any official or employee under said department contain in the body of such orders general or explicit instructions that will cause such official or employee to travel via a vessel flying the American flag in all cases where such vessels are operating on regularly established routes, except when the public interest may require a different

course.

I understand that the question involved in your submission is whether in the event such regulations are promulgated the officer or employee performing travel in accordance therewith could be reimbursed for the increased cost or additional expense, if any, over what would have been incurred if the travel had been performed on a foreign vessel having a cheaper rate or an earlier sailing date.

If, as may be inferred from the correspondence accompanying your submission, the proposed regulation is in the interest of the United States and not for the personal benefit of the traveler reimbursement would be authorized thereunder as though the travel by the vessel flying the American flag was the only means of transportation available, and the sailing date of such vessel may be regarded for all purposes as the first available sailing date after receipt of said order. It is to be understood the requirement must be made so general as to the vessels flying the American flag that a particular vessel flying the American flag may not be directed for the travel to the exclusion of other vessels flying the American flag sooner departing. The question submitted is answered accordingly.

COMPENSATION FOR OVERTIME UNDER APPOINTMENT SPECIFICALLY PROVIDING THEREFOR.

Appointments fixing compensation at a certain rate per day for not less than seven hours' work between 6 a. m. and 6 p. m. and at a certain rate per hour for overtime service rendered between 6 p. m. and 6 a. m. are not authorized.

Comptroller General McCarl to the Secretary of Agriculture, August 5, 1922: I have your letter of June 3, 1922, as follows:

It is proposed to readjust the compensation of grain supervisors and grain samplers of the Bureau of Markets and Crop Estimates so as to provide payment for official services rendered outside of official hours. This will be ac complished by appointments reading as follows:

At the rate of $4.80 per diem for not less than seven hours service between the hours of 6 a. m. and 6 p. m., and at the rate of 75 cents per hour for not exceeding six hours overtime service between the hours of 6 p. m. and 6 a. m.: Provided, That the minimum service for which overtime pay will be allowed shall be one-half hour; service in excess of the minimum to be paid on the basis of half-hour periods; fifteen minutes or more to be counted as one-half hour, but less than fifteen minutes will not be counted.

The rate per diem of $4.80, specified above, will be correspondingly increased where employees are now receiving more than $1,500 per annum.

It is necessary for employees of the classes specified to perform considerable work outside of regular official office hours and consequently it is difficult to retain in the service at the ordinary rates of compensation men who are competent and reliable.

As a practical matter the additional compensation for overtime work at the rate of 75 cents per hour for not to exceed six hours per day will not exceed an average per man of $200 per annum. This is not as much as is paid for overtime work of grain samplers and inspectors in the employ of private and State organizations.

The only doubt as to the legality of the proposed appointments arises on account of the provisions of sections 170 and 1764 of the Revised Statutes, as follows:

(Section 170) No money shall be paid to any clerk employed in either department at an annual salary, as compensation for extra services, unless expressly authorized by law.

(Section 1764) No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.

The manuscript decision of the Comptroller of the Treasury, dated August 27, 1915, to the Secretary of Agriculture holds that additional compensation may be paid to special observers of the Weather Bureau, when such employees are required to work at unusual times. By a parity of reasoning it would seem to follow that the proposed payment for overtime to employees of the Bureau of Markets and Crop Estimates of this department is legally permissible. Your decision is, therefore, requested as to whether or not payments for overtime work under appointments of this character may be legally made.

I understand these employees are paid under lump-sum appropriations and that their compensation is fixed by you on appointment. They are understood to be employees of the executive department within the provisions of the act of March 15, 1898, 30 Stat., 316, which requires in the executive departments that not less than seven hours of labor shall be required of the clerks and other employees of whatever grade or class, and also specifies the leave of absence which may be granted to such employees. Your authority, therefore, to fix the compensation of employees must have relation to those provisions and also the provisions of the Revised Statutes, sections 170 and 1764, cited in your submission.

The law fixes a minimum number of hours of employment in the executive departments but does not limit the maximum therefor. I would be constrained to take the view that all employees, in the fixing of their compensation, whether in the appropriation act itself or coming under the general authority given in the lump-sum appropriation to fix the amount of the compensation, must be required to perform the duties of their employment entailed thereby without regard to whether it be seven hours or more and that in fixing a compensation under a lump-sum appropriation the compensation must be fixed in a definite amount for the service required in the position similarly to positions which are on an annual basis and that there may not be a varying and uncertain amount of compensation based on the number of hours employed. The enactments must be understood as requiring uniformity in this respect among the employees of the executive departments and a varying compensation based on hours of employment beyond the usual and customary hours of the department would be understood as nothing less than payment for

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overtime and not as the actual compensation of the position which the law intends shall be fixed in the first instance. Your submission correctly expresses it as overtime.

It is proper in fixing the compensation to have regard to the fact that the duties require uncertain hours and generally more hours of employment than the usual and customary hours in the department, but this furnishes no reason for fixing the compensation otherwise than in full in the first instance and not in variations. An employment in an executive department does not contemplate that there shall be compensation according to more or less hours of employment, particularly in which the employee may be under no control as to the hours or labor and may at will obtain greater compensation by remaining on duty additional hours. But, however this may be, I am constrained to the view that the laws cited with relation to the executive departments contemplate the exact compensation payable in the same amount for the day regardless of its length, similarly to those employees who are at an annual compensation.

Your question is answered negatively.

TRAVEL ALLOWANCE-DISCHARGED ARMY OFFICER DELAYING TRAVEL FOR PERSONAL CONVENIENCE.

A delay of two years on the part of a discharged Army officer in applying for transportation or performing actual travel to his home is unreasonable and must be held to have been for his own pleasure and convenience, and reimbursement for the cost of such travel performed at his own expense is not authorized.

Decision by Comptroller General McCarl, August 7, 1922:

Shirley F. Wing applied April 1, 1922, for review of settlement No. W-801739, dated February 17, 1922, allowing only $18.68 upon his claim for $225 on account of travel pay from Camp Dix, N. J., to Paris, France, on discharge from the United States Army October 13, 1919.

It appears that the claimant was in business in Paris, France; that on September 24, 1918, he was appointed second lieutenant, Infantry, which commission was accepted by him October 25, 1918; that he returned to the United States and was discharged October 13, 1919, at Camp Dix, N. J.

Claimant stated April 1, 1922, that since receiving the letter from this office dated August 25, 1921, he had accomplished the travel from New York to Marseille via the steamship Patria of the Fabre Line, for which travel the expense incurred, exclusive of incidentals was $225, and the claim was for the reimbursement of that amount. It does not appear that claimant requested transportation for the return to Paris, France, at the time of his discharge from the Army. It would, however, appear that he filed claim for an allowance in

lieu of actual transportation. It is shown that claimant was paid $18.44 for travel pay for land travel between Camp Dix, N. J., and Paris, France, in June, 1920, and that on July 2, 1920, he was informed that he should make application for transportation for water travel through the water transportation division, Transportation Service, Washington, D. C. It appears, however, that such request was not made until July 6, 1921. During this delay in making request the time set by the Government for furnishing transportation by Army transport had expired.

The time that the travel was actually performed by the claimant is not definitely shown, but it was approximately two years after his discharge from the Army. As this travel was not performed within a reasonable time, it must be held that it was made for his own pleasure and convenience and that reimbursement is not authorized. On May 10, 1922, the Chief of Finance advised this office that claimant had been paid $18.44 travel pay for land travel between Camp Dix, N. J., and Paris, France, on voucher 809, June, 1920, accounts of Maj. A. H. Williams, Quartermaster Corps. The amount allowed in the settlement for travel pay between the same places is a duplicate payment, and such payment is hereby disallowed.

Upon review of the matter the settlement is reversed and $18.68 certified due the United States.

Check for $18.68 issued on warrant No. 25243, dated February 21, 1922, has been forwarded to the Secretary of the Treasury, the amount thereof to be covered into the Treasury to the credit of the appropriation under which it was drawn.

PAYMENT BY FEDERAL GOVERNMENT OF A STATE TAX ON

GASOLINE.

The Federal Government can not be required to pay the tax, as such, assessed by the State of Maryland on the sale of gasoline, but if a dealer in the State in fixing the price of the gasoline to the Government included therein an amount sufficient to cover the tax no objection to the payment of the price thus fixed can be made upon the ground that a tax was taken into consideration by the dealer in fixing it, the question of how the price was arrived at being immaterial.

Comptroller General McCarl to the Secretary of Agriculture, August 7, 1922: I have your letter of July 21, 1922, requesting decision whether in the purchase of gasoline in Maryland for use in Government-owned trucks and automobiles payment is authorized of the tax imposed under chapter 521, Public General Laws of Maryland, approved April 13, 1922, effective June 1, 1922, on sale of gasoline for use in motor vehicles.

It has been held that the gasoline tax imposed under the laws of the State of Pennsylvania is not applicable to purchases made by

or for the Federal Government. 1 Comp. Gen., 229. But under that law it is expressly provided that the tax "shall be paid by the person, firm, association, or corporation purchasing gasoline for his or its own use and not for the purpose of resale," the dealer merely acting as the agent or instrumentality of the Commonwealth in collecting the tax from the purchaser.

While the Maryland law recognizes the fact that the burden of the tax imposed upon and paid by the dealer will be passed on to the consumer and also permits the purchaser to claim a refund in case the gasoline purchased is intended and used for certain purposes "other than in motor vehicles operated or intended to be operated upon any of the public highways of the State of Maryland," yet the tax is, nevertheless, a tax imposed upon and collected from the dealer, section 2 of the act reading as follows:

That in addition to the taxes now provided for by law, each and every dealer, as defined in this act, who is now engaged or who may hereafter engage in his own name, or in the name of others, or in the name of his representatives or agents in this State, in the sale or use of motor vehicle fuel as herein defined shall, not later than the last day of each calendar month, render to the comptroller a statement of all motor vehicle fuel sold or used by him or them in the State of Maryland during the preceding calendar month, and pay a license tax of one cent (1 c.) per gallon on all motor vehicle fuel as shown by such statement in the manner and within the time hereinafter stipulated; provided, however, in cases of compounds, credit shall be allowed for any tax already paid on any of the ingredients entering into such compound.

Section 4 of the act contains a provision which reads:

Bills shall be rendered to all purchasers of motor vehicle fuel by dealers in motor vehicle fuel as herein defined, except in cases of retail sales where exemption is not claimed by the purchaser under the terms of this act. Said bills shall contain a statement printed thereon in a conspicuous place that the liability to the State for the license tax herein imposed has been assumed and that he or they will pay said license tax on or before the last day of the following month.

The dealer is not required to state the amount of the tax separately from the price of gasoline, nor is he authorized by the law to collect the tax as such from the purchaser. If he does in fact pass the burden of tax on to the purchaser, he does so in fixing the price of gasoline. In this respect the Maryland law differs from the Pennsylvania law and is similar to the South Carolina law which was considered in my decision of April 22, 1922. 1 Comp. Gen., 584.

Answering your question specifically I have to advise that the United States Government could not be required to pay a State tax as such, but in purchasing gasoline in the State of Maryland it can not object if the dealer has taken a tax into consideration in fixing the price of the gasoline. The question as to how the price is constituted or arrived at is not material. 25 Comp. Dec., 862; 1 Comp. Gen., 584.