* *

which transportation has been or should have been furnished: * And provided further, That actual expenses only shall be paid to officers for sea travel when traveling, as herein provided for, to, from, or between our island possessions;"

*
*

Paragraph 1330, Army Regulations of 1895, was as follows:

"When the station of an officer, serving either with or without troops, is changed while he is on leave of absence, he will, on joining his new station, be entitled to travel allowances from the place of receipt of the order to the new station, provided the journey is made without troops and the distance is not greater than that from the old to the new station; but if the distance be greater he will be entitled to travel allowances for a distance equal to that from the old to the new station only. Should it be necessary for such officer to return to his old station before proceeding to the new, authority for such return may be given by the officer who issued the order for the change of station. In such case the order for change of station will carry mileage only from the old to the new station."

In a decision rendered March 17, 1897, by my predecessor (3 Comp. Dec., 425) it appeared that an officer of the Navy was absent from his vessel on a three months' sick leave, and while so absent he received an order requiring him to join a new station. In that case it was held that—

"the rule for computing travel allowances in such cases is that, where an officer is absent on leave from his station and receives an order requiring him to join a new station, he is entitled to travel allowances from the place of the receipt of the order to the new station, provided the distance is not greater than that from the old to the new station. This is the rule in force in the Army. (Army Regulations of 1895, par. 1330.)" On August 10, 1900, it was held by this office (7 Comp. Dec., 78) that

"Where the station of an officer of the Army is changed while he is absent on leave and he is ordered to return to his new station and is not furnished transportation, he is entitled to mileage or to actual expenses for the excess only of the dis tance from the place where the order to return is received to his new station over the distance from such place to his old station." In the above decision it was said

"the rule laid down in paragraph 1330 of the Army Regulations should not be followed in any payments for travel performed after due notice of this decision."

Paragraph 1483, Army Regulations of 1901, following the above decision, provides—

"When the station of an officer, serving either with or without troops, is changed while he is on leave of absence, he will, on joining his new station, be entitled to mileage for the land travel and actual expenses for the sea travel, if any, as provided by existing laws, only for the excess of distance, from the place of the receipt of his order to his new station, over the distance between that place and his old station.”

In the case of Fitzpatrick v. United States (37 Ct. Cl., 332) the facts were that Fitzpatrick, a cadet at Annapolis, received a leave of absence to go to his home in New Orleans; he paid his own traveling expenses there, and, ultimately, on the expiration of his leave, his expenses back to Annapolis; while at New Orleans he was ordered to Philadelphia and placed on duty in the League Island Navy-Yard; when his services were no longer needed at Philadelphia he was ordered back to New Orleans. The accounting officers had refused to allow him. mileage for said travel from New Orleans to Philadelphia, but they had allowed him constructive mileage from Annapolis to Philadelphia. The above suit was to recover mileage for said journey from New Orleans to Philadelphia, less the amount of mileage which he had already received. In that case the court gave claimant judgment for the amount of mileage from New Orleans to Philadelphia, less the amount of mileage from Annapolis to Philadelphia which he had already received.

In the course of the decision the court said:

"These disallowances were made under the decision of the Comptroller of the Treasury (Hodgson's Appeal, Comp. Dec., vol. 3, p. 425) for computing mileage, as follows:

"The rule for computing travel allowances in such cases is that where an officer is absent on leave from his station and receives an order requiring him to join a new station, he is entitled to travel allowances from the place of the receipt of the order to the new station, provided the distance is not greater than that from the old station to the new station.'

"It is manifest that this is a rule which can not be upheld. The last clause, the proviso, stamps it as one which, in common phrase, does not work both ways. Congress has made but one law, that naval officers shall be allowed for traveling expenses when under orders' within the United States 8 cents per mile. Acts 3d March, 1835 (4 Stat. 755); 16th June,

1874 (18 id., p. 72): 30th June, 1876 (19 id., p. 65). The abovequoted rule in effect makes a new enactment of law as regards officers on leave of absence, and the proviso makes this rule operate by two different methods and always adversely to the officer, although the statute contains no proviso or qualification which will prevent its operation from being uniform in all cases.

"It is manifest that such variations of applications can not be sustained under any judicial principle. It comes to this: That if an officer whose home is to the west of his post should be ordered west, the law will operate in one way; if he should be ordered east, the law will operate in another way. Such an application of the law surely never was intended by the legislative power.

"Nevertheless, there is a principle which has long been recognized both by the accounting officers, the departments. and the courts, which is, that the expiration of a leave of absence finds the officer, in legal contemplation, at his post. It necessitates a hard rule, viz, that where an officer's prescribed leave of absence is shortened, perhaps practically destroyed, he likewise loses his traveling expenses, if the public exigency requires his return to duty. The court understands the principle to be too well established to be disregarded or changed. An officer takes his leave of absence at his own risk; it is not granted for the benefit of the Government; if the Government wants his services before his leave expires it must have them, and the officer who takes the risk of that must bear the loss of his personal traveling expenses."

In the case of Edmund Rice v. United States, No. 23194, decided by the Court of Claims January 16, 1905, the court found the facts and decided as its conclusion of law thereon, as follows:

"The claimant, Edmund Rice, now brigadier-general. U. S. Army, retired, while lieutenant-colonel, Second C. S. Infantry, and also holding a commission as colonel, Twentysixth Infantry, U. S. Volunteers, was serving in the Philippine Islands when Special Orders, No. 123, Headquarters of the Philippines, May 12, 1901, were issued, paragraph 2 of which is as follows:

“2. Leave of absence for one month, on surgeon's certificate of disability, to take effect upon arrival in the United States, is granted Col. Edmund Rice, Twenty-sixth Infantry, U. S. Volunteers (lieutenant-colonel, Second U. S. Infantry).

"He arrived in British Columbia on the 3d of July, 1901, on the Canadian Pacific steamer.

"Paragraph 17 of Special Orders, No. 155, issued July 5, 1901, from the Headquarters of the Army, is as follows:

66

17. Lieut. Col. Edmund Rice, Second U. S. Infantry, now on sick leave of absence at Vancouver, British Columbia, will proceed to and take station at Fort Thomas, Ky. The travel enjoined is necessary for the public service.

"By command of Lieutenant-General Miles.'

"Under these orders he traveled from Vancouver, British Columbia, to Fort Thomas, Ky., a distance of 2,582 miles, of which 280 miles was land-grant railroad.

"The claimant was mustered out of the Twenty-sixth U.S. Volunteer Infantry as colonel on May 13, 1901, and resumed his rank of lieutenant-colonel of the Second U. S. Infantry.

"II. AMOUNT OF MILEAGE.

"Mileage between Vancouver, British Columbia, and Fort Thomas, Ky., computed in accordance with the provisions of the act of March 2, 1901 (31 Stat., 901) would amount to one hundred fifty-seven dollars and thirty-six cents ($157.36), for the 2,248 miles which were not land-grant railroad, at seven cents a mile, and eleven dollars and twenty cents ($11.20) for mileage at four cents a mile over 280 miles of land-grant railroad, aggregating one hundred and sixty-eight dollars and fifty-six cents ($168.56).

"CONCLUSIONS OF LAW.

"Upon the foregoing findings of fact, the court decides as conclusion of law that judgment be rendered for claimant in the sum of one hundred and sixty-eight dollars and fifty-six cents ($168.56), under the authority of Fitzpatrick v. The United States, 37 Ct. Cl. 332."

Under the above decisions by the Court of Claims the objections to army regulation 1330 of 1895 would apply equally to army regulation 1483 of 1901. The action by the Auditor in disallowing the above claim is reversed and claimant will be allowed mileage for so much of said travel from Lewistown, Mont., place of receipt of order directing him to change station to Manila, P. 1., as was by land, as provided by said act of March 2, 1901. The land travel distance, viz, from Lewistown, Mont., to San Francisco, Cal., is 1,469 miles; of this, 766 miles is over land-grant road, for which he is only entitled to mileage at 4 cents per mile, amounting to $30.64; for the remaining 703 miles he is entitled to mileage at 7 cents per mile, amounting to $49.21, making total mileage due

claimant, including $6 expenses for sea portion of journey which he received, but was required to refund, eighty-five dollars and eighty-five cents ($85.85), which amount is now allowed.

The decision in 7 Comp. Dec., 78, is overruled.

PER DIEM IN LIEU OF SUBSISTENCE TO INTERNAL-REVENUE AGENT.

An internal-revenue agent is not "traveling on duty" while returning from his home, where he had not been performing duty, to his headquarters; and therefore he is not entitled for such travel to the per diem in lieu of subsistence provided for by the act of March 3, 1885. (Decision by Comptroller Tracewell, March 20, 1905.)

The Auditor of the Treasury Department by settlement dated January 7, 1905, of the account of C. W. Seawell, internal-revenue agent, for expenses and subsistence from October 1 to December 31, 1904, disallowed the sum of $6 per diem in lieu of subsistence on December 4 and 27. The agent by application filed February 27, 1905, requested a revision of his account.

It appears that on December 4 and 27 the agent was at his home in Greenville, Ill., and that he left Greenville for Chicago, his headquarters, on the 4th at 5.20 p. m., and on the 27th at 2.15 p. m. The Commissioner of Internal Revenue disapproved the charges in the agent's account for the reason that he was not on duty on those days. The agent claims that he is entitled to per diem in lieu of subsistence except while actually at his home. In a subsequent communication the agent says:

"I hold that I was on duty; that I was en route from my home to Chicago, my home being in my division."

The act of March 3, 1885 (23 Stat., 404), contains a provision for the compensation of internal-revenue agents at not exceeding $7 per day each, and for per diem in lieu of subsistence "while traveling on duty" at not exceeding $3 per day. I am of opinion that the agent was not traveling on duty while returning to his headquarters from his home, where he had