A-4910, OCTOBER 4, 1924, 4 COMP. GEN. 353

A-4910: Oct 4, 1924

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IS FURNISHED TRANSPORTATION OVER A ROUTE OTHER THAN THE ESTABLISHED ROUTE. THE TOTAL COST OF SUCH TRANSPORTATION IS GREATER THAN THAT OF THROUGH TRANSPORTATION OVER THE ESTABLISHED SHORTEST USUALLY TRAVELED ROUTE. 1924: I HAVE YOUR LETTER OF AUGUST 27. AS FOLLOWS: YOUR DECISION IS REQUESTED: (1) AS TO THE SPECIFIC APPLICATION WHICH SHOULD BE GIVEN YOUR DECISION OF APRIL 23. IS NULLIFIED. TO ILLUSTRATE THE QUESTIONS CONCERNING WHICH YOUR DECISION IS REQUESTED TWO CASES ARE SET FORTH BELOW: (A) AN OFFICER ORDERED FROM WASHINGTON. OF VIA THE OFFICIAL ROUTE WHICH IS VIA THE BALTIMORE AND OHIO RAILROAD THROUGH CINCINNATI. WHICH IS THE OFFICIAL DISTANCE. IS 892 MILES. WHILE VIA THE ROUTE OF TRAVEL THE DISTANCE IS 1.

A-4910, OCTOBER 4, 1924, 4 COMP. GEN. 353

MILEAGE - ARMY OFFICERS TRAVELING OVER CIRCUITOUS ROUTE ON GOVERNMENT TRANSPORTATION REQUESTS WHERE AN ARMY OFFICER TRAVELING ON A MILEAGE STATUS UNDER THE ACT OF JUNE 12, 1906, 34 STAT. 246, AS AMENDED BY THE ACT OF JUNE 10, 1922, 42 STAT. 631, IS FURNISHED TRANSPORTATION OVER A ROUTE OTHER THAN THE ESTABLISHED ROUTE, FOR HIS OWN CONVENIENCE, AND THE TOTAL COST OF SUCH TRANSPORTATION IS GREATER THAN THAT OF THROUGH TRANSPORTATION OVER THE ESTABLISHED SHORTEST USUALLY TRAVELED ROUTE, THERE SHOULD BE DEDUCTED FROM THE OFFICER'S MILEAGE ACCOUNT, IN ADDITION TO THE DEDUCTION OF 3 CENTS PER MILE FOR THE DISTANCE OVER THE ESTABLISHED ROUTE, THE DIFFERENCE BETWEEN THE COST TO THE GOVERNMENT FOR THROUGH TRANSPORTATION VIA THE ESTABLISHED ROUTE AND THE COST TO THE GOVERNMENT FOR THE TRANSPORTATION ACTUALLY FURNISHED. 7 COMP. DEC. 301, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, OCTOBER 4, 1924:

I HAVE YOUR LETTER OF AUGUST 27, 1924, AS FOLLOWS:

YOUR DECISION IS REQUESTED: (1) AS TO THE SPECIFIC APPLICATION WHICH SHOULD BE GIVEN YOUR DECISION OF APRIL 23, 1924 (3 COMP. GEN. 787); AND (2) AS TO THE EXTENT TO WHICH, IF ANY, THE DECISION OF THE COMPTROLLER OF THE TREASURY OF JANUARY 5, 1901 (7 COMP. DEC. 301), IS NULLIFIED.

TO ILLUSTRATE THE QUESTIONS CONCERNING WHICH YOUR DECISION IS REQUESTED TWO CASES ARE SET FORTH BELOW:

(A) AN OFFICER ORDERED FROM WASHINGTON, D.C., TO ST. LOUIS, MO., IN A MILEAGE STATUS OBTAINS AND USES GOVERNMENT TRANSPORTATION BY WAY OF CHICAGO, ILL., INSTEAD OF VIA THE OFFICIAL ROUTE WHICH IS VIA THE BALTIMORE AND OHIO RAILROAD THROUGH CINCINNATI, OHIO. THE DISTANCE VIA THE LATTER ROUTE, WHICH IS THE OFFICIAL DISTANCE, IS 892 MILES, WHILE VIA THE ROUTE OF TRAVEL THE DISTANCE IS 1,071 MILES. THE COST TO THE GOVERNMENT OF TRANSPORTATION VIA THE TWO ROUTES IS $31.56 FOR THE SHORTER ROUTE AND $32.84 FOR THE LONGER. WITH THE STOP-OVER PRIVILEGE AT CHICAGO, ILL., THE COST IS $2.77 MORE, OR $35.61. IF HE BE PAID MILEAGE AT THE RATE OF 8 CENTS PER MILE FOR 892 MILES WITH A DEDUCTION OF 3 CENTS PER MILE FOR 1,071 MILES; UNDER THE PRINCIPAL ESTABLISHED IN THE DECISION OF JANUARY 5, 1901, HE WOULD BE PAID $39.23. IF, HOWEVER, UNDER THE DECISION OF APRIL 23, 1924, HE BE PAID ON THE BASIS OF 892 MILES AT 8 CENTS PER MILE WITH A DEDUCTION AT 3 CENTS PER MILE FOR THE SAME DISTANCE AND WITH A FURTHER DEDUCTION OF $1.28 AS THE DIFFERENCE IN COST OF TRANSPORTATION, HE WOULD BE PAID $43.32.

(B) AN OFFICER ORDERED FROM SALT LAKE CITY, UTAH, TO VANCOUVER BARRACKS, WASHINGTON, TRAVELS ON GOVERNMENT TRANSPORTATION VIA SAN FRANCISCO, CAL., A DISTANCE OF 1,600 MILES, OF WHICH 664 MILES IS VIA A LAND-GRANT RAILROAD. THE OFFICIAL DISTANCE VIA THE DIRECT ROUTE IS 896 MILES, OF WHICH NO PART IS VIA A LAND-GRANT ROAD. THE COST TO THE GOVERNMENT OF TRANSPORTATION VIA ROUTE OF TRAVEL IS $32.55 AND VIA THE OFFICIAL ROUTE, $31.48. UNDER THE EARLIER DECISION THE AMOUNT OF MILEAGE DUE THE OFFICER WOULD BE $23.68, WHILE IF THE LATER DECISION IS TO GOVERN THE AMOUNT PAYABLE WOULD BE $43.73, RESULTING IN A LOSS TO THE GOVERNMENT OF $20.05.

THE QUESTION IN EACH CASE IS WHETHER MILEAGE WOULD BE PAYABLE UNDER THE CONDITIONS CITED ACCORDING TO THE 1901 OR THE 1924 DECISION.

IN CONNECTION WITH THE SUBMISSION OF THESE QUESTIONS FOR YOUR DECISION IT IS DEEMED APPROPRIATE TO SET FORTH BRIEFLY THE VIEWS OF THE DEPARTMENT AS TO THE METHOD OF SETTLEMENT REQUIRED BY LAW IN THIS CLASS OF ACCOUNTS:

FIRST: THE DECISION OF JANUARY 5, 1901, WAS EFFECTIVE FOR MORE THAN 23 YEARS, DURING WHICH PERIOD IT GOVERNED THE SETTLEMENT OF ALL SUCH CLAIMS. IT WOULD SEEM THAT A METHOD USED FOR SUCH A LENGTH OF TIME IN OBEDIENCE TO A DECISION OF THE COMPTROLLER OF THE TREASURY SHOULD NOT BE SUDDENLY OVERTURNED UNLESS SHOWN TO BE CLEARLY IN ERROR. WHEN IT IS CONSIDERED THAT IN MOST CASES THE EARLIER DECISION AFFORDS A GREATER PROTECTION TO THE GOVERNMENT AND THAT THE USE OF CIRCUITOUS ROUTES IS GENERALLY FOR THE CONVENIENCE OF THE TRAVELER, THE REASONS FOR REVERSING THE PRINCIPLE OF THE EARLIER DECISION ARE NOT APPARENT TO THIS DEPARTMENT.

SECOND: THE LAW PROVIDES THAT FOR TRANSPORTATION FURNISHED THERE SHALL BE DEDUCTED 3 CENTS PER MILE; AND, ACCORDING TO YOUR DECISION OF AUGUST 22, 1922 (2ND COMP. GEN. 1345), THIS IS REQUIRED, WHETHER THE COST OF TRANSPORTATION FURNISHED IS MORE OR LESS THAN 3 CENTS PER MILE. HAD THE CONGRESS INTENDED TO DEDUCT THE COST OF TRANSPORTATION FURNISHED, IT WOULD SEEM THAT SUCH PROVISION WOULD HAVE BEEN INCORPORATED IN THE LAW INSTEAD OF A PROVISO REQUIRING DEDUCTION TO BE MADE AT A FLAT RATE OF 3 CENTS PER MILE. THE ACT OF MARCH 3, 1899 (30 STAT. 1068), CONTAINED A PROVISION FOR DEDUCTING COST OF TRANSPORTATION FURNISHED UNDER CERTAIN CONDITIONS, AS DID SOME EARLIER ANNUAL APPROPRIATION ACTS; BUT THE ACT OF MAY 26, 1900 (31 STAT. 210), ESTABLISHED A MILEAGE BASIS FOR MAKING DEDUCTION FOR TRANSPORTATION FURNISHED, INSTEAD OF A COST BASIS, AND SINCE THAT TIME THE MILEAGE BASIS HAS BEEN CONTINUED IN THE SUCCEEDING MILEAGE LAWS. THE SETTLEMENT ON A MILEAGE BASIS SIMPLIFIES THE PAYING AND AUDITING OF MILEAGE ACCOUNTS AS COMPARED WITH SETTLEMENTS ON AN ACTUAL COST BASIS, WHICH IS ONE OF THE REASONS FOR THE PASSAGE OF THE MILEAGE LAWS IN THE PAST.

THE ACT OF JUNE 12, 1906, 34 STAT. 246 (AMENDED BY THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS TO THE RATE OF THE MILEAGE ALLOWANCE), PROVIDES:

* * * AND PAYMENT AND SETTLEMENT OF MILEAGE OF OFFICERS SHALL BE MADE ACCORDING TO DISTANCES AND DEDUCTIONS COMPUTED OVER ROUTES ESTABLISHED AND BY MILEAGE TABLES PREPARED BY THE PAYMASTER-GENERAL OF THE ARMY UNDER THE DIRECTION OF THE SECRETARY OF WAR. * * * PROVIDED FURTHER, THAT OFFICERS WHO SO DESIRE MAY, UPON APPLICATION TO THE QUARTERMASTER'S DEPARTMENT, BE FURNISHED UNDER THEIR ORDERS TRANSPORTATION REQUESTS FOR THE ENTIRE JOURNEY BY LAND, EXCLUSIVE OF SLEEPING AND PARLOR CAR ACCOMMODATIONS, ORBY WATER; AND THE TRANSPORTATION SO FURNISHED SHALL, IF TRAVEL WAS PERFORMED UNDER A MILEAGE STATUS, BE A CHARGE AGAINST THE OFFICER'S MILEAGE ACCOUNT, TO BE DEDUCTED AT THE RATE OF THREE CENTS PER MILE BY THE PAYMASTER PAYING THE ACCOUNT, AND OF THE AMOUNT SO DEDUCTED THERE SHALL BE TURNED OVER TO AN AUTHORIZED OFFICER OF THE QUARTERMASTER'S DEPARTMENT THREE CENTS PER MILE FOR TRANSPORTATION FURNISHED, EXCEPT OVER ANY RAILROAD WHICH IS A FREE OR FIFTY PERCENTUM LAND-GRANT RAILROAD, FOR THE CREDIT OF THE APPROPRIATION FOR THE TRANSPORTATION OF THE ARMY AND ITS SUPPLIES; AND PROVIDED FURTHER, THAT WHEN THE ESTABLISHED ROUTE OF TRAVEL SHALL, IN WHOLE OR IN PART, BE OVER THE LINE OF ANY RAILROAD ON WHICH THE TROOPS AND SUPPLIES OF THE UNITED STATES ARE ENTITLED TO BE TRANSPORTED FREE OF CHARGE, OR OVER ANY FIFTY PERCENTUM LAND-GRANT RAILROAD, OFFICERS TRAVELING AS HEREIN PROVIDED FOR SHALL FOR THE TRAVEL OVER SUCH ROADS, BE FURNISHED WITH TRANSPORTATION REQUESTS, EXCLUSIVE OR SLEEPING AND PARLOR CAR ACCOMMODATIONS, BY THE QUARTERMASTER'S DEPARTMENT: AND PROVIDED FURTHER, THAT WHEN TRANSPORTATION IS FURNISHED BY THE QUARTERMASTER'S DEPARTMENT, OR WHEN THE ESTABLISHED ROUTE OF TRAVEL IS OVER ANY OF THE RAILROADS ABOVE SPECIFIED, THERE SHALL BE DEDUCTED FROM THE OFFICER'S MILEAGE ACCOUNT BY THE PAYMASTER PAYING THE SAME THREE CENTS PER MILE FOR THE DISTANCE FOR WHICH TRANSPORTATION HAS BEEN OR SHOULD HAVE BEEN FURNISHED: * * *

IN THE COMPTROLLER'S DECISION REFERRED TO BY YOU, 7 COMP. DEC. 301, IT WAS HELD THAT UNDER THE SIMILAR ACT OF MAY 26, 1900, 31 STAT. 210:

1. WHERE THE TRAVEL IS BY ONE OR MORE USUALLY TRAVELED ROUTES OVER WHICH THE RATE OF FARE BETWEEN TERMINAL POINTS IS THE SAME TO THE GENERAL PUBLIC OR BY SPECIAL AGREEMENT WITH THE GOVERNMENT, A DEDUCTION OF 3 CENTS PER MILE SHOULD BE MADE FOR THE NUMBER OF MILES FOR WHICH TRANSPORTATION IS ACTUALLY FURNISHED OR SHOULD HAVE BEEN FURNISHED, NOT EXCEEDING, HOWEVER, THE NUMBER OF MILES FOR WHICH MILEAGE IS ALLOWED.

2. WHERE THE TRAVEL IS BY A LONGER ROUTE FOR THE CONVENIENCE OF THE OFFICER, AND THE RATE OF FARE THEREBY, ASCERTAINED AS IN PARAGRAPH 1, IS GREATER THAN BY THE USUALLY TRAVELED ROUTE, A DEDUCTION OF 3 CENTS PER MILE SHOULD BE MADE FOR THE NUMBER OF MILES FOR WHICH TRANSPORTATION IS OR SHOULD HAVE BEEN FURNISHED BY SUCH ROUTE.

IN THE DECISION OF THIS OFFICE OF APRIL 23, 1924, 3 COMP. GEN. 787, ON SUBMISSION BY THE NAVY DEPARTMENT, THE PROVISIONS OF THE 1906 ACT HAVING BEEN EXTENDED TO OFFICERS OF THE NAVY BY SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, IT WAS HELD THAT WHERE AN OFFICER TRAVELING ON A MILEAGE STATUS IS ISSUED SEPARATE TRANSPORTATION REQUESTS COVERING THE ENTIRE JOURNEY TO ENABLE HIM TO MAKE STOP-OVERS EN ROUTE FOR HIS OWN CONVENIENCE, OR WHERE TRANSPORTATION REQUESTS ARE ISSUED FOR CIRCUITOUS TRAVEL, AND THE TOTAL COST OF SUCH TRANSPORTATION IS GREATER THAN THAT OF THROUGH TRANSPORTATION OVER THE SHORTEST USUALLY TRAVELED ROUTE, THERE SHOULD BE DEDUCTED FROM THE OFFICER'S MILEAGE ACCOUNT, IN ADDITION TO THE DEDUCTION OF 3 CENTS PER MILE FOR THE DISTANCE OVER THE SHORTEST USUALLY TRAVELED ROUTE, THE DIFFERENCE BETWEEN THE COST TO THE GOVERNMENT FOR THROUGH TRANSPORTATION VIA THE SHORTEST USUALLY TRAVELED ROUTE AND THE COST TO THE GOVERNMENT FOR THE TRANSPORTATION ACTUALLY FURNISHED.

IT WILL BE OBSERVED THAT THE LAW EXPRESSLY FIXES THE BASIS ON WHICH THE MILEAGE AND THE DEDUCTION SHALL BE COMPUTED IN THE FOLLOWING LANGUAGE:

PAYMENT AND SETTLEMENT OF MILEAGE ACCOUNTS OF OFFICERS SHALL BE MADE ACCORDING TO DISTANCES AND DEDUCTIONS COMPUTED OVER ROUTES ESTABLISHED AND BY MILEAGE TABLES PREPARED BY THE PAYMASTER-GENERAL OF THE ARMY UNDER THE DIRECTION OF THE SECRETARY OF WAR * * *.

IT THUS APPEARS THAT THE LAW DIRECTS BOTH MILEAGE AND DEDUCTION BE COMPUTED OVER THE SHORTEST USUALLY TRAVELED ROUTE AS DETERMINED AND ESTABLISHED BY THE PAYMASTER GENERAL OF THE ARMY.

THE LAW CONTEMPLATES THAT WHEN APPLICATION IS MADE BY AN OFFICER FOR TRANSPORTATION UNDER HIS ORDERS FOR THE ENTIRE JOURNEY THROUGH TRANSPORTATION WILL BE FURNISHED OVER THE ESTABLISHED SHORTEST USUALLY TRAVELED ROUTE, AND IT MAKES NO PROVISION FOR THE FURNISHING OF TRANSPORTATION BY OTHER ROUTES AT A GREATER COST, AND PRESCRIBES NO METHOD FOR THE ADJUSTMENT OF SUCH EXCESS COST. WHILE THE LAW DOES NOT PROHIBIT THE FURNISHING OF TRANSPORTATION BY A CIRCUITOUS ROUTE, IT DOES FIX THE GOVERNMENT'S LIABILITY, AND THERE IS NO AUTHORITY OF LAW TO EXCEED THE LIABILITY SO FIXED. THE DEDUCTION OF 3 CENTS PER MILE VIA THE ROUTE OF CIRCUITOUS TRAVEL IS PURELY ARBITRARY AND MAY OR MAY NOT COVER THE EXCESS COST OF SUCH TRAVEL. APPARENTLY, IN THE CASES REFERRED TO BY YOU SUCH DEDUCTION MORE THAN COVERS THE EXCESS COST, WHILE IN SOME OTHER CASES SUCH DEDUCTION WOULD BE LESS, AS SHOWN IN 35 MS. COMP. GEN. 258, JULY 8, 1924, COPY OF WHICH DECISION IS HEREWITH INCLOSED. UNDER THE PRINCIPLE OF THE SAID DECISION OF THIS OFFICE, 3 COMP. GEN. 787, THERE WOULD BE DEDUCTED FROM THE OFFICER'S MILEAGE ACCOUNT IN ADDITION TO THE DEDUCTION OF 3 CENTS PER MILE VIA THE ESTABLISHED ROUTE THE EXACT AMOUNT OF THE ADDITIONAL COST TO THE GOVERNMENT, AND NEITHER THE OFFICER NOR THE GOVERNMENT LOSES OR GAINS BY THE TRANSACTION.

THE PRINCIPLES OF 3 COMP. GEN. 787, WILL THEREFORE BE APPLIED TO ALL PAYMENTS MADE TO OFFICERS OF THE ARMY ON OR AFTER NOVEMBER 1, 1924, TO WHICH THEY ARE APPLICABLE, AND 7 COMP. DEC. 301, IN SO FAR AS IT MAY BE IN CONFLICT THEREWITH, WILL NOT THEREAFTER BE FOLLOWED.