No. 6. ADJUTANT GENERAL'S OFFICE, Washington, February 12, 1901. I--The attention of the Secretary of War has been called to several instances where range finders shipped from their respective posts to instrument makers for regraduation, or to arsenals for storage, have arrived in a damaged condition, with the telescopes and other delicate parts broken or damaged, due to improper packing; and he therefore directs that greater care be exercised in packing, and that the packing be done under the direct supervision of a commissioned officer; the several parts to be so packed that the telescopes will be well supported lengthwise and rendered incapable of motion in any direction. II--The Ordnance Department having found that hydroline oil meets all the requirements of a good oil for use in the cylinders of gun carriages, and the same being now issued exclusively to the service for that purpose, the following instructions regarding its use are by direction of the Secretary of War published for the information and guidance of all concerned: Officers receiving it are cautioned to use it by itself and not to mix it with old neutral oil in the cylinders or in any other manner. Before putting the hydroline in the cylinders they should be thoroughly cleansed so as to leave no trace of acids, rust, or other detrimental matter. Any foreign matter would tend to deteriorate if not destroy the good qualities of hydroline, which the department has secured at considerable trouble and expense. The specifications for hydroline oil, as adopted by the department, are as follows: The oil is used to fill the cylinders and check recoil of the gun carriage by passing as a liquid through small orifices at the side of the piston head in motion. It must fulfill the following requirements: 1. Entirely neutral and free from acid or alkali when tested at ordinary temperature and at a temperature of 150° F. 2. Free from ash and saponifiable oil and to show no trace of decomposition when heated to 200° F. 3. Specific gravity within the limits .835 and .87, or 39o and 31° Baumé. 4. Cold test, or point at which flow ceases, not above 0° F. 5. Viscosity (tested by Seybolt Viscosimeter in use by the Standard Oil Company) 40 seconds plus or minus 5 seconds at 70° F., and preferably to vary as little as practicable from this between limits of 30° and 100° F. but not to be greater than 70 seconds at 30° or less than 30 seconds at 100 F. The neutral oil on hand at the various posts should be used up and any further requisitions for oil for the cylinders of gun carriages should specify hydroline. III. By direction of the Secretary of War, the following is published to the Army for the information and guidance of all concerned: TREASURY DEPARTMENT, OFFICE OF THE SECRETARY. The Honorable the SECRETARY OF WAR. Washington, February 7, 1901. SIR: I have the honor to inform you that the National Bank of Commerce, Tacoma, Washington, a depositary of public moneys, has this day been specially designated for the reception, safe-keeping, and disbursement of funds advanced to officers of your Department, said action being taken at the request of Senator Foster, who stated that a large amount of public moneys is to be disbursed at Tacoma by officers of the Quartermaster's Department. The security furnished by the bank is $100,000 U.S. bonds. Respectfully, L. J. GAGE, Secretary. BY COMMAND OF LIEUTENANT GENERAL MILES: H. C. CORBIN, Adjutant General. No. 7. ADJUTANT GENERAL'S OFFICE, Washington, February 23, 1901. By direction of the Secretary of War, the following decision of the Comptroller of the Treasury is published to the Army for the information and guidance of all concerned: TREASURY DEPARTMENT, OFFICE OF ComptrollER OF THE TREASURY, February 7, 1901. The Auditor for the War Department, under date of September 5, 1900, has submitted for my approval, disapproval, or modification pursuant to section 8 of the act of July 31, 1894, the following decision: Claim has been presented to this office by the administrator of the estate of Benjamin Munday, late assistant surgeon, U. S. A., for one year's pay and allowances under section 1275, Revised Statutes. This officer entered the service as a first lieutenant and assistant surgeon June 14, 1882; became captain and assistant surgeon June 14, 1887, and was wholly retired January 21, 1899. Died May 4, 1899. Section 1275, Revised Statutes, is as follows: "Officers wholly retired from the service shall be entitled to receive, upon their retirement, one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement." The question now arises as to whether the one year's pay and allowances provided by this section is a gratuity and payable only to the officer himself, or is in the nature of compensation or allowance for service and payable to the representative of his estate. There has been, so far as I am advised, no decision construing the section in this particular, but other acts allowing extra or additional pay have been construed and it would seem that this section must be construed in the light of these decisions. If the question were a new one. I would be inclined to hold that the one year's pay and allowances provided by this section was in the nature of an allowance earned by the officer, and if not collected in his lifetime would be payable to the legal representative of his estate. In view, however, of the decision of July 31, 1899 (6 Comp. Dec.. 86), and decision of the Assistant Comptroller of August 3, 1899, in case of Frank Borkowsky, Company D. 2d U. S. Infantry (unpublished), construing acts of March 3, 1899, and January 12, 1899, granting extra pay to officers and men of the Navy and Army. I am of the opinion that the year's extra pay and allowances granted by section 1275 to an officer wholly retired is a gratuity, and if not reduced to possession by him does not become part of his estate and descend to his heirs and is not payable to his legal representa tive. On January 21, 1899, the following order was promulgated by the Secretary of War: SPECIAL ORDERS, No. 17. HEADQUARTERS OF THE ARMY, 38. The Secretary of War announces that Captain Benjamin Munday, assistant surgeon, U. S. Army, having been found by an Army retiring board incapacitated for active service on account of disability which is not the result of any incident of service, has been wholly retired from active service by the President, to take effect January 21, 1899, under the provisions of sections 1252 and 1275, Revised Statutes, and that his name will be henceforward omitted from the Army Register. Upon the report of the Army retiring" board the President bad the right to adopt one of three courses with the claimant; he could disapprove the finding and thereby retain the claimant in the active service, retire him from active service, or wholly retire him from the Army, as he might determine. He had a power to exercise in the disposition of the report, and his action thereon, made in law, the complete exercise of the full measure of authority provided by the statute. It is not a continuing power but it is performed to the extent of its existence by the one act of the President. (McBlair v. United States, 19 Ct. Cl., 528–540. ) When the President acted upon the report and wholly retired the claimant his status was fixed and could not be changed even by the President. Whatever right he had by the statute under which he was retired became vested and fixed and could not be changed by the President, the Congress, or the Executive Department. (5 Lawrence, 330; Miller v. United States, 19 Ct. Cl., 338-351; McBlair v. United States, 19 Ct. Cl., 541; Blake v. United States, 102 U. S., 227-237.) He was out of the service not by dismissal or resignation but by retirement in the course provided by law and had a right co instanti to the compensation fixed by the statute for officers so retired. The retired list of the Army is regulated by positive law, being that form of just compensation adopted by the policy of the Government toward those whose vigorous life is spent in the service of their country. The department of the service called retirement is the creation of the statute and he who claims right in it must depend for the measure of his claim on the terms of the law, and such reasonable construction as may be justified by the intent and purpose of the legislation. (McBlair t United States, 19 Ct. Cl., 528-541.) The law providing for one year's pay and allowances to an officer wholly retired is permanent legislation and is carried into the Revised Statutes as section 1275, under the title "The Army," chapter 3, “Pay and Allowances," and there is nothing in it to indicate that the pay granted to an officer wholly retired should be considered in any different light than the pay of an officer who is placed on the retired list and granted retired pay. In neither case is it a pure gratuity, a free gift, but a "form of just compensation adopted by the policy of the Government toward those whose vigorous life is spent in the service of their country." The language of section 1275, Revised Statutes, is positive and declares that "Officers wholly retired shall be entitled to receive upon retirement" one year's pay and allowances. This statute entered into and formed part of claimant's contract of service (Walker v. Whitehead, 16 U. S., 314), and was one of the conditional emoluments of his office subject to be defeated only by the repeal of the statute before the conditions entitling him to the pay therein named attached, and when he was brought within the conditions of said statute by the action of the retiring board, and the order of the President thereunder, he was as much entitled to it as to his regular salary or other allowances. The President could not revoke the order or change his status as an officer wholly retired if he would. (Id., 19 Ct. Cl., 338.) Congress would be powerless to stop the payment after right had accrued. (5 Lawrence, 1 Comp. Dec., 330, and cases cited.) If it were a pure gratuity, Congress could take it away at any time before consummation by payment. (Barton v. United States. 23 U. S., 376–381.) To hold that the one year's pay and allowances due the claimant at his death is not assets is practically to hold that it is a gift from the Government without anything in the nature of a consideration, and that the rank and commission held by the officer is simply the measure of pay. As was said by the Supreme Court in relation to bounties in the case of Allen v. Smith, 173 U.S., 402: "This disassociates" it "altogether from the motives which actuated Congress in granting it, and turns it into a mere donation of so much money, which it can not be presumed to have made, even if it had the power. Bounties granted by a government are never pure donations but are allowed either in consideration of services rendered or to be rendered, objects of public interest to be obtained, production or manufacture stimulated, or moral obligations to be recognized. To grant a bounty irre spective altogether of these considerations would be an act of pure agrarianism; and to determine who is entitled to the benefit of the bounty is but little more than to determine who rendered the consideration." Applying these principles to the case in hand it clearly appears that the one year's pay and allowances due an officer wholly retired, when accrued under the statute, is not a gratuity but a part of the just compensation for services rendered, a form of indemnity provided by Congress for loss of salary by being wholly retired. In the case of Sherburne v. United States, 16 Ct. Cl., 491-500, in construing the act of July 15, 1870 (16 Stat., 315), authorizing the President to muster out certain officer " with one year's pay," the court speaks of the one year's pay therein granted and similar allowances as a gratuity. It is noted, however, in all the cases that I have examined that such extra pay and additional allowances when treated as a gratuity have been based upon acts passed subsequent to the performance of the service and could form no part of the consideration and inducement for entry into the service and continuance therein, and did not partake of the nature of a conditional compensation as in the case of retired pay. The cases cited by the Auditor are not analogous to that of retired pay for the reason that they relate to the construction of statutes passed after the performance of the services to which they relate and in many instances the beneficiaries were discharged before their passage, and it was held that the extra pay granted by such acts was a gratuity, a mere personal right. and lapsed with the death of the beneficiary. The one year's pay and allowances due the claimant at his death is an asset of his estate and is payable to his legal representatives. (5 Lawrence, 497.) The decision of the Auditor is therefore disapproved and the settlement will be made in accordance with the principles herein announced. R. J. TRACEWELL, Comptroller. BY COMMAND OF LIEUTENANT GENERAL MILES: H. C. CORBIN, Adjutant General. |