Evening star., 1925-11-02
M'CARl REBUKED
AS 'AUTOCRAT' BY
COURT IN PAY ROW
Appellate Branch UphoIds
Ban on Withholding Navy
Officers Money.
CONGRESS NEVER GAVE
RIGHT, JUDGES ASSERT
Wisdom of Lawmakers Shown by
Arbitrary Acts of Controller,
Robb Says.

There cannot be such an autocrat
No such power has been conferred
by Congress upon any official and is
entirely inconsistent with our theory
Of government. 1t may be added that
the persistence with which the au
thority TO exercise such arbitrary
power has been urged, in the circum
stances. clearly demonstrates the wis
dom of Congress in not comforting It.
Justice Charles H Robb. delivering
the opinion of the District Court ui
Appeals today, so rebukes j. Raymond
MCCarl. Controller General of the
United States, for his continued as
sumption of the right to withhold pay
Of naval officers to reimburse the
United States for disputed items OF
overpayments for dependents.
The opinion was rendered In the
case of Lieut.. Comdr. John +. Cox
L. :. Navy. and affirms the action oi
Justice Adolph \. HOehl!ng of the
District Supreme Court. who granted
an injunction against McCarl to pre-
vent the Withholding of 20 per cent ui
the naval offiHer's salary. Justice
Hoehling held that as Congress had
appropriated the salary of the officer
Il could not be checked against" for
any claim of the United States against
the officer. Nearly 100 similar cases
are pending in the lower court.
Wilbur Co-defendant.
Curtis ID. Wilbur, Secretary of the
Navy. was co.defendant with McCarl.
but in his answer to the petition for
injunction declared he did not agree
with the position taken by McCarl,
but had issued the order to withhold
Il portion of the salary of the officer
when McCarl had threatened to pay
no salary until the disallowed claims
had been liquidated.
In the course of his opinion Justice
Robb says: 1T would require very
specific provision to convince us that
Congress intended to clothe an ac-
counting officer with power to with
hold in whole or in part the salary
of an officer of the Navy, appropriated
for by it, as a set-off against a sum
found by that accounting officer to
be due the Government because or
alleged overpaymentS in allowances
regularly made to and received by
that officer in good faith. The eXer-
else of such arbitrary power might
affect and seriously impair the eff
cheney of this branch of The national
defense Indeed it Is not in dispute
similar cases now pending. Naval
officers are required to go to the Tar
ends of the earth and may depend
upon the salary attached to their Of
tice for support of families left be.
hind"
Supreme Court Case Cited.
The justice reviews decisions of
other courts involving the precise
!
the contention of McCarl in two Dis
trict Courts of the United States and
the Circuit Court of Appeals for the
Second Circuit, which are fully sup
ported, he points out, by the ruling
of the United States Supreme Court
in Smith VS.. Jackson GA L. s., 388),
and SAYS: I'VE are fully in accord
with the rulings of other courts.
The controller general does not
even contend that his decision Is final,
hut he does maintain that he may,
upun his own eX parte finding OF In
debtedness, convert into the Treasury
n salary regularly appropriated for
and compel the officer involved to
await the outcome of n suit in the
Court of Claims, while his family
may be without means of support. 1t
Is obvious that to require an officer
iu sue the United States in such cir
Cumstances would impose upon him
the burden of proving a negative, or
that he was not indebted to the
United States. instead of compelling
the Government to assume the bur
den rightfully upon it of establishing
lis contentious by affirmative proof.
I'VE, therefore, rule that the sal.
ary Of Comdr. Cox. having been regu-
larly appropriated for. it was the
plain ministerial duty of the account
Ing officers TO pay that salary with.
out deductions, and that the decree
below was right and is affirmed"
While losing the case involving the
retention of pay of naval officers, Nc
Carl won two other cases before the
Court of Appeals today.
Justice Robb. who rendered the de-
Cision against him in the naval officers
case. upheld him in the suit of the
skinner & Eddy Co of the State Of
Washington. which sought to compel
him to take jurisdiction of claim
against the United States Shipping
Board Emergency Fleet Corporation
for the building of ships by the COM
pany during the war.
Wins Another Case.
Justice Van Orsdel also sustained
the controller general in settinC-off a
claim of the Carroll Electric Co. a
corpora ton, for S4052.30 against the
United States for reimbursement for
money due it by IA co-rartnership also
known as the Carroll Electric Co.
In the Skinner & Eddy case Justice
Fobb held that as long as court of
Of Washington had taken jurisdiction
of the claim Mr.. McCarl was correct
in refusing TO consider it before the de-
cision of the court.