B-35167, JULY 7, 1943, 23 COMP. GEN. 9

B-35167: Jul 7, 1943

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" SO THAT EVEN THOUGH A ROOMETTE IS THE ONLY FIRST-CLASS ACCOMMODATION AVAILABLE TO A PARTICULAR EMPLOYEE AT THE TIME HE APPLIES FOR TRANSPORTATION. 1943: REFERENCE IS MADE TO YOUR LETTER OF JUNE 12. THERE ARE TRANSMITTED HEREWITH FOR ADVANCE DECISION TWO RECLAIM VOUCHERS IN FAVOR OF G. COPIES OF WHICH ARE ENCLOSED. IS THAT. EXCESS CHARGES AMOUNTING TO THE DIFFERENCE BETWEEN THE ACCOMMODATIONS USED AND LOWER BERTH CHARGES WERE ACCORDINGLY SUSPENDED FROM THE CLAIMS. THERE WERE NO SPACES. IN VIEW OF THE FACT THAT NO OTHER SPACES WERE AVAILABLE. IT IS REQUESTED THAT THE INCREASED COST DUE TO THE USE OF ROOMETTES BE ALLOWED AND PAID TO THE TRAVELER. "IF THE TRAVELER HAD WAITED IN NEW YORK AND IN CHICAGO UNTIL SUCH TIME AS A LOWER OR UPPER BERTH COULD HAVE BEEN PURCHASED.

B-35167, JULY 7, 1943, 23 COMP. GEN. 9

TRAVELING EXPENSES - FARES - LOWEST FIRST-CLASS IMITATION - ROOMETTES THE GENERAL UNSATISFACTORY CONDITIONS OF TRAVEL FOR CIVILIANS DUE TO THE WAR EMERGENCY DO NOT JUSTIFY NONAPPLICATION OF THE PROVISIONS OF SECTION 10 OF THE ACT OF MARCH 3, 1933, LIMITING TRAVEL ALLOWANCES ON AN ACTUAL EXPENSE BASIS TO "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED," SO THAT EVEN THOUGH A ROOMETTE IS THE ONLY FIRST-CLASS ACCOMMODATION AVAILABLE TO A PARTICULAR EMPLOYEE AT THE TIME HE APPLIES FOR TRANSPORTATION, THE EXCESS COST THEREOF OVER THE COST OF A LOWER BERTH MAY NOT BE ALLOWED, NOTWITHSTANDING THE FACT THAT THE DELAY IN AWAITING THE AVAILABILITY OF STANDARD PULLMAN ACCOMMODATIONS WOULD RESULT IN THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE IN EXCESS OF THE ADDITIONAL TRANSPORTATION COST. COMPARE 22 COMP. GEN. 1122.

ACTING COMPTROLLER GENERAL YATES TO D. A. ROWE, DEPARTMENT OF AGRICULTURE, JULY 7, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1943, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941 (55 STAT. 876, 31 U.S.C. 1940 ED., SUPP. 1, SEC. 82D), THERE ARE TRANSMITTED HEREWITH FOR ADVANCE DECISION TWO RECLAIM VOUCHERS IN FAVOR OF G. OSMOND HYDE, PRINCIPAL ATTORNEY, OFFICE OF THE SOLICITOR, DEPARTMENT OF AGRICULTURE, EACH IN THE AMOUNT OF $5.35, REPRESENTING THE AMOUNTS DISALLOWED UPON ADMINISTRATIVE EXAMINATION OF THE VOUCHERS PRESENTED BY MR. HYDE FOR REIMBURSEMENT OF TRAVEL EXPENSES INCURRED DURING THE PERIODS FEBRUARY 2 TO FEBRUARY 14, 1943, AND MARCH 2 TO APRIL 4, 1943. THE BASIS FOR THE ADMINISTRATIVE DISALLOWANCES, AS SET FORTH IN LETTERS DATED MARCH 25 AND APRIL 14, 1943, TO MR. HYDE, COPIES OF WHICH ARE ENCLOSED, IS THAT, PURSUANT TO PARAGRAPH 13 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THE ALLOWANCE FOR SLEEPING ACCOMMODATIONS CANNOT EXCEED THE COST OF A STANDARD LOWER BERTH. EXCESS CHARGES AMOUNTING TO THE DIFFERENCE BETWEEN THE ACCOMMODATIONS USED AND LOWER BERTH CHARGES WERE ACCORDINGLY SUSPENDED FROM THE CLAIMS.

IN SUPPORT OF HIS RECLAIM VOUCHERS, MR. HYDE HAS SET FORTH THE FOLLOWING REASONS:

"ON THE TRIPS FROM NEW YORK, NEW YORK, TO CHICAGO, ILLINOIS, ON MARCH 4, 1943, AND FROM CHICAGO, ILLINOIS, TO WASHINGTON, D.C., ON APRIL 1, 1943, THERE WERE NO SPACES, EXCEPT ROOMETTES, AVAILABLE ON ANY TRAIN ON WHICH THIS TRAVELER'S RAILROAD TICKET WOULD BE HONORED, AND ARRIVING AT THE DESTINATION POINTS IN SUFFICIENT TIME FOR THE TRAVELER TO KEEP APPOINTMENTS PREVIOUSLY MADE. THEREFORE, THE TRAVELER PURCHASED ROOMETTES IN LIEU OF LOWER OR UPPER BERTHS.

"IN VIEW OF THE EXTREMELY HEAVY TRAFFIC BY RAILROAD DURING THE EMERGENCY WAR PERIOD, AND IN VIEW OF THE FACT THAT NO OTHER SPACES WERE AVAILABLE, IT IS REQUESTED THAT THE INCREASED COST DUE TO THE USE OF ROOMETTES BE ALLOWED AND PAID TO THE TRAVELER.

"IF THE TRAVELER HAD WAITED IN NEW YORK AND IN CHICAGO UNTIL SUCH TIME AS A LOWER OR UPPER BERTH COULD HAVE BEEN PURCHASED, IT WOULD HAVE RESULTED IN INCREASED PER DIEM TO AN AMOUNT FAR IN EXCESS OF THE ADDITIONAL COST CREATED BY THE USE OF A ROOMETTE.'

CERTIFICATION OF THIS VOUCHER DEPENDS, OF COURSE, UPON THE PROPER INTERPRETATION OF SECTION 10 OF THE ACT OF MARCH 3, 1933 (47 STAT. 1516, 5 U.S.C. 1940 ED., 736), AS IMPLEMENTED BY PARAGRAPH 13 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED. THE SAID SECTION MAKES THIS PROVISION:

"WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCES * * * SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.'

THIS PROVISION HAS BEEN CONSTRUED IN SEVERAL DECISIONS BY YOUR OFFICE, INCLUDING 20 COMP. GEN. 125; 18 ID. 705; 14 ID. 460; 13 ID. 10, 17. IN 20 COMP. GEN. 125, THE FOLLOWING DECISION WAS RENDERED:

"IT HAS BEEN UNIFORMLY HELD BY THIS OFFICE THAT THE LIMITATION FIXED IN THE ACT OF MARCH 3, 1933, SUPRA, PERMITS OF NO EXCEPTIONS AND THAT IT IS APPLICABLE EVEN THOUGH THE LOWEST FIRST-CLASS ACCOMMODATIONS ARE NOT AVAILABLE AT THE TIME THE TRANSPORTATION IS APPLIED FOR. 13 COMP. GEN. 0; ID. 17; 14 ID. 460; 25 ID. 349.

"IN VIEW OF THIS STATUTORY PROHIBITION WHICH, UNLIKE THE PROVISIONS OF SECTION 901 OF THE MERCHANT MARINE ACT, 1936, 49 STAT. 2015, LEAVES NO DISCRETION IN THIS OFFICE, THERE IS NO AUTHORITY FOR THIS OFFICE TO APPROVE THE PAYMENT FROM APPROPRIATED FUNDS OF FARES IN EXCESS OF THE LOWEST FIRST-CLASS RATES FOR THE FACILITIES USED, NOTWITHSTANDING THAT THE DELAY AWAITING AVAILABLE TRANSPORTATION MAY RESULT IN THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE IN EXCESS OF THE DIFFERENCE BETWEEN THE LOWEST FIRST-CLASS FARE AND THE NEXT HIGHER AVAILABLE TRANSPORTATION.'

IN 18 COMP. GEN. 705, THESE WORDS ARE USED:

"THIS IS A LIMITATION PRESCRIBED BY STATUTE. IT IS CLEAR AND UNAMBIGUOUS AND ADMITS OF NO EXCEPTION BASED ON AN EMERGENCY OR OTHERWISE. CLEARLY THIS OFFICE IS WITHOUT AUTHORITY TO ALLOW ANY SUM IN EXCESS OF THE LOWEST FIRST-CLASS FARE.'

IN OTHER WORDS, THE SOLE QUESTION OF LAW RAISED BY MR. HYDE'S RECLAIM VOUCHERS IS WHETHER THE WAR EMERGENCY, WHICH HAS CAUSED RAILROAD CONGESTION THROUGHOUT THE COUNTRY, JUSTIFIES THE USE OF ROOMETTES BY EMPLOYEES TRAVELING ON OFFICIAL BUSINESS, WHENEVER LOWER OR UPPER BERTHS ARE UNAVAILABLE AND DELAY WHILE AWAITING THE AVAILABILITY OF SUCH SLEEPING ACCOMMODATIONS WILL RESULT IN THE PAYMENT OF ADDITIONAL PER DIEM EXCEEDING THE ADDITIONAL COST OF A ROOMETTE. YOUR DECISION UPON THIS QUESTION WILL BE APPRECIATED.

THE SETTLED RULE IN RESPECT OF THE APPLICATION OF THE 1933 STATUTE QUOTED IN YOUR LETTER IS, AS STATED IN THE CITED AND QUOTED DECISIONS, THAT REIMBURSEMENT FOR TRAVEL MUST BE LIMITED TO THE COST OF A LOWER BERTH--- REGARDED AS "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF 1933--- NOTWITHSTANDING THAT UPPER AND LOWER BERTHS WERE NOT AVAILABLE TO THE PARTICULAR TRAVELER AT THE TIME THE TRAVEL WAS PERFORMED. THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY THE 1933 STATUTE AS WRITTEN, AND IT MAY NOT, BY CONSTRUCTION, CREATE ANY EXCEPTION THERETO. THE PRESENT GENERAL UNSATISFACTORY CONDITIONS OF TRAVEL FOR CIVILIANS DUE TO THE WAR EMERGENCY ARE FULLY APPRECIATED BUT THEY CONSTITUTE NO GROUNDS FOR NON-APPLICATION OF THE STATUTE. COMPARE THE DECISION OF JUNE 22, 1943, B-35013, TO MR. F. F. LOVELL, AUTHORIZED CERTIFYING OFFICER, HOME OWNERS' LOAN CORPORATION, CONSIDERING A CASE WHEREIN IT HAD BEEN SPECIFICALLY CERTIFIED BY COMPETENT AUTHORITY THAT ALL UPPER AND LOWER BERTHS ON TRAINS OPERATING BETWEEN THE POINTS INVOLVED HAD BEEN RESERVED FOR POSSIBLE USE BY THE MILITARY FORCES- -- AN ACT OF THE GOVERNMENT--- AND, ACCORDINGLY, WERE NOT AVAILABLE FOR CIVILIAN USE AT ANY TIME.

IF THE LAW AS IT NOW STANDS WORKS A PARTICULAR HARDSHIP, OR UNDULY INTERFERES WITH THE ORDERLY AND EXPEDITIOUS TRANSACTION OF GOVERNMENT BUSINESS, THE MATTER WOULD APPEAR TO BE ONE FOR PRESENTING BY THE ADMINISTRATIVE AGENCIES CONCERNED TO THE CONGRESS WITH A VIEW TO SECURING LEGISLATION TO TAKE CARE OF THE SITUATION COMPLAINED OF.

ACCORDINGLY, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.

THE VOUCHERS, WHICH ARE RETURNED HEREWITH, SHOULD NOT BE CERTIFIED FOR PAYMENT.