A-9938, NOVEMBER 6, 1925, 5 COMP. GEN. 332

A-9938: Nov 6, 1925

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WERE NOT REQUIRED BY. A SPECIFIC STATUTE BUT WERE ISSUED MERELY FOR THE PURPOSE OF AVOIDING THE NECESSITY FOR SPECIFYING A PER DIEM IN EACH TRAVEL ORDER. SUCH REGULATIONS ARE ADMINISTRATIVE RATHER THAN LEGISLATIVE IN CHARACTER. 1925: REQUEST WAS RECEIVED JUNE 3. WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF C. THE EMPLOYEE IN QUESTION WAS AUTHORIZED TO TRAVEL ON OFFICIAL BUSINESS. THE RULE IN SUCH CASES IS THAT IN THE ABSENCE OF A STATUTORY PROVISION TO THE CONTRARY. REIMBURSEMENT OF ACTUAL EXPENSES OF SUBSISTENCE NOT EXCEEDING $5 A DAY IS AUTHORIZED UNDER THE ACT OF APRIL 6. EXCEPT WHERE A PER DIEM IN LIEU THEREOF IS SPECIFICALLY PRESCRIBED UNDER AUTHORITY OF THE ACT OF AUGUST 1.

A-9938, NOVEMBER 6, 1925, 5 COMP. GEN. 332

TRAVELING EXPENSES - EXCEPTIONS TO REGULATIONS WHERE THE TRAVEL REGULATIONS OF A DEPARTMENT, PROVIDING FOR REIMBURSEMENT ON A PER DIEM IN LIEU OF SUBSISTENCE BASIS, WERE NOT REQUIRED BY, NOR ISSUED IN EXECUTION OF, A SPECIFIC STATUTE BUT WERE ISSUED MERELY FOR THE PURPOSE OF AVOIDING THE NECESSITY FOR SPECIFYING A PER DIEM IN EACH TRAVEL ORDER, SUCH REGULATIONS ARE ADMINISTRATIVE RATHER THAN LEGISLATIVE IN CHARACTER, AND EXCEPTION MAY BE MADE THERETO AT THE DISCRETION OF THE HEAD OF THE DEPARTMENT. THE SECRETARY OF COMMERCE MAY AUTHORIZE, BY AN ORDER ISSUED IN ADVANCE OF THE PERFORMANCE OF TRAVEL, PAYMENT OF ACTUAL EXPENSES OF SUBSISTENCE NOT IN EXCESS OF $5 PER DAY TO AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS, THOUGH THE TRAVEL REGULATION APPLICABLE TO THE PARTICULAR CLASS OF EMPLOYEES IN THE DEPARTMENT OF COMMERCE PROVIDES THAT PER DIEM OF $4 SHALL BE PAID IN LIEU OF REIMBURSEMENT OF ACTUAL EXPENSES.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 6, 1925:

REQUEST WAS RECEIVED JUNE 3, 1925, FOR REVIEW OF SETTLEMENT NO. C 24117- C, DATED APRIL 9, 1925, WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF C. E. MOLSTER, DISBURSING CLERK, DEPARTMENT OF COMMERCE, FOR $26.96 AS EXCESS OVER $4 PER DAY OF A PAYMENT MADE BY HIM TO AN EMPLOYEE OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE ON VOUCHER NO. 189581 OF DECEMBER, 1923, AS REIMBURSEMENT OF ACTUAL EXPENSES INCURRED WHILE TRAVELING ON OFFICIAL BUSINESS.

IT APPEARS THAT ON NOVEMBER 8, 1923, THE EMPLOYEE IN QUESTION WAS AUTHORIZED TO TRAVEL ON OFFICIAL BUSINESS. THE TRAVEL ORDER STATED THAT THE EMPLOYEE WOULD BE ALLOWED ACTUAL SUBSISTENCE NOT TO EXCEED $5 PER DAY.

THE APPROPRIATION INVOLVED IN THIS CASE--- ACT OF MARCH 4, 1923, 42 STAT. 1536--- PROVIDES IN GENERAL TERMS FOR ALL NECESSARY EXPENSES IN CONNECTION WITH THE WORK APPROPRIATED FOR WITHOUT SPECIFYING WHETHER TRAVEL SUBSISTENCE SHALL BE ON A PER DIEM OR ACTUAL EXPENSE BASIS. THE RULE IN SUCH CASES IS THAT IN THE ABSENCE OF A STATUTORY PROVISION TO THE CONTRARY, REIMBURSEMENT OF ACTUAL EXPENSES OF SUBSISTENCE NOT EXCEEDING $5 A DAY IS AUTHORIZED UNDER THE ACT OF APRIL 6, 1914, 38 STAT. 318, EXCEPT WHERE A PER DIEM IN LIEU THEREOF IS SPECIFICALLY PRESCRIBED UNDER AUTHORITY OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680. SUCH PER DIEM MAY BE PRESCRIBED BY ORDERS IN INDIVIDUAL CASES, OR BY REGULATIONS APPLICABLE TO A CLASS OF EMPLOYEES OR A PARTICULAR SERVICE.

ON AUGUST 10, 1916, THE SECRETARY OF COMMERCE ISSUED AN ORDER PROVIDING THAT ALL OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE WOULD BE REIMBURSED FOR SUBSISTENCE EXPENDITURES ON THE BASIS OF A PER DIEM OF $4 AS PROVIDED FOR BY THE ACT OF AUGUST 1, 1914, 38 STAT. 680, IN LIEU OF ACTUAL SUBSISTENCE EXPENDITURES.

THE FACTS IN THE CASE ARE NOT IN DISPUTE. THE CLAIMANT WAS IN A TRAVEL STATUS AND THERE WAS A REGULATION OF THE DEPARTMENT UNDER WHICH HE WAS ENTITLED ONLY TO A PER DIEM OF $4 IN LIEU OF SUBSISTENCE EXPENSES. THE ONLY QUESTION FOR DETERMINATION IS WHETHER THE REGULATION GRANTING EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE PER DIEM IN LIEU OF ACTUAL EXPENSES IS OF THE CLASS HAVING THE FULL FORCE AND EFFECT OF A STATUTE AND THEREFORE PRECLUDES THE ALLOWANCE OF ACTUAL EXPENSES IN AN INDIVIDUAL CASE.

IT IS CLEAR THAT SAID REGULATION WAS NOT REQUIRED BY, NOR ISSUED IN EXECUTION OF, A SPECIFIC STATUTE BUT WAS MERELY FOR THE PURPOSE OF AVOIDING THE NECESSITY FOR SPECIFYING A PER DIEM IN EACH TRAVEL ORDER. SUCH REGULATIONS ARE ADMINISTRATIVE RATHER THAN LEGISLATIVE IN CHARACTER AND THE TRAVEL ORDER PRESCRIBING ACTUAL EXPENSES IN THIS CASE WAS AUTHORIZED AS BEING WITHIN THE ADMINISTRATIVE DISCRETION VESTED IN THE HEAD OF THE DEPARTMENT. SEE 21 COMP. DEC. 482; 4 COMP. GEN. 767. THE FACTS IN THIS CASE ARE ESSENTIALLY DIFFERENT FROM THE FACTS INVOLVED IN THE CASE DECIDED IN 2 COMP. GEN. 342.

IT IS HELD THEREFORE THAT THE TRAVEL ORDER ISSUED TO THE EMPLOYEE IN THIS CASE CONFERRED ON HIM THE RIGHT TO REIMBURSEMENT OF HIS ACTUAL EXPENSES OF SUBSISTENCE NOT IN EXCESS OF $5 PER DAY AND ACCORDINGLY UPON REVIEW A DIFFERENCE OF $26.96 IS CERTIFIED FOR CREDIT IN THE ACCOUNTS OF C. E. MOLSTER.