B-118846, MAR 29, 1954

B-118846, MAR 29, 1954

PRECIS-UNAVAILABLE

THE HONORABLE

THE SECRETARY OF THE INTERIOR

DEAR MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 8, 1954, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING TO BE ADVISED WHETHER THE EXPENSES OF THE GILA RIVER WATER COMMISSIONER PAYABLE BY THE UNITED STATES MAY BE PAID ANNUALLY IN ADVANCE IN VIEW OF THE PROHIBITION AGAINST ADVANCE PAYMENTS CONTAINED IN 31 U.S.C. 529.

THE GILA RIVER IRRIGATION PROJECT WAS AUTHORIZED BY THE ACT OF JUNE 7, 1924, 43 STAT. 475, FOR THE PURPOSE OF PROVIDING WATER FOR THE IRRIGATION OF LANDS ALLOTTED TO PIMA INDIANS ON THE GILA RIVER RESERVATION AND FOR THE IRRIGATION OF SUCH OTHER LANDS IN PUBLIC OR PRIVATE OWNERSHIP AS COULD BE SERVED FROM ANY SURPLUS WATER AVAILABLE AT THE PROJECT. SECTION 4 OF THIS ACT PROVIDES IN ART:

"THAT NO PART OF THE SUM PROVIDED FOR HEREIN SHALL BE EXPENDED FOR CONSTRUCTION ON ACCOUNT OF ANY LANDS IN PRIVATE OWNERSHIP UNTIL AN APPROPRIATE REPAYMENT CONTRACT IN ACCORDANCE WITH THE TERMS OF THIS ACT AND, IN FORM APPROVED BY THE SECRETARY OF THE INTERIOR, SHALL HAVE BEEN PROPERLY EXECUTED BY A DISTRICT ORGANIZED UNDER STATE LAW, EMBRACING THE LANDS IN PUBLIC OR PRIVATE OWNERSHIP IRRIGABLE UNDER THE PROJECT, AND THE EXECUTION THEREOF SHALL HAVE BEEN CONFIRMED BY DECREE OF A COURT OF COMPETENT JURISDICTION ***."

APPARENTLY, PURSUANT TO SAID PROVISION, A CONTRACT WAS EXECUTED BY THE GILA RIVER IRRIGATION DISTRICT AND, SUBSEQUENTLY, THE GILA RIVER DECREE WAS ENTERED JUNE 29, 1935, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ARIZONA. THIS DECREE, IT IS STATED, PROVIDED FOR ADMINISTRATION OF GILA RIVER WATER RIGHTS AS AFFECTING CERTAIN LANDS INCLUDING INDIAN LANDS ON THE SAN CARLOS AND GILA RIVER RESERVATIONS; ESTABLISHED THE OFFICE OF THE GILA RIVER WATER COMMISSIONER; ORDERED ASSESSMENT OF THE AFFECTED LAND TO PROVIDE FUNDS FOR OPERATING EXPENSES; AND SPECIFIED THAT EXPENSES SHOULD BE SUBJECT TO COURT ORDER.

FROM FEBRUARY 1, 1936, THROUGH JUNE 30, 1953, PAYMENTS HAVE BEEN MADE EACH MONTH AS BILLED BY THE WATER COMMISSIONER IN ACCORDANCE WITH COURT ORDER OF DECEMBER 9, 1935, WHICH PROVIDED, IN PART, AS FOLLOWS:

"IT IS FURTHER ORDERED THAT THE EXPENSES OF THE WATER COMMISSIONER PAYABLE BY THE PLAINTIFF, THE UNITED STATES OF AMERICA, SHALL BE PAID BY THE PROPER UNITED STATES DISBURSING OFFICER OF THE INDIAN IRRIGATION SERVICE IN TWELVE EQUAL MONTHLY PAYMENTS, BEGINNING FEBRUARY 1, 1936, WHICH SAID PAYMENTS AND WHICH SAID SUMS SHALL ALL BE PAID IN ACCORDANCE WITH GOVERNMENT REGULATIONS."

DUE TO AN INCREASE IN COSTS OF OPERATION OF THE OFFICE OF THE WATER COMMISSIONER A NEW COURT ORDER WAS ISSUED ON DECEMBER 30, 1952, WHICH INCREASED THE PER-ACRE CHARGE AND PROVIDED FOR PAYMENT OF THE EXPENSES OF THE WATER COMMISSIONER AS FOLLOWS:

"IT IS FURTHER ORDERED THAT THE EXPENSES OF THE WATER COMMISSIONER PAYABLE BY THE PLAINTIFF, THE UNITED STATES OF AMERICA, SHALL BE PAID BY THE PROPER UNITED STATES DISBURSING OFFICER OF THE INDIAN IRRIGATION SERVICE IN ONE ANNUAL INSTALLMENT BEGINNING JULY 1, 1953, WHICH SAID PAYMENT AND SUM SHALL BE PAID IN ACCORDANCE WITH GOVERNMENT REGULATIONS."

IT IS STATED THAT THE PROCESSING OF ONE ANNUAL VOUCHER WOULD RESULT IN A SAVING IN OPERATING FUNDS, AND AN ANNUAL ADVANCE PAYMENT INSTEAD OF MONTHLY PAYMENTS IN ARREARS WILL ENABLE THE WATER COMMISSIONER TO OPERATE MORE EFFICIENTLY IN THAT OBLIGATIONS COULD BE DISCHARGED WHEN DUE INSTEAD OF HAVING TO AWAIT PAYMENT OF MONTHLY VOUCHERS WHICH MAY BE DELAYED AS MUCH AS SIXTY DAYS.

THE COURT ORDER LAST CITED DOES NOT SPECIFY WHETHER THE ANNUAL PAYMENT IS TO BE MADE IN ADVANCE OR AT THE END OF THE FISCAL YEAR. HOWEVER, SINCE IT IS STATED THAT THE WATER COMMISSIONER CANNOT DISCHARGE OBLIGATIONS UNTIL THE MONTHLY VOUCHERS ARE PAID IT REASONABLY MAY BE ASSUMED THAT THE COURT ORDER OF DECEMBER 30, 1952, CONTEMPLATED THAT PAYMENT MADE BY THE GOVERNMENT TO THE WATER COMMISSIONER WOULD BE MADE ANNUALLY IN ADVANCE RATHER THAN IN ARREARS.

AS STATED IN DECISION OF JULY 19, 1943, B-35670, CITED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER, THE PRIMARY PURPOSE OF 31 U.S.C. 529, RELATING TO ADVANCE PAYMENTS, IS OBVIOUS. THE DANGER INHERENT IN AN ADVANCE PAYMENT OF MONEYS PRIOR TO THE RENDERING OF SERVICE OR DELIVERY OF SUPPLIES UNDER A CONTRACT IS THAT THERE IS ALWAYS A POSSIBILITY OF FAILURE OF PERFORMANCE ON THE PART OF THE CONTRACTOR AND HIS REFUSAL OR INABILITY TO REFUND THE MONEYS ADVANCED. HOWEVER, IT WAS HELD THAT THE STATUTORY INHIBITION AGAINST ADVANCE PAYMENTS WAS NOT NECESSARILY FOR APPLICATION WHERE MADE TO A STATE AS CONTRACTOR. SAID DECISION HAS BEEN EXTENDED TO COVER PAYMENTS MADE TO COURT AND OTHER STATE AND LOCAL OFFICIALS. B-65821, MAY 29, 1947.

IN THE INSTANT CASE, THE WATER COMMISSIONER IS AN OFFICIAL APPOINTED BY A DISTRICT COURT OF THE UNITED STATES AND HIS EXPENSES ARE SUBJECT TO COURT ORDER. ACCORDINGLY, THERE APPEARS AMPLE JUSTIFICATION FOR THE APPLICATION OF THE PRINCIPLE ENUNCIATED IN THE CITED DECISIONS TO THE PAYMENTS UNDER CONSIDERATION AND YOU ARE ADVISED THAT THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE MAKING OF ANNUAL PAYMENTS IN ADVANCE.