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States,” and as such for deposit and covering into the Treasury of the United States as miscellaneous receipts, or whether they are otherwise and properly may be credited under the appropriation bearing the expense of such travel, etc.

The act for the fiscal year 1922, 41 Stat., 1342, provided only “For enabling the Secretary of Agriculture to investigate and certify to shippers and other interested parties” when perishable farm products were “received in interstate commerce at such important central markets as the Secretary of Agriculture may from time to time designate,” which precluded such investigations and certifications at any other places. The authority to make such investigations and certifications " at points which may be conveniently reached ” from such important central markets was new legislation, the explanation as to necessity therefor, etc., being reported in the “ Hearing before Subcommittee of House Committee on Appropriations, Agricultural appropriation bill, 1923,” pages 601 to 620, inclusive. On page 603 a representative of the Department of Agriculture stated the matter as follows:

The change of language is intended to remove two restrictions. First, to permit us to inspect products which have not yet left the State. That question often comes up in connection with the service. We may be asked to go out to inspect a cold-storage warehouse full of apples at Winchester, Va. They want a Government certificate on them before they move out and we can not inspect those because they have not moved in interstate commerce, even though it might be very profitable work to send an inspector there and get the $4 a car, plus the expenses of inspection, and, of course, this $4 a car and expenses of inspection always goes back into the Treasury.

The substance of the submission is that to deposit to the credit of miscellaneous receipts the moneys collected other than on account of fees as such would measurably curtail the contemplated activities under the appropriation; that Congress knew, or must have known, that by enlarging the scope of the act there would be added expense; and that, by not increasing the appropriation correspondingly, it is reasonable to assume that Congress intended that the amounts received in reimbursement of expenses for investigations and certifications at points conveniently reached from important central markets be credited under the appropriation rather than to miscellaneous receipts. It is urged that the matter might have been handled by having these incidental expenses paid from amounts advanced by the shippers or other interested parties applying for certificates, thus obviating any question as to the application of the moneys thus received, but that this has not been resorted to for administrative reasons. It suggests that, if the appropriation might be conserved by thus handling the matter, there would appear to be warrant in authorizing the crediting of the appropriation with the

amounts reimbursed for these incidental expenses, the vouchers for such incidental expenses to be paid under such appropriation as are other vouchers which are not reimbursable.

The appropriation is equally for expenses of investigations and certifications, whether at important central markets or at points which may be conveniently reached therefrom, and, such being the case, payments of such expenses otherwise than under such appropriation would be unauthorized.

The authority of the act is to charge “such fees as will be reasonable and as nearly as may be to cover the cost for the service rendered," and although the amounts paid for services rendered in making investigations and certifications at other than important central markets are not wholly comprehended by the fee charged as such, the substance is that the total charge, however made up, is the amount of the fee provided to be charged by the act. The act in this respect is plain and unequivocal, and the fact that such requirement may in a measure curtail the contemplated activities does not permit an otherwise unwarranted construction.

Answering the question specifically, the total charges for investigations and certifications at places other than important central markets, including the regular fees plus the incidental expenses, are moneys received “ for use of the United States” and as such are required to be deposited into the Treasury to be covered in as miscellaneous receipts.


PLOYEES OF THE UNITED STATES COURT FOR CHINA. The allowance to the judge and district attorney of the United States

Court for China of necessary actual expenses when holding court outside of the city of Shanghai, not to exceed $8 per day, is applicable to subsistence expenses only and, in addition to the number of days the court is in session, may be allowed for the time necessarily spent in going to and from said

court. The clerk of the United States Court for China may be allowed his traveling

expenses and the necessary expenses of subsistence, under the regulations of the Department of State, of not to exceed $5 per day, when necessarily

absent from Shanghai attending sessions of said court held elsewhere. Comptroller General McCarl to the Secretary of State, April 20, 1923:

There was received your letter of March 4, 1923, as follows: The appropriation made by Congress for the United States Court for China contains the following provisions (act of June 1, 1922, 42 Stat., 609):

“ Printing and binding opinions of the court and court expenses, including reference law books, $10,000;

“ The judge of the said court and the district attorney shall, when the sessions of the court are held at other cities than Shanghai, receive in addition to their salaries their necessary actual expenses during such sessions, not to exceed $8 per day each, and so much as may be necessary for said purposes during the fiscal year ending June 30, 1923, is appropriated;

“ The appropriation for the transportation of diplomatic and consular officers carried elsewhere in this act shall be available for the transportation of the officers of the United States Court for China to the same extent as for the transportation of such diplomatic and consular officers."

The appropriation for transportation referred to in the last paragraph of the law above quoted is as follows (42 Stat., 603):

"To pay the itemized and verified statements of the actual and necessary expenses of transportation and subsistence, under such regulations as the Secretary of State may prescribe, of diplomatic and consular officers and clerks in embassies, legations, and consulates and their families and effects in going to and returning from their posts, or of such officers and clerks when traveling under orders of the Secretary of State, but not including any expense incurred in connection with leaves of absence, $290,000.”

I would be glad to receive a decision from your office on the following points:

1. At various times, both when the court is sitting in Shanghai and elsewhere, it is necessary to incur transportation expenses and at times subsistence also for officers and employees in connection with the investigation of matters pending before the court. It appears to be necessary also for the clerk of the court and court boys to attend the sessions of the court when held outside of, as well as in, Shanghai. Are the expenses of transportation of these employ. ees payable from the appropriation for “ Court expenses "? Is subsistence under the usual rule of not to exceed $5 a day payable? (These persons would not, of course, be entitled to $8 a day, as that amount is limited to the judge and district attorney.)

If not, would the appropriation for transportation of diplomatic and consular officers be available for such expenses of officers and employees in view of the provision that this appropriation “is available for the transportation of the officers of the United States Court for China"?

2. The court appropriation provides that the judge and district attorney sball receive their “necessary actual expenses during such sessions (that is, sessions outside of Shanghai) not to exceed $8 per day each." Do the words “during such sessions” limit this payment to the period of the actual session of the court or may they include the time necessarily occupied in transit to and from the various cities in which sessions are held?

Is the $8 limit inclusive of transportation? If not, is transportation charge able to “Court expenses or to “ Transportation of diplomatic and consular officers "? If the latter, it would seem to handicap the court in the performance of its duties, as it would be necessary for the court to obtain the authorization of the Secretary of State for each session held outside of Shanghai.

The act of June 30, 1906, 34 Stat., 814, which is an act entitled "An act creating a United States Court for China and prescribing the jurisdiction thereof," and subsequent acts provide only for traveling expenses of the judge and district attorney when the sessions of the court are held at other cities than Shanghai.

Section 6 of the organic act seems to contemplate that the practice of the United States Court for China, so far as the ordinary machinery of said court is concerned, should conform as nearly as possible to that of other United States courts, or at least as far as may be consistent with the laws of the United States and certain treaties.

The act approved 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 subsist. ence 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 desig nated 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.

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The appropriation “ Transportation of diplomatic and consular officers,” having been made available for the transportation of officers of the United States Court for China, and no specific provision of law having been made for the expenses of travel and subsis ence of the clerk of the court when attending sessions of the court at places elsewhere than at Shanghai, it appears that his traveling expenses and the necessary expenses of subsistence, subject to regulation by the Department of State, of not to exceed $5 per day, may be allowed under the general provisions of law allowing officers and employees of the Government traveling and subsistence expenses when traveling on official business away from their official headquarters.

With respect to your inquiry concerning the allowance of transportation and subsistence charges to officers and employees in connection with investigation of matters pending before the court and for transportation and subsistence charges of court boys in attendance upon court outside of, as well as in, Shanghai, it appears that to entitle officers and employees to traveling expenses and subsistence in such matters said expenses should be incurred under instructions of the Department of State or of the court; there should be some regulation or sanction of law governing expenses of this nature. It is not stated what duties these boys perform in connection with the court, and why it is necessary they should travel to the various places of holding court. In the United States criers and bailiffs are appointed at the place of holding court at a per diem of $3, no traveling or subsistence expenses being allowed.

The information furnished is not now complete enough to enable a decision to be rendered upon

the matter. The allowance in the appropriation “ United States Court for China” of $8 per day for the judge and district attorney, when attending sessions of the court outside of Shanghai, is construed to cover subsistence expenses only, and may be allowed, in addition to the number of days the court is in session, for the time necessarily occupied in going to and returning from the place of holding court.


The destruction of the private property of an officer of the Army while held in

a Goveroment warehouse awaiting shipping instructions from the officer is not destruction while being transferred or transported by a common carrier or proper agent or agency of the United States within the purview of the act of March 4, 1921, 41 Stat., 1436, and does not entitle the officer

to reimbursement for the value thereof. Decision by Comptroller General McCarl, April 21, 1923:

Maj. Fred W. Boschen, Finance Department, custodian of retained records of Maj. E. O. Hopkins, F. D., requested February 19, 1923,

review of settlement No. W-74295, dated December 28, 1922, by which was disallowed the sum of $1,495.53 paid on voucher No. 5195, April, 1921, accounts of Hopkins to Capt. Paul B. Harm, Quartermaster Corps, for private property destroyed by fire in building No. 63, Fort Sheridan, Ill., November 4, 1920.

It is represented that the officer turned his property over to the quartermaster, Fort Sheridan, Ill., for shipment, not storage, and its destruction in warehouse should be regarded as having occurred while in transit, and that statement of Captain Harm in his claim, in effect that his property was stored by the quartermaster, was in. tended to mean that it was in the quartermaster's possession for the purpose of marking, weighing, and transporting it to Washington, D. C.

Captain Harm was relieved from duty at Fort Sheridan, III., and assigned to duty at Washington, D. C., by paragraph 47, S. O. No. 249-0, War Department, October 22, 1920. On November 1, 1920, he turned over to the quartermaster, Fort Sheridan, in accordance with paragraphs 1135 and 1136, Army Regulations, 1913, as amended, the authorized allowance of baggage to be marked, weighed, and transported to his new station. Pending shipment property was placed in storehouse, which was destroyed by fire November 4, 1920.

A board of officers convened February 21, 1921, to investigate the matter reported the facts to be as follows:

a. That a destructive fire did occur in building No. 63, November 4, 1920.

b. That at the time of fire said building was being used as a quartermaster storehouse and contained a large amount of miscellaneous Governient stores as well as household effects belonging to officers, field clerks, and enlisted men.

c. That the claimant had private property belonging to him stored in this building at time of fire, and that this property to the extent set forth in claim filed by claimant was destroyed and became a total loss.

d. That in accordance with orders directing change of station of claimant, his property was duly packed and turned over to the quartermaster at Fort Sheridan on October 29, 1920, for shipment, and was being held in storage pending shipping instructions to be sent by claimant when quarters had been secured by him at his new station, viz, Washington, D. C.

e. That only a few days intervened between the time the goods were received in storage, October 29th, and the time they were destroyed by fire, Norember 4th. and determined that property of claimant was in course of transportation on permanent change of station as part of the regulation allowance of baggage amounting to 3,665 pounds; that it was reasonable, appropriate, and necessary in the military service, and its destruction was through no fault or negligence on his part, and that he should be allowed the sum of $1,495.53. This award under the act of March 4, 1921, was accepted by claimant March 7, 1921. The Secretary of War certified, April 2, 1921, as follows:

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