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If this language does not authorize the procurement of sites for approaches to this bridge, when read in the light of the estimates upon which it is made, followed by an appropriation adequate thereto, it strikes me that it would be exceedingly difficult to use any general language which would accomplish this result.
If authority to purchase lands on account of the Government is not therein granted for sites for the approaches to this bridge, it follows that such authority can only be granted by the use of words specifically authorizing in terms the purchase of lands. There has been no such holding as to these statutes by either this office, the courts, or the Attorney-General, and I assume no such holding can or will be made.
If the language used clearly shows the intent of Congress that the appropriation made is intended to be used in the purchase of lands on account of the Government, they should be so used to accomplish the purpose for which the appropriation is made, and when so used this use is not in violation of said section 3736.
I have the honor, therefore, to advise you that in my opinion the appropriation carried in the act of April 27, 1904, may be used for the purchase of lands for the site for the approaches of said bridge as set out in the estimates hereinbefore quoted.
FORFEITURE BY AN ENLISTED MAN OF THE NAVY OF HIS RIGHT TO REIMBURSEMENT FOR LOSS OF PERSONAL PROPERTY.
The right of an enlisted man of the Navy to reimbursement for personal property lost in the wreck of the steamship Leyden was forfeited by his subsequent desertion.
(Decision by Comptroller Tracewell, September 17, 1904.)
The Secretary of the Treasury, under date of August 30, 1904, referred to this office the certificate of settlement, dated January 4, 1904, by the Auditor for the Navy Department, of the account of Michael Shields, fireman, first class, U. S. Navy, and directed a reexamination of the same account by authority of section 8 of the act of July 31, 1894 (28 Stat., 207).
The Auditor in the settlement referred to found, under the act of March 2, 1895 (28 Stat., 962), $57.04 due Michael Shields, the claimant, for reimbursement for personal property lost in the wreck of the U. S. S. Leyden January, 1903.
Navy settlement warrant No. 4763, dated March 2, 1904, for $57.04, was mailed to the claimant and returned, and information was furnished that the said Michael Shields deserted from the U. S. S. Bainbridge June 5, 1903.
In reply to an inquiry by the Auditor, the Navy Department, under date of July 29, 1904, reported that the said Michael Shields had not returned to service after his desertion on June 5, 1903.
Desertion forfeits all pay and allowances due at the date of desertion.
In the case of United States v. Landers (92 U. S., 77), the Supreme Court said:
"Under the term 'allowances,' everything was embraced which could be recovered from the Government by the soldier in consideration of his enlistment and services, except the stipulated monthly compensation designated as pay."
Tapia v. The United States (16 Ct. Cl., 561) was a claim, by an enlisted man who had deserted, for reimbursement of loss of a horse under the act of March 3, 1849 (9 Stat., 414), in the decision of which the court said:
"Technically his case may come within the very letter of the act of 1849, but that act expresses only a part of the soldier's compact. It and all other statutes for his benefit are based on the supposition of his faithful service, and it would be a monstrous perversion of their purpose to hold that they could be used to encourage desertion or recompense deserters. "As was said by the Supreme Court in Landers' Case (92 U. S., 77):
"Forfeiture of pay and allowances up to the time of desertion follows from the conditions of the contract of enlistment, which is for faithful service. The contract is an entirety, and if service for any portion of the time is criminally omitted, the pay and allowances for faithful service are not earned. And for the purpose of determining the rights of the soldier to receive pay and allowances for past services the fact of desertion need not be established by the findings of a courtmartial; it is sufficient to justify a withholding of the moneys that the fact appears upon the muster rolls of his company.
I am of opinion that under the rulings in the cases quoted from, supra, Michael Shields by his act of desertion on June 5, 1903, forfeited the amount which he was otherwise entitled to for reimbursement of personal losses under the act of March 2, 1895 (28 Stat., 962).
Upon a reexamination of the account, I decide that nothing is due him, and find a difference from the Auditor's settlement No. 46219 of $57.04 in favor of the United States.
PER DIEM IN LIEU OF SUBSISTENCE DURING SICKNESS.
A clerk in the Census Office who was detailed to field work in accordance with the provisions of section 10 of the act of March 6, 1902, and who was authorized to receive a per diem in lieu of subsistence "during necessary absence from place of residence" is not entitled to receive such allowance where he fails on account of sickness to perform service for a substantial period of time.
(Comptroller Tracewell to John W. Langley, disbursing clerk, Census Office, September 19, 1904.)
I have received your communication of the 24th instant, requesting my decision on the question as to whether you are authorized to pay the claim of James D. Boyle, a clerk in the Census Bureau, for $3 per day in lieu of subsistence, while detailed for field duty at Buffalo, N. Y., which is his legal residence, from August 10 to 25, 1903, inclusive, and from September 14 to 22, 1903, inclusive, during which time he was unable to work because of illness.
Section 10 of the act of March 6, 1902 (32 Stat., 53), provides:
"That the special agents appointed under the provisions of this act
shall receive compensation at rates to be fixed by the Director of the Census: Provided, That the same shall in no case exceed six dollars per day and actual and necessary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from their usual place of residence And provided further: That the Director of the Census is hereby authorized in his discretion to employ the clerical force of the Census Office for such field work as may be required to carry
out the provisions of sections seven, eight, and nine in lieu of employing special agents for that purpose; and such employees when so employed shall be allowed, in addition to their regular compensation, actual and necessary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from the Census Office."
Mr. Boyle was performing service under the following detail:
"In order to collect the statistics provided for by the census law, you are hereby authorized and directed to visit such places in New York as may be necessary to enable you to comply with your instructions.
"Your actual and necessary traveling expenses and an allowance, in lieu of subsistence, of $3 per diem, during your absence from Washington, will be reimbursed you upon presentation of proper voucher, to the disbursing clerk of this Bureau.”
It is understood from your statement that Mr. Boyle's instructions required him to be at Buffalo, his legal residence, during the period covered by the voucher, and that he was at his home during the time that he was sick.
The official station of Mr. Boyle is the Census Office, made so by the act of March 6, 1902, supra, and this is his official or fixed residence (5 Comp. Dec., 592). His legal residence or home is Buffalo, N. Y.
The difficulty met with in this case is from the peculiar and general language of the statute providing for a per diem allowance to clerks detailed for field service from the clerical service of the Census Office, namely, "actual and necessary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from the Census Office."
The rights and obligations of these detailed clerks are thus fixed by law, and our only duty is to ascertain what Congress meant when it declared that they should be allowed a per diem of not to exceed $3 per day during their necessary absence from the Census Office on such detail to field duty.
Congress is usually more guarded and specific in its language relative to the traveling expenses of Government employees and provides that they shall be reimbursed for the same only when actually engaged in the field in the service in which employed, and that they shall not be reimbursed for
expenses incurred at their homes either in the form of actual traveling expenses or commutation thereof.
By strong implication the act in question prohibits the allowance of traveling expenses in the shape of subsistence to a special agent while at his place of residence, even if engaged in field duties thereat.
It has been repeatedly held by this office, no statute prohibiting, that a field employee who is engaged in field work at his place of residence, his home or place of residence being a part of his field, is entitled to reimbursement for his actual traveling expenses, or the per diem in lieu thereof, when so engaged in traveling at his home or place of residence.
There is no prohibition in the law governing this case against reimbursing clerks in your bureau for traveling expenses while engaged in field work at their homes away from Washington, where they receive no travel allowance. Therefore the mere fact that Mr. Boyle was engaged at field work at the place of his legal residence at Buffalo is no reason for withholding the per diem during the period covered by the voucher.
This leaves then the serious question raised by your inquiry, namely, is he entitled under the law, supra, to be paid his per diem for subsistence while sick, as disclosed in the voucher, and presumably not performing any duty for the Government during said time?
If the language used in the decision of this office under date of June 3, 1903, and quoted in your letter, is to be understood in its broadest sense, and, thus broadly understood, correctly states the law, I would have not the slightest difficulty in answering your question in the affirmative, and directing you to pay Mr. Boyle the per diems for the period in question.
But I am fearful that I used language in that decision capable of a broader meaning than I intended. On reflection it can not be successfully contended that a clerk in the Census Bureau who is detailed to field work and permanently incapacitated to do the work for which he was detailed, or who, while on such detail, applied for and was granted either his sick or annual leave and entered thereupon, could be held to be entitled under such circumstances to his per diem during said time.
On the contrary, Congress, in the use of this language pro