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1634. That said certificate shall set forth the condition of Contents of cersuch officer's or agent's property returns, that it includes Sec. 2, ibid. all charges made up to its date and not previously certified, that he has had a reasonable opportunity to be heard and has not been relieved of responsibility; the effect of such certificate, when received, shall be the same as if the facts therein set forth had been ascertained by the accounting officers of the Treasury Department in accounting. Sec.

2, ibid.

Methods of making returns,

1635. That the manner of making property returns to or in any administrative bureau or department, or of ascer- etc., not affected.

Sec. 3, ihid. taining liability for property, under existing laws and regulations, shall not be affected by this act, except as provided in section one; but in all cases arising as to such property so intrusted the officer or agent shall have an opportunity to relieve himself from liability.' Sec. 3, ibid.

1636. The heads of the several Departments are hereby Regulations by empowered to make and enforce regulations to carry out ments. the provisions of this act. All laws or parts of laws inconsistent with the provisions of this act are hereby repealed. Secs. 5 and 6, ibid.

Par.

DEFICIENCY IN, AND DAMAGE TO, PUBLIC PROPERTY.

Par. 1637. Deficiencies.

1639. Administration of oaths. 1638. Damage to arms, etc.

1640. Accounts of company commanders. 1637. In case of deficiency of any article of military Deficiencies. supplies, on final settlements of the accounts of any officer 74,8 3,184, Pi174. chargrd with the issue of the same, the value thereof shall

papers into cash accounts tending to sho what disposition been made of the property. Such evidence may well be excluded from the cash accounts, and the responsibility for determining questions relating to property accountability be left where it belongs, where the law has placed it. II Compt. Dec., 264, 267, 268; IV ibid., 422.

In the case of Isaac W. Patrick, Indian agent at the Great Nemaha Agency, upon a suit to recover on his bond for public property alleged to have been unaccounted for, such failure to account having been shown to be due to clerical errors, it was held by the circuit court of appeals for the Eighth circuit, in March, 1896, that “a Government agent is not to be held liable for property still in the possession of the agency and which has never been lost, merely because a careless clerk, appointed by the Government itself to keep the accounts of the agent, has omitted it from the return which he is required to make.” U. S. 1. Patrick (73 Fed. Rep., 800).

The failure of an Indian agent, through clerical errors, to include in his accounts property which, in fact, remains at the agency, and which is not lost to the Government, does not entitle the United States to recover the value thereof in a suit on his bond; and he may show these facts in defense. The technical failure to account would authorize a recovery of no more than nominal damages. Ibid.

Section 12 of the act of July 31, 1894 (28 Stat. L., 208), requiring certain quarterly accounts to be rendered within twenty days after the expiration of the quarter to which they relate, has no application to property returns, the rendition of which is regulated by the act of March 29, 1894. III ibid., 422.

For regulations prepared and promulgated by the Secretary of War in execution of the above enactment, see paragraphs 739–807, Army Regulations of 1901.

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Damage arms.

Administration of oaths in accounting.

Mar. 3, 1865, c.

be charged against the delinquent and deducted from his
monthly pay, unless he shall show to the satisfaction of the
Secretary of War, by one or more depositions setting forth
the circumstances of the case, that said deficiency was not
occasioned by any fault on his part. And in case of damage
to any military supplies, the value of such damage shall be
charged against such officer and deducted from his monthly
pay, unless he shall, in like manner, show that such damage
was not occasioned by any fault on his part.'

1638. The cost of repairs or damages done to arms, equipFeb. 8, 1815; ments, or implements shall be deducted from the pay of Sec. 1303, R.S. an officer or soldier in whose care or use the same were

when such damages occurred, if said damages were occa-
sioned by the abuse or negligence of said officer or soldier.

1639. The Secretary of War is authorized to detail one

or more of the employees of the War Department for 28; s. 25, v. 13, p. the purpose of administering the oaths required by law in Sec. 225, R. S. the settlement of officers' accounts for clothing, camp and

garrison equipage, quartermaster's stores, and ordnance,
which oaths shall be administered without expense to the
parties taking them.

1640. In settling the accounts of the commanding offi-
cer of a company for clothing and other military supplies,

the affidavit of any such officer may be received to show Sec. 225, R. S.

the loss of vouchers or company books, or any matter or
circumstance tending to prove that any apparent deficiency
was occasioned by unavoidable accident or lost in actual
service, without any fault on his part, or that the whole or
any part of such clothing and supplies had been properly
and legally used and appropriated; and such affidavit may
be considered as evidence to establish the facts set forth,
with or without other evidence, as may seem to the Secre-
tary of War just and proper under the circumstances of
the case.

Accounts of company com manders.

Feb. 27, 1877, v. 19, p. 241.

See paragraph 697, Army Regulations of 1895. 2 Causes of damage to, and of loss and destruction of, military property are classified as follows:

(1) Unavoidable causes, being those over which the responsible officers have no control, occurring (a) in the ordinary course of service, or (b) as incident to an active campaign.

(2) Avoidable causes, being those due to carelessness, willfulness, or neglect. Par. 763, A. R., 1901.

Officers responsible for property will be charged for any damage to, or loss or destruction of the same, and the money value deducted from their monthly pay, unless they show, to the satisfaction of the Secretary of War, by their own affidavits or certificates or by one or more depositions, that the damage, loss, or destruction was occasioned by unavoidable causes, and without fault or neglect on their part. Par. 764, ibid.

The proper officers to administer oaths in the administration of the affairs of the

DISPOSITION OF DAMAGED OR UNSUITABLE PROPERTY.

1641. The President may cause to be sold any military Mar 3, 18:23, s. stores which, upon proper inspection or survey, appear to 93. 194. 1, 2, v. 4, be damaged, or unsuitable for the public service. Such Soc. 1241, R.S. inspection or survey shall be made by officers designated by the Secretary of War, and the sales shall be made under regulations prescribed by him.'

Army (except when otherwise specially provided) are judge-advocates of departments, judge-advocates of courts-martial, and trial officers of summary courts, and, in the cases of boards of survey, the recorder, or, if there be no recorder, the president thereof. When none of these arn within reach and available, recourse must be had to a notary public or other civil officer competent to administer oaths for general purposes. Par. 765, ibid.

If an article of public property be lost or damaged by the neglect or fault of any officer or soldier, he shall pay the value thereof, or the cost of repairs, at such rates as a board of survey may determine. Par. 766, ibid.

The amount charged against an enlisted man on the musterand pay rolls on account of loss or damage of or repairs to Government property shall not exceed the value of the article or cost of repairs; and such charge will only be made on conclusive proof, and never without an inquiry, if the soldier demand it. He will be informed at the time of signing the pay rolls that his signature will be regarded as an acknowledgment of the justice of the charge. Par. 767, ibid.

When a deserter carries away, public property, or when such property is lost through his desertion, its value will be determined by a board of survey and charged against him on the next muster and pay rolls. Par. 768, ibid.

If articles of public property are embezzled, or lost or damaged through neglect, by a civilian employee, the value or damage as ascertained (and by a board of survey if necessary) shall be charged to him and set against any pay or money due him. Par. 769, ibid.

For provisions respecting boards of survey, see paragraphs 790-807, ibid.

The word “unsuitable, as used in sec. 1241, Rev. Sts., evidently refers to some unfitness for use other than that caused by being “damaged.” Uniform clothing, for instance, of sizes that could not be used would be unsuitable. But held that the meaning of the word could not properly be restricted to things of a quality inferior to that which is required for the service. A thing may be unsuitable by reason of its being of such superior quality as not to be adaptable for the purpose for which it was intended. And held that military stores can not properly be deemed unsuitable under this statute for the sole reason that they are in excess of the quantity required for use. Dig. Opin. J. A. G., par. 2279.

For other statutes authorizing the sale of obsolete and unsuitable property, see the chapters entitled THE ORDNANCE DEPARTMENT and The Public LANDS.

For provisions respecting the disposition of funds arising from the sale of public property or stores, see the chapters entitled The PUBLIC MONEYS, THE STAFF DEPARTMENTS, and THE ORDNANCE AND SUBSISTENCE DEPARTMENTS.

Unserviceable public property can only be disposed of by sale according to the provisions of sections 1241, 3618, Revised Statutes. It can not be exchanged for other property not belonging to the United States. Thus, held that an old and useless printing press, the property of the United States, could not be disposed of by exchanging it for certain new property belonging to a regiment. Ibid., par. 2103.

Held that, in the absence of specific authority from Congress, the Secretary of War would not be empowered to sell to a State, for the use of its militia, an amount of clothing in excess of the State's quota as already appropriated. And held that, without such authority, he would not be empowered to exchange Government property for property owned or possessed by a State; thus, that he could not legally deliver to the State of Pennsylvania certain arms, the property of the United States, in exchange for arms formerly issued to the State for the use of its militia, and in which the State had a qualified property. Ibid., par. 2104.

Held that under section 1241, Revised Statutes, unserviceable tools and materials, which had been in use at a national cemetery, could not legally be ordered to be sold upon the mere inspection and report of their unserviceableness made by the superintendent of the ceinetery, but that, as required in the section, there must be

OFFENSES AGAINST PUBLIC PROPERTY.

Par.

1642. Embezzlement, stealing, etc.
1643. Receiving stolen property.
1644. Wrongful conversion.
1645. Robbery, larceny, etc.

Par.
1646. Sale, barter, exchange, etc.
1647. Losing, spoiling arms, etc.
1648. Selling ammunition.
1649. Selling, losing, horse, arms, etc.

Embezzling, stealing, etc., from United

3, . 18, p. 479.

1642. Any person who shall embezzle, steal, or purloin states deemed any money, property, record, voucher, or valuable thing felony: penalty. whatever, of the moneys, goods, chattels, records, or

property of the United States, shall be deemed guilty of
felony, and on conviction thereof before the district or
circuit court of the United States in the district wherein
-aid offense may have been committed, or into which he
shall carry or have in possession of said property so
embezzled, stolen, or purloined, shall be punished therefor
by imprisonment at hard labor in the penitentiary not
exceeding five years, or by a fine not exceeding five thou-
sand dollars, or both, at the discretion of the court before
which he shall be convicted. Act of March 3, 1875 (18

Stat. L., 479).
Knowingly re- 1643. If any person shall receive, conceal, or aid in con-
ing, etc., stolen, cealing, or have, or retain in his possession with intent

United to convert to his own use or gain, any money, property,
States; penalty.

l'ecord, voucher, or valuable thing whatever, of the
moneys, goods, chattels, records, or property of the United
States, which has theretofore been embezzled, stolen, or
purloined from the United States by any other person,

ceiving, conceal

the

Sec. 2, ibid.

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first an inspection “by an officer (i. e., commissioned officer) designated by the Secretary of War.” Ibid., par. 2281.

In view of the general authority vested in the President and Secretary of War by the provision, in regard to the sale of military stores damaged or unsuitable for the public service, of the act of March 3, 1825 (now contained in section 1241, Revised Statutes), held that such stores might legally be sold on credit, if such mode of disposition was deemed for the public interest. Ibid., par. 2277.

Held that an officer of the Army, duly charged with the duty of making a sale of damaged, etc., medical supplies under the authority of section 1241, Revised Statutes (by which the President is empowered to order such sales in certain cases), could not lawfully be required to take out and pay for a license as a merchant under the laws of the State in which the sale was to be made. Such a requirement would be a restriction upon the regular and legal execution of the powers of the General Gov. ernment, and therefore beyond the authority of a State. Ibid., par. 2278.

Held that a noncommissioned officer, who acted as auctioneer at a public sale of condemned quartermaster stores, could not legally be paid, out of the proceeds of the sale, a commission of ten per cent, or any other commission or compensation, for his services as auctioneer. The pay and allowances of all enlisted men are fixed by law, and, in the absence of any authority in the statute providing for such sales or other statutory provision, such a compensation must necessarily be without legal sanction. But held that a civilian employee hired by the Quartermaster's Department, under the provision for "hire of teamsters and other employees" in the appropriation for “transportation of the Army and its supplies," whose pay is not fixed by law or regulations,” may legally be paid for services as an auctioneer at a public sale of condemned quartermaster property. Ibid., par. 2284.

wrongful con:

knowing the same to have been so embezzled, stolen, or purloined, such person shall, on conviction before the circuit or district court of the United States in the district wherein he may have such property, be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor in the penitentiary not exceeding five years, one or both, at the discretion of the court before which he shall be convicted; and such receiver may be tried either May be tried before or after the conviction of the principal felon, but conviction of if the party has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against such receiver that the property of the United States therein described has been embezzled, stolen, or purloined. Sec. 2, ibid.

1644. And any officer connected with, or employed in, Embezzlement, the internal-revenue service of the United States, and any version.

Feb. 1879, v. 20, assistant of such officer, who shall embezzle or wrongfully p. 280.

Sec. 5497, R.S. convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment, or under color or claim of authority as such officer or assistant, whether the same shall be the money or property of the United States or of some other person or party, shall, where the offense is not otherwise punishable by some statute of the United States, be punished by a fine equal to the value of the money and property thus embezzled or converted, or by imprisonment not less than three months nor more than ten years, or by both such fine and imprisonment." Act of February 3, 1879 (20 Stat. L., 280).

1645. Every person who robs another of any kind or Robbery or lar description of personal property belonging to the United proper states the States, or feloniously takes and carries away the same, 193, ana, p. 339 shall be punished by a fine of not more than five thousand Sec. 5466, R.s. dollars, or by imprisonment at hard labor not less than one nor more than ten years, or by both such fine and imprisonment. 1646. The clothes, arms, military outfits, and accouter-Sale, barter,

, ments furnished by the United States to any soldier shall arms, etc. not be sold, bartered, exchanged, pledged, loaned, or given away; and no person, not a soldier or duly authorized officer of the United States, who has possession of any such clothes, arms, military outfits, or accouterments so fur

Sec. 3748, R.S.

1 For embezzlement and other offenses against the public property, see the 60th Article of War and the title Disbursing officers in the Chapter entitled THE STAFF DEPARTMENTS.

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