of the second class upon persons making such signal exertions in rescuing and succoring the shipwrecked, and saving persons from drowning, as, in his opinion, shall merit such recognition." The following is the text of sec. 9 of an act of May 4, 1882 ch. 117, 28 Stat. 57-58: "That the life-saving medals of the first and second class authorized by the provisions of the seventh section of the act of July twentieth, eighteen hundred and seventy-four, shall be hereafter designated as the gold and silver life-saving medal respectively, and any person who has received or may hereafter receive either of said medals under the provisions of said section, or the twelfth section of the act of June eighteenth, eighteen hundred and seventy-eight, and who shall again perform an act which would entitle him to a medal of the same class under said provisions, shall receive, and the Secretary of the Treasury is hereby authorized to award, in lieu of a second medal, a bar, suitably inscribed, of the same metal as the medal to which said person would be entitled, to attached to a ribbon of such description as the Secretary of the Treasury may prescribe, which may be fastened to the medal already bestowed upon said person; and for every such additional act an additional bar may be added. And the Secretary of the Treasury is hereby authorized, in his discretion, whenever any person becomes entitled to a bar representing a gold medal, to award him, ip addition to said bar, such taken [sic] as it is customary to award in acknowledgement of the services of masters and crews of foreign vessels in rescuing American citizens from shipwreck." The following is the text of an act of Jan. 21, 1897, ch. 83, 29 Stat. 494: "That so much of the Acts relating to life-saving stations and the LifeSaving Service approved June twentieth, eighteen hundred and seventy-four, June eighteenth, eighteen hundred and seventy-eight, and May fourth, eighteen hundred and eighty-two, as provide for the award of life-saving medals shall be construed so as to empower the Secretary of the Treasury to bestow such medals upon persons making signal exertions in rescuing and succoring the shipwrecked and saving persons from drowning in the waters over which the United States has jurisdiction, whether the said persons making such exertion were or were not members of a life-saving crew, or whether or not such exertions were made in the vicinity of a lifesaving station." An act of Jan. 28, 1915, ch. 20, 38 Stat. 800802, established the Coast Guard by combining the Life-Saving Service and the Revenue-Cutter Service. Regulations governing the award of life-saving medals are contained in U. S. Navy Regulations, 1920. CASE NOTES In general.- "It will be noted that the object and purpose of all this legislation is the saving of life endangered by shipwreck and other perils of the sea within the jurisdiction of the United States, and, to this end, to encourage, by suitable distinction of honor, heroic exertions and self-sacrifice in behalf of those whose lives are thus in peril. This object, with the reason for it, is as board as the peril, and exists wherever the peril is; and this would, if necessary, aid the construction of language which, however, in my opinion, needs no aid from construction." (23 Op. Atty. Gen. 78, 80, Apr. 2, 1900.) "There are three classes of persons whose rescue from danger is contemplated by these acts, although some of one class may be embraced in another, viz: Those in danger from perils of the sea, the shipwrecked, and those in danger of drowning. Perils of the sea may, in certain cases, include the shipwrecked; the shipwrecked may be in danger of drowning, and persons may be in danger of drowning from perils of the sea other than shipwreck. Thus, one class may, but not always, necessarily, embrace persons in another class." (23 Op. Atty. Gen. supra, at 82.) "All of these acts are in pari materia and have the same object. Neither repeals another, and they may all be read as one act." (23 Op. Atty. Gen. supra, at 83.) Meaning of "perils of the sea".- "As applied to this subject, it would be difficult to choose another expression at once so conclusive and so little in need of definition as is that of 'perils of the sea, and yet, here, as in most cases, definition is necessary. The term, in its comprehensiveness, includes all perils of the sea and not some of them merely. It includes all perils on water caused by the sea or which are such by reason of the sea. Of course, it does not embrace all perils to which one may be exposed on the sea, but only such as are caused by it. A man on shipboard in mid-ocean may be in imminent danger of his life from a personal assault or in various other ways, and, though the sea might present his escape, yet the danger which menaced him would not be a peril of the sea, one caused by the sea, or one which is such by reason of the sea. Nor, on the other hand, do I think the term is here used in the limited sense of its ordinary application to navigation or commerce, where it is usually applied to vessels, or persons or property on shipboard. Such cases are expressly provided for by the expression, in the same sentence, 'or upon any American vessel. The distinction there made of 'perils of the sea within the United States or upon any American vessel' clearly show that the perils of the sea, contemplated by the act, are not restricted to those which menace life on shipboard or in shipwreck. "It is impossible to give a definition of the term 'perils of the sea' which will fit and cover every case. But, generally, it may be said that whenever, wherever, and in whatever way human life is directly imperiled by the sea, this, within these statutes, framed to protect and rescue life from such peril, is a peril of the sea, the rescue from which in the manner prescribed may entitle the rescuer to the honorable national distinction provided by these acts. The perils of the sea, to one on shipboard, are provided for by the words 'or upon any American vessel.' The other provisions, while they may in terms embrace also one on shipboard, yet obviously have a broader scope and apply also elsewhere; and the only limitation fixed is that they shall apply in waters over which the United States has jurisdiction. So that I am of opinion that a bather, a person capsized from a small boat, one falling into the water from a wharf, a child in shallow water near the shore--that in each of these and similar cases, if the person is thereby in imminent danger of his life, he is so, within the liberal spirit and intention of these acts, from a peril of the sea. " (23 Op. Atty. Gen. 78, 82-83, Apr. 2, 1900. Compare: 21 Op. Atty. Gen. 124, 128, Jan. 30, 1895.) Meaning of "the shipwrecked". - "The term 'the shipwrecked' requires further consideration. Persons shipwrecked may be, and generally are, for a time at least, in peril of the sea, and in that case are provided for in section 7 of the act of 1874; and those who save them from that peril may be entitled to a medal of the first or second class if their exertions are of the character described. On the other hand, persons shipwrecked may be no longer in danger from the sea, that peril having passed, and yet be in imminent danger and in great need of succor and rescue. They may be adrift in an open boat, without food or water, or stranded on some barren coast, or in other situation where, without rescue or succor, they would die of starvation, thirst, or exposure. In these, and many other situations readily imagined, the danger which menaces is not strictly a peril of the sea, and, therefore, provision is easily made for them in section 12 of the act of 1878, and those who make such signal exertions in rescuing or succoring persons in such situation, as in the opinion of the Secretary merit such recognition, may be entitled to the medal of the second class." (23 Op. Atty. Gen., supra, at 8485.) Geographical applicability of statutes. - The statutes relating to the award of life-saving medals apply to the rescue or saving from drowning of persons who accidently fall from docks, wharves, or other places into any waters of the United States, if the other facts mentioned in the statutes concur. (23 Op. Atty. Gen. 78, 85, Apr. 2, 1900.) The statutes relating to the award of lifesaving medals empower the Secretary of the Treasury to bestow life-saving medals for signal exertions made in saving persons from drowning in the Barac River, a nonnavigable stream of the Philippine Islands, since that river is under the jurisdiction of the United States by virtue of the sovereignty of the United States over the Philippine Islands. (29 Op. Atty. Gen. 72, May 9, 1911. Compare: 21 Op. Atty. Gen. 65, Sept. 26, 1894.) 1874, June 22. Allowance of pay to officers dismissed and restored.7 Sec. 2. That the accounting officers of the Treasury be, and are hereby, prohibited from making any allowance to any officer of the Navy who has been, or may hereafter be, dismissed from the service and restored to the same under the provisions of the twelfth section of the act of March third, eighteen hundred and sixty-five, entitled "An act to amend the several acts heretofore passed to provide for the enrolling and calling out the national forces, and for other purposes," to exceed more than pay as on leave for six months from the date of dismissal, unless it shall appear that the officer demanded in writing, addressed to the Secretary of the Navy, and continued to demand as often as once in six months, a trial as provided for in said act.--(18 Stat. 192, ch. 392.) EDITORIAL NOTES Amendment of this section was made by the Budget and Accounting Act, 1921, approved June 10, 1921, ch. 18, title III, sec. 304, 42 Stat. 24, which vested in and imposed upon the General Accounting Office in so far as not inconsistent with the said act, all powers and duties conferred or imposed by law upon the Comptroller of the Treasury and the six auditors of the Treasury. This section, as amended, and art. 37 of sec. 1624, R. S., are embodied in the U. S. Code as sec. 1200, art. 37, of title 34. Sec. 12 of the act of Mar. 3, 1865, ch. 79, 13 Stat. 489, referred to above, is the enactment from which art. 37 of sec. 1624, R. S., was derived. Sec. 12 of the act of Mar. 3, 1865, supra, was considered in the following decisions and opinions: Blake v. United States, 103 U.S. 227, 234, Oct. Term, 1880; Newton v. United States, 18 Ct. Cls. 435, 443-444, Apr. 23, 1883; United States v. Corson, 114 U. S. 619, 621, May 4, 1885; Wallace v. United States, 55 Ct. Cls. 396, 401-402, June 1, 1920, aff., 257 U.S. 541, Feb. 27, 1922; Myers v. United States, 272 U.S. 52, 165, Oct. 25, 1926; 12 Op. Atty. Gen. 4, Aug. 6, 1866; 15 Op. Atty. Gen. 569, July 21, 1876; and 17 Op. Atty. Gen. 13, Feb. 16, 1881. CASE NOTE Scope and operation of section. A retired naval officer was dismissed by order of the President on Dec. 30, 1865. In May, 1876, upon his application for trial by court-martial, made under art. 37 of sec. 1624, R. S., a court-martial was ordered. He was tried and pronounced innocent of every charge and specification, and the dismissal being thereby annulled he was ordered, on June 5, 1876, to be restored to the retired list. Between the date of his dismissal and the date of his restoration he had not demanded in writing from the Secretary of the Navy, as often as once in six months, a trial; but pay was claimed by him for that period. Held, that the right of the claimant to pay is governed by act of June 22, 1874, ch. 392, sec. 2, 18 Stat. 192, under the provisions of which he is not entitled to more than "pay as on leave for six months from the date of dismissal." It was competent for Congress to modify, in the matter of pay, the effect of a restoration under art. 37 of sec. 1624, R. S. (15 Op. Atty. Gen. 569, July 21, 1876.) 1874, June 23. Trial, by court-martial, for hazing; punishment for hazing; effect of dismissal for hazing.] That in all cases when it shall come to the knowledge of the superintendent of the Naval Academy, at Annapolis, that any cadet-midshipman or cadet-engineer has been guilty of the offense commonly known as hazing, it shall be the duty of said superintendent to order a court-martial, composed of not less than three commissioned officers, who shall minutely examine into all the facts and circumstances of the case and make a finding thereon; and any cadet-midshipman or cadet-engineer found guilty of said offense by said court shall, upon recommendation of said court be dismissed; and such finding, when approved by said superintendent, shall be final; and the cadet so dismissed from said Naval Academy shall be forever ineligible to re-appointment to said Naval Academy.--(18 Stat. 203-204, ch. 453.) EDITORIAL NOTES Sec. 1512, R. S., provided that: "The students at the Naval Academy shall be styled cadet midshipmen. A separate class of students at the Naval Academy to be styled "cadet engineers", was provided for by secs. 1522-1524, R. S. By act of Aug. 5, 1882, ch. 391, 22 Stat. 284, 285, the title of all undergraduates at the Naval Academy was changed to "naval cadets", and by act of July 1, 1902, ch. 1368, 32 Stat. 662, 686, the title "naval cadet" was changed to "midshipman". A partial repeal of this enactment was effected by the following provision of an act of Apr. 9, 1906, ch. 1370, sec. 2, 34 Stat. 104: "That so much of the Acts approved June twenty-third, eighteen hundred and seventy-four, and March third, nineteen hundred and three, as requires the Superintendent of the United States Naval Academy to convene a court-martial in all cases when it shall come to the knowledge of the said superintendent that any midshipman has been guilty of the offense commonly known as 'hazing, and declares the finding of a court-martial so convened, when approved by the said superintendent, final, and directs that any midshipman found guilty by such court-martial shall be summarily dismissed from the said academy, and also all other Acts or parts of Acts inconsistent with the present Act are hereby repealed * * * This act, as amended, a provision of an act of Mar. 3, 1903, ch. 1010, 32 Stat. 1177, 1198, as amended, and sec. 3 of an act of Apr. 9, 1906, ch. 1370, 34 Stat. 104, are embodied in the U. S. Code as secs. 1066 and 1067 of title 34. CROSS REFERENCE General courts-martial for the trial of midshipmen: see act of Mar. 2, 1895, ch. 186, 28 Stat. 838, as amended. CASE NOTES Scope and operation of act. This act was designed to cut off from a cadet found guilty of the offense of hazing, should the finding of the courtmartial be approved by the superintendent of the Naval Academy, all chance of reinstatement or reappointment. (15 Op. Atty. Gen. 80, Mar. 15, 1876.) "The act does not define the offense against which the penalty is denounced. This is not unusual. Congress frequently affixes a penalty to a common law offense by name, without defining it. In such cases we must look to the common law to ascertain the ingredients of the offense. The statute under consideration is local to the Naval Academy at Annapolis, 'and the offense named in unknown either to the common or statutory law of the land.. Again, the statute denounces an 'offense, not a system or practice. Naval cadets could not be guilty of an 'offense,' unless there was some rule or regulation prescribed by competent authority to be offended. "It is evident, therefore, that we must go to the rules and regulations in force at the Naval Academy of Annapolis at the date of the passage of this act for a definition of the 'offense commonly known as hazing." (18 Op. Atty. Gen. 292, 293, Nov. 12, 1885.) "The statute under consideration is highly penal and must be strictly construed. The definition of the offense commonly known as 'hazing' cannot be enlarged or its ingredients varied for the purpose of carrying out any line of policy, however wise, or effecting any purpose, however laudable. The offense commonly known as hazing, at the date of the passage of the act, was committed where an older cadet maltreated a new cadet of the fourth class.'" (18 Op. Atty. Gen., supra, at 297.) "I am of opinion that to constitute the offense of hazing under the statute it is essential that the victim of the maltreatment should be a new cadet of the fourth class." (18 Op. Atty. Gen., supra, at 297.) "Unless the charge on which the cadet is arraigned alleges that the victim of the maltreatment of hazing was a new cadet of the fourth class, a court-martial organized under the statute would not have jurisdiction to try it. If the charge makes the allegation and the proof fails to maintain it the court-martial should acquit the accused. As a candidate for admission to the Academy is in no sense proper or popular 'a new cadet midshipman or cadet engineer of the fourth class,' a charge alleging that the victim of a cadet's maltreatment was a candidate for admission would not come within the jurisdiction of a court-martial organized under the statute, nor would proof that the victim was a candidate authorize conviction on a charge properly drawn." (18 Op. Atty. Gen., supra, at 297-298.) "It is averred in the specifications that the person upon whom the offense is alleged to have been committed was at the time 'a cadet of the fourth class, attached to and serving at the said Academy; ' and it elsewhere appears in the record that the person charged with the offense was then a cadet of the second class; while the acts of the latter which go to form the gravamen of the complaint are (specification first), 'pulling the nose of the said Driggs, striking the said Driggs, and otherwise maltreating the said Driggs, and (specification second) 'striking at said Driggs, and otherwise annoying the said Driggs, he being a cadet of the fourth class. These facts plainly exhibit a case of maltreatment, which, in conjunction with the other circumstances mentioned, contains all that is essential to constitute the offense of 'hazing' in the sense of the statute." (18 Op. Atty. Gen. 376, 377, Mar. 12, 1886.) "All Cadets who are not 'new cadets of the fourth class' and therefore liable to be victims of 'hazing' should, I think, be held to be 'old cadets' and capable of being the perpetrators of the offense. "I can not lay down any general rule for determining whether a cadet should be held a 'new cadet of the fourth class' or an old cadet.' In most cases the distination is clear; but in oases like 1874, June 23. Availability of appropriations for the construction of public buildings.7 That all moneys heretofore appropriated for the construction of public buildings and now remaining to the credit of the same on the books of the Treasury Department, or which may hereafter be appropriated for such buildings, shall remain available until the completion of the work for which they are, or may be, appropriated; and upon the final completion of each or any of said buildings, and the payment of all outstanding liabilities therefor, the balance or balances remaining shall be immediately covered into the Treasury. --(18 Stat. 275, ch. 476.) EDITORI AL NOTE This provision, except the executed portion thereof, is embodied in the U. S. Code as sec. 682 of title 31. CROSS REFERENCE Availability of appropriations for public works: see act of July 12, 1921, ch. 44, sec. 3, 42 Stat. 139. 1875, Mar. 3. Explanations accompanying estimates.7 Sec. 3. That it shall be the duty of the heads of the several Executive Departments, and of other officers authorized or required to make estimates, to furnish to the Secretary of the Treasury, on or before the first day of October of each year, their annual estimates for the public service, to be included in the Book of Estimates prepared by law under his direction; and the Secretary of the Treasury shall submit, as a part of the appendix to the Book of Estimates, such extracts from the annual reports of the several heads of Departments and Bureaus as relate to estimates for appropriations, and the necessities therefor.--(18 Stat. 370, ch. 129.) EDITORIAL NOTES This section was amended by the Budget and Accounting Act, 1921, approved June 10, 1921, ch. 18, title II, 42 Stat. 20-23. Sec. 201 of said act provides for the submission to Congress by the President of the Budget containing estimates of appropriations for the support of the Government; sec. 204 requires that the contents, order, and arrangement of the estimates contained in the Budget and the notes and other data submitted therewith, except as otherwise provided in the act, "shall conform to the requirements of existing law"; sec. 206 prohibits the submission of any estimate to Congress or any committee thereof by any officer or employee of any department "unless at the request of either House of Congress"; and sec. 215 provides that the head of each department shall submit the departmental estimates to the Bureau of the Budget on or before Sept. 15 of each year. This section and sec. 3670, R. S., both as amended by the Budget and Accounting Act, 1921, are embodied in the U. S. Code as sec. 624 of title 31. 1875, Mar. 3. Entries on books to effect settlement of accounts of disbursing officers.7 Sec. 5. That whenever it may be necessary in the settlement of the accounts of disbursing officers of the Government for expenditures already made in pursuance of law, to use appropriations carried to the surplus fund under section five of the act of June twentieth, eighteen hundred and seventy four, the Secretary of the Treasury is hereby authorized to make the necessary entries on the books of the Department to effect such settlements, Provided, That such entries shall not involve the expenditure of any moneys from the Treasury.--(18 Stat. 418, ch. 131.) EDITORIAL NOTE This section is embodied in the U.S. Code as sec. 713a of title 31. CASE NOTE Purpose of section. The purpose of this section is to authorize adjustments of lapsed appro priations without the necessity for certification 1875, Mar. 3. Limitation on allowances for travel expenses.7 That hereafter only actual travelling-expenses shall be allowed to any person holding employment or appointment under the United States, except marshals, district attorneys, and clerks of the courts of the United States and their deputies; and all allowances for mileages and transportation in excess of the amount actually paid, except as above excepted, are hereby declared illegal; and no credit shall be allowed to any of the disbursing-officers of the United States for payment or allowances in violation of this provision. --(18 Stat. 452, ch. 133.) EDITORIAL NOTES This provision is embodied in the U.S. Code as sec. 73 of title 5. This provision superseded a provision of an act of June 16, 1874, ch. 285, 18 Stat. 72, as amended by act of Feb. 22, 1875, ch. 95, sec. 7, 18 Stat. 334. A-provision of an act of June 30, 1876, ch. 159, 19 Stat. 65, repealed this provision to the extent it applied to officers of the Navy. In this connection, see United States V. Mouat, 124 U.S. 303, 305-307, Jan. 23, 1888, and 17 Comp. Dec. 618, 620-622, Feb. 23, 1911. Regulations relating to official travel are contained in Standardized Government Travel Regulations and General Regulations No. 88 (Revised), Oct. 20, 1944. CROSS REFERENCES Allowances for subsistence expenses of civilian officers and employees: see the Subsistence Expense Act of 1926, approved June 3, 1926, ch. 457, 44 Stat. 688-690, as amended. Limitation on allowances for travel expenses: see act of Mar. 3, 1933, ch. 212, title II, sec. 10, 47 Stat. 1516. Reimbursement on account of travel by privatelyowned motorcycle, automobile or airplane: see act.of Feb. 14, 1931, ch. 165, 46 Stat. 1103, as amended. Travel and subsistence allowances for personnel traveling on official business: see the Pay Readjustment Act of 1942, approved June 16, 1942, ch. 413, sec. 12, 56 Stat. 364-366, as amended. CASE NOTES Scope and operation of statute.- "This proviso in its terms is applicable to every person holding employment or appointment under the United States, and seems to be one of those frequent cases in which Congress in a general appropriation bill has intentionally enacted some law reaching far beyond the general scope of the bill itself. Its obvious purpose was to abolish all payments for travelling expenses in which a specific allowance per mile was made by law, and to establish the more equitable principle of paying the actual expenses of persons travelling in the service of the Government. And it is to be observed that the universality of this principle is secured by the use of the two words 'employment or appointment' in reference to persons serving under the Government of the United States. (United States v. Mouat, 124 U. S. 303, 305-306, Jan. 23, 1888.) "This act refers to actual traveling expenses, and does not prohibit the head of a Department, having discretion to contract for the services of an employee, from agreeing with such employee upon an amount to include compensation and all expenses." (5 Comp. Dec. 102, 105, Sept. 6, 1898.) "This statute recognizes authority to make allowances for traveling expenses of officers and employees while traveling upon public business, but places a restriction upon such allowances. The restriction is that not more than the amount actu ally paid shall be allowed. The statute, however, does not place any restriction upon the amount to be expended, nor upon the character of the expenses. Yet it would hardly be contended, I think, that an officer or employee who is sent away on public business is authorized to expend any amount he chooses, and for any kind of expense he sees fit. Congress must have intended that there should be some control of such expenditures. This is indicated by the language of the statute, 'only actual traveling expenses shall be allowed to any person, etc., which contemplates that some officer having authority shall allow or authorize such expenses. The statute does not specify the officer having such authority, but ordinarily the head of the Department having control of the appropriation under which the travel is incurred is the proper officer to exercise such authority. When an appropriation is made for a particular object, by implication it confers authority to incur expenses which are incident to that object, and the determination of what expenses are necessary in connection therewith must ordinarily be within the discretion of the officer charged with the duty of executing the object for which the appropriation is made." (5 Comp. Dec. 224, 225-226, Nov. 17, 1898.) "Under the act of Mar. 3, 1875 (18 Stat., 452), only actual traveling expenses are to be allowed to any person holding employment or appointment under the United States, unless other provision is nade by law in a particular case. Actual traveling expenses are such expenses only as are necessarily incurred while traveling, or as are necessarily incident thereto. To entitle an officer or employee to reimbursement for expenses incurred by him while traveling, the travel performed by him must be upon public business or duty. (6 Comp. Dec. 765, 766, Apr. 2, 1900. Accord: 8 Comp. Dec. 278, 279-280, Nov. 9, 1901.) "This act recognizes the right in general of a person holding employment or appointment under the United States to his actual traveling expenses when traveling on public business, and forbids anything in the way of mileage or commutation in lieu thereof except when otherwise provided for by law. Aside from this act, the provisions of section 1765 of the Revised Statutes would forbid payment to any person whose salary, pay, or emoluments are fixed by law or regulation, of any sum beyond his actual traveling expenses, since anything in excess of the same would be additional pay, extra allowance, or compensation, which is absolutely forbidden. So, also, when a person has been employed at a compensation agreed to in advance, any payment on account of traveling expenses in excess of the actual expenses incurred would be in the nature of a gratuity, and illegal." (6 Comp. Dec. 965, 966, June 27, 1900.) |