JUNE 2, 1922, 1 COMP. GEN. 717

JUNE 2, 1922, 1 COMP. GEN. 717

TRAVEL FROM ATLANTIC TO PACIFIC PORT - WHETHER IN HOME WATERS OF THE UNITED STATES TRAVEL PERFORMED UNDER ORDERS BY AN ARMY OFFICER ON A NAVAL TRANSPORT FROM A PACIFIC PORT TO AN ATLANTIC PORT VIA PANAMA CANAL IS NOT TRAVEL "IN THE HOME WATERS OF THE UNITED STATES" WITHIN THE PURVIEW OF THE ACT OF JUNE 12, 1906, 34 STAT., 246, AND THE OFFICER IS ONLY ENTITLED THEREFOR TO REIMBURSEMENT FOR ACTUAL EXPENSES.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 2, 1922:

GEORGE A. MOORE, CAPTAIN, CAVALRY, UNITED STATES ARMY, REQUESTED APRIL 14, 1922, REVIEW OF SETTLEMENT NO. W-575282, DATED APRIL 12, 1922, BY WHICH WAS DISALLOWED HIS CLAIM FOR DAMAGES FROM SAN FRANCISCO, CALIF., TO HAMPTON ROADS, VA., VIA THE PANAMA CANAL, 5,823 MILES, IN THE U.S. NAVAL TRANSPORT HENDERSON, AND IN WHICH CLAIMANT WAS FOUND INDEBTED TO THE GOVERNMENT IN THE SUM OF $73.94, DIFFERENCE BETWEEN THE MILEAGE PAID HIM BY AN ARMY DISBURSING OFFICER FROM SAN FRANCISCO TO WASHINGTON, $122.32, LESS HIS ACTUAL EXPENSES FOR SEA TRAVEL FROM SAN FRANCISCO TO HAMPTON ROADS, $40.10, AND MILEAGE FROM HAMPTON ROADS TO WASHINGTON, $8.28.

TRAVEL WAS PERFORMED PURSUANT TO PARAGRAPH 7 OF SPECIAL ORDERS, NO. 260- 0, DATED WAR DEPARTMENT, NOVEMBER 8, 1921, WHICH PROVIDED:

CAPTAIN GEORGE A. MOORE, 17TH CAVALRY, IS RELIEVED FROM ASSIGNMENT TO THAT REGIMENT, AND WILL PROCEED FROM THE PRESIDIO OF MONTEREY, CALIFORNIA, TO MARE ISLAND NAVY YARD, CALIFORNIA, AT SUCH TIME AS WILL ENABLE HIM TO PROCEED ON THE UNITED STATES NAVAL TRANSPORT HENDERSON, SCHEDULED TO LEAVE THAT STATION ON DECEMBER 2, 1921, FOR HAMPTON ROADS, VIRGINIA. UPON ARRIVAL AT HAMPTON ROADS HE WILL PROCEED TO WASHINGTON, D.C., AND REPORT TO THE CHIEF OF CAVALRY FOR DUTY IN HIS OFFICE.

THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE AND IS CHARGEABLE TO PROCUREMENT AUTHORITY FD 41 P 2451 A 2 (A.G. 210, 313, CAV.) 10-7-21.

CLAIMANT CONTENDS THAT HE WAS ORDERED TO TRAVEL BY A LONGER ROUTE, HE HAD NO CHOICE IN THE MATTER, AND THAT UNDER THE MILEAGE LAW HE IS ENTITLED TO MILEAGE FOR TRAVEL OVER THE ROUTE ORDERED, ALTHOUGH NOT THE SHORTEST USUALLY TRAVELED ROUTE. IF THE LAW AUTHORIZES MILEAGE OVER THE ROUTE TRAVELED THE CLAIM HAS MERIT. DU BOSE V. UNITED STATES, 19 CT.CLS., 514; 2 COMP. DEC., 544; PAR. 1282, ARMY REG. 1913. THE DISALLOWANCE OF THE CLAIM WAS ON THE HYPOTHESIS THAT THE TRAVEL WAS SEA TRAVEL WITHIN THE MEANING OF THE MILEAGE LAW, AND THAT CLAIMANT WAS ENTITLED ONLY TO ACTUAL EXPENSES.

THE ACT OF JUNE 12, 1906, 34 STAT., 246, SO FAR AS HERE MATERIAL, PROVIDES:

THAT HEREAFTER OFFICERS, ACTIVE AND RETIRED, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS * * * SHALL BE PAID SEVEN CENTS PER MILE AND NO MORE; DISTANCES TO BE COMPUTED AND MILEAGE TO BE PAID OVER THE SHORTEST USUALLY TRAVELED ROUTES, WITH DEDUCTIONS AS HEREINAFTER PROVIDED; * * * AND PROVIDED FURTHER, THAT FOR ALL SEA TRAVEL ACTUAL EXPENSES ONLY SHALL BE PAID TO OFFICERS, * * * WHEN TRAVELING ON DUTY UNDER COMPETENT ORDERS, WITH OR WITHOUT TROOPS, AND THE AMOUNTS SO PAID SHALL NOT INCLUDE ANY SHORE EXPENSES AT PORT OF EMBARKATION OR DEBARKATION; BUT FOR THE PURPOSE OF DETERMINING ALLOWANCES FOR ALL TRAVEL UNDER ORDERS, OR FOR OFFICERS AND ENLISTED MEN ON DISCHARGE, TRAVEL IN THE PHILIPPINE ARCHIPELAGO, THE HAWAIIAN ARCHIPELAGO, THE HOME WATERS OF THE UNITED STATES, AND BETWEEN THE UNITED STATES AND ALASKA SHALL NOT BE REGARDED AS SEA TRAVEL AND SHALL BE PAID FOR AT THE RATES ESTABLISHED BY LAW FOR LAND TRAVEL WITHIN THE BOUNDARIES OF THE UNITED STATES.

THE QUESTION IS, THEREFORE, WHETHER TRAVEL BY SEA FROM SAN FRANCISCO TO HAMPTON ROADS, BY WAY OF THE PANAMA CANAL IS TRAVEL IN "THE HOME WATERS OF THE UNITED STATES" FOR WHICH MILEAGE AT THE RATE OF 7 CENTS PER MILE IS PAYABLE, OR WHETHER IT IS SEA TRAVEL FOR WHICH ONLY ACTUAL EXPENSES ARE PAYABLE. SUBPARAGRAPH 5 OF PARAGRAPH 1279, ARMY REGULATIONS, 1913, PROVIDES IN PART:

TRAVEL IN THE PHILIPPINE ARCHIPELAGO, THE HAWAIIAN ARCHIPELAGO, AND THE HOME WATERS OF THE UNITED STATES IS CONFINED TO TRAVEL IN WHICH BOTH TERMINI OF THE JOURNEY ARE IN ONE OF THE ABOVE PLACES.

IT IS PROBABLE THAT THIS REGULATION IS BASED ON THE DECISION OF THE COURT OF CLAIMS IN HUTCHINS V. UNITED STATES, 27 CT.CLS., 137, AFFIRMED, 151 U.S., 542, A CASE UNDER THE NAVY LAWS, 19 STAT., 65, AND 22 STAT., 286, PROVIDING FOR MILEAGE FOR TRAVEL IN THE UNITED STATES AND FOR ACTUAL EXPENSES FOR TRAVEL ABROAD. BOTH COURTS CONCLUDED THAT "WHETHER TRAVEL IS ABROAD OR WITHIN THE UNITED STATES SHOULD BE DETERMINED BY THE TERMINI OF THE JOURNEY RATHER THAN BY THE ROUTE ACTUALLY TAKEN.' THE TERMINI OF THE JOURNEY IS THE TEST OF "TRAVEL IN THE PHILIPPINE ARCHIPELAGO" AND IN "THE HAWAIIAN ARCHIPELAGO; " IT IS NOT SO CLEAR THAT THAT TEST WILL DETERMINE WHETHER ANY AND ALL TRAVEL IS IN "THE HOME WATERS OF THE UNITED STATES," ALTHOUGH IF THE TRAVEL IS IN HOME WATERS OF THE UNITED STATES NECESSARILY BOTH TERMINI MUST BE IN THE UNITED STATES AND THIS IS ALL THE REGULATION PURPORTS TO DETERMINE.

THE STATUTE IN WHICH THE TERM IS USED WAS ENACTED MANY YEARS BEFORE THE COMPLETION OF THE PANAMA CANAL; IT WAS ENACTED IN THE LIGHT OF CONDITIONS THEN EXISTING, AND TRAVEL BY WAY OF PANAMA FROM THE WESTERN TO THE EASTERN COAST OF THE UNITED STATES AND VICE VERSA, SO FAR AS THE ARMY WAS CONCERNED, AFTER THE COMPLETION OF THE TRANSCONTINENTAL RAILROADS WAS OF INFREQUENT OCCURRENCE. THE COMPLETION OF THE CANAL AND THE ROUTING OF TRANSPORTS BY THAT ROUTE HAS CHANGED THESE CONDITIONS. THE CONDITIONS EXISTING WHEN THE STATUTE WAS ENACTED SHED LIGHT ON THE INTENT OF CONGRESS IN THE USE OF THE TERM "HOME WATERS OF THE UNITED STATES.' IT IS NOT A TECHNICAL TERM HAVING A SETTLED LEGAL MEANING. OBVIOUSLY IT IS NOT USED IN LIEU OF "TERRITORIAL WATERS," I.E., THE WATERS UNDER THE EXCLUSIVE JURISDICTION OF THE UNITED STATES, AND ITS POPULAR SIGNIFICANCE WOULD BE THE WATERS, INCLUDING THE HIGH SEAS, ADJACENT TO THE SHORES OF THE UNITED STATES. THE ATLANTIC FLEET OF THE NAVY NORMALLY OPERATES IN "HOME WATERS," ALTHOUGH MUCH OF THE TIME ON THE HIGH SEAS AS DISTINGUISHED FROM THE TERRITORIAL WATERS OF THE UNITED STATES, BUT IT IS THAT PART OF THE HIGH SEAS NEARER THE UNITED STATES THAN TO ANY OTHER COUNTRY. THE TERM SEEMS TO BE SO USED BY THE SUPREME COURT IN UNITED STATES V. SMITH, 197 U.S., 386, 393, WHERE HAVING UNDER CONSIDERATION THE AUTHORITY OF A COMMANDER IN CHIEF OF A FLEET OR SQUADRON TO CONVENE A GENERAL COURT- MARTIAL UNDER THE THIRTY-EIGHTH OF THE "ARTICLES FOR THE GOVERNMENT OF THE NAVY," SECTION 1624, REVISED STATUTES, IT WAS SAID:

LOOKING TO THE LANGUAGE USED, IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES AND THE PURPOSE WHICH IT WAS INTENDED TO ACCOMPLISH, PLATT V. UNION PACIFIC R.R., 99 U.S., 48, 64, IT IS, WE THINK, MANIFEST THAT THE PROHIBITION AGAINST THE CONVOCATION BY THE COMMANDER OF A FLEET OR SQUADRON OF A GENERAL COURT-MARTIAL, WITHOUT THE PREVIOUS AUTHORIZATION OF THE PRESIDENT, WAS INTENDED TO BE OPERATIVE ONLY WHEN THE FLEET OR SQUADRON WAS IN A HOME PORT, AS ABOVE DEFINED. THAT IS TO SAY, THAT CONGRESS CONTEMPLATED THE NECESSITY OF AN ORDER FROM THE PRESIDENT WHEN THE CIRCUMSTANCES SUPPOSED TO REQUIRE THE CONVENING OF THE COURT-MARTIAL COULD BE WITH FACILITY SUBMITTED TO THE PRESIDENT FOR HIS ACTION IN THE PREMISES. TO GIVE A BROAD MEANING TO THE EXPRESSION "WATERS OF THE UNITED STATES," AS EMPLOYED IN ARTICLE 38, BY CONSTRUING THOSE WORDS AS REFERRING NOT ONLY TO THE HOME WATERS BUT TO FAR DISTANT WATERS, WOULD, WE THINK, DEFEAT THE PLAIN PURPOSE OF CONGRESS AND SERIOUSLY IMPAIR, IF NOT DESTROY, AN IMPORTANT POWER VESTED IN THE COMMANDER OF A FLEET OR SQUADRON WHEN AT DISTANT STATIONS REMOTE FROM THE HOME COUNTRY.

SPECIFIC PROVISION IS MADE IN THE MILEAGE STATUTE FOR TRAVEL BETWEEN THE UNITED STATES AND ALASKA, EVIDENCE THAT SUCH TRAVEL WAS NOT IN THE HOME WATERS OF THE UNITED STATES. A JOURNEY BY WATER FROM SAN FRANCISCO TO PANAMA OR TO ANY INTERMEDIATE FOREIGN PORT ON THE PACIFIC COAST OF NORTH OR CENTRAL AMERICAN WOULD CLEARLY BE SEA TRAVEL UNDER THE MILEAGE LAW, SO ALSO A JOURNEY BY SEA FROM COLON, LIMON, VERA CRUZ, OR ANY OTHER FOREIGN PORT ON THE CARIBBEAN SEA OR GULF OF MEXICO TO HAMPTON ROADS WOULD BE SEA TRAVEL. THE THEORY OF THE CLAIM IS, HOWEVER, THAT A JOURNEY ON THE PACIFIC, SEA TRAVEL UNDER THE MILEAGE LAW, WHEN COMBINED WITH A JOURNEY ON THE ATLANTIC, ALSO SEA TRAVEL UNDER THE MILEAGE LAW, BECOMES IN ITS ENTIRETY "TRAVEL IN THE HOME WATERS OF THE UNITED STATES.' THIS WOULD BE AN ANOMALY.

THE OBVIOUS PURPOSE OF THE STATUTE WAS TO EXCEPT FROM THE ACTUAL EXPENSE PORTION OF THE STATUTE WATER TRAVEL ON EACH OF THE COASTS OF THE UNITED STATES, GIVING TO THE OFFICER AN ELECTION OF THE AVAILABLE FACILITIES WHICH ARE SUBSTANTIALLY EQUALLY AS EXPEDITIOUS WITHOUT ALTERING THE BASIS OF REIMBURSEMENT OR RAISING A QUESTION AS TO THE MOST ECONOMICAL ROUTE TO THE GOVERNMENT. IT DID NOT CONTEMPLATE LONG SEA JOURNEYS IN FOREIGN WATERS FROM POINTS ON THE ATLANTIC OR GULF TO POINTS ON THE PACIFIC, OR VICE VERSA, AND WHERE THE LOSS OF TIME AS COMPARED WITH RAIL TRAVEL IN THE UNITED STATES BETWEEN THE SAME POINTS WOULD BE GREAT. AN OFFICER ON THE ACTIVE LIST TRAVELING UNDER ORDERS COULD NOT ELECT THE ROUTE VIA PANAMA BECAUSE OF THE TIME INVOLVED, AND IF THAT ROUTE IS REQUIRED BY HIS ORDERS IT MUST BE HELD TO BE SEA TRAVEL WITHIN THE MEANING OF THE ACT OF JUNE 12, 1906.

OTHER CONSIDERATIONS LEAD TO THE SAME CONCLUSION: MILEAGE IS A REIMBURSEMENT OR COMMUTATION OF TRAVELING EXPENSES, UNITED STATES V. SMITH, 158 U.S., 350, AND "PUBLIC BUSINESS" IS THE FOUNDATION ON WHICH REIMBURSEMENT OF TRAVELING EXPENSES RESTS, WHETHER IN THE FORM OF MILEAGE OR OTHERWISE, PERRIMOND V. UNITED STATES, 19 CT.CLS., 509. THE CLAIM IN THIS CASE IS AT THE RATE OF 4 CENTS PER MILE, EXCLUSIVE OF TRANSPORTATION FURNISHED BY THE GOVERNMENT, FOR 5,823 MILES, $232.92, AND THE ONLY EXPENSE INCURRED BY CLAIMANT WAS THE COST OF SUBSISTENCE ON THE TRANSPORT, $40.10 FOR THE ENTIRE PERIOD OF 25 DAYS. AS WAS SAID IN WILLIAMS V. UNITED STATES, 47 CT.CLS., 186, 188:

THE THEORY OF THE LAW IN ALLOWING MILEAGE IS TO PROVIDE EXPENSES NECESSARILY INCURRED IN THE PERFORMANCE OF TRAVEL. SMITH'S CASE, 26 CT.CLS., 568; GALM V. UNITED STATES, 39 ID., 67.

IF THE CONTENTION OF CLAIMANT WERE ADOPTED, IN THE LANGUAGE OF THE COURT, IN HUTCHINS V. UNITED STATES, 27 CT.CLS., 137, THE TRAVEL IN QUESTION INVOLVED "LONG OCEAN VOYAGES, WHERE MILEAGE CEASES TO BE REIMBURSEMENT AND BECOMES EMOLUMENT.'

UPON A REVIEW OF THE MATTER THE SETTLEMENT IS SUSTAINED. CLAIMANT IS REQUESTED TO FORWARD TO THIS OFFICE AT ONCE THE AMOUNT OF $73.94, OVERPAID HIM BY THE DISBURSING OFFICER.