« ForrigeFortsett »
Navy from an enrollment in the Naval Reserve Force entered into subsequent to the date of the act, July 11, 1919, the transfers not being authorized by the act.
The decision was one rendered by the Comptroller of the Treasury in passing upon an original construction of the act of July 11, 1919, submitted to him by the Auditor for the Navy Department under the fourth paragraph of section 8 of the act of July 31, 1894, 28 Stat., 208, for the use of the auditor in passing upon the right of your disbursing officers to credit for payments already made to such transferred men of such additional pay the accounts of which disbursing officers were before him for settlement.
On June 23, 1921, the comptroller at your request reconsidered the decision, adhering to its legal correctness, but advising that so far as the base pay and allowances of men thus attempted to be transferred were concerned their status would not be questioned by the accounting office, as in all such cases it was the intent both of the men and the recruiting officers to enter into a contract of enlistment for service in the Regular Navy, and that as to improper payments that might have been made under the Navy Department's construction of the act if the overpayments could not be checked against the men he could suggest no relief other than by additional legislation. 27 Comp. Dec., 1073.
It appears that no question as to the rights of such transferred men to pay, rights, privileges, and allowances under the act of July 11, 1919, was presented to the comptroller by your department, either directly by the Secretary or by its disbursing officers, for over the year and a half that intervened between the passage of the act and the decision now in question of March 29, 1921, rendered in passing upon a construction of the statute submitted by the Auditor for the Navy Department that in the interim between July 11, 1919 (date of the act), and January 7, 1921, such transfers were made by your department to the approximate number of 3,800 and that no such transfers have been made since the latter date.
As to the situation that has arisen as a result of the transfer of these men by your department and the decisions of the comptroller of March 29 and June 23, 1921, you state:
During the drive for men for the naval service, started during the summer of 1920, inducements were offered to these former enlisted men who had enrolled in the Naval Reserve Force to transfer to the Regular Navy, under the provision of the act of 11 July, 1919. Many such men took advantage of this offer and transferred to the Regular Navy to serve the unexpired portion of their enrollment in the Naval Reserve Force and received a bonus in the form of four months' pay at time of such transfer. You now decide that such transfers were illegal and require the men to refund the amount received by them in compliance with the offer of the department. The result of this would be that the department would direct these men to reimburse the Government in an amount which it specifically held out to them as an inducement to take the very action requested by the department and upon which reliance was placed and which now becomes the basis for their checkage. This works such an in
justice on these men that the department again requests your reconsideration of this question.
The question resolves itself into whether these men should be compelled to refund the four months' pay received by them in good faith and does not involve a question of a payment to be made by any supply officer in the naval service. The fact is that the men have been transferred from the reserve force to the Regular Navy and have not enlisted in the Regular Navy. If their transfer was illegal, as contended for in your decision, it is evident that they can not be required to serve for the unexpired term of their enrollment in the Naval Reserve Force in these cases. It is not a question of an agreement between the man and a recruiting officer, but is the result of a construction of the act of 11 July, 1919, made by this department in good faith and accepted by such enlisted men as described above in the same good faith.
The situation I am confronted with, therefore, is the practical one of either holding that these transferred men to the number of some 3,800 are not now in the Navy for any purposes of payments to them, and have not been since the dates of their transfers, or of treating them as in the Navy for such purposes until the dates of their expiring enrollments, unless sooner discharged.
It does not appear essential in this case that the men involved, having acted in good faith, should be made to suffer because of the administrative error, and I conclude that justice will now best be subserved by the treatment of them, for payment purposes, as in the same status as that of other men regularly transferred under the statute. You are advised accordingly.
DETAIL OF EMPLOYEES. There is no authority of law to detail by Executive order employees of the
Bureau of Customs Statistics, New York, to the Department of Commerce and continue to pay their salaries from Treasury Department appropria.
tions. Comptroller General McCarl to the Secretary of Commerce, November 4, 1921.
I have your letter of October 22, 1921, as follows:
In further reference to our correspondence relating to the transfer to the Department of Commerce of certain employees in the customhouse at New York who are engaged in the compilation of customs statistics, I should like to inform you that, from a recent conversation with the Director of the Bureau of the Budget and the Secretary of the Treasury, I have gathered that there would be no objection from these two officials to the transfer of such employees by Executive order, and the continued payment of their salaries by the Treasury Department until the adoption of a special appropriation bill by Congress. It is also my understanding that such action would meet with your approval.
Before submitting a recommendation for the issuance of such an Executive order I would appreciate obtaining a formal opinion as to your attitude in the matter.
I understand the basis of the proposed Executive order to be section 12 of the act of February 14, 1903, 32 Stat., 830, which created and established the Department of Commerce and Labor and authorized the President to transfer to that department at any time the whole or any part of any office, bureau, division, or other branch of the public service engaged in statistical work. The act specifically transferred certain offices, bureaus, etc., to the newly created depart
ment, and section 12 was enacted apparently for the purpose of enabling the President to perfect the organization of the department by transferring to it any scientific or statistical activities of other branches of the service which might properly belong in the new department, and might have been omitted from the transfer provisions of the act itself. It is clear, I think, that the section was temporary legislation enacted solely for the purpose of perfecting the newly created department, and was not intended to carry authority beyond the final establishment and organization of the department. This is evident from other provisions of the act.
Section 3 of the act provides that all unexpended appropriations available at the time the act took effect in relation to the various bureaus, etc., transferred by the act or which might thereafter be transferred in accordance with the provisions of the act, should become available for expenditure in and by the Department of Commerce. Section 13 of the act provides that it shall take effect from and after its passage, except that the transfer of bureaus, etc., specifically provided for in the act should not take effect until July 1, 1903. Later the Secretary of the Treasury was authorized by the act of March 3, 1903, 32 Stat., 1082, to effect the specifically directed transfers from his department as soon as practicable before July 1, 1903. The latter act also made all appropriations of the several bureaus, etc., transferred or to be transferred under the act, which had already been made for the fiscal year 1904, available for expenditure in and by the Department of Commerce and Labor.
Thus for the remainder of the fiscal year 1903 and for the entire fiscal year 1904 the appropriations of the several scientific and statistical branches of the service were left open to expenditure in and by the Department of Commerce and Labor upon transfer of the corresponding bureaus, etc., or parts thereof to that department either by statute or by Executive order. The act of March 3, 1903, provides that the Secretary of Commerce and Labor shall submit to Congress estimates for the fiscal year 1905, and annually thereafter. The provisional plan of organization provided for by the act of February 14 was thus definitely and finally brought to an end with the ending of the fiscal year 1904.
The proposed Executive order, if issued, would be in effect a detail of employees from one department to another. In the absence of an express provision of law, employees of an executive department of the Government may not lawfully be detailed to service outside of the department in which they are employed and their salaries continued to be paid by the department of their employment. 24 Comp. Dec., 10. So, if employees are transferred from one department to another their salaries become a charge against the appropriation of the department to which they are transferred.
Any arrangement for the transfer of these employees from the customs service to your department and continued payment of their sal. aries by the Treasury Department would be without authority of law. I regret that the plan submitted by you can not be approved by this office.
PURCHASE OF FIREARMS, Cost of firearms and ammunition for personal protection of customs officers and
employees on official duty may not be charged against the Government, but must be borne by the individual officers and employees, any arms pur
chased to be their personal property. Decision by Comptroller General McCarl, November 5, 1921.
Joseph H. Lyons, collector of customs at Mobile, Ala., applied October 22, 1921, for a review of the action of the Treasury Department Division of the General Accounting Office, in disallowing by settlement No. 10094, dated September 28, 1921, credit for items aggregating $109.50, representing payments made as reimbursement of amounts expended by certain officers or employees in the customs service for revolvers and holsters for their personal use while on duty.
The payments in question are as follows: Voucher No. 1, paid March 15, 1921, to A. M. Palmes--
$37. 50 Voucher No. 2. paid March 15. 1921. to John F. Burke
37. 50 Voucher No. 6, paid March 15, 1921, to Mrs. E. W. Raff.-
34. 50 It appears that the purchase for which each of these employees was reimbursed was made in August, 1920, although the reimbursement was not made until seven months thereafter.
Credit for the payments was disallowed upon the assumption that the purchases were made for the protection of public money or property, the disallowance being based upon the provisions of the act of March 3, 1879, 20 Stat., 412, and the decision of the Comptroller of the Treasury dated March 6, 1917, 23 Comp. Dec., 503.
It is now contended that these arms were not purchased or required for the protection of public money or property, the statement of the collector with reference to their purchase and use being as follows:
The revolvers used by the inspectors at this port are a part of their necessary equipment in the discharge of their official duties. The arming of inspectors at this port became necessary shortly after the prohibition act went into effect. The crews of a number of vessels, particularly those of Latin ex. traction, assumed almost a belligerent attitude when their quarters were searched, and particularly when contraband spirits were found. This office made a thorough investigation of conditions, and found that the revolvers were absolutely necessary for the inspectors to protect their lives. The revolvers, were not and are not used for the protection of public funds or property, but for the safety of the inspectors while on official duty.
The appropriation “ Collecting the revenue from customs, 1921," which is the appropriation sought to be charged in these cases, contains no specific provision for the purchase of firearms or for reim
bursing customs inspectors or other employees for amounts expended therefor; and in the absence of such a provision it can not be held that said appropriation is available for said purposes. There is no law or regulation requiring the use of firearms by inspectors of customs, and in so far as the interests of the Government are concerned there would seem to be no necessity that such officers be armed. If individual inspectors feel the need of equipping themselves with firearms as a protection against possible personal assaults or violence, and may legitimately carry firearms, any expense incident to the furnishing of such equipment must be borne by them and not by the Government and the arms purchased will be their private property.
Upon a review of the matter no differences are found and the settlement is sustained.
EMPLOYMENT OF ACCOUNTANTS. The prohibition in act of April 6, 1914, 38 Stat., 335, as to the use of appropria
tions for employment of accountants or other experts to inaugurate new or change old methods of business in Government offices unless provision be made in specific terms, is applicable to accountants employed to determine whether changes are necessary or desired, whether or not they actu
ally inaugurate or effect a change. Decision by Comptroller General McCarl, November 8, 1921.
Haskins & Sells applied October 21, 1921, for a review of the action of the War Department Division of the General Accounting Office in disallowing by settlement No. 730705, dated August 11, 1921, their claim for $3,500 on account of services rendered in connection with the preparation of a report dated April 16, 1921, relating to the accounting system of the Rock Island Arsenal.
The claim was disallowed because of the provisions of section 5 of the act of April 6, 1914, 38 Stat., 335, which read:
That no part of any money appropriated in this or any other act shall be used for compensation or payment of expenses of accountants or other experts in inaugurating new or changing old methods of transacting the business of the United States or the District of Columbia unless authority for employment of such services or payment of such expenses is stated in specific terms in the act making provision therefor and the rate of compensation for such services or expenses is specifically fixed therein, or be used for compensation of or expenses for persons, aiding or assisting such accountants or other experts, unless the rate of compensation of or expenses for such assistants is fixed by officers or employees of the United States or District of Columbia having authority to do so, and such rates of compensation or expenses so fixed shall be paid only to the person so employed.
Claimants contend that the services rendered by them were not such as come within the prohibition of the statute just quoted, but their contention is not supported by the record.
It appears that on May 13, 1920, the Secretary of War addressed the office of the chief of manufacture directing “a thorough survey of the cost accounting and determination of overhead at one of the arsenals with a view to ascertaining whether or not changes are necessary to insure accuracy in estimating and final determination