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COMMUTATION OF QUARTERS FOR DEPENDENTS—ARMY

OFFICERS.

The fact that public quarters assigned to an Army officer at an Army supply base are 2 miles outside the corporate limits of the city in which his dependents reside can not be held to have rendered quarters in kind for his dependents unavailable, a condition precedent to the payment of commutation in lieu thereof under the act of April 16, 1918. 40 Stat.. 530, but the refusal of the officer or his dependents to occupy the public quarters must be taken to have been for personal reasons only, thereby precluding payment of commutation.

Comptroller General McCarl to Maj. Eugene Coffin, United States Army, August 1, 1921:

By reference, I have your letter dated July 18, 1921, with accompanying papers wherein decision is requested as to whether you are authorized to make payment to Austin M. Pardee, major, Twelfth Infantry, for commutation of quarters, heat, and light for his wife and dependent children during the period December 15, 1920, to January 22, 1921, and for which a voucher has been presented to you. It appears that the Army supply base is not within the corporate limits of the city of Norfolk; that troops on duty thereat are quartered in cantonment buildings situated approximately 2 miles from the corporate limits; that quarters in kind on the cantonment grounds, and which another officer has recently vacated, were available for Maj. Pardee's dependents, but he alleged that the quarters were unsuitable and maintained an abode for them within the corporate limits of Norfolk. It further appears that The Adjutant General, December 27, 1920, stated that duty at the Norfolk Army supply base was not considered as duty in the field and, since quarters in kind were available thereat, Maj. Pardee was not entitled to commutation in lieu thereof. Subsequently, June 14, 1921, The Adjutant General approved an opinion rendered by the Judge Advocate General to the effect that duty at Norfolk Army supply base was duty in the field and if Government quarters were not available for Maj. Pardee's dependents at the place where he maintained an abode for them, that is, within the corporate limits of the city of Norfolk, commutation in lieu thereof should be paid. Whether a particular duty is duty in the field within the meaning of the act of April 16, 1918, 40 Stat., 530, is a military question for the Secretary of War to decide. 25 Comp. Dec., 340. It is immaterial so far as the right of Maj. Pardee to commutation of quarters, heat, and light for his dependents is concerned, whether he was on duty at a permanent post or on duty in the field during the period in question and when he maintained a place of abode for them at, or in the vicinity of, his place of duty. In either event quarters in kind were available and when they are rejected for per

sonal reasons, commutation in lieu thereof does not accrue. 24 Comp. Dec., 338. The fact that the corporate limits of the city of Norfolk and a distance of 2 miles intervened between the Government quarters and the house in which the dependents resided, can not be held to have rendered quarters in kind unavailable, a condition precedent to the payment of commutation in lieu thereof. Payment of the voucher is unauthorized.

SUSPENSION OF EMPLOYEES.

Ratification of the action of a subordinate officer of the Government in suspending an employee without pay relates back to the time of suspension, provided the superior officer has authority to perform the act ratified. Where a field employee of the Government has been suspended without pay by the field officer in charge, the suspension has been ratified by the appointing power pending investigation of charges, and the charges are sustained and culminate in dismissal, the employee is not entitled to pay from the date of original suspension by the field officer.

Comptroller General McCarl to the Secretary of the Treasury, August 2, 1921:

I have your letter of the 19th instant requesting a decision as follows:

1. Whether the department can ratify or approve the action of an officer in the field, on a date subsequent to that action, in suspending from the service. an employee holding a classified position, to which appointed by the Secretary of the Treasury, authority to make such suspension not having been delegated by the Secretary to the field officer?

2. Whether such employee is entitled to salary withheld from the date of his suspension by the field officer to the date the Secretary approved such action or to the date of receipt by the suspended employee of notice of suspension by the head of the department?

The power of the head of a department to suspend employees without pay is too well settled to require more than a mere citation of authority. United States v. Murray, 100 U. S., 536; Works Lelman v. United States, 37 Ct. Cls., 128; Wertz v. United States, 40 Ct. Cls., 357; Stillings v. United States, 41 Ct. Cls., 61; 11 Comp. Dec., 560; 20 id., 505; 21 id., 478.

A subordinate has no power to suspend without pay an employee whose appointment is not vested in him unless his action is approved or ratified by competent authority. 12 Comp. Dec., 653-657. Where a subordinate officer suspends an employee without pay, without authority from the superior who made the appointment, and reports his action to the superior and the superior then ratifies the suspension, the ratification operates on the suspension so ratified in the same way as though the authority of the subordinate to make the suspension originally existed. Of course, the ratification can only be made when the officer ratifying has power to perform the act ratified. Vol.

7, Words and Phrases, 5927, citing Norton v. Shelby County, 118 U. S., 425, and id., 5929, citing Shuenfeldt v. Junkermann, 20 Fed. Rep., 357.

In answer, therefore, to your first question you are advised that your ratification of the action of subordinate officers in suspending an employee relates back to the time of suspension, you having the right to perform the act ratified.

In answer to your second question you are advised that where a field employee has been suspended without pay by the field officer in charge, the suspension has been ratified by the appointing power pending investigation of charges, and the charges are sustained and culminate in dismissal, the employee is not entitled to pay from the date of original suspension by the field officer. 12 Comp. Dec., 653; 17 id., 832; 9 id., 555; Ruggles v. United States, 45 Ct. Cls., 86, 88; Lellman v. United States, 37 Ct. Cls., 128.

STREET CAR FARE.

Street car fare when an expense incident to subsistence as distinguished from transportation shall be charged against the maximum subsistence allowance of officers or employees traveling on an actual expense basis.

Decision by Comptroller General McCarl, August 2, 1921:

The Secretary of the Treasury applied to the Comptroller of the Treasury on June 30, 1921, for revision of the action of the Auditor for the Treasury Department in disallowing, by settlement No. 12179, dated June 30, 1921, certain items in an account of J. L. Summers, disbursing clerk of the Treasury Department, amounting to $8.25. These items represent payments made by the disbursing clerk to Treasury Department employees, who were in a travel status and entitled to reimbursement of their actual traveling expenses, including actual expense of subsistence, in reimbursement of expense of car fare incurred by them in going daily from their hotel in New York to the subtreasury in that city, where they were temporarily employed, and in returning to the hotel after the day's work was done. It is well settled that all necessary car fare of official travelers who are on an allowance of actual expense of subsistence from and to a hotel or boarding house is a proper charge against the United States, although travelers on a per diem allowance in lieu of subsistence are not entitled to reimbursement of such car fare. 23 Comp. Dec., 440; 24 id., 87; 25 id., 703; 26 id., 341. The disallowance in this case raises the question whether such car fare shall be included in and charged against the maximum limit of $5 per day for actual expense of subsistence which has been fixed by statute.

Such car fare is not in itself an item of subsistence but it is

an expense incident to subsistence. It stands upon the same footing in this respect as tips to waiters, etc., which have heretofore been treated as items chargeable to the maximum subsistence allowance. The maximum should be applied to, and made to cover all expenses of the traveler which are incidental to subsistence as distinguished from transportation, which is the other main division of traveling expenses. Car fare of this character being an incident to subsistence and not to transportation should be charged against the maximum subsistence allowance.

In each of the cases covered by this appeal the traveler had been reimbursed actual expense of subsistence each day to the full daily maximum of $5, exclusive of this car fare, and therefore was not entitled to any further reimbursement on account of subsistence. Payment to them of the car fare was erroneous and the auditor's disallowance of such payments must be affirmed.

REWARD FOR APPREHENSION AND DELIVERY OF DESERTERS FROM ARMY.

In order to earn the reward of $50 for apprehension and delivery of deserters from military service, authorized for civil officers and citizens by the act of July 9, 1918, 40 Stat., 858, and Army Regulations issued pursuant thereto, it is not enough that the civilian merely furnish information to the military authorities leading to the apprehension and arrest of the deserter and accompany the soldiers detailed to make the arrest, but there must be actual delivery by the civilian to an officer of the Army at the most convenient post or recruiting station unless that requirement be waived by competent authority.

Decision by Comptroller General McCarl, August 3, 1921.

Miner E. Pike applied July 8, 1921, for revision of the action of the Auditor for the War Department in settlement No. 105003 of March 23, 1921, in allowing the sum of $1.90 only, in full settlement of his claim for services rendered in connection with the apprehension and arrest of George J. Kraft, a deserter from the United States Army. The settlement covered expenses only and shows no specific action by the auditor upon the right, if any, to a reward. The auditor subsequently advised claimant, June 1, 1921, that it was assumed expenses only were claimed and not a reward. The matter could be sent to the auditing division for proper settlement, but in view of the legal question involved it may be disposed of in this presentation.

From the facts as evidenced by the papers in the case it appears that George J. Kraft, private, Eighth Company, One hundred and sixty first Depot Brigade, deserted his organization at Camp Grant,

Ill., October 3, 1918; that he was at large until about the 11th day of June, 1919, when the claimant having located him notified the military authorities at Fort Snelling, Minn. Claimant states that he was requested by the sergeant in charge of the prison to accompany him with a detail of soldiers to the deserter's hiding place for the purpose of apprehending him. This was done and the deserter returned to military control on or about June 20, 1919.

The law authorizing the payment of civil officers or citizens for their services and expenses in connection with the apprehension of deserters is to be found in the annual appropriation acts for the support of the Army. The act of July 9, 1918, 40 Stat., 858, is applicable to the present case and reads as follows:

for the apprehension, securing, and delivering of deserters, including escaped military prisoners, and the expenses incident to their pursuit, and no greater sum than $50 for each deserter or escaped military prisoner shall, in the discretion of the Secretary of War, be paid to any civil officer or citizen for such services and expenses.

The Secretary of War has exercised his discretion as evidenced by Paragraph 121, Army Regulations, which provides:

A reward of $50 will be paid to any civil officer or civilian for the apprehension and delivery to the proper military authorities at a military post of a deserter from the military service, except a deserter from the Philippine Scouts, for whose apprehension and delivery a reward of $20 will be paid. A reward of $50 will also be paid for the apprehension and delivery to the proper military authorities at a military post of an escaped military prisoner. No reward will be paid in the case of a deserter or of an escaped military prisoner who is serving in the Army, Navy, or Marine Corps, or in the case of a deserter who. subsequently to his desertion, has been dishonorably discharged from any other enlistment in the Army, or who can claim exemption from punishment under the thirty-ninth article of war. The reward will be paid by the Quartermaster Corps and will be in full satisfaction of all expenses for arresting, keeping, and delivering the deserter or escaped military prisoner. The quartermaster making the payment will report that fact to the commanding officer of the organization to which the deserter belongs or to the commanding officer of the military post or prison from which the prisoner escaped. (C. A. R., No. 55.) In order to earn the reward offered by the Army Regulations the deserter must be not only apprehended but must be delivered as prescribed by said regulations "to an officer of the Army at the most convenient post or recruiting station," unless this requirement be waived by competent authority.

Such has been the consistent holding of the accounting officers and the Judge Advocate General of the Army. Decision Second Comptroller March 28, 1890; 24 Comp. Dec., 466; Dig. of Op., J. A. G., 1912, p. 407; Dig. of Op., J. A. G., 1895, p. 347, par. 32. In the latter case it was held

Where a civil official merely informed a captain of Artilley that two soldiers serving in his battery were deserters from the battalion of Engineers held that though such information was correct the official was not entitled to the reward.

In the instant case claimant performed no service required by the regulation to entitle him to payment of the full amount therein

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