A-8918, APRIL 28, 1925, 4 COMP. GEN. 896

A-8918: Apr 28, 1925

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THAT OFFICERS TRAVELING ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED. I HAVE YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY ATTACHED VOUCHER COVERING MILEAGE AT THE RATE OF 8 CENTS PER MILE. FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES. ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE.

A-8918, APRIL 28, 1925, 4 COMP. GEN. 896

OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY TRAVELING ON GOVERNMENT-OWNED VESSELS THE PROVISIONS IN THE RESPECTIVE APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1926, FOR THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY, 43 STAT. 772, 774, 864, 879, 897, 1046, THAT OFFICERS TRAVELING ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED, CHANGE THE SUBSTANTIVE LAW RELATING TO MILEAGE FOUND IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AND CONSTITUTE PERMANENT LEGISLATION EFFECTIVE FROM DATE OF ENACTMENT.

COMPTROLLER GENERAL MCCARL TO CAPT. CARL HALLA, UNITED STATES ARMY, APRIL 28, 1925:

BY REFERENCE OF THE CHIEF OF FINANCE, WAR DEPARTMENT, I HAVE YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY ATTACHED VOUCHER COVERING MILEAGE AT THE RATE OF 8 CENTS PER MILE, WITH A DEDUCTION OF 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED, FOR TRAVEL PERFORMED BY WARRANT OFFICER EARL T. HALSTEAD, UNITED STATES ARMY, FROM SAN FRANCISCO, CALIF., TO WASHINGTON, D.C., VIA UNITED STATES ARMY TRANSPORT, SAN FRANCISCO, CALIF., TO NEW YORK CITY, TRAVEL PERFORMED MARCH 10 TO 30, 1925.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES:

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. ACTUAL EXPENSES ONLY SHALL BE PAID FOR TRAVEL UNDER ORDERS OUTSIDE THE LIMITS OF THE UNITED STATES IN NORTH AMERICA. UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.

IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY SECTION 12 OF AN ACT ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED MAY 18, 1920, TO BE FURNISHED BY THE UNITED STATES FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. DEPENDENT CHILDREN SHALL BE SUCH AS ARE DEFINED IN SECTION 4 OF THIS ACT.

THE ACT OF FEBRUARY 12, 1925, 43 STAT. 897, MAKING APPROPRIATION FOR THE MILITARY SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1926, PROVIDES AS FOLLOWS:

FOR MILEAGE, REIMBURSEMENT OF ACTUAL TRAVELING EXPENSES, OR PER DIEM ALLOWANCES IN LIEU THEREOF, AS AUTHORIZED BY LAW, TO COMMISSIONED OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, EXPERT ACCOUNTANT, INSPECTOR GENERAL'S DEPARTMENT, ARMY FIELD CLERKS AND FIELD CLERKS OF THE QUARTERMASTER CORPS, WHEN AUTHORIZED BY LAW, $800,000; AND OFFICERS AND OTHER MEMBERS OF THE MILITARY ESTABLISHMENT NAMED IN THIS PARAGRAPH PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED.

THE PROVISION THEREIN THAT "OFFICERS * * * PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED," ALSO OCCURS IN THE APPROPRIATION ACTS FOR THE NAVY AND THE MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY. IN ALL THESE ACTS EXCEPT FOR THE ARMY AND NAVY, IT TAKES THE FORM OF A PROVISO FOLLOWING THE AMOUNT APPROPRIATED FOR MILEAGE OF OFFICERS OF THE SERVICE CONCERNED. SEE 43 STAT. 772, 774, 864, 879, AND 1046.

PRIOR TO THE ACT OF JUNE 10, 1922, LAWS RELATIVE TO THE RIGHTS OF OFFICERS OF THE NAVAL AND MILITARY SERVICES WERE NOT UNIFORM. THE ACT OF JUNE 30, 1914, 38 STAT. 410, LIMITED THE RIGHTS OF NAVAL OFFICERS WHEN FURNISHED GOVERNMENT TRANSPORTATION AS FOLLOWS:

THAT HEREAFTER NO MILEAGE SHALL BE PAID TO ANY OFFICER WHERE GOVERNMENT TRANSPORTATION IS FURNISHED SUCH OFFICER.

"GOVERNMENT TRANSPORTATION" AS USED THEREIN WAS HELD TO MEAN TRANSPORTATION ON VESSELS OWNED OR EMPLOYED BY THE GOVERNMENT OR BY CONVEYANCES ON LAND SO OWNED OR EMPLOYED BUT NOT TO TRANSPORTATION FURNISHED ON TRANSPORTATION REQUESTS. 21 COMP. DEC. 690.

NO SUCH PROHIBITION AS CONTAINED IN THE ACT OF JUNE 30, 1914, APPLIED TO RIGHT OF MILEAGE OF ARMY OFFICERS BUT WHEN FURNISHED TRANSPORTATION, EITHER IN KIND OF GOVERNMENT-OWNED OR CONTROLLED CONVEYANCES OR BY MEANS OF TRANSPORTATION REQUESTS, A DEDUCTION OF 3 CENTS PER MILE WAS MADE FROM THE OFFICER'S MILEAGE ACCOUNT. THE LAW PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS AND FOR DEDUCTIONS TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE GOVERNMENT WAS EMBODIED IN SECTION 12 OF THE ACT OF JUNE 10, 1922. BY REASON OF THE PROVISION OF SECTION 22 OF THAT ACT WHICH REPEALED ALL LAWS AND PARTS OF LAWS WHICH ARE INCONSISTENT THEREWITH, THE LIMITATION ATTACHING TO THE RIGHT OF OFFICERS OF THE NAVY AND MARINE CORPS AS PROVIDED IN THE ACT OF JUNE 30, 1914, NO LONGER APPLIED AND ALL OFFICERS COMING WITHIN THAT ACT WHETHER FURNISHED TRANSPORTATION ON GOVERNMENT VESSELS OR BY TRANSPORTATION REQUESTS WERE ENTITLED TO MILEAGE LESS DEDUCTION OF 3 CENTS PER MILE AS FORMERLY PROVIDED FOR OFFICERS OF THE ARMY. 2 COMP. GEN. 202.

IT IS EVIDENT THAT THE PROVISO IN THESE APPROPRIATION ACTS CITED ABOVE THAT "OFFICERS * * * PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED" CONSTITUTES A CHANGE OF THE CONDITIONS IN WHICH OFFICERS MAY BECOME ENTITLED TO MILEAGE AS PROVIDED IN THE SUBSTANTIVE LAW GRANTING MILEAGE TO OFFICERS OF THE SERVICES CONCERNED IN SECTION 12 OF THE ACT OF JUNE 10, 1922. THE QUESTION IS WHETHER SUCH LIMITATION OR RESTRICTION OPERATES ONLY AGAINST THE USE OF THE APPROPRIATION IN WHICH FOUND PROHIBITING PAYMENT THEREFROM OF MILEAGE WHEN OFFICERS ARE SO TRAVELING BUT NOT LIMITING THE OFFICER'S RIGHT THERETO; OR WHETHER IT PLACES A LIMITATION ON THE OFFICER'S RIGHT THERETO; OR WHETHER IT PLACES A LIMITATION ON THE OFFICER'S RIGHT TO MILEAGE AS PROVIDED IN THE ACT OF JUNE 10, 1922, AND IS INTENDED AS AN AMENDMENT THERETO THUS CHANGING THE SUBSTANTIVE LAW RELATIVE TO THE CONDITION OF TRAVEL IN WHICH MILEAGE IS PAYABLE TO THE OFFICERS CONCERNED.

THE USUAL OFFICE OF A PROVISO IS TO RESTRAIN OR QUALIFY SOME MATTER IN THE PRECEDING SECTION OR PART OF THE STATUTE, BUT WHEN IT IS APPARENT THAT THE LEGISLATURE DESIGNED A MORE COMPREHENSIVE MEANING OR APPLICATION IT MAY ASSUME THE FUNCTIONS AND CHARACTER OF AN INDEPENDENT ENACTMENT, THUS CONSTITUTING A PERMANENT CHANGE IN THE SUBSTANTIVE LAW. PRINDLE V. UNITED STATES, 41 CT.CLS.

IN NATIONAL BANK OF COMMERCE V. CLEVELAND, 156 FED.REP. 251, THE COURT SAID:

* * * THE PRACTICE, HOWEVER, OF EMBODYING GENERAL LAWS IN APPROPRIATION BILLS HAS BECOME SO COMMON THAT TO ADOPT A NARROW AND RESTRICTIVE CONSTRUCTION CONFINING THEIR LANGUAGE TO THE SUBJECT MATTER GENERALLY DEALT WITH BY THE APPROPRIATION ACT WOULD GO FAR TO NULLIFY A GOOD DEAL OF THE LEGISLATION OF CONGRESS. THESE PROVISOS THAT ARE ATTACHED TO APPROPRIATION ACTS FOR THE PURPOSE OF PROCURING WHAT IS BELIEVED TO BE NEEDED LEGISLATION, BUT WHICH COULD NOT BE ACCOMPLISHED BY AN INDEPENDENT STATUTE BY REASON OF THE PRESS OF BUSINESS BEFORE CONGRESS MUST BE TREATED THE SAME AS IF THEY WERE SEPARATE AND INDEPENDENT ENACTMENTS * * *.

IN THE HEARINGS BEFORE THE HOUSE COMMITTEE ON APPROPRIATIONS, PAGES 197 AND 198, RELATIVE TO THE ITEM OF TRAVEL EXPENSES OF OFFICERS IN THE NAVY DEPARTMENT APPROPRIATION BILL, IT WAS BROUGHT OUT THAT SAID ITEM WAS SUBSTANTIALLY INCREASED FOR THE FISCAL YEAR 1923, BY REASON OF THE CHANGE IN THE LAW IN THE ACT OF JUNE 10, 1922, AUTHORIZING MILEAGE TO OFFICERS WHEN TRAVELING ON GOVERNMENT VESSELS. ALSO IN THE HEARINGS BEFORE THE SENATE COMMITTEE ON THE WAR DEPARTMENT APPROPRIATION FOR THE FISCAL YEAR 1926, OCCURS THE FOLLOWING:

GENERAL WALKER. I MIGHT CALL YOUR ATTENTION TO THIS CHANGE IN THE LANGUAGE UNDER THE HEAD OF ,MILEAGE.'

SENATOR NEELY. ON WHAT PAGE IS THAT?

GENERAL WALKER. THAT IS ON PAGE 13. THERE HAS BEEN A PROVISION INSERTED THERE WHICH ADS,"OFFICERS AND OTHER MEMBERS OF THE MILITARY ESTABLISHMENT NAMED IN THIS PARAGRAPH, PERFORMING TRAVEL ON GOVERNMENT OWNED TRANSPORTS SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED.'

THE EFFECT OF THAT IS, AS YOU SEE, TO PREVENT THE DEPARTMENT PAYING EITHER A PER DIEM ALLOWANCE OR MILEAGE FOR TRAVEL ON A GOVERNMENT-OWNED TRANSPORT. IT PLACES ALL SUCH TRAVEL ON AN ACTUAL EXPENSE BASIS.

FORM THE LANGUAGE OF THE PROVISO IN QUESTION IT IS EVIDENT THAT IT CONSTITUTES A CHANGE OF THE SUBSTANTIVE LAW IN THE ACT OF JUNE 10, 1922, AUTHORIZING MILEAGE TO OFFICERS, BY PLACING A RESTRICTION OR LIMITATION ON THEIR RIGHT THERETO; ALSO THAT THE LANGUAGE LEAVES ROOM FOR DOUBT ONLY AS TO THE OPERATION OF SUCH LIMITATION, WHETHER INTENDED TO OPERATE AGAINST THE APPROPRIATION IN WHICH IT OCCURS ONLY OR WHETHER INTENDED AS PERMANENT LEGISLATION, EFFECTIVE AGAINST ALL FUTURE APPROPRIATIONS FROM DATE OF ENACTMENT UNTIL MODIFIED OR REPEALED. USUALLY THERE IS SOME WORD OR WORDS IN THE LANGUAGE OF PROVISOS OF THIS NATURE TO PLAINLY INDICATE THE INTENT THEREOF, WHETHER LIMITED OR UNLIMITED IN ITS OPERATION. THE WORD "HEREAFTER" IS FREQUENTLY EMPLOYED TO INDICATE THAT A PROVISION IN AN ANNUAL APPROPRIATION ACT IS INTENDED AS PERMANENT LEGISLATION, BUT THE USE OF THAT WORD IS NOT ESSENTIAL IF THE PERMANENT CHARACTER OF THE LEGISLATION IS CLEARLY INDICATED IN SOME OTHER MANNER. 26 COMP. DEC. 1067. IT IS TO BE OBSERVED, ALSO, THAT THE LANGUAGE HERE IN QUESTION IS NOT IN ITS PHRASEOLOGY A RESTRICTION ON THE USE OF AN APPROPRIATION BUT IS A SUBSTANTIVE PROVISION FIXING RIGHTS OF OFFICERS.

FROM THE FACTS AND CIRCUMSTANCES LEADING UP TO THE ENACTMENT OF THIS PROVISION IN THE SEVERAL APPROPRIATION ACTS AS ABOVE STATED, WHICH SO CLEARLY MODIFIES THE SUBSTANTIVE LAW RELATIVE TO RIGHT OF OFFICERS OF THE SEVERAL SERVICES CONCERNED TO MILEAGE; THE FACT THAT RESTRICTIONS ARE FREQUENTLY PLACED ON THE USE OF ANNUAL APPROPRIATIONS WHICH ARE OPERATIVE ONLY AS TO THE PARTICULAR APPROPRIATION, IN WHICH OR WITH RESPECT TO WHICH THEY ARE USED, WHILE A CHANGE IN SUBSTANTIVE LAW, ALTHOUGH OPERATING AS A LIMITATION ON THE USE OF APPROPRIATIONS IS NOT PRIMARILY ADDRESSED TO THE APPROPRIATION OR ITS USE; AND IN VIEW OF RULES OF CONSTRUCTION APPLICABLE TO PROVISOS OF THIS CHARACTER, I AM OF OPINION THAT THE LEGISLATIVE INTENT WAS THAT THE PROVISION SHOULD OPERATE AS A CHANGE IN THE SUBSTANTIVE LAW RELATIVE TO MILEAGE, AS PROVIDED IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AND THAT IT IS PERMANENT LEGISLATION, EFFECTIVE FROM DATE OF ENACTMENT. 3 COMP. GEN. 123.

ACCORDINGLY, YOU ARE ADVISED THAT FOR THE TRAVEL IN QUESTION WARRANT OFFICER HALSTEAD IS ENTITLED TO ACTUAL EXPENSES ONLY.