A-19038, JULY 11, 1927, 7 COMP. GEN. 25

A-19038: Jul 11, 1927

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TRANSPORTATION - NAVAL PRISONERS THE SECRETARY OF THE NAVY IS AUTHORIZED UNDER THE ACT OF MARCH 3. WHEN IN THE JUDGMENT OF THE PRISON AUTHORITIES IT IS TO THE INTEREST OF THE DISCHARGED PRISONER TO PROVIDE TRANSPORTATION TO THE PLACE SELECTED BY HIM. 22 COMP. 35 STAT. 756: * * * THAT THE SECRETARY OF THE NAVY IS HEREAFTER AUTHORIZED TO TRANSPORT TO THEIR HOMES OR PLACES OF ENLISTMENT. WHERE THERE IS NO SUCH MONEY. THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO FURNISH NAVAL PRISONERS UPON DISCHARGE SUITABLE CIVILIAN CLOTHING IN CASE. THE PRECISE QUESTION PRESENTED WAS CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY. IT WAS HELD THAT THE FURNISHING OF TRANSPORTATION UNDER THE CITED ACT TO PLACES OTHER THAN THE HOMES OR PLACES OF ENLISTMENT OF DISCHARGED NAVAL PRISONERS WAS NOT AUTHORIZED.

A-19038, JULY 11, 1927, 7 COMP. GEN. 25

TRANSPORTATION - NAVAL PRISONERS THE SECRETARY OF THE NAVY IS AUTHORIZED UNDER THE ACT OF MARCH 3, 1909, 35 STAT. 756, TO PROVIDE BY REGULATION THAT TRANSPORTATION NOT EXCEEDING IN COST THE TRANSPORTATION FROM THE NAVAL PRISON TO THE PRISONER'S HOME OR PLACE OF ENLISTMENT MAY BE FURNISHED TO A PLACE OTHER THAN THE HOME OR PLACE OF ENLISTMENT OF A DISCHARGED NAVAL PRISONER WHEN SO REQUESTED BY HIM, AND WHEN IN THE JUDGMENT OF THE PRISON AUTHORITIES IT IS TO THE INTEREST OF THE DISCHARGED PRISONER TO PROVIDE TRANSPORTATION TO THE PLACE SELECTED BY HIM. 22 COMP. DEC. 189, REVERSED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 11, 1927:

THERE HAS BEEN RECEIVED YOUR FOURTH INDORSEMENT OF JUNE 27, 1927, REQUESTING DECISION OF QUESTIONS PRESENTED BY THE COMMANDING OFFICER, NAVAL PRISON, PARRIS ISLAND, S.C., WHETHER TRANSPORTATION MAY BE FURNISHED TO DISCHARGED NAVAL PRISONERS TO PLACES OTHER THAN THEIR HOMES OR PLACES OF ENLISTMENT "PROVIDED ALL CLAIMS FOR ANY DIFFERENCE IN COST TO THE GOVERNMENT BE WAIVED.' THE QUESTION ARISES UNDER THE PROVISION CONTAINED IN THE NAVAL APPROPRIATION ACT OF MARCH 3, 1909, FOR THE FISCAL YEAR 1910, 35 STAT. 756:

* * * THAT THE SECRETARY OF THE NAVY IS HEREAFTER AUTHORIZED TO TRANSPORT TO THEIR HOMES OR PLACES OF ENLISTMENT, AS HE MAY DESIGNATE, ALL DISCHARGED NAVAL PRISONERS; THE EXPENSE OF SUCH TRANSPORTATION SHALL BE PAID OUT OF ANY MONEY THAT MAY BE TO THE CREDIT OF PRISONERS WHEN DISCHARGED; WHERE THERE IS NO SUCH MONEY, THE EXPENSE SHALL BE PAID OUT OF MONEY RECEIVED FROM FINES AND FORFEITURES IMPOSED BY NAVAL COURTS-MARTIAL: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO FURNISH NAVAL PRISONERS UPON DISCHARGE SUITABLE CIVILIAN CLOTHING IN CASE, AND ONLY WHERE, SAID DISCHARGED PRISONERS WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING TO MEET THEIR IMMEDIATE NEEDS.

THE PRECISE QUESTION PRESENTED WAS CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY, 22 COMP. DEC. 189, AND IT WAS HELD THAT THE FURNISHING OF TRANSPORTATION UNDER THE CITED ACT TO PLACES OTHER THAN THE HOMES OR PLACES OF ENLISTMENT OF DISCHARGED NAVAL PRISONERS WAS NOT AUTHORIZED. THAT DECISION, ALTHOUGH IT DOES NOT CITE IT, SEEMS TO HAVE BEEN BASED UPON AN EARLIER DECISION TO THE ATTORNEY GENERAL, 19 COMP. DEC. 293, CONSTRUING THE ACT OF AUGUST 24, 1912, 37 STAT. 466, MAKING APPROPRIATIONS UNDER THE DEPARTMENT OF JUSTICE AND AUTHORIZING TRANSPORTATION FOR UNITED STATES PRISONERS TO "PLACE OF CONVICTION OR PLACE OF BONA FIDE RESIDENCE IN THE UNITED STATES.' THE LATTER DECISION SEEMS TO HAVE BEEN CONCERNED PRIMARILY WITH A CONSTRUCTION OF THE TERM "BONA FIDE RESIDENCE" RATHER THAN THE INTENT OF THE LEGISLATION AUTHORIZING THE FURNISHING OF TRANSPORTATION. THEREAFTER, THE DEPARTMENT OF JUSTICE APPROPRIATION ACT WAS BROADENED TO INCLUDE NOT ONLY THE PLACE OF CONVICTION OR BONA FIDE RESIDENCE BUT ALSO "SUCH OTHER PLACES WITHIN THE UNITED STATES AS MAY BE AUTHORIZED BY THE ATTORNEY GENERAL; " SEE 38 STAT. 868. THIS TERMINOLOGY HAS BEEN CARRIED INTO SECTION 9 OF THE ACT OF JUNE 7, 1924, 43 STAT. 473, ESTABLISHING A FEDERAL INDUSTRIAL INSTITUTION FOR WOMEN, AND INTO SECTION 10 OF THE ACT OF JANUARY 7, 1925, 43 STAT. 724, ESTABLISHING A UNITED STATES INDUSTRIAL REFORMATORY.

THE PURPOSE OF THE PROVISIONS OF LAW FOR A GRATUITY OF MONEY, CLOTHING, AND TRANSPORTATION TO THE PLACE WHERE CONVICTED IN THE CASE OF CIVIL PRISONERS, TO THE PLACE OF ENLISTMENT IN THE CASE OF NAVAL PRISONERS, OR TO THEIR HOMES, IS TO ENABLE THE FORMER PRISONER TO REESTABLISH HIMSELF IN THE CIVIL COMMUNITY AS A LAW-ABIDING CITIZEN WHICH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, IF DISCHARGED WITHOUT FUNDS, WITH UNFIT CLOTHING, AND IN THE VICINITY OF THE PRISON IN WHICH HE HAD SERVED A SENTENCE FOR THE COMMISSION OF A CRIME. SO FAR AS TRANSPORTATION IS INVOLVED, THE PURPOSE OF THE STATUTE IS NOT PRIMARILY TO RETURN THE FORMER PRISONER TO ONE OF TWO PLACES, HIS HOME OR THE PLACE OF ENLISTMENT, BUT TO ENABLE HIM TO GO FROM THE VICINITY OF THE PRISON TO BEGIN LIFE ANEW. UNDER THE STATUTE HERE CONSIDERED IT IS TO BE FURTHER OBSERVED THE MONEY FOR THE TRANSPORTATION IS TO BE SECURED FROM FUNDS OF THE FORMER PRISONER IF HE HAS ANY; IN SUCH A CASE THE STATUTE IS MERELY AUTHORITY TO USE A PORTION OF THE PRISONER'S OWN MONEY FOR THE PURCHASE OF TRANSPORTATION WITHIN THE LIMITS FIXED, AND THE SECRETARY OF THE NAVY HAS DISCRETION WHETHER TO SO USE THE PRISONER'S MONEY OR DISCHARGE THE PRISONER AT THE NAVAL PRISON AND PERMIT HIM TO PURCHASE TRANSPORTATION WITH HIS OWN FUNDS TO SUCH PLACE AS HE MAY CHOOSE.

NOTWITHSTANDING THE FORMER HOLDINGS, I AM OF OPINION THAT THE STATUTE IS NOT NECESSARILY RESTRICTIVE AS TO PLACE, BUT IN THIS RESPECT OPERATES ONLY AS A MAXIMUM UPON EXPENDITURE AND THE SECRETARY OF THE NAVY MAY PROVIDE BY REGULATION THAT TRANSPORTATION SHALL BE FURNISHED TO SUCH DISCHARGED PRISONERS TO PLACES OTHER THAN THEIR HOMES OR PLACES OF ENLISTMENT WHEN REQUESTED BY THE FORMER PRISONERS AND WHEN, IN THE JUDGMENT OF THE PRISON AUTHORITIES, IT WILL BE TO THE BEST INTERESTS OF THE FORMER PRISONERS, SUCH TRANSPORTATION, HOWEVER, IN NO CASE, TO EXCEED THE COST OF TRANSPORTATION TO THE HOME OR PLACE OF ENLISTMENT OF THE FORMER PRISONER. AS THE STATUTE GIVES THE PRISONER NO ENFORCEABLE RIGHT, THE NECESSITY FOR A WAIVER IS NOT APPARENT.

YOUR QUESTION IS ANSWERED ACCORDINGLY. 22 COMP. DEC. 189, WILL NOT HEREAFTER BE FOLLOWED.