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Comptroller General McCarl to the Secretary of the Navy, November 14,

1922.

I have your letter of October 24, 1922, requesting decision of certain questions submitted by the major general commandant, United States Marine Corps, arising under the provision of the act of July 1, 1922, 42 Stat., 810, under head of "Contingent, Marine Corps," making appropriation for

funeral expenses of officers and enlisted men, and retired officers on active duty during the war and retired enlisted men of the Marine Corps, including the transportation of bodies and their arms and wearing apparel from the place of demise to the homes of the deceased in the United States;

In general, it may be said that the appropriation contemplates as to burial expenses that those of one appropriate permanent burial may be borne by the United States. If, as in the case of marines dying outside of the United States, temporary burial becomes necessary, and it appears the permanent burial in the United States is to occur later, the expense of the temporary burial is an incident of the permanent one, and, together with the expenses of the transportation and disinterment incident to, is payable from said appropriation. The fact of temporary burial must appear at the time of burial. When one permanent burial has been effected at the expense of the United States, no further expense of burial should be borne by it. Whether this permanent burial occur in a national or private cemetery or at the home of the deceased or otherwise does not appear material for the purpose of the expenditure. The essential is that the one permanent burial shall be effected at such expense and such only as may be necessary to effect it in a befitting and appropriate manner.

The questions will be stated and answered in the order submitted:

(a) Under the provision of the law above quoted can the funeral expenses for interment at the home of the deceased officer or enlisted man be borne by the Government, plus the cost of transportation from place of demise to the home of the deceased? If answered in the affirmative, please specify what items should be allowed for the necessary and proper funeral expenses.

The above-quoted appropriation is general in its terms, and is properly subject to regulations to carry same into effect.

Section 34, System of Accountability, United States Marine Corps, contains instructions in regard to funeral expenses, and among other things it is provided therein that expenses of interment at the home of the deceased are not payable. The term "funeral expenses" is broad enough to cover all reasonable and necessary expenses of interment, and in view of the authorization to transport the bodies from the place of demise to the homes of the deceased in the United States, and, in the absence of any limitation in the law to the contrary, I see no reason why the term "funeral expenses" may not be construed to include the necessary expenses incurred in connection with the interment at the home of the deceased for the one perma

nent burial. The question as to what items may be allowed as necessary funeral expenses is primarily administrative and is properly subject to regulations.

The necessary and reasonable expenses of embalming, casket, boxing, reasonable undertaker's fee, hearse, carriages the number to be limited by regulation-digging of grave, grave space, and minister's fee under conditions stated in paragraph 536 of your System of Accountability would appear not inappropriate as expenses of or incident to a permanent burial.

The question is answered accordingly.

(b) If the remains of a deceased officer or enlisted man is buried either in a national or private cemetery at Government expense at the place of demise, and subsequently the next of kin desires the remains exhumed and transported and reinterred at the home of the deceased, what expense can be borne by the Government in carrying out the wishes of the next of kin. Please specify the items of expense, if any, that can be borne by the Government under these conditions.

The burial in a national or private cemetery indicates there has been a permanent burial and no further expense of burial may be borne by the United States unless it appears at the time it was made only temporarily. In the event the burial was a permanent one only the expense of the transportation and disinterment incident is payable.

This question is answered accordingly.

(c) What items of expense, payable out of Government funds, are allowable for the necessary and proper funeral expenses at the place of demise in the cases of deceased officers and enlisted men of the Marine Corps.

If the burial at the place of demise is a permanent burial, as heletofore defined, the expenses properly incident or appropriate to such burial, as outlined in answer to question (a), may be borne by the United States.

(d) Is the law above quoted sufficiently broad to cover all items (including the purchase of a burial site if essential), necessary for the proper burial of deceased officers and enlisted men of the Marine Corps?

Subject to qualifications as above, and if by "burial site " is meant simply grave space, your question is answered in the affirmative. It is to be understood, however, that payment for grave space is not authorized where burial is in a plot owned by the family or relatives of the deceased.

USE OF OWN AUTOMOBILE AT OFFICIAL STATION IN LIEU OF STREET CARS BY OFFICIALS OF DEPARTMENT OF AGRICULTURE.

The authority for the allowance of not to exceed 7 cents per mile to officials of the Department of Agriculture for travel performed in automobiles in lieu of actual travel expenses when the expense of travel can be thereby reduced, conferred upon the Secretary of Agriculture by the act of May 11, 1922, 42 Stat., 538, does not extend to authorizing such allowance for use of own automobile for official business at an official station, and reimbursement for such use when authorized in lieu of street cars is limited to the cost of gasoline, oil, etc., actually consumed.

Comptroller General McCarl to the Secretary of Agriculture, November 15, 1922.

I have your letter of October 24, 1922, requesting decision whether payment is authorized of a voucher in favor of Dr. James Fleming, inspector in charge, Bureau of Animal Industry, for $22.62, being mileage at the rate of 7 cents per mile for distances traveled by him in his own automobile while transacting official business at his official station, which is Kansas City, Kans.

The act of May 11, 1922, 42 Stat., 538, provides:

Whenever, during the fiscal year ending June 30, 1923, the Secretary of Agriculture shall find that the expenses of travel can be reduced thereby, he may, in lieu of actual traveling expenses, under such regulations as he may prescribe, authorize the payment of not to exceed 3 cents per mile for motor cycle or 7 cents per mile for an automobile, used for necessary travel on official business.

The going from an establishment to another establishment at official station is not travel within the meaning of this provision authorizing payment of 7 cents per mile for an automobile used by the employee, and I do not think the payment would be authorized on that basis. It is a question how such mileage would be determined other than would appear from such reports as the employee might make or as might be shown by a speedometer attached to the automobile. There would be no definite check upon the mileage used in going to the different places, but however that may be, the rule that has prevailed where an employee uses his own automobile is to allow only the expense of gasoline, oil, etc., actually consumed; and I think such an allowance may be made under the conditions which appear at the station of Doctor Fleming. See 27 Comp. Dec., 306. The act of August 10, 1912, 37 Stat., 300, authorizes reimbursement to officials and employees of the Department of Agriculture for street-car fares expended at their official headquarters in the transaction of official business, but this does not necessarily make street cars the exclusive mode of transportation. I think it is within the authority of the Secretary of Agriculture to allow expenses in the use of a personally owned automobile where the conditions at an official station are such as appear in the present submission, but that mileage under the provisions of the act of 1922 is not authorized.

DESTITUTE AMERICAN SEAMEN-EXPENSES OF APPREHENSION, DETENTION, AND DEPORTATION.

When a destitute American seaman has been furnished transportation by a consul to the United States and deserts the ship at a port en route the expenses of his apprehension, detention, and deportation incurred at such port by the immigration authorities are not payable from the appropriation for the relief and protection of American seamen.

Comptroller General McCarl to the Secretary of State, November 15, 1922. I have your letter of October 11, 1922, as follows:

The department has been advised that the American consul at Callao-Lima, Peru, placed on board the steamship Santa Luisa a destitute American seaman,

furnishing the master of the vessel a certificate providing for his transportation to New York City. However, upon the arrival of the vessel at Cristobal the seaman deserted the vessel, and was later apprehended by the immigration authorities and detained for deportation in accordance with the immigration laws applying in the Canal Zone.

The expenses of the deportation of the seaman from the Canal Zone are under the law chargeable against the steamship Santa Luisa. However, inasmuch as the seaman was not a member of the crew of the vessel and the master had no interest in the seaman other than to transport him to the United States, as he was required to do by the consul at Callao-Lima, the department will be pleased to be advised whether the actual expenses incurred by the authorities of the Canal Zone may properly be defrayed from the appropriation for the relief and protection of destitute American seamen.

As carried in the act approved June 16, 1921, 42 Stat., 35, the appropriation reads:

For the relief and protection of American seamen in foreign countries, and in the Panama Canal Zone, and shipwrecked American seamen in the Territory of Alaska, in the Hawaiian Islands, Porto Rico, and the Philippine Islands.

Section 4577, Revised Statutes, provides for the administering of aid to destitute American seamen as follows:

It shall be the duty of the consuls, vice-consuls, commercial agents, and vicecommercial agents, from time to time, to provide for the seamen of the United States, who may be found destitute within their districts, respectively, sufficient subsistence and passages to some port in the United States, in the most reasonable manner, at the expense of the United States, subject to such instructions as the Secretary of State shall give. The seamen shall, if able, be bound to do duty on board the vessels in which they may be transported, according to their several abilities.

The American Consul at Callao-Lima, Peru, in performance of his duty under the above provision of law, determined that the seaman was destitute, and made arrangements for his relief and passage to the United States as set forth in the submission. But it does not follow necessarily from the fact that the seaman was in a destitute condition at Callao-Lima, Peru, that he was also in such a condition when apprehended in the Canal Zone, following his alleged desertion from the S. S. Santa Luisa at Cristobal.

The possible doubt that the S. S. Santa Luisa is liable for the expenses incident to the apprehension, detention, and deportation of the deserted seaman will not, in itself, operate to charge the appropriation for relief and protection of American seamen.

The purpose of any expenses which may have been incurred by the immigration authorities in the Canal Zone was to comply with the immigration laws there applying. The destitute seaman being transported is apparently the same as any other passenger on the ship seeking to evade immigration laws or requirements, and the fact of his being transported at the expense of the United States does not in itself suggest any reason that the expenses in connection with the desertion and apprehension should be paid otherwise than as such expenses would be paid with relation to any other passenger. The apparent intent and purpose of the law is to provide relief and protection for seamen and not to indemnify other services of

the Government or its territorial possessions against loss on account of expenditures made or expenses incurred in the performance of their proper functions which incidentally result in the relief of American seamen, nor to relieve the steamship that may be chargeable therewith.

It appears that the appropriation for the relief and protection of American seamen is not available for the payment of expenses incurred by the immigration authorities of the Canal Zone in the apprehension, detention, and deportation of the American seaman, on the facts prescribed by your submission, and you are advised accordingly.

FEES OF UNITED STATES COMMISSIONERS.

The examination of witnesses, when necessary to the establishment of probable cause as a condition precedent to the issuance of a search warrant, is not a "hearing and deciding on criminal charges" within the meaning of the act of May 28, 1896, 29 Stat., 184, and does not entitle the commissioner to any fee other than that for swearing the witnesses.

Comptroller General McCarl to the Attorney General, November 16, 1922. There was received your letter of October 10, 1922, requesting review of settlement No. S. 35534, dated May 18, 1922, allowing in the account of A. M. Huger, United States commissioner, Charleston, S. C., for the quarter ended December 31, 1921, certain fees for hearings and examination of witnesses on application for search warrants under the national prohibition act.

The charges are as follows:

Item 1. Pages 16, 18, 21, 31, 43, 48, 52, 58, 59, 64, 103, 120, 134, and 135. Charges for hearings and examination of witnesses in search-warrant cases, 14 at $5, $70.

Section 21 of the act approved May 28, 1896, 29 Stat., 184, provides in part as follows:

That each United States commissioner shall be entitled to the followingnamed fees, and none other:

For hearing and deciding on criminal charges and reducing the testimony to writing when required by law or order of court, five dollars a day for the time necessarily employed:

It appears that it is the practice of the commissioner in certain search-warrant cases, where the affidavit on which the warrant was issued sets forth no facts from which the existence of probable cause could be determined, to proceed to take testimony from the complainant, usually a prohibition officer, and any witness he might present, and for such a service charge a per diem fee of $5 as a hearing and deciding in a criminal matter. Such a hearing and deciding could not be considered as a hearing and deciding on criminal charges, but merely upon the sufficiency of probable cause as alleged in the affidavit, for which no fee is provided by statute.

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