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each day so served where the service embraces only a fractional part of a month.
This is the natural construction of the language used by Congress, and instead of working hardships it comes nearer paying the person sought to be paid for the actual number of days served than any other construction which could be given the language used.
I am constrained on a reconsideration of this matter to adhere to my former decision.
TRANSPORTATION OF BAGGAGE OF NAVAL ATTACHÉ.
A naval attaché is entitled, for travel under orders outside the limits of the United States in going to his post of duty, to reimbursement of the cost of transporting such baggage as is necessarily required by him in connection with the performance of his duty, but he is not entitled to transportation for his household furniture.
(Assistant Comptroller Mitchell to the Secretary of the Navy, July 21, 1904.)
I have received your letter of the 2d instant, inclosing a communication from Lieut. Commander W. L. Howard, U. S. Navy, in which he requests information as follows:
"Having received preliminary orders as naval attaché to Berlin, Rome, and Vienna, I have the honor to request information as to how much baggage an attaché is allowed when proceeding to his station, and if household furniture is included in the allowance."
You ask my decision on this question.
The act of August 5, 1882 (22 Stat., 286), provides:
"Officers of the Navy traveling abroad under orders hereafter issued shall travel by the most direct route, the occasion. and necessity for such order to be certified by the officer issuing the same, and shall receive, in lieu of the mileage now allowed by law, only their actual and reasonable expenses, certified under their own signatures and approved by the Secretary of the Navy.
Article 1223, Navy Regulations of 1896, provided:
(1) "An allowance for travel performed out of the United States will be paid only upon the order of the Auditor for the Navy Department, to whom the original orders requiring
such travel must be presented. The expenses must be shown by vouchers in the usual form unless the officer certified that it was not practicable to obtain them, in which case his own certificate to a detailed statement of the actual and necessary expenses will be received as sufficient evidence.
* * *
(3) "The amount of baggage for which necessary expenses of transportation may be allowed (sec. 1566, R. S.) shall not exceed five hundred pounds for commanding officers and four hundred pounds for other officers."
Thus stood the law and the regulations relative to officers of the Navy traveling abroad under orders prior to the act of March 3, 1899 (30 Stat., 1007), known as the navy personnel act, section 13 of which provides:
"That, after June thirtieth, eighteen hundred and ninetynine, commissioned officers of the line of the Navy and the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty; but this provision shall not apply to warrant officers commissioned under section twelve of this act: Provided, further, That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places."
Under said act of March 3, 1899, officers of the line and of the Medical and Pay Corps of the Navy became entitled to the same allowances, except forage, as officers of corresponding rank in the Army. Among these allowances was mileage, including transportation of baggage on change of station to which an army officer of corresponding rank was entitled. The act of March 3, 1899, supra, superseded section 1566, Revised Statutes, upon which paragraph 3 of article 1223 of the Navy Regulations, 1896, supra, was based, and also the act of August 5, 1882, supra.
The act of June 7, 1900 (31 Stat., 684), entitled "An act making appropriation for the naval service for the fiscal year ending June thirtieth, nineteen hundred and one, and for other purposes," provides:
"That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive
mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be performed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.”
The question presented is whether a naval officer going to his post of duty abroad as a naval attaché, for travel outside the limits of the United States in North America, is entitled to have his baggage, in addition to the weight transported without extra charge on regular fares by public carriers, transported at public expense, and, if so, the amount of such baggage, and whether household furniture can be included.
The act of June 7, 1900, supra, covers the whole subject of travel by naval officers on public business. It provides what they shall receive for "traveling from point to point within the United States under orders." It provides what they may receive "where orders are given for travel to be performed repeatedly between two or more places in the same vicinity." It provides that "actual expenses only shall be paid for travel under orders outside the limits of the United States in North America."
This act covers all kinds of travel, with reference to places where made, supposed to be performed by naval officers on public business, and prescribes what they shall receive or be paid on account of such travel, and was, in my opinion, intended as a substitute and to supersede all former laws on the same subject.
Under the law as it now exists I am of opinion that Lieutenant-Commander Howard is entitled to be paid for travel under his orders outside the limits of the United States actual expenses only, and that such expenses would include the transportation of such baggage as is necessarily required by him in connection with the performance of the duty to which he is assigned, and the character and amount of such articles is a matter primarily for the exercise of the judgment and discretion of the Secretary of the Navy. Unless such articles are necessarily required by the officer in connection with the performance of the duty to which he is assigned, I am of opinion there is no authority of law for their transportation
at public expense. I do not think there is any authority of law for the transportation of the officer's household furniture at public expense.
The matter is the subject of regulation, within the said act of June 7, 1900, by the Navy Department. Paragraphs 3 and 4 of article 1229, of the Navy Regulations, 1900, as amended by General Orders, No. 3, of 1900, and No. 52, of 1901, provide:
"(3) The amount of baggage for which necessary expenses or transportation may be allowed such officers when traveling abroad under orders to or upon detachment from sea duty, shall not exceed eight hundred pounds for flag officers, five hundred pounds for officers of command rank, four hundred pounds for other commissioned officers, and two hundred and fifty pounds for officers not commissioned.
"(4) Officers transferred to or between shore stations beyond the continental limits of the United States, or returning home from such stations, may, in the discretion of the Secretary of the Navy, be allowed transportation of baggage at public expense in excess of the quantities prescribed in paragraph 3."
If the Secretary of the Navy in his judgment thinks the amount of baggage of an officer authorized by the above regulation to be transported at public expense does not exceed the amount necessarily required by the officer in connection with the performance of this duty, which may be assigned to him in view of the difficulty of determining in each case what articles of an officer traveling abroad are necessary in connection with his duties, I see no legal objections to said regulations and their application to the case under consideration. Otherwise I am of opinion the said regulations should be amended to conform to the views stated above.
FEES OF UNITED STATES COMMISSIONERS.
United States commissioners are not entitled to fees for entering returns on unexecuted warrants.
United States commissioners are not entitled to fees for transcripts of proceedings in cases wherein defendants have not been arrested, unless they are required, specifically or by necessary implication, by rule or order of court.
Under section 727, Revised Statutes, commissioners have jurisdiction to
bind over to keep the peace in conformity to the statutes of the State in which the threatened breach occurs, and for such services they are entitled to fees, including per diems, to be paid in the same manner as in other criminal proceedings, unless the State statutes provide a different mode of payment.
(Decision by Comptroller Tracewell, July 22, 1904.)
The Auditor for the State and other Departments, in settling the account of Gustavus E. Matile, United States commissioner, eastern district of Wisconsin, for the quarter ending June 30, 1903, made, per certificate dated February 26, 1904, certain disallowances from which the commissioner, June 29, 1904, appealed.
The following are the disallowances referred to:
1. Charges for entering returns on seven unexecuted warrants of arrest issued in that number of cases.
2. Charges for transcripts in said seven cases, in which no proceedings were had except as above indicated
3. Charges for per diems (May 12 and 19, $10); oaths to witnesses as to attendance (15 cents), and transcript of proceedings (60 cents), in the case against Edward Stevens, an Oneida Indian, charged on the oath of Lucy Smith, also an Oneida Indian, with threats to commit a breach of the peace, etc.. After his application for this revision had been prepared and signed, claimant read in "Instructions to United States commissioners," issued by the Department of Justice April 1, 1904, that "no fee is allowed for entering returns on warrants of arrest when such warrants are not executed" (Wirt's case, 2 Comp. Dec., 70), and he, therefore, in a marginal note, withdrew all objections to the disallowance set out in item 1, supra. This disallowance is in accord with the practice of the accounting offiers and is affirmed.
The charge for transcripts is more difficult of solution. The only rule upon the subject reads as follows:
"After the close of each examination the commissioner shall forward to the clerk of the United States district court for the proper district all the papers in the case, with a proper transcript of the proceedings, in which he shall schedule the papers forwarded."
The clause of the fee bill, section 21, act of May 28, 1896 (29 Stat., 184), under which these fees are claimed, provides: "transcripts of proceedings, when required by order of court, and transmission of original papers to court, sixty cents."
It will be observed that the rule or order quoted requires