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The deductions were made by your office under the ruling in 19 Comp. Dec., 245, wherein it was held, quoting the syllabus, that
A United States commissioner is not entitled to per diem fee for hearing and deciding an application of a revenue officer for a search warrant under section 3462 of the Revised Statutes where the necessary allegations of fact appear in the affidavit of complaint.
The allowance of these items was based upon the act approved June 15, 1917, 40 Stat., 217, and 24 Comp. Dec., 476.
In 24 Comp. Dec., 476, a per diem was allowed because the de. fendant appeared before the commissioner and made a statement concerning the property in question after the warrant had issued and the property seized. The decision in 19 Comp. Dec., 245, dealt with a per diem charge for examination of the officer applying for the warrant as to the facts upon which to base its issuance, in which the per diem fee was denied. .
Section 3, Title XI, of the espionage act of June 15, 1917, 40 Stat., 228, provides that,
A search warrant can not be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.
Section 11, Title XI, of the same act, 42 Stat., 229, provides that, A search warrant must be executed and returned to the judge or commissioner who issued it within ten lays after its date; after the expiration of this time the warrant, unless executed, is void.
It follows that it is the duty of the complaining officer, under oath, to satisfy the judge or commissioner before whom application is made for a search warrant as to the sufficiency of probable cause, and if necessary he may produce witnesses to substantiate his allegations, for which no fee is provided other than for swearing the witnesses.
The settlement is reversed and a difference of $70 is certified due the United States.
EXCESS LEAVE OF ABSENCE-PAY AND ALLOWANCES OF
RETIRED OFFICERS OF ARMY.
Leave accrues to retired officers of the Army for period of active duty only
under the same conditions as for active-list officers for corresponding period, inclusive of those for pay and allowances, and for excess leave they
are entitled to one-half pay and to no allowances. Comptroller General McCarl to Maj. M. T. Legg, United States Army, November 21, 1922.
I have your letter of October 6, 1922, transmitting voucher stated in favor of Col. S. B. Arnold, United States Army, retired, for the period September 1 to 30, 1922, for two subsistence allowances, $36, and rental allowance, $64 (reduced as required by section 7 of the act of June 10, 1922, 42 Stat., 628, from $100, as the officer's full pay and allowances exceed $7,200).
It appears that the officer, as a retired lieutenant colonel, was assigned to duty as professor of military science and tactics at the College of the City of New York by paragraph 9, Special Orders, No. 239-0, dated War Department, October 11, 1920 (stated to have been retroactively amended by paragraph 18 of S. O. 102-0, May 3, 1921); that he entered on leave of absence of 1 month and 15 days on August 1, 1922, pursuant to paragraph 13 of S. O. 165, headquarters Second Corps Area, July 17, 1922; and that he returned to duty September 16, 1922. You state that this leave was 13 days in excess of the amount of leave the officer was entitled to, and that on the officer's September, 1922, pay account (voucher No. 4403, your September, 1922, accounts), you paid him half pay under section 1265, Revised Statutes.
On this state of facts you request decision whether an officer of the Army on leave of absence in excess of the time allowed by the act of July 29, 1876, 19 Stat., 102, and entitled to half pay only under section 1265, Revised Statutes, is entitled to the subsistence and rental allowances during the period of excess leave.
It has been held that a retired officer detailed to active duty pursuant to law is entitled to leave of absence under the same conditions as is an officer on the active list. 11 Comp. Dec., 376; 23 id., 307. Section 1265, Revised Statutes, provides:
Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave, for other causes, full pay during such absence, not exceeding in the aggregate thirty days in one year, and half-pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.
The act of July 29, 1876, 19 Stat., 102, provides:
That an act approved May eighth, eighteen hundred and seventy-four, in regard to leave of absence of Army officers, be, and the same is hereby, so amended, that all officers on duty shall be allowed, in the discretion of the Secretary of War, sixty days' leave of absence without deduction of pay or allowances: Provided, That the same be taken once in two years: And provided further, That the leave of absence may be extended to three months, it taken once only in three years, or four months if taken once only in four years.
It will be observed that while pay and allowances are authorized for an officer on ordinary leave of absence under the act of 1876, section 1265 speaks only of pay, allowances are not mentioned; when absent on leave in excess of 30 days in one year the officer is entitled to “ half pay,” there being no mention of allowances, it necessarily follows that he is not entitled to money allowances while entitled only to half pay. Accordingly you are not authorized to pay the voucher as now stated.
It would appear by reference to paragraph 9 of the War Department Special Orders No. 239-0, dated October 11, 1920, that the officer was promoted from lieutenant colonel to colonel subsequent to that date and subsequent to retirement, and that since October,
1920; he has been continuously on duty as professor of military science and tactics at the College of the City of New York. Whether or not the officer is entitled to the pay of a colonel is not considered or decided herein; but see 2 Comp. Gen., 107.
NATIONAL GUARD OFFICERS-PAY FOR CAPTAINS COMMANDING
The $240 in addition to drill pay provided by the act of June 4, 1920, 41 Stat.,
783, for captains commanding National Guard organizations, is payable for the satisfactory performance of duties connected therewith other than drills, and is not dependent upon the number of drills attended or the percentage of enlisted strength present at such drills. 1 Comp. Gen., 449,
distinguished. Comptroller General McCarl to Maj. W. D. Dabney, United States Army,
November 21, 1922.
There was received November 9, 1922, your letter of September 13, 1922, requesting decision whether you are authorized to pay supplemental pay roll therewith transmitted of Company B, One hundred and forty-second Infantry, Texas National Guard, for the semiannual period ended December 31, 1921, containing the claim of Capt. Karl C. Young for pay at the annual rate of $240 as a “captain commanding an organization ” during the period he was in an armory-drill pay status.
It is stated that the officer was not paid drill pay at the rate of onethirtieth of the monthly base pay of his grade for each drill attended * for the reason that less than 60 per cent of the enlisted strength was present at all drills held during the period.” That is, the attendence of enlisted men at each of the drills was less than 60 per cent of the enlisted strength of the company.
Section 109 of the national defense act as amended by section 47 of the act of June 4, 1920, 41 Stat., 783, so far as here material, provides :
Captains and lieutenants belonging to organizations of the National Guard sball receive compensation at the rate of one-thirtieth of the monthly base pay of their grades as prescribed for the Regular Army for each regular drill or other period of instruction authorized by the Secretary of War, not exceeding five in any one calendar month, at which they shall have been officially present for the entire required period, and at which at least 50 per centum of the commissioned strength and 60 per centum of the enlisted strength attend and participate for not less than one and one-half hours. Captains commanding organizations shall' receive $240 a year in addition to the drill pay herein prescribed.
The question is thus whether the conditions for the payment of drill pay attach also to the annual pay provided for captains commanding organizations. The conditions are attached only to the drill pay proper; the additional pay provided for captains commanding organizations was intended as compensation for the performance of duties in connection with the company other than drills. That this is the correct construction of the provision is
evident by a reading of that portion of section 14 of the act of June 10, 1922, 42 Stat., 631, providing the same annual pay, in addition to pay provided in section 109, for officers other than captains commanding organizations. That provision is:
Hereafter, in addition to the pay authorized in section 109, Act of June 3. 1916, as amended by the Act of June 4, 1920, field officers and lieutenants of the National Guard commanding organizations less than a brigade, and having administrative functions, shall receive $240 per year for the faithful performance of the administrative duties connected therewith;
Accordingly, I am of opinion that the pay at the annual rate of $240 provided for a captain commanding an organization is payable for the satisfactory performance of his duties as the organization commander under regulations of the War Department while in an armory drill pay status under section 109. The decision cited, 1 Comp. Gen., 449, considered only the drill pay proper to which the conditions fixed in the first sentence of section 109 apply, and is not affected by the decision herein.
The voucher and related papers are returned herewith, and if the voucher is otherwise correct you are authorized to pay it.
PRINTING AND BINDING-SUPREME COURT OF DISTRICT OF
The Supreme Court of the District of Columbia 18 not a Government estab
lishment at Washington within the purview of the act of June 30, 1906. 34 Stat., 762, prohibiting the use of any appropriations of Government establishments at Washington for printing and binding except such as spe cifically provide therefor, and no objection will be made to the continua. tion of the practice of charging court printing generally to the appropriation for miscellaneous expenses of the court and the cost of special print. ing and binding to the specific appropriation for printing and binding, act
of June 29, 1922, 42 Stat., 698. Comptroller General McCarl to the Public Printer, November 21, 1922.
I have your letter of October 27, 1922, requesting decision whether you are authorized to accept orders for printing and binding to be charged to the appropriation “Miscellaneous expenses, Supreme Court, District of Columbia, 1923,” made by the act of June 29, 1922, 42 Stat., 698, which act provides for
Miscellaneous expenses: For such miscellaneous expenses as may be author. ized by the Attorney General for the Supreme Court of the District of Columbia and its officers,
$22.500. Printing and binding: For printing and binding for the Supreme Court of the District of Columbia, $5,500.
You cite in this connection section 2 of the act of June 30, 1906 34 Stat., 762, which provides that thereafter annual estimates for all printing and binding required by each of the executive departments and other Government establishments at Washington, D. C., shall be submitted to Congress, and that no appropriations other than those made specifically and solely for printing and binding shall be used for such purpose in any such department or establishment.
It has heretofore been the practice to pay for printing and binding for United States courts elsewhere than in Washington from the appropriations made annually for miscellaneous expenses of United States courts. Following this general practice, printing and binding for the Supreme Court of the District of Columbia has been paid from the appropriation for miscellaneous expenses of that court, it not being considered a Government establishment within the mean. ing of the act of 1906.
It has been held that the Supreme Court of the District of Columbia is not a Government establishment at the seat of Government within the meaning of a statute regulating the purchase of law books or books of reference for such establishment. 14 Comp. Dec., 562. The same construction has been given in practice to the like term in the act of 1906, and estimates and appropriations have been made on that basis. I think the practice conforms to the general tenor of the law and appropriations, and I am not disposed to disturb it at this late day.
The question whether the expense of the printing and binding now in question shall be charged finally to the one court appropriation or the other is one involving the use of judiciary appropriations which is not properly for submission by the Public Printer. It is proper to say, however, that I am advised by the Department of Justice that the appropriation “ Printing and binding” for the Supreme Court of the District of Columbia was estimated to cover certain special printing and binding for the court and for the clerk's office, and not for court printing generally, which has been estimated for under the miscellaneous appropriation, the expense of which latter printing alone would far exceed the amount of the specific printing and binding appropriation.
The practice heretofore has been to use the specific appropriation for the special printing and the miscellaneous appropriation for general printing. I see no substantial objection to continuation of that practice. You are authorized to accept printing orders and make charges accordingly, in so far as the appropriations referred to are concerned.
QUARTERS, SUBSISTENCE, AND LAUNDRY-NURSES OF PUBLIC
A purse on duty at a Public Health Service hospital is not entitled to reimburse
ment for expense of subsistence or laundry secured personally away from the hospital when available at the hospital, notwithstanding he may for the same period be reimbursed for quarters so procured which were
unavailable at the hospital. Decision by Comptroller General McCarl, November 22, 1922.
The Secretary of the Treasury requested, October 14, 1922, review of settlements Nos. T-12828, 12926, and 12992, disallowing an aggre