Navy Regulations-Settlement of Naval Accounts. fere be advisable to consider what might be the decision were they properly before me. Very respectfully, your obedient servant, Hon. ALEXANDER RAMSEY, Secretary of War. CHAS. DEVENS. NAVY REGULATIONS-SETTLEMENT OF NAVAL ACCOUNTS. The regulations of the Navy concerning payments to administrators of balances due deceased seamen and marines, payments of arrearages claimed under wills, the wills of persons in actual service and the attestation of the same, &c., are not applicable to or binding upon the accounting officers of the Treasury Department in the settlement of naval accounts. They extend to and govern only those persons who are in the naval service. Paragraphs 9, 12, and 13 of the Navy Regulations of 1876 (page 114) commented on and construed. DEPARTMENT OF JUSTICE, May 21, 1880. SIR: Your letter of April 9 last submits to me the following question: "Are the Navy Regulations (paragraphs 9, 12, and 13, page 114 of the edition of the Regulations of 1876) on the subject of payments to administrators, and under wills, applicable to and binding upon the accounting officers of the Treasury Department in the settlement of naval accounts?" You inclose a communication from the Fourth Auditor and a copy of a decision of the Second Comptroller upon the subject. In regard to the question proposed, it is evident that the fundamental inquiry is whether or not the Navy Regulations have the force of law in the larger sense, or whether they have only the force of law so far as to bind those who are subject to them. Section 1547 Revised Statutes provides that the regulations "issued by the Secretary of the Navy prior to July 14, 1862, with such alterations as he may since have adopted, with the approval of the President, shall be recognized as the regula tions of the Navy, subject to alterations adopted in the same manner." Navy Regulations-Settlement of Naval Accounts. The regulations as they at present exist are those of 1876, and the Secretary of the Navy, in adopting them, says they are "established with the approval of the President of the United States for the government of all persons attached to the naval service"; and in adopting certain supplementary regulations of the date of November 1, 1878, you have declared them to be "published for the government of commanding, pay, and all other officers of the Navy." It seems to me that these two statements accurately indicate the objects and the limits of the naval regulations, which are for the government of the persons attached to the naval service in the conduct of their several duties, and the violation of which would subject such persons to official rebuke. It would be going too far to hold that because the Secretary of the Navy, with the approval of the President, has a quasi legislative power in prescribing the mode in which the subordinates of the Naval Department should perform their duties, and the rules by which they should be governed, he could also prescribe a rule which would control the action of the accounting officers upon the same subject. There has been a constant care on the part of the Navy Department to protect the effects of its deceased officers and seamen from anything like spoliation. In the regulations of 1818, the disposition of the effects of one who had deceased is provided for, and the amount received is to be carried to the credit of the deceased for the benefit of his legal representatives. The same regulations provide: "No purser shall pay over any balance of wages to an administrator or executor, without first obtaining an order from the Secretary of the Navy." The regulations of 1832 (commonly known as the "redbook") provide: "No payment of balances due deceased persons will be made but to heirs who are also administrators; to administrators with the consent of the heirs; or to creditors to the amount of their claims. Sailors and marines of the United States are paid without reference to any regulations of State laws or tribunals." It must be deemed that the rules thus prescribed are for the government of those persons in the Navy whom they may immediately affect. They cannot limit or alter the Navy Regulations-Settlement of Naval Accounts. rights of others who are not amenable to them. In the regulations for the Army as they existed in 1825 (Art. 71, sections 11 and 12) it is declared that "paymasters are not authorized to settle with the heirs or administrators of deceased officers or soldiers"; and the reason therefor is given by the supplementary words of the regulation-"it being properly the duty of the accounting officers of the Treasury Department." The character of all the regulations in question indicates that they were not intended to affect any persons except those subject to the orders of the Secretary of the Navy. Unless they are thus construed, it would seem that a power to legislate was assumed independently of the Federal and State laws. For the purpose of protecting the rights of the heirs and relatives of deceased seamen, the regulations of the Navy may well require that if the disbursing officer pays the money to an administrator he shall establish facts additional to those which he would ordinarily be required to do. To examine the regulations immediately inquired of. "Payment of balances due deceased seamen and marines will be made to administrators who are heirs, or appointed with the consent of a majority of the heirs." If this were to be construed as meaning that no other pay. ment should be made than to such administrator as therein described, important rights would be altered and changed. Its proper construction is that the paymaster is only authorized to pay the administrator under the circumstances stated in the regulation. The twelfth regulation, in its first clause, provides only that where there are minor heirs guardians should be appointed. It then goes on to provide: "Payment of arrearages, claimed under a will, will only be made after satisfactory proof of the will is adduced to the accounting officers." But this must be interpreted as a direction to disbursing officers of the Navy not to pay to an executor under a will until the accounting officers have been satisfied of the exist ence of the will. The thirteenth regulation is as follows: "Wills of persons in actual service must in all cases, when Navy Regulations-Settlement of Naval Accounts. possible, be in writing, and attested by an officer. A nuncupative will must be reduced to writing immediately, and be attested by at least two officers. The executor will be required to produce the original will, or a copy duly authenticated. Arrears found to be due shall be paid in all cases to the proper parties interested in preference to attorneys." It will be seen that this regulation contains certain proper provisions for accuracy in wills, for the establishment of nuncupative wills, and their attestation, &c.; but all of them contemplate that they are to be observed by those only to whom the regulations apply. There is nothing to suggest any intention to alter the general law upon the subjects to which the regulation relates. While in general terms it is often said that the Army and Navy regulations have the force and effect of law, this can only be properly so where we are dealing with a person or subject-matter over which the Secretary has official control. In Gratiot v. United States (4 How., 117) there is an expression similar to that I have suggested, used by Mr. Justice Wayne; but he is dealing with the case of General Gratiot, an officer clearly subject to the Army regulations. Nor do I understand that it can be said that the fact that Congress has adopted the regulations gives them the force of law in the general sense. It gives them the force of law only so far as they assume to control those to whom the regulations were applicable. Were it otherwise, it would be necessary to hold that inasmuch as the Secretary, with the authority of the President, has a right to alter these regulations, Congress has parted with its legislative power so far as the Navy is concerned and has conferred it upon the Secretary of the Navy. That which it has conferred upon the Secretary of the Navy is not any portion of its general power of legislation, but only the right to make appropriate regulations for the performance of their duties by those whom Congress has placed under his official control. Among the authorities cited in Mr. Beardsley's letter (which I have read with care) is an opinion of Attorney-General Berrien (2 Opin., 209). I find certain expressions in that opinion which would seem to militate against the view I have suggested. The claim was as follows: William Tharp, who had Navy Regulations-Settlement of Naval Accounts. been a sutler in the Army, and an administrator of the estates of certain deceased soldiers, procured a law to be passed by which the accounting officers were authorized to settle with him upon the same principles of equity and justice which were extended to sutlers under the then existing Army regulations, with a proviso "that no larger sums shall, in any case, be awarded to said Tharp, on account of his claims against a deceased or deserted soldier, either as principal or interest, than appears from the muster and pay rolls to have been actually and justly due to such non-commissioned officer and soldier from the United States." Tharp sought to obtain the benefit of this law, and he further sought, by virtue of the fact that he was administrator of certain deceased soldiers, to obtain sums larger than were due him as their creditor. The only point actually decided by Attorney-General Berrien was that Tharp was entitled, under the statutes as they then stood, to be settled with, not as administrator, but as creditor of the deceased soldier, and to have his accounts examined by the accounting officers of the Treasury, and to be paid the amounts respectively ascertained to be due, if the balance due the soldier in each case should be adequate. There is no occasion to question this decision; but it is undoubtedly true that Attorney-General Berrien uses some language in the course of it from which it may be inferred that his impression was that the rights of the administrator were controlled by the regulations of the Army. But it will be observed that his attention was not called to the inquiry whether the regulations could affect persons who were not in the Army, and who were either officers of Departments other than that which passed the regulations or were citizens simply. The question, therefore, that we have here discussed was obviously not presented to his mind nor passed upon by him. In direct answer to your inquiry, I am of opinion that the Navy regulations on the subject of payments to administrators and under wills are to be construed as binding only upon the officers and seamen of the Navy, that they are not applicable to nor binding upon the accounting officers of the Treasury Department in the settlement of naval accounts, |