B-60256, SEPTEMBER 9, 1946, 26 COMP. GEN. 165

B-60256, SEPTEMBER 9, 1946, 26 COMP. GEN. 165

SUBSISTENCE - PER DIEMS - PHILIPPINE WAR DAMAGE COMMISSION EMPLOYEES THE AUTHORITY GRANTED THE PHILIPPINE WAR DAMAGE COMMISSION BY SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 TO FIX "ALLOWANCES" OF ITS EMPLOYEES HAVING BEEN COUPLED WITH THE AUTHORITY TO FIX COMPENSATION "WITHOUT REGARD TO * * * THE CLASSIFICATION ACT OF 1923, AS AMENDED," THE TERM "ALLOWANCES" AS USED THEREIN MUST BE VIEWED AS HAVING REFERENCE TO SUCH ALLOWANCES AS WOULD AFFECT COMPENSATION, AND, THEREFORE, MAY NOT BE REGARDED AS AUTHORITY TO FIX A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE-- - FORMING NO PART OF AN EMPLOYEE'S COMPENSATION--- WITHOUT REGARD TO EXISTING LIMITATIONS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, PHILIPPINE WAR DAMAGE COMMISSION, SEPTEMBER 9, 1946:

I HAVE YOUR LETTER OF AUGUST 27, 1946, AS FOLLOWS:

THIS LETTER IS WRITTEN AT THE DIRECTION OF THE MEMBERS OF THE PHILIPPINE WAR DAMAGE COMMISSION TO OBTAIN A RULING INTERPRETATIVE OF THE MEANING OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 ( PUBLIC LAW 370, 79TH CONGRESS), IN REFERENCE TO PER DIEM ALLOWANCES TO THE COMMISSION'S PERSONNEL WHILE ON TEMPORARY DUTY ASSIGNMENT IN THE PHILIPPINES.

IN THIS CONNECTION I AM ENCLOSING HEREWITH THE EXPENSE VOUCHERS OF MESSRS. JOHN M. SMITH, AND VERNON E. MOORE, EMPLOYEES OF THIS COMMISSION. BOTH MR. SMITH AND MR. MOORE HAVE ENTERED THE AMOUNT OF $10.00 PER DIEM FOR EACH DAY OF THEIR TEMPORARY DUTY IN THE PHILIPPINES. THEY CLAIM SUCH AN ALLOWANCE ON THE BASIS OF FORMAL ACTION BY THIS COMMISSION IN DIRECTING THAT THEY BE ALLOWED THAT MUCH PER DAY BECAUSE OF EXCESSIVE SUBSISTENCE COSTS IN THE PHILIPPINES. AUTHORITY FOR THEIR ACTION IS CONTAINED IN THE OFFICIAL MINUTES OF THE COMMISSION AND IN LETTERS ADDRESSED TO THEM IN CONFIRMATION OF THE MINUTE ENTRIES.

THE PROVISIONS OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT STATE THAT "THE COMMISSION MAY * * * FIX THE COMPENSATION AND ALLOWANCES OF SUCH OFFICERS, ATTORNEYS, AND EMPLOYEES, AND MAY MAKE SUCH EXPENDITURES AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS * * *.' THE LEGISLATIVE HISTORY RECORD REGARDING THE INTENT OF CONGRESS IS SILENT. IT APPEARS OBVIOUS, HOWEVER, THAT, WHEN ONE CONSIDERS THAT THE VERY LIBERAL PROVISIONS OF OTHER SECTIONS OF THE ACT GRANT WIDE DISCRETIONARY POWERS TO THE COMMISSION ON MORE IMPORTANT MATTERS, THE CONGRESS MUST HAVE INTENDED THAT SECTION 101 (B) SHOULD GIVE THE COMMISSION THE POWER TO MAKE ITS OWN PER DIEM ALLOWANCES.

FURTHERMORE, IN THE ENACTMENT OF THE FOREIGN SERVICE ACT OF 1946 ( PUBLIC LAW 724, 79TH CONGRESS) THE CONGRESS HAS EXPRESSED ITSELF IN FAVOR OF THE GENERAL POLICY OF MAKING SUITABLE AND NECESSARY ADJUSTMENTS IN PER DIEM ALLOWANCES WHERE HARDSHIPS WOULD OTHERWISE RESULT. (SEE SEC. 901, PUBLIC LAW 724, 79TH CONGRESS, AND PAGES 125 TO 131 INCLUSIVE OF HOUSE REPORT NO. 2508, 79TH CONGRESS, 2ND SESSION.)

THE ACTUAL SITUATION FACING THE COMMISSION IS THAT BECAUSE OF INFLATION IN THE PHILIPPINES, LIVING COSTS HAVE RISEN SO HIGH THAT IT IS IMPOSSIBLE TO OBTAIN SUCH NECESSITIES OF LIFE AS FOOD AND SHELTER WITHOUT EXPENDITURES CONSIDERABLY IN EXCESS OF THE CUSTOMARY $7.00 A DAY ALLOWED GENERALLY TO FEDERAL EMPLOYEES IN SOME OTHER FEDERAL AGENCIES FUNCTIONING IN OTHER FOREIGN COUNTRIES.

THAT SITUATION IS FURTHER COMPLICATED BY THE FACT THAT THE ARMED FORCES HAVE WITHDRAWN THEIR HOSPITALITY AND ASSISTANCE TO CIVILIANS IN THE PHILIPPINE AREA BECAUSE CONGRESS HAS REDUCED THEIR APPROPRIATION TO THE POINT THAT SUCH LIBERALITY IS NOT NOW POSSIBLE.

IT IS EXTREMELY IMPORTANT THAT THIS COMMISSION HAVE YOUR OPINION PROMPTLY AS MR. SMITH, WHO IS NOW IN THE PHILIPPINES, WILL SOON BE JOINTED THERE BY OTHERS TO CARRY ON THE COMMISSION'S WORK.

TITLE I OF THE PHILIPPINE REHABILITATION ACT OF 1946, PUBLIC LAW 370, APPROVED APRIL 30, 1946, 60 STAT. 128, PROVIDES, IN PART, AS FOLLOWS:

SEC. 101. (A) THERE IS HEREBY ESTABLISHED A PHILIPPINE WAR DAMAGE COMMISSION (IN THIS TITLE REFERRED TO AS THE " COMMISSION"). THE COMMISSION SHALL CONSIST OF THREE MEMBERS, TO BE APPOINTED BY THE PRESIDENT OF THE UNITED STATES, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. ONE OF THE MEMBERS OF THE COMMISSION SHALL BE A FILIPINO. THE MEMBERS OF THE COMMISSION SHALL RECEIVE COMPENSATION AT THE RATE OF $12,000 A YEAR. THE TERMS OF OFFICE OF THE MEMBERS OF COMMISSION SHALL EXPIRE AT THE TIME FIXED IN SUBSECTION (D) FOR WINDING UP THE AFFAIRS OF THE COMMISSION. A VACANCY IN THE MEMBERSHIP OF THE COMMISSION SHALL NOT IMPAIR THE AUTHORITY OF THE REMAINING TWO MEMBERS OF THE COMMISSION TO EXERCISE ALL OF ITS FUNCTIONS. VACANCIES OCCURRING IN THE MEMBERSHIP OF THE COMMISSION SHALL BE FILLED IN THE SAME MANNER AS IN THE CASE OF THE ORIGINAL SELECTION. MEMBERS OF THE COMMISSION SHALL RECEIVE THEIR NECESSARY TRAVELING AND OTHER EXPENSES INCURRED IN CONNECTION WITH THEIR DUTIES AS SUCH MEMBERS, OR A PER DIEM ALLOWANCE IN LIEU THEREOF, TO BE FIXED BY THE COMMISSION WITHOUT REGARD TO THE LIMITATION PRESCRIBED IN ANY EXISTING LAW.

(B) THE COMMISSION MAY, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF SUCH OFFICERS, ATTORNEYS, AND EMPLOYEES, AND MAY MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS. OFFICERS AND EMPLOYEES OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF SUCH DEPARTMENT OR AGENCY, BE ASSIGNED TO ASSIST THE COMMISSION IN CARRYING OUT ITS FUNCTIONS. THE COMMISSION MAY, WITH THE CONSENT OF THE HEAD OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT, UTILIZE THE FACILITIES AND SERVICES OF SUCH DEPARTMENT OR AGENCY IN CARRYING OUT THE FUNCTIONS OF THE COMMISSION.

SECTION 101 (B), SUPRA, AUTHORIZES THE COMMISSION TO APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF ITS OFFICERS, ATTORNEYS, AND EMPLOYEES "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED.' CLEARLY, THE TERM "ALLOWANCES" AS USED IN THE ABOVE- QUOTED SECTION REFERS TO SUCH ALLOWANCES AS MAY BE AFFECTED BY THE CIVIL- SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED. OTHERWISE, THE AUTHORITY THUS CONFERRED TO FIX ALLOWANCES WOULD BE MEANINGLESS--- AMOUNTING TO NOTHING MORE THAN A LEGISLATIVE STATEMENT OF A SELF-EVIDENT FACT. THE CIVIL-SERVICE LAWS PERTAIN TO APPOINTMENTS TO POSITIONS UNDER THE FEDERAL GOVERNMENT AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, RELATES TO THE FIXING OF RATES OF COMPENSATION. HENCE, CONSIDERING THE FACT THAT THE AUTHORITY TO FIX "ALLOWANCES" IS COUPLED WITH THE AUTHORITY TO FIX COMPENSATION, IT REASONABLY APPEARS THAT THE TERM "ALLOWANCES" AS USED IN SECTION 101 (B), SUPRA, HAS REFERENCE TO SUCH ALLOWANCES AS WOULD AFFECT COMPENSATION. IN THAT CONNECTION, IT WILL BE NOTED THAT THE REASONABLE VALUE OF ALLOWANCES IN KIND, SUCH AS QUARTERS, LIGHT, HEAT, ETC.--- AUTHORIZED TO BE FURNISHED ADMINISTRATIVELY TO CIVILIAN EMPLOYEES OF THE GOVERNMENT IN APPROPRIATE CASES--- IS REQUIRED BY STATUTE TO BE CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATES OF EMPLOYEES TO WHOM SUCH ALLOWANCES ARE FURNISHED. SEE SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193. ON THE OTHER HAND, IT IS SETTLED THAT A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE PRESCRIBED IN ACCORDANCE WITH THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FORMS NO PART OF COMPENSATION. SEE 22 COMP. GEN. 925, 926, AND THE DECISION CITED THEREIN. CONSEQUENTLY, IN THE ABSENCE OF A CLEAR INDICATION OF SUCH AN INTENT ON THE PART OF THE CONGRESS, THIS OFFICE WOULD NOT BE WARRANTED IN ACCEPTING THE VIEW URGED IN YOUR LETTER THAT THE AUTHORITY CONFERRED UPON THE MEMBERS OF THE COMMISSION BY SECTION 101 (B) ABOVE INCLUDES AUTHORITY TO FIX PER DIEM IN LIEU OF SUBSISTENCE FOR EMPLOYEES OF THE COMMISSION WITHOUT REGARD TO THE EXISTING LIMITATIONS THEREON.

IT WILL BE NOTED THAT SECTION 101 (A), SUPRA, EXPRESSLY PROVIDES THAT THE MEMBERS OF THE COMMISSION SHALL RECEIVE NECESSARY TRAVELING AND OTHER EXPENSES INCURRED IN CONNECTION WITH THEIR OFFICIAL DUTIES, OR A PER DIEM ALLOWANCE IN LIEU THEREOF,"TO BE FIXED BY THE COMMISSION WITHOUT REGARD TO THE LIMITATION PRESCRIBED IN ANY EXISTING LAW.' IF THE CONGRESS HAD INTENDED LIKEWISE TO AUTHORIZE THE COMMISSION TO PRESCRIBE A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE OF ITS EMPLOYEES WITHOUT REGARD TO THE LIMITATIONS OF EXISTING LAW, IT IS REASONABLE TO ASSUME THAT IT WOULD HAVE USED LANGUAGE SIMILAR TO THAT EMPLOYED IN SECTION 101 (A). FURTHER, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE SAID 1946 STATUTE WHICH IS INDICATIVE OF A LEGISLATIVE INTENT TO AUTHORIZE A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR EMPLOYEES OF THE COMMISSION IN AN AMOUNT GREATER THAN THAT AUTHORIZED FOR CIVILIAN EMPLOYEES OF OTHER AGENCIES OF THE FEDERAL GOVERNMENT SERVING TEMPORARILY IN THE PHILIPPINES AND NO COGENT REASON FOR SUCH A DISTINCTION SUGGESTS ITSELF.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT THE MAXIMUM PER DIEM IN LIEU OF SUBSISTENCE ALLOWABLE FOR EMPLOYEES OF THE PHILIPPINE WAR DAMAGE COMMISSION WHILE ON TEMPORARY DUTY IN THE PHILIPPINES IS $7 (SEE BUREAU OF THE BUDGET BULLETIN NO. 1946-47:1, DATED JULY 11, 1946).

WITH RESPECT TO THE TRAVEL VOUCHER OF MR. VERNON E. MOORE, IT APPEARS THAT THE CLAIM FOR PER DIEM AT THE RATE AUTHORIZED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES SHOULD COVER 32 DAYS ( JULY 9 THROUGH AUGUST 8, 1946--- INCLUDING THE DAY LOST BY REASON CROSSING THE INTERNATIONAL DATE LINE), RATHER THAN 33 DAYS AS CLAIMED--- THE CALENDAR DAYS OVER THE PERIOD JULY 9 TO AUGUST 8, 1946, BOTH DATES INCLUSIVE, INVOLVING ONLY 31 DAYS.

THE VOUCHERS AND SUPPORTING PAPERS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.