B-41448, MAY 2, 1944, 23 COMP. GEN. 835

B-41448, MAY 2, 1944, 23 COMP. GEN. 835

WITNESSES - TRAVELING EXPENSES OF PERSONS APPEARING AS WITNESSES FOR UNITED STATES IN STATE COURTS THE EXPENSES INCURRED BY A PERSON SERVING AS A WITNESS FOR THE UNITED STATES IN AN ADJUDICATION PROCEEDING IN A STATE COURT INVOLVING WATER RIGHTS FOR A FEDERAL PROJECT FOR CONSERVATION AND UTILIZATION OF WATER RESOURCES ARE CHARGEABLE TO THE APPROPRIATE ADMINISTRATIVE APPROPRIATION. A FORMER EMPLOYEE OF THE BUREAU OF RECLAMATION WHO APPEARED AS A WITNESS FOR THE UNITED STATES IN AN ADJUDICATION PROCEEDING IN A STATE COURT INVOLVING WATER RIGHTS OF A FEDERAL PROJECT FOR CONSERVATION AND UTILIZATION OF WATER RESOURCES MAY BE REIMBURSED ON AN ACTUAL EXPENSE BASIS FOR HOTEL, MEALS, AND, IN THE ABSENCE OF A STATE STATUTE AUTHORIZING MILEAGE, ACTUAL EXPENSES FOR USE OF HIS AUTOMOBILE--- INCLUDING GARAGE RENT, GASOLINE AND OIL--- WHEN PROPERLY SUPPORTED BY RECEIPTS. AS THE ACT OF FEBRUARY 14, 1930, AS AMENDED, AUTHORIZES PAYMENT OF MILEAGE ONLY FOR EMPLOYEES OF THE UNITED STATES, A PERSON APPEARING AS A WITNESS FOR THE UNITED STATES IN A STATE COURT WHO, AT THE TIME OF TRAVELING, WAS NOT AN EMPLOYEE OF THE UNITED STATES MAY BE REIMBURSED ONLY FOR ACTUAL EXPENSES INCURRED IN CONNECTION WITH THE USE OF HIS AUTOMOBILE, IN THE ABSENCE OF A STATE STATUTE AUTHORIZING PAYMENT OF MILEAGE FOR WITNESSES IN A STATE COURT.

COMPTROLLER GENERAL WARREN TO FRANK H. SHINER, BUREAU OF RECLAMATION, MAY 2, 1944:

I HAVE YOUR LETTER OF APRIL 8, 1944, AS FOLLOWS:

UNDER AUTHORITY OF SECTION 3 OF THE ACT APPROVED DECEMBER 29, 1941 ( PUBLIC LAW 389--- 77TH CONGRESS), THERE IS TRANSMITTED HEREWITH FOR ADVANCED RULING AS TO THE PROPRIETY FOR PAYMENT, CLAIM IN THE AMOUNT OF $24.27 OF FRANK C. MERRIELL FOR REIMBURSEMENT OF EXPENSES INCURRED AS A WITNESS FOR THE UNITED STATES IN ADJUDICATION PROCEEDINGS IN WATER DISTRICT NO. 34, INVOLVING WATER RIGHTS FOR THE MANCOS PROJECT, COLORADO.

ATTENTION IS CALLED TO DECISIONS DATED JUNE 30, 1914, AND DECEMBER 6, 1916, OF THE COMPTROLLER OF THE TREASURY, AND TO SECTION 10 OF THE AMENDMENT OF THE ACT OF AUGUST 11, 1939, APPROVED OCTOBER 14, 1940 (54 STAT. 1119).

IN DECISION OF JUNE 30, 1914, BY THE COMPTROLLER OF THE TREASURY, 69 MS. COMP. DEC. 1900, IT WAS HELD THAT THE COSTS OF APPEAL BOND, ETC., IN PERFECTING AN APPEAL FROM THE LOWER STATE COURT TO THE STATE SUPREME COURT INVOLVING A QUESTION OF WATER RIGHTS WAS A PROPER CHARGE TO THE RECLAMATION FUND, AND IN THE DECISION OF DECEMBER 6, 1916, 79 MS. COMP. DEC. 755, IT WAS HELD THAT SIMILARLY THE COST OF A TRANSCRIPT OF THE PROCEEDINGS IN THE STATE COURT, WHEN REQUIRED BY TRANSFER OF THE CASE TO A FEDERAL COURT, INVOLVING A CLAIM FOR DAMAGES AGAINST AN OFFICER OF THE RECLAMATION SERVICE, PROPERLY WAS CHARGEABLE TO THE RECLAMATION FUND.

THE EXPENSES FOR WHICH FRANK C. MERRIELL CLAIMS REIMBURSEMENT ARE STATED AS BEING FOR HOTEL AND MEAL CHARGES FOR AUGUST 11 AND 12, 1943, AMOUNTING TO $7.15, AND "CAR MILEAGE" FROM GRAND JUNCTION TO DURANGO, COLORADO, 428 MILES AT 4 CENTS PER MILE OR $17.12--- THE TOTAL CLAIM AMOUNTING TO $24.27. THERE IS ATTACHED TO THE VOUCHER AN EXPLANATORY STATEMENT READING AS FOLLOWS:

CERTIFICATE TO ACCOMPANY VOUCHER IN FAVOR OF FRANK C. MERRIELL FOR REIMBURSEMENT OF EXPENSES INCURRED IN ATTENDING WATER ADJUDICATION PROCEEDINGS IN WATER DISTRICT NO. 34 ( MANCOS PROJECT--- COLORADO) AT REQUEST OF U.S. BUREAU OF RECLAMATION.

THIS IS TO CERTIFY THAT FRANK C. MERRIELL, CLAIMANT ON THE ATTACHED VOUCHER, ATTENDED THE ADJUDICATION PROCEEDINGS AT CORTEZ, COLORADO, IN CONNECTION WITH WATER DISTRICT NO. 34 (WHICH INVOLVED WATER RIGHTS OF THE MANCOS, COLORADO, PROJECT OF THE BUREAU OF RECLAMATION) AT THE REQUEST OF THE UNDERSIGNED, DISTRICT COUNSEL OF THE BUREAU OF RECLAMATION. MR. MERRIELL'S PRESENCE AT THIS PROCEEDING WAS DEEMED NECESSARY AND ADVISABLE SINCE HE WAS THE ENGINEER WHO MADE THE PRELIMINARY INVESTIGATION AND SURVEYS OF THE MANCOS PROJECT, AT THAT TIME BEING AN EMPLOYEE OF THE BUREAU OF RECLAMATION BUT HAS SINCE SEVERED HIS CONNECTION THEREWITH. HIS TESTIMONY WAS VERY VALUABLE FROM THE STANDPOINT OF ESTABLISHING THE RIGHTS OF THE UNITED STATES, AND IT IS RECOMMENDED THAT THE CLAIM BE ALLOWED IN THE AMOUNT OF $24.27 AND PAID FROM THE RECLAMATION FUND. AS WILL BE NOTED, MR. MERRIELL IS NOT ASKING FOR REIMBURSEMENT FOR HIS SERVICES, BUT SIMPLY FOR EXPENSES INCURRED IN ATTENDING SAID HEARING.

( SIGNED) J. R. ALEXANDER,

J. R. ALEXANDER,

DISTRICT COUNSEL,

BUREAU OF RECLAMATION.

APPROVED, WITH RECOMMENDATION THAT CLAIM BE PAID FROM THE RECLAMATION FUND.

( SIGNED) WORTH ALLEN,

WORTH ALLEN,

SPECIAL ASSISTANT TO THE ATTORNEY GENERAL.

THE PAYMENT IS PROPOSED TO BE MADE FROM THE APPROPRIATION " WATER CONSERVATION AND UTILITY PROJECTS, ACT OF AUGUST 11, 1939, AS AMENDED ( REIMBURSABLE) MANCOS PROJECT.' THE APPROPRIATION UNDER SAID HEADING FOR 1944, IN THE ACT OF JULY 12, 1943, 57 STAT. 477, PUBLIC LAW 133, READS AS FOLLOWS:

FOR THE CONSTRUCTION OF WATER CONSERVATION AND UTILIZATION PROJECTS AND SMALL RESERVOIRS, INCLUDING NOT TO EXCEED $220,000 FOR SURVEYS, INVESTIGATIONS, AND ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH (OF WHICH NOT TO EXCEED $20,000 SHALL BE AVAILABLE FOR PERSONAL SERVICES IN DISTRICT OF COLUMBIA), ALL AS AUTHORIZED BY THE ACT OF AUGUST 11, 1939, AS AMENDED (16 U.S.C. 590Y, 590Z), $64,000. 16 U.S.C. 590Y AND 590Z, CITED IN THE APPROPRIATION, SUPRA, PROVIDE FOR PROJECTS FOR CONSERVATION AND UTILIZATION OF WATER RESOURCES UNDER CONDITIONS THEREIN SPECIFIED.

AS THE "ADJUDICATION PROCEEDINGS" IN THIS CASE APPARENTLY WERE IN A STATE COURT THE WITNESS FOR THE UNITED STATES WOULD BE ENTITLED TO REIMBURSEMENT OF HIS EXPENSES PAYABLE FROM THE APPROPRIATE ADMINISTRATIVE APPROPRIATION- -- IN THIS CASE, THE ONE NAMED ON THE VOUCHER, SUPRA--- AND THERE WOULD BE NO OBJECTION TO THE ALLOWANCE OF SO MUCH OF HIS CLAIM AS RELATES TO EXPENSES FOR HOTEL AND MEALS ON AN ACTUAL EXPENSE BASIS. WHILE SUCH CHARGES SHOULD BE SUPPORTED BY RECEIPTS, IN VIEW OF THE REASONABLENESS OF THE AMOUNTS CLAIMED IN THIS CASE RECEIPTS WILL NOT BE INSISTED UPON. HOWEVER, THE AMOUNT CLAIMED AS CAR MILEAGE REPRESENTS A COMMUTATION OF THE EXPENSES OF OPERATING HIS PRIVATELY-OWNED AUTOMOBILE, AND CANNOT BE ALLOWED UNDER THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED, AS HE WAS NOT AT THE TIME OF TRAVELING AN EMPLOYEE OF THE UNITED STATES. THE BASIS FOR THE CLAIM FOR CAR MILEAGE IS NOT STATED, BUT IF IT SHOULD BE AUTHORIZED AT THAT RATE BY A STATE STATUTE FOR WITNESSES IN A STATE COURT, THE PAYMENT IN ACCORDANCE WITH THE STATE STATUTE, THERE WOULD APPEAR TO BE NO AUTHORITY FOR REIMBURSING THE CLAIMANT FOR THE USE OF HIS AUTOMOBILE IN THE AMOUNT CLAIMED EXCEPT UPON A SHOWING THAT ACTUAL EXPENSES FOR GARAGE RENT, GASOLINE AND OIL CONSUMED ON THE TRIP IN QUESTION WERE INCURRED IN A SUM EQUALING OR EXCEEDING THE AMOUNT CLAIMED. COMPARE 5 U.S.C. 73, 18 STAT. 452.

THE VOUCHER IS RETURNED HEREWITH, CERTIFICATION THEREOF BEING DEPENDENT UPON THE CONDITIONS STATED ABOVE.