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66*

*

If the Auditor concludes to reopen former settlements for the purpose of charging these fees and crediting amounts inadvertently included, there would seem to be no legal objection to that course, but, as before indicated, it is a matter entirely within his jurisdiction and discretion. *

In Morey's case (11 Comp. Dec., 307) it was held that claimant, as United States consul, was entitled to credit for fees (commissions) for distributing, in a fiduciary capacity, moneys belonging to the estate of his deceased wife, which he had credited to the United States, and which had been charged against him by the Auditor in the settlement of the account, and that the Auditor (item 6, pp. 315, 316), if he so desired, might take such action as in his judgment the facts of the case required or warranted, the account in which the charge was made by the Auditor having been settled more than a year before claimant's appeal therefrom was filed.

Under the authorities cited I have concluded that the Comptroller and the Auditors are not precluded from reopening settlements made by themselves for the purpose of correcting errors of law, but that they have no such authority as to settlements of their predecessors; and the decisions alluded to supra are modified accordingly.

The action of the Auditor in this case, based, as it is, upon the principal of equal justice between the United States and this claimant, is approved, and the account submitted will be revised accordingly.

Before closing, however, I desire to direct the attention of the Auditors for the different Departments to the following expression found in the Campbell case, supra, on pages 312 and 313:

"The Comptroller will not grant a reopening unless, after careful consideration of each application, he is clearly satisfied that the case is one fairly within the well-defined rules established under the practice in the former Comptroller's office."

And to reiterate the request set out in the closing paragraph that"when an account or claim is reopened by an Auditor his action thereon be immediately communicated to the Comptroller, in order that the latter may revise the settlement be. fore payment, if he thinks such course necessary.”

28007– Vol. 11-05-30

PAY OF AN OFFICER OF THE NAVY WHILE UNDER

TREATMENT IN A HOSPITAL.

An officer of the Navy who is detached from his vessel and ordered to a

hospital for treatment will be regarded as on shore duty, and therefore entitled to shore-duty pay from the date of his detachment until his discharge from the hospital.

(Decision by Assistant Comptroller Mitchell, February 17,

1905.)

The Auditor for the Navy Department submits for approval, disapproval, or modification the following decision, dated February 3, 1905:

“ Paymaster Robert H. Woods, U. S. Navy, has presented to this office a claim for full shore-duty pay while under treatment in the United States naval hospital at Mare Island, Cal., and the Army and Navy General Hospital, Hot Springs, Ark., after his detachment from duty on the U. S. S. Buffalo, from June 17 to August 19, 1904. “The following are copies of Mr. Woods's orders:

65 NAVY DEPARTMENT,
666 U. S. NAVAL STATION HAWAII,

6o "Ilonolulu, T. H., May 25, 1904. “Sir: 1. Having been condemned by a board of medical survey as unfit for duty, you will proceed to Mare Island Navy-Yard and report to the commandant for treatment in the navy hospital.

:

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66. Very respectfully,

"SILAS W. TERRY, "* Rear-Admiral, U. S. Navy, Commandant.

**[Second endorsement.]

**U. S. S. BUFFALO.

Honolulu, T. H., May 31, 1904. “Relieved from duty this day.

*** W. H. EVERETT, 66 Commander, U. S. N., Commanding.

"" [Third endorsement.]

666

“U. S. Navy-YARD, MARE ISLAND, CAL.,

6 June 7, 1904. Reported and will further report to the medical officer in charge of naval hospital for treatment.

"B. H. McCALLA,

"Rear Admiral, U. 8. N., U. S. Commandant Mary-Yard and Station.

'[Fourth endorsement.)

666

666

NAVAL HOSPITAL, MARE ISLAND, Cal.,

"June 7, 1904. Reported for treatment.

66** M. H. SIMONS,
6 Med. Director, U. S. N.,

' In Charge of Hospital.' “The following is a copy of a telegram from the Navy Department to Paymaster Woods, and addressed to him at the naval hospital, Mare Island, Cal., dated Washington, June 16, 1904:

** Hereby detached Buffalo, proceed Hot Springs, Ark. Report commanding officer, Army and Navy Hospital, for treatment. Permit mailed Hot Springs. • " (Signed)

TAYLOR." " The telegram was delivered to him June 16, 1904, and he reported at the Army and Navy Hospital, Hot Springs, Ark., June 24, 1904.

“The following is a copy of an order from the Navy Department, dated June 16, 1904:

6 Navy DEPARTMENT,
“BUREAU OF NAVIGATION, WASHINGTON, D. C.,

6. June 16, 1904. “Sır: You are hereby detached from duty as pay officer of the U.S. S. Buffalo, and upon the recommendation of a board of medical survey, approved by the Surgeon-General of the Nary, you will, when discharged from treatment in the naval hospital, Mare Island, Cal., proceed to Hot Springs, Ark., and report to the commanding officer of the Army and Navy Hospital at that place for treatment in the hospital under his command. A permit for your admission into said hospital is enclosed herewith. Respectfully, *(Signed) H. C. TAYLOR,

"Chief of Bureau,

“The telegraphic order of June 16, 1904, detaching the claimant from the Buffalo, was received by him while in the navy hospital at Mare Island, Cal., and he traveled under said order to Hot Springs, Ark., where he reported to the officer in charge June 24, 1904.

“The claim for duty pay is based upon the decision of the Court of Claims in the case of Baker v. United States, decided by the Court of Claims March 28, 1904.

“The following is a copy of the findings of facts and conclusion of law in the Baker case:

"'COURT OF CLAIMS.

6 No. 23127.

John W. BAKER . THE UNITED STATES.

"This case having been heard by the Court of Claims, the court, upon the evidence, makes the following:

Findings of fact.

6661.

“Claimant was on the 21st of January, 1897, duly commissioned a surgeon in the Navy of the United States, which office he still bolds; that on the 5th of November, 1897, he was placed on the retired list for incapacity resulting from incident of service.

"While on duty on the U. S. S. Bennington he received an order from the Secretary of the Navy, dated April 8, 1897, directing that he should regard himself as detached from duty on board that ship upon the reporting of his relief, Surgeon Eugene P. Stone, U. S. Navy, which detachment became effective May 13, 1897.

666 EXHIBIT A.

“The same day, May 13, the commander of the U. S. S. Bennington ordered claimant to proceed to the U. S. naval hospital at Mare Island, Cal., and there placed himself under the orders of the commandant of the navy-yard; this he did, and the commandant ordered him to report to the surgeongeneral in charge of the hospital. The same day he reported to G. P. Beadley, medical inspector, U. S. Navy, in charge of the hospital. These orders were approved by X. S. Crowninshield, U. S. N., Chief of the Bureau of Navigation.

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"On the 3rd of June, 1897, he received an order from the Secretary of the Navy, dated May 29, 1887, directing him to remain in said hospital until able to travel.

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"He remained at the hospital obedient to said orders until October 20, 1897, when, by order of the Secretary, he appeared before the retiring board.

66. IV.

"Claimant for the period from May 14, 1897, to October 19, 1897, has been paid waiting-orders pay at the rate of two thousand ($2,000) dollars per annum; he claims that being at the naval hospital in obedience to the lawful orders of his superior officer, he is entitled to receive shore duty pay at the rate of two thousand four hundred ($2,400) dollars per annum, the difference, four hundred (8400) dollars per annum for said period, amounts to one hundred and seventy-three dollars and one cent ($173.01).

66. Conclusion of law. “ “Upon the foregoing findings of facts, the court decides, as a conclusion of law, that the claimant recover judgment against the United States in the sum of one hundred and seventy-three dollars and one cent ($173.01).'

“In 2 Comp. Dec., 298, it was held:

"That three different cases may arise under the law and regulation: First, where the officer's incapacity for duty is determined by a board of medical survey, and he formally detached; second, where the officer is granted temporary sick leave pursuant to regulations, and third, where the officer is simply ordered into the hospital for treatment, or is compelled by sickness to go into the hospital without an order granting him sick leave or detaching him from duty. In the first and second cases leave or waiting orders pay should be allowed, and in the third case such pay as pertained to the duty he had been performing prior to going to the hospital.'

- If Mr. Woods had not been detached he would, under the above decision, have continued to receive the pay under the third clause; but he received his orders of detachment at the time he arrived at the hospital at Mare Island, Cal.; he

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