Comptroller Warwick to the Governor of the Panama Canal, March 22, 1917: I have your letter of February 27, 1917, as follows:

66

Referring to your decisions of January (June) 4, 1912 (61 MS. Comp. Dec., 1140), and August 27, 1912 (62 MS. Comp. Dec., 891), in regard to making deductions from the salaries of employees of the Panama Canal under the authority of section 8 of the sundry civil act approved March 4, 1907 (34 Stat., 1371):

"The Maryland Casualty Company now desire to enter into a contract with the Panama Canal, whereby that company will furnish accident insurance to employees of the canal at the regular rates, the Panama Canal to make deductions from the salaries of employees for the premiums due, upon the specific written authority of the employee. For this service the Maryland Casualty Company will agree to pay to the canal two and one-half per cent of the total collections, to compensate for the expenses incurred by the canal. A great many of the employees desire to pay the premiums in this manner, although it is recognized that this service will be a great benefit to the insurance company.

"The matter is referred to you with request for your decision as to whether these deductions, under the conditions specified, may legally be made."

The act of March 4, 1907, supra, provides that:

"All amounts due from employees, whether to the commission, Panama Railroad Company, or contractor, for transportation, board, supplies, or for any other service, are hereby authorized to be deducted from the compensation otherwise payable to the said employees, and to be paid to the authorized parties, or to be credited to the appropriation out of which the transportation, board, supplies, or other service was originally paid."

In the two decisions referred to (June 4, 1912, 61 MS. Comp. Dec., 1140; Aug. 27, 1912, 62 MS. Comp. Dec., 891) it was ruled by the then comptroller, first, that there was no authority for the Government to act as collecting agent for the insurance company by deducting from the salaries of employees at their request amounts due the insurance company for insurance premiums; and, second, that under the act of March 4, 1907, supra, the parties to whom payment is authorized to be made of the pay of employees must be contractors with the Panama Canal who have furnished the particular employee with transportation, board, supplies, or other service; and that the words "other service" should be held to mean:

แ "That where any person, corporation, or other agency have agreed to furnish the Canal Commission with any service, such service relating to or having to do with the building of the Panama Canal, and the employee takes advantage of such agreement or contract (and this agreement or contract may be either express or implied) and incurs an indebtedness to such contractor of the Canal Commission on account of furnishing any such service, then and under such cir

cumstances the commission may withhold the value of such service so furnished such employee and pay it to its contractor who furnished such service."

Your present submission is apparently no different a question than was answered negatively in the first of the above decisions, except for the proposition of paying the Government for its services in making the deductions, etc.

The Maryland Casualty Co. has had for some years and now has a contract with the canal for fidelity bonding of its employees, and the premiums are paid by deductions from the pay.

This apparently meets the relation which the decision of August 27, 1912, supra, considered should exist to authorize deductions for services directly from a contractor to an employee.

One of the purposes effected by the act of 1907 is to authorize payments by direction of the employee which otherwise might be considered as assignments of claims prohibited by section 3477 of the Revised Statutes.

The undertaking of the canal to make the deductions of premiums is fairly within the authority of the act of 1907, but there is no authority in the canal under said statute to act as the representative of the insurance company at a compensation. That act does not contemplate a compensation to the Government for making deductions from the pay of employees where such deductions are authorized. Nor do I find in the later provisions of Congress for the maintenance and operation of the canal (act of Aug. 24, 1912, 37 Stat., 560) any such functions authorized as would permit acting as representative of an insurance company at a compensation and assume the liabilities which such a relation imposes.

The deductions are authorized to be made, but without compensation to the canal for the service.

PRIVATE COunsel defeNDING OFFICER OF UNITED STATES.

Where an immigration inspector, sued in a foreign country on account of his official acts, employs private counsel for his defense, in the absence of an emergency, without calling on the Department of Justice, payment for the services of such counsel from appropriations for the Immigration Service is not authorized.

Comptroller Warwick to the Secretary of Labor, March 23, 1917:

I have your request of March 14, 1917, for decision whether the appropriation "Expenses of regulating immigration, 1917,” is available for the payment of counsel fees amounting to $25 incurred in the defense of certain inspectors of immigration under circumstances as follows:

"On February 2, 1917, Immigrant Inspectors Zurbrick, Boyd, and Stowers ejected from the United States Immigration Office at Van

couver, B. C., Mr. C. W. T. Piper and son, two aliens who had been refused admission to the United States. The aliens used very abusive language to the officers, and the son, who was not an applicant for admission, was advised to leave the office. Upon his refusal to do so he was ejected by the inspector, whereupon the father assaulted the inspector, using both fists and an umbrella. The father and son were then both removed from the office. As a result of their action the three inspectors were subsequently arrested, and upon trial the case was dismissed. As the prosecution took place in a foreign country, where a United States attorney was not available to defend the inspectors, they employed counsel for their defense.

It is well settled that the Government will sustain its officers and employees in the discharge of their official duties and defend them when attacked in the courts for alleged injuries growing out of the performance of those duties. Congress has, however, by appropriate legislation, expressly provided the manner of conducting such defense. (Secs. 189, 363, 365, 366, Revised Statutes.)

The employment of private counsel as above indicated seems to have been in contravention of the provisions of these sections of the Revised Statutes, as the employment appears to have been made without the approval or knowledge of the Department of Justice, and no emergency is shown for such action (22 Comp. Dec., 264; 37 MS. Comp. Dec., 1209, June 23, 1906; 60 id., 1281, Mar. 18, 1912).

Congress has also made specific provision for carrying the above sections of the Revised Statutes into effect by appropriating funds from year to year for the employment and payment of assistants to the Attorney General and to United States district attorneys, which appropriations were made expressly available for payment of foreign counsel (39 Stat., 313). These appropriations are under the control of the Attorney General and are exclusive for such purposes unless the particular other appropriation contemplated to be used also contains specific provision for similar purposes. The appropriation Expenses of regulating immigration, 1917," is general in its terms and contains no specific provision for counsel fees.

66

I have, therefore, to advise you that you are not authorized to pay the item of counsel fees in question. The claim may, however, be submitted to the Attorney General for such appropriate action as he may see fit to take.

ARMY NURSE CORPS, DEATH GRATUITY.

The act of May 11, 1908, as amended by the act of March 3, 1909, authorizing the payment of so-called death gratuities, relates strictly to officers and enlisted men of the Army on the active list, and, accordingly, has no application to members of the Army Nurse Corps (female).

Comptroller Warwick to the Secretary of War, March 24, 1917:

By indorsement of the 10th instant on a letter addressed to the Quartermaster General of the Army with respect to payment of a

death gratuity in the case of a member of the Army Nurse Corps (female), you request my decision of the question whether the act of May 11, 1908 (35 Stat., 108), as amended by the act of March 3, 1909 (35 Stat., 735), relative to death gratuities in the case of officers and enlisted men on the active list of the Army, is applicable to members of the Army Nurse Corps, and if so, whether a claim for such gratuity filed by the administrator of the estate of Emma A. Rousseau, late a member of that corps, may be paid.

With respect to the case of the particular nurse mentioned, no information is submitted as to whether or not she designated any person as beneficiary as required by the act cited, and, accordingly, on the facts presented no decision could, in any event, be rendered with respect to her case.

Your submission, however, will be considered with reference to the general question involved therein.

The Army Nurse Corps was authorized as a part of the Medical Department of the Army, in the act of February 2, 1901 (31 Stat., 753), in which it was provided (section 19), as follows:

* *

"That the Nurse Corps (female) shall consist of one superintendent, to be appointed by the Secretary of War, who shall be a graduate of a hospital training school whose term of office may be terminated at his discretion, whose compensation shall be one thousand eight hundred dollars per annum, and of as many chief nurses, nurses, and reserve nurses as may be needed Provided, That all nurses in the Nurse Corps shall be appointed or removed by the Surgeon General, with the approval of the Secretary of War; * *

*

The nurses appointed under the provisions of the act quoted are neither commissioned nor enlisted, but, like contract surgeons, are civilians appointed by the Surgeon General of the Army for a specified period and subject to discharge by the same authority, and it is understood that they are not subject to court-martial.

The act of May 11, 1908, above mentioned, as amended by the act of March 3, 1909, is in the following terms:

"That hereafter immediately upon official notification of the death from wounds or disease not the result of his own misconduct of any officer or enlisted man on the active list of the Army, the Paymaster General of the Army shall cause to be paid to the widow of such officer or enlisted man, or to any other person previously designated by him, an amount equal to six months' pay at the rate received by such officer or enlisted man at the date of his death The Secretary of War shall establish regulations requiring each officer and enlisted man to designate the proper person to whom this amount shall be paid in case of his death

*

It will be observed that the language of this act relates specifically only to officers and enlisted men of the Army on the active list, and that it provides that payment of the amount therein authorized

shall be made to the widow or any other person previously designated by him. It would thus appear clear that, in enacting this law, Congress had in mind only persons of the classes therein specified, and that the express terms of the act exclude from its operation all persons not officers or enlisted men on the active list of the Army.

Furthermore, as hereinbefore shown, the Army Nurse Corps was in existence at the time when the act of May 11, 1908, was passed, and had Congress intended to include within its operations the members of that corps, or any other civilians, as for example, contract surgeons, belonging to departments of the Army, it would seem that language more calculated to accomplish that purpose would have been embodied in the act.

While it is true that the words "officers and enlisted men may be used in an act of Congress with a broader meaning than the words usually imply, the context of the act here in question, as well as the policy back of the law, indicates that a meaning broader than that usually attached to those words was not intended in that act.

In this connection the fact that the War Department, during all the years since the passage of the act, has construed it as being limited in operation strictly to officers and enlisted men would be of great weight in reaching a conclusion in this case, even if the meaning of the act were not so clearly expressed.

For the reasons stated you are advised, therefore, that the act of May 11, 1908, as amended, has no application to members of the Army Nurse Corps.

HONORABLE-DISCHARGE GRATUITY AND CONTINUOUS-SERVICE PAY, NAVY. An enlisted man of the Navy who, at the expiration of his term of enlistment, is not discharged therefrom, but, under the provisions of the act of August 29, 1916, is transferred to the Fleet Naval Reserve, and who, within four months after the date of expiration of such term of enlistment, is discharged from the Fleet Naval Reserve and reenlisted for four years in the regular Navy, is entitled, in an otherwise proper case, to honorable-discharge gratuity and to continuous-service pay.

Comptroller Warwick to the Secretary of the Navy, March 28, 1917:

I have your submission of the 15th instant as follows: "A case has arisen in the department where an enlisted man in the Navy was transferred, at the expiration of a term of enlistment and after sixteen years' service, to the Fleet Naval Reserve under the provisions of the act of August 29, 1916 (39 Stat., 556). This man was entitled to an honorable discharge from the Navy but did not receive the same. The man now wishes to be discharged from the Navy and from the Fleet Naval Reserve in order that he may reenlist in the regular naval service.

"The question therefore arises, in this connection, as to whether, in the event of his reenlistment in the Navy, the man would be