Слике страница
PDF
ePub

CASE NOTE

or the

Scope and operation of section.- - Sec. act of June 14, 1878, ch. 191, 20 Stat. 130, "was then and since interpreted and applied by the accounting officers, so far as the 5-year period was concerned, as relating to the procedure to be followed for the 5 years next ensuing after the passage of that act, and as not constituting a statute

1878, June 14. Purchase of material for steam boilers.7

That on and after the passage of this act, the Secretary of the Navy be, and he is hereby authorized to purchase at the lowest market price, such plate iron and other material as may enter into the construction of steam boilers for the Navy, without advertising for bids to furnish the same: Provided, That he shall cause to be sent to the principal dealers and manufacturers of iron and such other materials as may be required specifications of the quality description and character of such iron and materials so required: And provided further, That such plate iron and materials shall be subjected to the same tests and inspection as now provided for and which inspection and tests shall be made publicly and in presence of such bidders or their authorized agents as may choose to attend at the making thereof.--(20 Stat. 253-254, Res. No. 30.)

EDITORIAL NOTES

This joint resolution is embodied in the U.S. Code as sec. 555 of title 34.

The reference to "this act" in the above resolution was evidently intended to be "this resolution".

By act of Mar. 3, 1875, ch. 130, sec. 4, 18 Stat. 399-400, provision was made for the appointment of a board, consisting of officers of the Army and Navy, and three civilian experts, for the purpose of testing the strength and value of iron, steel, and other metals, for constructive and mechanical purposes.

Sec. 4430, R.S., provided for tests of steamboat boiler plates in such manner as prescribed by

EDITORIAL NOTE

The first section of this act and sec. 1499, R.S., are embodied in the U.S. Code as sec. 276 of title 34. Sec. 2 of this act is not embodied in the Code.

of limitations on the consideration and settlement
of claims which theretofore, and thereafter by sec-
tion 2 of the act of July 7, 1884, 23 Stat. 254,
were recognized as proper for allowance under lapsed
appropriations and for reporting to the Congress
as certified claims, irrespective of the time when
such claims might be filed." (19 Comp. Gen. 944,

949, May 20, 1940.)

CASE NOTES

Scope and operation of statute.- "The first section of that act is prospective, enacting that thereafter facts passed upon and settled by previous Boards are not to be again inquired into. The second section is retrospective--that the President may, in cases where the rule prescribed in the first section has been violated, order and direct a re-examination." (Thompson, Adm'x v. United States, 18 Ct. Cls. 604, 613, May 21, 1983.)

"This statute places a bar in the way of a new examination into old accusations or facts, and starts the officer in his higher grade with a clean record, unless the fact be a continuing one, showing the candilate's unfitness to 'perform all his duties at sea. But the act goes no further; it leaves the examining board otherwise subject to the mandates of section 1493 of the Revised Statutes, which, thus lin.ted. uthorizes an examination of the files and

the Board of Supervising Inspectors and approved by the Secretary of the Treasury.

CROSS REFERENCES

Advertisements for proposals: see sec. 3709, R.S., as amended; and sec. 3718, R.S., as amended. Contracts for naval supplies: see sec. 3718, R.S., as amended.

1878, June 18. Limitation upon powers of examining board.7

That hereafter in the examination of officers in the Navy for promotion no fact which occurred prior to the last examination of the candidate whereby he was promoted, which has been enquired into and decided upon, shall be again enquired into, but such previous examination, if approved, shall be conclusive, unless such fact continuing shows the unfitness of the officer to perform all his duties at sea.--(20 Stat. 165, ch. 267.)

Open-market purchases: see sec. 3709, R.S.,

Sec. 2. The President of the United States may in cases wherein the rule herein prescribed has been violated order and direct the re-examination of the same.--(20 Stat. 166, ch. 267.)

as amended.

War contracts exempt from certain restrictions upon authorization of the President: see the First War Powers Act, 1941, approved Dec. 18, 1941, ch. 593, title II, sec. 201, 55 Stat. 839.

records of the Navy Department concerning the offi-
cer's career in the grade from which he is at the
me seeking promotion." (Davis, Adm'r v. United
States, 24 Ct. Cls. 442, 446-447, May 13, 1889.)

"The terms of this act show that it dealt with the qualifications of a single officer coming up for examination for his seniority promotion, and not with the comparative fitness for promotion of several officers." (31 Op. Atty. Gen. 87, 88, Jan. 13, 1917.)

An examining board, examining a candidate for promotion to the rank of captain, U.S. Marine Corps, over his objection considered unfavorable matter on his military record which had previously been considered by the examining board that qualified him for the grade of first lieutenant, J. S. Marine Corps. The record in this case clearly showed that the candidate was indecisive, careless, and negligent, both as a second lieutenant and as a first lieutenant. However, the matter considered by the examining board as "facts continuing" consisted of several instances of deficiency in the performance of his duties as a first lieutenant about ten years after similar deficiencies had been demonstrated by him as a second lieutenant. In view of the lapse of about ten years

between these occurrences, held that they showed a recurrence of certain deficiencies rather than "facts continuing" within the meaning of the act of June 18, 1878, ch. 267, 20 Stat. 165, and that the examining board in these proceedings violated the express terms of the act in considering such matter as "facts continuing" to show the unfitness of the candidate in this case. (File Al7-30 (320328), May 26, 1932, C.M. 0. 5-1932, p. 14. See also File A17-30(320528), June 4, 1932, C.M.0. 5-1932, p. 15.)

Records in the case of a major in the Marine Corps showed that, while a first lieutenant, he was considered careless and lacking in judgment. It appeared that while in the grade of captain he was relieved from duty with the 5th Regiment, 2d Battalion Marines, in France on Sept. 2, 1918, for inefficient performance of duties. It appeared that in 1920 and 1921 he was considered careless and in 1921 his judgment was considered at fault. In the grade of major, in 1923, the officer was considered to be lacking in good judgment, the reporting officer stating that he was relieved from duty as forestry officer because of a "serious error in judgment. There were no reports indicating carelessness while in the grade of major, nor were there any subsequent reports indicating that the officer lacked judgment. The last report indicating carelessness on the part of the officer was made in 1921 while he was a captain and the last report indicating lack of judgment was made in 1923 while he was a major. The record showed that the greater portion of the unfavorable reports relating to his lack of judgment and carelessness !appeared while he was in the grade of captain. reports were "inquired into" by the three examining boards which examined said officer for promotion to major and the report of the examining board which found him qualified was approved Dec. 23, 1922.

Those

[ocr errors]

EDITORIAL NOTES

Amendment of this act 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.

Held, That a report in 1923 that this officer, while serving in the grade of major, was lacking in good judgment, was not a "fact continuing" within the meaning of the act of June 18, 1878, ch. 267, 20 Stat. 165, and that the examining board in this case may not be furnished with the record of this officer in the grades of first lieutenant and captain for consideration in connection with his examination for promotion to the grade of lieutenant colonel. (File OA/A17-28 (340418), May 4, 1934, C.M. O. 5-1934, p. 15.)

An examination of an officer for transfer from the line of the Navy to the Supply Corps is not an examination "for promotion" within the meaning of the act of June 18, 1878, ch. 267, 20 Stat. 165. (File 00-Naumilket, Chas. J./A17-28 (360821), Oct. 8, 1936, C.M. O. 10-1936, p. 6.)

1878, June 19. Statements of receipts and expenditures in the naval service; reports of amounts lost or unaccounted for.7

That from and after the passage of this act, it shall be the duty of the Secretary of the Treasury to transmit to Congress, annually, a tabular statement showing in detail the receipts and expenditures in the Naval service under each appropriation, as made up and determined by the proper officers of the Treasury Department, upon the accounts of disbursing-officers rendered for settlement.--(20 Stat. 167, ch. 311.)

Sec. 2. There shall be appended to this statement an account of balances in the hands of disbursing agents at the close of each fiscal year, and a report of any amounts lost or unaccounted for by voucher.-(20 Stat. 167, ch. 311.)

In connection with the examination for promotion of a lieutenant (junior grade) an examining board considered unfavorable matter which had been considered previously upon his promotion from ensign to lieutenant (junior grade); this matter in substance indicated carelessness or indifference in regard to caring for financial obligations. Subsequent entries showed a continuing carelessness or disregard of financial obligations by the candidate. While there was no direct connection between the transactions resulting in the unfavorable matter contained in the fitness report previously considered and those causing subsequent unfavorable comment, held that the general character of the derelictions was the same, namely carelessness or indifference in regard to caring for financial obligations, and was a "fact continuing" within the meaning of the act of June 18, 1878, ch. 267, 20 Stat. 165. (File 00/A1728 (370910), Sept. 22, 1937, C.M. O. 9-1937, p. 10.)

This act, as amended, is embodied in the U. 3. ode as secs. 272 and 273 of title 5.

1878, June 19. Requisitions of Secretary of the Navy for advances; restriction upon use of appropriations for "Pay of the Navy".7

That the Secretary of the Navy be, and he is hereby, authorized to issue his requisitions for advances to disbursing officers and agents of the Navy under a "General account of advances", not to exceed the total appropriation for the Navy, the amount so advanced to be exclusively used to pay current obligations upon proper vouchers and that "Pay of the Navy" shall hereafter be used only for its legitimate purpose, as provided by law.--(20 Stat. 167, ch. 312.)

Sec. 2. That the amount so advanced be charged to the proper appropriations, and returned to "General account of advances" by pay and counter warrant; the said charge, however, to particular appropriations, shall be limited to the amount appropriated to each.--(20 Stat. 167, ch. 312.)

Sec. 3. That the Fourth Auditor shall declare the sums due from the several special appropriations upon complete vouchers, as heretofore, according to law; and he shall adjust the said liabilities with the "General account of advances."--(20 Stat. 168, ch. 312.)

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors]

"The act of June 19, 1878, was intended to prohibit the use of the appropriation 'Pay of the Navy' for the purpose of paying, in the first instance, items properly chargeable to other appropriations, subject to transfer upon settlement by the accounting officers to the appropriation properly chargeable with such items, as had theretofore been the practice, and not to change the purposes for which the appropriation 'Pay of the Navy' could be properly used." (3 Comp. Dec. 736, 739, June 30, 1897. See also 14 Comp. Dec. 680, 683, Apr. 11, 1908.)

"It is not contemplated that advances could be made which could only be reimbursed from a future appropriation." (28 Op. Atty. Gen. 456, 459, Nov. 10. 1910.)

EDITORIAL NOTE

This act is embodied in the U.S. Code as sec. 102 of title 18.

The "general account of advances" was established by this act. (29 Op.Atty. Gen. 344, 346, Mar. 7, 1912.)

"In practice, under said act of June 19, 1878,
moneys required by the disbursing, officers of the
Navy for all purposes are drawn from the Treasury in
lump sums upon said 'General account of advances, '
and thereafter charged against the several appropria-
tions upon monthly reports of the disbursing offi-
cers showing what payments have been actually made
by them and the appropriations to which those pay-
ments are chargeable, verification and final adjust-
ment of the appropriations being made when the
vouchers for the payments so reported are received
by the Auditor.". (12 Comp. Dec. 250, 252, Oct. 31,
1905.)

"The provisions of said act of June 19, 1878,
require that advances of moneys to disbursing offi-
cers and agents of the Navy for disbursement be
drawn from the Treasury upon requisitions issued by
the Secretary of the Navy under a general account of
advances, thereafter to be charged against the sev-
eral appropriations upon reports of the disbursing
officers showing what payments have been actually
made by them and the appropriations to which those
payments are chargeable; verification and final ad-
justment of appropriations being made when the
vouchers for the payments so reported are received
in the General Accounting Office. The act does not
make of general account of advances an appropriation
and no authority exists for a disbursement purport-
ing to be chargeable thereto except as it may be
properly chargeable to an appropriation forming one
of the components thereof. After moneys advanced
to a disbursing officer on properly approved requi-
sitions are disbursed, recoveries or collections
made on account of the payments are not available
for disbursement and should be deposited into the
Treasury to the credit of the appropriation, spe-
cial or trust fund under which such disbursements
were originally made." (10 Comp. Gen. 382, 384, Feb.
21, 1931.)

1878, June 19. Stealing, defacing, injuring, etc., books, pamphlets, manuscripts, etc.7

That any person who shall steal, wrongfully deface, injure, mutilate, tear, or destroy any book, pamphlet, or manuscript, or any portion thereof, belonging to the Library of Congress, or to any public library in the District of Columbia, whether the property of the United States or of any individual or corporation in said District, or who shall steal, wrongfully deface, injure, mutilate, tear, or destroy any book, pamphlet, document, manuscript, print, engraving, medal, newspaper, or work of art, the property of the United States, shall be held guilty of a misdemeanor, and, on conviction thereof, shall, when the offense is not otherwise punishable by some statute of the United States, be punished by a fine of not less than ten dollars nor more than one thousand dollars, and by imprisonment for not less than one nor more than twelve months, or both, for every such offense.--(20 Stat. 171, ch. 317.)

Where funds advanced to a disbursing officer
of the Navy and charged to the General Account of
Advances for naval appropriations established under
the act of June 19, 1878, ch. 312, 20 Stat. 167, are
stolen or otherwise lost, there is no authority
under the act to clear the said charge by crediting
the General Account of Advances and charging the
appropriation to which the major portion of the dis-
bursing officer's disbursements were charged. (19
Comp. Gen. 722, Feb. 14, 1940.)

1878, June 20. Advertising rates.7

That hereafter all advertisements, notices, proposals for contracts, and all forms of advertising .equired by law for the several departments of the government may be paid for at a price not to exceed the commercial rates charged to private individuals, with the usual discounts; such rates to be ascertained

[ocr errors][ocr errors]

from sworn statements to be furnished by the proprietors or publishers of the newspapers proposing so to advertise: *** but the heads of the several departments may secure lower terms at special rates whenever the public interest requires it.--(20 Stat. 216, ch. 359.)

[blocks in formation]
[blocks in formation]

1879, Feb. 14, Sale of charts to persons not in government service. That all charts hereafter furnished to mariners or others not in the government service shall be paid for at the cost price of paper and printing paid by the government.--(20 Stat. 286, ch. 68.)

EDITORIAL NOTES

This provision appeared under the heading "Bureau of Provisions and Clothing". By act of July 19, 1892, ch. 206, 27 Stat. 236, 243, the name of the bureau was changed to "Bureau of Supplies and Accounts".

This statutory provision authorizes the payment of commercial rates for advertising, "such rates to be ascertained from sworn statements to be furnished by the proprietors or publishers of the newspapers proposing so to advertise. The furnishing of such sworn statements by the proprietors or publishers is thus made a condition precedent to the payment of such rates. (10 Comp. Dec. 498, Dec. 23, 1903.)

By act of June 30, 1890, ch. 640, 26 Stat. 189, 197, it was provided that "the clothing fund and

This statutory provision "refers to advertising generally, and prohibits payment for all forms of advertising required by law for the several departments of the Government at rates in excess of commercial rates, etc., to be proved by the sworn statement of the publisher. It is not limited to the Executive Departments in Washington" (13 Comp. Dec. 310, 313, Oct. 26, 1906.)

"By the use of the words proposing so to advertise' it is evident that it was the intention of Congress in enacting this law to have a known rate available to the various departments on which to base their advertising contracts. This being so, it is a necessary requirement that the sworn statement of rates to be charged for advertising should be on file in the department at the time an order for advertising is placed 120 Comp. Dec. 837, 838, June 6, 1914.)

"The wording of the statute indicates clearlys that its operation is limited to the divisions of the executive branch of the service known as executive departments, and I have so held though no formal decision to that effect has been written. The operation of the statute is not limited to publications for the branches of executive departments located in Washington, but it applies to any branch of said departments wherever located." (21 Comp. Dec. 476, 477, Jan. 22, 1915.)

1879, Feb. 14. Charges against, and credits to, clothing and small-stores fund./

That from and after the first day of April, eighteen hundred and seventy-nine, the value of issues of small-stores shall be credited to a fund to be designated as the "small-stores fund", in the same manner as the value of the issues of clothing is now credited to the "clothing fund"; the resources of the fund to be used hereafter in the purchase of supplies of small-stores for issue.--(20 Stat. 288, ch. 68.)

CROSS REFERENCES

Deposit of receipts from sales of Hydrographic Office publications: see act of May 29, 1920, ch. 214, 41 Stat. 665.

Preparation and sale of maps, charts, and nautical books: see act of Jan 12, 1895, ch. 23, seo. 77, 28 Stat. 621, as amended.

small stores fund shall be hereafter consolidated and' administered as a fund to be known as the cloth ing and small stores fund."

This provision, as amended, is embodied in the U.S. Code as sec. 640 of title 31.

The clothing and small-stores fund has been increased from time to time by provisions contained in naval appropriation acts. The list includes the

[ocr errors]

following: act of June 8, 1898, ch. 395, 30 Stat.
437, 439; act of Jan. 5, 1899, ch. 41, 30 Stat. 772,
781; act of Mar. 3, 1903, ch. 1010, 32 Stat. 1177,
1191; act of Mar. 4, 1917, ch. 180, 39 Stat. 1168,
1183; act of June 15, 1917, ch. 29, 40 Stat. 182,
210; act of July 1, 1918, ch. 114, 40 Stat. 704, 729;
act of Mar. 20, 1922, ch. 104, 42 Stat. 437, 451
(which effected a temporary increase); act of June
11, 1940, ch. 313, 54 Stat. 265, 278; act of June
26, 1940, ch. 430, 54 Stat. 599, 605; act of Mar.
17, 1941, ch. 16, 55 Stat. 34, 36; act of May 6,
1941, ch. 86, 55 Stat. 161; act of Aug. 25, 1941,
ch. 409, 55 Stat. 669, 671; act of Feb. 7, 1942, ch.
46, 56 Stat. 53, 64, 79; act of June 23, 1942, ch.
444, 56 Stat. 387, 388; act of Mar. 31, 1943, ch. 30.
57 Stat. 52, 54; act of June 26, 1943, ch. 147, 57
Stat. 197, 205; and act of June 22, 1944, ch. 269,
title II, 58 Stat. 323.

Transfers from the clothing and small-stores fund have been authorized by provisions in naval appropriation acts. The list includes the following: act of Jan. 22, 1923, ch. 28, 42 Stat. 1132, 1154 act of June 30, 1932, ch. 318, 47 Stat. 421, 430; act of Mar. 3, 1933, ch. 213, 47 Stat. 1521, 15291530; and act of Mar. 15, 1934, ch. 69, 48 Stat. 403, 411.

By acts making appropriations for the Navy Department and the naval service for the fiscal years 1921-1940, inclusive, it was provided that the clothing and small-stores fund should be charged with the value of all issues of clothing and small stores made to specified classes of persons in the naval service.

EDITORIAL NOTES

The Engineer Corps of the Navy was abolished and the personnel thereof (on the active list) transferred to the line of the Navy by the first section of an act of Mar. 3, 1899, ch. 413, 30 Stat 1004. Assignment of officers of the line of the Navy to engineering duty only was provided for by a

EDITORIAL NOTES

So much of this section as is set out above is embodied in the U.S. Code as the last sentence of sec. 280 of title 39.

Sec. 3937, R.S., as amended and reenacted by act of June 19, 1934, ch. 665, 48 Stat. 1120-1121, provides, in part, as follows:

CROSS REFERENCES

Administration of clothing and small-stores fund: see act of June 30, 1890, ch. 640, 26 Stat.

197.

1879, Feb. 26. Detail of engineer officers to educational institutions.7

That for the purpose of promoting a knowledge of steam-engineering and iron-ship building among the young men of the United States, the President may, upon the application of an established scientific school or college within the United States, detail an officer from the Engineer Corps of the Navy as professor in such school or college: Provided, That the number of officers so detailed shall not at any time exceed twenty-five, and such details shall be governed by rules to be prescribed from time to time by the President: And provided further, That such details may be withheld or withdrawn whenever, in the judgment of the President, the interests of the public service shall so require.--(20 Stat. 322-323, ch. 105.)

"All domestic letters deposited in any post office for mailing, on which the postage is wholly unpaid or paid less than one full rate as required

Crediting, to clothing and small-stores fund, of net proceeds of sales of clothing and small stores: see act of May 21, 1926, ch. 355, 44 Stat. 605.

CASE NOTES

Utilization of clothing and small-stores fund. There is no existing authority of law for the employment of civilian tailors to make alterations to uniforms issued to enlisted personnel through the clothing and small stores fund, and to pay for their services from such fund. (File MM/JJ55-3 (390503), May 16, 1939, C. M. 0. 1-1939, p. 28.)

As the Bluejackets Manual is an authorized "Books, educational" of the Navy which may, under U.S. Navy Regulations, be sold in ships' stores, it may be classified as "small-stores", and the clothing and small-stores fund may be employed for financing sales thereof. (File JAG:J:JAL: amp, Apr. 16, 1943, C.M.O. 2-1943, p.

2.)

As khaki shirts and trousers are specifically prescribed, by U.S. Navy Uniform Regulations, as parts of working uniform for commissioned, warrant and chief petty officers, and are articles of clothing, the clothing and small-stores fund may be employed for financing sales of such articles of clothing. (File JAG:J:JAL: amp, Apr. 16, 1943, C.M.O. 2-1943, p. 62.)

1879, Mar. 3. Transmission of letters of soldiers, sailors and marines.7

Sec. 9. *** The Postmaster General may, however, provide, by regulation, for transmitting unpaid and duly certified letters of soldiers, sailors, and marines in the service of the United States to their destination, to be paid on delivery.--(20 Stat. 358-359, ch. 180.)

provision of an act of Aug. 29, 1916, ch. 417, 39 Stat. 556, 580, which has been amended and supplemented by later enactments.

This act, with "an engineer officer of the Navy" substituted for "an officer from the Engineer Corps of the Navy", is embodied in the U.S. Code as sec. 1126 of title 34.

by law, excep letters lawfully free, and duly certified letters of soldiers, sailors, and marines in the service of the United States, shall be sent by the postmaster to the dead-letter office in Washington, or to a post office designated by the Postmaster General, to be treated in the same manner as other undelivered letters."

CROSS REFERENCE

Free postage for members of military and naval forces of the United States: see the Second War Powers Act, 1942, approved Mar. 27, 1942, ch. 199, title IX, sec. 901, 5 Stat. 181-182.

« ПретходнаНастави »