entitled in addition to the $240 a year authorized for captains in command of organizations who belong to organizations. In other words, the statute does not contemplate that he shall at the same time receive additional pay under it as an officer belonging to an organization and as not belonging to one.

It appears that Capt. West was a member of headquarters, First Coast Defense Command and coast defense quartermaster; that he was merely detailed to take command of the Ninth Company as distinguished from being permanently transferred to it, and that accordingly he did not during any portion of the period belong to the Ninth Company.

You are advised, therefore, that you are not authorized to pay the voucher.

PER DIEM IN LIEU OF SUBSISTENCE WHILE ON DUTY AT WASHINGTON.

An employee assigned to duty in the field, but who is detained in Washington, D. C., for the purpose of instruction in the duties of his new position, is not in a travel status during such period of detention and not entitled to a per diem in lieu of subsistence. (26 Comp. Dec. 451 overruled.) Decision by Comptroller General McCarl, February 13, 1922:

Charles E. Molster, disbursing officer, Department of Commerce, applied November 28, 1921, for revision of the action of the Auditor for the State and Other Departments in disallowing by miscellaneous settlement No. 10788, dated June 4, 1921, the sum of $36, per diem paid by him to Mr. Chauncey P. Carter on voucher No. 34340, dated June 19, 1919, for the period January 22, 1919, to January 30,

1919.

The facts submitted are stated as detailed in a letter to claimant from the Bureau of Foreign and Domestic Commerce, dated November 21, 1921, quoted as follows:

Mr. Carter entered the bureau's service in Washington on March 4, 1916, was advanced from the position of expert in the bureau to commercial agent in the New York district office of this bureau on September 19, 1916. On February 1, 1917, he was reappointed expert and returned to Washington for special service in the bureau. For some time prior to his appointment as commercial agent in charge of the bureau's Chicago district office, January 22, 1919, Mr. Carter acted in the capacity as assistant to the director of the bureau. On January 22, 1919, Mr. Carter was appointed commercial agent in charge of the Chicago office. His duties as assistant to the director, therefore, automatically ceased with the close of business on January 21, 1919. On January 22, 1919, Mr. Carter entered upon duty in his new capacity and was retained in the Washington office for the nine days in question, receiving special instructions as to the proper performance of his duties as commercial agent in charge of the Chicago office. Mr. Carter's official station automatically became Chicago, with his appointment as commercial agent in charge of that office, January 22, 1919, and there was a very material change in his duties on and after January 22, 1919, as compared with his duties as assistant to the director.

The act of April 6, 1914, 38 Stat., 318, provides as follows:

On and after July first, nineteen hundred and fourteen, unless otherwise expressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty outside of the District of Columbia and away from his designated post of duty, nor any sum for such expenses actually incurred in excess of $5 per day; nor shall any allowance or reimbursement for subsistence be paid to any officer or employee in any branch of the public service of the United States in the District of Columbia unless absent from his designated post of duty outside of the District of Columbia, and then only for the period of time actually engaged in the discharge of official duties.

This was followed by the act of August 1, 1914, 38 Stat., 680, which reads:

SEC. 13. That the heads of executive departments and other Government establishments are authorized to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence to persons engaged in field work or traveling on official business outside of the District of Columbia and away from their designated posts of duty when not otherwise fixed by law. For the fiscal year nineteen hundred and sixteen and annually thereafter estimates of appropria. tions from which per diem allowances are to be paid shall specifically state the rates of such allowances.

The term “designated post of duty" as used in the laws quoted means the place where the official duties of the officer or employee are required to be performed.

The granting of actual expenses of subsistence or a per diem in lieu thereof presupposes a travel status necessitated by official duties or the employee's absence from his designated post of duty under temporary detail in connection with the duties usually performed thereat.

Whether, in the absence of a law specifically so providing, a place can become an employee's designated post of duty prior to the time he actually enters upon duty at such place it is unnecessary to decide, but the law is well settled that the mere designation thereof is ineffectual, in so far as the right to subsistence is concerned, to fix an employee's post of duty, contrary to the fact that his duties are actually performed elsewhere. 18 Comp. Dec., 110; 23 Comp. Dec., 8; 25 Comp. Dec., 899; 1 Comp. Gen., 62. See also 12 Comp. Dec., 135. Mr. Carter performed no travel and the construction of the acts cited seems to me unwarranted that holds the right to subsistence can accrue to an employee by his mere delay in reporting for duty at a station, for whatsoever reason may be assigned, and any holding of the accounting officer to that effect will not hereafter be followed. Nor can I give assent to the correctness of the assertion that the detention of an employee for the purpose of instruction in the duties of a position to which he has been appointed or promoted is solely for the convenience of the Government.

In any event, no order was issued detailing Mr. Carter to temporary duty in Washington subsequent to January 22, 1919, and it must be assumed that his delay in reporting to his duty station in Chicago was

not absence from a designated post of duty within the contemplation of travel expense laws or regulations.

The payment in this case having been under authority of existing decisions of the Comptroller of the Treasury, is allowed.

The action of the auditor is reversed and a difference of $36 is certified for allowance in the disbursing officer's account.

TRANSPORTATION OF DEPENDENTS OF CONSULAR OFFICERS. Where the family of a consular officer returns to the United States for personal reasons the consular regulations do not authorize payment of their transportation expenses from the United States to a new duty station to which the consular officer had been transferred during absence of his family. Comptroller General McCarl to the Secretary of State, February 14, 1922:

I have your letter of February 2, 1922, received in this office February 10, 1922, requesting decision as to payment of transportation expenses of the family of a consul who has been transferred to Europe from his post in India. The material facts stated in your submission are as follows:

The consul had been stationed in India for a considerable period. His wife originally accompanied him to that post, but on account of conditions there, including illness of a young son brought on by climatic conditions, was unable to remain there and accordingly returned to the United States at her own expense to reside temporarily. She had not found it practicable up to the time of the consul's transfer to another post to return to his post in India.

Paragraph 48 of the travel regulations of diplomatic and consular officers provides that an officer who is given designation to a new post while in the United States or en route thereto or therefrom, on leave of absence, shall be entitled to reimbursement of transportation expenses under conditions and limitations set forth in the regulations, including expenses of his family or such portion as may be with him or in the United States, and transportation of his personal effects.

This regulation makes provision for those cases only where the consul himself is on leave of absence and away from his post of duty. It does not provide for payment by the Government of the expense of returning the family from the United States to the consul's post, old or new, they having left the consul on duty at the old post, no leave of absence having been granted to him, and he not having traveled with them or been followed by them either to or from the United States. The absence of the consul's family in the United States was for purely personal reasons and put no obligation on the United States. Their return to India would have been at

their own expense, and it does not appear that the transfer of the consul to Europe increased that expense.

The appropriation for transportation of consular officers in going to and returning from their posts, act of March 2, 1921, 41 Stat., 1208, provides for payment of such expenses of officers and their families "under such regulations as the Secretary of State may prescribe." The regulations which the Secretary has made can not be construed as covering the expenses now in question, nor would any regulation be authorized not in conformity with law. There is, therefore, no authority for the payment in question under this appropriation.

TUITION OF INDIAN CHILDREN ATTENDING MONTANA SCHOOLS.

In view of joint resolution of February 13, 1922, 42 Stat., 364, payment of tuition is authorized for Indian children enrolled and educated in Montana State public schools from funds appropriated for that purpose.

Comptroller General McCarl to the Secretary of the Interior, February 15, 1922:

I have your letter filed on November 10, 1921, requesting review of the action of the Interior Department Division, this office, in disallowing by settlement No. 67072, of October 27, 1921, claim of the directors of school district No. 9, Browning, Mont., in amount of $14,471.10, covering tuition of Indian pupils attending public school, district No. 9, during the fiscal year 1921, the disallowance being by reason of section 10 of the act of February 14, 1920, 41 Stat., 421, and section 10 of the act of March 3, 1921, 41 Stat., 1237, which sections, in consideration of the grants therein made, contained provisos which were construed to prohibit the payment for tuition of Indian children. attending such schools.

By joint resolution approved February 13, 1922, 42 Stat., 364, it was provided:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That nothing contained in the provisions of section 10 of the Act of February 14, 1920 (Forty-first Statutes at Large, page 421), and of section 10 of the Act of March 3, 1921 (Forty-first Statutes at Large, page 1237), shall be construed to preclude the payment of tuition for Indian children enrolled and educated in Montana State public schools, pursuant to annual or existing appropriations of public money for payment of such tuition.

In view of the provisions of said enactment, upon a review of the settlement, it is reversed and the amount of $14,471.10 certified due claimant.

PAYMENT OF INTEREST ON INTERNAL REVENUE TAXES

REFUNDED.

On all claims allowed on and after November 23, 1921, for refund of or credit for internal revenue taxes, interest may be paid on amounts which represent taxes erroneously paid or collected prior to that date and for periods accruing prior to that date, subject to the specific provisions of the act of November 23, 1921, 42 Stat., 316, with respect to the date from which interest shall be computed.

Comptroller General McCarl to the Secretary of the Treasury, February 15, 1922:

You have submitted to this office for decision certain questions presented by the Commissioner of Internal Revenue in his letter to you, dated February 6, 1922, relative to the payment of interest under authority of the provisions of section 1324 (a) of the act of November 23, 1921, 42 Stat., 316.

The provisions in question read:

That upon the allowance of a claim for the refund of or credit for internal revenue taxes paid, interest shall be allowed and paid upon the total amount of such refund or credit at the rate of one-half of 1 per centum per month to the date of such allowance, as follows: (1) if such amount was paid under a specific protest setting forth in detail the basis of and reasons for such protest, from the time when such tax was paid, or (2) if such amount was not paid under protest but pursuant to an additional assessment, from the time such additional assessment was paid, or (3) if no protest was made and the tax was not paid pursuant to an additional assessment, from six months after the date of filing of such claim for refund or credit. The term "additional assessment" as used in this section means a further assessment for a tax of the same character previously paid in part.

The questions presented are as follows:

66

(1) If a specific protest" was filed at the time of payment of tax which was prior to the enactment of the revenue act of 1921 and the refund of such payment is allowed subsequent to the enactment, will interest accrue from the date of payment of the tax to the date of allowance of the refund?

(2) If an additional assessment was paid prior to the enactment of this law and the refund of such additional assessment was allowed subsequent to the enactment, will interest accrue from the payment of such additional assessment to the date of allowance of the refund?

(3) On the claims filed in the bureau and not adjusted with which no protest was filed and which do not represent additional assessments, will interest accrue after 6 months from the date of filing such claim until the date of allowance?

In other words, is the revenue act of 1921 retroactive in the application of section 1324?

The law referred to is not retroactive in the sense of authorizing payment of interest on claims theretofore allowed, but I find nothing in its provisions to indicate an intent to limit its application to refunds on taxes thereafter to be paid, or to periods thereafter to accrue. The provision is remedial and therefore should not be narrowed by construction. I think the language of the provision clearly justifies the conclusion that it was intended to authorize the payment of interest in the case of all claims thereafter allowed subject to the specific provisions with reference to the date from which interest should be computed in the three different cases, to wit: Date of payment of tax, date of payment of additional assessment, and date of expiration of six months after filing of claim, as the case may be.