is apparent why temporary disability retirement status should change the situation so as to require different answers if the member was retired for permanent physical disability. Question 2 is answered accordingly.

Question 3 is as follows:

3. If otherwise applicable, would the dual compensation provisions of section 212 of the Economy Act of June 30, 1932, as amended, 5 U.S.C. 59a, apply in the case of:

a. A permanent regular commissioned warrant officer, voluntarily retired as such, advanced on the retired list to a higher commissioned officer grade, and receiving retired pay based upon his commissioned warrant officer grade?

b. A permanent regular commissioned warrant officer, voluntarily retired as such, advanced on the retired list to a higher commissioned officer grade, and receiving retired pay based upon such higher grade?

Warrant officers may be voluntarily retired under the provisions of 10 U.S.C. 1293 when they have at least 20 years of active service. When so retired, their retired pay is computed under Formula 4, 10 U.S.C. 1401. Accordingly, the answers to the questions here involved are the same as the answers to questions 1a and 1b. Question 3a is answered in the negative and question 3b in the affirmative.

Question 4 is as follows:

4. Would the answers to the foregoing questions apply in similar instances involving regular warrant officers of the Army and Air Force?

Regular warrant officers of the Army and Air Force clearly are not commissioned officers. Insofar as the matters here involved are concerned, if they become entitled to retired pay under circumstances similar to those discussed above, they are subject to the dual compensation restrictions of the Economy Act to the extent there indicated. Accordingly, question 4 is answered in the affirmative.

[B-126978]

Military Personnel—Parking Fees-Privately Owned Automobiles-At Common Carrier Terminal

An amendment of the Joint Travel Regulations to provide for reimbursement of parking fees in addition to mileage for members of the uniformed services who use their privately owned automobiles, in lieu of public transportation, for official travel from home or duty station to a common carrier terminal would be proper and in consonance with section 2(m) of the act of September 1, 1954, 40 U.S.C. 491 (m), which was designed to allow travel expenses to members of the uniformed services on the same basis as for civilian employees, provided that the mileage is limited to one round trip and that the parking fees plus mileage do not exceed the taxi fare. B-126978, May 17, 1956, modified. To the Secretary of the Army, June 7, 1960:

Reference is made to letter of April 4, 1960, from the Assistant Secretary of the Army (Manpower, Personnel and Reserve Forces), requesting reconsideration of our decision of May 17, 1956, B-126978,

to the Secretary of the Air Force, with respect to authority for payment of parking fees of members of the uniformed services under certain circumstances. The request was assigned PDTATAC Control No. 60-13.

The Assistant Secretary says that in the decision of May 17, 1956, it was held that while there would appear to be no objection to the payment of a monetary allowance to a member of the uniformed services for the use of his personally owned automobile, in lieu of public transportation from place of abode or business to public carriers, and return, there is no statutory authority for the payment of parking fees in addition to such allowance. He states that in that decision it was pointed out that decision of February 26, 1952, 31 Comp. Gen. 424, which allowed parking fees in addition to mileage for travel by a civilian employee by privately owned automobile from the employee's residence to airport and return, not to exceed usually allowable taxicab fare, was based on the statutes and regulations governing official travel of civilian personnel which differ in some respects from those applicable to military personnel.

The Assistant Secretary further states, however, that in decision of August 26, 1959, 39 Comp. Gen. 131, in which we interposed no objection to a proposed amendment to the Joint Travel Regulations to authorize payment of an allowance based on round-trip mileage for the use of a privately owned automobile in certain circumstances, we cited the provisions of section 2(m) of the act of September 1, 1954, 68 Stat. 1129, 40 U.S.C. 491 (m), and Senate Report No. 1941, on H.R. 8753, 83d Congress, 2d Session (which became the act of September 1, 1954), in which, on page 8, the Senate Committee on Government Operations, referring to section 2 (m), stated that "It is the purpose of this subsection to allow payment to members of the uniformed services for those traveling expenses on the same basis as permitted for civilian Government employees."

Therefore, and since the Assistant Secretary believes that for certain travel on official business, payment of mileage plus parking fees would be more economical to the Government than taxicab fare, he requests authority to amend the Joint Travel Regulations to provide for reimbursement for parking fees in such cases.

In the decision of August 26, 1959, we said we would interpose no objection to proposed amendments to paragraphs 4401-2 and 4402 of the Joint Travel Regulations to authorize payment to members of the uniformed services of a round-trip mileage allowance of seven cents per mile, in lieu of reimbursement for the use of taxicabs, for each trip by privately owned automobile between the member's residence or duty station and carrier terminal or terminal to home incident

551978 61 - 54

to performance of actual travel away from post of duty, not to exceed the usual taxicab fare, including allowable tip, for a one-way trip from home to terminal or terminal to home as authorized by the Standardized Government Travel Regulations for civilian employees. This action was based on the conclusion that, in the light of the legislative history of section 2(m) of the act of September 1, 1954, 40 U.S.C. 491 (m), the pertinent provisions of that act together with the provisions of section 303 (a) of the Career Compensation Act of 1949, 37 U.S.C. 253 (a), appeared to provide, within the 7 cents per mile limitation, substantially the same authority for reimbursement of transportation expenses for travel on public business within or outside the designated posts of duty that is provided for civilian employees by the Travel Expense Act of 1949, 63 Stat. 166, as amended, 5 U.S.C. 837, which is the statutory authority for the promulgation of the Standardized Government Travel Regulations.

While there is no specific authority for payment of parking fees as such, in either the civilian or military travel regulations, civilian travelers are allowed certain parking fees in addition to mileage when the combined amount of mileage and parking fees does not exceed taxi fare to and from the carrier terminal. And the reimbursement situation with respect to payment of such fees appears to be substantially the same as that with respect to the payment of round-trip mileage for the two round trips under the circumstances considered in our decision of August 26, 1959, B-126978. We, therefore, conclude that the Joint Travel Regulations may be amended to authorize reimbursement for such fees plus mileage for one round trip from home or duty station to carrier terminal in the limited area of travel involved in 31 Comp. Gen. 424 if the total expense does not exceed taxi fare. Decision of May 17, 1956, B-126978, is modified accordingly.

[B-142528]

State Taxes-Gasoline-Applicability to National Park Roads

Oregon

The applicability of an Oregon statute, which provides for the refund of motor vehicle fuel taxes where the fuel is used on any road or thoroughfare other than a state highway or county road and where the user is obligated under an agreement with the United States or its licensee to construct or maintain the road at the user's expense, to motor vehicle fuel used exclusively by the United States on roads in a national park, which are maintained exclusively by the United States without any assistance from the State, must be governed by a reasonable construction on the basis that the equitable considerations in the statute require granting the refund to the United States and, therefore, the United States may set off from moneys due the state motor vehicle fuel taxes paid on fuel used exclusively on national park roads.

To the State Highway Department of Oregon, June 7, 1960: Reference is made to letter dated February 16, 1960, from your office to the Corps of Engineers, U.S. Army, protesting deduction of $1,554.72, representing refund of State motor vehicle fuel taxes, from a check for reimbursement for work on the Columbia River Highway. By letter of March 29, 1960, you were advised that your letter had been referred to this Office for consideration.

The United States claim for refund of Oregon motor vehicle fuel taxes is based upon application of the provisions of 2 ORS, 1953 Ed., 319.320 with respect to taxes paid on motor vehicle fuel used exclusively by the United States within Crater Lake National Park, Crater Lake, Oregon. Section 319.320 provides in pertinent part that:

Any person [and under ORS 319.010 (12), "person" includes the United States] using motor vehicle fuel for the purpose of operating or propelling trucks or other automobile vehicles, whether licensed to operate upon the public highways of this state or not, over (1) any road, thoroughfare or property in private ownership, or (2) any road or thoroughfare, other than a state highway or county road, pursuant to an agreement with any agency of the United States or with a licensee of such agency, or both, if the agreement imposes upon the user of such road or thoroughfare the obligation either to construct such road or thoroughfare at his own expense, to maintain the same at his own expense, or to pay such agency or licensee of such agency a reasonable consideration for the use or right of way of such road or thoroughfare and who has paid any tax on such motor vehicle fuels levied or directed to be paid, as provided by ORS 319.010 to 319.430, is entitled to claim a refund of the tax so paid on such fuels or for the porportionate part of tax paid on fuels used in the operation of such vehicles, when a part of the operations are over such roads, thoroughfares or property.

The Federal Government has exclusive jurisdiction over all roads in Crater Lake National.Park. All construction, maintenance, snow removal, policing, etc., is carried on without assistance in any way from the State of Oregon. The roads are not open to unrestricted public travel, their use being subject to Federal regulations, control and the payment of prescribed fees.

Your Department maintains, notwithstanding the complete control exercised by the Federal Government over these national park roads, that the tax refund provisions of ORS 319.320 do not apply. Four opinions of the Attorney General of the State of Oregon holding that similar statutes did not include roads through national forest or park lands are relied upon-Opinions of the Attorney General, 1934–1936, p. 644; id. 1936-1938, p. 509; id. 1946-1948, p. 130; id. p. 495. We have reviewed the cited opinions and do not find that they are controlling with respect to the United States claim here involved. A fifth opinion, Number 4438, dated April 22, 1959, was also referred to, but we were not able to obtain a copy thereof for review.

In each of the above four cases, there was involved the question of whether users other than the United States of national forest or park roads were entitled to refund of motor vehicle fuel taxes on the

basis of provisions of law providing for such refund where the fuel involved was used "upon privately owned and maintained roads or property." Section 55-1611, as amended, Oregon Code 1930; section 28, chapter 413, Oregon Laws 1945. The opinions uniformly held that national forest and park roads are "public highways" and that therefore the tax refund provisions referred to did not apply. It is to be noted that the 1945 fuel tax act made specific provision for refunds to the United States Government where motor vehicle fuel was used in the performance of governmental functions or works. Chapter 413, § 29, Oregon Laws, 1945.

But the instant claim for refund is not necessarily based upon the proposition that national park roads are privately owned or upon privately owned property. Clause (2) of section 319.320 provides for refund of motor vehicle fuel taxes where the fuel is used on any road or thoroughfare other than a state highway or county road and where the user is obligated under agreement with the United States or its licensee to construct or maintain the road or throughfare at the user's expense or to pay a reasonable consideration for the use or right-of-way thereof. National park roads clearly are not state highways or county roads within the purview of clause (2). Therefore, the holding in Opinions of the Attorney General, 1946-1948, p. 495, denying tax refund to a private corporation in a situation involving a United States forest road which was authorized by the United States to be reconstructed, maintained and used by the corporation, would not appear to be for application under the present law. And it would appear that users of such roads who are required to pay a fee to the United States are also entitled under clause (2) to appropriate refunds of taxes.

We submit that it is anomalous to construe the Oregon statute as authorizing a refund of motor vehicle fuel taxes to persons who are granted by the United States the license to construct, maintain, or use its roads but that where such roads are constructed, maintained and used by the United States itself, refund of taxes to the United States is not authorized. Reading clauses (1) and (2) of section 319.320 together it is manifest that the legislature of the State of Oregon has recognized the equities dictating that fuel used in vehicles traveling over private property should not be taxed and, so far as public thoroughfares of the United States are concerned, for the construction or maintenance of which neither the State nor any county contributes, that users thereof should not be required to bear any reasonable portion of the expense of constructing or maintaining them and to pay motor vehicle fuel taxes also. And we believe the only reasonable construction of the statute requires the granting of