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I do not think the Crosley case is decisive of the question here presented. In that case the claimant, being a lieutenant of the junior grade in the Navy, corresponding in rank with a first lieutenant in the Army, while serving as aid to a rearadmiral in the Navy, corresponding in rank with a majorgeneral in the Army, was allowed the extra $200, the same as a lieutenant in the Army would be entitled to receive while serving as aid to a major-general. In other words, it was decided in that case that the extra $200 allowed to a first lieutenant in the Army, in addition to the regular pay of his rank while serving as aid to a major-general, was because of additional service imposed, upon the officer; in other words, the pay of a first lieutenant of the Army, when serving as aid to a major-general, is $200 more than his pay when not so serving, but the extra $200 allowed to him when serving as aid is pay of the office; that Crosley, being a lieutenant of the junior grade in the Navy, held an office corresponding in rank to that of a first lieutenant in the Army, and being an aid to a rearadmiral, corresponding in rank to a major-general, he was entitled by section 13 of the navy personnel act to the same pay as an officer of corresponding rank in the Army, including $200 in addition to the pay of his rank because of additional service imposed upon him while serving as aid to a rear-admiral, being the same pay a first lieutenant is entitled to receive when serving as aid to a major-general. In either case the extra $200 is a part of the pay of the office, being $200 more when the officer is serving as aid than when he is not so serving, the extra $200 being allowed because of additional service imposed upon the officer.
By section 1096, supra, a lieutenant or captain selected as aid by the General of the Army has conferred upon him by said section, while serving as such aid, the rank of colonel of cavalry, and by section 1261, supra, he is entitled to the pay of a colonel.
In 16 Op. Att. Gen., 551, it was held that the rank conferred by section 1096, Revised Statutes, upon the aids selected by the General of the Army thereunder, entitles such aids to the precedence, when serving upon courts-martial, courts of inquiry, military boards, and the like, to which the same rank would entitle an officer of the line or staff (independent of office of aid) when thus serving.
The pay to an aid to the General of the Army is pay based solely on rank. For pay purposes he is a colonel, the same as if he had been appointed as such by the President and confirmed by the Senate, although the office he holds may be only that of a first lieutenant. (Wood v. United States, 15 Ct. Cl., 151.) I know of no statute or regulation which confers upon the claimant in the case here presented, while serving as aid to the Admiral, any different rank from that which he held while not serving as such aid. To hold that he is entitled while serving as aid to the Admiral to the pay of a captain in the Navy whose relative rank is that of colonel in the Army, would be to assume that while serving as such aid his rank was changed from that of lieutenant, junior grade, to that of captain in the Navy, and this in the absence of any statute or regulation conferring upon bim such higher rank, which would be a liberty I do not feel justified in assuming. The office and rank which he held while serving as aid to the Admiral was that of lieutenant, junior grade, in the Navy, corresponding in rank to a first lieutenant in the Army, and I know of no statute or regulation by which he can be allowed any pay in addition to the pay of the office and rank which he held.
The decision by the Auditor is not approved.
PAYMENT OF A REWARD TO THE FINDER OF A
Payment of a reward to the finder of a lost boat, the property of the
United States, which had been lost at sea, is not authorized where no
reward bad been offered prior to the return of the property. (Acting Comptroller Mitchell to the Secretary of the Navy,
June 9, 1905.)
I am in receipt, by your reference of the 16th ultimo, of a letter from Henry de F. Mel, passed assistant paymaster, United States Navy, as follows:
“I have the honor to transmit herewith a requisition and public bills in quadruplicate to cover reward for recovery of à dingey belonging to this vessel.
“ This dingey broke adrift from her painter and drifted about the bay until rescued by fishermen and cared for until
the ship's arrival. Have I authority to pay this reward under the appropriation Construction and repair, 1905,' and if not, under what appropriation can the reward be paid? All proper precautions for the safety of the boat are reported as having been taken, and it seems reasonable that there must be some means to meet this emergency.
“I respectfully request that an immediate decision be rendered in order that the matter be settled before this vessel leaves this vicinity.”
On this letter the commander of the Wyoming, the vessel to which the dingey belonged, made the following indorsement:
The alcalde of the province informs me that the loss sustained by the fishermen in bringing the boat to port, thereby missing the sale of their catch, was considerably more than the amount specified in the requisition, and it is therefore recommended that if practicable the payment of the amount stated, to the alcalde in question for the fishermen, be authorized.”
Upon the facts as presented it does not appear that a reward had been offered for the return of the boat, or that the services of claimants in relation thereto were rendered by request, either express or implied, of the United States.
The law is well settled that where a person finds lost property and voluntarily returns it to the owner he has no legal claim against the owner for compensation therefor.
In the case of Watts v. Ward (1 Oregon, 87) the court said:
“No doctrine is better settled at common law than that the finder of lost property is not entitled to a reward for finding it if there be no promise of such reward by the owner. (Brinstead v. Buck, 21 BI. R., 1117; Nicholson v. Chapman, 2 H. BI. R., 254; 2 Kent's Commentaries, 356; 5 Met., 352.) Some of the authorities maintain that the finder of lost property is entitled to recover from the owner thereof his necessary and reasonable expenses in the finding and restoration of said property. Amory v. Flynn, 10 Johns., 102; 2 Kent's Com., 356.) Other authorities seem to take the ground that the finder has no legal right to anything from the owner for his trouble and expense in finding lost property. Brinstend v. Buck, Nicholson v. Chapman, before cited, appear to stand upon this principle. Chief Justice Eyre, speaking upon this subject in the latter case, says: “Perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward upon the
moral duty of gratitude.' Chief Justice Shaw, in Wentworth v. Day (5 Met., 352), says that the finder of lost property on land has no right of salvage at common law.' Where one person gratuitously performs an act of kindness for another, the law, as a general rule, does not recognize the right to a compensation for such act.
“In the case of Holmes v. Tremper (20 Johns., R., 28) it was held that the plaintiff was not entitled to any recompense for services rendered in saving defendant's property from fire, because such services were entirely voluntary and without any express or implied promise on the part of defendant to pay for them. No person is bound in law to take trouble with property which he finds. And if, without any knowb . edge of the owner's wishes, he does incur expense on account of such property, does he not in so doing trust the liberality of the owner rather than the force of law? For it may be that such owner did not desire to have his property disturbed, or, if lost, preferred to find it himself. Much of the stock of this country is permitted to run at large, and if every animal lost, or appearing to be lost, can be taken up and the owner thereof legally charged for all trouble and expense thereby incurred, the business of finding cattle would certainly become profitable, and persons might be largely involved in debt without their knowledge or consent. Where a reward is offered for lost property, the finder, when he complies with the terms of the offer, has a right to retain the property in his hands until the promised reward is paid to him. (Wentworth v. Day, 5 Met., 352.) Persons are apt to offer a reward if they wish to pay for the finding of lost property.”
In 5 Comp. Dec., 37, it was held that there was no authority of law to pay the finder of a submarine mine, the property of the United States, which had been lost at sea, for his services in finding and restoring it to the proper officer of the Government, no reward having been offered prior to the return of the property and the services not having been rendered by request of the United States.
In MS. Dec., vol. 14, p. 28, it was held that payment of a reward for the finding and returning of a lost boat was unauthorized unless the reward had been offered prior to the return of the boat.
In view of the above authorities I have to advise you that, meritorious as was the conduct of claimants, it did not create a legal obligation against the United States, and that payment of the proposed reward is unauthorized.
REPEATED TRAVEL BY AN OFFICER OF THE NAVY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY.
Under the act of July 1, 1902, where travel is to be performed by an
officer the Navy “repeatedly between two or more places' the Secretary of the Navy has authority to determine and direct between what particular places “actual and necessary expenses only shall be allowed," and a statement in orders for repeated travel that “mileage will not be allowed for travel performed under these orders” amounts
to such a direction. Where repeated travel is performed by an officer of the Navy as an inci
dent of duties added to the duties of an officer's station and not by reason of scattered duties pertaining to his station it is travel entitling him to mileage, unless the Secretary of the Navy directs that actual and necessary expenses only shall be allowed, in which event he is entitled to reimbursement of his actual and necessary expenses, they being expenses in addition to those which he was required to incur in the performance of his duties at his station.
(Decision by Acting Comptroller Mitchell, June 9, 1905.)
H. Williams appealed May 23, 1905, from the action of the Auditor for the Navy Department in settlement dated May 13, 1905.
He claimed reimbursement for expenses of travel, New York, N. Y., to Morris Heights, N. Y., and return, June 9, 1904, under orders of June 11 and July 16, 1903, as assistant naval constructor, United States Navy.
The Auditor allowed him 60 cents, being car fare, 20 cents, and railroad ticket, 40 cents, and disallowed his claim for luncheon, 85 cents, because “Disallowed by Navy Department; meal in vicinity of headquarters.
From this disallowance claimant appeals.
The act of July 1, 1902 (32 Stat., 663), in force at the time the travel was performed, provides:
“That hereafter in cases where orders are given to officers of the Navy or Marine Corps for travel to be performed repeatedly between two or more places in such vicinity as in the discretion of the Secretary of the Navy is appropriate, he may direct that actual and necessary expenses only be allowed."
Where travel is to be performed "repeatedly between two or more places " the Secretary of the Navy is under said law