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A79318 1 (1903-08-07)

handle is hein.gao/gaobadade0001 and id is 1 raw text is: DECISIONS OF THE COMPTROLLER. for leave exceeding four months niust be referred to the War Department. The direction, on the other hand, to proceed to a particu- lar place, there to await orders, how long to remain there, to attack, to retreat, or to do any other specified thing, belongs to the officer in charge. That the assignment was made at the request of the officer can make no difference. The pay is regulated by the posi- tion, and not by the manner or influence by which the position is acquired. In the case of Fitzpatrick v. United States (37 Ct. Cl., 332), the facts were that Fitzpatrick, a cadet at Annapolis, Md., received leave of absence to go to his home in New Orleans. He had paid his own traveling expenses there, and ultimately, on the expiration of his leave, his expenses back to Annapolis. While in New Orleans, and before the expiration of his leave of absence, he was ordered to Philadelphia, Pa., and placed on temporary duty in the League Island Navy- Yard, and when such duty was performed he was ordered back to his home in New Orleans. The qiestion involved in that case was whether Fitzpatrick in performing travel under said order from New Orleans to Philadelphia, was entitled to receive mileage from New Or- leans to Philadelphia, or only mileage for the distance from Annapolis, Md., to Philadelphia. The court held that he was entitled to receive mileage for said travel from New Orleans to Philadelphia. Paragraph 1482, Army Regulations of 1901, provides: An Army officer on leave of absence ordered to temporary duty involving travel without troops, will receive travel al- lowances fron place of receipt of order to place of perform- ance of duty and return. In the Fitzpatrick case the court says: ~ * * * there is a principle which has long been recog- nized both by the accounting officers, the departments, and the courts, which is, that the expiration of a leave of absence finds the officer, in legal contemplation, at his post. It neces- sitates a hard rule, viz, that where an officer's prescribed leave of absence is shortened, perhaps practically destroyed, he likewise loses his traveling expenses, if the public exigency requires his return to duty. The court understands the prin- ciple to be too well established to be disregarded or changed. An officer takes his leave of absence at his own risk; it is not granted foir the benefit of the Government; if the Govern- 116 RENT OF BUILDINGS IN DISTRICT OF COLUMBIA. 117 ment wants his services before his leave expires it must have them, and the officer who takes the risk of that must bear the loss of his personal traveling expenses. In the present case Colonel Roberts, before the expiration of his leave of absence, was ordered to proceed to his home, there to await retirement from active duty. He obeyed the order and performed the journey, and it is stated in the order that: The travel enjoined is necessary for the public service. The home of the officer, to which he was ordered, is not a military station within the meaning of Par. 1483, Army Reg- ulations of 1901, to which reference is made, and I am of opinion said regulation has no application to this case. (See United States v. Phisterer, 94 U. S., 219.) Upon the facts stated, I am of opinion, and so decide, that for said journey Colonel Roberts is entitled to receive mileage from Fort Sam Houston, Tex., the place where he received said order, to his home at Lakeville, Conn., and if the account is otherwise correct, you are authorized to direct that he be so paid. RENT OF BUILDINGS FOR USE OF THE GOVERN- MENT OF THE DISTRICT OF COLUMBIA. The provision in the act of June 22, 1874, that no contract shall be made for the rent of any building, or part of any building, in Washington, to be used for the purpose of the Government until an appropriation therefor shall be made in terms by Congress, is applicable to the government of the District of Columbia. (Comptroller Tracewell to the Comnissioners of the District of Colunbia, Auguist 7, 1903.) In your communication of July 30, 1903, you refer to the provision in the act of June 22, 1874 (18 Stat., 144), that- hereafter no contract shall be made for the rent of any building, or part of any building, in Washington, not now in use by the Government, to be used for the purposes of the Government until an appropriation therefor shall have been made in terms by Congress, and request my decision of the question of the extent, if any, to which this provision is applicable to the government of the District of Columbia. .

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