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Retired Pay of Surgeon-General Finley.

of July 5, 1838, (5 Stat., 259,) that officers of the Medical Department should receive the pay and emoluments of officers of cavalry, of the same grades, respectively, according to which they were then paid by the then existing laws.

Now, it would seem that the design of the provision above quoted from the 8th section of the act of February 11, 1847, was merely to give those officers of the Medical Department, whose compensation was determined by reference to the pay and emoluments of line-officers of the cavalry, as before men tioned, the rank of the latter officers. It could not have been intended to embrace the Surgeon-General, as his compensation was not established with reference to, or based upon, the pay and emoluments of any specified rank in the line of the Army, but appears to have been fixed irrespective thereof. Indeed, from the time of the creation of the office of SurgeonGeneral, in 1818, down to the date of the retirement of Surgeon-General Finley, the rank of that office does not seem to have even been fixed or regulated by statute; I mean relatively to lineal rank in the Army.

In the Army Regulations of 1821 the Surgeon-General is not regarded as an officer clothed with rank assimilated to that of the line, (see art. 2, par. 5, p. 14;) so also in the regulations of 1825, (see art. 2, par. 7, p. 14.) However, by the Army Regulations of 1835, he, along with two other staff. officers" without military rank," is classed as a colonel, (see art. 2, p. 2;) and by the Army Regulations of 1841 he is likewise classed as a colonel, (see art. 2, par. 5, p. 2.) The subsequent regulations, down to 1861, do not in express terms preserve this classification; but the Army Register for the same period, in the list of officers of the Medical Department, mentioned the "Surgeon-General with the rank of colonel."

Yet, in the absence of some legislative provision establishing, or at least recognizing, the rank of the Surgeon-General, within the period referred to, as that of a colonel, (and I am not aware of any such provision,) I do not regard the simple fact that he has been so classed in the Army Regulations as warranting the conclusion that, in contemplation of the 16th section of the act of August 3, 1861, supra, he is to be considered as an officer holding that rank. For the grade or

Retired Pay of Surgeon-General Finley.

rank of officers in the Army is determined by statute and not by executive regulations, and hence, from a legal point of view, they must be deemed to be clothed with such rank, and such only, as Congress has attached to their offices respectively.

Thus, during the period mentioned, the Surgeon-General cannot properly be said to have held the rank of colonel, or, indeed, any other rank, except that which, as chief of the Medical Department, appertained to the office itself, and which is to be regarded as superior to that of the other officers in the same Department. His rank was sui generis; it was, so to speak, that of the Surgeon-General alone.

From the foregoing it is evident that no authority exists for restricting the retired compensation of Surgeon-General Finley to the pay proper of a colonel of cavalry and four rations per day; he not having held that rank in contemplation of law at the time of his retirement.

The provision in the act of August 3, 1861, under which only is his compensation allowable, gives the retired officer "the pay proper of the highest rank held by him at the time of his retirement, &c., and four rations per day," &c. Here it is obvious that Congress acted upon the supposition that the compensation of all officers of the Army consisted of what is termed "pay proper," and certain emoluments besides, such as commutation for service rations, &c., and the limitation of "four rations per day" was manifestly designed to operate in diminution of these emoluments. But, as has been already shown, the compensation of the Surgeon-General consisted of a stated salary, which may be denominated his pay proper, without any emoluments of the kind referred to, and the highest rank held by him is indicated only by the title of his office. Under these circumstances the compensation to which he would become entitled on retirement would seem to be the salary which he had previously received, that being the pay proper of the highest rank held by him, but not in addition thereto the four rations per day; as to allow these also would be inconsistent with the plain purpose of the provision in which they are named.

I understand that from the date of his retirement in April, 1862, up to the present time, Surgeon-General Finley has

Limitations under Internal-Revenue Laws.

been allowed the annual salary which he received before he was retired, without the four rations. In my opinion that is the retired pay to which he is legally entitled under the act of August 3, 1861.

I return herewith the papers which accompanied your let

ter.

I am, sir, with great respect, your obedient servant,
GEO. H. WILLIAMS.

Hon. WM. W. BELKNAP,

Secretary of War.

LIMITATIONS UNDER INTERNAL-REVENUE LAWS.

The various statutes passed by Congress, applicable to civil and criminal proceedings under the internal-revenue laws, reviewed, and the following result reached :

1. That the 3d section of the act of March 26, 1804, chap. 40, furnishes the law of limitation as to all criminal proceedings under the internalrevenue acts, the period within which such proceedings must be commenced being five years.

2. That the same section perhaps, or, if not, then certainly the 4th section of the act of February 28, 1839, chap. 36, furnishes the law of limitation as to all proceedings for the recovery of fines, penalties, and forfeitures under the internal-revenue acts-the period being the same under either section, namely, five years.

DEPARTMENT OF JUSTICE,
August 3, 1872.

SIR: In answer to your inquiry as to the limitations upon proceedings, civil or criminal, under the internal revenue laws, I have to say that

By the 32d section of the crimes' act of April 30, 1790, (1 Stat., 119,) it is declared that no person shall be prosecuted, tried, or punished for any offense, not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offense or incurring the fine or forfeiture aforesaid, with a proviso that nothing therein contained shall extend to any person or persons fleeing from justice.

That provision, however, was subsequently restricted in its operation by the 89th section of the act of March 2, 1799, for

imitations under Internal-Revenue Laws.

the collection of duties on imports and tonnage, (1 Stat., 696,) which provided that "no action or prosecution shall be maintained in any case under this act unless the same shall have been commenced within three years next after the penalty or forfeiture was incurred;" the effect of the latter enactment being to except from the two years' limitation of the act of 1790 all prosecutions or suits for offenses, fines, forfeitures, or penalties under the duty collection act of 1799, and to make such prosecutions or suits subject to a limitation of three years.

The 3d section of the act of March 26, 1804, (2 Stat., 290,) next declares "that any person or persons guilty of any crime arising under the revenue-laws of the United States, or incurring any fine or forfeiture by breaches of the said laws, may be prosecuted, tried, and punished, provided the indictment or information be found at any time within five years after committing the offense or incurring the forfeiture, any law or provision to the contrary notwithstanding."

This section, as it would seem, repealed by implication the three years' limitation contained in the act of 1799. Afterward, by the 4th section of the act of February 28, 1839, (5 Stat., 322,) it was enacted "that no suit or prosecution shall be maintained for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, unless the same suit or prosecution shall be commenced within five years from the time when the penalty or forfeiture accrued: Provided, The person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the United States, so that the proper process may be instituted and served against such person or property therefor."

Lastly, it appears that the 14th section of the act of of March 3, 1863, (12 Stat., 741,) has repealed so much of the 89th section of the act of March 2, 1799, above cited, and so much of the 3d section of the act of March 26, 1804, also cited above, “as impose any limitation upon the commencement of any action or proceeding for the recovery of any fine, penalty, or forfeiture, incurred by reason of the violation of any law of the United States relating to the importation or entry of goods, wares, or merchandise."

Limitations under Internal-Revenue Laws.

Here it will be observed that while the act of 1863 repeals specifically so much of the 3d section of the act of 1804 as imposes a limitation upon suits for the recovery of fines, penalties, or forfeitures, under the impost laws, it leaves in full force the 4th section of the act of February 28, 1839, cited above, which provides a limitation applicable to such suits, and likewise so much of the 3d section of the act of 1804 as prescribes a limitation for the prosecution of crimes arising under the revenue-laws.

Now there can be no doubt that the provisions of the 3d section of the act of 1801 extend to prosecutions and suits under the internal-revenue laws, as well as to those under the customs or impost-laws, and it would seem that the repealing act of 1863, so far as it applies to that section, operates only upon the limitation concerning the proceedings for the recovery of fines, penalties, and forfeitures incurred under the latter laws, and not upon the limitation as it respects similar proceedings under the former laws.

But be that as it may, it is very clear that the provisions of the act of 1839 are sufficiently comprehensive to embrace all such proceedings, whether under the impost or the internal-revenue laws. Accordingly, in regard to the commencement of prosecutions and suits under the internal revenue acts, the following statutes appear to furnish the law of limitation :

1. The 3d section of the act of 1804, as to all criminal proceedings, the limitation being five years.

2. The same section, perhaps, or if not, then certainly the 4th section of the act of 1839, as to all proceedings for the recovery of fines, penalties, and forfeitures, the limitation being the same under either section, namely, five years.

In connection with this subject the following cases may be appropriately mentioned: United States vs. Maillard, (13 Int. Rev. Rec., 27;) In the matter of Adolf Landsberg, (11 ibid., 150;) United States vs. Wright, (11 ibid., 35;) United States vs. Shory, (9 ibid., 202.)

Very respectfully, your obedient servant,

Hon. Wм. W. BELKNAP,
Secretary of War.

GEO. H. WILLIAMS.

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