A-19153, NOVEMBER 8, 1927, 7 COMP. GEN. 314

A-19153, NOVEMBER 8, 1927, 7 COMP. GEN. 314

MEDICAL TREATMENT - NAVAL OFFICER ON LEAVE WHERE AN OFFICER OF THE NAVY BECOMES ILL WHILE ON LEAVE OF ABSENCE AND THE UNEXPIRED PORTION OF HIS LEAVE OF ABSENCE IS REVOKED, THE OFFICER IS NOT ON DUTY WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES, AND PAYMENT FROM PUBLIC FUNDS FOR MEDICINES AND MEDICAL ATTENDANCE PROCURED FROM CIVILIAN SOURCES IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 8, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 8, 1927, AS FOLLOWS:

IN YOUR DECISION OF APRIL 26, 1926 (5 COMP. GEN. 862), IT WAS HELD THAT CHIEF GUNNER EDWARD S. TUCKER, U.S. NAVY, WAS NOT ENTITLED TO REIMBURSEMENT FOR EXPENSES FOR CIVILIAN MEDICAL AND HOSPITAL TREATMENT WHILE IN A CIVILIAN HOSPITAL AT PASADENA, CALIFORNIA, FROM OCTOBER 28 TO DECEMBER 2, 1924. YOUR DECISION IN THIS CASE WAS BASED UPON A NUMBER OF POINTS IN REGARD TO WHICH IT IS NOT DESIRED TO RAISE ANY QUESTION AND ACCORDINGLY THE PRESENT LETTER IS NOT INTENDED AS AN APPEAL FROM THAT DECISION IN SO FAR AS THE SPECIFIC CASE OF CHIEF GUNNER TUCKER IS CONCERNED. HOWEVER, THE DECISION CONTAINS LANGUAGE FROM WHICH IT MIGHT BE IMPLIED THAT AN OFFICER ON LEAVE WHO IS TAKEN ILL AND IS OUT OF REACH OF NAVAL MEDICAL AND HOSPITAL FACILITIES CAN NOT, BY THE ISSUANCE OF TIMELY AND PROPER ORDERS, BE PLACED ON A DUTY STATUS SO AS TO PERMIT OF THE AUTHORIZATION OF CIVILIAN MEDICAL OR HOSPITAL TREATMENT AS MAY BE REQUIRED.

IT IS THE OPINION OF THE NAVY DEPARTMENT THAT SO BROAD AN INTERPRETATION AS THAT MENTIONED ABOVE WAS NOT INTENDED BY THE DECISION IN QUESTION FOR THE REASON THAT SUCH AN INTERPRETATION WOULD DENY TO THE DEPARTMENT THE POWER OF SUPERVISION OVER THE WELFARE OF OFFICERS WHO WERE TAKEN ILL WHILE ON LEAVE. IT IS THE VIEW OF THIS DEPARTMENT THAT FOR MANY REASONS, INCLUDING THE POSSIBILITY OF PROSPECTIVE RETIREMENT AND REASONS OF MILITARY EXIGENCY, THE WELFARE OF AN OFFICER WHO IS TAKEN ILL WHILE ON LEAVE IS A MATTER OF CONSIDERABLE CONCERN TO THE NAVY DEPARTMENT. ACCORDINGLY IT WOULD SEEM THAT, IN PROPER CASES AND UNDER PROPER REGULATIONS, THIS DEPARTMENT COULD PROPERLY REVOKE THE LEAVE OF AN OFFICER WHO IS TAKEN ILL, THUS RETURNING SUCH OFFICER TO A DUTY STATUS, AND AUTHORIZE THE PROCUREMENT OF CIVILIAN MEDICAL OR HOSPITAL TREATMENT IN THE EVENT THAT NAVAL TREATMENT IS CLEARLY OUT OF THE QUESTION. FOR EXAMPLE, IT HAS BEEN HELD ON VARIOUS OCCASIONS THAT WHERE SPECIFIC INSTRUCTIONS OF A COMMANDING OFFICER OR OTHER SENIOR OFFICER PRESENT ARE ISSUED, REVOKING LEAVE PREVIOUSLY GRANTED TO AN ENLISTED MAN AND AUTHORIZING THE PROCUREMENT OF CIVILIAN MEDICAL OR HOSPITAL TREATMENT IN HIS CASE, SUCH ACTION OPERATES TO RESTORE THE ENLISTED MAN CONCERNED TO A DUTY STATUS (12 COMP. DEC. 566; 19 ID. 382; 24 ID. 323; 2 COMP. GEN. 788; COMP. GEN. MS. JAN. 11, 1927, NO. A-448).

IN EXPRESSING THE ABOVE VIEW THE NAVY DEPARTMENT IS NOT UNMINDFUL OF THE PROVISIONS OF SECTION 1586, REVISED STATUTES, TO THE EFFECT THAT EXPENSES INCURRED BY AN OFFICER OF THE NAVY FOR MEDICINES AND MEDICAL ATTENDANCE SHALL NOT BE ALLOWED UNLESS INCURRED WHEN HE IS ON DUTY, AND THE MEDICINES COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES, OR THE ATTENDANCE OF A NAVAL MEDICAL PHYSICIAN COULD NOT HAVE BEEN HAD. HOWEVER, IT IS NOT BELIEVED THAT THE ISSUANCE OF ORDERS, UNDER THE CIRCUMSTANCES AND IN THE MANNER CONTEMPLATED IN THE PRECEDING PARAGRAPH, REVOKING THE LEAVE OF AN OFFICER WHO IS TAKEN ILL CONSTITUTES AN ATTEMPT TO EVADE THE REQUIREMENTS OF THE ABOVE STATUTE, BUT RATHER IT IS CONSIDERED THAT SUCH ORDER IS A BONA FIDE EFFORT OF THE NAVY DEPARTMENT TO DISCHARGE ITS PROPER OBLIGATIONS BOTH TOWARD THE SICK OFFICER AND THE SERVICE AND MAY PROPERLY BE SAID TO PLACE SUCH OFFICER ON A DUTY STATUS WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES.

IN VIEW OF THE ABOVE THIS DEPARTMENT CONTEMPLATES ISSUING TO THE SERVICE THE FOLLOWING INSTRUCTIONS:

"WHEN AN OFFICER ON AUTHORIZED LEAVE BECOMES ILL AND REQUIRES MEDICAL ATTENTION FOR HIS ILLNESS, HE SHOULD COMMUNICATE THAT FACT TO HIS COMMANDING OFFICER, OR OTHER SENIOR OFFICER PRESENT, WHO SHALL THEREUPON REVOKE THE UNEXPIRED PORTION OF SUCH OFFICER'S LEAVE OF ABSENCE, AND RESTORE HIM TO DUTY, AND DIRECT THAT HE REPORT BACK TO HIS SHIP, STATION OR OTHER NAVAL ACTIVITY, FOR SUCH DUTY, PROVIDED HE IS PHYSICALLY ABLE TO TRAVEL WITHOUT SERIOUSLY ENDANGERING HIS HEALTH. IN THE EVENT THAT THE OFFICER IS UNABLE TO TRAVEL WITHOUT SERIOUSLY ENDANGERING HIS HEALTH HE WILL NOT BE REQUIRED TO REPORT TO HIS SHIP OR OTHER STATION UNTIL SUFFICIENTLY RECOVERED FOR SUCH TRAVEL, AND DURING SUCH PERIOD HE SHALL BE CONSIDERED ON DUTY WITHIN THE MEANING OF SECTION 1586 OF THE REVISED STATUTES.'

I WOULD APPRECIATE AN EXPRESSION OF YOUR VIEWS WITH RESPECT TO THE ABOVE, AND ANY SUGGESTIONS YOU MAY HAVE TO MAKE IN REGARD THERETO.

IT IS POSSIBLE THAT OFFICERS AND ENLISTED MEN OF THE NAVY BY THEIR ACCEPTANCE OF OFFICE OR ENLISTMENT THEREIN HAVE SO FAR SUBORDINATED THEIR PERSONAL PREFERENCES IN THE MATTER OF MEDICAL TREATMENT THAT IT IS COMPETENT FOR THE SECRETARY OF THE NAVY TO CONTROL OR SUPERVISE THE MEDICAL TREATMENT THEY MAY PROCURE. IT IS NOT UNDERSTOOD, HOWEVER, THAT SUCH SUPERVISION HAS BEEN EXERCISED, AND THAT EXCEPT POSSIBLY IN CASE OF CONTAGIOUS DISEASES AND INSANITY, OFFICERS AND ENLISTED MEN SO DESIRING ARE PERMITTED TO PROCURE, AT THEIR OWN EXPENSE, SUCH CHARACTER OF MEDICAL TREATMENT AS THEY MAY PREFER. BUT THE CASES THAT HAVE BEEN CONSIDERED AND WHEREIN IT WAS HELD THE EXPENSES OF MEDICAL TREATMENT WERE NOT CHARGEABLE TO THE UNITED STATES, HAVE NOT BEEN CASES WHERE THE DEPARTMENT HAS EXERCISED SUCH CONTROL OR SUPERVISION; THEY HAVE ALL BEEN CASES WHERE THE OFFICER OR MAN HAS SELECTED HIS OWN PRACTITIONER AND IT HAS BEEN ATTEMPTED TO TRANSFER THE CHARGE FOR SUCH SERVICES TO THE UNITED STATES BY THE EXPEDIENT OF REVOKING A LEAVE OF ABSENCE. THE DIFFICULTY LIKELY ARISES BY THE VIEW PREVALENT AMONG OFFICERS AND ENLISTED MEN OF THE NAVY THAT THEY HAVE A VESTED RIGHT TO MEDICAL TREATMENT AT ALL TIMES BY OR AT THE EXPENSE OF THE UNITED STATES AND THIS VIEW SEEMS TO BE BASED UPON THE CASE OF UNITED STATES V. JONES, 18 HOWARD 92, DECIDED BY THE SUPREME COURT IN THE DECEMBER TERM, 1855. THAT THE FACTS OF THE CASE AND THE REASONING OF THE COURT MAY BE CLEARLY COMPREHENDED THE MAJORITY OPINION IS QUOTED AT LENGTH:

THE DEFENDANT IS A LIEUTENANT IN THE NAVY OF THE UNITED STATES. DECEMBER, 1851, HE WAS IN PARIS, ON LEAVE OF ABSENCE, AND WAS SEVERELY AND DANGEROUSLY WOUNDED BY ACCIDENT, DURING THE EMEUTE OR REVOLUTIONARY OUTBREAK IN THAT MONTH. IN JULY, 1852, HE WAS PLACED BY THE SECRETARY OF THE NAVY ON SPECIAL DUTY FOR THE COLLECTION OF INFORMATION RELATIVE TO THE STEAM NAVY OF FRANCE. AFTERWARDS, IN AUGUST, 1852, THE SUM OF ONE THOUSAND DOLLARS WAS TRANSMITTED TO HIM BY THE SECRETARY OF THE NAVY WITH ORDERS TO APPLY TO "TO DISCHARGE THE EXPENSES ATTENDING THE INJURIES RECEIVED BY HIM IN PARIS.' IT IS ADMITTED THAT THIS MONEY WAS DISBURSED ACCORDING TO THE ORDERS OF THE SECRETARY. THE ACCOUNTING OFFICERS OF THE TREASURY HAVE CHARGED THE AMOUNT SO DISBURSED BY THE DEFENDANT AGAINST HIM ON HIS PAY ACCOUNT,"AND HAVE REFUSED TO RECOGNIZE THE AUTHORITY OF THE SECRETARY OF THE NAVY IN THE PREMISES.'

THE REASON ALLEGED FOR THIS REFUSAL BY THE ACCOUNTING OFFICER IS, THAT BY HIS CONSTRUCTION OF THE SECOND SECTION OF THE ACT OF 3D OF MARCH, 1835, C. 27, THE SECRETARY OF THE NAVY HAD NO AUTHORITY TO MAKE SUCH APPROPRIATION OF THE FUNDS OF THE GOVERNMENT IN HIS HANDS. THE ACT, SO FAR AS IT IS MATERIAL, IS IN THESE WORDS: "THAT THE YEARLY ALLOWANCE PROVIDED IN THIS ACT IS ALL THE PAY, COMPENSATION, AND ALLOWANCE WHICH SHALL BE RECEIVED UNDER ANY CIRCUMSTANCES WHATEVER BY ANY SUCH OFFICER," ETC.

NOTWITHSTANDING AN OPINION OF A LATE ATTORNEY GENERAL TO THE CONTRARY, THE ACCOUNTING OFFICER ,ENTERTAINS NO DOUBT" THAT THE EXPENSES ATTENDING THE MEDICAL TREATMENT OF A SICK OR DISABLED OFFICER OR SEAMAN ARE AMONG THE "ALLOWANCES" PROHIBITED BY THIS ACT, AND HAS CONSEQUENTLY FELT BOUND TO REPUDIATE THE SECRETARY'S CONSTRUCTION OF THE LAW, AND HIS OPINION AS TO THE POWERS AND DUTIES OF HIS DEPARTMENT.

FOR THE PURPOSE OF THIS CASE, HOWEVER, IT WILL NOT BE NECESSARY FOR THE COURT TO DECIDE BETWEEN THESE DISCORDANT OPINIONS AS TO WHAT THINGS COME WITHIN THE CATEGORY OF "ALLOWANCES," ACCORDING TO THE TRUE INTENT AND MEANING OF THE ACT OF CONGRESS.

IT IS THE PECULIAR PROVINCE AND DUTY OF THE NAVY DEPARTMENT TO PROVIDE MEDICAL STORES AND ATTENDANCE FOR THE OFFICERS AND SEAMEN ATTACHED TO THAT SERVICE. IT MAY TRULY BE SAID, ALSO, TO ENTER INTO THE CONTRACT OF THE GOVERNMENT WITH PERSONS SO EMPLOYED BY THEM. FOR THIS PURPOSE, A BUREAU OF MEDICINE IS ATTACHED TO THIS DEPARTMENT, AND NUMEROUS MEDICAL OFFICERS APPOINTED. THE LAW, MOREOVER, EXACTS FROM EVERY OFFICER AND SEAMAN A MONTHLY CONTRIBUTION FROM THEIR WAGES TO MAKE PROVISION FOR THE SICK AND DISABLED. THESE CONTRIBUTIONS ARE APPLIED, UNDER THE SUPERVISION OF THE PRESIDENT, TO THE ERECTION AND MAINTENANCE OF MARINE HOSPITALS, AND SIMILAR INSTITUTIONS FOR THE BENEFIT OF SEAMEN.

THE EXIGENCIES OF THE SERVICE OFTEN REQUIRE THE EMPLOYMENT OF SOLDIERS AND SAILORS AT A DISTANCE FROM PUBLIC HOSPITALS, AND WHEN THE ATTENDANCE THE MEDICAL OFFICERS CAN NOT BE OBTAINED; OR, CONSEQUENTLY, IN FULFILLMENT OF THE HUMANE POLICY OF THE GOVERNMENT, IT FREQUENTLY BECOMES NECESSARY TO EMPLOY TEMPORARILY PHYSICIANS NOT REGULARLY COMMISSIONED. FOR IN THIS WAY ALONE CAN THE DEPARTMENT PERFORM THE DUTY ASSUMED BY THE GOVERNMENT OF PROVIDING THE NECESSARY MEDICAL ATTENDANCE FOR THOSE WHO BECOME SICK OR DISABLED IN ITS SERVICE. THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT, TO WHICH IS INTRUSTED THE CONTROL OF THE SUBJECT MATTER, MUST NECESSARILY DETERMINE ALL QUESTIONS APPERTAINING TO THE EMPLOYMENT AND PAYMENT OF SUCH TEMPORARY AGENTS, AND THE EXIGENCY WHICH DEMANDS THEIR EMPLOYMENT. THE SECRETARY OF THE NAVY REPRESENTS THE PRESIDENT, AND EXERCISES HIS POWER ON THE SUBJECTS CONFIDED TO HIS DEPARTMENT. HE IS RESPONSIBLE TO THE PEOPLE AND THE LAW FOR ANY ABUSE OF THE POWERS INTRUSTED TO HIM. HIS ACTS AND DECISIONS, ON SUBJECTS SUBMITTED TO HIS JURISDICTION AND CONTROL BY THE CONSTITUTION AND LAWS, DO NOT REQUIRE THE APPROVAL OF ANY OFFICER OF ANOTHER DEPARTMENT TO MAKE THEM VALID AND CONCLUSIVE. THE ACCOUNTING OFFICERS OF THE TREASURY HAVE NOT THE BURDEN OF RESPONSIBILITY CAST UPON THEM OF REVISING THE JUDGMENTS, CORRECTING THE SUPPOSED MISTAKES, OR ANNULLING THE ORDERS OF THE HEADS OF DEPARTMENTS.

IN THE CASE BEFORE US, THE DEFENDANT HAS NOT COME BEFORE THE ACCOUNTING OFFICERS OF THE TREASURY, CLAIMING FROM THE GOVERNMENT AN "ALLOWANCE" FOR MEDICAL ATTENDANCE WHILE ON LEAVE OF ABSENCE, AND SUBMITTING TO THESE OFFICERS THE PROPRIETY AND LEGALITY OF SUCH "ALLOWANCE.' ON THE CONTRARY, THE AGREED CASE SHOWS, THAT A SUM OF MONEY HAD BEEN TRANSMITTED TO THE DEFENDANT BY THE SECRETARY OF THE NAVY TO BE DISBURSED, AND THAT HE HAD DISBURSED IT ACCORDING TO HIS ORDERS; AND WHETHER IT WAS FOR PAYING FOR SERVICES ACKNOWLEDGED BY THE SECRETARY TO HAVE BEEN RENDERED TO THE GOVERNMENT FOR MEDICAL ATTENDANCE ON THE DEFENDANT HIMSELF, OR ON ANOTHER, COULD MAKE NO DIFFERENCE. THE LIABILITY OF THE DEFENDANT TO REFUND THIS MONEY TO THE GOVERNMENT IS FOUNDED ON THE ACT OF THE ACCOUNTING OFFICER CHARGING HIM WITH IT, BECAUSE, IN HIS OPINION, THE SECRETARY OF THE NAVY HAD MISTAKEN THE LAW OR ABUSED HIS DISCRETION.

WE ARE OF OPINION THAT HE WAS NOT BOUND TO ASSUME THIS RESPONSIBILITY.

THE PROPRIETY OF DETACHING THE DEFENDANT ON SPECIAL DUTY IN FRANCE, OF FURNISHING HIM WITH MEDICAL ATTENDANCE WHILE SO EMPLOYED, AND OF ADOPTING AND RATIFYING HIS ACT IN THE EMPLOYMENT OF SUCH PHYSICIAN, UNDER ALL THE CIRCUMSTANCES, ARE ALL SUBJECTS PECULIARLY WITHIN THE JURISDICTION AND DISCRETION OF THE HEAD OF THE NAVY DEPARTMENT, AND NOT SUBJECT TO REVISION OR CORRECTION BY THE OFFICERS OF ANY OTHER DEPARTMENT.

THE JUDGMENT OF THE CIRCUIT COURT IS THEREFORE AFFIRMED.

THE MEDICAL ATTENDANCE IN THAT CASE, IT WILL BE OBSERVED FROM THE FIRST PARAGRAPH OF THE OPINION, WAS SECURED BY THE DEFENDANT WHILE ON LEAVE OF ABSENCE. SUBSEQUENTLY THE DEPARTMENT PLACED HIM ON DETACHED DUTY AND THE COURT, IN THE LAST PARAGRAPH, SUGGESTS THAT ITS ACTION IS PREDICATED ON THE FINALITY OF THE ACTION BY THE SECRETARY OF THE NAVY IN "DETACHING THE DEFENDANT ON SPECIAL DUTY IN FRANCE, OF FURNISHING HIM WITH MEDICAL ATTENDANCE WHILE SO EMPLOYED.' WHILE THERE APPEARS THIS CONFUSION IN THE FACTS OF THE CASE AND THE ACTION OF THE COURT IT IS PROBABLE THE COURT WAS INFLUENCED BY ITS DETERMINATION THAT IN SOME SITUATIONS THE EMPLOYMENT OF PRIVATE PHYSICIANS WAS THE ONLY WAY IN WHICH THE DEPARTMENT COULD "PERFORM THE DUTY ASSUMED BY THE GOVERNMENT OF PROVIDING THE NECESSARY MEDICAL ATTENDANCE FOR THOSE WHO BECOME SICK OR DISABLED IN ITS SERVICE.' SEEMS TO BE THE VIEW OF THE DEPARTMENT THAT THIS IS THE LAW NOW AND HAS BEEN SINCE THE PROMULGATION OF THAT DECISION AS IT IS NOTED THAT IT IS EXTENSIVELY QUOTED IN THE NOTES APPEARING UNDER SECTION 1586, REVISED STATUTES, IN THE COMPILATION OF THE "LAWS RELATING TO THE NAVY," 1922, PAGE 902, ET. SEQ. THE VIEW OF THE ACCOUNTING OFFICERS IN THE JONES CASE WAS THAT THE STATUTE HAVING SPECIFICALLY FIXED THE PAY AND ALLOWANCES OF OFFICERS WITH THE ADDITIONAL PROVISO THAT THAT WAS "ALL THE PAY, COMPENSATION, AND ALLOWANCE THAT SHALL BE RECEIVED UNDER ANY CIRCUMSTANCES WHATEVER, BY ANY SUCH OFFICER," ANY EXPENDITURE FOR MEDICAL TREATMENT FOR SUCH OFFICERS WHILE NOT ON DUTY WAS IN THE NATURE OF AN ALLOWANCE CONTRARY TO THE PLAIN TERMS OF THE STATUTE. THE FURNISHING OR PROCURING OF MEDICAL TREATMENT FOR OFFICERS AND MEN ON DUTY HAD NEVER BEEN QUESTIONED, MEDICINES, MEDICAL AND SURGICAL SUPPLIES AND FACILITIES AND MEDICAL OFFICERS HAVING BEEN PROVIDED IN THE NAVY FROM ITS ESTABLISHMENT, FOR EXAMPLE, ACT OF APRIL 30, 1790, 1 STAT. 119; SECTION 13, ACT OF MARCH 3, 1791, ID. 222; ACT OF DECEMBER 23, 1791, ID. 228; ACT OF MARCH 27, 1794, ID. 350; ACT OF JULY 16, 1798, ID. 605; ACT OF MARCH 2, 1799, ID. 729; AND ACT OF FEBRUARY 26, 1811, 2 ID. 650. WHILE, THEREFORE, PROVISION HAS BEEN MADE FROM THE EARLIEST TIMES FOR FURNISHING IN KIND MEDICAL AND SURGICAL TREATMENT FOR OFFICERS AND ENLISTED MEN OF THE NAVY, AND THE USE OF THE FUND ESTABLISHED BY LAW FOR PROVIDING HOSPITALS AND THEIR MAINTENANCE HAS BEEN AUTHORIZED TO PROCURE CIVILIAN MEDICAL AND SURGICAL TREATMENT FOR OFFICERS AND MEN ON DUTY WHEN NO NAVAL HOSPITALS OR NAVAL MEDICAL OFFICERS ARE AVAILABLE, NO PROVISION OF LAW HAS BEEN FOUND AUTHORIZING THE USE OF THE NAVAL HOSPITAL FUND OR ANY OTHER APPROPRIATED MONEYS FOR PROCURING CIVILIAN MEDICAL AND HOSPITAL TREATMENT FOR OTHERS AND ENLISTED MEN OF THE NAVY WHO BY THEIR VOLUNTARY ACTION HAVE PLACED THEMSELVES BEYOND THE REACH OF THE PROVISION MADE FOR THEIR CARE AND TREATMENT. THE JONES CASE WAS SUCH A CASE AND THE SUPREME COURT, APPARENTLY ADOPTING THE VIEW THAT THE PROVISIONS OF LAW HEREINABOVE CITED AND OTHERS OF SIMILAR IMPORT CONTEMPLATED THE FURNISHING OF MEDICAL AND SURGICAL TREATMENT AT ALL TIMES AND WHEREVER REQUIRED TO AN OFFICER OF THE NAVY, DENIED RECOVERY FROM THE OFFICER WHERE SUCH EXPENSES HAD BEEN PAID WHILE HE WAS ON LEAVE OF ABSENCE. THIS WAS THE LAW BY VIRTUE OF JUDICIAL DECISION UNTIL JULY 15, 1870, WHEN THE CONGRESS BY SECTION 3 OF THE ACT OF THAT DATE, 16 STAT. 330, ESTABLISHED A NEW PAY SCALE FOR OFFICERS OF THE NAVY WITH VARYING RATES INDIFFERENT SITUATIONS; ONE RATE "WHEN AT SEA," ANOTHER WHEN "ON SHORE DUTY," AND A DIFFERENT RATE WHEN "ON LEAVE OR AWAITING ORDERS.' SECTION 4 OF THE ACT IT WAS PROVIDED:

THAT THE PAY PRESCRIBED IN THE NEXT PRECEDING SECTION SHALL BE THE FULL AND ENTIRE COMPENSATION OF THE SEVERAL OFFICERS THEREIN NAMED, AND NO ADDITIONAL ALLOWANCE SHALL BE MADE IN FAVOR OF ANY OF SAID OFFICERS ON ANY ACCOUNT WHATEVER, AND ALL LAWS OR PARTS OF LAWS AUTHORIZING ANY SUCH ALLOWANCE SHALL, ON THE FIRST DAY OF JULY, 1870, BE REPEALED; * * *.

THE FOREGOING PROVISION WAS CARRIED INTO THE REVISED STATUTES AS SECTION 1558. IT IS A SUBSTANTIAL ENACTMENT OF THE PROVISION IN SECTION 2 OF THE ACT OF MARCH 3, 1835, 4 STAT. 757, CONSIDERED BY THE SUPREME COURT IN THE JONES CASE. HAD IT BEEN INTENDED THAT THE DOCTRINE ANNOUNCED IN THE JONES CASE THAT OFFICERS OF THE NAVY WERE TO BE REIMBURSED THE COST OF THEIR MEDICAL AND HOSPITAL TREATMENT WHILE NOT ON DUTY SHOULD CONTINUE TO BE FOLLOWED, THE MERE REENACTMENT OF THE LAW CONSIDERED IN THE JONES CASE WOULD HAVE ACCOMPLISHED THAT PURPOSE; IT WAS THEREFORE NECESSARY THAT THE CONGRESS INDICATE CLEARLY THAT THE ALL-EMBRACING LANGUAGE OF SECTION 4 WAS INTENDED NOT ONLY GENERALLY TO FORBID ANY INCREASE OF THE STATUTORY PAY AND ALLOWANCES OF OFFICERS OF THE NAVY, BUT SPECIFICALLY TO FORBID THE PAYMENT FOR MEDICAL AND HOSPITAL TREATMENT FOR OFFICERS WHILE NOT ON DUTY, AND THIS IT DID BY SECTION 17 OF THE ACT, WHICH PROVIDED:

THAT EXPENSES INCURRED BY ANY OFFICER OF THE NAVY FOR MEDICINES AND MEDICAL ATTENDANCE SHALL NOT BE ALLOWED UNLESS THEY WERE INCURRED WHEN HE WAS ON DUTY, AND THE MEDICINES COULD NOT HAVE BEEN OBTAINED FROM NAVAL SUPPLIES, OR THE ATTENDANCE OF A NAVAL MEDICAL OFFICER COULD NOT HAVE BEEN HAD; * * *.

THIS PROVISION WAS CARRIED INTO THE REVISED STATUTES AS SECTION 1586. IS DIFFICULT TO CONCEIVE OF MORE APT LANGUAGE THAN THAT USED TO MAKE CLEAR THE DETERMINATION OF THE CONGRESS THAT THE UNITED STATES SHOULD NOT BE CHARGED WITH THE COST OF MEDICAL ATTENDANCE FOR OFFICERS NOT ON DUTY; THAT THE HYPOTHESIS OF THE SUPREME COURT IN THE JONES CASE THAT THERE WAS AN ELEMENT OF CONTRACT BETWEEN THE GOVERNMENT AND OFFICERS OF THE NAVY TO FOLLOW THE OFFICER IN HIS VOLUNTARY TRAVELS WHILE NOT ON DUTY WITH MEDICAL ATTENDANCE OR ITS EQUIVALENT, I.E., THE PAYMENT FOR SUCH SERVICES AS MIGHT BE PROCURED BY THE OFFICER, SHOULD NOT THEREAFTER BE THE BASIS OF ANY SUCH PAYMENTS; AND THAT THE AUTHORITY FOR PROCURING CIVILIAN MEDICAL ATTENTION FOR OFFICERS OF THE NAVY SHOULD THEREAFTER BE CONFINED TO OFFICERS ON DUTY.

THE PROPOSAL PRESENTED IS THAT WHEN AN OFFICER ON LEAVE OF ABSENCE BECOMES ILL, UPON REPORT TO THAT EFFECT, HIS UNEXPIRED LEAVE SHALL BE REVOKED AND "IN THE EVENT THAT THE OFFICER IS UNABLE TO TRAVEL WITHOUT SERIOUSLY ENDANGERING HIS HEALTH HE WILL NOT BE REQUIRED TO REPORT TO HIS SHIP OR OTHER STATION UNTIL SUFFICIENTLY RECOVERED FOR SUCH TRAVEL, AND DURING SUCH PERIOD HE SHALL BE CONSIDERED ON DUTY WITHIN THE MEANING OF SECTION 1586 OF THE REVISED STATUTES.' ANY OFFICER WHO, WHEN HE BECOMES ILL, IS IN A SITUATION WHERE FOR THE TIME BEING HE IS RELIEVED FROM THE PERFORMANCE OF DUTY, IS NOT ON DUTY. THAT IS THE SITUATION CONTEMPLATED BY SECTION 1586, REVISED STATUTES, AND A DETERMINATION THAT HE IS "ON DUTY WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES," IS MERELY A DETERMINATION THAT A CASE CLEARLY AND POSITIVELY WITHIN THE LAW SHALL BE TREATED AS THOUGH IT WERE NOT WITHIN THE LAW. IN THE VIEW OF THIS OFFICE, THAT IS NOT CONSTRUCTION OR INTERPRETATION OF THE LAW BUT A NULLIFICATION OF THE LAW. THIS OFFICE CAN NOT, THEREFORE, IN THE SETTLEMENT OF ACCOUNTS, ADOPT THE VIEW THAT AN OFFICER NOT IN FACT ON DUTY IS ON DUTY WITHIN THE MEANING OF SECTION 1586, REVISED STATUTES.