Sidebilder
PDF
ePub

not discharged for his own convenience he is entitled to travel allowance unless the travel allowance law is modified by the terms of the appropriation in the act of July 11, 1919, 41 Stat., 134, which provide

[ocr errors]

transportation to their homes, if residents of the United States. of enlisted men and apprentice seamen discharged on medical survey, with subsistence and transfers en route or cash in lieu thereof.

The question arises whether this specific provision of the appropriation shows a legislative intent to except all men discharged by medical survey from application of the travel allowance law.

The same language occurs in the appropriation act of June 4, 1920, 41 Stat., 815; also in the act of July 1, 1918, and prior statutes for many years. When travel allowance was limited to travel within the United States and right thereto accrued only in case of men discharged at expiration of enlistment, this provision in the appropriation was the only authority of law to furnish men so discharged transportation in kind.

Under the terms of the present law right to travel allowance is not limited to residents of the United States nor to travel within the United States, 25 Comp. Dec., 950, and, therefore, the terms of the appropriation are not sufficiently broad to apply to all men entitled to travel allowance. Also the appropriation applies where right to travel allowance does not accrue, as in case of men so discharged under other than honorable conditions.

It is apparent, therefore, that the terms used in the appropriation could not have been intended to substitute transportation in kind for travel allowance in all cases of men discharged by medical survey. It is also apparent that the language of the appropriations for the fiscal years 1920 and 1921 has not been changed to comply with the present travel allowance law, since the appropriations still limit travel allowance to "enlisted men discharged on account of expiration of enlistment" and make no provision for such allowance to members of the Naval Reserve Force.

In view of these facts I am of opinion that the right of an enlisted man to travel allowance is not limited by the provision in the appropriations for the fiscal years 1920 and 1921, for transportation of men discharged by medical survey.

An officer of the Navy who is furnished transportation for travel performed under conditions which entitle him to mileage is entitled to mileage less cost of the transportation furnished by the Government. Acceptance of the transportation does not waive his right to mileage. 20 Comp. Dec., 690.

The same rule applies to travel allowance in case of enlisted men. It is a statutory right and is not waived by the acceptance of transportation in kind.

The single matter determined here is that the terms of the appropriation in providing for the transportation and subsistence of enlisted men discharged on medical survey do not affect the provisions of the specific statutes which otherwise authorize the payment of travel allowances to those honorably discharged. The terms of the appropriation can not be considered as legislation denying rights given by express statute.

Accordingly, Schlefsky is entitled to the difference between travel allowance accruing to him by reason of the discharge in question and the value of the transportation furnished him by the Government. The memorandum decision submitted is disapproved.

PAY OF MIDSHIPMEN IN THE NAVY.

The increase in pay from $600 to $780 per annum authorized by the act of July 11, 1919, 41 Stat., 146, for midshipmen in the Navy is effective only from the date of the act, and not retroactive to July 1, 1919.

Decision by Comptroller General McCarl, August 9, 1921:

The Chief of the Navy Department Division submits for my decision the question presented through the Law Board as to the pay of midshipmen under the act of July 11, 1919, 41 Stat., 146, as affected by the joint resolution of July 31, 1919, 41 Stat., 272:

The pay rolls of the U. S. S. Arizona for the first quarter, 1920, show that Lieutenant Commander W. W. Lamar, Supply Corps, United States Navy, has credited the account of Midshipman Edwin D. Graves, jr., and others, with the difference between the pay of a midshipman at $600 and $780 per annum from July 1 to July 10, 1919, and the question arises whether the increased pay authorized by the act of July 11, 1919, is retroactive to July 1, 1919, or whether it is only effective from the date of the approval of the act.

The act making appropriations for the naval service for the fiscal year ending June 30, 1920, approved July 11, 1919, 41 Stat., 146, contains the following provision:

the pay of midshipmen shall hereafter be $780 per annum The joint resolution of July 31, 1919, 41 Stat., 272, provides as follows:

That appropriations for the service of the fiscal year 1920, contained in the Agricultural, Army, District of Columbia, Navy, and Sundry Civil Appropriations Acts, and the "Third Deficiency Appropriation Act, fiscal year 1919," shall be available from and including July 1, 1919, for the purposes respectively provided in the said appropriations for the service of the said fiscal year. And all obligations incurred pursuant to the terms of such appropriations in the aforesaid Acts as approved are ratified and confirmed from and including July 1, 1919.

There would be no question of the date of the commencement of the higher rate of pay if the appropriation act stood alone, but the

disbursing officer apparently has construed the joint resolution as authorizing the increase from July 1, 1919. The resolution makes the appropriations effective from the beginning of the fiscal year, and obligations incurred pursuant to the terms of such appropriations are ratified and confirmed, but no reference is therein made to personnel legislation contained in the appropriation act.

I am therefore of the opinion that the joint resolution should not be construed as affecting the increased rate of pay granted to midshipmen. The act of July 11, 1919, provides that the pay of midshipmen shall "hereafter" be $780 per annum, and following the rule of construction that general and permanent legislation contained in an annual appropriation act qualified by the word "hereafter" takes effect on the date of the approval of the act, it is accordingly held that July 11, 1919, is the date on which midshipmen became entitled to the higher rate of pay authorized by the said act. 3 Comp. Dec., 473; 19 id., 193.

PASSENGER-CARRYING VEHICLES.

Unserviceable automobiles, trucks, and motor cycles which have lost their character as passenger-carrying vehicles may be purchased by the Federal Board for Vocational Education from the War Department and paid for from appropriations for vocational rehabilitation without violation of the provisions of the act of July 16, 1914, 38 Stat., 508, prohibiting use of any appropriation for purchase of motor-propelled passenger-carrying vehicles unless specific authority therefor is given, provided the board will certify that the vehicles are to be kept as trade-teaching equipment for trainees and not used for passenger-carrying purposes.

Comptroller General McCarl to the Chairman, Federal Board for Vocational Education, August 10, 1921:

I have your letter of August 3, 1921, requesting decision whether the appropriation for vocational rehabilitation made by the act of March 4, 1921, 41 Stat., 1379, may be used to purchase from the War Department certain unserviceable automobiles, trucks, and motor cycles, to be used by your board for instructional purposes only in the shops and classrooms where training in automotive courses is given to trainees of the board.

Section 5 of the act of July 16, 1914, 38 Stat., 508, prohibits the use of any appropriation for the purchase of any motor-propelled passenger-carrying vehicle unless specific authority therefor is given. There is no specific authority of law for the purchase of such vehicles from the appropriation now in question. Unless the vehicles which you now propose to purchase are so unserviceable as to have lost their character as passenger-carrying vehicles their purchase is within the inhibition of this statute, whether purchased from the War Department or elsewhere.

The prohibition of the act of 1914 is upon procuring motor-propelled passenger-carrying vehicles "for the service of any of the executive departments or other Government establishments or any branch of the Government service." The purpose for which it is stated the motor-propelled vehicles are to be acquired sufficiently indicates that it is not "for the service" of your board, but rather what may be termed trade-teaching equipment, and if the vehicles are in the general sense unserviceable for passenger-carrying purposes and are to be used for shop and class instruction in the mechanics of the machines only, and are to be kept for such purposes exclusively and not used as passenger-carrying vehicles, and the board will so certify, they may be purchased as indicated without violation of the act of 1914. Otherwise the proposed purchase is unlawful,

Attention is invited to the provisions of the act of July 11, 1919, 41 Stat., 105, and of March 15, 1920, 41 Stat., 530, authorizing the transfer of certain motor-propelled vehicles to certain services of the Government. Attention is also invited to section 5 of the act of July 11, 1919, 41 Stat., 67, requiring executive departments of the Government to purchase material, supplies, and equipment from other services of the Government possessing material, supplies, and equipment no longer required because of the cessation of war activities. It is primarily for the administrative branch of the Government to determine its authority to make sale of any of its equipment.

ADVERTISING FOR BIDS.

Purchase of supplies from appropriations for the Panama Canal for sale to the Panama Canal Railroad are subject to the same statutory restrictions upon purchases without advertising that applies to other purchases made from the appropriations.

Comptroller General McCarl to the Governor of the Panama Canal, August 10, 1921.

I have your letter of July 28, 1921, as follows:

The Panama Canal desires to purchase as proprietary articles and without advertising switch lamps from the Adams and Westlake Company. These lamps are to be purchased for resale to the Panama Railroad Company. The Panama Railroad Company desires to standardize upon the "Adlake lamp, which has always given satisfaction and which is a proprietary article produced by the Adams and Westlake Company.

[ocr errors]

You are requested to advise whether the purchase from the Adams and Westlake Companay of this lamp as a proprietary article, without advertising, would be authorized based upon a certificate that the article is required for resale to the Panama Railroad Company to meet a definite demand for a particular make and that it is proprietary and produced by the Adams and Westlake Company.

I understand that your purpose is to make these purchases from the appropriation for maintenance and operation of the Panama

Canal made by the act of March 4, 1921, 41 Stat., 1432, which provides for purchase of material, supplies, and equipment for issue— to all departments of the Panama Canal, the Panama Railroad, other branches of the United States Government, and for authorized sales.

A later provision of the same act appropriates for expenditure and reinvestment under the several heads of appropriations in the actall moneys received by the Panama Canal from services rendered or materials and supplies furnished to the United States, the Panama Railroad Company, the Canal Zone government, or to their employees, respectively, or to the Panama Government.

The general purchase appropriation of the Panama Canal is thus chargeable with purchase of supplies for the railroad and is reimbursable for supplies so purchased. The purchase is made from the appropriation, however, and is subject to the same statutory restriction upon purchase without advertisement that applies to other purchases made from the appropriation. Primarily the purchases are on account of the Panama Canal and to whom the supplies may be eventually issued, is immaterial in connection with the procedure of purchase.

It does not appear that the purchases in question are of a character which could lawfully be made by the Panama Canal from its appropriation for its own use without advertising. See 27 Comp. Dec., 896. They are equally unauthorized if made for the Panama Railroad from the same appropriation, subject to reimbursement of the appropriation from moneys of the railroad. The competition contemplated and provided for by the statute is as desirable in the one case as in the other.

SUBSISTENCE ON TEMPORARY DUTY.

An order directing an employee of the War Department to proceed to and perform duty at a certain place incident to change of station, without direction as to return to the place of original employment or to any other station upon completion of such duty, is not sufficient to place the employee on temporary duty, but the place to which assigned must be considered as his permanent station at which he is not entitled to the per diem allowance in lieu of subsistence.

Decision by Comptroller General McCarl, August 10, 1921:

John E. Fagan applied April 2, 1921, to the Comptroller of the Treasury for revision of the action of the Auditor for the War Department in disallowing per certificate dated February 15, 1921, case No. 760289, his claim for additional 50 cents per diem for the period August 19, 1918, to January 31, 1919, a total of 166 days, while on temporary duty as shoe inspector, Quartermaster Corps, United States Army.

Claimant was given a temporary appointment as shoe inspector on June 11, 1917, appointed probationary shoe inspector March 14, 1918, with station at Boston, Mass.

« ForrigeFortsett »