A-43736, AUGUST 5, 1932, 12 COMP. GEN. 190

A-43736: Aug 5, 1932

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SAID EXPENSES TO BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH SUCH COURT IS HELD OR OFFICIAL BUSINESS TRANSACTED. WHILE IT IS TRUE THAT SECTION 207 OF THE ECONOMY ACT AMENDS SECTION 3 OF THE SUBSISTENCE ACT OF 1926 TO THE EXTENT OF ALLOWING A PER DIEM OF NOT EXCEEDING $5.00 IN LIEU OF SUBSISTENCE. 209 ARE. YOUR ATTENTION IS INVITED TO THE FACT THAT THE EXPENSES OF UNITED STATES CIRCUIT AND DISTRICT JUDGES HAVE NEVER BEEN CONSIDERED AS COMING WITHIN THE PURVIEW OF THE SUBSISTENCE ACT OF 1926. WHICH IS AMENDED IN THE ECONOMY ACT. THE SUBSISTENCE ACT IS NOT APPLICABLE TO THEM. ARE INAPPLICABLE TO THE EXPENSES OF SAID JUDGES. ATTENTION IS ALSO INVITED TO THE FACT THAT SUCH EXPENSES ARE PAID BY THE UNITED STATES MARSHAL SOLELY UPON THE CERTIFICATE OF THE JUDGE.

A-43736, AUGUST 5, 1932, 12 COMP. GEN. 190

ECONOMY ACT - SUBSISTENCE - JUDGES FEDERAL JUDGES MAY BE REIMBURSED FOR SUBSISTENCE EXPENSES DURING THE FISCAL YEAR 1933 ONLY UPON A PER DIEM BASIS OF NOT EXCEEDING $5 A DAY, AS REQUIRED BY SECTIONS 207, 208, 210, AND 803 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, AUGUST 5, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 28, 1932, AS FOLLOWS:

TITLE 28, SECTION 374, OF THE U.S.C. RELATING TO THE TRAVELING EXPENSES OF UNITED STATES CIRCUIT AND DISTRICT JUDGES PROVIDES IN PART AS FOLLOWS:

"THE CIRCUIT JUSTICES, THE CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES, AND THE JUDGES OF THE DISTRICT COURTS OF THE UNITED STATES INALASKA, HAWAII, AND PORTO RICO SHALL EACH BE ALLOWED AND PAID HIS NECESSARY EXPENSES OF TRAVEL, AND HIS REASONABLE EXPENSES (NOT TO EXCEED $10.00 PER DAY) ACTUALLY INCURRED FOR MAINTENANCE, CONSEQUENT UPON HIS ATTENDING COURT OR TRANSACTING OTHER OFFICIAL BUSINESS IN PURSUANCE OF LAW AT ANY PLACE OTHER THAN HIS OFFICIAL PLACE OF RESIDENCE, SAID EXPENSES TO BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH SUCH COURT IS HELD OR OFFICIAL BUSINESS TRANSACTED, UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OF JUDGE.'

SECTION 3 OF THE PUBLIC ACT NO. 232, APPROVED JULY 1, 1932, PROVIDES:

"NO PART OF ANY APPROPRIATION MADE BY THIS ACT SHALL BE USED TO PAY ACTUAL EXPENSES OF SUBSISTENCE IN EXCESS OF $6.00 EACH FOR ANY ONE CALENDAR DAY, OR PER DIEM ALLOWANCE FOR SUBSISTENCE IN EXCESS OF THE RATE OF $5.00 FOR ANY ONE CALENDAR DAY, TO ANY OFFICER OR EMPLOYEE OF UNITED STATES, AND PAYMENTS ACCORDINGLY SHALL BE IN FULL NOTWITHSTANDING ANY OTHER STATUTORY PROVISION.'

THE QUESTION ARISES AS TO THE PROPER SUBSISTENCE ALLOWANCE TO UNITED STATES CIRCUIT AND DISTRICT JUDGES WHEN ABSENT FROM THEIR HEADQUARTERS ON OFFICIAL BUSINESS. WHILE IT IS TRUE THAT SECTION 207 OF THE ECONOMY ACT AMENDS SECTION 3 OF THE SUBSISTENCE ACT OF 1926 TO THE EXTENT OF ALLOWING A PER DIEM OF NOT EXCEEDING $5.00 IN LIEU OF SUBSISTENCE, WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, AND THAT, UNDER SECTION 210 OF SAID ACT, ALL PROVISIONS OF ALL ACTS HERETOFORE ENACTED INCONSISTENT WITH SECTIONS 207, 208, AND 209 ARE, TO THE EXTENT OF SUCH INCONSISTENCY, REPEALED, YOUR ATTENTION IS INVITED TO THE FACT THAT THE EXPENSES OF UNITED STATES CIRCUIT AND DISTRICT JUDGES HAVE NEVER BEEN CONSIDERED AS COMING WITHIN THE PURVIEW OF THE SUBSISTENCE ACT OF 1926, WHICH IS AMENDED IN THE ECONOMY ACT. IF, THEREFORE, THE SUBSISTENCE ACT IS NOT APPLICABLE TO THEM, APPARENTLY NO INCONSISTENCY EXISTS, AND SECTIONS 207-210, INCLUSIVE, ARE INAPPLICABLE TO THE EXPENSES OF SAID JUDGES.

ATTENTION IS ALSO INVITED TO THE FACT THAT SUCH EXPENSES ARE PAID BY THE UNITED STATES MARSHAL SOLELY UPON THE CERTIFICATE OF THE JUDGE; THAT THEY ARE OFFICERS OF THE JUDICIAL BRANCH OF THE SERVICE AS DISTINGUISHED FROM OFFICERS IN THE "DEPARTMENTS AND ESTABLISHMENTS," AND THAT, AS PREVIOUSLY INDICATED, SUCH PAYMENTS HAVE NEVER HERETOFORE BEEN MADE UNDER THE PROVISIONS OF OR IN ACCORDANCE WITH THE SUBSISTENCE ACT OF 1926.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PARAGRAPH 5 OF THE DEPARTMENT'S ORDER 2298, DATED JUNE 28, 1932, A COPY OF WHICH IS INCLOSED HEREWITH, CORRECTLY AND PROPERLY LIMITS THE PAYMENT TO SUCH JUDGES OF AMOUNTS NOT EXCEEDING $6.00 PER DAY FOR ACTUAL EXPENSES OF SUBSISTENCE, AS PROVIDED BY TITLE 28, SECTION 374, U.S.C. AND SECTION 3 OF THE ACT OF JULY 1, 1932, SUPRA.

SECTIONS 207, 208, 210, AND 803 OF THE ACT OF JUNE 30, 1932, 47 STAT., 405, 406 AND 419, PROVIDE:

SEC. 207. SECTION 3 OF THE SUBSISTENCE EXPENSE ACT OF 1926, APPROVED JUNE 3, 1926 (44 STAT. 688, 689), IS HEREBY AMENDED TO READ 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, IN LIEU OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE AND ALL FEES OR TIPS TO PORTERS AND STEWARDS, A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, NOT TO EXCEED THE RATE OF $5 WITHIN THE LIMITS OF CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $6 BEYOND THE LIMITS OF CONTINENTAL UNITED STATES.'

SEC. 208. SECTIONS 4, 5, AND 6 OF THE SAID SUBSISTENCE EXPENSE ACT OF 1926 ARE HEREBY REPEALED, AND SECTION 7 THEREOF IS HEREBY AMENDED BY STRIKING OUT THE REFERENCE THEREIN TO ACTUAL EXPENSES SO THAT THE SECTION, AS AMENDED, WILL READ AS FOLLOWS:

"SEC. 7. THE FIXING AND PAYMENT, UNDER SECTION 3, OF PER DIEM ALLOWANCE, OR PORTIONS THEREOF, SHALL BE IN ACCORDANCE WITH REGULATIONS WHICH SHALL BE PROMULGATED BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS AND WHICH SHALL BE STANDARDIZED AS FAR AS PRACTICABLE AND SHALL NOT BE EFFECTIVE UNTIL APPROVED BY THE PRESIDENT OF THE UNITED STATES.'

SEC. 803. THE PROVISIONS OF PART 2 HEREIN ARE HEREBY MADE APPLICABLE TO THE APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1933, WHETHER CONTAINED IN THIS ACT OR IN ACTS PRIOR OR SUBSEQUENT TO THE DATE OF THE APPROVAL OF THIS ACT.

SECTION 9 OF THE SUBSISTENCE ACT OF JUNE 3, 1926, 44 STAT. 688, PROVIDED AS FOLLOWS:

ALL LAWS OR PARTS OF LAWS WHICH ARE INCONSISTENT WITH OR IN CONFLICT WITH THE PROVISION OF THIS ACT EXCEPT SUCH LAWS OR PARTS OF LAW AS SPECIFICALLY FIX OR NOW PERMIT RATES HIGHER THAN THE MAXIMUM RATES ESTABLISHED IN THIS ACT ARE HEREBY REPEALED OR MODIFIED ONLY TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

IT WAS FOR THE REASONS INDICATED IN SECTION 9 OF THE SUBSISTENCE ACT THAT IT WAS NOT APPLIED TO THE EXPENSES OF JUDGES, SUCH EXPENSES HAVING BEEN SPECIFICALLY PROVIDED FOR AT HIGHER RATES IN SECTION 259 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1161, IT BEING NOTED IN THIS CONNECTION THAT THE SUBSISTENCE ACT WAS NOT LIMITED IN ITS APPLICATION TO EXECUTIVE ESTABLISHMENTS. SEE SECTION 2 OF SAID ACT. THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT, HOWEVER, THAT SAID SECTION 259 OF THE ACT OF 1911 AND SECTION 9 OF THE SUBSISTENCE ACT OF 1926 ARE INCONSISTENT WITH THE ABOVE QUOTED SECTIONS OF THE ECONOMY ACT, AND, ACCORDINGLY ARE REPEALED TO THE EXTENT OF SUCH INCONSISTENCY BY SECTION 210 OF THAT ACT.

SECTION 803 OF THE ECONOMY ACT MAKES ITS PROVISIONS APPLICABLE TO ALL APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1933, WHETHER ENACTED PRIOR OR SUBSEQUENT TO THE APPROVAL OF THE ECONOMY ACT. IT MUST BE HELD, THEREFORE, THAT THE APPROPRIATION IS AVAILABLE FOR THE SUBSISTENCE EXPENSES OF JUDGES ON AND AFTER JULY 1, 1932, ONLY UPON A PER DIEM BASIS OF NOT TO EXCEED $5 A DAY. SEE DECISION OF JULY 26, 1932, TO YOU, A- 43497, 12 COMP. GEN. 125. THE ORDER NO. 2298 OF JUNE 28, 1932, SHOULD BE MODIFIED ACCORDINGLY.