[Request for Reconsideration of Dismissed Protest]

A-22805, FEBRUARY 21, 1931, 10 COMP. GEN. 382

DISBURSING OFFICERS AND AGENTS - COLLECTIONS - CLEARING THROUGH GENERAL ACCOUNT OF ADVANCES OF THE NAVY COLLECTIONS MADE BY DISBURSING OFFICERS AND AGENTS FOR THE USE OF THE UNITED STATES ARE REQUIRED BY SECTION 3617, REVISED STATUTES, TO BE DEPOSITED AND COVERED INTO THE TREASURY OF THE UNITED STATES WITHIN THE TIME REQUIRED BY SECTION 3621, REVISED STATUTES, AS AMENDED, EITHER AS MISCELLANEOUS RECEIPTS OR FOR THE CREDIT OF THE APPROPRIATION OR FUND ACCOUNTS IF THE COLLECTIONS REPRESENT REPAYMENTS THERETO, AND THERE IS NO AUTHORITY FOR THE USE OF AN ACCOUNT SUCH AS THE GENERAL ACCOUNT OF ADVANCES FOR THE CLEARING OF SUCH COLLECTIONS MADE BY DISBURSING OFFICERS OF THE NAVY, OR FOR THE USE OF SUCH COLLECTIONS FOR EXPENDITURES, ADJUSTMENTS, OR OTHER PURPOSES, UNTIL THE COLLECTIONS HAVE BEEN CLEARED THROUGH THE TREASURY AND FUNDS REQUIRED FOR DISBURSEMENT PURPOSES REQUISITIONED AND OBTAINED IN THE USUAL MANNER ON ACCOUNTABLE WARRANTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 21, 1931:

REFERENCE IS HAD TO YOUR LETTER OF SEPTEMBER 2, 1930, 00-PAUL, HARRY/L 10 -5 (290827), SUBMITTING FOR MY CONSIDERATION SECOND INDORSEMENT FROM BRIG. GEN. B. H. FULLER, UNITED STATES MARINE CORPS, DATED JULY 26, 1930, AND THIRD INDORSEMENT FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED AUGUST 4, 1930, TO OFFICE LETTER OF JULY 10, 1930, ADDRESSED TO THE SECRETARY OF THE NAVY, RELATIVE TO THE PRACTICE OF DISBURSING OFFICERS OF THE NAVY AND MARINE CORPS USING COLLECTIONS FOR DISBURSING PURPOSES. YOU REQUEST THAT THE DEPARTMENT BE INFORMED WHETHER OR NOT ANYTHING CONTAINED IN THE SAID INDORSEMENTS WOULD CAUSE THIS OFFICE TO MODIFY OR SUSPEND THE APPLICATION OF ITS VIEWS HERETOFORE EXPRESSED IN PREVIOUS CORRESPONDENCE WITH RESPECT TO THE MATTER.

THE PROCEDURE OUTLINED IN THE INDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN SUBSTANCE AUTHORIZES DISBURSING OFFICERS OF THE NAVY AND MARINE CORPS TO AUGMENT THEIR OFFICIAL DISBURSING ACCOUNTS WITH COLLECTIONS WHICH, UNDER THE PROVISIONS OF CERTAIN SECTIONS OF THE REVISED STATUTES, SHOULD BE PAID INTO THE TREASURY OF THE UNITED STATES. THE COLLECTIONS REFERRED TO APPEAR TO BE OF TWO CLASSES, (A) FUNDS CREDITABLE TO MISCELLANEOUS RECEIPTS, AND (B) FUNDS CREDITABLE TO APPROPRIATIONS.

SECTION 3617, REVISED STATUTES, PROVIDES THAT:

THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES, EXCEPT AS OTHERWISE PROVIDED, SHALL BE PAID BY THE OFFICER OR AGENT RECEIVING THE SAME INTO THE TREASURY, AT AS EARLY A DAY AS PRACTICABLE, WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER. * *

THE WORDING OF THIS SECTION OF THE STATUTES IS INCLUSIVE AND ADMITS OF BUT ONE MEANING, NAMELY, THAT THE MONEY SHALL BE DEPOSITED TO THE CREDIT OF THE TREASURER OF THE UNITED STATES FOR COVERING INTO THE TREASURY TO THE CREDIT OF AN APPROPRIATION, TRUST OR SPECIAL FUND (BY REPAY COVERING WARRANT) OR TO THE CREDIT OF THE GENERAL FUND OF THE TREASURY, AS MISCELLANEOUS RECEIPTS. THE CONGRESS IN THE ENACTMENT OF SECTION 3617, SUPRA, AND OTHER APPLICABLE LAWS HAS CLEARLY INDICATED AN INTENTION TO CONFINE THE USE OF FUNDS BY OFFICERS OR AGENTS OF THE UNITED STATES FOR DISBURSING PURPOSES TO THE FUNDS ADVANCED ON ACCOUNTABLE WARRANT PURSUANT TO THE VARIOUS APPROPRIATION ACTS. THE REQUIREMENT OF THESE STATUTES IS NOTHING MORE THAN IN FURTHERANCE OF THE PROVISIONS OF THE CONSTITUTION, ARTICLE I, SECTION 9, PARAGRAPH 7, THAT "NO MONEY SHALL BE DRAWN FROM THE TREASURY BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW.' INDEED THE INTENT CAN REASONABLY BE SAID TO APPEAR THAT ALL THE PUBLIC MONEYS SHALL GO INTO THE TREASURY; APPROPRIATIONS THEN FOLLOW.

COLLECTIONS TO BE CREDITED TO THE GENERAL FUND AS MISCELLANEOUS RECEIPTS OR REPAID TO APPROPRIATION ACCOUNTS ARE NOT THEREFORE AVAILABLE FOR DISBURSEMENT EXCEPT IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW AND ADVANCED ON AN ACCOUNTABLE WARRANT, AND THE WITHHOLDING OF SAME FOR DISBURSEMENT IS UNLAWFUL. THE DEPOSIT OF SUCH COLLECTIONS TO THE CREDIT OF AN OFFICER'S OFFICIAL CHECKING ACCOUNT DOES NOT CONSTITUTE A PAYING INTO THE TREASURY WITHIN THE MEANING OF SECTION 3617, SUPRA. SUCH HAS BEEN THE ESTABLISHED VIEW FOR MANY YEARS. THE COMPTROLLER OF THE TREASURY IN DECISION OF JULY 2, 1909, TO THE SECRETARY OF THE NAVY, 50 MS COMP. DEC. 1, AFTER QUOTING SECTION 3617, REVISED STATUTES, SAID:

THIS SECTION COVERS THE DISPOSITION OF MONEYS RECEIVED FOR THE USE OF THE UNITED STATES FROM ALL SOURCES EXCEPT AS ARE INDICATED IN SECTION 3618, REVISED STATUTES, AND THOSE COVERED BY SPECIAL LAWS * * *. DEPOSITING THEM (MONEYS) IN THE TREASURY TO THE CREDIT OF AN APPROPRIATION WOULD NOT BE PAYING THEM INTO THE TREASURY WITHIN THE MEANING OF THIS SECTION.

IT WAS ALSO SAID IN 22 COMP. DEC. 381:

IT COULD HARDLY BE MADE MORE COMPREHENSIVE AS TO THE MONEYS THAT ARE MEANT AND THESE MONEYS ARE REQUIRED TO BE PAID "INTO THE TREASURY.' THIS DOES NOT MEAN THAT THE MONEYS ARE TO BE ADDED TO A FUND THAT HAS BEEN APPROPRIATED FROM THE TREASURY AND MAY BE IN THE TREASURY OR OUTSIDE. SEEMS TO ME THAT IT CAN ONLY MEAN THAT THEY SHALL GO INTO THE GENERAL FUND OF THE TREASURY WHICH IS SUBJECT TO ANY DISPOSITION WHICH CONGRESS MIGHT CHOOSE TO MAKE OF IT * * *. (3 LAW. 43; 1 BOWLER 109; 1 COMP. DEC. 569; 3 ID., 399; 7 ID., 852; 14 ID., 87; 20 ID., 349; 5 COMP. GEN. 289.)

IT IS DIFFICULT TO SEE HOW A LEGISLATIVE PROHIBITION COULD BE MORE CLEARLY EXPRESSED AND IT DOES NOT APPEAR THAT THE PROCEDURE AUTHORIZING THE USE OF COLLECTIONS PERTAINING TO MISCELLANEOUS RECEIPTS FOR DISBURSING PURPOSES NOW BEING FOLLOWED WAS EVER SANCTIONED OR FORMALLY AUTHORIZED BY FORMER COMPTROLLERS OF THE TREASURY OR BY THIS OFFICE. (14 COMP. DEC. 361; 6 COMP. GEN. 623.) NEITHER DOES IT APPEAR THAT THERE IS ANY AUTHORITY OF LAW FOR THE DISBURSEMENT OF FUNDS COLLECTED FOR REPAYMENT TO AN APPROPRIATION OR TO A SPECIAL OR TRUST FUND UNTIL THE SAME SHALL HAVE BEEN DEPOSITED INTO THE TREASURY TO THE CREDIT OF THE APPROPRIATION OR FUND CONCERNED, AND WITHDRAWN UPON A REQUISITION.

THE ACT OF JUNE 19, 1878, ENTITLED "AN ACT AUTHORIZING A GENERAL ACCOUNT OF ADVANCES FOR NAVAL APPROPRIATIONS," 20 STAT. 167, PROVIDES:

THAT THE SECRETARY OF THE NAVY BE, AND HE IS HEREBY, AUTHORIZED TO ISSUE HIS REQUISITIONS FOR ADVANCES TO DISBURSING OFFICERS AND AGENTS OF THE NAVY UNDER A "GENERAL ACCOUNT OF ADVANCES," NOT TO EXCEED THE TOTAL APPROPRIATION FOR THE NAVY, THE AMOUNT SO ADVANCED TO BE EXCLUSIVELY USED TO PAY CURRENT OBLIGATIONS UPON PROPER VOUCHERS AND THAT "PAY OF THE NAVY" SHALL HEREAFTER BE USED ONLY FOR ITS LEGITIMATE PURPOSE, AS PROVIDED BY LAW.

SECTION 2. THAT THE AMOUNT SO ADVANCED BE CHARGED TO THE PROPER APPROPRIATIONS, AND RETURNED TO "GENERAL ACCOUNT OF ADVANCES" BY PAY AND COUNTER WARRANT; THE SAID CHARGE, HOWEVER, TO PARTICULAR APPROPRIATIONS, SHALL BE LIMITED TO THE AMOUNT APPROPRIATED TO EACH.

THE PROVISIONS OF SAID ACT OF JUNE 19, 1878, REQUIRE THAT ADVANCES OF MONEYS TO DISBURSING OFFICERS AND AGENTS OF THE NAVY FOR DISBURSEMENT BE DRAWN FROM THE TREASURY UPON REQUISITIONS ISSUED BY THE SECRETARY OF THE NAVY UNDER A GENERAL ACCOUNT OF ADVANCES, THEREAFTER TO BE CHARGED AGAINST THE SEVERAL APPROPRIATIONS UPON REPORTS OF THE DISBURSING OFFICERS SHOWING WHAT PAYMENTS HAVE BEEN ACTUALLY MADE BY THEM AND THE APPROPRIATIONS TO WHICH THOSE PAYMENTS ARE CHARGEABLE; VERIFICATION AND FINAL ADJUSTMENT OF APPROPRIATIONS BEING MADE WHEN THE VOUCHERS FOR THE PAYMENTS SO REPORTED ARE RECEIVED IN THE GENERAL ACCOUNTING OFFICE. THE ACT DOES NOT MAKE OF GENERAL ACCOUNT OF ADVANCES AN APPROPRIATION AND NO AUTHORITY EXISTS FOR A DISBURSEMENT PURPORTING TO BE CHARGEABLE THERETO EXCEPT AS IT MAY BE PROPERLY CHARGEABLE TO AN APPROPRIATION FORMING ONE OF THE COMPONENTS THEREOF. AFTER MONEYS ADVANCED TO A DISBURSING OFFICER ON PROPERLY APPROVED REQUISITIONS ARE DISBURSED, RECOVERIES OR COLLECTIONS MADE ON ACCOUNT OF THE PAYMENTS ARE NOT AVAILABLE FOR DISBURSEMENT AND SHOULD BE DEPOSITED INTO THE TREASURY TO THE CREDIT OF THE APPROPRIATION, SPECIAL OR TRUST FUND UNDER WHICH SUCH DISBURSEMENTS WERE ORIGINALLY MADE.

COLLECTIONS NOT CREDITABLE TO AN APPROPRIATION OR FUND SHOULD BE DEPOSITED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS WITH PERSONAL CREDIT TO THE DISBURSING OFFICER AND BE TAKEN UP UNDER A SEPARATE HEADING IN THE OFFICER'S ACCOUNT CURRENT.

THE PROCEDURE HEREIN INDICATED FOLLOWS THE INTENT OF THE SEVERAL APPLICABLE STATUTES WHICH ESTABLISH A LOGICAL AND SOUND ACCOUNTING PROCEDURE FOR THE HANDLING OF MONEYS BY DISBURSING OFFICERS AND AGENTS OF THE UNITED STATES. UNDER IT MONEYS ARE ADVANCED FROM THE TREASURY PURSUANT TO LAW FOR PAYMENT OF LAWFUL OBLIGATIONS, AND COLLECTIONS MADE BY AN OFFICER OR AGENT ARE PAID INTO THE TREASURY TO THE CREDIT OF THE PROPER FUND, SUBJECT TO SUBSEQUENT WITHDRAWAL IF THEY PERTAIN TO A FUND APPROPRIATED BY THE CONGRESS, OTHERWISE TO BE PLACED TO THE CREDIT OF THE GENERAL FUND OF THE TREASURY, SUBJECT TO SUCH USE AS THE CONGRESS MAY DIRECT.

WHILE I FULLY APPRECIATE THAT SOME INCONVENIENCE MAY ARISE IN THE APPLICATION OF THE PROCEDURE REQUIRED BY LAW, IT MAY BE PRESUMED FAIRLY THAT THE QUESTIONS OF PRACTICE AND CONVENIENCE WERE CONSIDERED BY THE CONGRESS IN CONNECTION WITH ITS LEGISLATIVE ENACTMENTS UPON THE USE OF PUBLIC MONEYS AND THE METHODS BY WHICH MONEYS WERE TO BE MADE AVAILABLE FOR EXPENDITURE, HAVING REGARD ALSO TO THE REQUIREMENTS OF THE CONSTITUTION. THE PROCEDURE PRESCRIBED BY LAW SEEMS IDEAL IN THAT ALL RECEIPTS AND COLLECTIONS ARE REQUIRED TO FLOW INTO THE CENTRAL DEPOSITORY AND BE THERE CLASSIFIED AND REPAID OR COVERED INTO THE PROPER ACCOUNT AVAILABLE FOR WARRANT PURSUANT TO EXISTING OR NEW APPROPRIATIONS, BY VIRTUE OF WHICH THE MONEYS MAY FLOW OUT TO AGENTS ON WHOSE ACCOUNTS LAWFUL REQUISITIONS AND ACCOUNTABLE WARRANTS MAY ISSUE.

AS POINTED OUT IN MY LETTER OF NOVEMBER 30, 1929, IN CONSTRUING THE STATUTES RELATING TO THE RECEIPT AND APPLICATION OF PUBLIC MONEYS, DUE CONSIDERATION SHOULD BE GIVEN TO VOLUME AND FREQUENCY OF COLLECTIONS, HAVING IN MIND THAT THE INTENT OF THE STATUTES IS PROMPTNESS IN DISPOSING OF RECEIPTS AND THE MAXIMUM OF TIME GRANTED IS TO PROVIDE FOR EXCEPTIONAL CASES WHERE PHYSICAL DIFFICULTIES ARE SUCH AS TO PREVENT DEPOSIT "WITHOUT DELAY.' IN SUCH CASES THERE WOULD BE NO OBJECTION TO THE SUBSTITUTION FOR DEPOSIT PURPOSES BY A DISBURSING OFFICER OF HIS OFFICIAL CHECK FOR AN EQUIVALENT AMOUNT OF RECEIPTS IN LAWFUL COIN AND CURRENCY.

I HAVE TO ADVISE, THEREFORE, THAT COLLECTIONS MADE BY DISBURSING OFFICERS AND AGENTS OF THE UNITED STATES ARE NOT AVAILABLE FOR DISBURSEMENT UNLESS OTHERWISE PROVIDED BY LAW, AND THAT SAME SHOULD BE DEPOSITED INTO THE TREASURY OF THE UNITED STATES, AS AND WITHIN THE TIME REQUIRED BY SECTION 3621, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 28, 1896, 29 STAT. 179, TO THE CREDIT OF THE PROPER ACCOUNT IN ACCORDANCE WITH THE PROCEDURE HEREIN OUTLINED.