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Where a branch of the civil service of the Government under the supervision of an executive department may properly be regarded as a distinct and independent office such as a post office, pension agency, customhouse, ordnance establishment, subtreasury, navy yard, or quartermaster establishment, it is not in the department within the act of June 22, 1906, 34 Stat., 449, relative to the transfer of employees from one department to another; but clerks and employees not in any such independent offices and under the immediate control of the several departments are covered by the statute although usually or invariably away from the seat of Government. See also 26 Op. Atty. Gen., 254.
Assuming that the rule as thus announced with reference to the act of June 22, 1906, may be applied also in determining whether employees of a given field service are employees in an executive department within the meaning of section 7 of the act of March 15, 1898, 30 Stat., 316, there would appear to be no doubt that the employees now in question, who are field-service employees in the Bureau of Agricultural Economics, which is a bureau of the Department of Agriculture, created under authority of the act of May 11, 1922, 42 Stat., 531, and which superseded the Bureau of Markets, Bureau of Markets and Crop Estimates, and the Office of Farm Management and Farm Economics, are employees in the Department of Agriculture although permanently stationed away from the seat of Government. Their status in this respect is essentially different from that of employees in post offices, customhouses, ordnance establishments, navy yards, etc.
It is understood that the compensation of grain supervisors and grain samplers has been fixed on an annual basis ever since such positions were first created in the Department of Agriculture. If it has become necessary or desirable to change the appointments of these employees so as to provide for compensation on a daily and hourly basis as proposed, specific statutory authority therefor should be obtained
The decision of August 5, 1922, is adhered to.
TRAVELING EXPENSES—TEMPORARY EMPLOYEES OF VETERANS
Orders issued to a physician not regularly employed in the Government service
to perform official travel for the purpose of examining certain beneficiaries of the Veterans' Bureau for a prescribed fee for each examination constitute him for the period covered by the travel and examinations a person “holling appointment or employment” under the United States, and as such limited by the act of March 3, 1875, 18 Stat., 452, and act of April 6, 1914, 28 Stat., 318, to reimbursement for actual expenses of transportation and subsistence.
Decision by Comptroller General McCarl, June 26, 1923.
The Director of the United States Veterans' Bureau requested, June 1, 1923, review of settlement W-157218, dated December 27, 1922, allowing Dr. J. S. DeJarnette no more than $16.07 as reimbursement of actual expenses of railway fare and subsistence on November 15 and 16, 1921, when he went a distance of 246 miles, under orders dated September 9, 1921, as amended November 12, 1921, from Staunton, Va., to Marlinton, W. Va., to examine Harlie B. Gardner, and from thence to Elkins, W. Va., to examine J. B. Ward, two former soldiers and patients of the Veterans' Bureau.
Doctor DeJarnette appears to have been serving, September 9, 1921, as superintendent of the Virginia Western State Hospital at Staunton, Va., from which Harlie B. Gardner had been furloughed continuously since February 3, 1920, when special letter No. 7939 was issued by the United States Veterans' Bureau district manager for the fourth district directing the doctor
to proceed from Staunton, Virginia, to Marlinton, West Virginia, for the purpose of examining Harlie B. Gardner, C-273837 NP. While on this duty you will be allowed the regular fee of $5 for examination and, in addition to this, $1 per mile one way for this trip.
The order was not complied with immediately, and on November 9, 1921, the district manager telegraphed him whether he could not also examine J. B. Ward at Elkins, W. Va. It was arranged, November 12, 1921, that Ward should meet him four days later at a hotel in Elkins, W. Va., for examination. Gardner was examined at Marlinton on November 15, and Ward the next day at Elkins. The distance from Staunton to Marlinton appears to be 161 miles and from Marlinton to Elkins 85 miles. The examination fees appear to have been paid by disbursing officers, and an approved voucher for $246 as mileage at the rate of $1 a mile, one way, was forwarded to the General Accounting Office for settlement. Government transportation requests were used for a part of the journey, and in the settlement of which review is requested an allowance of $12.70 was made as reimbursement for the cost of transportation for the remainder of the travel, and $4 was allowed as actual expenses for subsistence and lodging while on the journey.
The precise question presented by the record for decision is whether Doctor DeJarnette during the two days in question was an officer or employee of the United States within the inhibition contained in the act of March 3, 1875, 18 Stat., 452:
That hereafter only actual traveling expenses shall be allowed to any person holding employment or appo'ntment under the United States * *; and all allowances for mileage and transportation in excess of the amount actually
are hereby declared illegal; and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision.
Doctor DeJarnette is referred to in the travel order as an "examiner,” but it is reported that he was neither on full nor part time selary during the two days he was engaged in making the two examinations. While the order directed him to make the examination and stated that he would be allowed an examination fee of $5 and “$1 per mile for one way this trip,” he was pro hac vice“holding appointment or employment under the United States” within the meaning of the act of March 3, 1875; 4 Comp. Dec., 696; 8 id., 235; 26 id., 547; 27 id., 807. Therefore Doctor DeJarnette is not entitled to receive mileage at the rate of 50¢ per mile each way, or $1 a mile one way, for this trip, a sum of $246 and largely in excess of the actual and necessary expenses for the journey.
He was allowed reimbursement of the cost of transportation and, under the act of April 6, 1914, 38 Stat., 318, actual expenses of subsistence, and there is nothing further due by reason of transportation or subsistence expenses for this journey. The settlement is affirmed.
APPROPRIATIONS-AVAILABILITY BEYOND FISCAL YEAR
The appropriation made by the act of May 24, 1922, 42 Stat., 568, for addition
to the heating and power plant at the Indian school known as the Haskell Institute, is not within the classes of appropriations designated by the act of August 24, 1912, 37 Stat., 487, amended by act of March 3, 1919, 40 Stat., 1309, as permanent or indefinite, and, as it contains no specific provision extending its availability, it will not be available for expenditure after June 30, 1923, except to the extent properly obligated on or before
said date. Comptroller General McCarl to the Secretary of the Interior, June 26, 1923.
I have your letter of June 18, 1923, requesting decision whether the unexpended balance of the appropriation made in the act of May 24, 1922, 42 Stat., 568, for addition to heating and power plant at the Indian school known as Haskell Institute may be obligated and expended after June 30, 1923.
The act in which the appropriation in question is made is a regular annual appropriation act entitled, “An Act making appropriations for the Department of the Interior for the fiscal year ending June 30, 1923, and for other purposes,” and the appropriation is in the following terms:
For support and education of seven hundred and fifty Indian pupils at the Indian school, Haskell Institute, Lawrence, Kansas, and for pay of superintendents, $150,000; for general repairs and improvements, $14,000; for addition to heating and power plant, $20,000, to be immediately available; in all $184,000.
Section 7 of the act of August 24, 1912, 37 Stat., 487, as amended by section 6 of the act of March 3, 1919, 40 Stat., 1309, provides that no specific appropriation made in any regular annual appropriation act shall be construed to be permanent or available continuously
without reference to a fiscal year unless it applies to one of the following four classes: “Rivers and harbors,” “lighthouses,” “public buildings,” and “pay of Navy and Marine Corps,” or unless it is made in terms expressly providing that it shall continue available beyond the fiscal year for which the appropriation act in which it is contained makes provision.
The appropriation now in question does not belong to any of the four classes specifically referred to in the preceding paragraph (see decisions of February 17 and March 21, 1922, 1 Comp. Gen., 435 and 532, to you relative to an appropriation for certain repairs and improvements to the Patent Office Building) and it is not made in terms expressly providing that it shall continue available beyond the fiscal year for which the appropriation act in which it is contained makes provision. Therefore, it must be held that such appropriation will not be available for expenditure subsequent to June 30, 1923, except for the payment of obligations properly incurred on or before said date.
The fact that the appropriation in question was expressly made simmediately available" without being made available until expended is a further indication that it was intended to be available only for payment of obligations incurred prior to July 1, 1923. See also the provision for Haskell Institute for the fiscal year 1922, act of March 3, 1921, 41 Stat., 1235, in which an appropriation for repairs and construction of drain, ditches, and dikes was expressly made available immediately and to continue available until expended.
The question submitted is answered in the negative.
JUDGMENTS AGAINST INTERNAL-REVENUE COLLECTORS.
A judgment against an internal-revenue collector by reason of anything done
in the performance of his official duty, but not involving the refund of taxes, is not payable from the annual appropriation made for refunding taxes; but payment being authorized by section 3220, Revised Statutes, as amended, it is a proper claim for consideration by the General Accounting Office and may be allowed and certified, the amount thereof to be reported
by the Secretary of the Treasury to Congress as a certified claim. Comptroller General McCarl to the Secretary of the Treasury, June 26, 1923.
I have your letter of April 28, 1923, relative to the proper appropriation available for the amount of settlement T-5667, this office, dated March 21, 1923, whereby was allowed the clerk of the United States District Court for the Northern District of Georgia the sum of $23.60, representing payment in full for court costs assessed against J. T. Rose, collector of internal revenue for the district of Georgia, in connection with the case of J. W. Crawford and W. A. Starnes, as per order of the court dated July 20, 1922.
The certificate of settlement designates the appropriation “Payment of judgments against internal-revenue officers (certified claims)" to be reported to Congress for appropriation.
This office, in decision of February 14, 1923, 2 Comp. Gen., 501, held that refunds of taxes pursuant to judgments rendered by competent courts, including costs, are properly payable from the annual appropriations now provided by Congress, obviating the necessity of certification to Congress for an appropriation for payment of each individual judgment with costs. You direct attention also to the reenactment of section 3220, Revised Statutes, as amended, 42 Stat., 314, particularly emphasizing the authority granted the Commissioner of Internal Revenue to pay “all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, agent, or inspector in any suit brought against him by reason of anything done in the performance of his official duty."
The allowance by the settlement in the present case has nothing to do with refund of internal-revenue taxes, but represents the court costs assessed against a collector of internal revenue in a suit brought by two physicians to compel the collector, by writ of mandamus, to issue special narcotic tax stamps to the plaintiffs as practitioners, under the narcotic act of December 17, 1914, 38 Stat., 785. Your submission involves the question whether the amount of court costs in suits against internal-revenue officers in cases involving internalrevenue laws, other than the refund of taxes, may properly be paid from the annual appropriations for refund of taxes, rather than from the appropriation made through certified claims, to obviate the necessity of certification to Congress, in the same manner as judg. ments for tax refunds are paid.
Section 3220, Revised Statutes, as originally enacted, and as reenacted November 23, 1921, 42 Stat., 314, in effect authorized the Commissioner of Internal Revenue to do three separate things, viz, first, to remit, refund, and pay back taxes determined to have been illegally collected by his office; second, to repay to any collector amounts recovered against him representing taxes determined by a competent court to have been illegally collected, with costs of the suit; and third, to repay to an internal-revenue officer the amount of all damages and costs recovered against him “in any suit brought against him by reason of anything done in the performance of his official duty."
The present case falls under the third clause or division of authority thus set forth.
Section 3689, Revised Statutes, provided annual appropriations indefinite in amount, for payment of refund of taxes determined by the Commissioner of Internal Revenue under the first division of authority in section 3220, Revised Statụtes. These appropriations