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be sold to cover the cost of transportation, overhead expense of conducting sales, cost of handling and storage, materials used in effecting sales, delivery charges, and other expenses hitherto borne by the Government for which there has been no return to the Government.
JOAN A, LEJEUNE,
Major General Commandant.
Acting Secretary of the Navy.
Provided, That hereafter such stores as the Secretary of the Navy may designate may be procured and sold to officers and enlisted men of the Navy and Marine Corps, also to civilian employees at naval stations beyond the continental limits of the United States and in Alaska, under such regulations. as the Secretary of the Navy may prescribe.
Whatever heretofore may have been the authority for sales of stores at less than cost or at invoice without taking into account indirect costs, is not a matter necessary for consideration at this time, nor the question of maintaining organizations or forces for delivery purposes. The addition of the 10 per cent here in question, if it approximates the difference between direct cost and actual cost,
Section 3678, Revised Statutes, provides: All sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others.
The authority to sell the stores contemplates reimbursement of both the direct and indirect costs to the appropriations under which the same were borne, and reimbursement to any appropriations other than those bearing such costs would augment one appropriation at the expense of another and would contravene the letter of section 3678, Revised Statutes, in that the application would not be “solely to the objects for which they are respectively made.”
It is thus clear that no authority exists for reimbursing the appropriations bearing only the direct costs for other and indirect costs, etc., charged under other appropriations.
Answering the question specifically, the 10 per cent or other proper percentage for application in lieu of indirect costs, etc., is properly for credit to miscellaneous receipts.
It may be observed also that War Department appropriation act approved June 30, 1922, 42 Stat., 727, provides:
None of the funds appropriated in this Act shall be used for the payment of expenses of operating sales commissaries other than in Alaska at which the prices charged do not include the customary overhead costs of freight, baudling, storage, and delivery,
None of the funds appropriated in this Act shall be used for payment of expenses of operating any utility of the War Department selling services or supplies at which the cost of the services or supplies so sold does not include all customary overhead costs of labor, rent, light, heat, and other expenses properly chargeable to the conduct of such utility.
See also “ Hearing before Subcommittee of House Committee on Appropriations, War Department appropriation bill, 1923,” pages 380 to 383, inclusive.
War Department Circular No. 190, September 8, 1922, Section II, directed that
All funds collected as overhead expenses of operating sales commissaries, utilities or overhead from authorized sales of clothing and equipage and other quartermaster supplies, will be turned over by the quartermaster to the nearest disbursing or agent officer as required by paragraph 1, Section V, General Orders, No. 60, War Department, 1921, for deposit to the credit of the Treasurer of the United States, as miscellaneous receipts.
PAY OF VICE ADMIRALS ON AND AFTER JULY 1, 1922.
The pay to which a vice admiral of the Navy designated by the President onder
the provisions of the act of May 22, 1917, 40 Stat., 89, was entitled on June 30, 1922, by virtue of such designation, is not pay to which entitled by reason of his “grade and length of service," and is not saved to him on and after
July 1, 1922, by section 16 of the act of June 10, 1922, 42 Stat., 632. Comptroller General McCarl to the Secretary of the Navy, October 23, 1922:
I have your letter of September 30, 1922, requesting decision whether section 16 of the act of June 10, 1922, 42 Stat., 632, preserves on and after July 1, 1922, to an officer of the Navy holding a commission as vice admiral dated July 1, 1921, the rate of pay he was receiving on June 30, 1922. The particular officer referred to is Vice Admiral John D. McDonald, United States Navy. I am unofficially advised that Vice Admiral McDonald is unmarried and has no dependents.
Section 16 of the act of June 10, 1922, provides in part:
That nothing contained in this Act shall operate to reduce the pay of any officer on the active list below the pay to which he is entitled by reason of his grade and length of service on June 30, 1922, not including additional pay authorized by the Act
approved May 18, 1920; Vice Admiral McDonald, was receiving pay on June 30, 1922, as prescribed in section 18 of the act of May 22, 1917, 40 Stat., 89:
That the President be, and he is hereby, further authorized to designate six officers of the Navy for the command of fleets or subdivisions thereof and, after being so designated from the date of assuming such command until re linquishing thereof, not more than three of such officers shall each have the rank and pay of an admiral, and the others shall each have the rank and pay of a vice admiral; and the grades of admiral and vice admiral are hereby author. ized and continued for the purpose of this Act:
Provided further, That the pay of an admiral shall be $10,000 and the pay of a vice admiral $9,000 per annum: Provided further, That in time of peace officers for the command of fleets and subdivisions thereof, as herein authorized, shall be designated from among the rear admirals on the active list of the Navy: Pra vided further, That nothing herein contained shall create any vacancy in any grade in the Navy or increase the total number of officers authorized by law: Provided further, That when an officer with the rank of admiral or pice admiral is detached from the command of a fleet or subdivision thereof, as herein authorized, he shall return to his regular rank in the list of officers of the Navy and shall thereafter receive only the pay and allowances of such rank:
That the provision in the Act of March third, nineteen hundred and fifteen, for the designation of commanders in chief of certain fleets with the rank of
admiral and for the designation of officers second in command of such fileets with the rank of vice admiral be, and the same is hereby, repealed.
By reason of the provision of section 16 of the act of June 10, 1922, above quoted, the question is presented whether Vice Admiral McDonald may continue on and after July 1, 1922, and so long as he serves as a vice admiral, in receipt of pay at the rate of $9,000 per annum, or whether on and after said date he is entitled only to pay provided by section 8 of the act of June 10, 1922, which provides:
That commencing July 1, 1922, the annual base pay of a admiral (lower half) of the Navy,
shall be $6,000; and the annual base pay of a
rear admiral (upper half) of the Navy shall be $8,000. Every such officer shall be entitled to the same money allowance for subsistence as is authorized in section 6 of this act for officers receiving the pay of the sixth period and to the same money allowance for rental of quarters as 18 authorized in section 6 of this Act for officers receiving the pay of the sixth period: Provided, That when the total of base pay, subsistence, and rental allowance exceeds $7,500 for officers serving in the grade of
rear admiral (lower half) of the Navy
and $9,700 for those serving in the grade of
rear admiral (upper half) of the Navy, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,500 or $9,700, respectively. Rear admirals of the Navy serving in higher grades shall be entitled, while so serving, to the pay and allowances of a rear admiral (upper half) and to a personal money allowance per year as follows: When serving in the grade of vice admiral $500; when serving in the grade of admiral •
• $2,200. The instant effect of section 16 of the act of June 10, 1922, is to make a comparison of the pay of an officer in the grade held June 30, 1922, with the pay provided by the act of June 10, 1922, for that grade, and according as a comparison shows the new pay to be greater or less for that grade the saving clause would be applied. 2 Comp. Gen., 57, 59.
Section 8 of the act of June 10, 1922, bases the pay of a vice admiral upon the pay of a rear admiral of the upper half. The additional amounts which go to an officer holding the grade of vice admiral are by way of allowances. There is no specific pay prescribed in the act of June 10, 1922, for a vice admiral as in the act of May 22, 1917, and so there can be no comparison with the pay which Vice Admiral McDonald was receiving on June 30, 1922, except it be to compare it with the pay prescribed in the act of June 10, 1922, for a rear admiral of the upper half or that of his regular and permanent grade.
The act of May 22, 1917, specifically provided that the officer should receive “ the rank and pay of a vice admiral ” and that when the officer with such rank was detached he should return to his regular rank and thereafter receive only the pay and allowances of such rank; and to accomplish it the act also provided that there should be no vacancy in any grade or increase in the total number of officers authorized by law. The provisions of the saving clause of the act of June 10, 1922, operate specifically upon the pay to which the officer is entitled by reason“ of his grade and length of service.”
The act of May 22, 1917, does not give the officer the grade of vice admiral but authorizes him to have the rank and pay thereof. The grade of the officer apparently remains as it was before and to which he must return after being detached from the duty of vice admiral. It is accordingly only his regular grade upon which the act of June 10, 1922, operates and which may not be decreased.
You are accordingly advised that section 16 of the act of June 10, 1922, is construed not to authorize pay on and after July 1, 1922, to a vice admiral of the Navy at the annual rate prescribed in section 18 of the act of May 22, 1917.
MEDICAL TREATMENT-PRIVATE CITIZEN DEPUTIZED TO ASSIST
The deputizing of a private citizen under section 3071, Revised Statutes, by a
customs officer to assist in making an arrest does not make such citizen an employee or officer of the Government, and does not obligate the Government to pay for medical treatment rendered necessary by injuries received
while so deputized. Decision by Comptroller General McCarl, October 24, 1922:
The Secretary of the Treasury applied July 29, 1922, for review of settlement No. T-9580, dated July 20, 1922, wherein was disallowed the claim of Dr. A. G. Church for $33 on account of professional services in resetting the shoulder of Harry Leonard, injured while assisting a customs officer in making arrests.
It appears that on February 29, 1922, Mounted Inspector 0. C. Dowe, at a point on the border near Ruidosa, Tex., detected two United States Army soldiers and two United States Army packers, in an automobile, smuggling 42 quart bottles of Mexican tequila into the United States; that Inspector Dowe arrested the parties, disarmed them, and handcuffed two together and left them at the place of arrest; that he handcuffed the other two and took them with him in his automobile to the place a short distance away, known as Fischer's ranch, where by authority of the provision of section 3071, Revised Statutes, he deputized Harry Leonard to assist him in taking the two men left at the place of arrest to Marfa, Tex., before the United States commissioner; that Leonard started from the place of arrest to Marfa, Tex., in the seized automobile, with one soldier seated on the seat beside him and one in the rear seat; that on the way the soldier on the rear seat picked up a starting crank which was on the floor of the automobile and struck Leonard over the head; that the soldier attempted to hit him a second time on the head, but Leonard dodged and the crank hit him on the shoulder, dislocating it. Dr. A. C. Church, of Marfa, Tex., was called, and the claim was for night trip and professional services in resetting Leonard's dislocated shoulder.
The claim was disallowed for the reason that it was not a proper charge against the appropriation “ Collecting the revenue from customs, 1922,” 41 Stat., 1376, which reads as follows:
For collecting the revenue from customs, including not exceeding $200,000 for the detection and pr tion of frauds upon the customs revenue.
Harry Leonard was required to render assistance to the mounted customs inspector under the provisions of section 3071, Revised Statutes, as follows:
Every officer or other person authorized to make searches and seizures by this Title,
shall have authority to demand of any person within the distance of three miles to assist him in making any arrests, search, or seizure authorized by this Title, where such assistance may be necessary; and if such person shall, without reasonable excuse, neglect or refuse so to assist, upon proper demand, he shall be deemed guilty of a misdemeanor, punishable by a fine of not more than two hundred dollars, nor less than five dollars.
A person orally deputized to assist in executing an arrest is neither an officer nor a mere private citizen while cooperating with an officer acting in his official capacity, but his legal position is that of a posse comitatus.
It has been repeatedly held by this office that in the absence of a statute authorizing it or a provision in the contract of employment making it a part of the employee's compensation, medical care and treatment is not authorized. It is clear that claimant is not an officer or employee of the Government and that there is no contract of employment, express or implied, which would have the effect of obligating the Government so as to authorize payment for medica) attendance from an appropriation not specifically providing therefor.
While claimant is to be commended for the valiant service rendered the Government, his right to medical attention at public expense, in the absence of a statute providing therefor, is one which properly addresses itself to Congress for relief.
Upon review of the matter no differences are found and the settlement is sustained.
CONTINUOUS AIR VOYAGES FOR TRAVEL-EXPENSE PURPOSES. Army officers traveling under orders by airplane between two or more stations.
with necessary and designated stops for duty of not exceeding 72 hours each, are considered as on a continuous voyage and are entitled to actual
and necessary traveling expenses. Comptroller General McCarl to Maj. Carl Halla, United States Army, October 25, 1922: I have your letter reading: The enclosed voucher in favor of J. Parker Van Zandt, ist lieutenant, Air Barvice, for reimbursement of travel expenses in the amount of $41.85, incurred while proceeding by airplane, during the period from 10.45 a. m., June 20, 1922, to 8.00 p. m., June 26, 1922, from Washington, D. C., to Philadelphia, Penna.; thence to Harrisburg, Penna.; thence to New York, N. Y., in connection with the study of terrain and landing-field information between the above-mentioned points, and return by airplane to Washington, D. C., in compliance with orders