IN THE MATTER OF THE RIGHT OF SPECIAL AGENTS ENGAGED, UNDER THE ACT OF MARCH 3, 1883 (22 STAT., 623), IN PREVENTING TIMBER DEPREDATIONS, TO BE ALLOWED FOR SLEEPING-CAR FARE AS PART OF "TRANSPORTATION" EXPENSES.-TIMBER AGENTS' CASE. 1. Construction given to the Revised Statutes, sections 162, 183, 1765; the act of March 3, 1875 (18 Stat., 452, sec. 1, proviso first); act March 3, 1883 (22 Stat., 563, sec. 4); and act of March 3, 1883 (22 Staf., 623). 2. Prior to the act of March 3, 1883 (22 Stat.. 563, sec. 4), the head of each executive Department had authority to detail and send away from his Department any clerk or employé of his Departinent to make investigations or perform the duties essential to execute the requirements of appropriation and other acts. 3. The act of March 3, 1883 (22 Stat., 563, sec. 4), has limited this authority, but it seems probable that any clerk or employé may be so detailed for a period of thirty days in any one year with a right to receive for such time his lawful salary. 4. Quære, Whether the head of a Department can, under the act of March 3, 1883 (22) Stat., 563, sec. 4), give a clerk or employé a leave of absence without pay! 5. The act of March 3, 1875 (18 Stat., 452, sec. 1, proviso first), prohibits the allowance of a fixed sum, in lieu of actual traveling expenses, to any person holding employment or appointment under the United States (with exceptions therein named), whether engaged in traveling, as a duty pertaining to an office, or as a clerk or employé detailed as special agent by the head of a Department to execute an appropriation act or other statute. 6. The act of March 3, 1875 (18 Stat., 452, sec. 1, proviso first), is so far modified by the act of March 3, 1883 (22 Stat., 623), as that agents appointed under the latter act engaged in "protecting timber on the public lands,” may be allowed a “fixed sum per day, not to exceed three dollars, in lieu of actual daily expenses.” 7. The "daily expenses" mentioned in said act include sleeping-car fare on railroads, but do not include railroad fare for transportation. OPINION BY WILLIAM LAWRENCE, First Comptroller. The sundry civil appropriation act of March 3, 1883 (22 Stat., 603, 623), makes an appropriation, as follows: "To meet expenses of protecting timber on the public lands, seventyfive thousand dollars; and the same, or any part thereof, may be used in paying agents employed a fixed sum per day, not to exceed three dollars, in lieu of actual daily expenses, as now provided by law." The Secretary of the Interior by letter of October 19, 1883, to the Secretary of the Treasury, asks that the opinion of the First Comptroller may be given on the question arising under this provision: Whether sleeping-car fare is to be reported as a part of the expense of transportation of special agents of the General Land Office engaged in the suppression of timber depredations, or should be considered as a part of the personal expenses of such agents? The words, "as now provided by law," in the act of March 3, 1883 (22) Stat., 623), refer to a proviso in section one of the act of March 3, 1875 (18 Stat., 452), as follows: Provided, That hereafter only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States, except marshals, district attorneys, and clerks of the courts of the United States and their deputies; and all allowances for mileages and transportation in excess of the amount actually paid, except as above excepted, are hereby declared illegal; and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision." A usage has prevailed, fully supported by law, by which the respective heads of Departments detailed clerks and employés therein to make investigations or perform duties essential to the execution of appropriation and other acts (Clerks' Investigation case, 3 Lawrence, Compt. Dec., 246, Rev. Stat., 183). In such case the authorized usage was to pay the actual and necessary traveling expenses of the person so detailed while on duty away from the capital. And, as the law gave to a clerk a right to the payment of his salary, whether he performed any duty or not, payment thereof was made during such absence from his proper Department. (Evans' case, 2 Lawrence, Compt. Dec., 2d ed., 8.) No compensation can be paid to an officer or employé beyond his salary as such, for services per.ormed while detailed to make investigations away from his Department. (Rev. Stat., 1765: Swamp-Land case, 2 Lawrence, Compt. Dec., 2d ed., 136.) While this usage of detailing clerks to make investigations and of paying their actual and necessary expenses' prevailed, there were some cases in which a fixed sum was allowed, as and for such expenses, without reference to the expense actually incurred. This was unauthorized. (Bender's case, 1 Lawrence, Compt. Dec., 2d ed., 317). The act of March 3, 1875 (18 Stat., 452, sec. 1, proviso, first) above quoted, was passed to prohibit generally in such cases the allowance of any amount in excess of actual expenses. And "allowances for mileages and transportation" in excess of the amount "actually paid" were specially named as prohibited, probably because it was supposed that abuses had existed as to these. The prohibitions of the act apply not only to clerks and employés of Departments, but to officers traveling as a part of their official duty. The provision quoted from the act of March 3, 1883 (22 Stat., 623), was designed to authorize the allowance to agents engaged in protecting timber on the public lands, of a "fixed sum per day, not to exceed three dollars, in lieu of actual daily expenses." The sum so fixed is a commutation of the "actual daily" and personal expenses. It is a limit upon the amount to be paid for such expenses, though it might exceed the actual expenses. It was designed to be the full measure of allowance for daily expenses" including boarding, lodging, and the usual personal expenses. The "actual daily expenses" mentioned in this act, of course, do not include “transportation" expenses, as railroad fare. But they do include sleeping-car fare, as well as meals taken while traveling by railroad. If an agent is engaged in any locality in protecting timber for a day or a week, his lodging expenses, as well as his meals, are, clearly, "daily expenses." If he travels on foot, or on horseback, or in a coach, and stops over night, his lodging expenses and meals are, clearly, "daily expenses"-not "transportation" expenses. If he travels by railroad, his sleeping-car fare is equally a part of his "daily expenses." It is not paid for "transportation." The "transpor tation" is paid for by ordinary railroad fare, as totally distinct from the lodging expenses on a sleeping car. The sleeping cars are frequently, if not generally, owned by a corporation or company distinct from the railroad company. The sleeping cars are in such cases transported for the sleeping-car company, for a compensation paid by it to the railroad company. The transportation expenses have no necessary connection with sleeping-car expenses. By far the larger part of all railway pas sengers are transported in other than sleeping cars. The act of March 3, 1875 (18 Stat., 452, sec. 1, proviso, first), uses the expression, "allowances for transportation," which may sometimes include sleeping-car fare. But this act, as respects the question now under consideration, is to be construed with reference to the act of March 3, 1883 (22 Stat., 623), and in this connection ample scope is found for the former act without including sleeping-car fare, which is covered by the expression, "daily expenses," in the latter act. If this be not so, we must assign to lodging expenses two distinct meanings under the same act of March 3, 1883. That is, the expression "daily expenses" in this act, can be construed to include lodging expenses when an agent is trav eling on foot, or on horseback, or by coach, but not while traveling by railroad. Such double meaning is not permissible. The statutes cited use several expressions as to expenses, as (1) "daily expenses," (2) "actual traveling expenses," (3) "mileages and transpor tation." "Transportation expenses" include railroad fare, stage fare, and similar charges. "Daily expenses" generally include the cost of meals, lodging, sleeping-car fare, and such other charges as necessarily accrue while traveling, but do not include the cost of conveyance. The act of March 3, 1883, (22 Stat., 563, sec. 4) has limited the right of clerks and employés in the Executive Departments, to receive their salary or compensation as such, in cases of absence, by providing, that "all absence from the Departments on the part of said clerks or other employés, in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." The expression in this statute-"all absence"-is so comprehensive, that a clerk detailed away from a Department, and, by reason of such detail, absent for more than thirty days in any one year, cannot during such absence receive any salary after the expiration of such period. During such period of thirty days it seems probable that a clerk may be so detailed with a right to receive salary. Section 183 of the Revised Statutes, which recognizes the authority of the head of a Depart ment to detail clerks to investigate frauds, is not in terms repealed. It is true the act of March 3, 1883 (22 Stat., 563, sec. 4), requires of clerks in the Departments fixed hours of service, but the purpose of this was only, or chiefly, to modify section 162 of the Revised Statutes. It has been held by the head of at least one Department, that under the statute he had no power, as he had under the usage heretofore prevailing, to give a clerk a leave of absence beyond thirty days in any one year, even without salary, because the statute says that leaves of absence "shall not exceed thirty days in any one year" (see Eveleth's case, 2 Lawrence, Compt. Dec., 2d ed., 20). The appropriation made by the act of March 3, 1883 (22 Stat., 603, 623), of course, authorizes the appointment of proper persons, who may not be clerks or employés in any Department, to act as agents in "protecting timber on the public lands." Their compensation is to be fixed. in the Interior Department. They can be allowed by the same authority, either (1) actual daily expenses so far as reasonable and necessary, or (2) in lieu of this a "fixed sum per day not to exceed three dollars," and (3) in addition to either of these such agents may be allowed actual and necessary transportation expenses, as railroad fare, stage fare, and other like expenses, but for these there can be no allowance of a "fixed sum per day." The word "may" as applied to the "fixed sum" mentioned in the act of March 3, 1883, is not mandatory in requiring a sum to be fixed, but is permissive, and so does not exclude the authority to pay actual necessary and reasonable traveling expenses. The Secretary of the Interior will be advised accordingly. First Comptroller's Office, November 1, 1883. IN THE MATTER OF THE RIGHT OF THE PERSON EMPLOYED TO PREPARE A GENERAL INDEX FOR THE JOURNALS OF CONGRESS TO RECEIVE COMPENSATION FOR PREPARING AN INDEX TO THE CONGRESSIONAL RECORD.-ORDWAY'S CASE. 1. The appropriation acts since 1878, by appropriating compensation "for the person preparing the general index to the Journals of Congress under [House] resolution of June 18, 1878,” have recognized and continued the authority of the person so appointed. Said resolution does not give a continuing authority to appoint a person to prepare said index. Congress has power under the Constitution by law to designate a person by name, or otherwise identify him, and give him continuous authority from year to year to perform any duty to carry its legislative functions into effect. A person designated by statute to prepare an index to the Journals of Congress, which statute fixes an annual salary for the service, is a "person whose pay [is] fixed by law," and by force of section 1765 of the Revised Statutes he cannot lawfully "receive any additional pay for any other service whatever, unless the same is [1] authorized by law, and [2] the appropriation therefor explicitly states that it is for such additional pay." 34 D 83 5. Such person when also employed under the Joint Resolution of February 8, 1881 (21 Stat., 516), to prepare an index to the Congressional Record, with compensation fixed by the discretion of the Joint Committee on Printing at the maximum amount thereby authorized, cannot lawfully be paid such or any sum for the service mentioned, because it is not "fixed by law," and the appropriation therefor does not "explicitly state that it is for such additional pay." 6. The prohibitions of section 1765 of the Revised Statutes, and of the act of June 20, 1874 (18 Stat., 109, sec. 3), extend to compensation for all services official, or quasi official, whether rendered under an appointment or contract. 7. When a statute gives authority to officers or agents to employ persons to reuder services, such authority is to be exercised subject to the general prohibitions and regulations of existing laws. 8. The Joint Resolution of February 8, 1881 (21 Stat., 516), authorizes the employment by contract of a person to prepare an index to the Congressional Record. 9. Such contract should under section 3743 of the Revised Statutes be filed in the office of the First Comptroller. 10. The person lawfully employed under the Joint Resolution of February 8, 1881 (21 Stat., 516), is alone entitled to receive compensation for the services rendered under such employment. 11. If he employ persons to assist him in his services, there is no privity of contract between them and the United States, and they have no claim against the Government for any compensation. 12. Persons usually denominated “employés” do not necessarily or generally include ordinary contractors, who render personal services not official or quasi official in character. 13. The act of March 3, 1879 (20 Stat., 419), requires accounting officers of the Treasury to pass as "a full and sufficient voucher" any which may be (1) approved by the chairman of the proper committee of the Senate, and (2) payable out of the Senate contingent fund. This can not give validity to any voucher for expeuditures prohibited by law. June 18, 1878, the House of Representatives passed a preamble and resolutions (House Journal, 1416) as follow: "Whereas the records of the proceedings of Congress have become so extensive that ready reference to any matter contained in them is almost impossible, and the want of uniformity in the method of indexing the various volumes renders inaccessible much information that is valuable; and "Whereas the business of legislation would be greatly aided and expedited by a proper index of the Journals: Therefore, "Be it resolved, That there shall be prepared, under the direction and supervision of the Committee on Rules, a general index of the Journals of Congress. "Resolved, That the Committee on Rules are authorized to select and employ a proper person to prepare such general index, at a compensa tion not to exceed $2,500 per annum, to be paid out of the contingent fund of the House for the ensuing fiscal year, and to be under the direction of the Committee on Rules as the prosecution of the work proceeds." The act of March 3, 1879 (20 Stat., 419), provides that any voucher approved by the chairman of a Senate committee for expenses, payable out of the Senate contingent fund "shall be taken and passed by the accounting officers of the Treasury as a full and sufficient voucher." This act does not extend to other vouchers, nor to the House contingent fund. This act cannot give validity to vouchers for expenditure which are prohibited by statute. |