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vested with discretion to determine and direct between what particular places "actual and necessary expenses only shall be allowed." (Willits v. United States, 38 Ct. Cl., 535; Peterson v. United States, No. 24862, decided by Court of Claims May 18, 1905.)

The orders of June 11 and July 16, 1903, under which reimbursement of expenses of travel is claimed, read:

"NAVY DEPARTMENT, "Washington, June 11, 1903.

"SIR: Having been appointed a member of a board on changes on the U. S. S. Dubuque, building at the works of the Gas Engine and Power Company, Morris Heights, N. Y., you will report by letter to Naval Constructor John F. Hanscom, U. S. Navy, senior member of the board, for this duty.

"You are authorized to perform such travel between the navy-yard, New York, N. Y., and Morris Heights, N. Y., as may be necessary for the performance of this duty, keeping a memorandum of expenses incurred, certifying to its necessity, and submitting the same to the Department from time to time for its approval, in accordance with the provisions of Special Order No. 25, dated June 9, 1902. Mileage will not be allowed for travel performed under these orders. "This is in addition to your present duties.

"Respectfully,

"W. H. MOODY, Secretary."

"NAVY DEPARTMENT, "Washington, July 16, 1903.

"SIR: Having been appointed a member of a board on changes on gunboat No. 18, the Paducah, building at the works of the Gas Engine and Power Company and Charles L. Seabury Company, Consolidated, Morris Heights, N. Y., you will report by letter to Naval Constructor John F. Hanscom, U. S. Navy, senior member of this board, for this duty.

"You are authorized to perform such travel between New York, N. Y., and Morris Heights, N. Y., as may be necessary for the performance of this duty, keeping a memorandum of expenses incurred, certifying to its necessity, and submitting the same to the Department from time to time for its approval, in accordance with the provisions of Special Order No. 25, dated June 9, 1902. Mileage will not be allowed for travel performed under these orders. "This is in addition to your present duties.

"Respectfully,

"W. H. MOODY, Secretary." Said orders indicate that the travel performed in this instance was repeated travel; and the statement contained in

each to the effect that "mileage will not be allowed for travel performed under these orders" amounts in my opinion to a direction on the part of the Secretary that "actual and necessary expenses only" shall be allowed therefor.

Claimant's station at this time appears to have been the navy-yard, New York. By the above orders he was required to perform duty at Morris Heights, N. Y., as a member of a board on changes, in addition to the duty which might be required of him at his station at the navy-yard, New York. The travel, therefore, performed in going from New York, N. Y., to Morris Heights, N. Y., and in returning from Morris Heights to New York was travel incident to the performance of added duties at Morris Heights rather than travel incident to the performance of scattered duties pertaining to his station at the navy-yard, and is travel which would have entitled him to mileage had the Secretary not exercised his discretion of allowing him actual and necessary expenses therefor. (MS. Dec., In re Wilson, May 12, 1905; 21 MS. Dec., 1148; 6 Comp. Dec., 164; Steele v. United States, 30 Ct. Cl., 7.)

The Secretary having so exercised his discretion claimant is under the above law entitled to be reimbursed for whatever actual and necessary expenses were incurred by him in the proper performance of the additional duty required of him under said orders, said expense being an expense in addition to that which he was required to incur by reason of the performance of his duties at his headquarters.

As to whether said expense was actually incurred, the necessity therefor, and whether by reason of the performance of the particular duties required by the above orders, are questions of fact.

At the time this travel was performed no order or regulation had been promulgated by the Department concerning the incurrence by officers of actual and necessary expenses of travel, but, in each individual instance, the Department exercised its discretion in approving or disapproving the items therefor as presented to it. In this instance the item in question was disapproved because "meal in vicinity of headquar ters." If, however, the expense was incurred by reason of the performance of the duties required by his orders, and not by reason of the performance of the duties attached to his

station, whether it was or was not in the vicinity of his headquarters, is not in my opinion material.

Claimant by way of explanation states:

"I am quartered in building No. 35 of the navy-yard, and the duty in question involved leaving the navy-yard about 8.30 a. m., taking an electric car thirty-five minutes, elevated train twenty minutes, steam train about thirty minutes. The duty involved my remaining at Morris Heights past the middle of the day, and as it was manifestly impossible to return to my quarters for a meal, I consider that I am entitled to the amount expended for one.'

Accepting the above statement as correct, it follows that the expense was actually incurred, was reasonably necessary, and was in the performance of the additional duty required of him under the above orders.

The amount claimed in this case-85 cents for luncheon-is not deemed excessive, and, being the only item in question, is now allowed upon the evidence presented.

COMPENSATION OF DEPUTY MARSHAL FOR SERVING MOTION TO DISMISS OR AFFIRM.

A motion to dismiss or affirm is not a writ, within the meaning of section 829, Revised Statutes, and therefore a deputy marshal is not entitled to compensation for serving same.

(Acting Comptroller Mitchell to C. D. MacDougall, marshal, June 10, 1905.)

I have received your letter of the 26th ultimo, as follows:

"I would respectfully request your decision as to whether a "motion to dismiss or affirm constitutes a writ within the purview of section 829 of the Revised Statutes, and for the service of which a field deputy marshal is entitled to the usual fee for executing writs, namely, $2.

"The facts, as I understand them, constituting the basis for this proposed decision, are as follows:

"George E. Green, of Binghamton, N. Y., who was indicted at Washington for conspiracy to defraud the Government, was directed by Hon. George W. Ray, district judge, to appear at that place and stand trial upon his indictment. From this order he appealed to the Supreme Court of the United States, and out of that appeal springs this motion to dismiss, which was forwarded by the Attorney-General to

District Attorney Curtiss, Binghamton, N. Y., with instructions to serve upon Green. He, in turn, delivered the same to my resident deputy at that place, who executed the document, as is shown by his affidavit of services, a copy of which is herewith inclosed. The deputy charges $2 for serving the writ and 6 cents mileage for travel in going to serve, and your decision is requested to decide whether he is entitled to the same or not.

"The question has already been submitted to the AttorneyGeneral, who instructed me to present the facts to you for a decision."

To come within the purview of clause 1, section 829, of the Revised Statutes, a writ must be one

"issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law (a marshal) or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to its progress, and requiring the performance of a specified act, or giving authority and commission to have it done." (Black's Law Dictionary.)

Section 911 of the Revised Statutes provides that—

"All writs and processes issuing from the courts of the United States should be under the seal of the court from which they issue, and shall be signed by the clerk thereof." (See 7 Comp. Dec., 109.)

There is no pretense that the paper for the service of which fees are claimed was issued by the court under the seal thereof or signed by the clerk.

In the case of United States v. Shields (153 U. S., 88-91) it is declared that

"Fees allowed to public officers are matters of strict law, depending on the very provisions of the statute. They are not open to equitable construction by the courts nor to any discretionary action on the part of the officials."

The motion to dismiss or affirm not being a writ within the meaning of the statute, and there being no specific fee provided for the service thereof, it becomes immaterial to consider the question whether its service under the circumstances stated by you was a legal one or not.

The fact that instructions were given by the AttorneyGeneral, through the United States attorney, to serve the motion in question does not authorize the payment for such

service by the United States in the absence of a provision of law for such payment.

This was the ground taken in the case of United States v. Patterson (150 U. S., 65) on an appeal by the United States from a judgment of the Court of Claims in favor of a United States commissioner in North Carolina for services rendered and claimed under section 847, Revised Statutes, for services performed in consonance with the State statutes and the practice of committing magistrates of that State. (Sec. 1014, Rev. Stat.)

In this case the court, by Mr. Justice Brewer, said (p. 68):

"The inquiry is never limited to the fact or character of the services, but always extends to the statutory authority for compensation; the latter being wanting, no recovery can be had."

Whether the service in the case presented by you is in accordance with the laws of New York or not is therefore immaterial.

Under the law cited, and the general practice of the accounting officers, the deputy is not entitled to any fee for the service of the motion in question, and you are not authorized to pay the same.

DELEGATION OF AUTHORITY TO APPROVE
VOUCHERS.

The duty imposed by the Isthmian Canal Commission on the chief engineer of the department of canal construction of approving vouchers for expenditures made by that department on the Isthmus of Panama must be performed by him personally, and can not be by him delegated to anyone else. (Comptroller Tracewell to George C. Schafer, disbursing officer, Isthmian Canal Commission, June 13, 1905.)

I am in receipt of your letter of the 29th ultimo, as follows: "At a meeting of the executive committee of the Isthmian Canal Commission held on May 24 last, it was 'Resolved, That all vouchers covering expenditures on the Isthmus in the department of canal construction shall be approved by the Commissioner who is the head of that department' (the chief engineer).

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