B-13029, DECEMBER 18, 1940, 20 COMP. GEN. 322

B-13029, DECEMBER 18, 1940, 20 COMP. GEN. 322

STATUTORY CONSTRUCTION - PERMANENCY OF ANNUAL APPROPRIATION PROVISIONS; TRAVELING EXPENSES - LEAVES OF ABSENCE ANNUAL APPROPRIATIONS GENERALLY DO NOT CONSTITUTE PERMANENT LEGISLATION AND ANY SPECIFIC AUTHORITY CONTAINED THEREIN--- UNLESS IN TERMS MAKING IT PERMANENT--- IS APPLICABLE ONLY TO THE FISCAL YEAR COVERED BY THE APPROPRIATION, AND ANY REGULATIONS CARRYING OUT SUCH SPECIFIC AUTHORITY LIKEWISE ARE EFFECTIVE ONLY SO LONG AS SUCH SPECIFIC AUTHORITY IS REPEATED IN THE ANNUAL APPROPRIATIONS INVOLVED AND ONLY SO FAR AS THE REGULATIONS COVER MATTERS WITHIN THE LIMITS OF THE SPECIFIC AUTHORITY. TRAVELING EXPENSES IN CONNECTION WITH LEAVES OF ABSENCE ARE PERSONAL EXPENSES AND, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, MAY NOT BE PAID FROM APPROPRIATED FUNDS. REIMBURSEMENT FOR TRAVELING EXPENSES OF AN OFFICER OF THE UNITED STATES COURT FOR CHINA AND HIS FAMILY IN PROCEEDING TO THE UNITED STATES WHILE ON LEAVE OF ABSENCE IS NOT AUTHORIZED, FOR THE ANNUAL APPROPRIATIONS FOR TRAVELING EXPENSES OF SUCH OFFICERS, SINCE THE FISCAL YEAR 1935, OMITTED THE LANGUAGE "IN CONNECTION WITH LEAVES OF ABSENCE," WHILE THIS LANGUAGE WAS CONTINUED IN ANNUAL APPROPRIATIONS COVERING TRANSPORTATION OF FOREIGN SERVICE OFFICERS AFTER THE UNITED STATES COURT FOR CHINA WAS TRANSFERRED FROM THE JURISDICTION OF THE STATE DEPARTMENT TO THAT OF THE JUSTICE DEPARTMENT, AND THE COURT EMPLOYEES WERE NO LONGER WITHIN THE TERMS OF APPROPRIATIONS FOR TRAVELING EXPENSES OF FOREIGN SERVICE OFFICERS.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, DECEMBER 18, 1940:

THERE HAS BEEN CONSIDERED THE LETTER OF NOVEMBER 18, 1940, FROM THE ADMINISTRATIVE ASSISTANT TO THE ATTORNEY GENERAL, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH THE VOUCHER OF HONORABLE LEIGHTON SHIELDS, UNITED STATES DISTRICT ATTORNEY FOR CHINA, AND CORRESPONDENCE RELATIVE TO TRAVELING EXPENSES OF HIMSELF AND FAMILY IN PROCEEDING TO THE UNITED STATES ON LEAVE OF ABSENCE. ROUND-TRIP TICKETS ARE, OF COURSE, INVOLVED.

THE AUDIT DIVISION HAS DECLINED TO CERTIFY THE VOUCHER ON THE GROUND THAT THERE WAS NO CURRENT APPROPRIATION AT THE TIME THE TRAVEL WAS PERFORMED SPECIFICALLY PROVIDING FOR TRAVELING EXPENSES IN CONNECTION WITH LEAVE OF ABSENCE OF OFFICERS OF THE UNITED STATES COURT FOR CHINA.

IN 9 COMP. GEN. 475, IT WAS HELD THAT THE SECRETARY OF STATE MIGHT ALLOW SUCH EXPENSES WITHIN HIS ADMINISTRATIVE DISCRETION. THE DECISION APPARENTLY ACCEPTS THE CONGRESSIONAL ACTION OF ALLOWING OFFICERS OF THE UNITED STATES COURT FOR CHINA THE SAME RIGHT TO TRAVEL EXPENSES FOR LEAVES OF ABSENCE AS OTHER FOREIGN OFFICERS. THE COURT OFFICERS ACQUIRED THE RIGHT TO TRAVELING EXPENSES IN CONNECTION WITH LEAVE THROUGH CONGRESSIONAL ACTION OF INCLUDING THEM AMONG OTHERS FOR WHOM THE TRAVELING EXPENSE APPROPRIATION WAS MADE, THEY BEING SUBJECT TO THE SAME REGULATIONS AS REGARDS TRAVEL AS APPLIED GENERALLY TO THE DIPLOMATIC, CONSULAR, AND FOREIGN SERVICE OFFICERS, AND OTHERS NAMED.

THE SAME LANGUAGE APPEARS IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1934. THE FUNCTION OF SUPERVISION (37 OP. A.G. 321) OF THE COURT WAS TRANSFERRED TO THE DEPARTMENT OF JUSTICE BY EXECUTIVE ORDER 6166, EFFECTIVE AS OF AUGUST 10, 1933. THIS DEPARTMENT TOOK OVER THE MATTER OF HANDLING FISCAL AFFAIRS DURING THE FISCAL YEAR 1934, ON THE BASIS OF APPROPRIATIONS MADE TO THE DEPARTMENT OF STATE. NONE OF THE COURT PERSONNEL WERE DEPRIVED OF THEIR RIGHTS, PRIVILEGES, OR PERQUISITES AS A CONSEQUENCE OF THE EXECUTIVE ORDER. THE OPINION OF THE ATTORNEY GENERAL CITED DEALS WITH THIS PRECISE QUESTION AS REGARDS THE DISTRICT COURT FOR THE PANAMA CANAL ZONE, AND THE RESULTANT EXECUTIVE ORDER NUMBER 6390 WAS ISSUED TO CLARIFY THE POINT AND TO FIX RESPONSIBILITY FOR EXPENSES BETWEEN THE WAR DEPARTMENT AND THE DEPARTMENT OF JUSTICE. THERE WERE NO DIFFERENCES AS BETWEEN THE DEPARTMENT OF STATE AND THE DEPARTMENT OF JUSTICE AND, HENCE, NO CLARIFYING ORDER WAS NECESSARY.

AS STATED ABOVE, THE DEPARTMENT OF JUSTICE PROCEEDED ON THE THEORY THAT SO FAR AS PERQUISITES, PRIVILEGES, AND ALLOWANCES WERE CONCERNED, THE OFFICERS AND EMPLOYEES CONTINUED TO WORK UNDER THE SAME CONDITIONS AS WHEN SUPERVISED BY THE DEPARTMENT OF STATE. THE DEPARTMENT ADOPTED THE LEAVE REGULATIONS, ANNUAL AND SICK, APPLIED BY THE DEPARTMENT OF STATE TO CONSULAR OFFICERS, WHICH AT THAT TIME WERE COVERED IN SECTION 467 OF THE CONSULAR REGULATIONS AND SECTION 22, PAGE 333, OF THE REGISTER OF THE DEPARTMENT OF STATE TO CONSULAR OFFICERS, WHICH AT THAT TIME WERE DISCOVERED IN SECTION 467 OF THE CONSULAR REGULATIONS AND SECTION 22, PAGE 333, OF THE REGISTER OF THE DEPARTMENT OF STATE. MATTERS OF LEAVE HAVE SINCE BEEN HANDLED ON THAT BASIS. ON JULY 1, 1934, PURSUANT TO THE AUTHORITY IN THE APPROPRIATION ACT, TRAVEL REGULATIONS WERE PROMULGATED WITH REGARD TO TRANSPORTATION OF PERSONS AND EFFECTS. LEAVE, AND TRAVEL EXPENSES IN CONNECTION THEREWITH WERE NOT INCLUDED IN THE REGULATIONS OF JULY 1, 1934, AS NO SUCH PROBLEM HAD THEN APPEARED--- THE FACT THIS IS THE FIRST INSTANCE IN WHICH TRAVEL LEAVE HAS BEEN INVOLVED. THERE HAS BEEN NO OCCASION FOR AMENDMENTS TO THE 1934 REGULATIONS.

COPIES OF THE REGULATIONS OF JULY 1, 1934, WERE FURNISHED THE GENERAL ACCOUNTING OFFICE AT THE TIME OF ISSUANCE. THE EDITION WAS LIMITED AND, IN CONSEQUENCE, NO COPY IS TRANSMITTED. PARAGRAPH 23 IS QUOTED FOR CONVENIENCE OF REFERENCE AND READS AS FOLLOWS:

"SHOULD THERE OCCUR THROUGH A COMBINATION OF SPECIAL CIRCUMSTANCES UNFORESEEN AND THEREFORE UNPROVIDED FOR IN THE PLAIN TERMS OF THESE REGULATIONS, A CASE CONCERNING WHICH QUESTION ARISES OF WHETHER CREDIT FOR EXPENDITURES MAY BE ALLOWED, THE CASE MAY BE REVIEWED BY THE ATTORNEY GENERAL, AND IF HE DEEM THE CIRCUMSTANCES SO WARRANT, HE MAY GIVE HIS ADMINISTRATIVE APPROVAL AND CREDIT WILL BE ALLOWED REGARDLESS OF THE OTHER PROVISIONS OF THIS SUPPLEMENT: PROVIDED, THAT CREDIT IS NOT PROHIBITED UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.'

IT WOULD SEEM THAT THE ATTORNEY GENERAL'S ORDER OF MAY 2, 1940, DIRECTING THAT THE NECESSARY ACTION BE TAKEN TOWARDS INSTRUCTING THE DISTRICT ATTORNEY AND HIS FAMILY TO PROCEED TO THE UNITED STATES, HAVING BEEN AUTHORIZED TO TAKE LEAVE OF ABSENCE, SHOULD BE CONSIDERED AS ONE OF THE SPECIAL CIRCUMSTANCES NOT PROVIDED FOR IN THE TRAVEL REGULATIONS OF 1934. IN ANY EVENT, THE ATTORNEY GENERAL HAS THE STATUTORY AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING TRAVEL OF THE OFFICIALS STILL UNDER HIS DIRECTION. THE LEGISLATION IS SUFFICIENTLY BROAD TO PERMIT ALLOWANCE OF TRAVEL EXPENSES IN CONNECTION WITH LEAVE. IF NECESSARY, AN AMENDMENT COVERING THE PRECISE POINT COULD BE ISSUED AT THIS DATE TO APPLY RETROACTIVELY TO THE QUESTIONED TRAVEL. THIS WOULD SEEM TO BE A USELESS FORMALITY IN VIEW OF THE ACTUAL FACTS.

THE DEPARTMENT CONSIDERS THAT THIS QUESTION CAN BE DETERMINED IN FAVOR OF THE EXPENDITURE ON TWO GROUNDS; NAMELY, THE FACT THAT CONGRESS FOR YEARS INCLUDED THE COURT OFFICERS WITH OTHERS FOR WHOM LEAVE TRAVEL WAS ALLOWED, AND THE DEPARTMENT OF JUSTICE HAVING TAKEN OVER THE FUNCTION OF SUPERVISION AS PROVIDED BY EXECUTIVE ORDER NUMBER 6166 OF JUNE 10, 1933, THE PERSONNEL RETAINED THEIR PREVIOUSLY ESTABLISHED RIGHTS, PERQUISITES, AND ALLOWANCES; SECOND, THE APPROPRIATION ACT FOR THE COURT OF CHINA DURING THE FISCAL YEAR 1935, AND SUBSEQUENT THERETO, PROVIDED FOR PAYMENT OF TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES OF THE COURT AND, UNDER SUCH REGULATIONS AS THE ATTORNEY GENERAL MIGHT PRESCRIBE, OF THEIR FAMILIES AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS. THESE REGULATIONS WERE PRESCRIBED AND, IN ACCORDANCE WITH PARAGRAPH 23, THEREOF, THE ATTORNEY GENERAL AUTHORIZED LEAVE OF ABSENCE FOR MR. SHIELDS AND HIS FAMILY AND DIRECTED THAT ARRANGEMENTS BE MADE FOR THE SAME. PURSUANT TO THESE INSTRUCTIONS TRANSPORTATION REQUESTS WERE ISSUED AND THE OTHER EXPENSES WERE INCURRED.

YOUR CAREFUL CONSIDERATION OF THIS MATTER IS RESPECTFULLY REQUESTED.

THE RECORD SHOWS THAT THE VOUCHER IN QUESTION WAS TWICE SUBMITTED TO THE AUDIT DIVISION OF THIS OFFICE FOR AUDIT IN ADVANCE OF PAYMENT. WHEN FIRST SUBMITTED, CERTIFICATION OF THE VOUCHER WAS REFUSED IN PREAUDIT DIFFERENCE STATEMENT DATED SEPTEMBER 27, 1940, FOR REASONS AS FOLLOWS:

THERE APPEARS TO BE NO REGULATION OR AUTHORITY OF LAW AUTHORIZING EXPENSES OF RETURN TO THE UNITED STATES FOR LEAVE OF ABSENCE OF EMPLOYEES OF THE UNITED STATES COURT FOR CHINA AND THEIR DEPENDENTS. SEE 9 COMP. GEN. 475.

BY LETTER DATED OCTOBER 1, 1940, THE DEPARTMENT OF JUSTICE RESUBMITTED THE VOUCHER FOR FURTHER PREAUDIT CONSIDERATION, THE LETTER READING IN PERTINENT PART AS FOLLOWS:

YOUR ATTENTION IS RESPECTFULLY INVITED TO SECTION 22 OF THE ACT APPROVED FEBRUARY 23, 1931 (46 STAT. 1210), WHICH READS IN PART AS FOLLOWS:

"THAT THE SECRETARY OF STATE IS AUTHORIZED, WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST, TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABROAD: PROVIDED, THAT THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF SUCH OFFICERS AND THEIR IMMEDIATE FAMILIES, IN TRAVELING FROM THEIR POSTS TO THEIR HOMES IN THE UNITED STATES AND RETURN, SHALL BE PAID UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS GOING TO AND RETURNING HOME FROM THEIR POSTS UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE.'

ATTENTION IS ALSO RESPECTFULLY INVITED TO SECTION 6 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933, WHICH TRANSFERRED THE UNITED STATES COURT FOR CHINA FROM THE JURISDICTION OF THE SECRETARY OF STATE TO THAT OF THE ATTORNEY GENERAL.

IN VIEW OF THE SPECIFIC STATUTORY AUTHORITY, SUPRA, IT IS THE VIEW OF THIS OFFICE THAT THE EXPENSES OF THE UNITED STATES ATTORNEY AND HIS FAMILY IN PROCEEDING FROM SHANGHAI TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE OF ABSENCE ARE PROPER AND THAT MR. SHIELDS SHOULD BE REIMBURSED FOR THE VALUE OF TRANSPORTATION, TOGETHER WITH THE PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCES PROVIDED FOR IN THE DEPARTMENT OF JUSTICE " REGULATIONS GOVERNING TRAVEL OF OFFICERS AND EMPLOYEES OF THE UNITED STATES COURT FOR CHINA," DATED JULY 1, 1934.

CERTIFICATION WAS AGAIN REFUSED IN PREAUDIT DIFFERENCE STATEMENT DATED NOVEMBER 1, 1940, FOR REASONS AS FOLLOWS:

SECTION 22 OF THE FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, IS SUBSTANTIALLY A REENACTMENT OF SECTION 15 OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, WHICH WAS HELD IN 9 COMP. GEN. 475, TO HAVE NO REFERENCE TO THE COURT FOR CHINA, AND AS THERE WAS NO CURRENT APPROPRIATION AT THE TIME THE TRAVEL WAS PERFORMED SPECIFICALLY PROVIDING FOR TRAVEL PURSUANT TO LEAVE OF ABSENCE BY OFFICERS OF THE COURT FOR CHINA AS INVOLVED IN 9 COMP. GEN. 475, IT FOLLOWS THAT SUCH TRAVEL IS NOT NOW AUTHORIZED AT THE EXPENSE OF THE UNITED STATES.

THE CITED DECISION OF THIS OFFICE, 9 COMP. GEN. 475, HELD AS FOLLOWS:

SECTION 15 OF THE FOREIGN SERVICE ACT QUOTED IN YOUR LETTER HAS, OF COURSE, NO APPLICATION TO OFFICERS OF THE COURT FOR CHINA, AND I FIND NO REFERENCE IN THE ACT OF JUNE 30, 1906, 34 STAT. 814, ESTABLISHING THE COURT FOR CHINA, TO ANY PROVISIONS FOR LEAVES OF ABSENCE. IN OTHER WORDS, THERE APPEARS TO BE NO LAW GIVING TO OFFICERS OF THE COURT FOR CHINA A LEGAL RIGHT TO REIMBURSEMENT OF TRAVELING EXPENSES INCIDENT TO LEAVES OF ABSENCE. THE APPROPRIATION CITED, HOWEVER, HAS EXPRESSLY PROVIDED FOR "TRAVELING EXPENSES OF * * * OFFICERS OF THE UNITED STATES COURT FOR CHINA," AND SPECIFICALLY PROVIDES THAT NOT TO EXCEED $45,000 THEREOF MAY BE USED FOR EXPENSES "INCURRED IN CONNECTION WITH LEAVES OF ABSENCE" THERE APPEARING NOTHING THEREIN TO INDICATE ANY INTENT THAT A DISTINCTION BE MADE, INSOFAR AS EXPENSES INCURRED IN CONNECTION WITH LEAVES OF ABSENCE ARE CONCERNED, BETWEEN OFFICERS OF THE COURT FOR CHINA AND THE OTHER OFFICERS THEREIN MENTIONED. ACCORDINGLY, IT WOULD BE WITHIN YOUR ADMINISTRATIVE DISCRETION TO ORDER THE OFFICERS OF THAT COURT TO THE UNITED STATES ON LEAVE OF ABSENCE AND TO PROVIDE FOR THE PAYMENT OF THEIR TRANSPORTATION COSTS THE SAME AS IN THE CASE OF THE OTHER OFFICERS MENTIONED IN THE APPROPRIATION.

AS STATED IN THE PREAUDIT DIFFERENCE STATEMENT OF NOVEMBER 1, 1940, SUPRA, SECTION 22 OF THE FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, IS SUBSTANTIALLY A REENACTMENT OF SECTION 15 OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, WHICH WAS CONSIDERED IN THE DECISION, SUPRA. IT WILL BE NOTED THAT WHILE THAT DECISION HELD IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO PROVIDE FOR THE PAYMENT OF TRAVEL EXPENSES INCURRED BY AN EMPLOYEE OF THE COURT FOR CHINA IN CONNECTION WITH THE TAKING OF STATUTORY LEAVE SUCH HOLDING WAS NOT PREDICATED UPON THE PROVISIONS OF SECTION 15 OF THE 1924 ACT (NOW SEC. 22 OF THE 1931 ACT) BUT SOLELY UPON THE PROVISIONS OF THE APPROPRIATION ACT THEREIN CONSIDERED WHICH EXPRESSLY PROVIDED FOR "TRAVELING EXPENSES OF * * * OFFICERS OF THE UNITED STATES COURT FOR CHINA" AND, ALSO, EXPRESSLY SET APART $45,000 TO BE USED FOR EXPENSES "INCURRED IN CONNECTION WITH LEAVES OF ABSENCE.' SINCE THE AUTHORITY FOR THE PAYMENT OF TRAVEL EXPENSES TO EMPLOYEES OF THE COURT FOR CHINA INCURRED IN CONNECTION WITH LEAVES OF ABSENCE WAS NOT DERIVED FROM THE FOREIGN SERVICE ACT OR THE ACT ESTABLISHING THE COURT, BUT WAS DERIVED FROM ANNUAL APPROPRIATION ACTS, THERE IS NOT INVOLVED ANY QUESTION OF DEPRIVATION OF THEIR RIGHTS, PRIVILEGES, OR PERQUISITES AS OF CONSEQUENCE OF SECTION 6 OF EXECUTIVE ORDER NO. 6166 WHICH TRANSFERRED THE FUNCTIONS AND SUPERVISION OF THE COURT TO THE DEPARTMENT OF JUSTICE. OF COURSE, THE RIGHTS OF SUCH EMPLOYEES TO THE TRAVEL EXPENSES IN QUESTION DERIVED FROM THE APPROPRIATION ACT WAS NOT AFFECTED DURING THE LIFE OF THE APPROPRIATION IN FORCE AT THE TIME THE TRANSFER OF THE EMPLOYEES FROM THE DEPARTMENT OF STATE TO THE DEPARTMENT OF JUSTICE WAS EFFECTED BY THE EXECUTIVE ORDER--- IT HAVING BEEN PROVIDED BY SECTION 20 OF THE CITED EXECUTIVE ORDER, IN PERTINENT PART AS FOLLOWS:

SUCH PORTIONS OF THE UNEXPENDED BALANCES OF APPROPRIATIONS FOR ANY * * * AGENCY OR FUNCTION DISPOSED OF (SEE DEFINITION UNDER SECTION 21) SHALL BE TRANSFERRED TO THE SUCCESSOR AGENCY AS THE DIRECTOR OF THE BUDGET SHALL DEEM NECESSARY.

THE ANNUAL APPROPRIATIONS GENERALLY DO NOT CONSTITUTE PERMANENT LEGISLATION AND ANY SPECIFIC AUTHORITY CONTAINED IN SUCH APPROPRIATIONS -- UNLESS IN TERMS MAKING IT PERMANENT--- IS APPLICABLE ONLY TO THE FISCAL YEAR COVERED BY THE APPROPRIATION AND ANY REGULATIONS CARRYING OUT SUCH SPECIFIC AUTHORITY LIKEWISE ARE EFFECTIVE ONLY SO LONG AS SUCH SPECIFIC AUTHORITY IS REPEATED IN THE ANNUAL APPROPRIATIONS APPLICABLE TO THE SERVICES INVOLVED. 5 COMP. GEN. 810; 10 ID. 120. TRAVELING EXPENSES IN CONNECTION WITH LEAVES OF ABSENCE ARE PERSONAL EXPENSES AND, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, MAY NOT BE PAID FROM APPROPRIATED FUNDS. COMPARE 1 COMP. GEN. 153. REFERRING TO PARAGRAPH 7 OF YOUR LETTER, THE AUTHORITY TO PRESCRIBE REGULATIONS FOR TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES OF THE COURT FOR CHINA DOES NOT AUTHORIZE REGULATIONS GOING BEYOND THE SCOPE OF THE APPROPRIATION. HENCE, THE ISSUANCE OF ANY AMENDMENT TO THE REGULATIONS "TO APPLY RETROACTIVELY TO THE QUESTIONED TRAVEL" WOULD BE A NULLITY, AS WOULD ANY OTHER CHANGE IN THE REGULATIONS TO COVER MATTERS BEYOND THE SCOPE OF THE APPROPRIATION. AFTER TRANSFER OF THE COURT FOR CHINA TO THE DEPARTMENT OF JUSTICE, THERE IS FOR NOTING THAT THE APPROPRIATION FOR TRAVELING EXPENSES FOR OFFICERS AND EMPLOYEES OF SAID COURT, BEGINNING WITH THE FISCAL YEAR 1935, 48 STAT. 541, OMITTED THE LANGUAGE "IN CONNECTION WITH LEAVES OF ABSENCE," FOUND IN THE APPROPRIATION FOR TRAVEL OF FOREIGN SERVICE OFFICERS. THAT FACT IS PARTICULARLY SIGNIFICANT WHEN VIEWED IN THE LIGHT OF THE FACT THAT SUCH LANGUAGE CONTINUED TO BE USED IN SUBSEQUENT ANNUAL APPROPRIATION ACTS COVERING TRANSPORTATION OF FOREIGN SERVICE OFFICERS. COMPARE THE TWO APPROPRIATIONS FOR 1941. THE ONE FOR TRANSPORTATION OF FOREIGN SERVICE OFFICERS, ACT OF MAY 14, 1940, 54 STAT. 183, IS IN THE FOLLOWING TERMS:

TO PAY THE TRAVELING EXPENSES, INCLUDING TRAVEL BY AIRPLANE WHEN SPECIFICALLY AUTHORIZED BY THE SECRETARY OF STATE, OF DIPLOMATIC,CONSULAR, AND FOREIGN SERVICE OFFICERS, AND OTHER EMPLOYEES OF THE FOREIGN SERVICE, INCLUDING FOREIGN SERVICE INSPECTORS, AND UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF THEIR FAMILIES AND EXPENSES OF TRANSPORTATION OF EFFECTS, IN GOING TO AND RETURNING FROM THEIR POSTS, INCLUDING NOT TO EXCEED $170,000 FOR EXPENSES IN CONNECTION WITH LEAVES OF ABSENCE; * * * AND THE ONE PROVIDING FOR THE COURT FOR CHINA UNDER TITLE III OF THE SAME ACT, 54 STAT. 206, READS:

THE FOREGOING APPROPRIATIONS FOR " TRAVELING EXPENSES, DEPARTMENT OF JUSTICE," AND " SALARIES AND EXPENSES OF MARSHALS, AND SO FORTH, DEPARTMENT OF JUSTICE," SHALL BE AVAILABLE, RESPECTIVELY, FOR TRAVELING EXPENSES OF THE DISTRICT ATTORNEY AND OF THE MARSHAL OF THE UNITED STATES COURT FOR CHINA AND OF EMPLOYEES OF THEIR OFFICES AND, UNDER SUCH REGULATIONS AS THE ATTORNEY GENERAL MAY PRESCRIBE, OF THEIR FAMILIES AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS; * * *

SEE, ALSO, THE APPROPRIATION MADE FOR THE COURT FOR CHINA UNDER TITLE IV, THE JUDICIARY, IN THE SAME ACT, 54 STAT. 209, AS FOLLOWS:

SALARIES AND EXPENSES: FOR SALARIES OF THE JUDGE AND OTHER OFFICERS AND EMPLOYEES OF THE UNITED STATES COURT FOR CHINA; ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, AS AUTHORIZED BY THE ACT APPROVED JUNE 26, 1930 (5 U.S.C. 118A), NOT TO EXCEED $1,700 FOR ANY ONE PERSON AND IN NO EVENT TO EXCEED THE AMOUNT ACTUALLY AND REASONABLY EXPENDED BY THE RECIPIENT OF SUCH ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT; COURT EXPENSES, INCLUDING REFERENCE AND LAW BOOKS, PRINTING AND BINDING, ICE AND DRINKING WATER FOR OFFICE PURPOSES, TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES OF THE COURT, AND, UNDER SUCH REGULATIONS AS THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS MAY PRESCRIBE, OF THEIR FAMILIES AND EFFECTS, IN GOING TO AND RETURNING FROM THEIR POSTS; PREPARATION AND TRANSPORTATION OF REMAINS OF OFFICERS AND EMPLOYEES WHO MAY DIE ABROAD OR IN TRANSIT WHILE IN THE DISCHARGE OF THEIR OFFICIAL DUTIES TO THEIR FORMER HOMES IN THE UNITED STATES, OR TO A PLACE NOT MORE DISTANT FOR INTERMENT AND FOR THE ORDINARY EXPENSES OF SUCH INTERMENT; INCLUDING TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE COURT AND OF THEIR DEPENDENTS, WHILE EN ROUTE TO OR FROM PLACES OF TEMPORARY REFUGE IN TIME OF WAR, POLITICAL DISTURBANCE, EARTHQUAKE, EPIDEMIC, OR SIMILAR EMERGENCY AND FOR PER DIEM IN LIEU OF SUBSISTENCE OF SUCH OFFICERS, EMPLOYEES, AND THEIR DEPENDENTS, WHILE IN A REFUGEE STATUS, $28,000.

THE RESPECTIVE APPROPRIATIONS FOR 1940, ACT OF JUNE 29, 1939, 53 STAT. 887, AND 904, WERE TO THE SAME EFFECT. THERE APPEARS NOTHING IN THE APPROPRIATIONS FOR "TRAVELING EXPENSES, DEPARTMENT OF JUSTICE" OR "SALARIES AND EXPENSES OF MARSHALS AND SO FORTH, DEPARTMENT OF JUSTICE AUTHORIZING PAYMENT OF TRAVEL EXPENSES INCURRED IN CONNECTION WITH THE TAKING OF LEAVES OF ABSENCE.

AS, IN RESPECT OF THE PERIOD HERE INVOLVED, NAMELY, FISCAL YEAR 1940 41, THERE WAS NO STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVELING EXPENSES INCURRED BY OFFICERS OR EMPLOYEES OF THE COURT FOR CHINA IN CONNECTION WITH THE TAKING OF LEAVES OF ABSENCE, THE AUDIT ACTION IN REFUSING TO CERTIFY FOR PAYMENT THE SUBMITTED VOUCHER FOR SUCH EXPENSES WAS CORRECT. ANY PAYMENT WHICH MAY HAVE BEEN MADE TO THE CARRIERS IN THIS CASE IN CONNECTION WITH THE TRANSPORTATION OF MR. SHIELDS AND HIS FAMILY SHOULD BE COLLECTED FROM HIM AND DEPOSITED TO THE CREDIT OF THE APPROPRIATION CHARGED THEREWITH.