« ForrigeFortsett »
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
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, includ. ing 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
offered as reimbursement for his services, nor was there a waiver by competent authority of the necessity for compliance with the requirements of the regulation.
The deserter was apprehended and arrested by soldiers from Fort Snelling and the mere furnishing by claimant of information leading to such apprehension and arrest and accompanying them, does not constitute delivery within the meaning of the law and regulations.
The action of the auditor is accordingly affirmed.
TRANSPORTATION-INTERSTATE AND INTRASTATE
Where interstate and intrastate transactions of carriers are so related that
the government of the one involves the control of the other, the Interstate Commerce Commission has authority to apply its published tariff rates for
interstate shipments to shipments within a State. Decision by Comptroller General McCarl, August 3, 1921:
The Union Pacific Railroad Co. applied May 24, 1921, for revi. sion of the action of the Auditor for the Interior Department in Settlement 3683, April 18, 1921, in disallowing $6.52 on account of transportation per bill of lading 1-13254, November 3, 1920, of flour from Omaha, Nebr., to Genoa, Nebr., the auditor having based his allowance on rates published in general order 19 (distance rates) issued by the Nebraska Railroad Commission.
The Interstate Commerce Commission ordered the roads to desist using the Nebraska G. 0. 19 rates from jobbing centers on the Missouri River, etc., to local stations in Nebraska, and to apply interstate rates provided in the Iowa-Nebraska scale in order to prevent discriminations to the detriment of Sioux City, Council Bluffs, etc. This order of the commission related to the tariff to and from 13 jobbing centers which were named. The Union Pacific Railroad Co. filed supplements to its tariffs carrying the rates authorized by the Interstate Commerce Commission.
In the cases of Houston East & West Texas Railway Co. v. United States, and T. & P. Railway v. United States, called the Shreveport cases, the Supreme Court, June 8, 1914, 234 U. S., 342, held that wherever interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other it is Congress and not the State that is entitled to prescribe the final and dominant rule, and that while Congress does not possess authority to regulate the internal commerce of the State as such. it does possess power to foster and protect interstate commerce though in doing so it may be necessary to conrol intrastate trans. actions of interstate carriers, and that the use by a State of an
instrument of interstate commerce in a discriminatory manner so as to inflict injury upon any part of that commerce is ground for Federal intervention; that a State can not authorize that which is forbidden; that Congress is not bound to reduce interstate rates to the level of intrastate rates; and that Congress having power to control intrastate charges of an interstate carrier may provide for its execution through a subordinate body, which it has delegated to the Interstate Commerce Commission by section 3 of the interstate commerce act, 24 Stat., 379, 380.
The rates claimed by the company being regular published rates, under the authority of the Interstate Commerce Commission, are therefore properly allowable, and in accordance therewith the sum of $6.52 will be certified for allowance.
NATIONAL GUARD IN FEDERAL SERVICE-TERMINATION OF
The appointment of an officer of the National Guard as an officer in the United
States Army subject to examination, when drafted in the Federal service with his organization, terminated upon notice to him of his failure to pass the required examination, and an order of the War Department purporting to revoke such discharge and directing him to report for further examination is insufficient to restore his commission or to federally recognize him as an officer of the National Guard in Federal service so as to entitle him to pay from date of the order to date of final action by the examining
board. Decision by Comptroller General McCarl, August 5, 1921:
Frank Geere, major, C. A. C., disbursing officer, applied May 18, 1921, to the Comptroller of the Treasury, for revision of the action of the Auditor for the War Department in disallowing in settlement No. 58343, dated June 30, 1920, of his disbursing accounts for the period ending May 31, 1918, a payment of $166.67 to Arthur H. Johnson for the month of December, 1917, the monthly pay of a first lieutenant, First Connecticut Infantry, National Guard.
It appears that the First Connecticut Infantry, National Guard, was called into the Federal service on March 16, 1917, and Arthur H. Johnson, who had theretofore been serving as a second lieutenant, was appointed on that date by the governor of Connecticut as a first lieutenant subject to examination; that one Harris was likewise, subject to examination, appointed to take the commission of second lieutenant and Harris successfully passed the examination on June 20, 1917, and was announced in orders as having been so appointed; that Johnson was examined by a board of officers on June 26, 1917, and by a report approved on July 5 was found disqualified; that the organization was drafted into the Federal service on August 4; and
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