A-38942, OCTOBER 27, 1931, 11 COMP. GEN. 162

A-38942: Oct 27, 1931

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ARE EXPENSES OF THE MARSHAL OR HIS DEPUTY. 1931: REFERENCE IS HAD TO ORDER NO. 2220. YOUR STATE THAT THIS ORDER WAS ISSUED UNDER AUTHORITY OF SECTION 4 OF THE SUBSISTENCE ACT OF 1926. THE BASIC AUTHORITY FOR THE HIRE OF TRAVELING GUARDS IS FOUND IN SECTIONS 10 AND 12 OF THE ACT OF MAY 28. AS FOLLOWS: SEC. 10. * * * WHEN ANY OF SUCH OFFICE DEPUTIES IS ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY WRIT. INCLUDING NECESSARY GUARD HIRE. * * * THE FOREGOING PROVISIONS WERE NOT CHANGED IN ANY PARTICULAR. IN SO FAR AS THE COMPENSATION OF TRAVELING GUARDS IS CONCERNED. IT WAS ACCORDINGLY HELD IN DECISION OF APRIL 4. " ARE NOT REPEALED OR IN ANY WAY MODIFIED BY THE ACT OF JULY 1. THE FOREGOING SECTIONS 3 AND 4 OF THE SUBSISTENCE ACT ARE SUBSTANTIALLY THE SAME.

A-38942, OCTOBER 27, 1931, 11 COMP. GEN. 162

SUBSISTENCE - GUARDS THE HIRE AND FEEDING OF GUARDS TEMPORARILY EMPLOYED BY UNITED STATES MARSHALS, OR THEIR DEPUTIES, IN CONNECTION WITH THE TRANSPORTATION OF PRISONERS, ARE EXPENSES OF THE MARSHAL OR HIS DEPUTY. SUCH TRAVELING GUARDS CAN NOT BE CONSIDERED EMPLOYEES OF AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT WITHIN THE PURVIEW OF THE SUBSISTENCE EXPENSE ACT OF 1926, AND MAY NOT, THEREFORE, BE PAID A COMMUTED RATE OR A PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, OCTOBER 27, 1931:

REFERENCE IS HAD TO ORDER NO. 2220, ISSUED BY THE DEPARTMENT OF JUSTICE, SEPTEMBER 22, 1931, PURPORTING TO AUTHORIZE ON AND AFTER OCTOBER 1, 1931, THE PAYMENT TO TRAVELING GUARDS, IN ADDITION TO ACTUAL TRAVELING EXPENSES, OF A PER DIEM IN LIEU OF SUBSISTENCE OF $4. IN YOUR LETTER OF OCTOBER 16, 1931, YOUR STATE THAT THIS ORDER WAS ISSUED UNDER AUTHORITY OF SECTION 4 OF THE SUBSISTENCE ACT OF 1926, 44 STAT. 688.

THE BASIC AUTHORITY FOR THE HIRE OF TRAVELING GUARDS IS FOUND IN SECTIONS 10 AND 12 OF THE ACT OF MAY 28, 1896, 29 STAT. 182 AND 183, AS FOLLOWS:

SEC. 10. * * * WHEN ANY OF SUCH OFFICE DEPUTIES IS ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY WRIT, PROCESS, SUBPOENA, OR OTHER ORDER OF THE COURT, OR WHEN NECESSARILY ABSENT FROM THE PLACE OF HIS REGULAR EMPLOYMENT, ON OFFICIAL BUSINESS, HE SHALL BE ALLOWED HIS ACTUAL TRAVELING EXPENSES ONLY, AND HIS NECESSARY AND ACTUAL EXPENSES FOR LODGING AND SUBSISTENCE, NOT TO EXCEED TWO DOLLARS PER DAY, AND THE NECESSARY ACTUAL EXPENSES IN TRANSPORTING PRISONERS, INCLUDING NECESSARY GUARD HIRE; AND HE SHALL MAKE AND RENDER ACCOUNTS THEREOF AS HEREINAFTER PROVIDED.

SEC. 12. THAT THE MARSHAL, WHEN ATTENDING COURT AT ANY PLACE OTHER THAN HIS OFFICIAL RESIDENCE, AND WHEN ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY PROCESS, WRIT, OR SUBPOENA, AND WHEN OTHERWISE NECESSARILY ABSENT FROM HIS OFFICIAL RESIDENCE ON OFFICIAL BUSINESS, SHALL BE ALLOWED HIS NECESSARY EXPENSES FOR LODGING AND SUBSISTENCE, NOT EXCEEDING FOUR DOLLARS PER DAY AND HIS ACTUAL NECESSARY TRAVELING EXPENSES. HE SHALL ALSO BE ALLOWED THE ACTUAL NECESSARY EXPENSES IN TRANSPORTING PRISONERS, INCLUDING NECESSARY GUARD HIRE. * * *

THE FOREGOING PROVISIONS WERE NOT CHANGED IN ANY PARTICULAR, IN SO FAR AS THE COMPENSATION OF TRAVELING GUARDS IS CONCERNED, BY THE ACT OF JULY 1, 1918, 40 STAT. 683, WHICH AMENDED THAT PORTION OF THE ACT OF 1896, RELATING TO THE ALLOWANCE OF SUBSISTENCE TO MARSHALS AND OFFICE DEPUTIES. IT WAS ACCORDINGLY HELD IN DECISION OF APRIL 4, 1919, 25 COMP. DEC. 729:

THE PROVISIONS OF SECTIONS 10 AND 12 OF THE ACT OF MAY 28, 1896, AUTHORIZING THE ALLOWANCE OF ,ACTUAL EXPENSES IN TRANSPORTING PRISONERS, INCLUDING NECESSARY GUARD HIRE," ARE NOT REPEALED OR IN ANY WAY MODIFIED BY THE ACT OF JULY 1, 1918, AUTHORIZING THE GRANTING OF PER DIEMS IN LIEU OF SUBSISTENCE TO MARSHALS AND OFFICE DEPUTY MARSHALS.

THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, PROVIDES AS FOLLOWS:

SEC. 3. CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY SHALL BE ALLOWED THEIR ACTUAL NECESSARY EXPENSES IN AN AMOUNT NOT TO EXCEED $7 EACH FOR ANY ONE CALENDAR DAY.

SEC. 4. THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS, IN LIEU OF THE ACTUAL EXPENSES AUTHORIZED BY SECTION 3, MAY PRESCRIBE A PER DIEM ALLOWANCE NOT TO EXCEED $6 FOR ANY ONE CALENDAR DAY OR PORTIONS THEREOF FOR ABSENCES OF LESS THAN TWENTY-FOUR HOURS.

THE FOREGOING SECTIONS 3 AND 4 OF THE SUBSISTENCE ACT ARE SUBSTANTIALLY THE SAME, EXCEPT FOR THE MAXIMUM AMOUNTS ALLOWABLE, AS THE PREVIOUS ACT OF APRIL 6, 1914, 38 STAT. 318, AND SECTION 13 OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680. IT WILL BE NOTED THAT THESE ACTS OF 1914 PROVIDING FOR ACTUAL EXPENSES OF SUBSISTENCE AND PER DIEMS IN LIEU OF SUBSISTENCE HAD BEEN IN FORCE FOR A NUMBER OF YEARS BEFORE THE ACT OF JULY 1, 1918, SUPRA, AND, ALSO, BEFORE THE DECISION OF 25 COMP. DEC. 729. YOU REFER TO THE DECISION IN 27 COMP. DEC. 807, HOLDING THAT AN EXPERT WITNESS IS AN EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF THE ACT OF APRIL 6, 1914, SUPRA, AND URGE THAT IT FOLLOWS THAT TRAVELING GUARDS TEMPORARILY EMPLOYED IN CONNECTION WITH THE TRANSPORTATION OF PRISONERS ARE, ALSO, EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE SUBSISTENCE ACTS.

THERE IS, HOWEVER, A DISTINCTION BETWEEN THE EMPLOYMENT OF EXPERTS AS WITNESSES AND THE EMPLOYMENT OF TRAVELING GUARDS. THE SERVICES OF EXPERT WITNESSES ARE RENDERED IN BEHALF OF THE GOVERNMENT AND THEY ARE EMPLOYED ON AUTHORITY FROM THE ATTORNEY GENERAL IN EACH PARTICULAR CASE. PARAGRAPHS 1033 TO 1044, INSTRUCTIONS TO UNITED STATES ATTORNEYS, MARSHALS, CLERKS AND COMMISSIONERS, OCTOBER 1, 1929. ON THE OTHER HAND, TRAVELING GUARDS ARE EMPLOYED BY THE MARSHAL OR DEPUTY AND THE DETERMINATION OF THE NECESSITY FOR THEIR HIRE IS LEFT TO THE DISCRETION OF THE MARSHAL. IN OTHER WORDS, THE EXPENSE OF GUARD HIRE IS AN EXPENSE OF THE MARSHAL OR HIS DEPUTY, AS IS, ALSO, THE EXPENSE OF FEEDING THE GUARD. TRAVELING GUARDS CAN NOT, THEREFORE, BE CONSIDERED CIVILIAN EMPLOYEES OR OFFICERS OF AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT. ACCORDINGLY, THE SUBSISTENCE ACT OF 1926 IS NOT APPLICABLE TO TRAVELING GUARDS, AND THERE IS NO AUTHORITY TO ALLOW SUCH GUARDS A COMMUTED RATE OF PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE.

YOU ARE REQUESTED TO TAKE SUCH ACTION AS MAY BE NECESSARY TO REVOKE THE ORDER NO. 2220, AS THIS OFFICE WILL HAVE NO CHOICE BUT TO DISALLOW CREDIT IN THE MARSHAL'S OR DEPUTY MARSHAL'S ACCOUNTS OF ALL PER DIEM IN LIEU OF SUBSISTENCE PAID TO TRAVELING GUARDS.