Opinion of the Court It is said that legislation providing for the payment of travel expenses without limit is not unusual and statutes applying particularly to the Customs Service are cited, but the argument loses its force when it is suggested that those enactments preceded the act of 1914, and that that act was evidently intended to cure evils which had grown up under those and other similar statutes. After the passage of the act of March 4, 1923, the Secretary of the Treasury construed section 5 as superseding not only the act of April 6, 1914, but also the act of August 1, 1914, authorizing a per diem in lieu of subsistence, and directed that reimbursement for subsistence in connection with official travel in the Customs Service should be made "for expenses actually incurred therefor," but that "no sum for such expenses actually incurred in excess of $8 per day will be allowed." The Secretary thus by virtue of the act of 1923 took the Customs Service out of the operation of the act of April 6, 1914, but seemed unwilling to interpret the act of 1923 as meaning what it said, without limitation. It is not necessary to decide the question, but it bears on the proper construction of the act of 1923 to say that no authority was given the Secretary to put any limitation on whatever rights may have been given by section 5 of that act. If the construction put upon that section was right and it took the Customs Service out of the operation of the act of April 6, 1914, and, freed from the restrictions of that act, allowed all expenses actually incurred for subsistence, the only condition was that the expenses should be "actually incurred," and if, perchance, a traveler of luxurious and epicurean tastes should actually incur a subsistence expense of fifteen, twenty, or twenty-five dollars per day, or even more, the right of reimbursement would be a statutory one which the Secretary might not curtail. For it is noticeable that while "traveling expenses " are limited by the word 66 necessary," ," there is not even that limitation on subsistence expenses if this section is to stand alone. The plaintiff, it should be said, disclaims the assertion of any right under the $8 per day regulation, being apparently of the opinion that it was unauthorized, but founds his claim on the law alone; that is, on section 5 of the act of March 4, 1923. Opinion of the Court To sustain the plaintiff's contention is to hold that Congress intended to grant this broad right absolutely without limit and turn this particular class of employees out to live in luxury and reimburse them whatever they might see fit to expend upon proof only that they incurred the expense. We are not concerned with the policy of Congress in respect to what it should or should not do, but we may consider its accustomed policy in a particular respect when we seek to determine what it has done; and we may consider as persuasive the inference that it did not intend to depart from a given policy, unless that intention clearly appears. Since the passage of the act of April 6, 1914, it has been its policy, in compliance with the provisions of that act, to expressly so provide when it intended to depart from the limitations contained therein. With that act in force and its provisions evidently in mind in other cases, it seems unreasonable to conclude that as to this particular branch of the public service it intended to completely let down the bars by wiping out all existing limitations and providing no others. The following statutes subsequent to the act of April 6, 1914, may be noted. The act of March 4, 1919 (40 Stat. 1325, at 1334), provided that consular inspectors should be allowed actual and necessary expenses for subsistence "not exceeding an average of $8 per day." The act of July 1, 1918 (40 Stat. 634, at 683), provided that the maximum allowance" for actual expenses of subsistence" to the United States attorney for the District of Columbia and his assistants when absent from the District of Columbia on official business should be $4 per day. The act of March 3, 1919 (40 Stat. 1291, at 1296), provided that supervisors of the census might be allowed actual and necessary traveling expenses and an allowance in lieu of subsistence not exceeding $4 per day. The act of June 10, 1922 (42 Stat. 625, at 631), provided that no officer of the services mentioned in the title of the act should be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty away from his designated post of duty, nor any sum for any expenses actually incurred in excess of $7 per day. The act of September 21, 1922 (42 Stat. 858, at 972), provided that general appraisers, stenographic Opinion of the Court clerks, and Government counsel shall each be allowed and paid his necessary expenses of travel and his reasonable expenses, not to exceed $10 per day in the case of general appraisers and Government counsel and $8 per day in the case of stenographic clerks, actually incurred for maintenance while absent from New York on official business. The act of March 4, 1923 (42 Stat. 1503, amended section 370 R. S.), which had allowed certain officers of the Department of Justice "actual and necessary expenses while absent from the seat of government," by providing that such officers should receive in addition to their salary and the necessary expenses of travel their "actual expenses incurred for subsistence, not to exceed $6 per day." It is noticeable that the last-mentioned act bears the same date as the act of March 4, 1923, here in question. It is also to be observed that none of the acts cited place upon the allowance of subsistence expenses the same limitation provided in the act of April 6, 1914, but that each provides a different limitation, in some cases less and in some cases more. The reasonable inference is that where Congress did not provide a different limitation it intended the limitation in the act of April 6, 1914, to apply. Suggestion is made of the fact that the Secretary of the Treasury, in submitting to the chairman of the House committee a report on the bill which afterwards became the act of March 4, 1923, suggested or perhaps recommended the insertion in section 5 of the words "not to exceed $8 per day" and that they were not inserted, the committee report being silent on the subject. Is it reasonable to assume that the committee in charge ignored this suggestion because it wished by this section to allow subsistence expenses without limit, or is it the more reasonable to conclude that it ignored the suggestion because it was unwilling to increase the existing limitation to the amount suggested? The usual disposition of Congress in such matters should answer the question. If the conditions to be met are of any importance, it is to be observed that the act of March 4, 1923, permitted the Secretary of the Treasury to fix compensations, limiting him only to an increase of 30 per cent. Opinion of the Court Section 5 of the act of March 4, 1923, authorized the payment of traveling and subsistence expenses but did not by an express provision as contemplated by the act of April 6, 1914, remove the limitations of that act. It follows that the plaintiff can not recover. GRAHAM, Judge; HAY, Judge; BOOTH, Judge; and CampBELL, Chief Justice, concur. DONNER STEEL COMPANY v. THE UNITED STATES 1 [No. E-144. Decided November 16, 1925] On Demurrer to Amended Petition Dent Act; allocation; procurement agencies.-Where the plaintiff, having at the instance of procurement agencies which promise it orders covering its entire output, placed all its facilities at the disposal of the United States for the manufacture of shell steel, receives an allocation of a stated quantity of steel from technical advisers to said agencies, together with a statement that the plaintiff is to complete negotiations with the Ordnance Department, and said Ordnance Department thereafter advises plaintiff that no contract will issue, no contract can be implied under the Dent Act. The Reporter's statement of the case: Mr. W. F. Norris, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the demurrer. Mr. H. H. Dinneen, opposed. Mr. Ernest H. Van Fossan was on the brief. The averments of the amended petition are set out in the opinion. DOWNEY, Judge, delivered the opinion of the court: The submission is upon demurrer to the amended petition filed June 8, 1925, after the court had sustained a demurrer to the original petition. That petition seemed to us to be predicated on "allocations," and in a memorandum sustaining the demurrer it was said that "allocations" as made during the war did not constitute contracts. Writ of certiorari denied, Opinion of the Court The amended petition contains other averments; the plaintiff disclaims reliance on an allocation, but declares it to be merely the evidence of a contract already consummated and tersely and correctly says that the demurrer raises but the one question, " Does the petition state facts amounting in law to a contract between the Government and petitioner? The Donner Steel Co., as it appears from the petition, was a corporation owning a large steel plant at Buffalo, N. Y., well equipped and fully organized for the manufacture of plates and shell steel of the kinds needed by the United States during the war, doing a successful and profitable business and having on hand large quantities of raw materials which, because of climatic conditions and the closing of navigation during the winter, it was accustomed to lay in during the open season on the Great Lakes in sufficient quantities to supply its needs not only then but during the winter and spring following. The petition recites the passage of the act of June 3, 1916, granting broad powers to the President through the head of any department to place obligatory orders, the creation of the Council of National Defense (act of August 29, 1916), the passage of the act of March 4, 1917, further empowering the President, the creation by the Council of National Defense of the War Industries Board, the creation of the steel division of that board, and the then demand for steel for various purposes in excess of the productive capacity of the steel plants. That in March, 1918, J. Leonard Replogel became the steel administrator of the War Industries Board charged with the duty of allocating and distributing orders for steel needed in all departments of the Government, and that in September or early October of 1918 the War Industries Board, the steel division thereof, Major McCleary, the Ordnance Department member thereof, and Replogel, the steel administrator, orally advised the petitioner that it should refrain from soliciting or accepting orders for commercial steel for delivery prior to July of the succeeding year that would interfere with maximum production of shell steel for the Government, and that the petitioner would shortly receive |