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to be presumed that Congress intended that a soldier who had served faithfully thirty years and earned his retirement would be retired thousands of miles from his home and left without provision made for his returning thereto without expense to him if he so desired. The Secretary of War evidently did not so understand the act, and I am of the opinion that the construction given to it by him and under which it has been enforced for nearly twenty years should not now be disturbed. (U. S. v. Sweet, 189 U. S., 471.)
While the Auditor does not say so, his holding that a soldier on the retired list is not entitled to commutation of rations. while traveling to his home as a retired soldier," is probably based upon the theory that he is no longer a part of the Army, and further, that under the act of March 16, 1896, supra, all such allowances are commuted in connection with clothing at $9.50 per month.
The ordinary commuted value of a ration at the time of the passage of this act was 30 cents, and doubtless this was the basis used in calculating the allowance of $9.50 per month by that act, but if the value of a ration should become $1 each this sum could not be increased because the act granting the $9.50 per month in lieu of clothing and subsistence operates to repeal pro tanto all statutes by which three-fourths of the allowances to a soldier on the active list can be paid to a soldier on the retired list. Whatever it may be called, he is required to take the increase in his pay as a substitute for all allowances for subsistence and clothing.
The subsistence referred to in said act is, however, clearly limited to the ordinary subsistence and has no reference to subsistence while traveling under orders properly issued. Such subsistence is a part of his traveling expenses as distinguished from his retired pay made up of three-fourths of the pay proper of a soldier on the active list of like grade and the $9.50 granted in lieu of the allowances that were formerly made for clothing and subsistence.
For this reason I am of the opinion that the Secretary of War was authorized to provide by regulation for subsisting a soldier placed on the retired list away from his home or place of enlistment or to pay him commutation of travel rations where it is impracticable to provide such subsistence in kind
for the time necessary for him to return home, notwithstanding anything contained in the act of March 16, 1896.
For the reasons given, the holding of the Auditor that a soldier placed on the retired list is not entitled to commutation of rations while traveling to his home is not approved.
His action in disallowing this claim is, however, approved for the reason that the facts show that this soldier was subsisted in kind for a part of the seventy-seven days he was traveling to his home and has been paid commutation of travel rations for the remainder of the time.
A report on this claim, from the Paymaster-General, U. S. Army, made May 24, 1904, shows that he deducted $17.33 from the retired pay of the claimant for the month of April, 1904, being for the commuted value of 77 rations, at 22 cents per day, for seventy-seven days, during which he was subsisted in kind or paid commutation of travel rations, on the theory that while he was being so subsisted he was not entitled to that part of $9.50 paid in lieu of subsistence under the act of March 16, 1896. This deduction was not made until subsequent to the action by the Auditor on this claim, and was not therefore before him and can not now be settled by me in this revision.
The action of the Auditor is approved for the reason given herein and not for the reason given by him.
COMPUTING PAYMENTS OF SALARY FOR A FRACTIONAL PART OF A MONTH.
Under the provision in section 4 of the act of April 28, 1904, for computing payments of annual or monthly compensation, where a surfman in the Life-Saving Service performed service twenty-eight days in a thirty-one day month, and a substitute took his place during the remaining three days of the month, the regular surfman is entitled to twenty-seven thirtieths of the monthly compensation and the substitute to three-thirtieths thereof.
(Comptroller Tracewell to the Secretary of the Treasury, August 10, 1904.)
In your communication of August 1, 1904, you request my decision of a question which you present therein as follows:
"The district superintendents of the Life-Saving Service, who are the disbursing officers of their respective districts,
are experiencing difficulty in applying Department Circular No. 46 of 1904, relative to the payment of salaries and compensation under section 4, of the act making appropriations for the sundry civil expenses of the Government for the fiscal year ending June 30, 1905, and for other purposes, to the payment of surfmen and their substitutes for services in a thirty-one day month. Similar trouble will arise in making payment for February, a twenty-eight day month, or in leap year, a twenty-nine day month.
"Under existing law surfmen in the Life-Saving Service are entitled to pay at the rate of $65 per month, each, during the period of actual employment. It is very important that the life-saving stations be fully manned at all times during the active season, and with this in view the regulations of the Service require that whenever a regular surfman is absent for any cause, or there is a vacancy in the crew, a substitute or temporary surfman shall be engaged. The regular surfman loses his pay while absent and the substitute is to be paid for the time he actually serves. It is in the adjustment of the monthly compensation of the surfmen between the regular man and his substitute that the confusion occurs. For example, after being on duty from July 1 to 28, inclusive, a surfman is absent on account of illness the remaining three days of the month and the keeper, under the regulations, engages a substitute to fill his place. Now if the regular man is paid twenty-eight thirtieths of $65 for his service for twenty-eight days there will be only two-thirtieths of $65 available for payment to the substitute for service for three days.
"Numerous situations similar to the above will constantly come up, but this will serve for illustration.
Under the method of payment of surfmen obtaining prior to July 1, 1904, which was prescribed by Department Circular No. 109 of 1892 (copy herewith), it was possible to do exact justice in all cases and both the regular surfman and the substitute would receive their proper proportion of the monthly compensation. In the above case the regular man would receive twenty-eight thirty-firsts of $65, leaving three thirtyfirsts for the substitute.
"In view of the exceptional features of the employment and payment of surfmen and substitutes in the Life-Saving Service, it is thought it would be desirable to continue the method of payment heretofore in vogue, if such action is not prohibited by the provisions of section 4 of the sundry civil act above referred to.
"Your decision upon this question is requested. If you hold that the old method can not be followed under the law, please give further instructions as to the manner of making payments to the regular and temporary surfmen or substitutes, for fractional portions of a thirty-one day month, and also of
a twenty-eight day month, in order that a uniform rule may be laid down for the guidance of the various district superintendents in the premises."
The regular surfman was absent from duty, not in a pay status, for the last three days of July. Therefore, the regular surfman is entitled to twenty-seven thirtieths of a month's pay. This would leave three-thirtieths of a month's pay to be paid the substitute, provided under your regulations such payment is made by and for the Government, instead of being a matter between the surfmen and the substitute, the regulations only providing in the interest of the service that the surfman shall pay the substitute the full equivalent of what he, the regular surfman, would receive. Your regulation on this subject reads:
"A substitute employed during the absence of a surfman, except in cases of sickness, will be paid in full by the surfman."
Treating the substitute, however, as employed by and paid by the Government, he should receive three-thirtieths of $65 for the last three days of July, 1904, and the regular surfman twenty-seven thirtieths of $65. Any other holding than that an employee should lose one-thirtieth of a month's pay for each day he is absent in such month, not in a pay status, would' result in the fact that in order to receive a full month's salary he would only be compelled to serve thirty days in a thirty-one day month. I am not prepared to so interpret the salary law.
COMPUTING PAYMENTS OF SALARY FOR A FRACTIONAL PART OF A MONTH.
Where an acting railway postal clerk qualifies and enters upon duty on July 27, and serves until September 24 of the same year, he is entitled to pay for five days in July, provided the salary of the position was paid to no other person for the full first twenty-six days of said month, and to the full monthly salary for August and to one-thirtieth of the monthly salary for each day he serves in September.
Where an acting railway mail clerk qualified and entered upon duty on July 15, and served up to and including August 1, he is entitled to pay for seventeen days in July, provided the salary of said position was paid no other person for the full first fourteen days of said month, and for the first day of August he is entitled to one-thirtieth of the monthly salary, but if his predecessor has been paid fourteen-thirtieths of the July salary he is only entitled for his seventeen days' services in July to the remaining sixteen-thirtieths of that month's salary.
(Comptroller Tracewell to John A. Merritt, postmaster, August 11, 1904.)
I am in receipt of your letter of August 9, 1904, as follows:
"The Second Assistant Postmaster-General, under date of August 2, informs me that under date of July 27, 1904, Perry H. Baugher was appointed an acting railway postal clerk for not exceeding sixty days, from and including July 24, 1904, and directs me to pay him at the rate of $800 per annum. "Questions:
'Is Mr. Baugher to receive fifty-eight or sixty days' pay? "Is he to be paid for July and August 31, respectively? 'In propounding these questions, it is understood that Mr. Baugher works continuously from July 24 to and including September 21, the questions being made necessary owing to the new method of pay by dividing months into thirty equal parts.
"Again, the Second Assistant Postmaster-General, under date of July 25, informs me that under date of July 15, 1904, J. P. Bowser was appointed an acting railway postal clerk for eighteen days, from July 15 to August 1, 1904, and directs me to pay him at the rate of $800 per annum.
"Is the 31st day of July to be excluded, and Mr. Bowser only paid for seventeen days?"
Mr. Baugher is entitled to be paid for his services in July only from the date of his qualifying for duty under the order appointing him, which your letter implies to be July 27, 1904.
If July 27, 1904, is the correct date, he should be paid for five days in July, provided the salary of such position is paid no other person for the full first twenty-six days of said month.
As to the salary to be paid said clerk during the remainder of his employment, your attention is called to the provisions of paragraph 6 of section 8 of the act of July 31, 1894 (28 Stat., 208), under which the Comptroller of the Treasury is authorized to render a decision at the request of a disbursing officer only when such officer submits a question actually involved in a payment then to be made by him, but not when the expense has not yet been incurred.
Waiving the vouchers, I have to say if Mr. Baugher serves during the whole of the month of August he will receive for said month the full monthly salary, or the one-twelfth of the annual salary, and no more; and for the month of September will be entitled to one-thirtieth of one-twelfth of $800 for each day he serves in September.