A-10591, A-12532, OCTOBER 4, 1927, 7 COMP. GEN. 255

A-10591,A-12532: Oct 4, 1927

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IS AUTHORIZED NOT EXCEEDING THE COST OF TRANSPORTATION FROM THE OFFICER'S OLD TO HIS NEW STATION. WHERE AN OFFICER OF THE ARMY IS DIRECTED TO REPORT TO THE COMMANDING GENERAL OF A CORPS AREA OR OTHER SUPERIOR OFFICER FOR DUTY AND THE FACTS SHOW THAT THE DIRECTION TO REPORT TO SUCH SUPERIOR WAS FOR THE PURPOSE OF ASSIGNMENT TO DUTY WHEREVER HIS SERVICES MIGHT BE REQUIRED WITHIN THE TERRITORIAL AREA UNDER THE JURISDICTION OF THE SUPERIOR. THE ULTIMATE ASSIGNMENT OF THE OFFICER IS HIS "NEW" STATION FOR THE PURPOSE OF TRANSPORTATION OF HIS DEPENDENTS. IF THEY HAVE NOT ACCOMPANIED HIM ON HIS FIRST REPORTING. IN PART AS FOLLOWS: THE EFFECT OF CERTAIN OF YOUR RECENT DECISIONS IN RESPECT TO THE RIGHT OF OFFICERS OF THE ARMY ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO HAVE REIMBURSEMENT OF THE COST OF THE TRANSPORTATION OF THEIR DEPENDENTS NECESSARILY INCIDENT TO SUCH CHANGE OF STATION APPEARS TO ME INCONSISTENT WITH THE PURPOSE AND INTENT OF CONGRESS EMBODIED IN SECTION 12 OF THE ACT OF MAY 18.

A-10591, A-12532, OCTOBER 4, 1927, 7 COMP. GEN. 255

TRANSPORTATION - DEPENDENTS OF ARMY OFFICERS TRANSPORTATION OF THE SPECIFIED DEPENDENTS OF AN OFFICER OF THE ARMY UNDER THE ACTS OF MAY 18, 1920, 41 STAT. 604, AND JUNE 10, 1922, 42 STAT. 631, IS AUTHORIZED NOT EXCEEDING THE COST OF TRANSPORTATION FROM THE OFFICER'S OLD TO HIS NEW STATION, UNDER THE ORDERS DIRECTING THE PERMANENT CHANGE OF STATION WHICH GIVE HIM THE RIGHT TO TRANSPORTATION OF HIS DEPENDENTS; AND THE BASIS FOR THE ISSUANCE OF TRANSPORTATION, OR PAYMENT OF COMMERCIAL COSTS, MAY NOT BE EXTENDED TO INCLUDE PRIOR "OLD" STATIONS OF THE OFFICER. WHERE AN OFFICER OF THE ARMY IS DIRECTED TO REPORT TO THE COMMANDING GENERAL OF A CORPS AREA OR OTHER SUPERIOR OFFICER FOR DUTY AND THE FACTS SHOW THAT THE DIRECTION TO REPORT TO SUCH SUPERIOR WAS FOR THE PURPOSE OF ASSIGNMENT TO DUTY WHEREVER HIS SERVICES MIGHT BE REQUIRED WITHIN THE TERRITORIAL AREA UNDER THE JURISDICTION OF THE SUPERIOR, THE ULTIMATE ASSIGNMENT OF THE OFFICER IS HIS "NEW" STATION FOR THE PURPOSE OF TRANSPORTATION OF HIS DEPENDENTS, IF THEY HAVE NOT ACCOMPANIED HIM ON HIS FIRST REPORTING, AND NOT THE PLACE AT WHICH HE REPORTED TO THE SUPERIOR OFFICER AS DIRECTED IN HIS ORDERS.

COMPTROLLER GENERAL MCARL TO THE SECRETARY OF WAR, OCTOBER 4, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 19, 1926, IN PART AS FOLLOWS:

THE EFFECT OF CERTAIN OF YOUR RECENT DECISIONS IN RESPECT TO THE RIGHT OF OFFICERS OF THE ARMY ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO HAVE REIMBURSEMENT OF THE COST OF THE TRANSPORTATION OF THEIR DEPENDENTS NECESSARILY INCIDENT TO SUCH CHANGE OF STATION APPEARS TO ME INCONSISTENT WITH THE PURPOSE AND INTENT OF CONGRESS EMBODIED IN SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND THE FINAL PARAGRAPH OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS UNDERSTOOD BY THIS DEPARTMENT. IT HAS THEREFORE SEEMED TO ME ADVISABLE TO CALL YOUR ATTENTION TO SOME FEATURES OF SEVERAL OF THESE DECISIONS AND TO REQUEST A RECONSIDERATION OF THEM IN THE LIGHT OF THIS COMMUNICATION.

THE UNDERSTANDING AND BELIEF OF THIS DEPARTMENT HAS BEEN THAT THE GENERAL INTENT OF CONGRESS IN THIS LEGISLATION WAS THAT WHEN AN OFFICER OF THE ARMY WAS ORDERED TO MAKE A PERMANENT CHANGE OF STATION THE GOVERNMENT, IN ADDITION TO BEARING THE EXPENSE OF HIS OWN TRAVEL AND THE TRANSPORTATION OF HIS REGULATION ALLOWANCE OF BAGGAGE AS ALREADY PROVIDED BY LAW, WOULD ALSO, EITHER BY FURNISHING IT IN KIND OR BY REIMBURSING HIM THE COST THEREOF, PROVIDE FOR HIS DEPENDENTS THE TRANSPORTATION NORMALLY INCIDENT TO SUCH CHANGE OF STATION. IF THIS WAS IN FACT THE GENERAL PURPOSE OF CONGRESS IN THIS LEGISLATION, IT WOULD SEEM THAT EFFECT SHOULD BE GIVEN THERETO IF POSSIBLE UNLESS OTHER LEGISLATION CLEARLY FORBIDS.

THE FACT THAT THE TRAVEL OF AN OFFICER'S DEPENDENTS MAY NOT BE CONTEMPORANEOUS WITH HIS OWN, BUT MAY FOR ANY PROPER REASON, PERSONAL OR OTHERWISE, BE DELAYED, DOES NOT MAKE SUCH TRAVEL ANY THE LESS A NECESSARY INCIDENT TO THE OFFICER'S CHANGE OF STATION. IT IS IN FACT A NECESSITY WHICH HE MUST MEET, SOONER OR LATER, AND WHICH BEFORE THE PASSAGE OF THE LEGISLATION REFERRED TO HE HAD TO MEET WITH HIS OWN UNAIDED RESOURCES. IF, AS THIS DEPARTMENT BELIEVES, THE PURPOSE OF THE LEGISLATION IN QUESTION WAS TO RELIEVE THE OFFICER OF THIS BURDEN ENTAILED BY THE PERFORMANCE OF HIS MILITARY DUTY, IT WOULD SEEM THAT THE PROPER CRITERION SHOULD BE NOT WHETHER THE TRAVEL WAS PERFORMED UNDER ANY PARTICULAR CONDITIONS AS TO TIME OR MANNER, BUT WHETHER IT WAS IN FACT NORMALLY A NECESSARY INCIDENT OF THE OFFICER'S CHANGE OF STATION. THIS FUNDAMENTAL DETERMINATION HAVING BEEN MADE, IT THEN BECOMES NECESSARY TO MAKE SUCH PROVISION GOVERNING THE MANNER AND COST OF TRANSPORTATION AS WILL PREVENT LIABILITY BY THE GOVERNMENT FOR ANYTHING MORE THAN THE ACTUAL COST, AT THE LOWEST CURRENT RATES, OF THE TRANSPORTATION WHICH IS MADE NECESSARY AND IN FACT PERFORMED BY REASON OF THE OFFICER'S CHANGE OF STATION.

FOR THE PURPOSE OF GIVING EFFECT TO THE LAW AS SO UNDERSTOOD, AND PURSUANT TO EXECUTIVE ORDER OF AUGUST 25, 1922 (PUBLISHED AS SECTION IV OF WAR DEPARTMENT BULLETIN 16, 1922), PARAGRAPH 6 OF ARMY REGULATION 30-920 WAS PROMULGATED UNDER DATE OF JUNE 1, 1923, IN WHICH IT WAS SOUGHT TO PROVIDE, UNDER PROPER RESTRICTIONS, FOR THE TRANSPORTATION OF OFFICERS' DEPENDENTS WHENEVER UNDER THE LAW THE GOVERNMENT SHOULD BEAR THAT EXPENSE.

THE DECISIONS ABOVE REFERRED TO HAVE HAD THE EFFECT OF NULLIFYING SOME OF THE PROVISIONS OF THIS REGULATION, PARTICULARLY SUBPARAGRAPH H, TO WHICH YOUR ATTENTION IS NOW INVITED, WHICH READS AS FOLLOWS:

"H. ANOTHER PERMANENT CHANGE OF STATION BEFORE THE DEPENDENTS HAVE MOVED TO THE NEW STATION.--- WHENEVER IT IS IMPRACTICABLE FOR HIS DEPENDENTS TO MOVE TO THE INDIVIDUAL'S NEW STATION UNTIL AFTER HE ARRIVES THEREAT, AND WHEN ORDERS FOR ANOTHER PERMANENT CHANGE OF STATION ARE ISSUED PRIOR TO THE DEPARTURE OF HIS DEPENDENTS FOR THE FIRST NEW STATION, HIS DEPENDENTS MAY BE FURNISHED TRANSPORTATION FROM ANY POINT TO HIS LATEST STATION, PROVIDED THE COST THEREOF DOES NOT EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD THE DEPENDENTS ACCOMPANIED HIM FROM THE OLD STATION TO THE FIRST NEW STATION AND FROM THERE TO THE LATEST STATION. IN SUCH CASES TRANSPORTATION WILL BE FURNISHED VIA THE MOST ECONOMICAL USUALLY TRAVELED ROUTE.'

THE SITUATION HERE PROVIDED FOR SEEMS TO ME TO BE WITHIN BOTH THE LETTER AND SPIRIT OF THE LAW. THE TRANSPORTATION IS FROM AN OLD STATION OF THE OFFICER TO HIS NEW STATION. THE FACT THAT THE POINT OF DEPARTURE IS NOT THE LAST OLD STATION OF THE OFFICER DOES NOT PREVENT IT FROM BEING HIS ,OLD" STATION, AND SO LONG AS HIS DEPENDENTS HAVE NOT BEEN TRANSPORTED FROM SUCH OLD STATION TO A SUBSEQUENT STATION THE NECESSITY SO TO TRANSPORT THEM RESTS UPON HIM, AND IT IS THE BURDEN OF THIS NECESSITY OF WHICH IT WAS THE PURPOSE OF THE LAW TO RELIEVE HIM. THERE ARE MANY REASONS JUSTIFYING THIS PROVISION OF THE REGULATIONS. * * *

THE DECISIONS ABOVE ALLUDED TO, OF WHICH A RECONSIDERATION IS REQUESTED, ARE A-10591, DATED JULY 29, 1925, IN THE CASE OF CAPTAIN JAMES E. HUTSON, C.A.C., AND A-12532, DATED JUNE 8, 1926, IN THE CASE OF LIEUTENANT COLONEL E. A. KEYES, CAVALRY, AND A SUSPENSION IN THE ACCOUNTS OF CAPTAIN CARL HALLA OF A PAYMENT MADE TO MAJOR GEORGE BLAIR, INFANTRY, SUCH SUSPENSION BEING BASED UPON THE DECISION IN THE HUTSON CASE. THESE WILL BE BRIEFLY DISCUSSED IN ORDER.

A-10591, JULY 29, 1925: CAPTAIN HUTSON WAS ON JUNE 2, 1923, ORDERED TO CHANGE STATION FROM CHARLESTON, S.C., TO FORT MONROE, VA. ALTHOUGH HIS ORDERS FINALLY REMOVED HIM FROM CHARLESTON AND MADE FORT MONROE FOR THE TIME BEING HIS PERMANENT STATION, THE DUTY FOR WHICH HE WAS ORDERED TO FORT MONROE WAS IN CONNECTION WITH THE COAST ARTILLERY SUMMER INSTRUCTION CAMP AT THAT POINT, AT THE CONCLUSION OF WHICH IT WAS EXPECTED THAT HE WOULD BE ORDERED TO ANOTHER STATION. IN VIEW OF THIS SITUATION AND OF THE FACT THAT THERE WERE NO SUITABLE PUBLIC QUARTERS AVAILABLE FOR HIS WIFE AT FORT MONROE, CAPTAIN HUTSON VERY NATURALLY LEFT MRS. HUTSON IN CHARLESTON, WHERE SHE WAS COMFORTABLY SITUATED WITH FRIENDS, INTENDING TO HAVE HER JOIN HIM LATER. ON AUGUST 22, 1923, H3 WAS ORDERED TO CHANGE STATION FROM FORT MONROE, VA., TO PITTSBURGH, PA., AND SHORTLY THEREAFTER MRS. HUTSON PROCEEDED FROM CHARLESTON, S.C., TO PITTSBURGH, PA., AND JOINED HIM AT HIS NEW STATION.

ON THIS STATE OF FACTS CAPTAIN HUTSON WAS REIMBURSED THE COST OF MRS. HUTSON'S TRANSPORTATION FROM CHARLESTON TO PITTSBURGH, $38.33, THAT BEING LESS THAN THE COST OF TRANSPORTATION FROM CHARLESTON TO FORT MONROE, $18.96, PLUS COST OF TRANSPORTATION FROM FORT MONROE TO PITTSBURGH, $23.41, OR A TOTAL OF $42.37. IN YOUR DECISION, WHICH REDUCED THIS ALLOWANCE TO $23.41, THE AMOUNT WHICH HER TRANSPORTATION FROM FORT MONROE TO PITTSBURGH WOULD HAVE COST, YOU STATE:

"UNDER THE FIRST QUOTED ORDER THE OFFICER WAS REQUIRED TO MAKE A PERMANENT CHANGE OF STATION FROM CHARLESTON, S.C., TO FORT MONROE, VA., AND HAD HIS DEPENDENTS PERFORMED THE JOURNEY BETWEEN THESE TWO STATIONS HE WOULD HAVE BEEN ENTITLED TO TRANSPORTATION IN KIND OR TO REIMBURSEMENT FOR THE COST OF THE TRAVEL WHEN IT WAS COMPLETED. IF NO TRAVEL BY THE DEPENDENTS WAS PERFORMED BETWEEN THOSE STATIONS, THE OFFICER IS NOT ENTITLED TO ANY FORM OF REIMBURSEMENT OR CREDIT FOR THE VALUE OF THE TRANSPORTATION. IT HAS BEEN REPEATEDLY STATED THAT THESE ACTS DO NOT AUTHORIZE THE COMMUTATION OF TRANSPORTATION COSTS FOR DEPENDENTS BETWEEN STATIONS. TRAVEL BY THE DEPENDENTS IS REQUIRED, INCIDENT TO THE CHANGE OF STATION, BEFORE THE OFFICER HAS ANY RIGHTS TO REIMBURSEMENT. IF THE VALUE OF TRANSPORTATION BETWEEN PERMANENT STATIONS WHERE NO TRAVEL BY DEPENDENTS WAS PERFORMED CAN BE APPLIED ON TRANSPORTATION TO THE NEXT PERMANENT STATION, APPARENTLY THERE WOULD BE NO REASON AGAINST SUCH ACCUMULATION INDEFINITELY. THE ACT OF MAY 18, 1920, LIMITS ITS BENEFITS TO TRANSPORTATION IN KIND BETWEEN THE OLD AND NEW STATIONS AND THE ACT OF 1922 AUTHORIZED IN LIEU OF THAT TRANSPORTATION IN KIND, REIMBURSEMENT WHEN THE TRAVEL SHALL HAVE BEEN COMPLETED--- THAT IS THE SOLE AND ONLY RIGHT OF THE OFFICER.'

IT IS NOT QUESTIONED THAT IN THIS CASE THE OFFICER'S DEPENDENT DID IN FACT, AND AS INCIDENT TO HIS CHANGE OF STATION, TRAVEL FROM CHARLESTON, S.C. (WHERE HE HAD BEEN STATIONED AND WHICH WAS THEREFORE HIS "OLD" STATION), TO PITTSBURGH PA. (WHERE HE WAS STATIONED AND WHICH WAS THEREFORE HIS "NEW" STATION); AND IT IS NOT UNDERSTOOD HOW THE REIMBURSEMENT OF THIS TRANSPORTATION COST CAN BE DEEMED "COMMUTATION" AS DISTINGUISHED FROM ANY OTHER REIMBURSEMENT OF ANY OTHER TRANSPORTATION COST. IF SUCH REIMBURSEMENT BE IN FACT A COMMUTATION, THEN APPARENTLY THE LAW ALLOWS COMMUTATION OF SUCH COSTS IN THE SENSE OF AUTHORIZING REIMBURSEMENT OF THEM. AS TO THE ACCUMULATION OF RIGHTS, THE STATUTE APPEARS TO BE ENTIRELY SILENT, NEITHER EXPRESSLY AUTHORIZING NOR FORBIDDING IT, BUT CLEARLY PROVIDING FOR THE REIMBURSEMENT OF TRANSPORTATION COST "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.' IN THIS AS IN ALL OTHER CASES THE REIMBURSEMENT WAS MADE ONLY WHEN THE TRAVEL HAD BEEN COMPLETED.

A-12532. JUNE 8, 1926: LIEUTENANT COLONEL KEYES WAS ON JANUARY 31, 1924, ORDERED TO CHANGE STATION FROM MILWAUKEE, WISCONSIN, TO FORT SAM HOUSTON, TEXAS, AND ON MAY 5, 1924, HE WAS ORDERED TO CHANGE STATION AGAIN FROM FORT SAM HOUSTON TO FORT BLISS, TEXAS. IN THIS CASE THE OFFICER'S WIFE WAS NOT AT HIS STATION AT THE TIME OF EITHER ORDER BUT WAS AT LEXINGTON, VA., AND DID NOT JOIN HIM AT HIS STATION UNTIL OCTOBER 4, 1924.

HAD MRS. KEYES RETURNED TO MILWAUKEE PRIOR TO COLONEL KEYES'S CHANGE OF STATION FROM THAT POINT TO FORT SAM HOUSTON, THE TRAVEL FROM LEXINGTON TO MILWAUKEE WOULD NOT HAVE BEEN INCIDENT TO CHANGE OF STATION. MANIFESTLY, IF SHE HAD JOINED HIM AT FORT SAM HOUSTON THE TRAVEL TO THAT POINT, IN SO FAR AS IT EXCEEDED THE TRAVEL FROM LEXINGTON TO MILWAUKEE, WOULD HAVE BEEN A NECESSARY INCIDENT OF HIS CHANGE OF STATION, AND UNDER THE LAW AND REGULATION HE WOULD HAVE BEEN ENTITLED TO REIMBURSEMENT THEREOF TO THE EXTENT OF THE COST OF TRANSPORTATION FROM MILWAUKEE TO FORT SAM HOUSTON. SIMILARLY, WHEN SHE IN FACT TRAVELED FROM LEXINGTON TO FORT BLISS SUCH TRAVEL WAS MADE NECESSARY BY, AND THEREFORE WAS INCIDENT TO, HIS CHANGE OF STATION, AND HE WAS UNDER THE LAW AND REGULATION ENTITLED TO REIMBURSEMENT THEREOF TO THE EXTENT OF THE COST OF TRANSPORTATION FROM MILWAUKEE TO FORT SAM HOUSTON AND THENCE TO FORT BLISS, AND WAS REIMBURSED ACCORDINGLY. YOUR DECISION REDUCING THIS ALLOWANCE TO THE AMOUNT OF THE COST OF TRANSPORTATION BETWEEN FORT SAM HOUSTON AND FORT BLISS, YOU SAY:

"THE ACT OF MAY 18, 1920, 41 STAT. 604, HOWEVER, LIMITED ITS BENEFITS TO TRANSPORTATION IN KIND BETWEEN THE OLD AND NEW STATIONS AND SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AUTHORIZED IN LIEU OF THAT TRANSPORTATION IN KIND, REIMBURSEMENT WHEN THE TRAVEL SHALL HAVE BEEN COMPLETED. IN CONFORMITY WITH SUCH ACTS THE RIGHT TO TRANSPORTATION UPON THE FIRST CHANGE OF STATION CEASED UPON RECEIPT OF ORDERS TO MAKE THE SECOND CHANGE OF STATION.'

I AM UNABLE TO FIND IN THESE ACTS EITHER AN EXPRESS STATEMENT OR A CLEAR IMPLICATION OF THE PRINCIPLE STATED IN THE LAST SENTENCE QUOTED FROM YOUR DECISION. THE LAW DOES NOT FIX ANY ARBITRARY TIME LIMIT UPON THE RIGHT GRANTED, AND IN VIEW OF ITS GENERAL PURPOSE AS HEREIN SET FORTH IT IS SUBMITTED THAT SUCH AN ARBITRARY TIME LIMIT SHOULD NOT BE IMPORTED INTO THE ACT TO THE DETRIMENT AND DEFEAT OF THAT PURPOSE.

IN VIEW OF THE FOREGOING, I VENTURE TO HOPE THAT UPON FURTHER CONSIDERATION OF THE CASES REFERRED TO YOU MAY SEE YOUR WAY CLEAR TO AFFORD THE RELIEF TO WHICH IT SEEMS TO ME THESE OFFICERS ARE ENTITLED UNDER THE LAW.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

THAT HEREAFTER WHEN ANY COMMISSIONED OFFICER, NONCOMMISSIONED OFFICER OF THE GRADE OF COLOR SERGEANT AND ABOVE, INCLUDING ANY NONCOMMISSIONED OFFICER OF THE MARINE CORPS OF CORRESPONDING GRADE, WARRANT OFFICER, CHIEF PETTY OFFICER, OR PETTY OFFICER (FIRST CLASS), HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: PROVIDED, THAT FOR PERSONS IN THE NAVAL SERVICE THE TERM "PERMANENT STATION," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN A SHORE STATION OR THE HOME YARD OF THE VESSEL TO WHICH THE PERSON CONCERNED MAY BE ORDERED; AND A DULY AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF SUCH VESSEL SHALL BE DEEMED A CHANGE OF STATION: PROVIDED FURTHER, THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER CONCERNED: PROVIDED FURTHER, THAT TRANSPORTATION SUPPLIED THE WIFE OR DEPENDENT CHILD OR CHILDREN OF SUCH OFFICER, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT, IF SUCH TRANSPORTATION IS AVAILABLE: * * *. UNDER THIS ACT A RIGHT WAS GIVEN ONLY FOR TRANSPORTATION IN KIND FOR DEPENDENTS, ALTHOUGH IT WAS HELD BY THE FORMER COMPTROLLER OF THE TREASURY THAT IN CERTAIN CLASSES OF CASES WHERE THE OFFICER WAS UNABLE TO SECURE TRANSPORTATION IN KIND HE MIGHT BE REIMBURSED WHAT IT WOULD HAVE COST THE GOVERNMENT TO HAVE FURNISHED THE TRANSPORTATION IN KIND AUTHORIZED BY THE ACT. IT WAS ALSO HELD THAT THE TRANSPORTATION THEREIN PROVIDED WAS TO BE UTILIZED WITHIN A REASONABLE TIME. SEE 27 COMP. DEC. 400, WHERE IT WAS SAID,"THIS TRANSPORTATION IS TO BE FURNISHED AT THE TIME THE OFFICER MAKES THE PERMANENT CHANGE OF STATION.' 27 COMP. DEC. 510, A LIMIT OF 60 DAYS WAS FIXED WITHIN WHICH THE TRANSPORTATION IN KIND COULD BE FURNISHED, AND IN 27 COMP. DEC. 790, YOUR PREDECESSOR, MARCH 4, 1921, CONCEDED THE PROPRIETY OF THAT LIMIT IN MOST OR IN NORMAL CASES, BUT REQUESTED APPROVAL OF REGULATIONS PERMITTING EXTENSIONS OF THIS LIMIT IN EXCEPTIONAL CASES, THE APPLICATION FOR EXTENSION IN SUCH CASES TO BE MADE WITHIN THE 60-DAY PERIOD. THIS PROPOSED REGULATION WAS DISAPPROVED BY THE FORMER COMPTROLLER OF THE TREASURY. A REQUEST FOR MODIFICATION OF THAT RULE UNDER THE STATUTE WAS ADDRESSED TO ME BY YOUR PREDECESSOR AUGUST 12, 1921 (SEE 1 COMP. GEN. 90), AND WHILE I ADHERED TO THE VIEW THAT THE TRANSPORTATION SO AUTHORIZED TO BE FURNISHED SHOULD BE USED WITHIN A REASONABLE TIME AFTER THE PERMANENT CHANGE OF STATION WAS ORDERED, I CONCLUDED THAT,"WHAT IS A REASONABLE TIME WITHIN WHICH SUCH TRANSPORTATION IN KIND MAY BE FURNISHED IS PRIMARILY FOR DETERMINATION BY THE SECRETARY OF WAR.'

IN THESE DECISIONS THE QUESTION WAS THE ISSUANCE OF TRANSPORTATION IN KIND TO THE NEW STATION. TWO OR MORE NEW STATIONS, OR TWO OR MORE OLD STATIONS, WERE NOT IN CONTEMPLATION EITHER IN THE SUBMISSIONS OF YOUR PREDECESSOR OR BY THE ACCOUNTING OFFICERS IN CONSIDERING THEM. THE ACT OF MAY 18, 1920, CITED, SPECIFICALLY AUTHORIZES "TRANSPORTATION IN KIND * * * TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN," NAMING IN THE GRANT OF THE RIGHT BUT ONE STATION--- THE NEW STATION--- (CLEARLY CONTEMPLATING THAT THE DEPENDENTS WILL NOT IN ALL CASES BE AT THE OFFICER'S OLD STATION), WITH A QUALIFYING PROVISO:

* * * THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER CONCERNED: * *

THE RIGHT IS TO TRANSPORTATION TO THE NEW STATION WITH A LIMITATION OF COST TO THE GOVERNMENT OF TRANSPORTATION FROM THE OLD TO THE NEW STATION-- - STATION IS SPECIFICALLY INDICATED BY THE DEFINITE ARTICLE "THE"--- NOT BY THE INDEFINITE ARTICLE "AN.' THE MEASURE OF COST IS LIMITED TO THAT BETWEEN TWO POINTS AND TWO POINTS ONLY, THE OLD AND THE NEW STATION.

THE WAR DEPARTMENT'S FIRST REGULATION UNDER THIS STATUTE, PARAGRAPH 1115 1/2, ARMY REGULATIONS 1913, ADDED BY CIRCULAR 189 OF MAY 20, 1920, PROVIDED: "TRANSPORTATION * * * WILL BE FURNISHED * * * FROM THE OLD TO THE NEW STATION, OR FROM ANY POINT TO THE NEW STATION UPON PRIOR DEPOSIT OF ANY EXCESS COST OVER AND ABOVE THAT FROM THE OLD TO THE NEW STATION.' THIS WAS THE CONTEMPORANEOUS CONSTRUCTION BY THE EXECUTIVE DEPARTMENTS AND THE ACCOUNTING OFFICERS OF THE RIGHT TO TRANSPORTATION IN KIND UNDER THE ACT OF MAY 18, 1920, AND,"THE CONSTRUCTION GIVEN TO A STATUTE BY THOSE CHARGED WITH THE DUTY OF EXECUTING IT IS ALWAYS ENTITLED TO THE MOST RESPECTFUL CONSIDERATION, AND OUGHT NOT TO BE OVERRULED WITHOUT COGENT REASONS. * * * THE OFFICERS CONCERNED ARE USUALLY ABLE MEN, AND MASTERS OF THE SUBJECT. NOT INFREQUENTLY THEY ARE THE DRAFTSMEN OF THE LAWS THEY ARE AFTERWARDS CALLED UPON TO INTERPRET.' UNITED STATES V. MOORE, 95 U.S. 760, 762, AND BROWN V. UNITED STATES, 113 U.S. 568, 571.

THIS WAS THE STATE OF THE LAW AND THE RIGHT TO TRANSPORTATION FOR DEPENDENTS ON JULY 1, 1922, WHEN THE ACT OF JUNE 10, 1922, BECAME EFFECTIVE, AND PROVIDED IN THE SECOND PARAGRAPH OF SECTION 12, 42 STAT. 631:

IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY SECTION 12 OF AN ACT ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED MAY 18, 1920, TO BE FURNISHED BY THE UNITED STATES FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. DEPENDENT CHILDREN SHALL BE SUCH AS ARE DEFINED IN SECTION 4 OF THIS ACT.

THIS PROVISION GAVE NO NEW RIGHT TO TRANSPORTATION; IT MERELY PROVIDED A BASIS FOR PAYMENT WHERE TRANSPORTATION IN KIND AS AUTHORIZED BY THE ACT OF MAY 18, 1920, WAS NOT UTILIZED; AND THE RIGHT SO FIXED AND LIMITED BY STATUTE MAY NOT BE INCREASED BY ANY EXECUTIVE OFFICER OF THE GOVERNMENT.

THE WAR DEPARTMENT, BY REGULATIONS CONTAINED IN A.R. 30-920, PARAGRAPH 6, HAS PROVIDED AS FOLLOWS:

G. TIME LIMIT.

(1) SUBJECT TO THE REQUIREMENT AS TO REIMBURSEMENT CONTAINED IN (2) BELOW, AUTHORIZED TRANSPORTATION FOR DEPENDENTS MAY BE FURNISHED AT ANY TIME AFTER THE RECEIPT BY THE INDIVIDUAL CONCERNED OF AN ORDER INVOLVING A PERMANENT CHANGE OF STATION, BUT BEFORE THE RECEIPT OF A SUBSEQUENT ORDER INVOLVING ANOTHER PERMANENT CHANGE OF STATION. SEE ALSO H BELOW AS TO ANOTHER PERMANENT CHANGE OF STATION BEFORE THE DEPENDENTS HAVE MOVED TO THE NEW STATION.

H. ANOTHER PERMANENT CHANGE OF STATION BEFORE THE DEPENDENTS HAVE MOVED TO THE NEW STATION. WHENEVER IT IS IMPRACTICABLE FOR HIS DEPENDENTS TO MOVE TO THE INDIVIDUAL'S NEW STATION UNTIL AFTER HE ARRIVES THEREAT, AND WHEN ORDERS FOR ANOTHER PERMANENT CHANGE OF STATION ARE ISSUED PRIOR TO THE DEPARTURE OF HIS DEPENDENTS FOR THE FIRST NEW STATION, HIS DEPENDENTS MAY BE FURNISHED TRANSPORTATION FROM ANY POINT TO HIS LATEST STATION, PROVIDED THE COST THEREOF DOES NOT EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD THE DEPENDENTS ACCOMPANIED HIM FROM THE OLD STATION TO THE FIRST NEW STATION AND FROM THERE TO THE LATEST STATION. IN SUCH CASES TRANSPORTATION WILL BE FURNISHED VIA THE MOST ECONOMICAL USUALLY TRAVELED ROUTE.

BY PARAGRAPH G (1) THERE IS A TIME LIMIT, BUT BY PARAGRAPH H THE TIME LIMIT DOES NOT EXIST, AND BY PARAGRAPH H A BASIS FOR ISSUANCE OF TRANSPORTATION AND A BASIS FOR PAYMENT IN LIEU THEREOF UNDER THE ACT OF JUNE 10, 1922, CITED, ARE ESTABLISHED FROM A STATION PRIOR TO THE LAST OLD STATION IN DIRECT CONTRAVENTION OF THE PROVISIONS IN THE ACT OF MAY 18, 1920, CITED, WHICH FIXED THE MEASURE OF THE COST AS FROM THE OLD STATION TO THE NEW STATION, NOT FROM "AN" OLD STATION. ALL STATIONS AT WHICH THE OFFICER HAS EVER SERVED ARE IN A SENSE "OLD" STATIONS, BUT THE STATUTE AUTHORIZES TRANSPORTATION "WHEN * * * ORDERED TO MAKE A PERMANENT CHANGE OF STATION" AND FIXES A LIMIT FOR THE COST OF SUCH TRANSPORTATION BETWEEN THE OLD AND THE NEW STATION--- THE TWO STATIONS INVOLVED IN THE PERMANENT CHANGE OF STATION ORDERED. THIS CLEAR AND PRECISE LIMIT OF THE COST TO THE GOVERNMENT CAN NOT BE EXTENDED OR MODIFIED BY ARGUMENTS THAT THE COST TO THE GOVERNMENT WILL BE NO GREATER THAN HAD THE OFFICER TAKEN ADVANTAGE OF THE STATUTE TO BRING HIS DEPENDENTS TO EACH OF HIS STATIONS. WHILE THAT RIGHT IS GIVEN, IF IT IS NOT UTILIZED THE OFFICER MAY NOT APPLY THE LIMIT OF COST ON A SUCCEEDING CHANGE OF STATION. THE RIGHT GIVEN IS TRANSPORTATION FOR HIS DEPENDENTS TO HIS NEW STATION AT THE TIME OF ISSUE OF THE TRANSPORTATION, OR AT THE TIME OF TRAVEL OF THE DEPENDENTS IF PAYMENT IS MADE UNDER THE ACT OF JUNE 10, 1922, AND THE LIMIT OF COST FOR THAT TRANSPORTATION OR THE LIMIT OF COST FOR PAYMENT IS FIXED IN NO UNCERTAIN OR AMBIGUOUS LANGUAGE. IT IS FROM THE OLD TO THE NEW STATION, THE STATIONS INVOLVED,"WHEN * * * ORDERED TO MAKE A PERMANENT CHANGE OF STATION.'

YOU SUGGEST THAT THE GENERAL PURPOSE OF THE ACT WAS TO AFFORD TRANSPORTATION FOR DEPENDENTS ON ALL PERMANENT CHANGES OF STATION AND THAT ANY ARRANGEMENT WHICH PROVIDES FOR TRANSPORTATION FOR DEPENDENTS NOT IN EXCESS OF THE COST TO THE GOVERNMENT HAD THE DEPENDENTS ACCOMPANIED THE OFFICER ON ALL SUCH CHANGES OF STATION IS WITHIN THE GENERAL PURPOSE AND SPIRIT OF THE ACT. THE PURPOSE AND INTENT OF THE ACT HAVE BEEN HERETOFORE CONSIDERED AND DISCUSSED. AMONG OTHERS, SEE 2 COMP. GEN. 638, 640. HOWEVER, A MORE EXTENDED SEARCH HAS BEEN MADE IN VIEW OF YOUR PRESENTATION. THE GENESIS OF THE PROVISION FOR TRANSPORTATION FOR DEPENDENTS WAS CONTAINED IN A BILL (S.3383, 66TH CONG., 2D SESS.) TO PROVIDE FOR INCREASE OF PAY FOR THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND PUBLIC HEALTH SERVICE, AND THERE WAS ADDED A COMMITTEE AMENDMENT, SECTION 5, TO THAT BILL, AS FOLLOWS:

SEC. 5. THAT HEREAFTER WHEN ANY OFFICER, ENLISTED MAN, OR OTHER PERSON NAMED IN THIS ACT IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE COAST GUARD, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE, CHILDREN, AND DEPENDENT PARENTS OF SUCH OFFICER, ENLISTED MAN, OR OTHER PERSON: PROVIDED, THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER, ENLISTED MAN, OR OTHER PERSON CONCERNED.

THIS BILL PASSED THE SENATE, BUT BECAUSE OF DIFFICULTY OF SECURING EARLY PASSAGE, WHEN H.R. 11927 WAS PASSED BY THE HOUSE PROVIDING FOR INCREASE OF PAY FOR NAVAL PERSONNEL, THE SENATE, WITH A VIEW TO SECURING ACTION WITH RESPECT TO ALL SERVICES PROPER TO BE INCLUDED, AMENDED THE HOUSE BILL BY INSERTING ALL OF S. 3383 IN LIEU OF THE HOUSE PROVISIONS AND THE MATTER WENT TO CONFERENCE WHERE THE ENTIRE ACT OF MAY 18, 1920, WAS WORKED OUT. THE CONFEREES ON THE PART OF THE HOUSE REPORTED ON SECTION 12 OF THE BILL AGREED TO (SEE H.REPT. 948, 66TH CONG., 2D SESS.) AS FOLLOWS:

SECTION 12 IS SUBSTANTIALLY THE SAME AS SECTION 6 OF THE SENATE AMENDMENT, WITH SOME MODIFICATIONS AND ADDED PROVISIONS. IT PERMITS TRANSPORTATION IN KIND TO BE FURNISHED FOR THE WIFE AND DEPENDENT CHILDREN OF COMMISSIONED, NONCOMMISSIONED, WARRANT, OR PETTY OFFICERS, WHEN THEY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION; AND PROVIDES FURTHER THAT THE PERSONNEL OF THE NAVY SHALL HAVE THE BENEFIT OF EXISTING LAWS APPLYING TO THE ARMY AND MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS.

THE SENATE MILITARY AFFAIRS COMMITTEE HAD THERETOFORE REPORTED RESPECTING SECTION 5 OF ITS BILL (S. 3383), AND WHICH THE HOUSE CONFEREES STATED WAS SUBSTANTIALLY CARRIED INTO SECTION 12 OF THE ACT, AS FOLLOWS:

IT IS ALSO PROPOSED TO ALLOW TRANSPORTATION IN KIND TO THE WIFE, CHILDREN, OR DEPENDENT PARENTS OF AN OFFICER, ENLISTED MAN, OR OTHER PERSON INCLUDED IN THIS BILL ACCOMPANYING HIM WHEN HE CHANGES PERMANENT STATION UNDER ORDERS.

THERE IS FOUND THE FULL AND COMPLETE PURPOSE OF THE PROVISION, ITS GENERAL PURPOSE AND ITS SPECIFIC INTENT, WHICH IS, THAT WHEN THE OFFICER WAS THERETOFORE PUT TO AN EXPENSE TO BRING HIS DEPENDENTS TO HIS NEW STATION--- THAT IS,"ACCOMPANYING HIM," THE ACT RELIEVED HIM FROM THE COST; THIS, AND THIS ONLY, IT DOES IN PLAIN AND PRECISE LANGUAGE. IF THE DEPENDENTS DO NOT ACCOMPANY HIM TO A NEW STATION, HE WOULD HAVE BEEN PUT TO NO EXPENSE ON THAT ACCOUNT PRIOR TO MAY 18, 1920, AND NO PROVISION IS MADE FOR PAYMENT TO HIM EITHER AT ONCE OR ULTIMATELY, DIRECTLY, OR INDIRECTLY, OF THE COST THE GOVERNMENT WOULD HAVE BORNE HAD HIS DEPENDENTS ACCOMPANIED HIM TO EACH OF HIS NEW STATIONS. THE PROVISION IS FOUND IN AN ACT ENTITLED,"AN ACT TO INCREASE THE EFFICIENCY OF THE ARMY, ETC., " WHICH INCREASED THE PAY AND EXTENDED OTHER BENEFITS TO THE PERSONNEL THEREOF BECAUSE OF CONDITIONS OF SERVICE, AND ITS PURPOSE AND DESIGN IN THE PROVISION CONTAINED IN SECTION 12 WAS TO RELIEVE OFFICERS AND SOME ENLISTED MEN OF THE COST OF TRANSPORTING THEIR DEPENDENTS TO A NEW PERMANENT STATION. THE GRANT IS A CONTINGENT ALLOWANCE AND MAY NOT BE INCREASED BEYOND THE LIMITS FIXED BY THE STATUTE ANY MORE THAN AN OFFICER MAY BE GRANTED COMMUTATION OF FORAGE FOR HORSES WHICH HE DOES NOT OWN OR KEEP IN THE PERFORMANCE OF HIS DUTIES IN THE MILITARY SERVICE ON THE GROUND THE GOVERNMENT WOULD HAVE PAID THE COMMUTATION HAD HE OWNED AND KEPT THE HORSES AS PROVIDED BY THE STATUTE.

THE CONCLUSION THAT THE PROVISION OF THE REGULATIONS PERMITTING THE FURNISHING OF TRANSPORTATION FOR DEPENDENTS FOR A GREATER DISTANCE THAN FROM THE OLD TO THE NEW STATION AS HEREIN DEFINED WHEN AN OFFICER IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION WITHOUT PAYING TO THE UNITED STATES THE EXCESS COST THEREOF IS CONTRARY TO LAW AND GIVES NO RIGHT TO ANYONE AND AFFORDS NO PROTECTION TO OFFICERS WHO HAVE ISSUED TRANSPORTATION OR PAID OFFICERS THE COMMERCIAL COST OF TRANSPORTATION THEREUNDER MUST BE AND IS ADHERED TO.

I APPREHEND THAT THE DIFFICULTY SUGGESTED ARISES IN PART FROM FAILURE OF THE DEPARTMENT TO SHOW IN SOME ORDERS THAT THE DUTY TO WHICH ORDERED IS IN FACT TEMPORARY ALTHOUGH KNOWN TO THE OFFICER TO BE TEMPORARY. UNDER SUCH ORDERS THE OFFICER, BY REASON OF THE FORM OF THE ORDERS, MAY SECURE TRANSPORTATION FOR HIS DEPENDENTS TO WHAT IS IN FACT A TEMPORARY STATION NOTWITHSTANDING THE ACT PROVIDES FOR SUCH TRANSPORTATION ONLY ON A PERMANENT CHANGE OF STATION. SUCH SEEMS TO HAVE BEEN THE CASE OF CAPTAIN HUTSON, ALTHOUGH IN THAT CASE HE DID NOT SECURE TRANSPORTATION TO FORT MONROE, VA., FOR HIS DEPENDENTS KNOWING THAT HIS ASSIGNMENT WAS FOR DUTY ONLY IN CONNECTION WITH THE SUMMER INSTRUCTION CAMP AT THAT PLACE. THIS OFFICE HAS NOT QUESTIONED ORDERS OF THIS CHARACTER WHERE TRANSPORTATION FOR DEPENDENTS HAS BEEN ISSUED AND IF THE DEPARTMENT CONTINUES TO SO WORD ITS ORDERS AS TO GIVE A RIGHT WHICH, IN SOME CASES, IS NOT WITHIN THE STATUTE, AND DESIRES THIS OFFICE TO ACCEPT SUCH ORDERS, THOSE ORDERS MUST BE EFFECTIVE FOR ALL PURPOSES IN CONNECTION WITH THE TRANSPORTATION OF DEPENDENTS AND THE OFFICER'S RIGHTS TO FURTHER TRANSPORTATION OF HIS DEPENDENTS MUST BE FROM THE "STATION" REQUIRED TO BE CLASSIFIED AS PERMANENT BY THE LANGUAGE OF THE ORDER.

IT WOULD APPEAR, HOWEVER, THAT THERE HAS BEEN A MISAPPREHENSION IN THE APPLICATION OF THE HOLDING OF THE CASE OF LIEUTENANT COLONEL KEYES AND MAJOR BLAIR. IN THE CASE OF COLONEL KEYES IT APPEARS HE WAS ASSIGNED TO THE EIGHTH CORPS AREA WITH DIRECTION TO REPORT TO THE COMMANDING GENERAL AND SHORTLY AFTER REPORTING WAS ASSIGNED TO DUTY AT A STATION AWAY FROM THE HEADQUARTERS OF THE CORPS AREA. THIS SITUATION IS ANALOGOUS TO THE ASSIGNMENT OF AN OFFICER OF THE NAVY TO A STATION OR SHIP FOR "GENERAL DETAIL" WHO, UPON REPORTING OR SHORTLY THEREAFTER, IS ASSIGNED OR ATTACHED TO A DIFFERENT STATION OR SHIP FOR PERMANENT DUTY. IN SUCH CASES IT HAS BEEN THE PRACTICE TO TREAT THE ULTIMATE ASSIGNMENT AS THE BASIS FOR TRANSPORTATION OF DEPENDENTS. THE SAME RULE SHOULD APPLY IN THE ARMY IN ANALOGOUS SITUATIONS AND IN ANY CASES WHERE THE ORDERS AND THE FACTS FAIRLY SHOW THE OFFICER'S FIRST ASSIGNMENT WAS WITH A VIEW TO FURTHER ASSIGNMENT AND THE DEPENDENTS DID NOT ACCOMPANY THE OFFICER TO THE STATION FIRST ASSIGNED, THE INTERMEDIATE OR FIRST ASSIGNED STATION WILL NOT BE CONSIDERED IN DETERMINING HIS RIGHT TO TRANSPORTATION FOR DEPENDENTS. CASES OF THIS DESCRIPTION WHICH HAVE BEEN DISALLOWED UNDER THE STRICT APPLICATION OF THE DECISIONS TO WHICH YOU REFER WILL BE RECONSIDERED ON THE APPLICATION OF THE DISBURSING OFFICER CONCERNED OR, IF DISALLOWANCE WAS BY CLAIMS SETTLEMENT, ON APPLICATION OF THE INDIVIDUAL ONCERNED; IN EITHER CASE WITH THE SUBMISSION OF THE NECESSARY FACTS. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT WHAT IS HEREIN SAID DOES NOT CHANGE IN ANY MANNER THE HOLDINGS IN 2 COMP. GEN. 638 AND 3 COMP. GEN. 753.

IN THIS CONNECTION IT IS APPROPRIATE TO INVITE ATTENTION TO THE CASE OF ILLINOIS CENTRAL RAILROAD COMPANY V. UNITED STATES, 52 CT.CLS. 53, WHERE THE COURT CONSIDERED THE RIGHT OF A RAILROAD COMPANY TO PAYMENT FOR TRANSPORTATION FURNISHED--- AT THE REQUEST OF AN OFFICER OF THE ARMY, PURSUANT TO AN ARMY REGULATION--- FOR THE PRIVATE PROPERTY OF AN OFFICER OF THE ARMY WHICH WAS NOT AUTHORIZED BY LAW TO BE TRANSPORTED AT THE EXPENSE OF THE UNITED STATES AND SAID:

IN THE ABSENCE OF ANY STATUTE AUTHORIZING THE PAYMENT FOR THE TRANSPORTATION OF HORSES WHICH ARE THE PROPERTY OF OFFICERS OF THE ARMY AND NOT THE PROPERTY OF THE UNITED STATES, AND IN THE ABSENCE OF ANY PROVISION IN THE APPROPRIATION ACTS, CAN THE SECRETARY OF WAR BY THE PROMULGATION OF A REGULATION BIND THE GOVERNMENT FOR THE PAYMENT OF THE TRANSPORTATION OF HORSES, THE PRIVATE PROPERTY OF ARMY OFFICERS?

THIS COURT HAS REPEATEDLY PASSED UPON THE EFFECT OF REGULATIONS OF THE EXECUTIVE DEPARTMENTS. IT HAS UNIFORMLY HELD THAT SUCH REGULATIONS COULD ONLY HAVE THE FORCE AND EFFECT OF LAW WHEN THEY ARE NOT IN CONTRAVENTION TO EXISTING LAW AND WHEN THEY ARE PROMULGATED FOR THE PURPOSE OF CARRYING INTO EFFECT THE LAW IN RESPECT TO WHICH THEY ARE PROMULGATED.

REGULATIONS OF EXECUTIVE DEPARTMENTS * * * MUST NOT BE INCONSISTENT WITH LAW, BUT MUST CONFORM TO THE LAW. NOR CAN THE HEAD OF AN EXECUTIVE DEPARTMENT NOR THE PRESIDENT EXERCISE LEGISLATIVE POWER OR AUTHORITY BY REGULATION WHEN IT IS CLEAR THAT THE POWER SO EXERCISED IS PURELY LEGISLATIVE.

THE COURT THEN QUOTES FROM DECIDED CASES, AMONG OTHERS, ROMERO'S CASE, 24 CT.CLS. 331, 338, THAT "THE AUTHORITY OF THE PRESIDENT TO MAKE REGULATIONS IS SUBJECT TO THE CONDITION, NECESSARILY IMPLIED, THAT THEY MUST BE CONSISTENT WITH THE STATUTES WHICH HAVE BEEN ENACTED BY CONGRESS, AND MUST BE IN EXECUTION OF, AND SUPPLEMENTARY TO, BUT NOT IN CONFLICT WITH, THE STATUTES; " AND CONTINUES, PAGE 59,"WE HAVE BEEN UNABLE TO FIND ANY AUTHORITY OR EVEN SUGGESTION THAT THE HEADS OF DEPARTMENTS CAN, BY REGULATION, REQUIRE FROM THE GOVERNMENT THE PAYMENT OF MONEY FOR ANY PURPOSE NOT SPECIFICALLY AUTHORIZED BY LAW.' IN THE LAST QUOTATION WILL BE FOUND THE ANSWER TO THE SUBMITTED SUGGESTION THAT NO STATUTE FORBIDS THE ACCUMULATION OF "RIGHTS" TO TRANSPORTATION OF DEPENDENTS TO SUCCESSIVE STATIONS.

IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE LATE DECISION OF THE COURT OF CLAIMS CONSTRUING THE ACT OF MAY 18, 1920, ROBERT FORTSON V. THE UNITED STATES, NO. C-374, DECIDED APRIL 4, 1927, IN WHICH THE COURT SAID:

* * * THE LANGUAGE OF THE STATUTE IS DEFINITE, AND THOSE CLAIMING UNDER IT MUST BE HELD TO ITS TERMS. IT IS NOT WITHIN THE AUTHORITY OF A SUPPLY OFFICER TO CHANGE THE TERMS OF THE ACT AND TO CONFER BENEFITS UPON AN OFFICER WHICH ARE CLEARLY NOT WITHIN THE PROVISION OF THE STATUTE; NOR CAN THE COURT, BECAUSE OF WHAT SEEMS A HARDSHIP, CONSTRUE THE ACT TO MEAN WHAT IT PLAINLY DOES NOT MEAN. IT IS MANIFESTLY NECESSARY IN PUTTING INTO FORCE ACTS INTENDED TO CONFER BENEFITS AND PRIVILEGES UPON THE OFFICERS OF THE ARMY OR NAVY THAT SOME SPECIFIC RULES SHALL BE PUT INTO EFFECT WHICH WILL ENABLE THE DEPARTMENTS TO KNOW JUST WHAT IS BEING DONE IN ENFORCING SUCH ACTS. IN THIS CASE NO WRITTEN REQUEST WAS MADE BY THE PLAINTIFF FOR THE TRANSPORTATION OF HIS DEPENDENTS OR HIS HOUSEHOLD EFFECTS. THE SUPPLY OFFICER AT PHILADELPHIA GRANTED THE REQUEST FOR THE TRANSPORTATION OF THE PLAINTIFF'S DEPENDENTS FROM ATHENS, GA., TO SAN DIEGO, CALIF., BUT DIRECTED THE PLAINTIFF TO THE SUPPLY OFFICER AT MARE ISLAND, SAN FRANCISCO, FOR AUTHORITY TO TRANSPORT HIS HOUSEHOLD EFFECTS. THE ONLY AUTHORITY WHICH THE SUPPLY OFFICER, EITHER AT PHILADELPHIA OR SAN FRANCISCO, HAD WAS CONFERRED BY THE STATUTE ABOVE QUOTED, AND WHEN THE SUPPLY OFFICER AT PHILADELPHIA GRANTED TRANSPORTATION FOR THE PLAINTIFF'S DEPENDENTS FROM ATHENS, GA., TO SAN DIEGO, CALIF., HE EXCEEDED HIS AUTHORITY. THE PLAINTIFF, IN THE CASE OF THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS, CHOSE, WITHOUT WAITING FOR AUTHORITY FROM THE NAVY DEPARTMENT, TO TRANSPORT HIS HOUSEHOLD EFFECTS AT HIS OWN EXPENSE, AND WHEN HE SUBMITTED A CLAIM FOR THE EXPENSE SO INCURRED IT WAS DENIED BY THE AUDITOR OF THE NAVY DEPARTMENT.

WE THINK THAT THE TERMS OF THE STATUTE MUST BE STRICTLY COMPLIED WITH AND CAN NOT GRANT THE RELIEF ASKED FOR IN THIS CASE.