B-18927, NOVEMBER 6, 1941, 21 COMP. GEN. 425

B-18927, NOVEMBER 6, 1941, 21 COMP. GEN. 425

PAY - ADDITIONAL - RETENTION OF ENLISTED MEN BEYOND EXPIRATION OF ENLISTMENT SHIPS ON DUTY IN OR AROUND HAWAII ARE NOT AT A FOREIGN STATION OR IN FOREIGN WATERS WITHIN THE CONTEMPLATION OF SECTION 1422, REVISED STATUTES, PROVIDING FOR THE DETENTION OF NAVY ENLISTED MEN BEYOND THE EXPIRATION OF THEIR ENLISTMENTS WHILE IN SUCH WATERS AND FOR PAYMENT OF AN ADDITIONAL ONE-FOURTH OF THEIR FORMER PAY FOR SUCH PERIOD OF DETENTION. UNDER SECTION 1422, REVISED STATUTES, AUTHORIZING A COMMANDING OFFICER OF A NAVAL VESSEL TO HOLD AN ENLISTED MAN BEYOND HIS ENLISTMENT WHEN HIS SERVICE IS CONSIDERED ESSENTIAL TO THE PUBLIC INTEREST, THE NEED FOR SUCH SERVICE MUST BE MORE THAN A MATTER OF DESIRABILITY OR MERE SUBSTANTIAL BENEFIT AND THE OPINION OF SUCH OFFICER MUST BE BASED ON FACTS SUFFICIENT TO ESTABLISH SUCH NEED RATHER THAN A MERE ARBITRARY VIEW. AVIATION PAY IS A TEMPORARY ADDITION TO THE PAY PROPER FOR SPECIAL DUTIES --- AS DISTINGUISHED FROM A PART OF THE PAY PROPER ITSELF OR A PERMANENT ADDITION THERETO--- AND IS NOT FOR CONSIDERATION IN THE COMPUTATION OF THE ONE-FOURTH ADDITIONAL PAY ACCRUING TO A NAVY ENLISTED MAN UNDER AUTHORITY OF SECTION 1422, REVISED STATUTES, BY REASON OF DETENTION IN SERVICE AFTER EXPIRATION OF HIS ENLISTMENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 6, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 17, 1941, WITH ENCLOSURES, REQUESTING DECISION UPON QUESTIONS PRESENTED IN A LETTER OF JULY 9, 1941, OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS: SUBJECT: REQUEST SUBMITTED BY NAVAL AIR STATION PEARL HARBOR

T.H. FOR ADVANCE DECISION WHETHER UNITS OF UTILITY AND PATROL WINGS

VESSELS ARE WITHIN THE PROVISIONS OF SECTION 1422 REVISED STATUTES. REFERENCE: (A) DECISION OF THE COMPTROLLER OF THE TREASURY

SEPTEMBER 1, 1905--- ARTICLE 2144-1 BUREAU OF

SUPPLIES AND ACCOUNTS MEMORANDA ( SELECTED

DECISIONS).

(B) INSTRUCTIONS IN ARTICLE 2144-1 BUREAU OF SUPPLIES

AND ACCOUNTS MANUAL. ENCLOSURE: (A) ORIGINAL DISPATCH FROM NAS PEARL HARBOR 1072340

8 JULY ACTION: SANDA--- INFOR: COMUTWING

BASE FOR, COMPATWING 2.

1. THE ENCLOSURE REQUESTING DECISION OF THE COMPTROLLER GENERAL WHETHER UNITS OF UTILITY AND PATROL WINGS VESSELS ARE WITHIN THE PROVISIONS OF SECTION 1422 OF THE REVISED STATUTES IS FORWARDED FOR SUCH ACTION AS MIGHT BE DEEMED APPROPRIATE.

2. IN THE DECISION NOTED IN REFERENCE (A) THE COMPTROLLER OF THE TREASURY, IN CONSTRUING SECTION 1422 OF THE REVISED STATUTES, HELD THAT THIS STATUTE CONTEMPLATES SERVICE UPON AND ATTACHMENT TO A VESSEL DURING THE PERIOD OF DETENTION IN SERVICE BEYOND THE EXPIRATION OF TERM OF ENLISTMENT. A SIMILAR QUESTION WAS ALSO BEFORE THE COMPTROLLER OF THE TREASURY AND IN DECISION OF MAY 23, 1916 ( ARTICLE 2144-1 BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA ( SELECTED DECISIONS) ( IT WAS HELD THAT AN ENLISTED MAN OF THE NAVY WHO IS RETAINED ON SEA DUTY ON BOARD A YARD CRAFT AT A FOREIGN STATION AFTER THE EXPIRATION OF HIS ENLISTMENT IS ENTITLED TO THE ONE-FOURTH ADDITIONAL PAY FOR SUCH DUTY DURING THE TIME HE IS SO RETAINED IN THE SERVICE.

3. THE QUESTION WHETHER ENLISTED MEN ENTITLED TO ONE-FOURTH ADDITIONAL PAY ARE ENTITLED TO HAVE THE ADDITIONAL PAY COMPUTED ON AVIATION PAY APPEARS TO BE COVERED GENERALLY IN DECISION OF THE COMPTROLLER OF THE TREASURY OF MARCH 30, 1905 (11 COMP. DEC. 575) WHEREIN THE COMPTROLLER STATED:

* * * THE ONE-QUARTER INCREASE FOLLOWS THE PAY GIVEN FOR THE DUTIES HE MAY BE REQUIRED TO PERFORM, WHETHER THEY BE REGULAR DUTIES COVERED BY THE REGULAR PAY OR SPECIAL DUTIES FOR WHICH EXTRA PAY IS PROVIDED. IF, THEN, AN ENLISTED MAN, DETAINED AS SPECIFIED IN SECTION 1422, PERFORMS UNDER DETAIL THE DUTIES OF GUN POINTER, GUN CAPTAIN, SIGNALMAN, MESSMAN, OR OTHER DETAIL OF SIMILAR CHARACTER, THE EXTRA PAY ALLOWED IN SUCH CASES SHOULD BE INCLUDED IN MAKING UP THE TOTAL PAY UPON WHICH THE ONE-FOURTH ADDITIONAL IS TO BE COMPUTED * * *.

THE ORIGINAL DISPATCH FROM NAS, PEARL HARBOR, TERRITORY OF HAWAII, ENCLOSED WITH THE LETTER, SUPRA, IS AS FOLLOWS:

REQUEST ADVANCE DECISION COMPTROLLER GENERAL ARE UNITS OF UTILITY AND PATROL WINGS VESSELS WITHIN THE PROVISIONS OF SECTION ONE FOUR TWO TWO, REVISED STATUTES X MAY ONE FOURTH ADDITIONAL AVIATION PAY ACCRUING AFTER NORMAL EXPIRATION OF ENLISTMENT BE CREDITED TO MEN OTHERWISE ENTITLED BENEFITS OF SECTION ONE FOUR TWO TWO, REVISED STATUTES.

THUS, TWO QUESTIONS ARE PRESENTED, FIRST, ARE UNITS OF UTILITY AND PATROL WINGS VESSELS ON DUTY AT PEARL HARBOR, T.H., WITHIN THE PROVISIONS OF SECTION 1422, REVISED STATUTES, AND, IF SO, SECOND, MAY "ADDITIONAL AVIATION PAY" BE TAKEN INTO ACCOUNT IN FIXING THE COMPENSATION OF MEN HELD IN SERVICE "AFTER NORMAL EXPIRATION OF ENLISTMENT," OR, IN OTHER WORDS, MAY THE "ONE-FOURTH THEIR FORMER PAY" PROVIDED IN PROPER CASES UNDER SECTION 1422, REVISED STATUTES, BE COMPUTED UPON THE REGULAR PAY OF THEIR RANK AND SERVICE PLUS AVIATION OR FLYING PAY ALLOWED BY EXISTING LAW UNDER SPECIAL CONDITIONS?

SECTION 1422, REVISED STATUTES, IS AS FOLLOWS:

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 INTEREST, 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 RE-ENTERING 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 THIRTY 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 RE- ENTER 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; PROVIDED, THAT THE SHIPPING-ARTICLES SHALL HEREAFTER CONTAIN THE SUBSTANCE OF THIS SECTION.

THE SECTION AS QUOTED ABOVE DERIVED FROM SECTION 17 OF THE ACT OF JULY 17, 1862, 12 STAT. 610, AS AMENDED BY THE ACT OF MARCH 3, 1875, 18 STAT. 484. THE SECTION WOULD APPEAR TO HAVE STEMMED FROM SECTIONS 2 AND 3 OF THE ACT OF MARCH 2, 1837, 5 STAT. 153, WHICH WERE AS FOLLOWS:

SEC. 2. AND BE IT FURTHER ENACTED, THAT WHEN THE TIME OF SERVICE OF ANY PERSON ENLISTED FOR THE NAVY, SHALL EXPIRE, WHILE HE IS ON BOARD ANY OF THE PUBLIC VESSELS OF THE UNITED STATES, EMPLOYED ON FOREIGN SERVICE, IT SHALL BE THE DUTY OF THE COMMANDING OFFICER OF THE FLEET, SQUADRON, OR VESSEL, IN WHICH SUCH PERSON MAY BE, TO SEND HIM TO THE UNITED STATES IN SOME PUBLIC OR OTHER VESSEL, UNLESS HIS DETENTION SHALL BE ESSENTIAL TO THE PUBLIC INTEREST, IN WHICH CASE THE SAID OFFICER MAY DETAIN HIM UNTIL THE VESSEL IN WHICH HE SHALL BE SERVING SHALL RETURN TO THE UNITED STATES; AND IT SHALL BE THE DUTY OF SAID OFFICER, IMMEDIATELY TO MAKE REPORT TO THE NAVY DEPARTMENT, OF SUCH DETENTION AND THE CAUSE THEREOF.

SEC. 3. AND BE IT FURTHER ENACTED, THAT SUCH PERSONS AS MAY BE DETAINED AFTER THE EXPIRATION OF THEIR ENLISTMENT, UNDER THE NEXT PRECEDING SECTION OF THIS ACT, SHALL BE SUBJECT, IN ALL RESPECTS, TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY, UNTIL THEIR RETURN TO THE UNITED STATES, AND ALL SUCH PERSONS AS SHALL BE SO DETAINED, AND ALL SUCH AS SHALL VOLUNTARILY REENLIST TO SERVE UNTIL THE RETURN OF THE VESSEL IN WHICH THEY SHALL BE SERVING, AND THEIR REGULAR DISCHARGE THEREFROM IN THE UNITED STATES, SHALL, WHILE SO DETAINED AND WHILE SO SERVING UNDER THEIR REENLISTMENT, RECEIVE AN ADDITION OF ONE-FOURTH OF THEIR FORMER PAY.

WHILE THE ABOVE-QUOTED ACT AND SECTION 1422, REVISED STATUTES, DIFFER SOMEWHAT IN PHRASEOLOGY, THE DIFFERENCE IS MORE A MATTER OF WORDS THAN OF SUBSTANCE, THEIR PURPORT AND PURPOSE IS THE SAME, AND AN INTERPRETATION APPLICABLE TO THE EARLIER ACT IS ALMOST, IF NOT IN ALL RESPECTS, EQUALLY APPLICABLE TO SECTION 1422, REVISED STATUTES. IT IS IMMEDIATELY MANIFEST THAT BOTH IMPORT A CONDITION OF SERVICE UPON SHIPS ABROAD, OR ON FOREIGN SERVICE OR STATION, OR IN FOREIGN WATERS AT THE TIME THE ENLISTMENT OF THE MAN OR MEN INVOLVED EXPIRES.

WHEN THE ORIGINAL ACT WAS PASSED, THE TERRITORY OF HAWAII WAS AS YET THE SANDWICH ISLANDS, A LAND UNEXPLORED AND VIRTUALLY UNKNOWN SO FAR AS OUR COUNTRY WAS CONCERNED. ON MAY 14, 1836, CONGRESS PASSED AN ACT (5 STAT. 29) AUTHORIZING THE PRESIDENT---

* * * TO SEND OUT A SURVEYING AND EXPLORING EXPEDITION TO THE PACIFIC OCEAN AND (THE) SOUTH SEAS, AND FOR THAT PURPOSE TO EMPLOY A SLOOP OF WAR, AND TO PURCHASE OR PROVIDE SUCH OTHER SMALLER VESSELS AS MAY BE NECESSARY AND PROPER TO RENDER THE SAID EXPEDITION EFFICIENT AND USEFUL, AND FOR THIS PURPOSE THE SUM OF ONE HUNDRED AND FIFTY THOUSAND DOLLARS BE, AND THE SAME IS HEREBY APPROPRIATED OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, * * *.

THIS EXPEDITION DID NOT SET SAIL UNTIL ABOUT AUGUST 18, 1838 (AFTER THE PASSAGE OF THE ORIGINAL ACT QUOTED ABOVE), AND DID NOT RETURN TO THE UNITED STATES UNTIL ABOUT THE MIDDLE OF JUNE 1842.

IN NOVEMBER 1840, THE EXPLORATION EXPEDITION "WAS AT THE ISLAND OF OAHU, ONE OF THE SANDWICH ISLANDS, IN THE PACIFIC OCEAN," WITH HEADQUARTERS AT THE PORT OF HONOLULU. IT APPEARS THAT DURING THE TIME OF ITS STAY IN HONOLULU, A MARINE WHOSE ORIGINAL TERM OF ENLISTMENT EXPIRED IN NOVEMBER 1840, WAS "DETAINED" IN THE SERVICE AND COMPELLED TO DISCHARGE THE DUTIES INCIDENT THERETO SUBSEQUENT TO THE NORMAL EXPIRATION OF HIS ENLISTMENT, DESPITE HIS RENITENCY, AND UPON REFUSAL TO OBEY ORDERS, WAS SUBJECTED TO CORPORAL PUNISHMENT AND IMPRISONMENT. UPON HIS RETURN TO THE UNITED STATES THIS MARINE INSTITUTED LEGAL ACTION AGAINST THE COMMANDER OF THE EXPEDITION ON ACCOUNT OF SAID CORPORAL PUNISHMENT, IMPRISONMENT AND OTHER ALLEGED INDIGNITIES INFLICTED UPON HIM. THE CASE WAS TWICE BEFORE THE SUPREME COURT OF THE UNITED STATES ( WILKES V. DINSMAN, 7 HOW. (48 U.S.) 89 AND DINSMAN V. WILKES, 12 HOW. (53 U.S.) 390).

IN THE COURSE OF THE OPINION UPON THE FIRST HEARING MR. JUSTICE WOODBURY SAID:

IN A PUBLIC ENTERPRISE LIKE THE EXPLORING EXPEDITION, ESPECIALLY AUTHORIZED BY CONGRESS IN 1836, (SEE ACT OF CONGRESS OF 14TH MAY, 1836, 5 STATUTES AT LARGE, 29, SEC. 2,) FOR PURPOSES OF COMMERCE AND SCIENCE, VERY VALUABLE TO THE COUNTRY, AND NOT ENTIRELY WITHOUT INTEREST TO MOST OF THE CIVILIZED WORLD, IT WAS ESSENTIAL TO SECURE IT FROM BEING DEFEATED BY ANY DISCHARGE OF THE CREWS BEFORE ITS GREAT OBJECTS WERE ACCOMPLISHED, OR BY ANY WANT OF PROPER AUTHORITY, DISCRETIONARY OR OTHERWISE, IN THE COMMANDER, TO INSURE, IF POSSIBLE, A SUCCESSFUL ISSUE TO THE ENTERPRISE.

ESPECIALLY IS IT PROPER, NOT ONLY THAT A PUBLIC OFFICER, SITUATED LIKE THE DEFENDANT (THE COMMANDER), BE INVESTED WITH A WIDE DISCRETION, BUT BE UPHELD IN IT, WHEN HONESTLY EXERCISING, AND NOT TRANSCENDING, IT AS TO DISCIPLINE IN SUCH REMOTE PLACES, ON SUCH A LONG AND DANGEROUS CRUISE, AMONG SUCH SAVAGE ISLANDS AND OCEANS, AND WITH THE SAFETY OF SO MANY LIVES AND THE RESPECTABILITY AND HONOR OF HIS COUNTRY'S FLAG IN CHARGE. ITALICS SUPPLIED.)

WHEN THE CASE WAS AGAIN BEFORE THE COURT, MR. CHIEF JUSTICE TANEY DELIVERED THE OPINION, JUSTICE WOODBURY HAVING DIED IN THE INTERIM. HIS OPINION, JUSTICE TANEY SAID IN PART:

IT IS AN ACTION BY A MARINE AGAINST HIS COMMANDING OFFICER, FOR PUNISHMENT INFLICTED UPON HIM FOR REFUSING TO DO DUTY, IN A FOREIGN PORT, UPON THE GROUND THAT THE TIME OF HIS ENLISTMENT HAD EXPIRED, AND THAT HE WAS ENTITLED TO HIS DISCHARGE. THE CASE IS ONE OF MUCH DELICACY AND IMPORTANCE AS REGARDS OUR NAVAL SERVICE. FOR IT IS ESSENTIAL TO ITS SECURITY AND EFFICIENCY THAT THE AUTHORITY AND COMMAND CONFIDED TO THE OFFICER, WHEN IT HAS BEEN EXERCISED FROM PROPER MOTIVES, SHOULD BE FIRMLY SUPPORTED IN THE COURTS OF JUSTICE, AS WELL AS ON SHIPBOARD. AND IF IT IS NOT, THE FLAG OF THE UNITED STATES WOULD SOON BE DISHONORED IN EVERY SEA.

AT THE TIME THESE EVENTS HAPPENED CAPTAIN WILKES WAS IN A DISTANT SEA, CHARGED WITH THE EXECUTION OF A HIGH PUBLIC DUTY. HE WAS BOUND, BY ALL LAWFUL MEANS IN HIS POWER, TO PRESERVE THE STRENGTH AND EFFICIENCY OF THE SQUADRON INTRUSTED TO HIS CARE, AND WAS EQUALLY BOUND TO RESPECT THE RIGHTS OF EVERY INDIVIDUAL UNDER HIS COMMAND. IT IS HARDLY NECESSARY TO INQUIRE WHETHER THE PLAINTIFF WAS OR WAS NOT ENTITLED TO HIS DISCHARGE AT THE TIME HE DEMANDED IT. IT IS, HOWEVER, VERY CLEAR THAT HE WAS NOT. BUT TO GUARD AGAINST A MISCONSTRUCTION OF THIS OPINION, IT IS PROPER TO SAY THAT THE RIGHT TO DETERMINE THE QUESTION WAS, FOR THE TIME BEING, IN CAPTAIN WILKES. IN HIS POSITION AS COMMANDER, THE LAW NOT ONLY CONFERRED UPON HIM THIS POWER, BUT MADE IT HIS DUTY TO EXERCISE IT. IF, IN HIS JUDGMENT, THE PLAINTIFF WAS ENTITLED TO HIS DISCHARGE, IT WAS HIS DUTY TO GIVE IT, EVEN IF IT WAS INCONVENIENT TO WEAKEN THE FORCE HE COMMANDED. * * NOR DID THE BELIEF OF THE PLAINTIFF AS TO HIS RIGHTS, FURNISH ANY JUSTIFICATION FOR HIS DISOBEDIENCE TO ORDERS. FOR THERE WOULD BE AN END OF ALL DISCIPLINE IF THE SEAMEN AND MARINES ON BOARD A SHIP OF WATER, ON A DISTANT SERVICE, WERE PERMITTED TO ACT UPON THEIR OWN OPINION OF THEIR RIGHTS, AND TO THROW OFF THE AUTHORITY OF THE COMMANDER WHENEVER THEY SUPPOSED IT TO BE UNLAWFULLY EXERCISED. ( ITALICS SUPPLIED.)

I HAVE QUOTED SOMEWHAT LARGELY FROM THE TWO OPINIONS CITED FOR THE REASON THAT THEY SERVE TO SHOW THE EMPHASIS LAID BY THE COURT UPON THE FACT THAT AT THE TIME DINSMAN WAS "DETAINED" IN THE SERVICE, THEIR COMMANDER AND THEIR SHIPS WERE IN "REMOTE PLACES" ON A "LONG AND DANGEROUS CRUISE" AMONG "SAVAGE ISLANDS AND OCEANS" WITH THE "SAFETY OF SO MANY LIVES AND THE RESPECTABILITY OF HIS COUNTRY'S FLAG IN CHARGE," "IN A FOREIGN PORT," "ON A DISTANT SERVICE," AND THAT THERE "WOULD BE AN END TO ALL DISCIPLINE" AND "THE FLAG OF THE UNITED STATES WOULD SOON BE DISHONORED IN EVERY SEA" IN THE ABSENCE OF AUTHORITY IN A COMMANDING OFFICER, UNDER SUCH CONDITIONS, TO DETAIN AN ENLISTED MAN IN SERVICE BEYOND THE TERM OF HIS ENLISTMENT, WHEN THE EXIGENCIES OF THE SERVICE ACTUALLY REQUIRED IT. EVEN SO, THE COURT RECOGNIZED THAT NO MERE "INCONVENIENCE" WAS SUFFICIENT TO JUSTIFY WITHHOLDING AN ENLISTED MAN'S DISCHARGE AT THE END OF HIS TERM, BUT IN THE WORDS OF THE STATUTE THE DETENTION MUST BE "ESSENTIAL TO THE PUBLIC INTERESTS.'

IT IS A FAR CRY FROM THAT DAY TO THIS, AND THE CONSIDERATIONS THERE EMPHASIZED BY, AND APPARENTLY INFLUENCING IN SOME MEASURE, THE DECISIONS OF THE COURT, NO LONGER PREVAIL, SO FAR AS HAWAII IS CONCERNED. THE SANDWICH ISLANDS, REFERRED TO BY THE COURT AS "SAVAGE" ISLANDS, ARE NO LONGER SAVAGE, THEIR PEOPLE, CALLED "BARBAROUS" BY THE COURT, ARE NO LONGER BARBAROUS, THE TERRITORY OF HAWAII IS A PART OF OUR UNION, AND NOW STANDS UPON THE THRESHOLD OF THE OPEN DOOR TO MEMBERSHIP IN THE SISTERHOOD OF STATES. ITS PEOPLE ARE OUR PEOPLE, OUR LAWS ARE ITS LAWS, INSOFAR AS APPLICABLE. SHIPS, PUBLIC AND PRIVATE, DAILY PLY THE SEAS (AND AIR) BETWEEN THE "MAINLAND" AND THE ISLANDS, ARMY TRANSPORTS OPERATE ON REGULAR SCHEDULES, AND WITH THE ADVENT AND CONSTANT IMPROVEMENT OF MODERN TRANSPORTATION, HAWAII IS BUT A SUBURB OF OUR CONTINENTAL CONFINES. HER SHIPS ARE REGISTERED AS AMERICAN VESSELS, WITH THE BENEFITS AND PRIVILEGES APPERTAINING THERETO, AND TRADE BETWEEN THE MAINLAND AND THE TERRITORY IS RECOGNIZED AS "COASTING TRADE BETWEEN THE ISLANDS AFORESAID AND ANY OTHER PORTION OF THE UNITED STATES" AND IS REGULATED "IN ACCORDANCE WITH THE PROVISIONS OF LAW APPLICABLE TO SUCH TRADE BETWEEN ANY TWO GREAT COASTING DISTRICTS" (ACT OF APRIL 30, 1900, 31 STAT. 141, 161, SEC. 98).

THE COURTS HAVE HELD THAT THE PURPOSE OF THE LAW IS THE EVER INSISTENT CONSIDERATION IN ITS INTERPRETATION, UNITED STATES V. ANTIKAMNIA COMPANY, 231 U.S. 654, 667, AND THAT THE OPERATION OF A STATUTE IS TO BE RESTRAINED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHEN THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT, MCKEE V. UNITED STATES, 164 U.S. 287, 293. AND IN DELIMA V. BIDWELL, 182 U.S. 1, 197, THE COURT SAID:

* * * WHILE A STATUTE IS PRESUMED TO SPEAK FROM THE TIME OF ITS ENACTMENT, IT EMBRACES ALL SUCH PERSONS OR THINGS AS SUBSEQUENTLY FALL WITHIN ITS SCOPE, AND CEASES TO APPLY TO SUCH AS THEREAFTER FALL WITHOUT ITS SCOPE. * * * ( ITALICS SUPPLIED.)

APPLYING THOSE RULES IN THE LIGHT OF THE LANGUAGE OF THE COURT IN THE TWO DECISIONS QUOTED ABOVE (THE DINSMAN CASES) I AM CONSTRAINED TO THE CONCLUSION THAT THE PURPOSE OF SECTION 1422, REVISED STATUTES, WAS THE PRESERVATION OF DISCIPLINE, THE PROTECTION OF THE NAVY FROM THE EMBARRASSMENTS AND EVEN DANGERS THAT MIGHT RESULT FROM COMPULSORY DISCHARGE OR RELEASE FROM DUTY OF ENLISTED MEN WHILE IN FOREIGN PORTS, OR ON FOREIGN SERVICE, AND SUSTENTION OF THE HONOR AND DIGNITY OF THE FLAG AMONG FOREIGN PEOPLE, AND THAT IT WAS NOT WITHIN CONTEMPLATION OF THE CONGRESS THAT THE STATUTORY RULE SHOULD APPLY IN PORTS OR WATERS WITHIN THE SOVEREIGN JURISDICTION OF THE UNITED STATES AND, CONSEQUENTLY, SINCE THE TERRITORY OF HAWAII AND THE PEARL HARBOR NAVAL STATION ARE NOW A PART OF THE UNION AND THE SURROUNDING WATERS ARE DOMESTIC WATERS, THE STATUTE NO LONGER APPLIES, FOR THE REASON THAT THE TERRITORY NOW FALLS WITHOUT ITS SCOPE.

ACCORDINGLY, THE VESSELS MENTIONED IN YOUR SUBMISSION MAY NOT BE CONSIDERED AS WITHIN THE PROVISIONS OF SECTION 1422, REVISED STATUTES, INSOFAR AS THE DETENTION OF ENLISTED MEN IN SERVICE BEYOND THEIR ENLISTMENT IS CONCERNED, SUBJECT TO THE EXCEPTION THAT IF OR WHEN ONE (OR MORE) OF SAID SHIPS IS ORDERED TO SERVICE IN FOREIGN WATERS IF A MAN'S ENLISTMENT SHOULD EXPIRE DURING THE ABSENCE OF SUCH SHIP FROM DOMESTIC WATERS ON SUCH A MISSION, IT WOULD BE PERMISSIBLE FOR THE COMMANDING OFFICER TO DETAIN HIM IN SERVICE IN A PROPER CASE UNTIL THE SHIP'S RETURN.

IT MAY NOT BE AMISS, IN THIS CONNECTION, TO OBSERVE THAT UNDER THE PROVISIONS OF SECTION 1422, REVISED STATUTES, IT IS PRIMARILY THE DUTY OF A COMMANDING OFFICER WHOSE FLEET, SQUADRON, OR VESSEL ACTING SINGLY, IS ON SERVICE, TO SEND AN ENLISTED MAN HOME AT THE EXPIRATION OF HIS ENLISTMENT, OR AS SOON THEREAFTER AS MAY BE, ON SOME PUBLIC OR OTHER VESSEL, IF THE MAN DESIRES TO GO THERE. IT IS ONLY WHEN THE COMMANDING OFFICER CONSIDERS SUCH MAN'S DETENTION IN THE SERVICE ESSENTIAL TO THE PUBLIC INTERESTS THAT THE STATUTE CONFERS UPON THE SAID COMMANDING OFFICER AUTHORITY TO DETAIN HIM IN SERVICE FOR A LONGER TIME, WHICH IN SUCH CASE HE MAY DO EITHER WITH THE MAN'S CONSENT OR AGAINST HIS WILL. THERE IS NO AUTHORITY UNDER THE STATUTE TO RETAIN A MAN IN SERVICE BEYOND THE EXPIRATION OF HIS ENLISTMENT IN ANY EVENT, WITH OR WITHOUT HIS CONSENT, MERELY BECAUSE THE COMMANDING OFFICER MAY CONSIDER HIS CONTINUED SERVICE MAY BE DESIRABLE OR IN SOME MEASURE NEEDFUL. THE WORD ,ESSENTIAL" HAS BEEN JUDICIALLY DEFINED AS MEANING "INDISPENSABLY NECESSARY; IMPORTANT IN THE HIGHEST DEGREE; REQUISITE," PITTSBURGH IRON AND STEEL FOUNDRIES COMPANY V. SEAMAN-SLEETH COMPANY, 236 FED. 756, 757, IN WHICH THE COURT POINTED OUT THAT ESSENTIALLY IS NOT A SYNONYM FOR SUBSTANTIALLY. THE WORD ESSENTIAL CONVEYS A SENSE OF FINALITY OF NEED NOT PRESENT IN LESS EMPHATIC AND ABSOLUTE WORDS; AND, AS SAID ABOVE, THE MERE DESIRABILITY OF THE CONTINUANCE OF THE MAN'S SERVICE OR SOME MEASURE OF BENEFIT TO BE DERIVED THEREFROM DOES NOT BRING HIM WITHIN THE STATUTE. AND IT GOES WITHOUT SAYING THAT THE OPINION OF THE COMMANDING OFFICER THAT AN ENLISTED MAN'S SERVICES ARE ESSENTIAL TO THE PUBLIC INTERESTS TO SUCH AN EXTENT AS TO JUSTIFY HIS DETENTION IN THE SERVICE SHOULD BE A CONSIDERED OPINION RATHER THAN A MERE ARBITRARY VIEW AND SHOULD BE BASED ON FACTS SUFFICIENT TO ESTABLISH THE ESSENTIAL CHARACTER OF THE MAN'S SERVICE.

WITH REFERENCE TO THE SECOND QUESTION PRESENTED, THE SO-CALLED AVIATION PAY IS NOT PART OF AN ENLISTED MAN'S PAY PROPER, BUT IS A SPECIAL AND TEMPORARY ALLOWANCE TO HIM DURING THE PERFORMANCE OF EXTRA DUTIES OF A HAZARDOUS NATURE, NOT NECESSARILY INCIDENT TO HIS ENLISTMENT AND FROM PERFORMANCE OF WHICH HE MAY BE RELIEVED OR WITHDRAWN AT ANY TIME. THE "FORMER PAY" TO WHICH THE ONE-FOURTH INCREASE FOR DETENTION IN SERVICE AFTER EXPIRATION OF ENLISTMENT APPLIES IS THE REGULAR PAY OF THE MAN'S RANK AND SERVICE AND PERMANENT ADDITIONS THERETO, WHICH DOES NOT INCLUDE TEMPORARY ADDITIONS WHICH MAY BE TERMINATED AT ANY TIME BY REASON OF DISCONTINUANCE OF THE SERVICE AUTHORIZING THE ADDITIONAL PAY. CF. 5 C.D. 524; 21 C.D. 811; 22 C.D. 11; 24 C.D. 139. ACCORDINGLY, WHILE, AS STATED ABOVE, AN ENLISTED MAN ASSIGNED TO THE SHIPS IN QUESTION WHOSE ENLISTMENT EXPIRES DURING A PERIOD WHEN THE SHIP TO WHICH HE IS ATTACHED IS ON FOREIGN DUTY AS HEREIN DEFINED, THAT IS TO SAY, IN FOREIGN WATERS AWAY FROM THE TERRITORY OF HAWAII, AND WHOSE DETENTION FOR A LONGER PERIOD IS "ESSENTIAL TO THE PUBLIC INTERESTS" MAY BE DETAINED IN SERVICE UNTIL SAID SHIP RETURNS TO HER HOME PORT--- IN THIS CASE, PEARL HARBOR--- THE AVIATION PAY, BEING BY WAY OF ALLOWANCE FOR SPECIAL DUTIES AND NOT A PART OF HIS PAY PROPER FOR HIS RANK AND SERVICES, OR A PERMANENT ADDITION THERETO, IS NOT FOR CONSIDERATION IN ANY EVENT IN THE COMPUTATION OF THE ONE-FOURTH ADDITIONAL PAY ACCRUING BY REASON OF HIS DETENTION IN SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, AND THE SECOND QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.