tween your hotel and the Southern car shops, stated as one and onehalf miles, is not greater than the distance between many residences and points of work in the cities, nor is it established that you were necessarily located at even so great a distance from your point of assigned duty."

The regulations of the Interstate Commerce Commission governing reimbursement for expenditures for street car fares provide:

"Effective July 1, 1915, the Interstate Commerce Commission prescribed the following rule with respect to allowances for street car fares:

"7. Street car and jitney bus fares between stations and hotels or residences upon arrival at or departure from official headquarters or other places in connection with travel on Government business; between places at which investigations or inspections are to be conducted, and between stations and such places of investigation or inspection.'

"Effective November 1, 1915, the commission adopted the following supplemental rule, which is still in force:

"In addition to the street car and jitney bus fares referred to in paragraph 7 of the Regulations Governing Travel of Employees on Official Business, effective July 1, 1915, employees of the commission will be allowed their actual disbursements for street car, omnibus, ferry, or jitney bus fares in going from place to place in the performance of their official duty, when necessary or proper to facilitate such performance and properly authorized or approved by the official or other employee under whose direction such official duties are being performed. This does not extend to such fares incurred by employees in going from and to their abodes to and from their places of work at their official headquarters, or incurred in any manner for personal reasons.””

The question as it is presented by the auditor's action is one involving the necessity for the expense so far as the Government is concerned. The regulations quoted do not specifically allow such street car fare, and if the expense was unnecessary no right would accrue by reason of a regulation. It is to be noticed, however, that the last sentence of the regulation prohibits allowance when the expense is incurred in any manner for personal reasons.

Mr. Barnum was paid a per diem in lieu of subsistence of $3 a day for the 31 days in October. The presumption in such a case is that when a person selects a place to live so far from the place he is ordered to work as to require, in his opinion, the use of a train, street car, or other conveyance, he has done so for his personal convenience or to make his expense for subsistence less than the amount allowed as commutation.

In such circumstances the expense for car fare is not a necessary expense, as the Government, in paying the per diem, has allowed the employee to select his place of living and requires only that he be at his place of work during regular working hours.

The rule in reference to employees receiving a per diem in lieu of subsistence is well stated in the circular issued October 15, 1915, by the Attorney General and addressed to officials and employees of the Department of Justice. That circular in full reads as follows:

"From and after this date, reimbursement will not be made covering the expense of transportation, such as car fare or other like fares between the hotel or other place of domicile and the office or point where official duty is usually executed, either at headquarters or away from headquarters.

"No exception may be made to the above rule in so far as it involves officials or employees receiving a per diem in lieu of subsistence. If, however, actual expenses are chargeable and the allowance of transportation charges, as indicated in the foregoing paragraph, is essential and necessary by reason of peculiar conditions with respect to the locality in which hotel or other accommodations can be secured, and the facts are certified by the administrative official in charge of the work, the allowance thereof may be made."

The expense in the present case was not an expense necessarily incurred on behalf of the United States and no reimbursement can be made from public funds. The action of the auditor in disallowing the claim is affirmed.

HOLDING TWO POSITIONS-DOUBLE COMPENSATION.

The appointment of an assistant engineer employed under the Engineer Corps of the Army in Crater Lake National Park, Oreg., as supervisor of the park, under the jurisdiction of the Interior Department, is not authorized, for the reason that they are two separate and distinct positions under different departments, and further because of the provision contained in section 6 of the act of May 10, 1916.

Comptroller Warwick to Secretary of the Interior, February 8, 1917:

I have your letter of the 6th instant, in which you ask, in effect, whether, in view of the provisions of section 6 of the act of May 10, 1916 (39 Stat., 120), Mr. George E. Goodwin, an assistant engineer employed under the Engineer Corps of the Army in roadconstruction work in Crater Lake National Park., Oreg., may, while still holding that position, be appointed and hold the position of supervisor of that park under your jurisdiction.

The facts with respect to the proposed appointment are sufficiently stated in the opinion of the Judge Advocate General of the Army accompanying your submission, as follows:

"2. It appears that Mr. Goodwin is in charge of road construction and improvement in the Crater Lake National Park under the direction of the Chief of Engineers of the War Department at an annual salary of $2,700, payable from the lump sum appropriation for the park road construction. In a recent letter to this department, the Secretary of the Interior states that the position of supervisor of the Crater Lake National Park which is under the Interior Department

has become vacant and he suggests, for the consideration of this department, that Mr. Goodwin be appointed supervisor and that he perform the duties of park executive as well as those of the local superintendent of the improvement work under the jurisdiction of the War Department, his salary to be paid by the two departments in such proportion as may be mutually agreed upon. The Interior Department regards Mr. Goodwin as well qualified for the duties of superintendent and the Secretary expresses the view that the performance of the duties of supervisor would not in any way interfere with his supervision and control of road construction and improvement, and further states that

"The arrangements I have suggested I believe would effect economies in several directions and I know that they would be in the interest of better administration of the park.'

"3. The Chief of Engineers recommends that the employment of Mr. Goodwin as proposed by the Secretary of the Interior be authorized and that his compensation be fixed at $3,300 per annum under this cooperative plan, $1,800 to be paid by the Engineer Department and $1,500 by the Department of the Interior."

It will be seen from the foregoing that, if the appointment be made as proposed, the combined salary of the position will be paid partly by the War Department and partly by the Department of the Interior, and that such combined salary will be in excess of $2,000 per annum.

Section 6 of the act of May 10, 1916, provides, with certain exceptions not here material, that no money appropriated by that or any other act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum; but, in the present case, it is proposed to escape the prohibition of this statute by holding that the appointment in question will be to but one, distinct position.

It appears, however, that Mr. Goodwin, if appointed as proposed, will still discharge the duties of an assistant engineer under the War Department, to which department he will continue to be responsible for the faithful performance thereof, and that he will also discharge the duties of supervisor of the park under the Department of the Interior. Furthermore, while the position to be created is declared to be single, while combining the duties of both former positions, yet it appears that it will be known as at present-that is, as supervisor of the park.

It is evident that the appropriations made under the War Department would not be available for the payment of any part of the salary of a position under the Department of the Interior, and it is equally evident that appropriations made under the department last mentioned would not be available for any part of the salary of a position under the War Department. It would appear, therefore, that in order to make the proposed merger of offices or positions

legal it would have to be held that the same position existed at one and the same time under under two separate and distinct executive departments, each having exclusive jurisdiction over the incumbent, the impossibility of which holding being self-evident. Also, it is axiomatic that a man can not serve two masters with respect to the same position.

It would appear from the foregoing that, as a matter of fact, and shorn of all legal refinements, the appointee of the proposed position would, after such appointment, still continue to hold the position of assistant engineer under the War Department, and the separate and distinct position of supervisor of the park under the Department of the Interior, each position having its own duties and carrying its own salary, the fact that each salary is provided under a lump-sum appropriation being immaterial.

As before stated, the combined salaries of these two positions would, as proposed in your submission, exceed the amount of $2,000 per annum, and you are advised, therefore, that, if Mr. Goodwin is appointed to the position of supervisor of the park as proposed, section 6 of the act of May 10, 1916, will preclude the payment to him of more than one of the two salaries indicated.

PAY, ENLISTED MEN OF NATIONAL GUARD.

A retired enlisted man of the Army who enlisted as a member of the National Guard after the date of his retirement in the Regular Army, and who is subsequently mustered into the service of the United States with the organization of which he is a member, is entitled to the active duty pay of a soldier of the rating held by him, together with the additional pay authorized for continuous service to which he was entitled at the date of his retirement. He is not entitled to receive the retired pay, which remains in abeyance during his continuance on the active list in the Army of the United States.

Comptroller Warwick to the Secretary of War, February 9, 1917:

I have your letter of January 10, 1917, inclosing papers relating to the pay status of William R. Tyree, a retired soldier of the United States Army, who enlisted in the National Guard of Washington, and under the President's call of June 18, 1916, was mustered into the service of the United States as first sergeant, Troop B, Cavalry, National Guard of Washington, and requesting my decision of the following questions:

(a) In what enlistment period is First Sergeant Tyree serving for the purpose of computing his pay as an enlisted man of the National Guard after the date of his muster into the service of the United States?

(b) Does he forfeit his right to retired pay as an enlisted man of the Regular Army during the period he is serving as an enlisted man of the National Guard in the service of the United States?

The act of June 3, 1916 (39 Stat., 166), provides:

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"That the Army of the United States shall consist of the Regular Army, the National Guard while in the service of the United States * * * The Regular Army of the United States, including the existing organizations, shall consist of * and the following as now authorized by law: The officers and enlisted men on the retired list;

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The military records show that William R. Tyree, in the year 1914, while serving in the Philippine Islands as first sergeant, Battery A, Second Field Artillery, in his eighth enlistment period, was retired as first sergeant, United States Army. The date of his retirement was November 21, 1914, and his monthly pay on the retired list was $67.50. He enlisted in the National Guard of Washington January 10, 1916, and was mustered into the service of the United States as first sergeant, Troop B, Cavalry, National Guard, Washington, June 28, 1916, since which date he has been paid at the rate of $45 per month, being the pay of a first sergeant of Cavalry as of the first enlistment period.

The act of May 11, 1908 (35 Stat., 109), provides:

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"That hereafter the monthly pay of enlisted men of the Army during their first enlistment shall be as follows, namely, first sergeants, $45; * * *. That hereafter any soldier honorably discharged at the termination of an enlistment period who reenlists within three months thereafter shall be entitled to continuous service pay as herein provided, which shall be in addition to the initial pay provided for in this act and shall be as follows, namely: For those whose initial pay as provided herein is $36 or more, an increase of $4 monthly pay for and during the second enlistment, and a further increase of $4 for and during each subsequent enlistment up to and including the seventh, after which the pay shall remain as in the seventh enlistment. : Provided, That hereafter any soldier honorably discharged at the termination of his first or any succeeding enlistment period who reenlists after the expiration of three months shall be regarded as in his second enlistment; * the former service entitling an enlisted man to reenlisted pay under existing laws shall be counted as one enlistment period. * That nothing herein contained shall be construed so as to reduce the pay or allowances now authorized by law for any officer or enlisted man of the Army; and all laws or parts of laws inconsistent with the provisions of this act are hereby repealed."

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In 23 Comp. Dec., 152, quoting from the syllabi, it is said:

"Enlisted men of the Organized Militia mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are not entitled to credit, for purposes of continuous-service pay, for prior service rendered in the Regular Army or the Marine Corps, except for one enlistment period, as provided in the act of May 11, 1908."