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vided, That hereafter the pay proper of all commissioned officers and enlisted men serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto."
This language has been construed (9 Comp. Dec., 553) as not authorizing the payment of such increased pay to an officer of the Revenue-Cutter Service on duty on board a revenue cutter in Alaskan waters. In that decision it was said:
"The terms of the foregoing proviso, namely, 'serving beyond the limits of the States comprising the Union,' etc., if they stood alone might be regarded as broad enough to include service in the seas of Alaska. But the terms of the appropriation for this increase of pay are serving at foreign stations. As this appropriation was made to provide for the increase of pay authorized by the proviso, I think the terms used therein must be regarded as expressing in different words the meaning of the language used in the proviso, and therefore as defining the intention of Congress to authorize such increase of pay only where the officers were serving at foreign stations."
A similar ruling was made in regard to increased pay of officers and enlisted men of the Marine Corps under the act of March 2, 1901 (31 Stat., 903), in a decision dated April 22, 1902 (8 Comp. Dec., 742). In that case the following definition was given of the term "foreign stations" as used in that
"The general language of the statute granting the above increases in pay proper, to which officers and enlisted men of the Marine Corps are entitled the same as officers and enlisted men of the Army, must be construed in connection with the appropriation to which it was so attached, and when so construed it clearly applies to land service on stations beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto, to which officers and men might be detailed and sent from the United States."
In view of these decisions it must be held that the claimant is not entitled to 10 per cent increase of pay for his services on board the transport, and the Auditor's deduction of such payments received by him is correct.
The case of United States v. Thomas (195 U. S., 418), referred to by claimant's attorneys, is not sufficiently in point
to induce me to overrule the decision of this office above cited, as the claimant in that case was an officer of the Navy, and the court denied his right to the increased pay claimed, on other grounds, without deciding or considering the question here involved.
Upon a revision of the above-described account, I find a difference in favor of the claimant of $166.66, being $233.33, two months' extra pay as captain mounted, less $166.67, one month's extra pay allowed by the Auditor.
REIMBURSEMENT OF AN INSPECTOR OF BOILERS FOR TRAVELING EXPENSES.
A person appointed an inspector of boilers with headquarters at Juneau, Alaska, is not entitled to reimbursement for traveling expenses incurred by him in going from Astoria, Oreg., where he had taken the oath of office, to Juneau, Alaska, his official station, to enter upon the duties of his position.
(Comptroller Tracewell to W. L. Soleau, disbursing clerk, Department of Commerce and Labor, May 16, 1905.)
In your communication of May 8, 1905, you request my decision of a question which you therein present, as follows:
"I inclose herewith voucher in the sum of fifty-eight and five one-hundredths dollars ($58.05), submitted by Frank H. Newhall, local inspector of boilers of steam vessels, SteamboatInspection Service, at Juneau, Alaska, claiming reimbursement for mileage performed by him while traveling from Astoria, Oreg., to Juneau, Alaska.
"Mr. Newhall took the oath of office and entered on duty before reaching his official station, but while within the limits of the first supervising inspector's district, in which his official station is located.
"I will thank you for your decision of the question whether he is entitled to reimbursement for the mileage performed by him while going to Juneau, Alaska.
"Your attention is invited to the accompanying correspondence showing why it was deemed necessary to have Mr. Newhall enter on duty prior to reaching Juneau, Alaska."
Section 4414 of the Revised Statutes, as amended by the acts of March 1, 1895 (28 Stat., 699), and April 21, 1898 (30 Stat., 360), provides that there shall be one inspector of hulls and one inspector of boilers in each of the collection districts
specified therein, including the district of Alaska, and that each shall be entitled to a salary as follows:
"In districts inspecting one hundred steamers and less to a salary of one thousand two hundred dollars per year each.
"In districts inspecting over one hundred and less than one hundred and fifty steamers, to a salary of one thousand five hundred dollars per year each.
"In districts inspecting one hundred and fifty and less than two hundred steamers, to a salary of one thousand eight hundred dollars per year each.
"In districts inspecting two hundred and less than three hundred steamers, to a salary of two thousand dollars per year each.
"In districts inspecting three hundred and less than five hundred steamers, to a salary of two thousand two hundred and fifty dollars per year each.
"In districts inspecting five hundred steamers and upward, to a salary of two thousand five hundred dollars per year each."
The same section, as amended by the act of February 15, 1897 (29 Stat., 530), also provides that these inspectors shall be paid actual and reasonable traveling expenses or mileage at the rate of 5 cents a mile, "incurred in the performance of his duties."
It appears that on March 13, 1905, Mr. Newhall was appointed local inspector of boilers at Juneau, Alaska, at a salary of $1,800 per annum. The mileage claimed by him is for travel performed by him from March 23 to 29, 1905, in proceeding from Astoria, Oreg., to his official station. It is understood that he had not previously been at his official station. In a communication from the Supervising InspectorGeneral of the Steamboat Inspection Service, dated May 3, 1905, which you transmit, he says:
"Mr. Newhall was directed by this office to execute his bond and oath at once and enter upon his duties as local inspector, subject to the orders of the supervising inspector of the first district, for the express purpose of having him qualified to discharge the duties of his office, if the necessity for his official action presented itself while en route to his home port, and was a precaution that was considered by this office as being in the interest of good administration of the service. The instructions of the Supervising Inspector to Mr. Newhall, it is maintained by this office, were, properly, travel orders, and were exactly what was contemplated and designed by the letter to Mr. Newhall."
It is a well-established principle that, ordinarily, where an officer or employee is appointed for the performance of duty at a particular place, or within a specified district, it is his duty to be at the place or within the district where his duties are required to be performed, and that he is not entitled to traveling expenses or mileage for proceeding, upon his appointment, to his place of duty. (4 Comp. Dec., 629; 5 id., 179 and 662.)
The collection district of Alaska comprises the Territory of Alaska only, and I am of opinion that Mr. Newhall, as inspector of boilers of that district, was not lawfully authorized to perform the ordinary duties such as you contemplated might arise.
It does not appear that any necessity arose for his entry upon the duties of his office before he reached Juneau, or that he did perform any official duties before reaching Juneau. If, after arriving within the limits of Alaska, he had actually entered upon the duties of his office before reaching Juneau, a different question would be presented relative to his travel expenses from the point where he entered upon duty to Juneau.
I am therefore of opinion that he is not entitled to reimbursement for the mileage performed.
PAY OF AN OFFICER OF THE ARMY ADVANCED IN RANK AFTER RETIREMENT.
A retired officer of the Army who was placed on the retired list by the President, under the provisions of the act of April 23, 1904, with the rank and retired pay of one grade above that actually held by him at the time of his retirement, became entitled to the pay of the higher grade from the date he was appointed and confirmed to take the higher rank; and where the officer died subsequent to his appointment by the President but prior to the date that his nomination was confirmed by the Senate, his heirs are entitled to the increased pay due him at time of his death.
(Decision by Assistant Comptroller Mitchell, May 16, 1905.)
Ella M. Williams appealed, May 9, 1905, from the action of the Auditor for the War Department in settlement dated January 6, 1905.
She claimed, as widow of Henry R. Williams, pay as captain retired from October 1 to 16, 1904, and the difference
between the pay of a captain and a first lieutenant on the retired list from April 23 to September 30, 1904.
The Auditor allowed the sum of $70, being pay from October 1 to 16, 1904, as first lieutenant retired, and disallowed the claim for pay as captain, as follows:
"As the officer was not placed upon the retired list of the Army with the rank and retired pay of captain by direction of the President, by and with the advice and consent of the Senate, he is not entitled to pay as captain, United States Army retired, under the act of Congress approved April 23, 1904, and therefore the claimant is not entitled to receive the officer's pay at the grade of captain retired to date of the officer's death."
Prior to April 23, 1904, Henry R. Williams was a first lieutenant on the retired list of the Army, of more than twenty years' service, having been retired December 15, 1870, by reason of wounds received in line of duty.
The act of April 23, 1904 (33 Stat., 264), provides:
"That any officer of the Army below the grade of brigadiergeneral, who served with credit as an officer or as an enlisted man in the regular or volunteer forces during the civil war, prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official register of the Army, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service, or on account of age, or after forty years' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Army with the rank and retired pay of one grade above that actually held by him at the time of retirement."
In pursuance of this act Lieutenant Williams was placed upon the retired list as a captain of infantry, with rank from April 23, 1904, by a recess commission issued by the President and dated May 24, 1904. He accepted his appointment May 31, 1904, and died October 16, 1904.
There had been no session of Congress after his appointment and before his death, but on January 9, 1905, he was nominated to the Senate for advancement to the rank of captain, and his nomination was confirmed by the Senate January 14, 1905.
The question of the nature and effect of the action of the President and Senate in cases arising under this act was sub