B-40185, FEBRUARY 26, 1944, 23 COMP. GEN. 630

B-40185: Feb 26, 1944

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MAY NOT BE ENLARGED BY CONSTRUCTION TO PERMIT PAYMENT OF MILEAGE TO PERSON WHO ARE PAID COMPENSATION AT THE RATE OF $1 A YEAR. 1944: I HAVE YOUR LETTER OF FEBRUARY 14. SIMILAR LANGUAGE WAS INCORPORATED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT 1944. 22 C.G. 512) PERSONS SERVING THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT COMPENSATION OR AT A DOLLAR PER ANNUM WHEN TRAVELING BY PRIVATELY OWNED AUTOMOBILE ARE ENTITLED TO REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS INSTEAD OF ON A COMMUTED BASIS. THESE DECISIONS WERE PREDICATED ON THE FACT THAT THE STATUTORY AUTHORITY TO PAY THE TRANSPORTATION EXPENSES OF SUCH PERSONS WAS LIMITED TO THAT OF ACTUAL TRANSPORTATION.

B-40185, FEBRUARY 26, 1944, 23 COMP. GEN. 630

MILEAGE - TRAVEL BY PRIVATELY OWNED AUTOMOBILE - DOLLAR-A-YEAR MEN THE PROVISION IN SECTION 303 OF THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1944, AUTHORIZING REIMBURSEMENT AT NOT TO EXCEED FIVE CENTS PER MILE TO "PERSONNEL SERVING WITHOUT COMPENSATION FROM THE UNITED STATES" FOR EXPENSES OF TRAVEL PERFORMED BY THEM IN PRIVATELY OWNED AUTOMOBILES AWAY FROM THEIR DESIGNATED POST OF DUTY, AND THREE CENTS PER MILE FOR SUCH TRAVEL WITHIN THE LIMITS OF THEIR OFFICIAL STATION, MAY NOT BE ENLARGED BY CONSTRUCTION TO PERMIT PAYMENT OF MILEAGE TO PERSON WHO ARE PAID COMPENSATION AT THE RATE OF $1 A YEAR.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT, FEBRUARY 26, 1944:

I HAVE YOUR LETTER OF FEBRUARY 14, 1944 (FI-21) AS FOLLOWS:

THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT 1943, APPROVED JULY 25, 1942, PROVIDES IN PART:

"FOR ALL NECESSARY EXPENSES OF THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT * * * AND ACTUAL TRANSPORTATION AND OTHER EXPENSES NOT TO EXCEED $10.00 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1.00 PER ANNUM.'

SIMILAR LANGUAGE WAS INCORPORATED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT 1944, APPROVED JULY 12, 1943, PUBLIC LAW 139, IN PARAGRAPH (A) UNDER THE HEADING " GENERAL PROVISIONS.'

PURSUANT TO THE RULINGS LAID DOWN BY YOUR OFFICE (B-28302, DATED SEPTEMBER 2, 1942; 22 C.G. 512) PERSONS SERVING THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT WITHOUT COMPENSATION OR AT A DOLLAR PER ANNUM WHEN TRAVELING BY PRIVATELY OWNED AUTOMOBILE ARE ENTITLED TO REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS INSTEAD OF ON A COMMUTED BASIS. THESE DECISIONS WERE PREDICATED ON THE FACT THAT THE STATUTORY AUTHORITY TO PAY THE TRANSPORTATION EXPENSES OF SUCH PERSONS WAS LIMITED TO THAT OF ACTUAL TRANSPORTATION.

SECTION 303 OF THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT 1944, PUBLIC LAW 216, APPROVED DECEMBER 23, 1943, PROVIDES:

"APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS FOR THE FISCAL YEAR 1944 SHALL BE AVAILABLE FOR REIMBURSEMENT AT NOT TO EXCEED FIVE CENTS PER MILE TO PERSONNEL SERVING WITHOUT COMPENSATION FROM THE UNITED STATES FOR EXPENSES OF TRAVEL PERFORMED BY THEM IN PRIVATELY OWNED AUTOMOBILES AWAY FROM THEIR DESIGNATED POST OF DUTY, AND NOT TO EXCEED THREE CENTS PER MILE FOR SUCH TRAVEL WITHIN THE LIMITS OF THEIR OFFICIAL STATIONS.'

ALTHOUGH SECTION 303 OF THIS ACT IS DIRECTED TO PERSONS SERVING WITHOUT COMPENSATION, IT APPEARS THAT THE PURPOSE AND INTENT OF THIS SECTION WAS REMEDIAL IN NATURE. THIS FACT WAS CLEARLY INDICATED BY THE FOLLOWING STATEMENTS MADE BEFORE THE HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON APPROPRIATIONS:

"THE CHAIRMAN. I WILL ASK YOU, THOUGH, TO GIVE US ONE STATEMENT ON THIS THIRD SECTION UNDER WHICH PERSONS SERVING WITHOUT COMPENSATION MAY RECEIVE FIVE CENTS PER MILE OR THREE CENTS PER MILE. ISN-T THAT ALLOWABLE UNDER PRESENT CONDITIONS?

" MR. LAWTON. BY A COMPTROLLER GENERAL'S DECISION IT DOES NOT APPLY TO PERSONS SERVING WITHOUT COMPENSATION.

"THE CHAIRMAN. IS THAT A RECENT DECISION ON HIS PART? THAT IS MERELY, THEN, FOR THE PURPOSE OF OVERRULING A DECISION OF THE COMPTROLLER GENERAL.

" MR. LAWTON. THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT WAS THE ONE THAT REQUESTED THIS PROVISION. THEY HAVE A NUMBER OF SCIENTISTS WORKING FOR THEM ON RESEARCH PROBLEMS. THE ONLY WAY TO GET TO THE EXPERIMENT STATIONS, WHICH ARE NATURALLY LOCATED AWAY FROM A POPULATED AREA, IS TO GO BY CAR, AND THESE PERSONS WHO ARE GIVING THEIR TIME TO THE GOVERNMENT ARE NOW REQUIRED TO SPEND CONSIDERABLE TIME MAKING OUT VOUCHERS AND DOCUMENTS, GETTING RECEIPTS, AND SO FORTH. THIS PROVISION WOULD PLACE THEM ON THE SAME BASIS AS THE SALARIED EMPLOYEES.'

AS PREVIOUSLY STATED, THE DECISIONS CITED ABOVE, WHICH WERE APPARENTLY THE ONES REFERRED TO IN THESE HEARINGS, WERE NOT ONLY APPLICABLE TO PERSONS SERVING WITHOUT COMPENSATION BUT WERE ALSO FOR APPLICATION TO THOSE PERSONS SERVING THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT AT A DOLLAR PER ANNUM.

IN VIEW OF THE FOREGOING, I WOULD APPRECIATE YOUR ADVISING ME WHETHER, UNDER THE PROVISIONS OF SECTION 303 OF PUBLIC LAW 216, SUPRA, PERSONS SERVING AT A DOLLAR PER ANNUM AS WELL AS THOSE SERVING WITHOUT COMPENSATION MAY BE REIMBURSED ON A MILEAGE BASIS FOR TRAVEL ON OFFICIAL BUSINESS PERFORMED BY PRIVATELY OWNED AUTOMOBILE.

THE APPROPRIATION PROVISION QUOTED IN THE FOURTH PARAGRAPH OF YOUR LETTER AUTHORIZING REIMBURSEMENT ON A MILEAGE BASIS FOR USE OF PRIVATELY OWNED AUTOMOBILE IS SPECIFICALLY LIMITED TO ,PERSONNEL SERVING WITHOUT COMPENSATION FROM THE UNITED STATES.' NO PROVISION IS MADE THEREIN FOR PAYMENT OF MILEAGE TO PERSONS RECEIVING $1 A YEAR. NOTWITHSTANDING SUCH RATE OF COMPENSATION IS NOMINAL, IT NEVERTHELESS HAS BEEN HELD TO CONSTITUTE SALARY FOR CERTAIN PURPOSES. SEE, FOR INSTANCE, DECISION OF FEBRUARY 4, 1943, 22 COMP. GEN. 743, 745, WHEREIN IT WAS STATED:

WHILE IT IS TRUE THAT $1 PER ANNUM IS BUT A NOMINAL SALARY, NEVERTHELESS THAT AMOUNT IS PAID AND RECEIVED AS "SALARY" AND CONSTITUTES THE RECIPIENT A SALARIED OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF THE STATUTE, SUPRA. ( SECTION 850, REVISED STATUTES). * * *

WHILE THE REFERRED-TO APPROPRIATION PROVISION AUTHORIZING MILEAGE PAYMENTS MAY BE REMEDIAL IN CHARACTER, YET IT MAY NOT BE ENLARGED BY CONSTRUCTION TO INCLUDE THE PERSONS WHO ARE PAID COMPENSATION AT THE RATE OF $1 PER ANNUM ON THE BASIS OF THE LEGISLATIVE HISTORY OF THE ACT, WHEN IT IS OTHERWISE CLEAR AND UNAMBIGUOUS--- EVEN THOUGH THERE MAY HAVE BEEN INTENDED BY THE SPONSORS OF THE LEGISLATION THE INCLUSION OF THE DOLLAR-A- YEAR-MEN. 19 COMP. GEN. 636, 640; 21 ID. 17 (AT PAGE 19); DECISION OF FEBRUARY 4, 1944, B-39498. COMPARE 20 COMP. GEN. 81; 21 ID. 805 (AT PAGE 808). STATED IN OTHER WORDS, TO PERMIT PAYMENT OF MILEAGE UNDER THE STATUTE HERE INVOLVED TO PERSONS SERVING AT $1 PER ANNUM WOULD REQUIRE PUTTING WORDS IN THE STATUTE WHICH ARE NOT THERE. THAT MAY NOT BE DONE BY CONSTRUCTION.

ACCORDINGLY, AS THE PROVISIONS OF SECTION 303 OF THE ACT OF DECEMBER 23, 1943, 57 STAT. 642, PUBLIC LAW 216, ARE CLEAR AND UNAMBIGUOUS, AND NOT SUBJECT TO CONSTRUCTION, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.