A-10026, AUGUST 15, 1925, 5 COMP. GEN. 116

A-10026: Aug 15, 1925

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YOU STATE THAT IT IS NOT BELIEVED THAT THE ACT OF MAY 10. ALTHOUGH ITS PROVISIONS HAVE NOT BEEN REPEALED. SUPERSEDED SAID ACT SO FAR AS THE CLASSES OF EMPLOYEES NAMED IN THE 1916 PROVISION ARE CONCERNED. IT IS STILL IN FULL FORCE AND EFFECT. THAT SO FAR AS EMPLOYEES OF THE CLASSES NAMED IN THE PROVISION IN QUESTION ARE CONCERNED THEY MAY NOT BE PAID PER DIEM ALLOWANCES IN EXCESS OF THOSE AUTHORIZED BY SAID PROVISION. IT IS NOTED. STATES THAT * * * IN INTERPRETING STATUTES THE WORD MAY SHOULD BE CONSTRUED AS EQUIVALENT TO SHALL OR MUST IN CASES WHERE THE SENSE OF THE ENTIRE ENACTMENT REQUIRES IT * * * OR WHERE IT IS NECESSARY IN ORDER TO CARRY OUT THE INTENTION OF THE LEGISLATURE * * * OR WHERE IT IS NECESSARY FOR THE PRESERVATION OR ENFORCEMENT OF THE RIGHTS AND INTERESTS OF THE PUBLIC OR THIRD PERSONS * * * BUT NOT FOR THE PURPOSE OF CREATING OR DETERMINING THE CHARACTER OF RIGHTS * * *.

A-10026, AUGUST 15, 1925, 5 COMP. GEN. 116

SUBSISTENCE - PER DIEM IN LIEU OF AND ACTUAL EXPENSE BASIS THE ACT OF MAY 10, 1916, 39 STAT. 87, AUTHORIZING $4 AND $3 PER DIEM RATES IN LIEU OF SUBSISTENCE TO CERTAIN CLASSES OF EMPLOYEES OF THE INTERNAL REVENUE SERVICE, SUPERSEDES AS TO THOSE CLASSES THE ACT OF AUGUST 1, 1914, 38 STAT. 680, BUT DOES NOT PROHIBIT REIMBURSEMENT FOR SUBSISTENCE EXPENSES INCURRED IN AN AUTHORIZED TRAVEL STATUS ON AN ACTUAL EXPENSE BASIS NOT IN EXCESS OF $5 PER DAY UNDER THE ACT OF APRIL 6, 1914, 38 STAT. 318.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, AUGUST 15, 1925:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 9, 1925, REQUESTING DECISION OF THE QUESTION WHETHER YOUR DEPARTMENT MAY PROPERLY ALLOW THE EMPLOYEES AUTHORIZED BY THE APPROPRIATION ,COLLECTING THE INTERNAL REVENUE, 1925," WHEN ENGAGED ON OFFICIAL TRAVEL, NOT TO EXCEED $5 PER DAY ACTUAL AND NECESSARY EXPENSES OF SUBSISTENCE, OR $4 PER DIEM IN LIEU THEREOF, IN ACCORDANCE WITH THE PROVISIONS OF THE ACTS OF APRIL 6, 1914, 38 STAT. 318, AND AUGUST 1, 1914, 38 STAT. 680, NOTWITHSTANDING THE PROVISIONS OF THE ACT OF MAY 10, 1916, 39 STAT. 87, WHICH PROVIDES AS OLLOWS:

HEREAFTER THE COMMISSIONER OF INTERNAL REVENUE SHALL DETERMINE AND DESIGNATE THE POSTS OF DUTY OF ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA, AND WHEN ORDERED FROM THEIR DESIGNATED POSTS OF DUTY ALL INTERNAL REVENUE AGENTS APPOINTED UNDER SECTION THIRTY-ONE HUNDRED AND FIFTY-TWO, REVISED STATUTES, AS AMENDED, AND COTTON-FUTURES ATTORNEYS, MAY BE GRANTED PER DIEM IN LIEU OF SUBSISTENCE NOT EXCEEDING $4, AND, WHEN ORDERED FROM THEIR DESIGNATED POSTS OF DUTY, INCOME-TAX AGENTS AND INSPECTORS, SPECIAL GAUGERS, AND SPECIAL EMPLOYEES MAY BE GRANTED A PER DIEM IN LIEU OF SUBSISTENCE NOT EXCEEDING $3, THE PER DIEM IN LIEU OF SUBSISTENCE TO BE FIXED BY THE COMMISSIONER OF INTERNAL REVENUE, SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE TREASURY.

YOU STATE THAT IT IS NOT BELIEVED THAT THE ACT OF MAY 10, 1916, SHOULD BE APPLIED TO PRESENT-DAY CONDITIONS, ALTHOUGH ITS PROVISIONS HAVE NOT BEEN REPEALED.

THE PROVISION IN THE ACT OF MAY 10, 1916, HAVING BEEN ENACTED SUBSEQUENT TO THE ACT OF AUGUST 1, 1914, SUPRA, SUPERSEDED SAID ACT SO FAR AS THE CLASSES OF EMPLOYEES NAMED IN THE 1916 PROVISION ARE CONCERNED, AND SAID PROVISION NOT HAVING BEEN REPEALED BY ANY SUBSEQUENT STATUTE, EITHER EXPRESSLY OR BY THE ENACTMENT OF LEGISLATION INCONSISTENT THEREWITH, IT IS STILL IN FULL FORCE AND EFFECT. NEITHER THE GREAT INCREASE IN THE NUMBER OF EMPLOYEES OF THE CLASSES NAMED IN THE PROVISION NOR CHANGES IN THE SCOPE OF THE DUTIES TO BE PERFORMED BY THEM WOULD BE AUTHORITY FOR DISREGARDING ITS PROVISIONS OR HOLDING IT NOT APPLICABLE TO PRESENT CONDITIONS. IT MUST BE HELD, THEREFORE, THAT SO FAR AS EMPLOYEES OF THE CLASSES NAMED IN THE PROVISION IN QUESTION ARE CONCERNED THEY MAY NOT BE PAID PER DIEM ALLOWANCES IN EXCESS OF THOSE AUTHORIZED BY SAID PROVISION.

IT IS NOTED, HOWEVER, THAT THE PROVISION IN THE ACT OF MAY 10, 1916, DOES NOT PRESCRIBE A PER DIEM IN ALL CASES NOR MAKE THE PAYMENT OF A PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE MANDATORY, BUT MERELY PROVIDES THAT PER DIEM ALLOWANCES NOT EXCEEDING THE MAXIMA THEREIN, "MAY BE GRANTED.' BOUVIER'S LAW DICTIONARY, IN DEFINING THE WORD MAY, STATES THAT

* * * IN INTERPRETING STATUTES THE WORD MAY SHOULD BE CONSTRUED AS EQUIVALENT TO SHALL OR MUST IN CASES WHERE THE SENSE OF THE ENTIRE ENACTMENT REQUIRES IT * * * OR WHERE IT IS NECESSARY IN ORDER TO CARRY OUT THE INTENTION OF THE LEGISLATURE * * * OR WHERE IT IS NECESSARY FOR THE PRESERVATION OR ENFORCEMENT OF THE RIGHTS AND INTERESTS OF THE PUBLIC OR THIRD PERSONS * * * BUT NOT FOR THE PURPOSE OF CREATING OR DETERMINING THE CHARACTER OF RIGHTS * * *. WHERE THERE IS NOTHING IN THE CONNECTION OF THE LANGUAGE OR IN THE SENSE AND POLICY OF THE PROVISION TO REQUIRE AN UNUSUAL INTERPRETATION, ITS USE IS MERELY PERMISSIVE AND DISCRETIONARY * * *.

THE ACT OF AUGUST 1, 1914, PROVIDED THAT THE HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS "ARE AUTHORIZED TO PRESCRIBE" PER DIEM RATES OF SUBSISTENCE. IT COULD NOT BE SERIOUSLY CONTENDED THAT THE PERMISSION OR AUTHORITY TO PRESCRIBE PER DIEM RATES THUS GRANTED REPEALED THE AUTHORITY IN THE ACT OF APRIL 6, 1914, SUPRA, TO ALLOW ACTUAL EXPENSES OF SUBSISTENCE NOT IN EXCESS OF $5 PER DAY. WHILE NOT STATED IN THE SAME WORDS, THE PHRASES "ARE AUTHORIZED TO PRESCRIBE" AND "MAY BE GRANTED" AS USED IN THE ACT OF 1914 AND THE ACT OF 1916, RESPECTIVELY, ARE PRACTICALLY IDENTICAL IN MEANING; I.E., THEY GIVE PERMISSION TO DESIGNATED OFFICIALS TO ALLOW PER DIEMS IN LIEU OF THE ACTUAL EXPENSES OF SUBSISTENCE OTHERWISE AUTHORIZED BY LAW, BUT DO NOT REPEAL OR SUPERSEDE THE AUTHORITY IN THE ACT OF APRIL 6, 1914, TO ALLOW ACTUAL EXPENSES NOT IN EXCESS OF $5 PER DAY. THEREFORE, IF A PER DIEM IS NOT GRANTED ADMINISTRATIVELY IN ACCORDANCE WITH THE ACT OF MAY 10,1916, TO THE EMPLOYEES OF THE CLASSES THEREIN MENTIONED, THEY MAY BE REIMBURSED FOR ACTUAL EXPENSES OF SUBSISTENCE NOT IN EXCESS OF $5 PER DAY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF APRIL 6, 1914, WHEN IN AN AUTHORIZED TRAVEL STATUS.

WHAT HAS BEEN SAID ABOVE IS UPON THE ASSUMPTION THAT THERE ARE STILL EMPLOYEES IN THE INTERNAL REVENUE SERVICE WHO ARE PERFORMING SUBSTANTIALLY THE SAME DUTIES AS THOSE PERFORMED BY "INCOME-TAX AGENTS AND INSPECTORS, SPECIAL GAUGERS, AND SPECIAL EMPLOYEES" AT THE TIME THE ABOVE ACT OF MAY 10, 1916, WAS APPROVED, THE NATURE OF THE DUTIES, RATHER THAN ANY ARBITRARY DESIGNATION OF THE EMPLOYEE OR THE APPROPRIATION FROM WHICH PAID, BEING THE DETERMINING FACTOR. THE PROVISION RELATING TO COTTON- FUTURES ATTORNEYS CEASED TO BE OPERATIVE AS A RESULT OF THE REPEAL OF THE COTTON-FUTURES ACT BY THE ACT OF AUGUST 11, 1916, 39 STAT. 482, NO APPROPRIATION FOR THIS CLASS OF EMPLOYEES HAVING BEEN MADE SINCE THE FISCAL YEAR 1919. AS THE PER DIEM RATES AUTHORIZED BY THE ACT OF MAY 10, 1916, TO INTERNAL-REVENUE AGENTS APPOINTED UNDER SECTION 3152, REVISED STATUTES, ARE THE SAME AS THOSE PROVIDED IN THE ACT OF AUGUST 1, 1914, THE QUESTION WHETHER SUCH AGENTS ARE APPOINTED UNDER THAT SECTION OF THE REVISED STATUTES OR UNDER SOME SUBSEQUENT AUTHORITY IS NOT FOR CONSIDERATION IN THE PRESENT CASE. WHETHER ANY PARTICULAR EMPLOYEE OR GROUP OF EMPLOYEES NOW IN THE SERVICE MUST BE REGARDED AS BELONGING TO TO ONE OF THE CLASSES MENTIONED IN THE PROVISION IN THE ACT OF MAY 10, 1916, IS NOT FOR DECISION UPON THIS GENERAL SUBMISSION, BUT IF ANY DOUBT EXISTS IN A PARTICULAR CASE THE MATTER SHOULD BE SUBMITTED FOR DECISION WITH A STATEMENT OF THE DUTIES PERFORMED AND THE AUTHORITY UNDER WHICH APPOINTED, TOGETHER WITH A COMPARATIVE STATEMENT OF THE DUTIES OF THE VARIOUS CLASSES NAMED IN THE ACT OF MAY 10, 1916, SUPRA. IT IS BELIEVED, HOWEVER, THAT WHAT HAS BEEN SAID ABOVE WILL REMOVE THE NECESSITY FOR DECISIONS ON INDIVIDUAL CASES.

IN VIEW OF THE REPRESENTATIONS MADE IN YOUR SUBMISSION, PAYMENTS OF PER DIEMS AT RATES IN EXCESS OF THOSE PERMITTED BY THE ACT OF MAY 10, 1916, BUT NOT IN EXCESS OF $4 PER DAY, IF OTHERWISE PROPER, WILL NOT BE QUESTIONED WHERE THE PAYMENTS WERE MADE BY DISBURSING OFFICERS PRIOR TO AUGUST 1, 1925.