shall be eligible for promotion to a higher grade until his physical, mental, moral, and professional fitness to perform all his duties have been established to the satisfaction of the examining officers appointed by the Secretary of the Treasury
This regulation was made prior to the passage of the act of April 12, 1902, supra, which contains the following provision: "That all promotions shall be subject to examination to determine the professional qualifications of the candidates and their physical qualifications shall be reported upon by a board of medical officers of the Marine-Hospital Service, and such board shall be convened by the Secretary of the Treasury whenever the exigencies of the service require.'
The words "shall be subject to examination," in the provision "That all promotions shall be subject to examination to determine the professional qualifications of the candidates," are ambiguous. They might be interpreted to mean that promotions may be made prior to such examination, to be conditional upon the result of the examination when it is subsequently made; or to mean that the authority to make promotions is conditional upon the passage of the examination.
Section 32 of the act of February 2, 1901 (31 Stat., 756), which is an act to increase the efficiency of the permanent military establishment, provides for the promotion of officers of the Army, in a particular instance, subject to examination. This provision is as follows:
"That when the exigencies of the service of any officer who would be entitled to promotion upon examination require him to remain absent from any place where an examining board could be convened, the President is hereby authorized to promote such officer, subject to examination, and the examination shall take place as soon thereafter as practicable. If upon examination the officer be found disqualified for promotion, he shall, upon the approval of the proceedings by the Secre tary of War, be treated in the same manner as if examined before promotion."
The meaning of the language of this provision is clear, but its meaning is not dependent solely upon the words "subject to examination." They are explained and qualified by other language that makes it clear that the provision authorizes promotions in a particular instance prior to examination to be conditional upon the result of a subsequent examination. Such authority, however, is restricted to the particular instance where the exigencies of the service require him to remain absent from a place where an examination could be made.
But if the above provision of the act of April 12, 1902, were to be given a similar meaning, it would be without restric
tion and would authorize the promotion of any officer otherwise eligible under any circumstances prior to examination. If it had been the intention of Congress to grant such broad and unrestricted authority to make promotions, I think it would have done so in language that would be free from ambiguity.
I also understand that this provision has not heretofore been construed as granting such authority. It is probably for this reason that the provision in the regulations that no officer shall be eligible for promotion until he has passed the required examination has not been changed. The action proposed to be taken by you, if permissible, also appears to recognize that the provision has not been so construed. You say:
"4. In order to provide for a full class of cadets, it is desired to advance three of the third lieutenants, who have not been examined for promotion, to the foot of the list of second lieutenants, where vacancies exist for them, as it is not convenient for the Department to examine these candidates for promotion at the present time. It is intended, of course, that they are not to be commissioned second lieutenants until they shall have passed the required examination."
I am therefore of opinion that you are not authorized to promote the three third lieutenants referred to until they have passed the required examination. I am also of opinion that there is no provision of law which authorizes you to advance them to the grade of second lieutenants, except by promotion thereto.
I have the honor, therefore, to reply to your question in the negative.
LIABILITY FOR THE LOSS OF BORROWED
The United States is not liable for the loss of a boat which was stolen while in the custody of customs officers who had borrowed it for use on official business.
The United States is not liable for the negligence of its officers and employees.
(Acting Comptroller Mitchell to the Secretary of the Treasury, June 16, 1905.)
I am in receipt, by your reference of the 5th instant, of a letter from M. B. Macfarland, collector of customs at Tampa, Fla., as follows:
"I have the honor to report that on March 11 last, steamship Gussie arrived at this port from Habana. Inspector H. L. Whitney, of this port, learned that there was a possibility of one or more of the crew attempting to smuggle cigarettes ashore from that steamer during the night, and made arrangement with several of the customs officers here to help him guard the vessel during the night, with a view of arresting, if possible, the parties in the attempt to smuggle these cigarettes ashore. În order to do this successfully, they borrowed two row boats, one belonging to Captain McKay, owner of the steamship Gussie, and the other belonging to W. S. Smith, of this city. It seems, however, that the parties intending to smuggle the cigarettes ashore must have been informed of a watch being kept on the vessel, as no attempt was made to land the cigarettes. The customs officers then tied up the boats they had been using in a secure manner, and boarded the steamship Gussie and made a search of same, securing 1,132 packages containing 19,000 cigarettes. On returning to where the boats had been tied up, it was discovered that the one belonging to W. S. Smith had been stolen, and although a thorough search was made at that time, and every endeavor made since to find the whereabouts of the missing boat, nothing has been discovered in regard to her. Mr. Whitney has been sent the bill, which is handed me this morning, from W. S. Smith, the owner of the boat, for $30, and I respectfully submit this matter to the Department, and ask that I be authorized to pay or make some settlement of the matter with Mr. Smith. The boat was lost in the execution of the duties connected with the customs service here, and through no negligence of the officers. I have no boat at my disposition here for guarding or watching such attempts to smuggle, and have at different times had to borrow boats to aid me in this work."
Upon the facts as presented it does not appear that there was any contract to compensate the owner in case the boat was lost, or that the boat in question was lost through any negligence on the part of the customs officers who had borrowed it, or that the theft thereof could have been foreseen and prevented by the exercise of ordinary care and prudence.
The law is well settled that where a person borrows an article of personal property without any agreement to compensate the owner for the use thereof he will not be liable for the loss of such article, or any damage thereto, unless such damage or loss was caused by his negligence. He must, however, exercise a greater degree of care over the property than would be required in the case of a bailee for hire, and will be held liable
for loss or damage caused by but slight negligence on his part. (Bateman on Commercial Law, p. 391.)
But even if the boat in question was lost through the negligence of the customs officers it would not create a legal liability against the United States, as it is well settled that the United States is not liable for the negligence of its officers and employees. (Hart v. United States, 95 U. S., 318; 6 Comp. Dec., 751.)
I have the honor, therefore, to advise you that payment of the claim for the loss of said boat is unauthorized.
EXTRA-DUTY PAY TO ENLISTED MEN OF THE MARINE CORPS.
An enlisted man of the Marine Corps who was by competent authority detailed on extra duty for employment at constant labor for not less than ten days, and who while so detailed actually performed extraduty service of at least ten days' duration, is entitled to extra-duty pay for such service, regardless of the fact that the extra duty was not performed on consecutive working days.
(Assistant Comptroller Mitchell to Col. F. L. Denny, quartermaster, Marine Corps, June 19, 1905.)
I have received, through the Secretary of the Navy, your letter of the 2d instant, transmitting a voucher for extra-duty pay for eighteen days in favor of Clark Corey, private, U. S. Marine Corps, and requesting a decision as to whether Corey is entitled to extra-duty pay for the period from April 21 to 26, 1905, inclusive.
It appears that Corey was employed by competent authority on extra duty as carpenter at the navy-yard, Portsmouth, N. H., eighteen days during the month of April, 1905, working every day except from the 2d to the 6th, inclusive, Sundays, and the 20th and 27th, work being suspended on the last two days by order of the commandant of the yard.
The pay of enlisted men of the Marine Corps is governed by that of corresponding grades in the infantry of the Army. (Sec. 1612, Rev. Stat.)
Section 1287 of the Revised Statutes, relating to extra-duty pay, provides as follows:
"When soldiers are detailed for employment as artificers or laborers in the construction of permanent military works,
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