A-9291, JUNE 29, 1925, 4 COMP. GEN. 1070

A-9291: Jun 29, 1925

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TRAVELING EXPENSES - OFFICER OF THE COAST GUARD SUBPOENAED TO APPEAR AS A WITNESS AN OFFICER OF THE COAST GUARD SUBPOENAED TO APPEAR BEFORE A UNITED STATES DISTRICT COURT TO TESTIFY TO FACTS OFFICIALLY ASCERTAINED BY HIM IS ENTITLED TO MILEAGE UNDER THE ACT OF JUNE 10. IS SUCH TRAVEL TO BE REGARDED AS COMING WITH THE PROVISIONS OF SECTION 850. IF THE FOREGOING QUESTION IS ANSWERED IN THE AFFIRMATIVE. WILL A COMMISSIONED OR WARRANT OFFICER BE SUBJECT TO THE GENERAL LIMITATION OF $5 PER DIEM ALLOWED CIVIL EMPLOYEES OF THE GOVERNMENT OR TO THE $7 PER DIEM PROVIDED FOR OFFICERS OF CERTAIN SERVICES BY THE ACT OF JUNE 10. WHOSE ALLOWANCES FOR QUARTERS AND SUBSISTENCE WHEN IN A TRAVEL STATUS ARE FIXED BY EXECUTIVE ORDER.

A-9291, JUNE 29, 1925, 4 COMP. GEN. 1070

TRAVELING EXPENSES - OFFICER OF THE COAST GUARD SUBPOENAED TO APPEAR AS A WITNESS AN OFFICER OF THE COAST GUARD SUBPOENAED TO APPEAR BEFORE A UNITED STATES DISTRICT COURT TO TESTIFY TO FACTS OFFICIALLY ASCERTAINED BY HIM IS ENTITLED TO MILEAGE UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 631, FOR TRAVEL PERFORMED IN GOING TO AND RETURNING FROM THE COURT, RATHER THAN TO REIMBURSEMENT OF ACTUAL AND NECESSARY TRAVELING EXPENSES UNDER SECTION 850, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JUNE 29, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 16, 1925, REQUESTING REVIEW OF SETTLEMENT NO. C-18417-T, DATED JULY 31, 1924, DISALLOWING CREDIT FOR AN ITEM OF $24.96 IN THE ACCOUNT OF SPECIAL DISBURSING AGENT WILLIAM H. WEBB, UNITED STATES COAST GUARD, FOR MILEAGE PAID TO H. S. BROWNE, BOATSWAIN, FOR TRAVEL FROM KEY WEST TO MIAMI, APRIL 27 29, 1924, IN ANSWER TO A SUBPOENA ISSUED OUT OF THE UNITED STATES DISTRICT COURT AT MIAMI. YOU ALSO REQUEST A SPECIFIC RULING ON THE FOLLOWING POINTS:

1. WHEN A MEMBER OF THE COAST GUARD PERFORMS TRAVEL INCIDENT TO THE PROSECUTION OF CASES ARISING AS A RESULT OF THE OPERATIONS OF THE SERVICE, IS SUCH TRAVEL TO BE REGARDED AS COMING WITH THE PROVISIONS OF SECTION 850, REVISED STATUTES?

2. IF THE FOREGOING QUESTION IS ANSWERED IN THE AFFIRMATIVE, WILL A COMMISSIONED OR WARRANT OFFICER BE SUBJECT TO THE GENERAL LIMITATION OF $5 PER DIEM ALLOWED CIVIL EMPLOYEES OF THE GOVERNMENT OR TO THE $7 PER DIEM PROVIDED FOR OFFICERS OF CERTAIN SERVICES BY THE ACT OF JUNE 10, 1922?

3.LIKEWISE, IN THE CASE OF ENLISTED MEN, WHOSE ALLOWANCES FOR QUARTERS AND SUBSISTENCE WHEN IN A TRAVEL STATUS ARE FIXED BY EXECUTIVE ORDER, WILL THE EXPENSE ALLOWED UNDER SECTION 850, REVISED STATUTES, BE LIMITED BY SUCH FIXED ALLOWANCES, OR BY THE GENERAL LIMITATION OF $5 PER DIEM?

4. FROM WHAT APPROPRIATION IS SUCH TRAVEL EXPENSE TO BE PAID?

SECTION 850, REVISED STATUTES, PROVIDES AS FOLLOWS:

WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE, OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.

AN OPINION OF THE ATTORNEY GENERAL, APRIL 15, 1878, 15 OP.ATTY.GEN. 486, STATED THAT "EXPENSES NECESSARILY INCURRED BY AN OFFICER OF THE ARMY AS A WITNESS FOR THE GOVERNMENT IN JUDICIAL PROCEEDINGS BEFORE THE CIVIL AUTHORITIES ARE ALLOWABLE UNDER SECTION 850, REVISED STATUTES, AND PAYABLE FROM THE JUDICIARY FUND.' AND THAT OPINION WAS REAFFIRMED IN 16 OP.ATTY.GEN. 113 AND 147. SEE ALSO 4 COMP. DEC. 146; 17 ID. 584; 19 ID. 752.

THE PROVISIONS OF SECTION 850, REVISED STATUTES, APPLY WITH EQUAL FORCE TO OFFICERS OF THE COAST GUARD PERFORMING TRAVEL AS WITNESSES FOR THE GOVERNMENT BEFORE FEDERAL COURTS, AND A WITNESS BEFORE A UNITED STATES GRAND JURY MUST BE REGARDED AS A WITNESS FOR THE GOVERNMENT BEFORE A COURT.

THE APPROPRIATION FOR FEES OF WITNESSES, ACT OF MAY 28, 1924, 43 STAT. 221, IS SPECIFICALLY MADE AVAILABLE "FOR PAYMENT OF THE ACTUAL EXPENSES OF WITNESSES, AS PROVIDED BY SECTION 850, REVISED STATUTES.'

SECTION 11 OF THE ACT OF JUNE 10, 1922, PROVIDES IN PART AS FOLLOWS:

* * * TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $4 PER DAY * * *.

SECTION 12 PROVIDES IN PART:

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, * * * 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 PROVISIONS OF THE SAID ACT OF JUNE 10, 1922, ARE NOT IN CONFLICT WITH AND DO NOT SUPERSEDE THE PROVISIONS OF SECTION 850, REVISED STATUTES. THEREFORE, THE QUESTION FOR CONSIDERATION IS WHETHER THE DUTY IMPOSED FALLS WITHIN THE SCOPE OF THE EARLIER OR LATER ACT.

WHEN THE DUTY IMPOSED COMES CLEARLY WITHIN THE PROVISIONS OF SECTION 850, REVISED STATUTES, THE TRAVEL INVOLVED IS NOT SUCH AS CONTEMPLATED IN THE ACT OF JUNE 10, 1922. SEE 22 COMP. DEC. 484; 23 ID. 207.

IN THE INSTANT CASE MR. BROWNE WAS ONE OF THE CREW OF A COAST GUARD VESSEL SUBPOENAED TO APPEAR AS A WITNESS FOR THE GOVERNMENT BEFORE THE GRAND JURY AT MIAMI, APRIL 28, 1924, AND IN ANSWER THERETO HE LEFT KEY WEST, FLA., ON APRIL 27 FOR MIAMI, RETURNING TO KEY WEST APRIL 29, 1924, AND RENDERED HIS ACCOUNT FOR SAID TRAVEL TO SPECIAL DISBURSING OFFICER WILLIAM H. WEBB UPON A MILEAGE BASIS AS PROVIDED BY SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AND IT WAS SO PAID BY THE DISBURSING OFFICER, BUT THIS OFFICE DISALLOWED THE ITEM IN HIS ACCOUNTS FOR THE REASON THAT THE EXPENSES THUS INCURRED SHOULD HAVE BEEN PAID FROM A JUDICIARY APPROPRIATION ON AN ACTUAL EXPENSE BASIS, UNDER THE PROVISIONS OF SECTION 850, REVISED STATUTES,INSTEAD OF UNDER THE APPROPRIATION FROM WHICH HIS TRAVELING EXPENSES ARE USUALLY PAID WHEN TRAVELING FOR HIS DEPARTMENT.

IN A DECISION OF THIS OFFICE ADDRESSED TO THE ATTORNEY GENERAL UNDER DATE OF FEBRUARY 7, 1924, IT WAS HELD THAT WHILE THE PROHIBITION ACT DOES NOT IN TERMS IMPOSE UPON THE COAST GUARD OFFICERS THE DUTY OF INVESTIGATING AND AIDING IN THE PROSECUTION OF VIOLATIONS OF SAID ACT, THE VERY NATURE OF THEIR OFFICIAL DUTIES SEEMS TO REQUIRE OF THEM TO TAKE SOME PART IN INVESTIGATIONS AND PROSECUTION OF UNLAWFUL IMPORTATION OF LIQUORS INTO THE UNITED STATES. SAID DECISION ALSO ANNOUNCED THE GENERAL RULE TO THE EFFECT THAT WHERE OFFICERS OR EMPLOYEES ATTEND A COURT IN CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF A CASE FOR THE PURPOSE OF AIDING THE PROSECUTION OR TESTIFYING TO FACTS WHICH THEY HAVE OFFICIALLY INVESTIGATED THEIR EXPENSES SO INCURRED ARE CHARGEABLE TO THE APPROPRIATION UNDER WHICH THEY ARE OFFICIALLY OPERATING AND NOT TO THE JUDICIARY APPROPRIATION. CITING 7 COMP. DEC. 293; 27 ID. 199, 1039; 2 COMP. GEN. 629, 801.

AS THE TRAVEL PERFORMED IN THE CASE HERE UNDER CONSIDERATION WAS FOR THE PURPOSE OF TESTIFYING TO FACTS OFFICIALLY INVESTIGATED, CREDIT FOR THE PAYMENT WILL BE ALLOWED.

WITH REFERENCE TO THE SPECIFIC QUESTIONS HEREINBEFORE STATED, THEY MAY BE ANSWERED AS FOLLOWS:

NO. 1. ANSWERED IN THE NEGATIVE GENERALLY.

NOS. 2 AND 3. AS QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE, SPECIFIC ANSWERS TO THESE QUESTIONS WOULD NOT SEEM NECESSARY. IT MAY BE STATED, HOWEVER, THAT IF IT IS A PART OF THE OFFICIAL DUTY OF THE PERSON PERFORMING THE TRAVEL TO AID IN THE PROSECUTION OF THE CASE OR IF THE TRAVEL IS FOR THE PURPOSE OF TESTIFYING TO FACTS WHICH HE HAS OFFICIALLY ASCERTAINED OR INVESTIGATED REIMBURSEMENT OF EXPENSES INCURRED OR AUTHORIZED ALLOWANCES IN LIEU THEREOF SHOULD BE PAID UNDER THE LIMITATIONS OF DEPARTMENTAL REGULATIONS FROM THE APPROPRIATION UNDER WHICH THEIR ORDINARY TRAVELING EXPENSES ARE PAID. BUT IN CASES IN WHICH THE EXPENSES ARE PROPERLY PAYABLE UNDER THE PROVISIONS OF SECTION 850, REVISED STATUTES, AND ACCORDINGLY CHARGEABLE UNDER THE DEPARTMENT OF JUSTICE APPROPRIATION, THE PAYMENTS WOULD BE ON THE SAME BASIS AS IN THE CASE OF CIVILIAN EMPLOYEES ATTENDING THE COURT.

NO. 4. THIS QUESTION IS ANSWERED BY THE ANSWERS TO THE THREE OTHER QUESTIONS.