The two services were separate and distinct, from one of which he has been discharged, and all the rights which he had to leave of absence with full pay as an officer in the Volunteer Army ceased with the termination of that service, and his rights to leave of absence with full pay in the Regular Army began when he was appointed therein in all respects as if he had never been an officer in the Volunteer Army. (See 7 Comp. Dec., 63; 6 Comp. Dec., 714; United States v. Sweeney, 157 U. S., 281.) What I have already said will serve as an answer to both of your questions. Respectfully, L. P. MITCHELL, III__Fees of witnesses before general court-martial, under act March 2, 1901. 1. Persons summoned from beyond the State, district, or Territory in which the general courtmartial is held are not punishable if they refuse to appear or testify when summoned, nor are their fees and mileage required to be paid or tendered in advance. If they appear they are entitled to the usual fees allowed citizen witnesses as prescribed by A. R. 1066 and 1067 and General Orders, No. 43. Adjutant General's Office, 1901. 2. In the case of persons residing within the limits of the State, district, or Territory where the general court-martial is held, the tender of one day's fees and mileage to and from the court will meet the requirements of the act. 3. If an officer who is charged with serving a subpœna pays the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reimbursement. WAR DEPARTMENT, PAYMASTER GENERAL'S OFFICE, Washington, August 31, 1901. The Comptroller of the Treasury, through the Adjutant General of the Army. SIR: I have the honor to request your construction of the act of March 2, 1901, entitled "An act to prevent the failure of military justice, and for other purposes " (31 Stat.. 950), on the following points: First, does the first proviso of said act limit the summoning of witnesses by a general court-martial to persons residing within the State, Territory, or district in which such general court-martial is held? Second, to what extent must fees be paid or tendered? As a witness obeying a summons would be held before the court not less than one day, would the payment or tender of one day's fees in addition to his mileage to and from the court be such payment or tender as contemplated by the act? Third, as it might be impracticable for a paymaster to pay or tender these amounts in person would he be justified in turning over to a third party for disbursement the sums required for payment or tender to witnesses summoned by a general court-martial? By authority of the Secretary of War. Repectfully, A. E. BATES, Paymaster General, U. S. Army. [Third indorsement.] WAR DEPARTMENT, JUDGE ADVOCATE GENERAL'S OFFICE, Washington, September 7, 1901. Respectfully returned to the Secretary of War. In within letter the Paymaster General requests the decision of the Comptroller of the Treasury in regard to the construction of the "Act to prevent the failure of military justice," approved March 2, 1901 (31 Stat., 950). The act referred to by the Paymaster General is an act to prevent the failure of military justice, resulting from the refusal of civilian witnesses before courts-martial to testify, such courts having no power to punish for contempt, and it makes the refusal of such witnesses to appear, to qualify, or to give evidence before general courts-martial a misdemeanor, punishable on information in the district court of the United States." by a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court. The first proviso of the act is as follows: "That this shall not apply to persons residing beyond the State, Territory, or district in which such general court-martial is held. and that the fees of such witness and his mileage at the rates provided for witnesses in the United States district court for said State, Territory, or district shall be duly paid or tendered said witness, such amounts to be paid by the Pay Department of the Army out of the appropriation for compensation of witnesses." This proviso restricts the operation of the act to persons residing within the State, Territory, or district in which the general court-martial is held, so that a person residing beyond such State. Territory, or district would not be punishable under the act for refusal to appear, qualify, or testify. It does not, however, for other purposes. limit the summoning of witnesses to such State, Territory, or district or limit the payment of such fees as may be prescribed by regulations to witnesses summoned within the State, Territory, or district in which the court-martial is held. There is no such limitation in the appropriation, the language of which is, "For expenses of courts-martial, courts of inquiry, and compensation of reporters and witnesses attending the same, twenty thousand dollars." (31 Stat.. 901.) This appropriation, being in general terms, leaves the rates and conditions under which such compensation is to be paid to the discretion of the Secretary of War, or to such regulations as he may prescribe, and under the regulations and practice of the department the payment of fees has not been limited to witnesses residing within the State, Territory, or district in which the court-martial is held. In regard to the second question, I am of opinion that the payment or tender of one day's fees in addition to mileage to and from the court would meet the requirements of the act. The third question is purely a fiscal one and no opinion is expressd re garding it. GEORGE B. DAVIS, TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, The Honorable the SECRETARY OF WAR. Washington, September 10, 1901. SIR: By your reference of the 10th instant you request my decision upon a question relating to the manner of tendering fees and mileage to witnesses under the act of March 2. 1901 (31 Stat., 950), to prevent the failure of military justice. The first section of this act contains the following provisions: That every person not belonging to the Army of the United States who, being duly subpoenaed to appear as a witness before a general courtmartial of the Army, willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States, and it shall be the duty of the United States district attorney, on the certification of the facts to him by the general court-martial, to file an information against and prosecute the person so offending and the punishment of such person, on conviction, shall be a fine of not more than five hundred dollars or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That this shall not apply to persons residing beyond the State, Territory, or district in which such general court-martial is held. and that the fees of such witness, and his mileage at the rates provided for witnesses in the United States district court for said State, Territory, or district shall be duly paid or tendered said witness, such amounts to be paid by the Pay Department of the Army out of the appropriation for compensation of witnesses. Your specific question is as follows: As it might be impracticable for a paymaster to pay or tender these amounts in person, would he be justified in turning over to a third party for disbursement the sums required for payment or tender to witnesses summoned by a general court-martial? I do not think there is any authority of law for the advancement by a paymaster of the Army of public money to another officer, especially to one who is not a disbursing officer. But in 8 Comp. Dec., 43, quoting from the syllabus, it was held that An officer or employee who makes an expenditure from his own funds for a necessary expense of the Government is entitled to reimbursement therefor. If, therefore, the officer who is charged with the duty of serving a subpœna on a witness under this act should pay the fees and mileage to which he is entitled, taking a receipt therefor, under this decision he would be entitled to reimbursement. The paper transmitted by you is herewith returned. L. P. MITCHELL. INSTRUCTIONS OF PAYMASTER GENERAL. A paymaster turning over to an officer who is to serve a subpoena the necessary fees and mileage of the witness should take from the officer a memorandum receipt in duplicate for the amount turned over, the officer to take the receipt of the witness on the usual witness voucher, in duplicate, both of which must be returned to the paymaster. It being impos sible to state with certainty the number of days a witness would be held before the court, and as a witness could not be in attendance less than one day, the law will be complied with if mileage for the journeys to and from the court and one day's fee be paid or tendered. Should the witness be held more than one day the additional fee could be paid daily if demanded, or when finally discharged he could be paid the remainder of his fees. IV. Pay of gunners of artillery. An enlisted man of the Artillery Corps who has qualified as gunner is entitled to pay as such for three years, provided that during that period he has not been out of the artillery service more than three months. TREASURY DEPARTMENT, OFFICE OF THE COMPTROLLER OF THE TREASURY, The Honorable the SECRETARY OF WAR. SIR: By your direction I have received a letter dated August 14, 1901, from the Adjutant General. U. S. Army, requesting my decision "whether or not any soldiers who have qualified as gunners are entitled to extra pay as such unless belonging to an artillery company or battery." The authority for the additional compensation to gunners is found in section 7 of the act of February 2, 1901 (31 Stat., 749), which provides: That each company of coast artillery shall be organized as is now prescribed by law for a battery of artillery: * *And provided. That first-class gunners shall receive two dollars a month and second-class gunners one dollar per month in addition to their pay. The regulation in force at the time of the passage of this act (G. O., No. 41 of 1896) provided that— The classification and insignia (of gunners) will be held only during the practice year next succeeding the competition at which they were won. At the end of each year classification and insignia must be again competed for. This order was superseded by General Orders, No. 36, of 1901, dated March 19, 1901, which provides that A qualified gunner will be rated as such for a period of three years, and for such additional time as may be required to provide for his reexamination, unless he has during that time been out of the artillery service for more than three months. The Judge Advocate General of the Army, in opinion dated July 30, 1901, said: This order (G. O., 36), apparently contemplates (subdivision IV, p. 9-10), that the enlisted men examined for classification as gunners shall be members of a company of coast artillery, and provides (p. 10), that enlisted men who obtain an average of 85 per cent of the total maximum mark at the examination will be classed as first-class gunners, and those who obtain an average of 65 per cent will be classed as second-class gunners." The act of February 2, 1901, simply authorizes additional compensation to gunners, but who are "gunners and how long their status as such shall continue appear to be matters of regulation and orders. Originally a gunner could not retain that status longer than one year unless he passed another examination, but in General Orders, No. 36, Adjutant General's Office, current series, this period was extended as above. It would seem that under this order a duly qualified gunner would be so rated for three years "unless he has during that time been out of the artillery service for more than three months." Under section 6 of the act of February 2, 1901, sergeant majors of artillery are part of the Artillery Corps and therefore in the "artillery service." The same section also makes electrician sergeants part of the Artillery Corps. It may be, as stated by the Paymaster General, that these noncommissioned officers can not enter the examination for the grade of gunner: but this fact need not affect their rating as gunners during the prescribed period of three years if they were so rated prior to their appointment as such noncommissioned officers and continue in the "artillery service" as prescribed. I am, therefore, of the opinion that under the act of February 2, 1901, and existing orders (G. O., 36, A. G. O.), every artillery soldier not belonging to an artillery company or battery, who has duly qualified as gunner, retains his status as such until the expiration of the prescribed period of three years, provided that during that period he has not been out of the artillery service for more than three months. If this view be correct the sergeant major referred to herein and the electrician sergeant referred to by the Paymaster General are entitled to retain their status as gunners and receive the authorized additional pay. I agree with the Judge Advocate General that the act of February 2, 1901, does not attempt to define gunners nor to prescribe their qualifications or the time they shall retain their classification, leaving all such questions to be determined by the War Department. It appears that under the orders now in force no soldier is eligible for examination for classification as gunner unless he belongs to a coast. artillery company, but I see nothing in those orders to prevent a soldier who has qualified as a gunner from retaining his classification for the period prescribed, provided he remains an enlisted man in the Artillery Corps, whether in the coast artillery or not. I am of the opinion and so hold that under existing laws and orders any enlisted man of the Artillery Corps not belonging to a company, who has. duly qualified as a gunner, retains his classification as such for the period of three years, provided that during that period he has not been out of the artillery service for more than three months, and is entitled to the. additional compensation authorized by law for gunners. Respectfully. L. P. MITCHELL, Acting Comptroller. BY COMMAND OF LIEUTENANT GENERAL MILES: H. C. CORBIN, Adjutant General, Major General, U. S. Army. |