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The act of April 18, 1814, does not limit the right of the President to increase the pay of the officers and men belonging to the navy, to the close of the war with Great Britain....

NAVY AND MARINE CORPS, (continued.)

A former purser reappointed to that office in the navy, under the act of 30th March, 1812, should give a new bond..

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Boatswains, gunners, carpenters, and sailmakers were intended to be included in the
resolutions of Congress of the 6th of January, 1814.
Although there is no act of Congress authorizing a call by a governor for the surren-
der of a midshipman charged with having broken the peace of a State, nor any law
authorizing an arrest by the Executive with a view to a forcible surrender of him
for the purposes of trial, it is important that the accused should surrender himself,
and that an order from the Navy Department be given....

The numbering of naval commissions is not the act of the President and Senate, but
of the Secretary of the Navy, to prevent questions of rank from arising among of-
ficers holding commissions of the same date..
Whenever a change of the number of a commission is proposed, the persons effected
by the proposed change ought to be heard as to facts..
The Secretary of the Navy is the organ through which the President of the United
States, who is commander-in-chief, makes known his will to the navy. The orders
issued by him being, in contemplation of law, the orders of the President, and the
marine corps belonging to the naval establishment, it follows that the Secretary
may suspend, modify, or rescind any order issued by the lieutenant colonel or any
subordinate officer of the marine corps, except where a direct authority has been
given by Congress to an officer to perform any particular function..
And whether the marine corps shall be doing service on ship-board or on shore, the
President's orders may properly pass through the Secretary of the Navy to it, ex-
cept where the corps shall have been incorporated with the army for a given ser-
vice on land...

As the precise duties of the office of purser, in which he shall have been delinquent,
must be stated in a declaration upon his bond, a statute that shall enumerate those
duties is recommended to be expedient..

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The case of Dr. Page who was re-appointed to the office of surgeon in the navy in April, 1827, does not entitle him to the benefits of the act of 24th May, 1828, (for that act only rewards continuous service under commissions existing at that date;) but the words of the amendatory act are sufficiently comprehensive to embrace it. 659 A lieutenant colonel commanding the marine corps cannot legally grant discharges to marines before the expiration of their term of enlistment; but such discharges can only be granted by the President of the United States, or in conformity to such regulations as he may think proper to prescribe....

Midshipmen are not exempt from arrest; the proper construction of the act of the 11th of July, 1798, for establishing and organizing the marine corps, failing to include them in the exemptions made....

The 13th article of the act of Congress extends and refers only to officers commanding...

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The act of 1837, providing for enlisting boys for the naval service, and to extend the term for the enlistment of seamen, does not include the enlistment of marines..... 1527 The apprenticeship had in view by Congress, relates only to those who may not be called on for military service on the land..

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The proviso contained in the appropriation act of 3d March, 1843, as to how supplies are to be furnished for the navy, does not affect contracts previously made.. 1570 A retroactive effect, especially where it would be a violation of contracts, is not to be given, by construction, to the words of a statute, unless they are too express to admit of any other interpretation....

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Since the passage of the act of 4th August, 1842, the President has no power to appoint a midshipman, until the number in the service shall be reduced to the number that were in service on the 1st of January, 1841...

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An officer out of the navy cannot be brought again into it except by appointment... 1672 By the 6th section of the act of the 30th June, 1834, the staff officers of the marine corps are required to be taken from the captains or subalterns of the corps; wherefore only those are qualified to act as such staff officers who have, at the same time, a lineal rank of captain or subaltern....

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An alien can be enlisted in the naval or marine corps service of the United States,
and is bound, the same as citizens, to serve for the term of his enlistment.....
An infant is not bound by a contract of enlistment after he attains his full age, if he
then repudiate it, even though it were entered into with the assent of his guardian
for his benefit..

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NAVY AND MARINE CORTS, (continued.)

The authority of a guardian ceases with the minority of his ward, who may then
affirm or disaffirm the contract made in his behalf......
Pursers are liable upon their bonds for public stores committed to their charge, even
though such stores are destroyed by inevitable accident...
The accounting officers cannot allow credits to pursers for public stores thus destroy-
ed whilst in their possession-Congress only being competent to grant relief in
such cases....

An analogous case has been decided by the Supreme Court..

...

A captain or lieutenant of the marine corps, holding a staff appointment, is still such captain or lieutenant, and entitled to promotion in the line as though such staff appointment had never been conferred. His acceptance in the one, does not produce any vacancy in the other.....

Wherefore, Lieutenant Landon N. Carter, of the marine corps, is not entitled to promotion by reason of any vacancy in the line having been produced by the appointment of senior officers to the staff...

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The Secretary of the Navy has authority to arrange with Baring, Brothers & Co., of London, for the payment of the drafts of disbursing officers attached to foreign squadrons.

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NAVY AGENTS.

Under the act of 3d March, 1809, navy agents may be allowed two thousand dollars
per year, over and above office rent, clerk hire, fuel, stationery, &c.......
The office of navy agent not having been created by law, there has been no law de-
fining its duties, from which to determine whether the navy agent at New York
has or has not rendered extra service.....

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In general, it is the duty of navy agents to execute such instructions as they may from time to time receive from the executive departments...

The Secretary of the Navy has the contingent fund of the department entirely at his disposal from which he may draw for the purpose of compensating any services rendered in any of the relations of his department which are of a contingent char

acter..

The President of the United States has not any authority, except in the recess of the Senate, to appoint any permanent agents for the purchase of supplies or for the disbursement of money for the navy, other than those enumerated and referred to in the act of 3d March, 1809....

The Secretary of the Navy, however, under the act of 1st May, 1820, may contract for clothing and subsistence of the navy; and when these supplies are to be furnished in places where there is no permanent agent, he must, of necessity, have the power to appoint a special agent to perform the duty.....

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If McCall's agency were created by the department in the exercise of the authority above indicated, and were special and temporary, the measures of compensation to be allowed him must be regulated by contract...

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The navy agent at New York is not competent to become a purchaser at a sale
made by himself on account of the government.
All such purchases are constructively fraudulent..

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NAVY COMMISSIONERS.

Members of the Board of Navy Commissioners, while they act as such, retain their rank of post-captain in the navy, and may, while they continue members of the board, be employed by the government in separate and distinct duties in their character of post-captains.....

They do not perform their duties as Navy Commissioners by virtue of any rights or authority which belong to them as post-captains, but from laws establishing the board..

Their orders issue from the board which they constitute as commissioners, and a majority of their number must concur in them.....

As no separate command is assigned to the several members of the board in their character of post-captains, they cannot exercise the authority which an officer of that rank possesses over the officers and men placed under their command when in actual service and afloat. They are only entitled to the rights and privileges that belong to an officer of the same grade when on shore and not employed in any particular professional service...

NVAY-PAY AND EMOLUMENTS.

The commanding officer at the navy yard is entitled to receive the pay and emoluments of a commodore, and therefore is entitled to apartments or house free of

rent....

The pay of a purser stops with the acceptance of his resignation, subject to the settləment of his accounts-the condition of the acceptance only keeping the office alive for the purposes of a settlement, and not for accruing compensation....

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NAVY PAY, &c., (continued.)

The number of guns at which a ship-of-war is rated is the standard for the regulation of the pay of her officers under the acts of Congress. The number of guns a ship may actually mount is variable, and increases or diminishes with the particular service in which she may be employed...

The act of the 25th of February, 1799, does not contemplate the case of a master commandant commanding a vessel of twenty guns; such being required to be under the command of captains.....

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The claim of John Darby for full pay for ten years as purser, after resignation made
and refused, to compel him to settle his accounts, should be referred to Congress. 442
By the act of 21st of April, 1806, touching the pay of certain officers retained in ser-
vice, it is provided that they shall receive no more than half of their monthly pay
when they are not under orders for actual service.

A midshipman nominated and confirmed by the Senate to take rank next after Lieu-
tenant P., who holds a commission dated January, 1825, cannot draw the pay of a
lieutenant until he receives his lieutenant's commission...
Such allowances as are actually necessary for the marine corps, although unauthor-
ized by any act having express relation to that corps, may be made by consider-
ing the acts authorizing them to officers of the army as extending to the marine
corps wherever the analogy is complete.....

The President has imposed upon him the duty of fitting out and directing the employ-
ment of the public armed vessels; and where Congress fails to provide for dis-
bursements indispensable to the performance of this branch of public duty, he may
make such allowances to officers acting in higher stations than those to which they
were appointed by their warrants or commissions..

Neither the pay, rations, nor clothing of enlisted marines taken by the civil authority for violation of the laws, can be withheld during their confinement and absence from their military stations...

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The members of the Board of Navy Commissioners having been provided with sala-
ries, in lieu of rations, and not having hitherto received rations, a tacit construction
against the right to rations has been given by the department.
Whenever an act of Congress has, by actual decision, or by continued usage and
practice, received a construction at the proper department, and that construction
has been acted on for a succession of years, it must be a strong and palpable case of
error and injustice to justify a change in the interpretation to be given to it....... 848
The word "compensation" as used in the act of the 25th of January, 1828, which de-
clares that compensation shall not be paid to any person in arrears to the United
States until, &c., is equivalent to the words "pay or salary," and does not include
the "rations" nor "extra expenses," which are not pay proper....

.....

In order to entitle a captain to the annual pay of four thousand dollars per annum, given by the act of 3d March, 1835, he must be in actual command of a squadron on a foreign station..

A quartermaster sergeant acting as a clerk in the office of the quartermaster of the marine corps is entitled to the additional compensation of fifteen cents per day allowed by the act of March 2, 1819, and paid to the sergeant acting as clerk in the office of the Quartermaster General of the army.

Promoted officers of the navy, whose commissions fix dates of rank anterior to the dates of the commissions, are entitled to the increased pay from the date to which their appointments were carried back, provided they were intermediately in the performance of duties compatible with the grade to which they were elevated by their promotions....

The date of the written acknowledgment of the receipt of the order expressing a readiness to obey it, where such written acknowledgment is transmitted by the surgeon, is the day from which the increased pay under the act of 3d March, 1835, is

to commence.

By the application of the act of the 2d of March, 1827, to the marine corps; an assisttant quartermaster of marines was entitled, prior to the 30th of June, 1834, to all ́ the extra pay and emoluments and allowances allowed to an assistant quartermaster in the army similarly situated....

A captain or subaltern in the command of a detachment of marines is entitled to receive the ten dollars per month as provided by the act of the officer commanding a company in the army.

The assistant surgeon is entitled to the pay of a surgeon whenever he is called to discharge the peculiar duties of a surgeon; but those duties must be such as can only be performed by him when present.

An officer who, in point of fact, temporarily performs the duties belonging to an office of higher grade, is entitled to the compensation allowed to s ich higher grade,

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NAVY PAY, &c. (continued.)

even though his appointment may not have conformed in all respects to the requirements of the regulations....

Any office in the service is higher in grade than any other office the pay of which is less, however disconnected it may be...

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An officer in the actual command of any number of men sufficiently large to constitute a detachment of marines, according to the usage of the Navy Department, will entitle him to the allowance given in the 2d section of the act of March 2, 1827....

Since the 3d of March, 1835, quartermasters have not been allowed any extra compensation on account of disbursements for public supplies..

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The legal appointment of a past midshipman, under sentence of suspension and on half-pay, to the office of lieutenant in the navy, is an implicit pardon of the sentence, and he is entitled to his pay as lieutenant from the date of his commission.. 1473 The construction put upon the act of 1835, allowing 10 cents a mile to naval officers who may be required to travel upon the public service, confining such allowance to travelling in this country, regarded as res judicata; yet it is an interpolation not exactly warranted by the letter of the statute..

...

The rendering of "may" for "shall" and the "ten cents" per mile treated as the maximum only, &c., recommended...

Public officers are entitled to the pay and emoluments appertaining to their office only from the time they enter upon the performance of their duties; but the performance of duties, or the condition requisite to the legal ability to performance of duties, is the equity upon which salaries are predicated...

The appropriations for salaries, &c., by Congress, are in view of services rendered, or a condition of competency to render the services incumbent on particular offices....

The President can restore a suspended military officer, and can confer rank from and after his appointment; but he cannot cause an individual out of service to be paid from the public treasury the same as if he were in the service; nothing short of an act of Congress can have that virtue...

He may, to elevate an officer once out of the service, nominate him to a particular rank in it, of the same dignity as he would have held had he not fallen out of it; and, to effect that result, may issue a commission having relation back to a prior date; yet the pay of such restored and promoted officer does not attach to the post until the incumbent enters upon its duties....

A surgeon put out of the service by the exercise of executive power, and subsequently restored to the rank he would have had by virtue of his commission, is not entitled to pay for the time he was out of the service, but only from the time of his restoration, as if he had always been in it....

A captain of the navy appointed as Chief of the Bureau of Construction, can only receive the salary fixed by the act of 1842; and not the pay of a captain on duty

under the act of 1835..

The service of pursers must be continuous under the same commission, to entitle
them to the progressive rise in pay and rations prescribed by the act of 1842...
A person who was a lieutenant in the navy prior to 1837, who afterwards resigned,
but was again nominated to the Senate by President Jackson for the same office,
from the 16th of February of that year, and confirmed by the Senate, with the con-
dition that he should take rank next after Lieutenant Peck, and for whom a com-
mission was made out at the Navy Department, but never signed by President
Jackson; and who was, thereupon, again nominated to the same office by Presi-
dent Van Buren, on the 7th of March, 1837, to take rank from the said 16th Feb-
ruary, 1837, but not confirmed; and who was again nominated by President Tyler,
on the 14th December, 1841, "to be a lieutenant from the 28th April, 1826, to take
rank next after Lieutenant Peck," but was rejected by the Senate, is not a lieuten-
ant within the constitution and the laws....
President Jackson having omitted to commission the applicant, his successor to the
presidential office could not properly do so upon his nomination and confirmation
thereof by the Senate...

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Neither of the several nominations, nor all of them, constituted an appointment. No appointment to that office could have been made except by the nomination of the President receiving the consent of the Senate and the issuing of a commission.... 1614 Even after confirmation by the Senate the President may, in his discretion, withhold a commission from the applicant; and until a commission to signify that the purpose of the President has not been changed, the appointment is not fully consumated..

The present Executive cannot issue a commission to the applicant....

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A dismissed midshipman restored to service from date of dismission is not entitled to

NAVY PAY, &c. (continued.)

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pay whilst out of the service, and legally incompetent to perform military duty by reason of permanent suspension...

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Sergeants of the marine corps acting as clerks are entitled to extra pay for the extra service, such having been the practice of the department, and the practice having been sanctioned by Congress...

....

An officer of the navy, receiving an ante-dated commission, is not entitled to pay from such ante date..

The opinion of Mr. Crittenden, in the case of Lieutenant Drane, disagreed to....... The purser attached to the war steamer Missouri is entitled to the same rate of compensation as pursers of frigates of the same rates..

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War steamers of the tonnage, spars, rigging, and armament of frigates, and rated as such by the department, may be regarded as frigates, for the purposes of determining the compensation to which the pursers thereof are entitled...

If, however, it be found that this construction of the law produces any embarrassment
in the outfit or allowances of steam vessels, it may be obviated by a regulation ar-
ranging all the vessels or war using steam-power into two classes..
A surgeon in the navy, who was dismissed from the service by the President in 1829,
and re-nominated and confirmed by the Senate to the same office in 1837, but with
a condition attached that rendered the confirmation nugatory; and who was again
nominated and confirmed, with the condition that such appointment should take
effect from the date of the ineffectual confirmation; and who was again, in 1842,
re-nominated to the same office, to take rank from the date of his original commis-
sion, is not entitled to back pay for the time intervening between his dismission and
his restoration.....

An ante-dated commission, when issued for the purpose of restoring an officer out of
service to the rank which he would have held had he remained in it, does not carry
with it the right to pay for services not only unperformed, but which he was incom-
petent to perform........

It may, in some cases, confer the right to demand increased pay for previous services of an official character...

The power of the President to dismiss an officer from the public service, without the consent of the Senate, was affirmed by Congress soon after the adoption of the constitution, and has since received the sanction of every department of the gov

ernment.

The marine officers who were reduced under the 4th section of the act of March 2, 1847, and restored under the naval appropriation act subsequently passed, are not entitled to pay during the interval...

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Had it been the design of the act which restored them to give pay, during the interval
of the reduction, as well as rank, it would have been so declared..
The relation back was for rank, not for pay...

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A second lieutenant, who was dismissed from the service on 1st December, 1842, and recommissioned on the 20th April, 1843, to take rank from the date of his original appointment, is not entitled to pay during the time he was out of the service.. Pay is never to be allowed to officers except whilst they are in service, unless pursuant to some act of Congress providing for the particular case..

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A claimant representing himself to have been impressed into the British service, after the action between the Chesapeake and Leopard in 1807, when Great Britain and the United States were at peace, and not stating what his conduct was during the action to save the ship, nor what was his behavior afterwards, does not bring his case within the provisions of the act of 22d April, 1800... 2062

A professor of mathematics in the navy who may have been required to perform certain duties at the depot of charts and nautical instruments, and who at the time was a superintendent of meteorological observations by appointment of the Secretary of War, at a salary of two thousand dollars, is not entitled at the same time to the salary of a professor of mathematics under the act of 3d March, 1835..... The salary provided by the act of 3d March, 1835, is due only to professors when attached to vessels for sea service, or in a yard................

He is, however, entitled to a reasonable compensation, over and above his salary in the War Department, for services performed in the depot of charts and nautical instruments..

The administrator of John Rush, a sailing-master in the navy, who became insane whilst in the service, and was placed on half-pay in the hospital at Philadelphia, where he remained until his death in 1837, but for whom payment was not made. after the death of his father in 1813, has a just claim on the department for the arrearage of pay, although the name of the insane man was dropped from the navy register.

Although the department dropped his name from the naval register after 1813, under

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