A-16205, NOVEMBER 17, 1926, 6 COMP. GEN. 344

A-16205: Nov 17, 1926

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THE JUDGE AND DISTRICT ATTORNEY FOR THE UNITED STATES COURT FOR CHINA ARE ENTITLED TO THEIR NECESSARY AND ACTUAL EXPENSES OF SUBSISTENCE WHILE THE COURT IS IN SESSION NOT TO EXCEED $8 PER DAY PAYABLE FROM THE APPROPRIATION FOR THE UNITED STATES COURT FOR CHINA. THEIR EXPENSES OF SUBSISTENCE WHILE GOING TO AND RETURNING FROM THE SESSIONS OF THE COURT ARE PAYABLE FROM THE APPROPRIATION FOR TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS AND MAY NOT EXCEED $5 PER DAY PRIOR TO JULY 1. REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS: THE DEPARTMENT IS INCLOSING COPY OF A LETTER DATED SEPTEMBER 1. IN WHICH HE REQUESTS A DEFINITE RULING BY YOU ON THE AMOUNT TO WHICH THE JUDGE AND DISTRICT ATTORNEY OF THE UNITED STATES COURT FOR CHINA ARE LIMITED WHILE TRAVELING TO AND RETURNING FROM CITIES OTHER THAN SHANGHAI WHERE SESSIONS OF THE COURT ARE HELD.

A-16205, NOVEMBER 17, 1926, 6 COMP. GEN. 344

SUBSISTENCE - JUDGE AND DISTRICT ATTORNEY FOR THE COURT FOR CHINA WHEN HOLDING COURT OUTSIDE OF SHANGHAI, CHINA, THE JUDGE AND DISTRICT ATTORNEY FOR THE UNITED STATES COURT FOR CHINA ARE ENTITLED TO THEIR NECESSARY AND ACTUAL EXPENSES OF SUBSISTENCE WHILE THE COURT IS IN SESSION NOT TO EXCEED $8 PER DAY PAYABLE FROM THE APPROPRIATION FOR THE UNITED STATES COURT FOR CHINA. THEIR EXPENSES OF SUBSISTENCE WHILE GOING TO AND RETURNING FROM THE SESSIONS OF THE COURT ARE PAYABLE FROM THE APPROPRIATION FOR TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS AND MAY NOT EXCEED $5 PER DAY PRIOR TO JULY 1, 1926, OR $8 PER DAY THEREAFTER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, NOVEMBER 17, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 21, 1926, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

THE DEPARTMENT IS INCLOSING COPY OF A LETTER DATED SEPTEMBER 1, 1926, FROM THURSTON R. PORTER, SPECIAL DISBURSING OFFICER, UNITED STATES COURT FOR CHINA, IN WHICH HE REQUESTS A DEFINITE RULING BY YOU ON THE AMOUNT TO WHICH THE JUDGE AND DISTRICT ATTORNEY OF THE UNITED STATES COURT FOR CHINA ARE LIMITED WHILE TRAVELING TO AND RETURNING FROM CITIES OTHER THAN SHANGHAI WHERE SESSIONS OF THE COURT ARE HELD.

IN THIS CONNECTION IT MIGHT BE STATED THAT ACCOUNTS SUBMITTED BY MR. PORTER FOR TRAVELING EXPENSES PRIOR TO JUNE 30, 1926, HAVE BEEN APPROVED BY THE DEPARTMENT FOR AMOUNTS USUALLY ALLOWED TO DIPLOMATIC AND CONSULAR OFFICERS WHILE IN TRANSIT TO OR FROM THEIR POSTS OF DUTY. SUBSISTENCE EXPENSES FROM SHANGHAI TO THE PLACES AT WHICH COURT WAS HELD WERE NEVER ALLOWED IN EXCESS OF $5 PER DAY FOR THE JUDGE AND DISTRICT ATTORNEY. THEIR EXPENSES WHILE AT THE PLACE COURT WAS HELD WERE ALLOWED UP TO $8 PER DAY PAYABLE FROM THE APPROPRIATION "SALARIES AND EXPENSES, UNITED STATES COURT FOR CHINA, INDEFINITE APPROPRIATION.' MR. PORTER IS OF THE OPINION THAT THE JUDGE AND DISTRICT ATTORNEY ARE ENTITLED TO SUBSISTENCE EXPENSES IN THE AMOUNT OF $8 PER DAY FROM THE DATE OF THEIR DEPARTURE FROM SHANGHAI TO THE DATE OF THEIR RETURN THERETO WHILE ATTENDING SESSIONS OF THE COURT HELD OUTSIDE OF THAT CITY.

FOR THE FISCAL YEAR 1927 THE APPROPRIATION FOR THE UNITED STATES COURT FOR CHINA, ACT OF APRIL 29, 1926, 44 STAT. 341, PROVIDES:

THE JUDGE OF THE SAID COURT AND THE DISTRICT ATTORNEY, SHALL, WHEN THE SESSIONS OF THE COURT ARE HELD AT OTHER CITIES THAN SHANGHAI, RECEIVE IN ADDITION TO THEIR SALARIES THEIR NECESSARY ACTUAL EXPENSES DURING SUCH SESSION NOT TO EXCEED $8 PER DAY EACH, AND SO MUCH AS MAY BE NECESSARY FOR SAID PURPOSES DURING THE FISCAL YEAR ENDING JUNE 30, 1927, IS APPROPRIATED.

THE APPROPRIATION FOR TRANSPORTATION OF DIPLOMATIC, CONSULAR, AND FOREIGN SERVICE OFFICERS, ACT OF APRIL 29, 1926, 44 STAT. 334, PROVIDES:

TO PAY THE ITEMIZED AND VERIFIED STATEMENTS OF THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE, UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF DIPLOMATIC, CONSULAR, AND FOREIGN SERVICE OFFICERS, AND CLERKS IN EMBASSIES, LEGATIONS, AND CONSULATES, INCLUDING OFFICERS OF THE UNITED STATES COURT FOR CHINA AND THEIR FAMILIES, AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS OR OF SUCH OFFICERS AND CLERKS WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE. * * *

IN DECISION OF APRIL 20, 1923, 2 COMP. GEN. 679, IT WAS HELD THAT THE ALLOWANCE OF $8 PER DAY FROM THE APPROPRIATION FOR THE COURT FOR CHINA WAS PAYABLE NOT ONLY FOR THE TIME ACTUALLY IN ATTENDANCE UPON THE SESSIONS OF THE COURT WHEN HELD OUTSIDE OF SHANGHAI BUT ALSO FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE PLACE OF HOLDING COURT. THE APPROPRIATION FOR THE TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS FOR THAT YEAR DID NOT CONTAIN THE WORDS "INCLUDING OFFICERS OF THE UNITED STATES COURT FOR CHINA.' UPON A RESUBMISSION OF THE QUESTION IN YOUR LETTER OF MAY 8, 1923, THE ATTENTION OF THIS OFFICE WAS CALLED TO THE FACT THAT THE STATUTE FOR THAT YEAR PROVIDED ELSEWHERE (ACT OF JUNE 1, 1922, 42 STAT. 610) THAT THE APPROPRIATION FOR TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS CARRIED IN THE SAME STATUTE SHOULD BE AVAILABLE FOR THE TRANSPORTATION OF OFFICERS OF THE UNITED STATES COURT FOR CHINA TO THE SAME EXTENT AS FOR TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS. ACCORDINGLY, BY DECISION OF MAY 11, 1923, 2 COMP. GEN. 747, THE FORMER DECISION WAS MODIFIED TO THE EXTENT OF HOLDING:

THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE OFFICERS OF THE COURT IN GOING TO AND RETURNING FROM THE VARIOUS PLACES OF HOLDING COURT MAY BE PAID FROM THE APPROPRIATION ,TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS," UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, WITHIN THE LIMITATIONS FIXED BY CONGRESS.

AT THE TIME THE DECISION LAST MENTIONED WAS RENDERED, THE PAYMENT OF ACTUAL EXPENSES OF SUBSISTENCE OF ALL GOVERNMENT EMPLOYEES, INCLUDING CONSULAR AND DIPLOMATIC OFFICERS, UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE, WAS LIMITED BY THE ACT OF APRIL 6, 1914, 38 STAT. 318, TO NOT EXCEEDING $5 PER DAY AND IT WAS TO THIS LIMITATION THAT THE LAST PARAGRAPH OF THAT DECISION REFERRED WHEN IT SPECIFIED THAT THE EXPENSES SHOULD BE "WITHIN THE LIMITATIONS FIXED BY CONGRESS.' UP TO AND INCLUDING JUNE 30, 1926, THEREFORE, THE MAXIMUM THAT COULD BE ALLOWED TO THE JUDGE AND DISTRICT ATTORNEY OF THE COURT FOR CHINA FOR SUBSISTENCE EXPENSES WHEN TRAVELING TO AND FROM THE PLACE OF HOLDING COURT WAS $5 PER DAY, THE $8 MAXIMUM APPLYING ONLY TO THE DAYS DURING WHICH SAID OFFICERS WERE IN ATTENDANCE UPON THE SESSIONS OF THE COURT.

ON AND AFTER JULY 1, 1926, HOWEVER, THIS DIFFERENCE IN RATE HAS BEEN ELIMINATED BY SECTION 5 OF THE ACT OF JUNE 3, 1926, 44 STAT. 689, WHICH PROVIDES:

CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS WHILE TRAVELING ON OFFICIAL BUSINESS BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES SHALL BE ALLOWED THEIR ACTUAL EXPENSES IN AN AMOUNT TO BE PRESCRIBED BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS NOT TO EXCEED AN AVERAGE OF $8 PER DAY DURING THE TRAVEL * * *

SEE ALSO PARAGRAPH 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

SAID ACT OF JUNE 3, 1926, DOES NOT, HOWEVER, MAKE ANY CHANGE IN THE APPROPRIATIONS TO WHICH THE SUBSISTENCE EXPENSES ARE CHARGEABLE AS PROPERLY DESIGNATED IN DECISION IN 2 COMP. GEN. 747.