SETTLEMENT OF THE FEE ACCOUNTS OF JUSTICES OF THE PEACE IN THE DISTRICT OF COLUMBIA.

Under the provisions in section 6 of the act of March 3, 1901, for the settlement of the fee accounts of justices of the peace in the District of Columbia, the accounting officers are without jurisdiction to compel a justice to account for fees which should have been but were not charged and collected by him.

(Decision by Comptroller Tracewell, January 16, 1905.)

Samuel R. Church, a justice of the peace for the District of Columbia, appealed October 20, 1904, from the action of the Auditor for the State and other Departments under settlement dated September 30, 1904.

In that settlement, covering the period from January 1, 1902, to June 30, 1904, Justice Church was charged with certain fees which the Auditor holds should have been taxed and collected in cases brought before him during said period, as shown by his docket, as follows:

(1) In three landlord and tenant cases, fees for judgment of dismissal, 25 cents each......

(2) In twenty-seven debt cases in which judgments were rendered upon affidavits filed under rule of court, in each of which cases the Auditor contends that a trial fee of 50 cents should have been taxed and collected...

Total

$0.75

13.50

14.25

The decision of this case must necessarily be governed by the statute giving the accounting officers jurisdiction to settle the fee accounts of justices of the peace within the District of Columbia. This statute, being section 6 of the act of March 3, 1901, reads:

"Each of said justices of the peace shall receive an annual salary of three thousand dollars, and the further sum of two hundred and fifty dollars annually for rent, stationery, and other expenses, to be paid monthly by the District of Columbia, and he shall render monthly accounts to the auditor of the District of Columbia of all moneys received by him for fees, and shall pay over such fees to the collector of said District and take his receipt in duplicate therefor, and file one of them with said auditor and retain the other in his office, and the moneys so collected shall be disposed of by said collector as other moneys belonging to the said District are."

There are many questions discussed by Justice Church in his brief on appeal which are not necessary to consider in its disposition.

The governing act giving the auditor for the District of Columbia jurisdiction to settle such fee accounts, and thus necessarily giving the accounting officers of the Treasury jurisdiction to finally audit and settle the accounts reported to them by such auditor of the District, provides for the rendition by the justices of the peace for the District of Columbia to such auditor of an account for all moneys received by them for fees each month of the year. This is not a statute providing that such justices of the peace shall account for all fees earned by them, but for all fees collected by them. If there were such a statute, as I am now advised, I would be constrained to hold, with the auditor, that Justice Church should account for judgments of dismissal in the three cases where the plaintiffs have apparently abandoned such cases.

As I understand the law and practice, it is the duty of a court to dismiss a proceeding when the plaintiff fails to prosecute. I am also of the opinion that where affidavits are filed with the complaint, showing the amount which ought to be recovered, that upon default made by the defendant such proof is used and subserves exactly the same purpose as if introduced by deposition or orally upon a regular hearing to establish damages, and that a fee ought to be taxed by such justices as a trial fee.

The above are, however, but my individual opinions. If Justice Church shall refuse to tax and collect them, the remedy is not through the accounting officers under the provisions of the act supra, but by appropriate proceedings brought by the District of Columbia in the proper court of the District-the party in interest in their collection and their beneficial owner when collected.

For the reasons given the action of the Auditor for the State and other Departments is overruled.

SUBSISTENCE TO RETIRED ENLISTED

MEN OF THE ARMY WHILE TRAVELING FROM PLACE OF RETIREMENT TO THEIR HOMES.

A retired enlisted man of the Army is entitled on retirement to subsistence in kind, or commutation thereof at the rate of $1.50 per day, for time necessary for him to travel from the place of retirement to his home, and no deduction for subsistence thus furnished shall be made from his monthly allowance of $9.50 provided for by the act of March 16, 1896; but he is not entitled to such subsistence, or commutation thereof, prior to his departure from the place where he received his retirement orders, and any subsistence furnished him after his retirement but prior to his assuming the status of a traveler should be deducted from said monthly allowance of $9.50, and said deduction should be computed at the actual value of the duty ration at the place where furnished.

(Assistant Comptroller Mitchell to Col. C. II. Whipple, chief disbursing officer, War Department, January 17, 1905.)

I am in receipt, through transmission by the honorable Secretary of War, of your communication of the 22d ultimo, in which you request to be advised as to the proper deduction, if any, to be made from the $9.50 allowed monthly to John Keller, as retired drum major, U. S. Army, in lieu of allowance for subsistence and clothing, on account of subsistence furnished or commutation therefor paid to him from date of receipt of order directing his retirement and travel to his home until his actual arrival thereat.

Drum Major Keller was retired and ordered to his home by Special Orders, No. 223, War Department, dated September 22, 1904, which read:

"By direction of the President, under the provisions of the act of Congress approved February 14, 1885, as amended by act of Congress approved September 30, 1890, the followingnamed enlisted men upon their own application will be placed upon the retired list created by that act, to take effect upon the receipt of this order at the posts where they may be serving, and repair to their homes:

Drum Major John Keller, band, Second Cavalry;

"The Quartermaster's Department will furnish the necessary transportation. It being impracticable for these soldiers to carry rations of any kind, commutation therefor will be

paid in advance for the necessary number of days' travel. The journeys are necessary for the public service.

He received said order November 6, 1904, at Camp Wallace Union, P. I. His retirement therefore took effect upon said date and at said place.

For the time intervening between his retirement and his arrival at his home the Government either subsisted him in kind or paid him commutation of subsistence as follows:

November 7 and 8, prior to his departure from Camp Wallace, he was furnished with subsistence in kind.

November 9 and 10, while en route from Camp Wallace to Manila, P. I., he was paid commutation of subsistence at the rate of $1.50 per day.

November 11 to 14, while in Manila awaiting sailing of transport, not clearly shown from papers submitted, but it is presumed that he was subsisted in kind.

November 15 to December 14, while en route from Manila to San Francisco, Cal., on transport Sheridan, furnished subsistence in kind.

December 15 to 19, time necessary to travel from San Francisco to his home, Washington, D. C., paid cɔmmutation of subsistence at the rate of $1.50 per day.

You ask whether any of this subsistence, commuted or otherwise, furnished to Drum Major Keller, should be deducted from the $9.50 allowed by the act of March 16, 1896 (29 Stat., 62), “in lieu of the allowance for subsistence and clothing." The question of the deduction of subsistence furnished to a retired enlisted man for travel to his home upon retirement under orders properly issued was considered by this office in 11 Comp. Dec., 80, and it was there held that a retired enlisted man was entitled to receive subsistence in kind or commutation thereof at the rate of $1.50 per day for time necessary for him to travel from place of retirement to his home, notwithstanding anything contained in the act of March 16, 1896. I see no reason to change the conclusion which I then reached.

He was not, however, entitled to subsistence in kind or commutation thereof prior to his assuming the status of a traveler-that is, prior to his departure from the place of the receipt of his retirement orders.

The subsistence received by Drum Major Keller while at Camp Wallace as a retired enlisted man, November 7 and 8, is therefore a proper subject for deduction from said $9.50, provided that during said time he was not the mere guest of the other soldiers, and that subsistence in kind was actually issued to him by the Government. In arriving at said deduction for subsistence furnished at the expense of the Government it should be computed at the actual value of the duty ration at the place where furnished.

No other deduction for the above subsistence or commutation furnished to Drum Major Keller should in my opinion be made from the $9.50 allowed to him by the act of March 16, 1896.

CLAIM FOR VALUE OF HORSE KILLED IN THE MILITARY SERVICE.

Under the act of March 3, 1885, an officer of the Army is entitled to reimbursement for the loss of a horse killed by military authority because infected with glanders contracted while in use in the military service, without fault or negligence on the part of the owner, and the amount of such reimbursement is to be determined by the reasonable value of the horse at the time it contracted the disease.

(Decision by Assistant Comptroller Mitchell, January 18, 1905.)

E. St. John Greble, captain, Artillery Corps, U. S. Army, appealed, September 13, 1904, from the action of the Auditor for the War Department in settlement dated August 18, 1904.

This claim was for the loss of a private horse killed about May 26, 1904, because he was found to be infected with glanders. The Auditor disallowed the claim because

"The loss was not caused by some exigency or necessity of the military service or specially incident thereto."

The act of March 3, 1885 (23 Stat., 350), provides:

"That the proper accounting officers of the Treasury be, and they are hereby, authorized and directed to examine into, ascertain, and determine the value of private property belonging to officers and enlisted men of the military service of the United States which has been, or may hereafter be, lost or destroyed in the military service, under the following circumstances:

"First. When such loss or destruction was without fault or negligence on the part of the claimant. And

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