MAY 11, 1923, 2 COMP. GEN. 747

MAY 11, 1923, 2 COMP. GEN. 747

COURT FOR CHINA - SUBSISTENCE AND TRAVELING EXPENSES THE ACTUAL AND NECESSARY EXPENSES OF SUBSISTENCE, NOT EXCEEDING $8 PER DAY, TO WHICH THE JUDGE AND DISTRICT ATTORNEY FOR THE COURT FOR CHINA ARE ENTITLED WHILE ATTENDING SESSIONS OF COURT HELD OUTSIDE OF SHANGHAI, ARE PAYABLE FROM THE APPROPRIATION "UNITED STATES COURT FOR CHINA; " THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE ALLOWED SAID OFFICERS WHILE GOING TO AND RETURNING FROM THE VARIOUS PLACES OF HOLDING COURT ARE PAYABLE "FROM THE APPROPRIATION "TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 11, 1923:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 8, 1923, AS FOLLOWS:

I HAVE RECEIVED YOUR DECISION OF APRIL 20, 1923 (2 COMP. GEN., 681), ON THE SUBJECT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE FOR THE UNITED STATES COURT FOR CHINA, BUT BEFORE ISSUING INSTRUCTIONS TO THE DISBURSING OFFICER OF THAT COURT IT SEEMS DESIRABLE TO HAVE YOUR DECISION ON THE POINT OF THE PRECISE APPROPRIATION FROM WHICH HE SHOULD PAY THE ADDITIONAL ALLOWANCE OF EIGHT DOLLARS PER DAY EACH FOR THE COURT AND THE DISTRICT ATTORNEY WHEN THE SESSIONS OF THE COURT ARE HELD IN OTHER CITIES THAN SHANGHAI.

THE FOLLOWING ARE BELIEVED TO BE THE PERTINENT PROVISIONS OF LAW:

THE ACT APPROVED JUNE 30, 1906, ENTITLED "AN ACT CREATING A UNITED STATES COURT FOR CHINA AND PRESCRIBING THE JURISDICTION THEREOF" AFTER PRESCRIBING THE SALARIES OF THE OFFICERS OF THE COURT, STATES THAT:

"THE JUDGE OF THE SAID COURT AND THE DISTRICT ATTORNEY SHALL, WHEN THE SESSIONS OF THE COURT ARE HELD AT OTHER CITIES THAN SHANGHAI, RECEIVE IN ADDITION TO THEIR SALARIES THEIR NECESSARY EXPENSES DURING SUCH SESSIONS NOT TO EXCEED TEN DOLLARS PER DAY FOR THE JUDGE AND FIVE DOLLARS PER DAY FOR THE DISTRICT ATTORNEY.' (34 STAT. L., PAGES 814 816.)

THE APPROPRIATION FOR THE EXPENSES OF THE JUDGE AND DISTRICT ATTORNEY AT THE RATE OF TEN AND FIVE DOLLARS PER DAY, RESPECTIVELY, APPEARS TO HAVE CONTINUED UNTIL THE DIPLOMATIC AND CONSULAR ACT APPROVED APRIL 15, 1918, WHEN THE RATE PER DAY WAS MADE FIVE DOLLARS FOR BOTH OFFICERS. THIS WAS CONTINUED UNTIL THE DIPLOMATIC AND CONSULAR APPROPRIATION ACT APPROVED JUNE 4, 1920, WHEN THE RATE WAS FIXED AT EIGHT DOLLARS PER DAY EACH, WHICH RATE HAS BEEN CONTINUED TO THE PRESENT TIME. THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENTS OF STATE AND JUSTICE APPROVED JUNE 1, 1922, CONTAINS THE FOLLOWING PROVISION:

"JUDGE, $8,000; DISTRICT ATTORNEY, $4,000; MARSHAL, $3,000; CLERK, $3,000; STENOGRAPHER AND COURT REPORTER, $2,400; PRINTING AND BINDING $3,000; STENOGRAPHER AND COURT REPORTER, $2,400; PRINTING AND BINDING OPINIONS OF THE COURT AND COURT EXPENSES, INCLUDING REFERENCE LAW BOOKS, $10,000.

"THE JUDGE OF THE SAID COURT AND THE DISTRICT ATTORNEY SHALL, WHEN THE SESSIONS OF THE COURT ARE HELD AT OTHER CITIES THAN SHANGHAI, RECEIVE IN ADDITION TO THEIR SALARIES THEIR NECESSARY ACTUAL EXPENSES DURING SUCH SESSIONS, NOT TO EXCEED $8 PER DAY EACH, AND SO MUCH AS MAYBE NECESSARY FOR SAID PURPOSES DURING THE FISCAL YEAR ENDING JUNE 30, 1923, IS APPROPRIATED.

"TOTAL, $30,400.

"THE APPROPRIATION FOR THE TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS CARRIED ELSEWHERE IN THIS ACT SHALL BE AVAILABLE FOR THE TRANSPORTATION OF THE OFFICERS OF THE UNITED STATES COURT FOR CHINA TO THE SAME EXTENT AS FOR THE TRANSPORTATION OF SUCH DIPLOMATIC AND CONSULAR OFFICERS.'

THE DIGEST OF APPROPRIATIONS FOR 1923 CARRIES THE PROVISION PRECISELY AS QUOTED. THE DIGEST ALSO INCLUDES, UNDER THE HEAD OF INDEFINITE APPROPRIATIONS (PAGE 358), THE FOLLOWING:

SALARIES AND EXPENSES, UNITED STATES COURT FOR CHINA (INDEFINITE PORTION, ACT MAY 6, 1910, VOL. 36, P. 343, SEC. 1): IN ALL, ESTIMATED FOR 1923, $1,000.'

IT WOULD APPEAR THAT THE CITATION SHOULD HAVE BEEN TO THE ACT OF JUNE 30, 1906 (34 STAT., PAGE 816), ESTABLISHING THE COURT, RATHER THAN TO THE ACT OF MAY 6, 1910, WHICH WAS THE ANNUAL APPROPRIATION ACT.

IN ORDER THAT THERE MAY BE NO DOUBT IN THE MIND OF THE DEPARTMENT IN DEALING WITH THE EXPENDITURES OF THE UNITED STATES COURT FOR CHINA YOUR DECISION IS REQUESTED UPON THE QUESTION WHETHER THE ALLOWANCE OF EIGHT DOLLARS PER DAY FOR THE JUDGE AND DISTRICT ATTORNEY WHEN ATTENDING SESSIONS OF COURT OUTSIDE SHANGHAI, WHICH, ACCORDING TO YOUR DECISION OF APRIL 20, 1923, IS CONSTRUED TO COVER SUBSISTENCE EXPENSES ONLY, IS TO BE PAID FROM THE INDEFINITE APPROPRIATION CITED OR FROM THE $10,000 APPROPRIATED FOR "PRINTING AND BINDING OPINIONS OF THE COURT AND COURT EXPENSES, INCLUDING REFERENCE LAW BOOKS," OR FROM THE APPROPRIATION "TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS," FROM WHICH, ACCORDING TO THE DECISION CITED, THE TRANSPORTATION EXPENSES OF THE JUDGE AND DISTRICT ATTORNEY, EXCLUSIVE OF SUBSISTENCE, ARE PAYABLE.

THE APPROPRIATION "TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS" PROVIDES AS FOLLOWS:

TO PAY THE ITEMIZED AND VERIFIED STATEMENTS OF THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE, UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF DIPLOMATIC AND CONSULAR OFFICERS AND CLERKS IN EMBASSIES, LEGATIONS, AND CONSULATES AND THEIR FAMILIES AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS, OR OF SUCH OFFICERS AND CLERKS WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE, BUT NOT INCLUDING ANY EXPENSE INCURRED IN CONNECTION WITH LEAVES OF ABSENCE, * *

THE FURTHER PROVISION OF THE ENACTMENT QUOTED IN YOUR LETTER IS THAT THIS APPROPRIATION "SHALL BE AVAILABLE FOR THE TRANSPORTATION OF THE OFFICERS OF THE UNITED STATES COURT FOR CHINA TO THE SAME EXTENT AS FOR THE TRANSPORTATION OF SUCH DIPLOMATIC AND CONSULAR OFFICERS.'

IT SEEMS CLEAR THAT CONGRESS INTENDED THAT THE ACTUAL AND NECESSARY EXPENSES FOR SUBSISTENCE OF THE JUDGE AND DISTRICT ATTORNEY, NOT TO EXCEED $8 PER DAY, WHEN ATTENDING SESSIONS OF COURT HELD OUTSIDE OF SHANGHAI, SHOULD BE PAID FROM THE APPROPRIATION "UNITED STATES COURT FOR CHINA" BY APPROPRIATING SO MUCH AS MAY BE NECESSARY FOR SAID PURPOSES DURING THE FISCAL YEAR ENDING JUNE 30, 1923.

THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE OFFICERS OF THE COURT IN GOING TO AND RETURNING FROM THE VARIOUS PLACES OF HOLDING COURT MAY BE PAID FROM THE APPROPRIATION ,TRANSPORTATION OF DIPLOMATIC AND CONSULAR OFFICERS," UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, WITHIN THE LIMITATIONS FIXED BY CONGRESS.