B-70313, NOVEMBER 17, 1947, 27 COMP. GEN. 280

B-70313, NOVEMBER 17, 1947, 27 COMP. GEN. 280

TRANSPORTATION - HOUSEHOLD EFFECTS - EXTENT OF REIMBURSEMENT ON COMMUTED BASIS THE SPECIFIC PROVISION IN SECTION 1 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AUTHORIZING REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS ON PERMANENT CHANGE OF STATION UPON A COMMUTED BASIS IN LIEU OF PAYMENT OF ACTUAL EXPENSE, WHILE IN IRRECONCILABLE CONFLICT WITH THE ACT OF MARCH 3, 1875, PROVIDING, GENERALLY, FOR THE ALLOWANCE OF ACTUAL EXPENSES, ONLY, IN CONNECTION WITH SUCH SHIPMENTS, IS TO BE REGARDED AS CONTROLLING, SO THAT AN EMPLOYEE IS ENTITLED TO BE REIMBURSED FOR THE COSTS OF TRANSPORTATION ON A COMMUTED BASIS IN ACCORDANCE WITH THE TABLES PRESCRIBED BY EXECUTIVE ORDER NO. 9805 ISSUED PURSUANT TO SAID STATUTE, EVEN THOUGH REIMBURSEMENT BE IN EXCESS OF THE ACTUAL EXPENSES INCURRED.

COMPTROLLER GENERAL WARREN TO C. P. GLADFELTER, RAILROAD RETIREMENT BOARD, NOVEMBER 17, 1947:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1947, AS FOLLOWS:

THERE IS SUBMITTED HEREWITH FOR ADVANCE DECISION VOUCHER OF RAY R. MCCURRY COVERING CLAIM FOR REIMBURSEMENT OF THE COSTS OF TRANSPORTATION OF HOUSEHOLD GOODS FROM GARDEN CITY, LONG ISLAND TO CHICAGO, ILLINOIS, IN THE AMOUNT OF $356.26. THERE IS ALSO ENCLOSED COPY OF TRAVEL ORDER NO. 927 ISSUED TO MR. MCCURRY APRIL 14, 1947.

UNDER SCHEDULE A OF THE REGULATIONS PRESCRIBED IN EXECUTIVE ORDER 9805, DATED NOVEMBER 25, 1946, THE AMOUNT PAYABLE FOR 4550 POUNDS--- 852 MILES AT $7.83 PER HUNDRED WEIGHT IS $356.26.

MR. MCCURRY CONTENDS THAT HE SHOULD BE ALLOWED THE MAXIMUM UNDER SCHEDULE A, $356.26, IN VIEW OF SECTION 12 OF THE ABOVE MENTIONED ORDER WHICH PROVIDES THAT IN LIEU OF THE PAYMENT OF ACTUAL EXPENSES INCURRED IN CONNECTION WITH THE TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD EFFECTS WITHIN THE CONTINENTAL UNITED STATES, REIMBURSEMENT SHALL BE MADE TO THE EMPLOYEE ON A COMMUTATED BASIS AT THE RATES FIXED BY ZONES IN SCHEDULE A OF THE REGULATIONS. HOWEVER, THE TOTAL ACTUAL COST OF THE MOVEMENT, $288.98 (TRANSPORTATION, FREIGHT UNLOADING, PLUS FEDERAL TAX, PACKING, UNPACKING, AND CARGO INSURANCE), AS SUBSTANTIATED BY THE BILL OF LADING, IS CONSIDERABLY LESS THAN THE AMOUNT ALLOWABLE UNDER SCHEDULE A.

THE ACT OF JUNE 16, 1874, 18 STAT. 72, PROVIDES

"THAT ONLY ACTUAL TRAVELING EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT OR APPOINTMENT UNDER THE UNITED STATES, AND ALL ALLOWANCES FOR MILEAGES AND TRANSPORTATION IN EXCESS OF THE AMOUNT ACTUALLY PAID ARE HEREBY DECLARED ILLEGAL; AND NO CREDIT SHALL BE ALLOWED TO ANY OF THE DISBURSING OFFICERS OF THE UNITED STATES FOR PAYMENTS OR ALLOWANCES IN VIOLATION OF THIS PROVISION.'

IN CONSIDERATION OF THIS ACT THE REGULATIONS ARE NOT CLEAR AS TO WHETHER WE CAN CERTIFY MORE THAN WAS ACTUALLY EXPENDED, THAT IS THE MAXIMUM ALLOWABLE UNDER SCHEDULE A, OR SHOULD WE CERTIFY ONLY THE ACTUAL EXPENDITURE WHICH WAS LESS THAN THE AMOUNT ALLOWABLE UNDER THE SAID SCHEDULE.

YOUR EARLY DECISION WILL BE GREATLY APPRECIATED.

BY THE ABOVE-REFERRED-TO TRAVEL ORDER, THE EMPLOYEE WAS DIRECTED TO PROCEED FROM NEW YORK, NEW YORK, TO CHICAGO, ILLINOIS, TO EFFECT A PERMANENT CHANGE OF DUTY STATION, AND THE MOVEMENT OF HIS HOUSEHOLD GOODS WAS AUTHORIZED; SHIPMENT OF SUCH EFFECTS WAS ACCOMPLISHED IN MAY, 1947.

IN THE ACT OF MARCH 3, 1875, 18 STAT. 452, THE STATUTORY PROVISION QUOTED BY YOU WAS REENACTED IN THE FOLLOWING LANGUAGE:

* * * THAT HEREAFTER ONLY ACTUAL TRAVELING EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT OR APPOINTMENT UNDER THE UNITED STATES, EXCEPT MARSHALS, DISTRICT ATTORNEYS, AND CLERKS OF THE COURTS OF THE UNITED STATES AND THEIR DEPUTIES; AND ALL ALLOWANCES FOR MILEAGE AND TRANSPORTATION IN EXCESS OF THE AMOUNT ACTUALLY PAID, EXCEPT AS ABOVE EXCEPTED, ARE HEREBY DECLARED ILLEGAL; AND NO CREDIT SHALL BE ALLOWED TO ANY OF THE DISBURSING OFFICERS OF THE UNITED STATES FOR PAYMENT OR ALLOWANCES IN VIOLATION OF THIS PROVISION.

AT THE PRESENT TIME, THAT PROVISION STILL SUBSISTS IN ITS REENACTED FORM EXCEPT TO THE EXTENT THAT IT HAS BEEN MODIFIED BY PARTICULAR CLASSES BEING WITHDRAWN FROM ITS COVERAGE BY SUBSEQUENT LEGISLATION AS, FOR INSTANCE, IN THE CASE OF PER DIEM IN LIEU OF SUBSISTENCE BY THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, 689, AND MILEAGE FOR USE OF PRIVATELY-OWNED AUTOMOBILE, BY THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103. SEE 5 COMP. GEN. 358; 20 ID. 512.

THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 806, 807, WHICH AUTHORIZES, AMONG OTHER THINGS, REIMBURSEMENT TO OFFICERS AND EMPLOYEES FOR SHIPMENT OF THEIR HOUSEHOLD EFFECTS ON PERMANENT CHANGE OF DUTY STATION UPON A COMMUTED BASIS IN LIEU OF PAYMENT OF ACTUAL EXPENSES--- AND PURSUANT TO WHICH EXECUTIVE ORDER NO. 9805 WAS ISSUED--- CONTAINS NO GENERAL REPEAL PROVISION, AND THE ACT OF 1875, SUPRA, IS NOT LISTED AMONG THE ACTS SPECIFICALLY REPEALED THEREIN. HOWEVER, SECTION 1 OF THE ACT OF AUGUST 2, 1946, CLEARLY WAS INTENDED TO SUPERSEDE EXISTING LEGISLATION--- EXCLUSIVE OF THE EXCEPTIONS MENTIONED IN THE SECOND PROVISO CLAUSE OF SECTION 1 (A) OF THAT ACT, 60 STAT. 806--- COVERING PAYMENT OF EXPENSES OF TRANSPORTATION OF HOUSEHOLD EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY TO THE EXTENT THAT SUCH LEGISLATION IS IN IRRECONCILABLE CONFLICT WITH THE PROVISIONS OF SECTION 1 THEREOF, COVERING SUCH SHIPMENTS. MOREOVER, IT IS A WELL-ESTABLISHED RULE THAT WHERE ONE STATUTE DEALS CLEARLY WITH A PART OF A GENERAL SUBJECT IN A DEFINITE MANNER AND IS REPUGNANT TO THE MORE GENERAL PROVISION OF THE SAME OR ANOTHER LAW COVERING THE SAME GENERAL SUBJECT, THE SPECIFIC STATUTORY PROVISION PREVAILS. 91 C.1CLS. 35 ( HASKINS AND SELLS V. UNITED STATES); 285 U.S. 204 ( GINSBERG AND SONS V. POPKIN); 155 F.2D 307 ( DETRICH V. HOWARD); 157 ID. 105 ( IRIARTE V. UNITED STATES). ALSO, SEE 26 COMP. GEN. 488; ID. 57. HENCE, THERE APPEARS REQUIRED THE CONCLUSION THAT THE COMMUTATION PROVISION OF PUBLIC LAW 600 RELATING TO THE SHIPMENT OF HOUSEHOLD EFFECTS OF EMPLOYEES IS TO BE GIVEN FULL FORCE AND EFFECT, AND REIMBURSEMENT IS TO BE ALLOWED IN ACCORDANCE WITH THE TABLES PRESCRIBED IN EXECUTIVE ORDER NO. 9805.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.