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Rev. Stat., s. 1500; 16 A. G. Op., 20.

395, Garland,

Rehearing. An officer retired by a board without being duly notified after he has had permission to be absent at home until notified may be given a rehearing by the President.

18 A. G. Op. Reinstatement.-Cases of Robert B. Higgins, Clarence H. Matthews, and William B. Day, for reinstatement.

May 14, 1886.

U. S. v. Redgrave, 116 U. S..

474; Leopold v. U. S.. 18 C. Cls. R., 557; Perkins v. U. S., 116 U. S., 483.

631, Maxwell,

Acting A. G.,
Aug. 4, 1893.

Mr. Higgins had been illegally deposed from performance of the duties and from an enjoyment of the emoluments of the office of cadet engineer, and he accepted the office of second assistant engineer in the Revenue Marine. Notwithstanding the two offices are incompatible, and that the general rule is that the acceptance of a second incompatible office operates as a resignation of the first, the acceptance of the second office was not inconsistent with an intent on Mr. Higgins's part to resume the exercise of the office of cadet engineer as soon as he might be recognized as such: Held, that in view of all the facts, what he has done does not amount to a resignation or abandonment of the office of cadet engineer, that he still holds it, and should be reinstated in the actual enjoyment and occupation of it.

In the cases of Matthews and Day, who were dropped from the roll, it was held that the action was illegal; that the order was void; that they were still in the service, and entitled to reinstatement upon the roll of the Navy.

20 A. G. Op., Remission of penalty.-Where a contract for the construction of a vessel for the Government contains a clause imposing a penalty for each day's delay beyond a stipulated time for finishing the vessel, and further provides that any question as to liability for the infliction of said penalty should be referred to the Secretary of the Navy for decision, and provides that his decision shall be conclusive upon all parties to the contract, it is not proper for a subsequent Secretary of the Navy to remit the amount of penalties imposed by his predecessor and pay that sum to the contractor.

476.

429; act May 1, 1820; 1 Com. D., 237.

22 Stat. L., 291, Repairs, provision for, on existing vessels of war. Rev. Stat., s. Reports to Congress by Secretary of the Navy,-Clause 1 of the section cited is abbreviated and modified from the cited act, the part of which relating to the Secretary of War is stated in the revision in connection with his Department. (a) In clause 3 the word "showing," in first line, is here added, and the words "and showing," in the fifth line, are here substituted for "a statement" in the original act. (b) 20 Stat. L., (b) Tabular statement of receipts.-The Secretary of the Treasury is required to transmit to Congress annually a tabular statement of the receipts and expenditures in the naval service under each appropriation, together with an account of balances in the hands of disbursing agents and a report of any amounts lost or unaccounted for by voucher.

167, ch. 311; 21

Stat. L., 331, ch.

73.

21 A. G. Op., Reservation, naval, restoration to public domain. - Congress 120, Olney, Jan. alone is competent to subject to general governmental 19, 1895. uses land heretofore reserved from the public domain for the use of the Navy Department.

G. Op., 350, Mil

Mimmac v. U. S.,

114 U. S., 619.

Resignation of naval cadets.-"Where a naval cadet tendered Rev. Stat., ss. his resignation, and it was accepted by the Secretary of 1514, 1515, 19 A. the Navy and the cadet duly notified thereof, but in a ler. July 8, 1889; short time (about two weeks) afterwards the cadet made 97 U. S., 436, 437; application to withdraw his resignation, which was ... Corson, granted by the Secretary, who at the same time instructed him to report to the Superintendent of the Academy: Held, that by the resignation and its acceptance the relations of the cadet with the Naval Academy were completely severed and his position there became vacant; that he could not be reinstated otherwise than by an appointment in conformity to the sections cited; and that the secretary in permitting the withdrawal of the resig nation after its acceptance had no legal effect whatever. Retired officers.-The retired list in the Navy is filled from the active list. The lowest rank of the active list is filled from without, and all the higher grades are filled promotion.

by

(a) Longevity pay.-Officers on the retired list are not entitled to longevity pay.

Rev. Stat., s.

1443; Thompson R.,604: Thornley

v. U. S.. 18 C. Cls.

v. U. S.. id., 111;
113 U. S., 310;
Brown v. U. S.,
id., 568; 18 C. Cls.
R., 537.
(a) Id.

v.

(b) Bradbury e. . S., 20 C. Cls.

R., 187.

(b) Mate, how paid.-A mate appointed by private act upon the retired list of the Navy with the rank of master is to be paid as if retired from the rank of master. (c) Actual time.-The act of March 3, 1883, chapter 97, (e) 22 Stat. L., makes the provision that "all officers of the Navy shall 473. be credited with the actual time they may have served as officers or enlisted men in the Regular or Volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the Regular Navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided further, That nothing herein contained shall be so construed as to give any additional pay to such officer during the time of his service in the Volunteer Army or Navy."

Rockwell, 120 U.

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(@) U. S. v. 60; 21 C. Cls.

R., 332.

V.

Dunn, 120 U. S.,

23.

(d) Graduated pay.-Under this act Navy officers are to be credited as of the lowest grade with graduated pay held by them after reentering the service. (e) Service in Marine Corps.-Service in the Marine Corps (e) U. S. is service in the Army or Navy within the act of March 249; 21 C. Cls. R., 3, 1883. (f) Extra compensation to.—If a retired officer is designated) Meigs e.U. by Congress to perform services which could not be re- 497. quired of him, such as the superintendence of the erection of a public building, he may receive extra compensation therefor.

S., 19 C. Cls. R.,

(g) Compensation of, line or staff.-The sections cited take) Rev. Stat., the place of all provisions in force at the adoption of the ss. 1588, 1593. Revised Statutes.

(h) Thornley v. (h) Officers on retired list, longevity.-Naval officers, when on the retired list, whether commissioned or warrant, are not entitled to increase of pay by reason of longevity.

U. S., 113 U. S., 310; 18 C. Cls. R., 111; Brown v. U. S., 113 U. S., 568; 18 C. Cls. R., 537. (i) McClure v. U.S., 18 C.Cls.R., 347. See Thompson v. U. S., id., 604: Rutherford v. U. S., id., 339; Magaw v. U. S., 16 id., 3.

s. 1588; Rev.

(i) Retired in first five years of service.-A lieutenant of the Navy, retired in the first five years of service because not recommended for promotion, is entitled to only onehalf his sea pay at the time of retirement, under the last clause of section 1588.

() Rev. Stat., (j) Furlough pay.-The section cited does not apply to officers retired on furlough pay. An officer retired on furlough pay is to be paid according to the provisions of section 1593.

Stat.. 8. 1593;
Brown v. U. S..
113 U. S., 568; 16
A. G. Op., 22.

Rev. Stat., S.

1593; id.; 15 A.G. Op., 316.

(k) Rev. Stat., (k) Rate of pay, retired officers, fixed by section cited.

8.1588: Magaw v.

T. S., 16 C. Cls.

R.. 3.

(Rev. Stat. (1) Longevity.—Officers on the retired list are not entitled to increase of pay by reason of longevity.

s. 1592.

8.1592; Thornley

(m) Rev. Stat., (m) Fire years' service. The periods of five years' service contemplated by the section cited for increase of pay are grades within section 1588.

r. U.S., 16 C. Cls.

R., 3.

(n) Rutherford (n) Grades.-The term "grade" refers to the divisions of officers into five-years' periods of service.

v. U. S., 18 C. Cls.

R., 329.

(0) Supra.

(p) U. S. v. Burchard, 125 U. S., 176; 19 C. Cls. R., 137; Potts v. U. S., 125 U. S., 173.

(g) Rev. Stat., s. 1594; Brown. U. S.. 113 U. S., 568: 16 A.G.Op., 22; 18 Stat. L., 304, ch. 30.

8. 1594: U. S. e.

(0) Chief engineer, retired in the third period of five years' service, etc.

(p) Two classes, line between.-The cause of incapacity marks the line between the two classes of retired officers referred to in section 1588, those whose incapacity was caused by the service being entitled to three-fourths of their sea pay and those whose incapacity was not so caused to one-half such pay.

(q) Difference of pay to certain officers.-The statute (18 Stat. L.) cited allows difference of pay to certain officers of the Navy, who were dropped, furloughed, or retired under the statute of February 28, 1855, and afterwards promoted and restored. The causes of the retirement of a naval officer, transferred under this section from the furlough list to the retired pay list, determine his rate of pay under section 1588; and an officer retired on furlough pay from causes not incident to the service can not be transferred to the 75 per cent retired pay list thereby provided by action of the Executive.

(r) Rev. Stat.. (r) Construed liberally. The section cited is construed liberally, and authorizes a transfer as of the time of placing an officer on the furlough list.

Burchard, 125 U.
S., 176; 19 C. Cls.
R., 137.

Rev. Stat., ss.
1448, 1455; act
Aug.3,1861: Stat.
L., vol. 12, 291.

(a) Brown v. U. S.. 18 C. Cls. R., 537.

s. 1449; act Aug.

3, 1861: 10 A. G. Op., 129.

Retiring board.-What officers may be retired and the modus operandi thereof.

(a) Warrant officers.--The statutes apply to warrant officers, and they, as well as commissioned officers, may be retired.

(b) Rev. Stat.. (b) Marine Corps.-The Secretary of the Navy has discretionary power to select for the trial of officers of the Marine Corps such commissioned officers under his control and orders as he deems proper.

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(c) Retiring boards.-Composition of retiring board and how ordered.

(d) Must report cause of incapacity.—When said retiring board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judg ment, produced his incapacity and whether such cause is an incident of the service.

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(e)

Rodney's

(e) Subsequent reconsideration.—If a naval retiring board,
convened to inquire into the nature and cause of an offi- Op., 104.
cer's disability, has completed its work, rendered a per-
fect judgment, and adjourned, a subsequent reconsider-
tion of the judgment, unless directed or authorized by
competent authority, is without legal effect.

Burchard

v. U. S., 125 U. S.,

137.

(f) Finding of a board.-The finding of the board, when approved by the President, settled the fact as to the 176; 19 C. Cls. R., cause of an officer's incapacity. It is conclusive and can not be reviewed by the Secretary of the Navy. (g) Marine Corps.-This does not apply to the officers of g) Rev. Stat., the Marine Corps.

8. 1454: 15 A. G. Op. 445. See note tos. 1451: Magaw v. U. S., 16 C. Cls. R., 3.

377.

Salary, rear-admiral, not bound to accept.-A rear-admiral 10 A. G. Op., appointed to the office of Chief of the Bureau of Yards and Docks is not bound to accept the salary provided therefor, but may demand that allowed him for performing shore duty.

Sealing vessels, seizure of.-A naval officer to whom delivery is made of a vessel seized under the provisions of the treaty has no authority to investigate the seizure or release the vessel.

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21 (part 2) A. P. 234, Har

mon. Oct. 3, 1895.

Seamen, deposit of the savings of. The act of February 9, 19 Op.. 616. 1889, chapter 119, "to provide for the deposit of the savings of seamen of the United States Navy," does not extend to enlisted men of the Marine Corps.

(a) Op. of Attorney-General

(a) Amount of savings not limited.-The act to provide for the deposit of the savings of seamen of the United Feb. 24. 1897. States Navy, approved February 9, 1889 (25 Stat., 657), does not in terms, or by necessary implication, limit the amount which may be deposited to savings earned during any single period of time. "The paymaster of the United States steamship San Francisco may receive from the chief boatswain's mate the sum of $900 as a deposit under the provisions of the act referred to, provided the $900 represents the 'savings' earned by the petty officer, as an enlisted man, or petty officer, in the United States Navy."

1412: 14 A. G. Op., 142.

monds. 120 U.S.,

Sea service and pay, as affecting volunteer officers transferred, Rev. Stat., s. to the Regular Navy. (a) All other officers.-Under section 1556 sea pay is due (a) U. S. r. Sy. for active service on a training ship stationed offshore, 46: 21 C. Cls. R., although the Navy Department may have decided other- 148; U. S. v. Bishwise. (See note, section 1571.) Under section 3 of the 21 C. Cls. R., 215. act of June 1, 1860, which provided that no service shall be regarded as sea service but such as shall be performed at sea, under the orders of a Department, and in vessels

op, 120 U. S. 51;

10 A. G. Op., 191: U. S. v. Strong, 125 U. S., 656; 23 C. Cls. R., 10: Me Ritchie's

Case, id., 23.

ss. 1556, 1571; Sy

monds v. U. S.,

employed by authority of law, the service which entitled an officer to the pay allowed for "duty at sea" began when, having been ordered to a particular duty, he reported at the place designated and entered upon that duty. Even though the vessel lay in port, the pay allowed by that act to officers on duty at sea commenced.

(b) Rev. Stat., (b) "At sea" defined.-The words "at sea," in sections 1556 and 1571, mean not out of sight of land, but upon the waters of the sea, and sea service may include service upon a training ship at anchor in an arm of the sea.

120 U. S., 46; 21 C. Cls. R.. 148; Bishop v. U. S., 120 U. S.. 51; 21 C. Cls. R., 215; Emory v. U. S., 19 C. Cls. R.. 254; Barker v. U. S., id., 288: Carpen. ter v. U. S., 15 C. Cls. R., 247.

(c) See "At sea, defined above.

(c) Temporary duty on a vessel at anchor near shore not sea duty. A naval paymaster on shore duty at a navy-yard, having charge of the accounts of certain ironclads temporarily at anchor off the yard and in commission for sea service, was held not entitled to sea-duty pay.

(d) See Shore (d) Shore duty not allowed except upon order of the Secreduty. 22 Stat. tary of the Navy.

L., 481.

(e) Rev. Stat.. 8. (e)

1588; McClure v. U. S.. 18 C. Cls. R., 347, and see "Pay and allownces" and "Longevity."

v. U. S., 18 C. Cls. R., 339.

Retired in first five years of service.-A lieutenant retired in the first five years of service because not recommended for promotion is entitled to only one-half his sea pay at the time of retirement, under the last clause of section 1588.

Rutherford (f) Sea pay, chief engineers.-A chief engineer retired in the third period of five years' service is entitled to 75 per cent of the sea pay of that grade, and not to the highest pay of a chief engineer who has served over twenty years.

Rev. Stat... Self-crimination of witness.-H. was tried by court-martial and found guilty of the offense charged. At the trial a witness objected to answering a question on the ground of self-crimination, but the court required him to answer, the judge-advocate reading in support of this requirement the section cited: Held, that if the court committed an error in compelling the witness to answer, the error is not such as to require a disapproval of the proceedings.

860; act Feb. 25, 1868: Deady, J., in U.S. v. Brown, 1 Sawyer, 536; per Miller, J., 2 Dillon, 405; Cong. Globe. 2d sess., 40th Cong., p. 951: the Commonwealth v. Kimball, 24 Pick., 369.

Rev. Stat., s. 417; 16 A. G. Op..

152.

23 Stat. L.. 291,

Whether the effect of that section is to take away from a witness the common-law privilege of declining to answer a question which tends to criminate him, when it is manifest that he could only be tried in the courts of the United States, quære.

Sewers.-The Secretary of the Navy can not grant to a city the right to construct and maintain a sewer upon the grounds of a United States naval hospital.

430: 25 Stat. L. Ships, wooden, repair of, when damaged in foreign waters.

467.

Rev. Stat., ss. 4577, 4579; 21 A. G. Op., 25, Olney, May 24, 1894. This opinion was reaffirmed June 14, 1894.

Shipwrecked seamen, withholding pay from.-Where a United States consul-general has provided shipwrecked, destitute seamen with food, clothing, and passage to a port in this country, the amount so expended should not be deducted from the wages of such seamen.

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