A-10338, AUGUST 11, 1925, 5 COMP. GEN. 100

A-10338: Aug 11, 1925

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FROM HIS DESIGNATED POST OF DUTY IS NOT TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE LAW AUTHORIZING REIMBURSEMENT OF ACTUAL EXPENSES OF SUBSISTENCE. THE QUESTION TURNS ON WHETHER THE EMPLOYEE IS TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE ACT OF APRIL 6. OR EMOLUMENTS ARE FIXED BY LAW OR REGULATION. OR COMPENSATION IN ANY FORM WHATEVER UNLESS THE SAME IS AUTHORIZED BY LAW. * * * ARE HEREBY DECLARED ILLEGAL. IS TO INSURE THAT NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL RECEIVE ANY ADDITION TO HIS SALARY OR COMPENSATION. IT WAS SAID IN UNITED STATES V. AT PAGE 352: * * * REIMBURSEMENT IS ONLY INTENDED IN CASES WHERE AN EXPENSE IS INCURRED IN THE SERVICES OF THE GOVERNMENT WHICH WOULD NOT BE INCURRED IF THE CLAIMANT WERE LIVING AT HIS USUAL PLACE OF ABODE.

A-10338, AUGUST 11, 1925, 5 COMP. GEN. 100

SUBSISTENCE - FRACTIONAL DAYS A CIVILIAN EMPLOYEE OF THE GOVERNMENT OPERATING FOR SHORT PERIODS OF A DAY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. FROM HIS DESIGNATED POST OF DUTY IS NOT TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE LAW AUTHORIZING REIMBURSEMENT OF ACTUAL EXPENSES OF SUBSISTENCE, OR A PER DIEM IN LIEU THEREOF. MEMORANDUM OPINION OF THE COURT OF CLAIMS IN HERBERT S. WARD V. UNITED STATES NOT TO BE ACCEPTED AS ESTABLISHING A CONTRARY RULE FOR THE DISBURSEMENT OF GENERAL APPROPRIATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, AUGUST 11, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER DATED JUNE 30, 1925, IN REFERENCE TO THE OPINION AND JUDGMENT OF THE COURT OF CLAIMS DATED JUNE 15, 1925, IN THE CASE OF HERBERT S. WARD V. UNITED STATES, AND REQUESTING DECISION WHETHER PAYMENTS MAY NOW BE MADE FROM APPLICABLE GENERAL APPROPRIATIONS FOR SUBSISTENCE EXPENSES INCURRED BY EMPLOYEES OF YOUR DEPARTMENT WHEN ABSENT FOR SHORT PERIODS OF A DAY, BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., FROM THEIR OFFICIAL STATIONS. THE QUESTION TURNS ON WHETHER THE EMPLOYEE IS TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF THE ACT OF APRIL 6, 1914, 38 STAT. 318.

SECTION 1765, REVISED STATUTES, PROVIDES THAT NO OFFICER OR ANY OTHER PERSON IN THE PUBLIC SERVICE WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATION, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION IN ANY FORM WHATEVER UNLESS THE SAME IS AUTHORIZED BY LAW. THE ACT OF MARCH 3, 1875, 18 STAT. 452, PROVIDED THAT THEREAFTER:

* * * ONLY ACTUAL TRAVELLING-EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT, OR APPOINTMENT UNDER THE UNITED STATES * * * AND ALL ALLOWANCES FOR MILEAGES AND TRANSPORTATION IN EXCESS OF THE AMOUNT ACTUALLY PAID, * * * ARE HEREBY DECLARED ILLEGAL; AND NO CREDIT SHALL BE ALLOWED TO ANY OF THE DISBURSING OFFICERS OF THE UNITED STATES FOR PAYMENT OR ALLOWANCES IN VIOLATION OF THIS PROVISION.

IT WOULD SEEM TO BE CLEAR, THEREFORE, THAT THE PURPOSE OF SECTION 1765, REVISED STATUTES, AND THE ACT OF MARCH 3, 1875, IS TO INSURE THAT NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL RECEIVE ANY ADDITION TO HIS SALARY OR COMPENSATION, BUT THAT HE SHALL BE MADE WHOLE TO THE EXTENT OF HIS "ACTUAL TRAVELLING-EXPENSES" WHEN TRAVELING ON PUBLIC BUSINESS. APROPOS OF THIS MATTER, IT WAS SAID IN UNITED STATES V. SMITH, 158 U.S. 346, AT PAGE 352:

* * * REIMBURSEMENT IS ONLY INTENDED IN CASES WHERE AN EXPENSE IS INCURRED IN THE SERVICES OF THE GOVERNMENT WHICH WOULD NOT BE INCURRED IF THE CLAIMANT WERE LIVING AT HIS USUAL PLACE OF ABODE.

THE MATTER OF REIMBURSEMENT OF TRAVEL EXPENDITURES AS IT OBTAINED IN THE FORM OF MILEAGE IN THE MILITARY AND SEMIMILITARY SERVICES AND IN THE FORM OF MILEAGE OR "ACTUAL EXPENSES" IN THE CIVILIAN SERVICES WAS THOROUGHLY INVESTIGATED BY PRESIDENT TAFT'S COMMISSION ON ECONOMY AND EFFICIENCY. TRANSMITTED THE REPORT TO THE CONGRESS WITH HIS MESSAGE OF APRIL 4, 1912, RECOMMENDING UNIFORMITY BY SUBSTITUTING A PER DIEM IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE. SEE HOUSE DOCUMENT NO. 670, 62D CONGRESS, 1ST SESSION, PAGES 11 AND 463 TO 479, AND PARTICULARLY PAGES 474 TO 478, DEALING WITH THE QUESTION OF SUBSISTENCE.

AS AN AFTERMATH OF THIS REPORT THERE WERE ENACTED WHAT ARE IN EFFECT AMENDMENTS TO THE ACT OF MARCH 3, 1875. THE FIRST AMENDMENT IS THE ACT OF APRIL 6, 1914, 38 STAT. 318, WHICH PROVIDES HAT:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND FOURTEEN, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $5 PER DAY * * *.

THE SECOND AMENDMENT IS THE ACT OF AUGUST 1, 1914, 38 STAT. 680, WHICH PROVIDES THAT:

* * * THE HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE NOT EXCEEDING $4 IN LIEU OF SUBSISTENCE TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHEN NOT OTHERWISE FIXED BY LAW *

PRIOR TO THE ENACTMENT OF APRIL 6, 1914, THERE WAS NOT UNIFORMITY IN THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT AS TO THE MAXIMUM OF ACTUAL EXPENSES OF TRAVEL THAT COULD BE REIMBURSED TO THE OFFICER OR EMPLOYEE, AND PRIOR TO THE ENACTMENT OF AUGUST 1, 1914, PER DIEMS IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE COULD BE ALLOWED TO OFFICERS AND EMPLOYEES WHOSE SALARIES WERE FIXED BY THE HEAD OF A DEPARTMENT, BUT SUCH PER DIEMS COULD NOT BE ALLOWED TO OFFICERS OR EMPLOYEES WHOSE SALARIES WERE FIXED BY LAW OR REGULATION; ONLY ACTUAL EXPENSES OF SUBSISTENCE COULD BE PAID TO THE LATTER CLASS OF OFFICERS AND EMPLOYEES. SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, SUBSTITUTES "ACTUAL EXPENSES" FOR MILEAGE FOR REPEATED TRAVEL IN THE SAME VICINITY OF OFFICERS OF THE MILITARY AND SEMIMILITARY SERVICES. FOR THE HISTORY OF SUCH SUBSTITUTION, SEE 4 COMP. GEN. 791 TO 793, INCLUSIVE.

MILEAGE IN THE MILITARY SERVICES OR PER DIEM IN THE MILITARY AND CIVILIAN SERVICES IS A COMMUTATION OF EXPENSES INCURRED OR PRESUMED TO HAVE BEEN INCURRED IN TRAVELING ON PUBLIC BUSINESS. IN VIEW OF SECTION 1765, REVISED STATUTES, SUCH COMMUTATION EXISTS AND CAN EXIST ONLY BY VIRTUE OF EXPRESS STATUTES. IN OTHER WORDS, AS STATED IN UNITED STATES V. SHIELDS, 153 U.S. 88, SUCH COMMUTATION "ALLOWED TO PUBLIC OFFICERS ARE MATTERS OF STRICT LAW, DEPENDING UPON THE VERY PROVISIONS OF THE STATUTE. THEY ARE NOT OPEN TO EQUITABLE CONSTRUCTION BY THE COURTS NOR TO ANY DISCRETIONARY ACTION ON THE PART OF THE OFFICIALS.' PER DIEM IN LIEU OF SUBSISTENCE AND ACTUAL EXPENSES OF SUBSISTENCE REQUIRE TRAVEL ON PUBLIC BUSINESS AS A CONDITION PRECEDENT TO THEIR PAYMENT. THUS IN THE SHIELDS CASE, SUPRA, THE DISTRICT ATTORNEY VOLUNTARILY RETURNED TO HIS HOME OVER SUNDAYS, AND IT WAS HELD THAT HE WAS NOT ENTITLED TO MILEAGE, THERE BEING NO TRAVEL ON PUBLIC BUSINESS. IN HARTMAN V. UNITED STATES, 40 CT.CLS. 133, THE COURT OF CLAIMS HELD THAT POSTAL RAILWAY CLERKS WERE NOT ENTITLED TO ACTUAL AND NECESSARY EXPENSES WHEN TRAVELING TO AND FRO IN THEIR MAIL CARS. THE COURT SAID:

* * * THE NATURE OF THE BUSINESS HE ACCEPTED TO PERFORM REQUIRED HIM TO PASS TO AND FROM THE TERMINI OF HIS ROUTE AT STATED TIMES, AND WAS AN INSEPARABLE INCIDENT TO THE SERVICE HE VOLUNTARILY UNDERTOOK; AND THE SERVICE COULD NOT BE PERFORMED WITHOUT INCURRING THE EXPENSES HE NOW SEEKS TO CHARGE AGAINST THE DEFENDANTS, IN ADDITION TO THE COMPENSATION STIPULATED AND PAID TO HIM * * *.

* * * THE PRIMARY DUTY OF POSTAL CLERKS IS IN THE MOVING CAR, AND COULD BE DISCHARGED ONLY IN THAT MANNER, THE EXPENSE OF WHICH WAS COVERED BY THE GENERAL APPROPRIATION FOR THAT PURPOSE * * *.

IN OTHER WORDS, WHILE THERE WAS MOVEMENT OF THE POSTAL CLERK THERE WAS NO TRAVELING ON THE BUSINESS OF THE DEPARTMENT WITHIN THE MEANING OF THE APPLICABLE LAW ENTITLING TO SUBSISTENCE EXPENSES, EITHER ACTUAL OR PER DIEM. THE CASE OF TEST V. UNITED STATES, 27 CT.CLS. 352, WAS ONE WHERE A SPECIAL CENSUS AGENT CLAIMED A "PER DIEM ALLOWANCE, IN LIEU OF SUBSISTENCE, OF $3 PER AY" WHILE PERFORMING HIS DUTY AS SUCH AT HIS PLACE OF ABODE OR IN THE VICINITY THEREOF. THE GOVERNMENT CONTENDED THAT SUCH PER DIEM COULD ONLY BE ALLOWED WHEN "SUCH SPECIAL AGENT IS TRAVELING, OR IN THE FIELD ON DUTY AS SUCH.' THE COURT SUSTAINED THE GOVERNMENT'S CONTENTION, AND AFTER POINTING OUT THAT THE CONGRESS HAD COMMUTED TO $3 PER DAY THE ACTUAL SUBSISTENCE EXPENSES OF CENSUS AGENTS WHEN TRAVELING, SAID:

THE COURSE OF LEGISLATION SHOWS THAT IN ALL OTHER CASES PUBLIC OFFICERS WHO ARE PAID BY SALARY OR BY PER DIEM ALLOWANCES ARE ALLOWED TRAVELING EXPENSES ONLY WHEN THEY ARE EMPLOYED AWAY FROM THE PLACE OF THEIR RESIDENCE, INCLUDING TRANSPORTATION AND SUBSISTENCE, OR, IN THE ARMY AND NAVY, RATIONS FOR THE LATTER.

WE DO NOT THINK THAT CONGRESS INTENDED TO MAKE AN EXCEPTION IN FAVOR OF SPECIAL AGENTS OF THE CENSUS.

IT IS CLEAR, THEREFORE, THAT TO BECOME ENTITLED TO ACTUAL EXPENSES OF SUBSISTENCE OR COMMUTATION THEREOF IN THE FORM AND AS A PART OF MILEAGE OR PER DIEM, THE OFFICER OR EMPLOYEE OF THE UNITED STATES MUST BE "TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY," AND THAT MOVEMENT IN THE VICINITY OF HIS POST OF DUTY DOES NOT CONSTITUTE SUCH TRAVELING ON DUTY AS TO ENTITLE TO REIMBURSEMENT OF THE COST OF SUBSISTENCE. SEE 3 COMP. GEN. 739; 4 ID. 331; ID. 466; ID. 745.

THE DECISIONS OF THE COURT OF CLAIMS IN THE HARTMAN AND TEST CASES, SUPRA, AND THE CITED DECISIONS OF THIS OFFICE THAT OPERATION AT OR IN THE VICINITY OF THE POST OF DUTY DURING SHORT PERIODS WITHIN THE REASONABLE WORKING HOURS OF A DAY DOES NOT CONSTITUTE TRAVELING ON DUTY WITHIN THE MEANING OF THE ACT OF APRIL 6, 1914, ARE SUPPORTED IN PRINCIPLE BY THE DECISIONS IN HAIRSTON V. STATE, 37 S.W. 858, AND ADAMS V. STATE, 78 S.W. 935, WHERE THE QUESTION WAS WHETHER PHYSICIANS WHO MAINTAINED OFFICES IN TWO OR MORE TOWNS AND WHO PRACTICED THEIR PROFESSION FROM EACH OF SAID OFFICES "WERE TRAVELING FROM PLACE TO PLACE IN THE PRACTICE OF THEIR PROFESSION" WITHIN THE MEANING OF THE APPLICABLE STATUTE, AND IT WAS HELD THAT THEY WERE NOT SO TRAVELING. THE COURT SAID IN THE HAIRSTON CASE THAT

AS WE UNDERSTAND THIS TERM,"TRAVELLING FROM PLACE TO PLACE," IT REFERS TO THOSE PARTIES ENUMERATED IN THE STATUTE WHO GO FROM PLACE TO PLACE TRAVELING OVER THE STATE, PURSUING THEIR OCCUPATION, CALLING, OR PROFESSION IN THAT MANNER. WE WOULD NOT BE UNDERSTOOD AS HOLDING THAT A PERSON MAY NOT HAVE AN OFFICE OR PLACE OF RESIDENCE IN WHICH HE PURSUES HIS OCCUPATION AT SOME PARTICULAR POINT IN THE STATE AND NOT BE AMENABLE TO THE LAW AS A TRAVELER--- THAT IS, ONE GOING FROM PLACE TO PLACE, PURSUING HIS VOCATION IN AN ITINERANT METHOD. THE CASE BEFORE US IS NOT WITHIN THAT CATEGORY. HERE THE PHYSICIAN OR SPECIALIST HAD TWO PLACES OF BUSINESS. PART OF HIS TIME HE SPENT AT ONE AND THE OTHER PART OF HIS TIME AT THE OTHER PLACE. THIS DOES NOT CARRY WITH IT THE IDEA OF IT, OR TRAVELING FROM PLACE TO PLACE, AS WE UNDERSTAND THE MEANING OF THIS TERM, WITHIN THE PURVIEW OF THE LAW * * *.

A GOVERNMENT EMPLOYEE WHO IS REQUIRED TO AND DOES MAKE SHORT DAILY TRIPS OF A FEW HOURS' DURATION BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. FROM HIS POST OF DUTY ORDINARILY DOES NOT HAVE HIS DOMESTIC ARRANGEMENTS DISTURBED THEREBY, AND SUCH TRIPS DO NOT CONSTITUTE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY. THE MEMORANDUM OPINION OF THE COURT OF CLAIMS IN THE WARD CASE, WHICH APPEARS CONTRARY TO ITS PRIOR OPINIONS IN THE HARTMAN AND TEST CASES, CAN NOT BE ACCEPTED BY THIS OFFICE AS ESTABLISHING A CONTRARY RULE FOR THE DISBURSEMENT OF GENERAL APPROPRIATIONS. SEE 3 COMP. GEN. 479, 485, AND DECISIONS THERE CITED.