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by that act. Payment should accordingly be made to Colonel Calef for services on and after March 2, 1905, of only the full pay and allowances of a major on the active list.
HONORABLE DISCHARGE TO ENLISTED MEN OF
THE MARINE CORPS.
An enlisted man of the Marine Corps who was transferred, by authority of
the act of June 17, 1898, to the Hospital Corps of the Navy is entitled to credit for the prior service in the Marine Corps, in the same enlistment he is serving out in the Hospital Corps, in making up the time necessary to entitle him to the honorable discharge provided for in
section 1426, Revised Statutes, as amended by the act of June 11, 1896. (Assistant Comptroller Mitchell to F. B. Colby, paymaster,
May 22, 1905.)
“Frederick James Tinkler, hospital apprentice, first class, United States Navy, enlisted in the United States Marine Corps on the 12th of June, 1899. He was paid off on September 1, 1902, and transferred to the United States Navy as a hospital apprentice. On July 19, 1904, he received an honorable discharge from the United States Navy, and on August 25, 1904, he reenlisted for a period of four years.
“I respectfully request to be informed if said Tinkler is entitled to honorable discharge gratuity and continuous service pay."
The act of June 17, 1898 (30 Stat., 474), entitled "An act to organize a hospital corps of the Navy of the United States; to define its duties and regulate its pay,” provides:
“Enlisted men in the Navy or the Marine Corps shall be eligible for transfer to the Hospital Corps.'
I understand that Tinkler, an enlisted marine, was transferred to the Hospital Corps of the Navy by authority of this provision and was honorably discharged at the end of his five years' term of enlistment of June 12, 1899.
The navy personnel act (30 Stat., 1004) in section 16 provides:
“That section fifteen hundred and seventy-three, Revised Statutes, be amended to read: "If any enlisted man or apprentice, being honorably discharged, shall reenlist for four years, within four months thereafter, he shall on presenting his honorable discharge or on accounting in a satisfactory manner
for its loss, be entitled to pay during the said four months equal to that to which he would have been entitled if he had been employed in actual service; and that any man who has received an honorable discharge from his last enlistment, or who has received a recommendation for reenlistment upon the expiration of his last term of service of not less than three years, who reenlists for a term of four years within four months from the date of his discharge, shall receive an increase of one dollar and thirty-six cents per month to the pay prescribed for the rating in which he serves for each consecutive reenlistment.""
The honorable discharge here referred to is that provided for by section 1426 of the Revised Statutes, as follows:
Honorable discharges may be granted to seamen, ordinary seamen, landsmen, firemen, coal heavers, and boys who have enlisted for three years."
The benefits of this section were extended to all enlisted men in the Navy by the act of June 11, 1896 (29 Stat., 476).
This section applies to enlisted men of the Navy, but when, by authority of the act of June 17, 1898, supra, the Secretary of the Navy transfers an enlisted marine to the Hospital Corps of the Navy it is only a fair and reasonable construction of section 1426 to hold that it permits the prior service in the Marine Corps, in the same enlistment that he is serving out in the Hospital Corps of the Navy, to be credited to him in making up the time necessary to entitle him to an honorable discharge, particularly in view of the fact that this is a beneficial statute and that such construction will carry out the well-settled policy of the Government to encourage continuous service and reenlistment of efficient men, who are the only ones under Navy regulations who can receive such discharges even after the full service of three years required.
I am of opinion that Tinkler, the enlisted man in this case, was entitled to the honorable discharge, and, having received one upon the expiration of his enlistment, is entitled to the benefits of such honorable discharge under section 1573 of the Revised Statutes, as amended by the navy personnel act, and should be paid the four months' extra pay and the increased pay of $1.36 per month after reenlistment.
This conclusion agrees with the opinion of the Secretary of the Navy in an indorsement of July 5, 1904, in reference to this case.
An employee of the Philippine government is not an employee of the
United States within the meaning of the prohibition in section 1765, Revised Statutes, against the payment of additional or extra compensation, and therefore the payment by the United States of compensation to an employee of the Philippine government for services rendered
the United States is not prohibited by said section. (Comptroller Tracewell to the Secretary of the Interior, May
I am in receipt of your letter of the 6th instant, requesting my opinion upon a statement of facts made to you in a letter from the Director of the Geological Survey, under date of May 1, 1905, as follows:
“I respectfully request that an opinion be obtained through the proper channels from the Comptroller of the Treasury regarding payment to be made to Mr. A. H. Perkins, whose transfer is now being asked as engineer at $2,200 per annum in the reclamation service.
"Mr. Perkins is a civil engineer in the Philippine service, now on leave of absence in the United States. His salary of $2,400 per annum has been commuted or paid up to July 1, 1905. His transfer to the reclamation service has been asked, to take effect immediately, as he is needed at once in the field. He has been instructed to proceed as soon as possible to Browning, Mont., for work in connection with the St. Mary dam, whose early construction has been approved by the President and by the Secretary of the Interior. The details of his transfer are not yet completed, but it is expected that the matter will be satisfactorily arranged within a few days. Mr. Perkins will not, however, delay for the formal action.
“The question to be ascertained is whether, if this transfer is effected, it will be practicable to pay Mr. Perkins out of the reclamation fund his salary from the date the transfer becomes effective, or whether the fact that his salary has been commuted in the Philippine service to July renders it necessary for him to give his time up to that date in order to avoid any points of law forbidding payment of two salaries to the same individual.
“In addition to the salary paid to Mr. Perkins for the months of May and June, 1905, he is also entitled to half salary for the month of July, this being a time allowance for travel from Manila to San Francisco. If Mr. Perkins's transfer takes effect on May 1, and no salary is allowed for service on the reclamation work, it virtually results in a loss to him of about $500 in entering the reclamation service.
“We are securing Mr. Peçkins at a relatively low salary for a man of his ability, and, as a matter of fairness to him, I hope that his salary can be allowed from May 1, in spite of the allowance made on account of his service in the Philippines."
Whether Mr. Perkins should give his time to the Philippine service exclusively until the date to which he has been paid is a question for the Philippine service to answer, and if the Philippine government sees fit to permit a transfer to the United States service before the time expires for which the salary was commuted, no objection could be made elsewhere. The question of whether he shall receive pay from United States funds while he is in the employ of and receiving pay from the Philippine service would depend upon whether there is any prohibition of law against his receipt of such double compensation by virtue of section 1765 of the Revised Statutes, which provides:
“No officer in any branch of the public service, or any person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance or compensation."
The prohibition in that section is only against receiving extra or double compensation out of United States funds, for in the absence of any specific reason to the contrary, there is nothing to prevent an officer or employee of the United States receiving compensation from outside sources and at the same time his salary from the Government. The question of conflict of duties or of diminished efficiency is one of administration and does not affect the payment of his salary so long as the employment by the Government exists.
The only question is, then, whether an officer in the Philippine service is by virtue of that status an officer in the United States service and his compensation as suchi officer a payment from United States funds.
That question must be answered in the negative. It is not necessary here to go into the history of the acquisition of the Philippines and the controversies which attended the fixing of their status toward the United States. By the act of July 1, 1902 (32 Stat., 691), Congress instituted civil government in those islands, and by that specifically provided that section 1891 of the Revised Statutes should not be applicable thereto. Concerning this provision the Supreme Court of the United States, in the case of Dorr v. The United States (195 U. S., 138), at page 143, said:
“The legislation upon the subject shows that not only has Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902 providing for temporary civil government, there is an express provision that section 1891 of the Revised Statutes of 1878 shall not apply to the Philippine Islands. This is the section giving force and effect to the Constitution and laws of the United States not locally inapplicable within all the organized Territories, and every Territory thereafter organized, as elsewhere within the United States."
On the question of the relation of a branch (the postal) of the Philippine service to the United States service, the Attorney-General of the United States, in 24 Op. Att. Gen., 538, said:
“It thus appears by the Spooner resolution Congress authorized, and by the act of July 1, 1902, ratified and confirmed, subject to the limitations prescribed therein, the establishment of a form of government for the Philippine Islands distinct from our own, and not governed by the same laws. Its intention to do so is placed beyond question by the proviso to section 1 of the Philippine act, that section 1891 of the Revised Statutes, providing that “The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized, as elsewhere in the United States,' should not apply to the Philippine Islands."
The intention of Congress to keep the Philippine service separate from that of the United States is clear and distinct. The revenues of the islands are under the sole control of the island government, and are disbursed exclusively by that government and not by Congress. I am of the opinion, there fore, that there is nothing in the relation of Mr. Perkins to the Philippine service to prevent payment of his salary from the reclamation fund from the time his appointment to that service became effective.