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PAY OF A JUROR WHO IS IMPANELED TWICE ON
THE SAME DAY.
Although a person is twice impaneled as a juror on the same day, he is
only entitled to one per diem for his services on said day. (Comptroller Tracewell to W. H. Darrough, marshal, Decem
ber 28, 1904.)
I have received your letter of the 20th ultimo, as follows:
"I present herewith an original and duplicate pay roll for a petit juror, J. Y. Battenfield, and desire an opinion as to whether I can pay the same and be reimbursed in my accounts for the disbursement.
6 The facts are that Battenfield was summoned as a talesman on the 8th instant. The panel on which he sat about the middle of the day brought in their verdict and was discharged, and the marshal ordered by the court to pay the talesman, which was done. Within an hour or two Battenfield was again selected and summoned to sit in another case, which he did, and the jury did not bring in its verdict until the 9th. He was again discharged and ordered paid for both the 8th and 9th and claimed his attendance for each date, notwithstanding he had been previously paid for the 8th. He was paid for the 9th and his receipts taken for his attendance in the second case on the 8th, but payment thereof refused by me."
Section 852 of the Revised Statutes, provides, as follows, for fees of jurors:
“For actual attendance at any court or courts and for the time necessarily occupied in going to and returning from the same, three dollars a day during such attendance.'
See also act of June 21, 1902 (32 Stat., 396).
I know of no law or decision construing said section authorizing a payment of more than one per diem for a day's attendance of a juror and where such a payment has been inadvertantly or erroneously made steps are taken for its refundment through the proper channel. This I understand is the invariable practice of the accounting officers.
You are therefore not authorized to pay two per diems for the same day in question.
TRANSPORTATION HOME OF ENLISTED MEN OF THE NAVY ON DISCHARGE FROM THE SERVICE.
An enlisted man of the Navy whose home is in Porto Rico is a resident of
the United States within the meaning of the provision in the act of March 3, 1903, for the transportation to their homes of enlisted men
of the Navy on discharge from the service. (Assistant Comptroller Mitchell to the Secretary of the Navy,
December 28, 1904.) I have received by your reference of the 4th ultimo, with a request for a decision “as to whether the transportation requested can be furnished at public expense,” the following communication to you from Antonio Cosme, formerly electrician, second class, U. S. Navy, a resident of Porto Rico:
"BROOKLYN, N. Y., October 27th, 1904. “SIR: I respectfully request for consideration to the following: On August the 13th of the 1902 I enlisted in the U. S. Navy as an electrician of the 3rd class at the navy-yard, San Juan, P. R., under the U. S. flag.
“On May the 28th of the 1904 I was discharge from the service an electrician 2d class after recommendation of a board of medical survey that is medical discharge,' which I hold.
“As my discharge took place at New York Navy-Yard while serving on board the U. S. Illinois, I asked for transportation to the commanding officer, but was denied to me. Since then I have been working at this place with the intention of saving enough money to take me home, but as I am keeping my mother and sister in San Juan, and my wages are low, I have not been able to save any money, so I make a last effort applying to your judgment, as I think I should be sent home. "Very respectfully,
"ANTONIO COSME CALVO. “Father: A. Cosme Martinez (dead since my enlistment). “Mother: Asuncion Calvo (living). “Residence when enlisted: #41 Fren st., Catano, P. R.”
The Chief of the Bureau of Navigation indorses the application as follows:
"2. Antonio Cosme enlisted on board of the Potomac at San Juan, P. R., August 14, 1902, for four years, as electrician, 3rd class, and was discharged from the Illinois at Tompkinsville, N. Y., May 28, 1904, upon recommendation of a board of medical survey, for physical disability. When enlisted he claimed as his residence San Juan, P. R. He now makes claim for the transportation from New York to San Juan, which was not furnished him at the time of his discharge.
"3. Paragraph 3, article 881, U. S. Navy Regulations relative to transportation of men and apprentices, provides that
** If they enlist beyond the continental limits of the United States and are discharged by reason of expiration of enlistment or recommendation of a medical board of survey, they are not entitled to transportation.'
“This regulation was published in General Orders, 52, of July 1, 1901. The act of Congress approved March 3, 1903, making appropriation for transportation of men during the period in which Antonio Cosme was discharged, provides as follows:
"For the transportation of enlisted men and apprentices at home and abroad; transportation and subsistence en route to their homes, if residents of the United States, of enlisted men and apprentices discharged on medical survey; transpor. tation and subsistence en route to the places of enlistment, if residents of the United States, of enlisted men and apprentices discharged on account of expiration of enlistment;
" 4. There does not appear to be any provision in the law limiting the furnishing of transportation to men who enlisted within the continental limits of the l'nited States, but there is a provision limiting it to men and apprentices, “ residents of the United States.'
“* This case is respectfully submitted with request for a decision as to whether Antonio Cosme is a resident of the United States within the meaning of the act approved March 3, 1903, and if he is entitled thereunder to transportation to his residence, San Juan, P. R.”
Prior to July 1, 1902, all transportation for enlisted men of the Navy was paid from appropriations usually made in general terms, as " for the transportation of enlisted men and boys at home and abroad, and of officers accompanying them” (31 Stat., 1109), and the payments were governed as to discharged men by section 1422 of the Revised Statutes, and Navy Regulations; of the latter, paragraph 3 of article 881, as quoted by the Chief of Bureau of Navigation, supra.
The naval appropriation act of July 1, 1902 (32 Stat., 664), provides:
“Bureau of Navigation: Transportation, etc. Transportation and subsistence en route to their homes, if residents of the United States, of enlisted men and apprentices discharged on medical survey; transportation and subsistence en route to the place of enlistment, if residents of the United States, of enlisted men and apprentices discharged on account of expiration of enlistment.
A like appropriation has been made in the same terms by subsequent annual appropriation acts (32 Stat., 1178; 33 Stat.,
28007– Vol. 11-05-22
325). These acts specify the conditions under which transportation and subsistence shall be furnished enlisted men and apprentices on discharge, and supersede any regulations in conflict with them.
It appears that Antonio Cosme, the discharged enlisted man in this case, was enlisted at San Juan, Porto Rico, and that at the time of his enlistment he was a resident of Porto Rico. He was discharged on medical survey at New York, and when discharged he made application for transportation to his home in Porto Rico, which was refused.
It seems that the only question in the case is whether upon the facts stated Antonio Cosme at the time of his discharge was a resident of the United States within the meaning of the above statutes granting transportation and subsistence to enlisted men and apprentices discharged from the Navy on medical survey.
The United States in a strict sense means the States united, and in that sense they would not embrace the organized Territories and the District of Columbia; but I do not think it was intended that the benefits of the above acts should be restricted to citizens of the United States using the words “ United States” in the sense of States united. Since Porto Rico was ceded by Spain to the United States it has been fully organized under a law of Congress providing the details of its government, and organized for the most part upon the plan adopted for the territories contiguous to the States of the Union.
The act of April 12, 1900 (31 Stat., 80), entitled "An act temporarily to provide revenue and a civil government for Porto Rico, and for other purposes,” among other things provides:
“Sec. 14. That the statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United States, except the internal-rerenue laws, which, in view of the provisions of section three, shall not have force and effect in Porto Rico."
The trade-mark act of Congress of March 3, 1881, provides:
“That owners of trade-marks used in commerce with foreign nations, or with the Indian tribes, provided such owners shall be domiciled in the United States or located in any foreign country or tribes which by treaty, convention, or law
afford similar privileges to citizens of the United States, may obtain registration of such trade-marks by complying with the following requirements.
In an opinion rendered by the Attorney-General February 19, 1902 (23 Op. Att. Gen., 634), it was held that Porto Rico being an organized Territory of the United States, and the laws of the United States not locally inapplicable, having been extended to that island, its residents were entitled to register trade-marks in the C'nited States, as provided in the act of March 3, 1881, supra.
It will be observed that said trade-mark act, so far as our country is concerned, is contined to owners of trade-marks domiciled in the United States, but the Attorney-General held that said act was applicable to owners of trade-marks domiciled in Porto Rico.
The Government has established a liberal policy toward discharged enlisted men of its military and naval service by providing for them a means for return to their homes or places of enlistment on their discharge. The purpose of the law is manifestly twofold—first, for the benefit of the men, and, second, to prevent them from becoming a charge and burden upon the community in which they may happen to be discharged. It is in harmony with the general policy of the Government toward men in its military or naval service that these laws should be liberally construed. Travel pay is provided for enlisted men of the Army when discharged, from the place of discharge to the place where they enlisted regardless of where they reside.
In view of what I have already said I am of opinion that Antonio Cosme having been discharged on medical survey he is entitled to transportation and subsistence from the place of discharge to the place where he entered the service, namely, San Juan, P. R.
ADVANCE OF FUNDS TO CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT TO DEFRAY TRAVELING EXPENSES.
A paymaster is not authorized to advance public moneys to civilian em
ployees of the Navy Department to defray traveling expenses. The appropriation “Pay, miscellaneous” for the Navy is exclusively ap
plicable to the reimbursement of civilian employees in the Navy Department for traveling expenses.