Examination

of books, papers,

troller and Au

ditors.

March 15, 1898,

214. All books, papers, and other matters relating to the etc. by Comp accounts of officers of the Government in the District of Columbia shall at all times be subject to inspection and exs. 5, v. 30, p. 316. amination by the Comptroller of the Treasury and the Auditor of the Treasury authorized to settle such accounts, or by the duly authorized agents of either of said officials.' Sec. 5, act of March 15, 1898 (30 Stat. L., 316).

Par.

ACCOUNTS OF LINE OFFICERS AND PAYMASTERS.

215. Settlement of accounts of line offi

cers.

216. Same of paymasters for advance bounties.

accounts of army

officers.

Mar. 29, 1867,

p. 25.

Par.

217. Overpayments by paymasters. 218. Return of discharge certificates.

Settlement of 215. The Auditor of the Treasury for the War Department shall audit and settle the accounts of line officers of Res. No. 22, v. 15, the Army, to the extent of the pay due them for their Sec. 278, R. S. services as such, notwithstanding the inability of any such line officer to account for property intrusted to his possession, or to make his monthly reports or returns, if such Auditor shall be satisfied by the affidavit of the officer or otherwise that the inability was caused by the officer's having been a prisoner in the hands of the enemy, or by any accident or casualty of war.

Settlement of

advance boun

masters.

78, s. 6, v. 12, p.

216. Any moneys paid by a paymaster in the Army to ties paid by pay- an enlisted man as an advance bounty shall be allowed in Mar. 3, 1863, e. the settlement of the accounts of the paymaster, notwithstanding the discharge of such enlisted man before serving the time required by law to entitle him to payment of such moneys.

743.

Sec. 280, R. S.

Settlement of overpayments by paymasters.

Mar. 16, 1868, c. 29, v. 15, p. 42. Sec. 281, R. S.

217. The proper accounting officers are authorized, in the settlement of the accounts of the paymasters of the Army, to allow such credits for overpayments made in good faith on public account, since the fourteenth day of April, eighteen hundred and sixty-one, and before the sixteenth day of March, eighteen hundred and sixty-eight, as shall appear to them, by such vouchers and testimony as they shall require, to be just.3

1This enactment replaces a similar provision in the act of February 19, 1897 (29 Stat. L., 550).

2 The duties of the Second Auditor of the Treasury were, by section 7 of the act of July 31, 1894 (28 Stat. L., 206), devolved on the Auditor of the Treasury for the War Department.

The first section of the act of June 23, 1870 (16 Stat. L., 166), authorizing the accounting officers of the Treasury, in settling the accounts of disbursing officers of the War and Navy Departments during the rebellion, to allow, under certain circumstances, such credits for overpayments, loss of funds, vouchers, and property, as they may deem just and reasonable, have no application to the case of a disbursing officer who failed to account for money received, and who never presented any claim for a credit for overpayment, or loss of funds, vouchers, or property. U. S. v. Wade, 75 Fed. Rep., 261.

turned to officers

men.

No. 42, v. 16, p.

218. In all cases where it has become necessary for Evidence of any honorable disofficer or enlisted man of the Army to file his evidence of charge to be rehonorable discharge from the military service of the United and enlisted States, to secure the settlement of his accounts, the account- May 4, 1870. Res. ing officer with whom it has been filed shall, upon applica- 374. Sec. 282, R. S. tion by said officer or enlisted man, deliver to him such evidence of honorable discharge; but his accounts shall first be duly settled, and the fact, date, and amount of such settlement shall be clearly written across the face of such evidence of honorable discharge, and attested by the signature of the accounting officer before it is delivered.

CLAIMS.

be settled in the

the Treasury.

219. All claims and demands whatever by the United, All claims to States or against them, and all accounts whatever in which Department of the United States are concerned, either as debtors or cred- Sec. 236, R. S. itors, shall be settled and adjusted in the Department of the Treasury.'

Report of claims allowed.

2, v. 23, p. 254.

220. The Secretary of the Treasury shall, at the commencement of each session of Congress, report the amount, July 7, 1884, 8. due each claimant whose claim has been allowed in whole. or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who shall lay the same before their respective Houses for consideration. Sec. 2, act of July 7, 1884 (23 Stat. L., 254).

1Sections 300 A and 300 B of the Revised Statutes authorized certain claims of loyal citizens, for property furnished to the armies of the United States during the war of the rebellion to be prosecuted before the Quartermaster-General and the Commissary-General of Subsistence. By section 2 of the act of June 16, 1874 (18 Stat. L., 75), this jurisdiction was extended, but was finally withdrawn by the operation of the acts of March 3, 1883 (chapters 93 and 116; 22 Stat. L., 457 and 485).

The act of March 3, 1849 (9 Stat. L., 414; secs. 3482-3487, R. S.), provided for the reimbursement of officers and men for horses and other private property lost in the military service. Several limitations upon the filing of claims under this act have been enacted by Congress; but the general limitation will be found in section 2 of the act of January 9, 1883 (22 Stat. L., 401), which contains the requirement that "all claims arising under the act approved March 3, 1849, and all acts amendatory thereof, which shall not be filed in the proper department within one year after the passage of this act shall be forever barred and shall not be received, considered, or audited by any department of the Government." Section 2 of the act of August 13, 1888 (25 Stat. L., 437), suspended the limitation as to the presentation of claims for losses of horses during the war of the rebellion for three years. The act of March 3, 1849, therefore became inoperative in respect to general claims on August 13, 1889, and as to claims for horses, etc., lost during the rebellion, on August 13, 1891.

In the performance of the duty imposed by this statute the Secretary of the Treasury is not subject to the control of the courts of the United States, and the duty not being ministerial in character a writ of mandamus will not lie to compel the allowance of a claim presented under the statute. Kendall v. Stockton, 12 Pet., 524; Decatur . Paulding, 14 Pet., 497, 515; U. S. v. Guthrie, 17 How., 284, 304; Brashear r. Mason, 6 How., 92, 102. Such action on the part of the courts would also be in the nature of entertaining a suit against the United States, which is not within their jurisdiction. U. S. v. Guthrie, 17 How., 284, 305.

Where a claim within the scope of his official authority was submitted to the Secretary of the Treasury, and by him decided adversely, it is incompetent for his official successor to set the same aside or reopen it unless there has been a mistake in a matter

CLAIMS OF OFFICERS AND ENLISTED MEN FOR PROPERTY LOST AND

Accounting

officers to settle

and men in mili

property lost or destroyed.

DESTROYED.

221. The proper accounting officers of the Treasury are claims of officers hereby authorized and directed to examine into, ascertain, tary service for and determine the value of the private property belonging to officers and enlisted men in the military service of the United States which has been, or may hereafter be, lost or destroyed in the military service, under the following circumstances:

When loss or destruction was

First. When such loss or destruction was without fault

without fault or or negligence on the part of the claimant.'

negligence.

When shipped

by order on un

sel.

Second. Where the private property so lost or destroyed seaworthy ves- was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment."

A

of fact or materia, testimony discovered and produced. V Opin. Att. Gen., 664. head of a department of the Government has no right to review the acts of his predecessors, except to correct an error of calculation. He can not recall a credit given or allowance made. Such action is for the judiciary. U. S. v. Bank of Metropolis, 15 Pet., 377.

The accounting officers of the Treasury have no jurisdiction to settle claims for unliquidated damages arising from the torts of the agents of the Government. II Compt. Dec., 174, 487; McKee r. U. S., 12 Ct. Cls., 556; Dennis v. U. S., 20 ibid, II; XIV Opin. Att. Gen., 24. Nor have the accounting officers such jurisdiction over a claim for unliquidated damages not arising from the tortious act of an officer of the Government. II Compt. Dec., 487; I ibid, 261; II ibid, 174.

1Clause first stands alone as an independent basis for a claim, and was intended to reach cases not covered by the other two clauses. This clause is broader in its scope than the two succeeding clauses, but absence of fault or negligence must be proven if the claim is made under it. Broad as this clause is, it does not cover every case of loss an officer or soldier might sustain in his "reasonable, useful, and necessary" property while he was in the military service. II Compt. Dec., 644, 647.

Stating the proposition in other words, it does not make the United States the absolute insurer, against all accidents and contingencies, of the reasonable, useful, and necessary property of officers and soldiers. To entitle a person to reimbursement under this clause the loss or destruction must be without fault or negligence, directly or indirectly, near or remote, of the owner, and must have been caused by, or resulted from, some exigency or necessity of the military service. It must reasonably be attributable to the fact that it was held in the military service, whereby the owner was deprived, in some degree, of the control over it which he would have in civil life, and where it would be subjected to dangers not ordinarily incident to its use in civil life. Under all conditions of a use of such personal property as is covered by the law it is subject to deterioration and loss; but in the military service the dangers are greater and peculiar because of the environments of that service. It was to provide against personal loss resulting from these special and peculiar dangers that this law was enacted. Any other view of the law would make the United States the insurer of all personal property necessarily used in its service by officers and soldiers. This can not have been the intent of Congress. If it be held that absence of fault or negligence is the only condition precedent to reimbursement an officer would be entitled to payment for a horse dying from old age, or a uniform, side arms, or household furniture worn out in use. III Compt. Dec., 637.

"The true construction of clause second is that the claimant is entitled to reimbursement without being required to show, affirmatively, that he was not guilty of negligence, “where the private property was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment." The leading idea in this clause is that the loss would be attributable to the unseaworthiness of the vessel, and that the soldier sustaining the loss would have no

saving property

Third. Where it appears that the loss or destruction of When lost in the private property of the claimant was in consequence of United states. of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances. And the amount of such loss so ascertained and determined shall be paid out of any money in the Treasury not otherwise appropriated, and shall be in full for all such loss or damage: Provided, That any claim which shall be pre- Mar. 3, 1885, v. sented and acted on under authority of this act shall be held as finally determined, and shall never thereafter be reopened or considered: And provided further, That this act shall not apply to losses sustained in time of war or hostilities with Indians: And provided further, That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, in his discretion, shall decide to be reasonable, useful, necessary, and proper for such officer or soldier while

23, p. 350.

option as to the shipment on said vessel and no responsibility for a loss under such circumstances. II Compt. Dec., 647.

To entitle a person to recover under the first clause of the act the following facts, among others, must be established:

1. The loss must be of private property of the officer or soldier.

"The articles must not only belong to him, but must be used by him and for him alone, as it were, personal to him in the performance of his duty."

2. The property must be such as the Secretary of War shall decide to be reasonable, to be useful, and to be necessary for such officer or soldier while in quarters, engaged in the public service in the line of duty.

3. The loss must have been without fault or negligence, in any degree, of the claimant.

4. The loss must have been caused by some exigency or necessity of the military service, such as would naturally be attributable to and would flow from such service. To establish a case under this act the property must have been lost or destroyed in the military service; not merely while it was in use in that service, but because it was in that service. Being in that service must have been the proximate cause of the loss.

5. The loss must not have been caused by the natural wear and tear, or deterioration, of the articles in ordinary use in the service. Inherent defects in articles, on account of which they are unable to stand the ordinary strain of the service, will prevent recovery.

6. Payment must be limited to the commercial value of the articles at the time of their loss, and not exceed the value of such articles as it was necessary for the officer or soldier to have in the service. Unusually.expensive articles can not be considered necessary. The purchase price of an article is more likely to be a fair measure of its value than the estimate placed upon it after the purchaser obtains possession of it. The purchase price should not be exceeded without good cause shown.

7. Proof of absence of fault or negligence must state all the circumstances, and be sufficiently elaborate to enable the accounting officers to reach their own conclusions. Mere opinions or conclusions of witnesses, without full statement of facts upon which they are based, are of little value.

8. Any want of proper care either in the claimant or his servant, or the incompetency of the servant, will prevent recovery.

9. It is the duty of owners to care for their property; any voluntary relaxation of that care by intrusting it to others, is negligence within the meaning of the law.

Although under clause second the claimant is not required to show affirmatively that he was not guilty of fault or negligence, this will not be understood as precluding the Government from showing that he was so guilty, and, if so found, he will not be entitled to recover.

presented in two

years.

in quarters, engaged in the public service, in the line of Claims to be duty: And provided further, That all claims now existing shall be presented within two years and not after from the passage of this act; and all such claims hereafter arising be presented within two years from the occurrence of the loss or destruction.' Act of March 3, 1885 (23 Stat. L., 350).

No deductions

for attorneys' fees.

June 6, 1900, v. 31, p. 637.

222. In the settlement of claims of officers, soldiers, sailors, and marines, or their representatives, and all other claims for pay and allowances within the jurisdiction of the Auditor for the War Department or the Auditor for the Navy Department, presented and filed hereafter in which it is the present practice to make deductions of attorneys' fees from the amount found due, no deductions of fees for attorneys or agents shall hereafter be made, but the draft, check, or warrant for the full amount found due shall be delivered to the payee in person or sent to his bona fide post-office address (residence or place of business). Act of June 6, 1900 (31 Stat. L., 637).

REIMBURSEMENT OF STATES AND TERRITORIES FOR EXPENSES INCURRED IN RAISING AND EQUIPPING VOLUNTEERS DURING THE WAR WITH SPAIN.

Par.

223, 224. Reimbursement of States.

225. Rates of pay.

Par.

228. Expenses.

229. Transportation of troops.

226. Transportation to State rendezvous. 230. Limitation. 227. Subsistence.

ment of States,

v. 30, p. 730.

Reimburse- 223. The Secretary of the Treasury is hereby, directed, etc., July 8, 1898. out of any money in the Treasury not otherwise appropriated, to pay to the governor of any State or Territory, or to his duly authorized agents, the reasonable costs, charges, and expenses that have been incurred by

Under clause third the claimant must show that he was not guilty of fault or negligence other than of neglecting his own property in his efforts to save that of the Government. III Compt. Dec., 636; see, also, II ibid., 644; III ibid., 636, 659; XIX Opin. Att. Gen., 693; G. O. 35, A. G. O., 1896; G. O. 39, A. G. O., 1897; Circular 1, A. G. O., 1897.

Paragraph 807, Army Regulations of 1901, contains the following requirement: "For private property of officers or enlisted men lost or destroyed in the military service, without fault or negligence on the part of the claimant, where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment,' or 'where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances,' compensation may be made under the provisions of the act of Congress approved March 3, 1885. Proceedings of a board of survey will, if possible, accompany each application under this act, showing fully the circumstances attending the loss

*

* *