MAXIMUM PUNISHMENT, COAST GUARD.

The provision in the act of May 26, 1906, to the effect that the commanding officer of a vessel of the Revenue-Cutter Service (now a part of the Coast Guard) shall not inflict upon an enlisted man guilty of absence without leave any other punishment than forfeiture of two days' pay for each day of unauthorized absence, has reference to the maximum punishment that may be inflicted and does not prohibit the infliction of lesser punishment of the same character in such a case.

Comptroller Warwick to the Secretary of the Treasury, August 2, 1916:

I have your letter of the 17th instant asking whether you may legally and properly issue a regulation for the government of the Coast Guard to the effect that the punishment of "forfeiture of two days' pay for each day of unauthorized absence," which a commanding officer of a vessel may impose on an enlisted man of the Coast Guard for "absence without leave falling short of desertion," under section 2 of the act of May 26, 1906, as made applicable to the Coast Guard (act of Jan. 28, 1915, 38 Stat., 801), is a maximum punishment. The act of May 26, 1906 (34 Stat., 200), is entitled "An act to Legulate enlistments and punishments in the United States RevenueCutter Service." Section 2 thereof provides:

"That no commander of a vessel of the Revenue-Cutter Service shall inflict upon any commissioned or warrant officer under his command any other punishment than private reprimand, suspension from duty, arrest, or confinement, and such suspension, arrest, or confinement shall not continue longer than ten days, unless a further period be necessary to bring the offender to trial; nor shall he inflict or cause to be inflicted upon any other person under his command for a single offense, or at any one time, any other punishment than confinement, with or without single irons, on board ship; confinement, on bread and water, with or without single irons, on board ship; deprivation of liberty on shore for a period not exceeding three months; extra duties, and. in case of absence without leave falling short of desertion, forfeiture of two days' pay for each day of unauthorized absence:

You state that "to hold such forfeiture to be a maximum is for the best interests of the service, for the reason that a large range of punishments enables the responsible officer to exercise discretion," and, further, as follows:

"The proposed regulation is based on the theory that by the language of the law in cases of absence without leave falling short of desertion, forfeiture of two days' pay for each day of unauthorized absence,' it was intended that the forfeiture of two days' pay was a maximum forfeiture that could be imposed, as distinguished from a fixed forfeiture.

"This understanding of the law places the matter of punishments for absence without leave short of desertion' in line with other punishments, it being the general policy of Congress to limit the jurisdiction of a court or of the commanding officer to a maximum

sentence. Section 2, quoted above, limits the jurisdiction of a commanding officer in the matter of imposing punishments, and apparently Congress intended in that section simply to enumerate kinds of punishments which the commanding officer might impose, in his discretion. It is believed Congress did not intend that a forfeiture of exactly two days' pay for each day of unauthorized absence should be imposed regardless of the circumstances, but dia intend that forfeiture of pay could be imposed by the commanding officer only for the offense of absence without leave short of desertion,' and that said forfeiture of pay should not exceed the limit defined in the section.

"It will be noted that in section 2 of the act of May 26, 1906, in defining the jurisdiction of courts to punish for absence without leave, the forfeiture is fixed at 'not to exceed two months' pay.' These sections, read together, seem to show Congress inten led that the forfeiture of two days' pay for each day of unauthorized absence should be a maximum forfeiture."

This act of May 26, 1906, was the first statutory authority for the infliction of punishments by commanding officers on the enlisted force of the Revenue-Cutter Service. Neither the laws applicable to the merchant marine nor those for the government of the enlisted forces of the Army, Navy, or Marine Corps extended to them. In consequences, minor offenses were settled on board ship by the commanding officers, under the authority therefor derived from the customs of the sea.

The purpose of section 2 was twofold. It was both to legalize and to limit the exercise of the power of punishment by commanding officers for the minor offenses-to give legal sanction to their exercise of the power of punishment for the offenses which it enumerates, and, at the same time, to restrain and restrict them in the exercise of that power "to the bare necessities of the conditions" under which they were placed, or, in other words, to the extent therein permitted, by prohibiting them from inflicting "any other punishment" than that therein prescribed. (See S. Rept. No. 958 and H. Rept. No. 2749, 59th Cong., 1st sess.)

The ordinary meaning of the word "other" is "additional," "further," or "more." The words "any other punishment" as therein. used are therefore equivalent to "any additional punishment,” “any further punishment," or "any more punishment," and prohibit the infliction of punishment in excess of those therein sanctioned. The act makes the punishments which it enumerates the extent or the limit to which commanding officers can act in the exercise of the power of punishment.

The statute does not require or make it mandatory for commanding officers to impose any of the punishments it permits them to impose. It leaves the matter optional with them. What it does do is to limit them in the punishments they shall inflict if they inflict any. If they inflict the punishment of loss of pay for "absence without

leave falling short of desertion" the punishment of "two days' pay for each day of unauthorized absence" is the extent of their power to inflict that punishment for that offense. I do not think it was the intent to arbitrarily require that they inflict that punishment—if they inflicted it at all—to the full extent of their power to inflict it— that is, exactly two days' loss of pay for each day of absence and no less, but rather to place a limit or boundary to the extent to which they could act in inflicting it. Any other construction would not appear to accord with the spirit and purpose of the act.

Furthermore, as noted by you, in the next section-in pari materia with section 2-in conferring the power of punishment on the Revenue Cutter Service courts for the offenses "too grave in character to be adequately dealt with directly by the commanding officer as provided in section 2, the corresponding punishment of forfeiture of pay thus conferred is expressly made a maximum as distinguished from a fixed punishment, the wording being "forfeiture of not to exceed two months' pay."

The words "not to exceed appear to have been unnecessary in section 2 for the accomplishment of the same result, for the reason that Congress by that section was limiting or curbing the power of punishment which commanding officers had theretofore been in the exercise of to the extent of the punishments which it enumerated, thereby making those punishments in themselves maximum punishments, whereas in section 3 the words were necessary for the attainment of that result for the reason that the power of punishment there being conferred was a power ab initio.

(As to corresponding maximum punishments for enlisted men of the Army and Navy, see 83d Article of War, act of Mar. 2, 1901, 31 Stat., 951; art. 30 for Government of Navy, section 1624, Rev. Stat., sec. 8, act of Feb. 16, 1909, 35 Stat., 621.)

Any doubt as to the forfeiture to be imposed being a maximum one should be resolved in favor of the enlisted men and for the best interests of the service.

Your question is answered in the affirmative.

COMPENSATION.

An officer of the Government is not entitled to compensation for any period prior to the date of his appointment, although during such period he actually performed the duties of the office, since the right to compensation is incident to the legal title to the office and not to the performance of the duties thereof.

Decision by Comptroller Warwick, August 2, 1916:

J. M. Lacalle applied July 7, 1916, for revision of the action of the Auditor for the Navy Department in settlement No. 3849, dated May 27, 1916.

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He claimed pay from October 1 to 21, 1914, under the following appointment made by the Secretary of the Navy and dated October 20, 1914:

"You are hereby appointed an instructor in Spanish at the U. S. Naval Academy, Annapolis, Md., for the period from October 1, 1914, to June 30, 1915, inclusive, at a salary of $1,800 per annum, to fill the vacancy caused by the promotion of Instructor R. H. Bonilla.

"Enclosed herewith is a blank form for oath of office which you will execute and return to the department with your letter of acceptance. "Having taken the oath of office, you will report to the Superintendent of the U. S. Naval Academy for duty."

The auditor allowed pay from October 20 to 21, 1914, inclusive, and disallowed claim for the pay from October 1 to 19, 1914, as follows: "There is no authority of law or ruling of the Comptroller of the Treasury authorizing pay prior to date of appointment. (19 MS. Comp. Dec., 485, November 20, 1901; 46 id., 1813, September 29, 1908; 8 Comp. Dec., 521.)

It appears that a vancancy occurred in the department of modern languages at the Naval Academy by the death of Prof. F. W. Morrison, on September 8, 1914. Recommendation for the promotion of certain instructors by reason of said vacancy were made on September 14, 1914, and an examination was held on September 26, 1914, to fill the vacancy thus to be caused in the lowest grade of instructor.

As the result of this examination appellant was recommended for appointment on September 28, 1914, which recommendation was approved by the superintendent. The Secretary of the Navy, however, did not act upon these recommendations and make the promotions and the appointment until October 20, 1914.

Appellant assumed the duties of instructor on October 1, 1914, at the alleged request of the superintendent.

The right to the compensation of an office is incident to the legal title to the office, and not to the performance of its duties. A person can not acquire a legal title to an office prior to his appointment thereto.

The auditor's action is in accordance with the decisions cited by him, and is affirmed.

DETENTION IN SERVICE, NAVY.

Section 1422, Revised Statutes, providing for the payment of one-quarter additional pay to an enlisted man of the Navy detained in service, under certain conditions, after the expiration of his term of enlistment, is applicable to the case of an alien Chinese enlisted without the limits of the United States and detained in service under the conditions specified in said section.

Comptroller Warwick to the Secretary of the Navy, August 2, 1916:

I have your letter of July 13, 1916, requesting decision"as to whether or not the payment of one-quarter additional pay, as provided by section 1422, Revised Statutes, for detention of all petty officers and persons of inferior ratings on foreign stations, beyond the expiration of the terms of their enlistment, is authorized in the case of an alien Chinese enlisted on a foreign station and who can not, under the law, be sent to the United States."

Section 1422, Revised Statutes, provides:

"That it shall be the duty of the commanding officer of any fleet, squadron, or vessel acting singly, when on service, to send to an Atlantic or to a Pacific port of the United States, as their enlistment may have occurred on either the Atlantic or Pacific coast of the United States, in some public or other vessel, all petty officers and persons of inferior ratings desiring to go there at the expiration of their terms of enlistment, or as soon thereafter as may be, unless, in his opinion, the detention of such persons for a longer period should be essential to the public interests, in which case he may detain them, or any of them, until the vessel to which they belong shall return to such Atlantic or Pacific port. All persons enlisted without the limits of the United States may be discharged, on the expiration of their enlistment, either in a foreign port or in a port of the United States, or they may be detained as above provided beyond the term of their enlistment; and that all persons sent home, or detained by a commanding officer, according to the provisions of this act, shall be subject in all respects to the laws and regulations for the government of the Navy until their return to an Atlantic or Pacific port and their regular discharge; and all persons so detained by such officer, or reentering to serve until the return to an Atlantic or Pacific port of the vessel to which they belong, shall in no case be held in service more than 30 days after their arrival in said port; and that all persons who shall be so detained beyond their terms of enlistment or who shall after the termination of their enlistment voluntarily reenter to serve until the return to an Atlantic or Pacific port of the vessel to which they belong, and their regular discharge therefrom, shall receive for the time during which they are so detained, or shall so serve beyond their original terms of enlistment an addition of one-fourth of their former pay:

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In 73 MS. Comp. Dec., 999, May 28, 1915, referring to above section, it was said:

"The men to whom this statute applies are those who on the expiration of their enlistment desire to be returned to the United States or 'sent home' and whom the commanding officer is required to return to the United States as soon as possible, unless in the interest of the public their services are required on the vessel until she shall reach the United States, when he may retain them for that purpose, and by virtue of such retention, in lieu of being immediately returned, they become entitled to one-fourth additional pay for period of retention."