"The matter is therefore respectfully referred to you for a decision as to whether Deputy Robinson can be permanently transferred to Grand Rapids and given an increase in salary." The last clause of section 7 of the deficiency appropriation act (37 Stat., 626), prohibiting transfers to lump-sum rolls and payment therefrom of an increased rate of compensation applies only to transfers from positions whose compensation is specifically fixed by law. The salaries of office deputy marshals are not specifically fixed by statute, but are paid from the lump-sum appropriation for "Salaries, fees, and expenses of marshals, United States courts," in such amounts as you may fix and allow. It follows that the prohibitory clause of the section relating to transfers does not apply to persons who are transferred from one office deputy marshalship to another like office. The first clause of the section prohibits the payment of the prescribed rate of compensation from any lump-sum appropriation contained in that act or in any appropriation thereafter made. The deficiency act was approved on August 26, 1912, and the lump-sum appropriation for salaries and expenses of marshals is found in the sundry civil appropriation act (37 Stat., 465) which was approved on August 24, 1912. It follows that this clause also is inapplicable to the case in hand, and there is, therefore, nothing in the section quoted which prohibits either the proposed transfer or the payment thereafter of the increased rate of compensation. FEES AND EXPENSES OF FIELD DEPUTY MARSHAL SERVING WRIT OF VENIRE. A field deputy marshal who travels to make personal service of a regular venire on a person who resides elsewhere than the place where court is held is not entitled under section 279 of the Judicial Code (36 Stat., 1165) to mileage in going to serve nor to actual expense in lieu thereof. The code contemplates service by mail by the marshal or an office deputy, and a field deputy is therefore not entitled to fee for making the service. Decision by Comptroller Tracewell, December 7, 1912: J. Duncan Adams, United States marshal for the district of South Carolina, appealed November 21, 1912, from the action of the Auditor for the State and Other Departments in disallowing, per judicial certificate No. 4767, dated November 13, 1912, an item of $2.67 paid to a field deputy marshal for fees and actual expense in lieu of mileage claimed by him for serving a writ of venire on one T. H. Foster, residing at Reedy River, S. C. Section 279 of the Judicial Code (36 Stat., 1165) provides: "Write of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the mar shal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. Any person named in such a writ who resides elsewhere than at the place at which the court is held shall be served by the marshal mailing a copy thereof to such person, commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and deposited in the post office, addressed to such person at his usual post-office address. And the receipt of the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts." This section applies to regular venires only, other provision being made by sections 280 and 281 of the code for returning talesmen and special jury panels into court. The instructions of the Department of Justice governing United States marshals (pars. 920, 923) provide that all process issued by clerks of courts shall be sent directly to the office of the marshal unless there is need for immediate service. There being no need for immediate service of regular venires all such writs should be sent in the first instance to the marshal's office. The marshal or his office deputy should, under section 279, supra, mail a copy of the venire to each person named therein who resides elsewhere than at the place of holding court. Under this procedure, which the statute clearly contemplates, the Government incurs no expense whatever in connection with the service of such persons, except the expense of postage and registry fee, for which provision is made in the section. Personal service is still permitted where the juror resides at the place where court is to be held; and where it is necessary that such service be made by a field deputy marshal he is entitled to the fee provided for the service of a venire and for any necessary mileage in going to serve. In this case court was to be held at Greenville and the juror in question resided at Reedy River, which is 7 miles from Greenville. His post office was given as Greenville, and the venire was accordingly sent to this deputy, who lives at Greenville, for service. The deputy used his own horse and buggy to make personal service at Reedy River, for which he charges the Government the fee for serving, and $2 in lieu of mileage going to serve. There was no necessity for immediate service, and the deputy was not justified in making personal service on this juror at Reedy River. He should either have mailed a copy of the venire, as provided by the statute, or returned the writ to the marshal's office with the information that personal service was not authorized because the juror resided elsewhere than at Greenville. He is not entitled to the fee for serving the writ, nor to actual expense in lieu of mileage, and the auditor's disallowance is sustained-except that an item of 333 cents for the service of the venire upon another person who resides in Greenville, which was inadvertently included in this disallowance, is allowed on revision. COMMUTATION OF QUARTERS OF ARMY VETERINARIAN WHEN ON TEMPORARY DUTY WITHOUT TROOPS AT STATIONS WHERE PUBLIC QUARTERS ARE NOT AVAILABLE. Under the acts of May 11, 1908 (35 Stat., 113), and February 2, 1901 (31 Stat., 753), an Army veterinarian when on temporary duty without troops at stations where public quarters are not available is entitled to the same commutation of quarters as a second lieutenant of the Army when on duty without troops at stations where there are no public quarters. Decision by Comptroller Tracewell, December 9, 1912: Robert J. Foster appealed November 26, 1912, from the action of the Auditor for the War Department in settlement No. 206119, of November 21, 1912, wherein his claim for commutation of quarters from March 20 to 23, 1909, as veterinarian, Twelfth United States Cavalry, was disallowed, as follows: "The act of May 11, 1908, provides commutation of quarters to commissioned officers and is not applicable to veterinarians." Special Orders, No. 8, dated Headquarters Department of the Gulf, Atlanta, Ga., January 15, 1909, reads: "3. Capt. Robert E. L. Michie, Twelfth Cavalry, accompanied by Veterinarian Robert J. Foster, Twelfth Cavalry, will, in compliance with instructions contained in indorsement from the War Department, dated January 13, 1909, proceed to such points in Tennessee as may be necessary, for the purpose of inspecting and purchasing Cavalry and Artillery horses for the Army. Upon completion of this duty, Capt. Michie and Veterinarian Foster will return to their proper station. "The travel directed is necessary in the military service. "By order of Col. Dodd." The records show that in accordance with instructions in said order the appellant accompanied Capt. Michie to various places in Tennessee where he was on duty in connection with the work of purchasing horses for the Army during the period for which he claims commutation of quarters, March 20 to May 23, 1909, upon which latter date he returned to his station, Fort Oglethorpe, Ga. The act of February 2, 1901 (31 Stat., 753), provides that veterinarians "shall receive the pay and allowances of second lieutenants mounted." The act of May 11, 1908 (35 Stat., 113), provides: "For commutation of quarters to commissioned officers without troops at stations where there are no public quarters." Paragraphs 89 and 1322, Army Regulations, 1908, read: "89. A veterinarian has the pay of a second lieutenant and is entitled to the same allowances in kind, fuel, and lights.” "1322. An officer does not lose his right to quarters * at his permanent station by a temporary absence on duty. While he continues to claim and exercise that right he can not legally demand quarters at any other station." * * * The claimant states: "During the period covered by this claim I was not in receipt of quarters in kind. Prior to leaving Fort Oglethorpe upon this detail I had packed up all my property at that station and vacated the quarters which I had occupied there. These quarters, two rooms, in the bachelor buildings, were available for assignment and were in fact assigned to and occupied by Veterinarian Alex. McDonald, United States Army, during my absence." In construing the provisions of law applicable to the pay and allowances of a veterinarian of the Army, it was held (15 Comp. Dec., 822) that * "Fourth. He is entitled, on and after May 11, 1908, by virtue of the act of February 2, 1901, to the same commutation of quarters as a second lieutenant-that is, for two rooms at $12 per month-when he is on duty without troops at stations where there are no public quarters * * It does not appear that the appellant was in receipt of quarters in kind during the period March 20 to May 23, 1909, the records showing that Capt. Michie, acting quartermaster, reported on May 24, 1909, that it was "impracticable to lease quarters for him while on this duty, the stay at different points being only from one to several days." I do not concur in the action of the auditor in this case. In my judgment the purpose and design of the provisions of the act of February 2, 1901, supra, that veterinarians "shall receive the pay and allowances of second lieutenants mounted" were to give veterinarians the same allowances that a second lieutenant received "when on duty without troops at stations where there are no public quarters," and if such second lieutenant would have been entitled to commutation of quarters under circumstances like those of Veterinarian Foster in the claim now asserted, it is clear to my mind that the latter would be equally entitled to be paid from the same appropriation. The act of February 2, 1901, supra, did not provide that veterinarians should be commissioned officers (9 Comp. Dec., 456), but it did give them in addition to their pay the allowances of a commissioned officer-that of a second lieutenant-and hence the appellant would be entitled, if said appropriation of May 11, 1908, supra, was now available, to have his claim adjusted and paid from it without having it certified to Congress. I am aware of the fact that this office has held otherwise (15 Comp. Dec., 822; 18 id., 937), but in view of the law cited I am unable to come to any other conclusion in the case under consideration. The action of the auditor is therefore disaffirmed and a certificate of differences will issue in which the claimant will be allowed commutation of quarters for the period claimed, March 20 to May 23, 1909, at $24 per month, aggregating $51.20. EMPLOYMENT OF DRAFTSMEN FOR MILITARY INFORMATION SECTION, GENERAL STAFF CORPS, AT MANILA. The appropriation "Contingencies, military information section, General Staff Corps, 1912," is not available for employment of draftsmen in view of the specific prohibition contained in section 3682 of the Revised Statutes against expending funds appropriated for contingent, incidental, and miscellaneous purposes for official or clerical compensation. Decision by Comptroller Tracewell, December 10, 1912: The Secretary of War, November 21, 1912, appealed from the action of the Auditor for the War Department in settlement No. 24153, dated July 29, 1912, of the account of Henry D. Todd, jr., major, Coast Artillery Corps (General Staff), in disallowing the payment of the following vouchers under the appropriation "Contingencies, military information section, General Staff Corps, 1912": Voucher 1. Pay roll, July, 1911 (draftsmen). $130.00 130.00 130.00 130.00 130.00 65.00 72.50 145.00 145.00 For contingent expenses of the military information section, General Staff Corps, including the purchase of law books, professional books of reference, professional and technical periodicals and newspapers, and of the military attachés at the United States embassies and legations abroad; and of the branch office of the military information section at Manila, to be expended under the direction of the Secretary of War, ten thousand dollars: Provided, That section thirty-six hundred and forty-eight, Revised Statutes, shall not apply to subscriptions for foreign and professional newspapers and periodicals to be paid for from this appropriation." |