Under date of March 25, 1917, you sent to the governors of the States concerned a call in form as follows: "Having in view the necessity of affording a more perfect protection against possible interference with postal, commercial and military channels and instrumentalities of the United States in the State of * and being unable with the regular troops available at his command to insure the faithful execution of the laws of the Union in this regard, the President has thought proper to exercise the authority vested in him by the Constitution and laws and to call out the National Guard necessary for the purpose. I am, in consequence, instructed by the President to call into the service of the United States forthwith, through you, the following units of the National Guard of the State of * * * which the President desires shall be assembled at the places to be designated to you by the commanding general * which said commanding general has been directed to communicate to you: * * * * This call included some organizations of the National Guard which were embraced in the call of June 18, 1916, and which had been mustered out of the service of the United States, and it also included some organizations which were still in the service of the United States under the call of June 18, 1916. The wording of the call as to the latter is that they are retained in the United States service. There has been no muster out or discharge of these latter organizations. The fact that some of the National Guard organizations included in the call of March 25, 1917, were still in the service under the call of June 18, 1916, when the call of March 25 was made, presents an unusual condition in construing this law, but in order that those organizations responding to the call of March 25, 1917, and those retained in service as specified in that call may be on an equal footing so far as family benefits are concerned, I think it must be held that they are all in the service under the call of March 25, 1917, and that those organizations which had not been discharged but were retained in the service, ceased to be in the service under the call of June 18, 1916, from and after March 25, 1917. Under the laws cited above I am of opinion that all three of the questions submitted should be answered in the negative, and they are accordingly so answered. The authority for the payments for the support of families of enlisted men is the appropriation act. It is not known to this office. how much of the $2,000,000 has been already expended. No more than that amount could be expended unless Congress makes an additional appropriation. The present crisis in national affairs has brought on new conditions. Congress is in session and if it desires. to continue the payments for the support of the families of enlisted 6110°-VOL 23—17-—36 men of National Guard organizations brought into the service, or continued in the service under the President's call of March 25, 1917, and of certain enlisted men of the Regular Army, I think that legislation expressive of such desire should be enacted at this time. There will thus be the opportunity to place all on an equal footing. COMMUTATION OF TRAVELING EXPENSES, FOREST SERVICE. Employees of the Forest Service are not entitled to reimbursement on a mileage basis of expenses incurred in using their own vehicles in performing official travel. Comptroller Warwick to the Auditor for the State and Other Departments, April 9, 1917: You have submitted for approval, disapproval, or modification your decision of March 21, 1917, as follows: "The accounts of the district fiscal agents of the Forest Service now before me for examination carry charges for expenses of operation during official travel of employees of the Forest Service of their own automobiles. These charges are on the mileage basis. They range from 5 to 8 cents per mile; this in accordance with regulation. A-4 of the National Forest Manual effective July 1, 1916. Charges on this basis are authorized in decision of the Comptroller of the Treasury of June 13, 1914, to the Secretary of Agriculture (69 MS. Comp. Dec., 1501). The Secretary had submitted the question whether he might grant fixed allowances to forestry employees for the expense of operating their automobiles in official work 'not as a commutation but as reimbursement of expenses, and at rates not exceeding the actual cost of operating said vehicles.' "The comptroller in authorizing the allowance specified the two classes of employees affected, those whose salaries were fixed by the Secretary and those whose salaries were fixed by law. As to the latter class the decision holds: 'If in the other class of cases the interest of the Government in your judgment is best served by the method outlined in your regulation and if the allowed rate per mile does not exceed the actual cost of operation and if such travel is limited strictly to official travel-which you indicate is a fact-I see no legal objection thereto. But I must put emphasis on the condition that the allowance be not in excess of the actual cost of operation only. (Italics not in original.) It may be mentioned parenthetically that references to this case appear in two other decisions of the Comptroller of the Treasury, 22 Comp. Dec., 325, and decision of January 5, 1915, to the president of the Civil Service Commission. Both references seem to treat the decision as dealing solely with employees whose salaries were fixed by the Secretary of Agriculture. "A chain of decisions, the earlier ones prior to the Forestry case, the latter subsequent, have applied to the expenses of official use of horses or automobiles by their owners, the prohibition in the act of March 3, 1875 (18 Stat., 452). * and all allowances for mileage and transportation in excess of the amounts actually paid, * * except as above excepted, are hereby declared illegal.' These decisions of which I may cite, 20 Comp. Dec., 555; 21 id. 19; 22 id. 325, 378, hold that the expenses of livery or automobile can not in view of the restrictive legislation cited be commuted on any basismileage or per diem. I am able to harmonize the Forestry decision with these others by assuming that in it the Comptroller took the view that the actual cost of operating an automobile could be measured in terms of a mileage allowance, hence that the allowance in such case was not a commutation. This view somewhat modified is held by many owners of automobiles and persons of experience in their operation. These will be heard to say that such is the difficulty of measuring oil and gasoline at the beginning and ending of official trips that operators will not perform the tedious task of doing this accurately, but will at best estimate quantities and that the margin of inaccuracy in this method is probably greater than that in use of the mileage unit of consumption based upon the known performance of the car. But those who so hold will admit that the cost of oil and gasoline is a varying element of expense which must be separately shown as to each trip if the actual expenses are to be presented. "If the theory I have advanced was actually that of the comptroller in the Forestry case it has been specifically rejected in subsequent decisions which have held (22 Comp. Dec., 325, 378) that the mileage basis does not yield actual expenses of operation. The object of the present submission is to apply this finding to the system of charges in the Forest Service and to secure a specific reversal of the decision of June 13, 1914. If I were satisfied that the scale of charges for the Forest Service adhered to the Comptroller's emphasized stipulation in the decision that the allowance be not in excess of the actual cost of operation only' I might see little reason for raising the question. It is, however, my conviction that the charges under the scale materially exceed the actual cost of operation proper. They may be no greater than the running expenses combined with what is termed depreciation-probably are not; but it has been definitely held (21 Comp. Dec., 1) that only the expenses of gasoline and oil are reimbursable, that other classes of expenses are too indefinite and speculative to be listed among the actual costs. The minimum charge in the Forestry scale, 5 cents per mile, is that for the smallest type of car. Analysis on the basis either of the known maximum cost of gasoline or of the known minimum mileage per gallon of gas or oil of the smaller cars seems to prove the rate excessive. But evidence of other character is not lacking. Vouchers carrying charges for operation of automobiles by employees of the Department of Agriculture not in the Forest Service who are reimbursed actual expenses only have been examined. Some of these deal with trips in identically the territories traveled over by Forestry employees. For instance, in the account of R. L. Beagles, a special disbursing agent, Department of Agriculture, for the December quarter, 1916, there is a charge of 31 gallons of gasoline at 20 cents per gallon, and of 1 gallon of lubricating oil at $1 per gallon, consumed in trips, September and October, 1916, of 372 miles in the neighborhood of Chico, Cal. In November, 1916, in the same neighborhood, 78 miles were traveled on 63 gallons of gasoline at 20 cents per gallon and 51 Comptroler Warwick to the Auditor for the State and Other De Tu te slatted for approval disapproval, or mo unts of the district fiscal agents of the Forest Serv -The comptroller in authorizing the allowance specified the two classes of employees affected, those whose salaries were fixed by the Secretary and those whose salaries were fixed by law. As to the latter class the decision holds: 'If in the other class of cases the interest of the Government in your judgment is best served by the method outlined in your regulation and if the allowed rate per mile does not exceed the actual cost of operation and if such travel is limited strictly to official travel-which you indicate is a fact-I see no legal objection thereto. But I must put emphasis on the condi tion that the allowance be not in excess of the actual cost of operation only. (Italics not in original.) It may be mentioned parenthetically that references to this case appear in two other decisions of the Comptroller of the Treasury, 22 Comp. Dec., 325, and decision of January 5, 1915, to the president of the Civil Service Commission. Both references seem to treat the decision as dealing solely with employees whose salaries were fixed by the Secretary of Agri culture. "A chain of decisions, the earlier ones prior to the Forestry case, the latter subsequent, have applied to the expenses of official use of horses or automobiles by their owners, the prohibition in the act of March 3, 1875 (18 Stat., 452). and all allowances for mileage and transportation in excess of the amounts ptually paid, * 565 exce cisions t 325, 3 view of hen mileage with thee th held by mar UP carrier for the transportation of articles of which shipper, to be effective must be reasonable when ed the public on articles similar as to cost of Subject to proper land-grant deduction. be separately show a . presented. Dois Central Railroad Co., April 9, 1917: 24, 1917, requesting a reconsideration 17, by which I affirmed the action of ment in disallowing, by settlement 139.33 on your claim for $8,589.80 Jading No. M-6119, June 6, 1916, is, La., of nine carloads (268,200 tates Marine Corps. "If the theory I troller in the Forestr sequent decisions which ur.. mileage basis does not y ject of the present_s of charges in the Fores the decision of June 11.11 charges for the Forestry, sized stipulation in the des of the actual cost of opera, u. raising the question. It under the scale materially ster They may be no greater to the what is termed depreciation. #paj nitely held (21 Comp. Detaɛ....... oil are reimbursable, that ve Gazze and speculative to be listed aray charge in the Forestry sa type of car. Analysis or of gasoline or of the known. oil of the smaller cars se dence of other character is for operation of automob Agriculture not in the For expenses only have been exam in identically the territories trem For instance, in the account as by special train, “special quested and furnished, for To the public, but that a rate applement No. 2 to Trans51-A. The said circular ntal Freight Bureau as bases for the computaGovernment moving ch 1, 1913. agent, Department of Agric. to wew.. of 1 gallon of lubricating oil at si Juga Brian were led on 6 gallons as effective October to New Orleans of luction for landincluding live ar, either when 1 by passenger e rates for Prmination available account iry of ment the hat ith r |