DECEMBER 6, 1921, 1 COMP. GEN. 299

DECEMBER 6, 1921, 1 COMP. GEN. 299

TRAVELING EXPENSES - MINGLING OF PRIVATE AND PUBLIC BUSINESS WHEN THERE IS A MINGLING OF PRIVATE MATTERS WITH GOVERNMENT BUSINESS BY A GOVERNMENT OFFICER OR EMPLOYEE IN A TRAVEL STATUS THE EXPENSES INCURRED THEREBY CAN NOT BE CHARGED AGAINST THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, DECEMBER 6, 1921:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1921, REQUESTING THAT THE ACCOUNTS FOR THE DECEMBER QUARTER, 1920, OF CHARLES T. WALTON, UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF CALIFORNIA, BE REOPENED AND THAT THERE BE RECHARGED PER DIEMS AND EXPENSES PAID HERBERT N. ELLIS, ASSISTANT UNITED STATES ATTORNEY, FOR TRAVEL TO AND FROM SAN DIEGO, CALIF.

THE CHARGES RECOMMENDED FOR DISALLOWANCE ARE AS FOLLOWS: ITEM 1. OCTOBER 12 TO 17, INCL.: CONSULTING DIFFERENT DEPARTMENTS--- IMMIGRATION, CUSTOMS,

ETC.--- CONCERNING CASES PENDING FOR TRIAL, FOR INFORMATION

THIS OFFICE AND TO HANDLE. ALSO ATTENDED PRELIMINARY

HEARINGS CARSE AND OTHERS. LEFT SAN DIEGO 2:00 A.M., OCT. 17. ARRD. LOS ANGELES 7:30 A.M., OCT. 17. PER DIEMS OCTOBER 12, 13, 14, 15, 16, AND 17 ------------------ $24.00 EXPENSES OF TRIP -------------------- ---------- --------------- 7.90 ITEM 2. OCTOBER 19 TO 24, INCL.: PRELIMINARY HEARING U.S. VS. E. L. LINCOLN, AND OTHER MATTERS

ALONG LINE ABOVE REFERRED TO. LEFT LOS ANGELES 3:00 P.M., TUESDAY, OCT. 19. ARRD. SAN DIEGO :30 " " " LEFT " " 2:00 A.M., SUNDAY, OCT. 24. ARRD. LOS ANGELES 7:30 A.M., "

" PER DIEMS OCTOBER 19, 20, 21, 22, 23 AND 24 ------------------- 24.00 EXPENSES OF TRIP ---------------------------------------------- 11.95 ITEM 3. OCTOBER 29 TO NOVEMBER 2, INCL.: RE SUIT, SUPERIOR COURT, AGAINST HOFFMAN, INDIAN AGENT;

REPRESENTING GOVERNMENT INTEREST. LEFT LOS ANGELES 3:00 P.M., FRIDAY, OCT. 29. ARRD. SAN DIEGO 6:30 " " " LEFT " " 3:00 " TUESDAY, NOV. 2. ARRD. LOS ANGELES 6:30 P.M., " " PER DIEMS OCTOBER 29, 30, 31, NOVEMBER 1 AND 2 ---------------- 20.00 EXPENSES OF TRIP ---------------------------- ------------------ 9.30 ITEM 4. NOVEMBER 5 AND 6, INCL.: RE HARRY MERWIN HEARING AT SAN DIEGO. LEFT LOS ANGELES 3:00 P.M., FRIDAY, NOV. 5. ARRD. SAN DIEGO 6:30 "

" " LEFT " " 3:00 " SATURDAY, NOV. 6. ARRD. LOS ANGELES 6:30 " " PER DIEMS NOVEMBER 5 AND 6 --------------------- -------------- 8.00 EXPENSES OF TRIP ------------------------------- -------------- 9.30 ITEM 5. NOVEMBER 10 TO 12, INCL.: PREPARATION OF COMPLAINT AGAINST MCGREGOR LAWRENCE, ET AL. LEFT LOS ANGELES 3:00 P.M., WEDNESDAY, NOV. 10. ARRD. SAN DIEGO 6:30 " " " LEFT " " 3:00 " FRIDAY, NOV. 12. ARRD. LOS ANGELES 6:30 P.M., " " PER DIEMS NOVEMBER 10, 11 AND 12 ------------------- ------ ---- 12.00 EXPENSES OF TRIP ----------------------------------- ---------- 9.30 ITEM 6. NOVEMBER 13 TO 16: RE PREPARATION FOR AND HEARINGS, A. R. ARUNDT, TORRES, PRATT,

ORTEZ, ET AL., AND CASE SUPERIOR COURT, AGAINST HOFFMAN,

INDIAN AGENT. LEFT LOS ANGELES 6:00 P.M., SATURDAY, NOV. 13. ARRD. SAN DIEGO 9:30 ""

" LEFT " " 2:00 A.M., TUESDAY, NOV. 16. ARRD. LOS ANGELES 7:30 " " " PER DIEMS NOVEMBER 13, 14, 15 AND 16 ---------- --------------- 16.00 EXPENSES OF TRIP ------------------------------ --------------- 9.30 ITEM 7. NOVEMBER 19 TO 23, INCL.: A. R. ARUNDT HELD TO ANSWER AT S.D., ORTEZ, ADAM TORRES HEARING;

MONDAY 11/22/20, C. B. LAUGHLIN, JACK K. RUSSELL AND OTHERS,

HEARING. LEFT LOS ANGELES MIDNIGHT, FRIDAY, NOV. 19. ARRD. SAN DIEGO 5:00 A.M., SATURDAY, NOV. 20. LEFT " " 2:00 " TUESDAY, NOV. 23. ARRD. LOS ANGELES 7:30 A.M., " " PER DIEMS NOVEMBER 19, 20, 21, 22 AND 23 ------ ---------------- $20.00 EXPENSES OF TRIP - ------------------------------- ------------- 9.30 ITEM 8. NOVEMBER 25 TO 28, INCL.: FOR VAN ANSPACH HEARING, EL CENTRO; AND RE AUGUSTINE FLORES. LEFT LOS ANGELES 8:40 A.M., TUESDAY, NOV. 25. ARRD. EL CENTRO 5:00 P.M., " " LEFT " " 8:05 A.M., SUNDAY, NOV. 28. ARRD. LOS ANGELES 4:40 P.M., " " PER DIEM NOVEMBER 25, 26, 27 AND 28 --------------------------- 20.00 EXPENSES OF TRIP --------- ------------------------------------ 19.18 ITEM 9. DECEMBER 2 TO 6, INCL.: HEARINGS AT SAN DIEGO, HARRY HUNT, ED LEROY, AND OTHERS. ALSO

RE GOV. LAND, SAN DIEGO, CONSULTING VARIOUS OFFICIALS RE MAPS

AND TITLES. SAT. DEC. 4TH, SEVERAL HEARINGS BEFORE COMMISSIONER. LEFT LOS ANGELES MIDNIGHT THURSDAY, DEC. 2. ARRD. SAN DIEGO 5:00 A.M., FRIDAY, DEC. 3. LEFT " " 2:00 A.M., MONDAY, DEC. 6. ARRD. LOS ANGELES 7:15 A.M., " " PER DIEMS DECEMBER 2, 3, 4, 5 AND 6 ------ -------------------- 20.00 EXPENSES OF TRIP ------------------------- -------------------- 11.95 ITEM 10. DECEMBER 17 TO 21 INCL.: REHEARING BEFORE COMMISSIONER, WM. MCMAHON AND MABEL WHITE. LEFT LOS ANGELES 6:00 P.M., FRIDAY, DEC. 17. ARRD. SAN DIEGO 9:30 " " " LEFT

" " 2:00 A.M., TUESDAY, DEC. 21. ARRD. LOS ANGELES 7:30 " " " PER DIEMS DECEMBER 17, 18, 19, 20, AND 21 ------------------- - 20.00 EXPENSES OF TRIP -------------------------------------------- - 11.95 ITEM 11. DECEMBER 24 TO 28 INCL.: RE HANS CHRIS ANDERSON (ALBERTSON); CONSULTING WOOLMAN (SPECIAL

DEPUTY COLLECTOR CUSTOMS), VISITED JAIL, CONSULTED GUSWEILER

(PROHIBITION OFFICER) RE GEORGE PAGE AND OTHER PENDING CASES. LEFT LOS ANGELES 6:00 P.M., FRIDAY, DEC. 24. ARRD. SAN DIEGO 9:30 " " " LEFT " " 2:00 A.M., TUESDAY, DEC. 28. ARRD. LOS ANGELES 7:30 " " " PER DIEMS DECEMBER 24, 25, 26, 27, AND 28 --------------------- 20.00 EXPENSES OF TRIP --------------------- ------------------------ 11.95

TOTAL ---------------------------------------------------- 325.38

IT IS SHOWN BY THE EXAMINER'S REPORT THAT HERBERT N. ELLIS WAS APPOINTED ASSISTANT DISTRICT ATTORNEY OCTOBER 11, 1920, AND TOOK THE OATH OF OFFICE ON THE SAME DAY, WITH OFFICIAL HEADQUARTERS AT LOS ANGELES, AND THAT PRIOR TO HIS APPOINTMENT AS ASSISTANT DISTRICT ATTORNEY HE WAS ENGAGED IN THE GENERAL PRACTICE OF LAW AT SAN DIEGO, WHERE HE STILL MAINTAINS HIS PRIVATE RESIDENCE. THE EXAMINER STATES THAT IT IS UNDERSTOOD THAT MR. ELLIS' WIFE IS ALSO A LAWYER, AND IT IS PRESUMED THAT HE CONTINUES HIS LAW PRACTICE AT SAN DIEGO IN ASSOCIATION WITH HER, INASMUCH AS THEY MAINTAIN A LAW OFFICE THERE IN THE FIRST NATIONAL BANK BUILDING, OR SUCH APPEARS TO BE A FACT ACCORDING TO THE BUILDING DIRECTORY AND THE LETTERING ON THE DOOR OF ROOM 916 ("HERBERT N. ELLIS AND CLARA B. ELLIS, LAWYERS").

EXCEPTION WAS TAKEN BY THE EXAMINER TO THE FACT THAT NEARLY ALL OF THE TRIPS TO SAN DIEGO EMBRACE A WEEK-END AND INCLUDE NEARLY EVERY WEEK-END DURING THE QUARTER.

IT IS ALSO NOTED THAT THE ASSISTANT ATTORNEY SPENT 12 OR 13 DAYS AT SAN DIEGO FOLLOWING HIS APPOINTMENT. IT IS FURTHER SHOWN BY REFERENCE TO THE EXPENSE ACCOUNTS OF THE DISTRICT ATTORNEY'S OFFICE FOR A PERIOD OF ONE YEAR PRIOR TO MR. ELLIS' EMPLOYMENT THAT OFFICIAL VISITS TO SAN DIEGO, OTHER THAN REGULAR ATTENDANCE AT COURT, WERE LESS FREQUENT AND OF SHORTER DURATION. IT ALSO APPEARS THAT THE DISTRICT ATTORNEY SANCTIONED THE WEEK- END TRIPS OF HIS ASSISTANT SO AS TO PERMIT HIM TO BE FREQUENTLY IN HIS HOME TOWN OVER SUNDAYS; IN FACT, IT IS SHOWN THAT OFFICIALS HAVING BUSINESS WITH THE DISTRICT ATTORNEY'S OFFICE, CITY, COUNTY, AND FEDERAL, WERE INFORMED THAT MR. ELLIS WOULD BE IN SAN DIEGO VERY FREQUENTLY, USUALLY AT THE END OF THE WEEK AND REMAIN OVER UNTIL THE FIRST OF THE NEXT WEEK, AND THEY, THEREFORE, ARRANGED THEIR BUSINESS ACCORDINGLY.

THE REQUEST OF THE ATTORNEY GENERAL THAT THE EXPENDITURES BE RECHARGED TO THE MARSHAL IN HIS ACCOUNTS IS IN SUBSTANCE A DISAPPROVAL OF THE PROCEDURE FOLLOWED.

FROM THE EVIDENCE SUBMITTED THERE IS LITTLE DOUBT THAT THESE CONSTANTLY REPEATED TRIPS OF THE ASSISTANT UNITED STATES ATTORNEY WERE MADE PRIMARILY, IF NOT SOLELY, THAT HE MIGHT VISIT HIS HOME AT SAN DIEGO, AND THAT THE ATTENDING TO SUCH BUSINESS AS MIGHT BE THERE WAS MERELY INCIDENTAL AND NOT SUCH AS TO JUSTIFY THE CHARGING TO THE UNITED STATES OF THE EXPENSE OF THE CONSTANTLY REPEATED WEEK-END VISITS. WHERE THERE IS A MINGLING OF PRIVATE MATTERS AND GOVERNMENT MATTERS THE CLEAR RULE MUST BE THAT AS THEY CANNOT BE SEPARATED THE EXPENSES INCURRED THEREBY CANNOT BE CHARGED AGAINST THE GOVERNMENT.

THE SETTLEMENT IS REVERSED AND A DIFFERENCE OF $325.38 IS CERTIFIED IN FAVOR OF THE UNITED STATES.