dier. LIII, 279, April, 1887; 33, 165, June, 1889. So held that the United States was not liable to a citizen for the value of timber cut on his land by soldiers, wrongfully but in ignorance that the land belonged to claimant, even though such soldiers were at the time engaged in the discharge of official duties. The remedy in such a case is a suit against the individuals who committed the trespass or an application for relief to Congress. 38, 319, February, 1890. 784. It is well settled that the United States is not legally responsible for the torts of its officers or agents, whether of commission or omission. Thus, where the claims were for personal injuries inflicted. upon citizens by U. S. soldiers (Cards 5108, October, 1898; 6100, March, 1899; 6586, 6642, June, 1899); for aid in supporting the wife and children of a citizen killed by a soldier (Card 5261, November, 1898); for damages on account of injuries resulting from accidental shooting of a citizen by a soldier (Cards 5260, November, 1898; 5983, March, 1899); for damages to railroad train equipment by soldiers travelling thereon (Card 5433, December, 1898); for damages on account of injury received while a contract nurse on a U. S. transport and due to alleged negligence of officials of the Government (Card 6641, June, 1899);—held that the Government was not legally responsible.2 785. Two native women of Porto Rico received gun shot wounds, the accidental result of a shot fired by a U. S. soldier who at the time lawfully fired the same while attempting to arrest another party; they submitted claims for damages. Held, that the United States was not legally liable therefor whether or not there was negligence on the part of the soldier. But as these claims were of a class for which Congress sometimes makes compensation, and as the military authorities were exercising all the powers of government in the Island of Porto Rico, advised that compensation for the injuries could legally be made from the revenues of the island. If made however in the form of an annuity it would remain operative during the continuance of the military government only. Card 6642, June, 1899. 786. A soldier, though become by discharge a civilian, has no claim against the United States for pay, in the nature of damages, for a 1Pitman v. U. S., 20 C. Cls., 255; Gibbons . U. S., 8 Wall., 269; id., 7 Ct. Cls., 105; Morgan v. U. S., 14 Wall., 531. Judge Story in his work on agency, § 319, says: "It is plain that the Government itself is not responsible for the misfeasances or wrongs or negligences or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests.” 2 While the Government is not pecuniarily responsible for torts committed by officers and enlisted men, the latter are so responsible and aside from their liability to civil suit may and should in cases covered by the 54th A. W. be proceeded against as required by that article. period during which, though innocent in fact, he was detained awaiting trial for a military offence and action on the proceedings. 42, 375, August, 1890. So, where a civilian, arrested on reasonable grounds of suspicion that he was a deserter from the military service, was detained in confinement at a military post till it was ascertained that he was not such, held that he had no legal claim for damages against the United States. 43, 145, October, 1890. 787. Where in the course of the transportation by railroad, at Government expense, of an officer's allowance of personal baggage, the boxes containing the same were broken into and a portion of the property was stolen, held that the remedy of the officer was against the railroad company, not against the United States. The United States does not make itself an insurer in such a case; nor can the officer require the United States to sue the company in damages, for this could be done only on the theory that the United States was responsible to the officer for the value of property lost by no fault or negligence of its own. XLIX, 572, December, 1885. 788. A certificate of pay, as due on a final statement, was erroneously given by his commanding officer to a soldier, to whom there was in fact no pay due. The soldier endorsed the certificate for collection to a bank, by which it was endorsed for the same purpose to another bank. This bank presented it to a paymaster who paid it. On discovery of the error, the amount was stopped against the paymaster. The second bank then refunded to him the sum paid, and made claim for it upon the War Department. Held that such bank had no legal claim upon the United States, but that its recourse was properly against the first bank. 35, 447, October, 1889. 789. Sec. 1304, Rev. Sts., applies only to claims for relief from accountability on the part of actual officers of the army, and cannot be extended to a case of such a claim made by a person formerly in the army but long become a civilian. 65, 137, May, 1894. 790. Where a claim was made for compensation for time, cost, and expenses incurred in going from Brooklyn, N. Y., to Governor's Island, N. Y., to collect fees due as a civilian witness before a courtmartial, held that there was no provision of law for the payment of such a claim. Card 1807, November, 1895. 791. There is no law authorizing the Executive department of the Government to pay claims for damages on account of injuries received by persons employed in the construction of public buildings, or in river and harbor improvements, and in the absence of such a statute the Executive department is without power to pay them. Cards 366, September, 1894; 2082, February, 1896. رو 792. A joint resolution of Congress approved Feb. 23, 1887, provides "that all per diem employes of the Government on duty at Washington or elsewhere shall be allowed the day of each year which is celebrated as 'memorial' or 'Decoration Day,' and the Fourth of July of each year, as holiday and shall receive the same pay as on other days.' A per diem employe of the Government at West Point, N. Y., having been refused pay for the Fourth of July, submitted a claim therefor Held, that under the joint resolution quoted, the claim was a valid one. that the resolution was not limited as to place to the city of Washing ton nor as to per diem employes to permanent ones. 61, 125, August. 1893. 793. An officer stored his household effects in a Quartermaster storehouse at Washington Barracks, D. C., and while so stored a portion of the property valued at $350 was stolen. Held, on a claim for reimbursement, that the United States was not legally responsible for the loss. Card 6690, July, 1899. 794. Where a claim was made by a citizen of the United States for the apprehension of a deserter on Mexican soil, held that the claim should not be entertained on the ground that the arrest was an illegal one, and that an act done in violation of law can not be made the basis of a legal claim.' 23, 140, March, 1888. 795. A claim was made against the United States by an attorney for services rendered as counsel for an accused officer in a courtmartial trial. Held that the claim was without merit as against the United States, and that the Government had nothing whatever to do with its payment. 32, 165, May, 1899. 796. A contract nurse who lost private property by the sinking of a U. S. hospital ship submitted a claim for the amount of the loss. Held, that such claims could not be paid by the War Department without special authority from Congress; and if it was desired to pay them, legislation authorizing it should be obtained. Card 5215, November, 1898. 797. The board of animal inspectors at Honolulu, appointed under a statute of Hawaii, submitted a claim for inspecting cavalry horses and draft mules of the United States, amounting to the statutory fee. Held that the claim was in effect a tax by the Territory of Hawaii on the operations of the Government of the United States; that the instrumentalities and agencies of such government are exempt from local taxation; and that therefore the claim could not legally be paid. Card 5554, December, 1898. 'See Clay v. U. S., Devereux (Ct. Cls.), p. 25. 71359-09- -16 CLERK FOR COURT MARTIAL. 798. A court martial, member of court, or judge-advocate cannot of course lawfully communicate to a reporter or clerk, by allowing him to record the same or otherwise, the finding or sentence of the court. Before proceeding to deliberate upon its finding, the court should require the reporter or clerk, if it has one, to withdraw. But the fact that the finding or sentence, or both, may have been made known to the reporter or clerk of a court martial, cannot affect the validity of its proceedings or sentence.' V, 478, December, 1863; XI, 318, December, 1864; XXVIII, 146, October, 1868; XLII, 218, March, 1879. 799. Held that a claim by an officer to be allowed extra compensation for services rendered by him as clerk to a general court martial of which he was the junior member, was wholly without sanction in law or regulation. XXII, 578, February, 1867. CLERK OF WAR DEPARTMENT. 800. Under the provision of sec. 4 of the act of March 3, 1883, relating to absences of clerks of the departments, such a clerk, when absent without leave, whether sick or well, forfeited his pay for the period of absence. Where a clerk of the War Department, who had been absent without leave, produced, to account for his absence, a surgeon's certificate, held that such certificate did not per se operate to restore pay, but that it was in the discretion of the Secretary of War to accept or not such certificate and ratify the absence as authorized; that unless he should do so the pay would remain forfeited. 57, 231, January, 1893. 801. Under the act of March 3, 1893, a sick leave with pay can be granted to a clerk of a department on account of the illness of a member of his family, only when such member is "afflicted with a contagious disease and requires his care and attention." Where the disease is not in fact contagious, such leave can not legally be allowed. 62, 12, October, 1893. 802. Under the provision of the act of March 3, 1893, c. 2111, to the effect that "all employees provided for, by this paragraph, for the Record and Pension Bureau of the War Department, shall be exclusively engaged on the work of this office for the fiscal year eighteen hundred and ninety-four"-held that a clerk of that office could not during such period legally be detailed for duty with the Civil Service Commission. 59, 9, April, 1893. 'There is no authority for the employment of a civilian clerk for a court martial, other than the "reporter" authorized by Sec. 1203, Rev. Sts., and referred to in pars. 958 and 959, A. R. (1062 and 1063 of 1901). An enlisted man may be detailed as such clerk under par. 958. 803. Sec. 7 of the act of March 15, 1898, provides that the head of any Department may grant thirty days' leave with pay in any one year to each clerk or employee, and also that, in exceptional and meritorious case, where a clerk or employee is personally ill, and where to limit the annual leave to thirty days would work peculiar hardship, the leave may be extended with pay not exceeding thirty days. In a later act (July 7, 1898) it was provided that nothing contained in the said section of the act of March 15th, shall be construed to prevent the head of the Department from granting thirty days annual leave with pay to a clerk or employee, notwithstanding the clerk or employee may have had not exceeding thirty days leave with pay on account of sickness. Held that construing these two acts together, they reestablish the old and simple law and custom of the Department to the effect that the Secretary of War may (through the heads of bureaus or personally) grant to each clerk and employee during each year thirty days leave with pay (called in the statutes "annual leave"), and in addition thereto, during the same period, a leave with pay not to exceed thirty days, if during such time the clerk or employee is compelled by personal illness to be absent.' Sixty days leave with pay is all that may be granted in any one year. Thus where a clerk has been absent sick thirty nine days and had drawn pay therefor, held that he could be allowed twenty one days leave with pay during the remainder of the year, but no more. Card 4694, July, 1898. 804. Where an application was made for the detail of a clerk on duty in the War Department, to instruct the battalion of cadets of the Washington High School six hours each week, without deduction of time or pay being made against him, held that the Secretary of War, in the absence of a statute authorizing such a detail, was without power to make it. 45, 495, March, 1891. 805. A clerk was discharged for cause from the Record and Pension Office. He subsequently asked to be permitted to resign as of the date the records showed he was discharged. Held that a discharge. which has been carried into effect cannot be revoked, that to substitute a permission to resign for such executed discharge would be to substitute something that did not happen for what actually happened and therefore to make a false record. Card 3976, March, 1898. 806. Held that there was no authority of law for granting to a clerk in the Record and Pension Office an indefinite leave of absence without pay, to cover his absence as an officer of U. S. volunteers. Card 4129, May, 1898. 807. A clerk in the employ of the Government, who is also a notary public, is not precluded by reason of his employment as such clerk, 1See circulars, War Department, dated Dec. 2 and 3, 1898. |