A-11137, NOVEMBER 5, 1925, 5 COMP. GEN. 326

A-11137: Nov 5, 1925

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DOES NOT AUTHORIZE REIMBURSEMENT FOR DAMAGE TO OR LOSS OF PRIVATE PROPERTY UNLESS IT CAN BE SHOWN THAT SUCH DAMAGE WAS CAUSED BY. SUCH REIMBURSEMENT WILL NOT BE ALLOWED IN THE ABSENCE OF THE ENACTMENT OF FURTHER LEGISLATION. TRANSMITTING WITH REQUEST FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED A VOUCHER FOR $40 IN FAVOR OF HORACE G. APPEARS THAT THE HORSE REFERRED TO WAS HIRED BY THE PAYEE OF THE VOUCHER TO THE GOVERNMENT UNDER CONTRACT DATED MARCH 17. WHICH IS IN PART AS FOLLOWS: THE FOREGOING ANIMALS ARE FURNISHED BY THE UNDERSIGNED IN ACCORDANCE WITH REGULATION A-5 OF THE NATIONAL FOREST MANUAL. LIABILITY FOR ANIMALS INJURED OR KILLED DURING THE PERIOD OF HIRE IS ASSUMED BY THE FOREST SERVICE.

A-11137, NOVEMBER 5, 1925, 5 COMP. GEN. 326

PROPERTY, PRIVATE - LOSS OF, OR DAMAGE TO, WHILE BEING USED BY FOREST SERVICE THE AUTHORITY, UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 843, FOR THE SECRETARY OF AGRICULTURE TO REIMBURSE OWNERS OF HORSES, VEHICLES, OR OTHER EQUIPMENT LOST, DAMAGED, OR DESTROYED WHILE BEING USED FOR NECESSARY FIRE- FIGHTING, TRAIL, OR OFFICIAL BUSINESS, DOES NOT AUTHORIZE REIMBURSEMENT FOR DAMAGE TO OR LOSS OF PRIVATE PROPERTY UNLESS IT CAN BE SHOWN THAT SUCH DAMAGE WAS CAUSED BY, AND AS A DIRECT RESULT OF, THE ACTUAL USE FOR THE PURPOSES SPECIFIED IN THE ACT. REIMBURSEMENT FOR LOSS, DAMAGE, OR DESTRUCTION OF PROPERTY, WHILE UNDER THE CONTROL AND AVAILABLE FOR USE BY THE UNITED STATES, MAY BE ALLOWED UP TO AND INCLUDING JUNE 30, 1926, BUT AFTER JULY 1, 1926, SUCH REIMBURSEMENT WILL NOT BE ALLOWED IN THE ABSENCE OF THE ENACTMENT OF FURTHER LEGISLATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, NOVEMBER 5, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 5, 1925, TRANSMITTING WITH REQUEST FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED A VOUCHER FOR $40 IN FAVOR OF HORACE G. BURR, FOREST RANGER, COVERING HIS CLAIM FOR THE LOSS OF A HORSE AS A RESULT OF ITS BEING INJURED WHILE ON A WINTER- FEED LOT RENTED BY AND UNDER THE CONTROL OF THE FOREST SERVICE. APPEARS THAT THE HORSE REFERRED TO WAS HIRED BY THE PAYEE OF THE VOUCHER TO THE GOVERNMENT UNDER CONTRACT DATED MARCH 17, 1924, WHICH IS IN PART AS FOLLOWS:

THE FOREGOING ANIMALS ARE FURNISHED BY THE UNDERSIGNED IN ACCORDANCE WITH REGULATION A-5 OF THE NATIONAL FOREST MANUAL.

LIABILITY FOR ANIMALS INJURED OR KILLED DURING THE PERIOD OF HIRE IS ASSUMED BY THE FOREST SERVICE. THE FOREST SERVICE WILL NOT COMPENSATE THE OWNER FOR DEATH OCCURRING THROUGH DISEASE OR OLD AGE, OR INJURY OR DEATH DUE TO NEGLIGENCE BY HIM.

REIMBURSEMENT FOR ANIMALS INJURED OR KILLED WILL BE BASED UPON CONSIDERATION OF THE APPRAISED VALUE AND ANY OTHER FACTORS WHICH MAY BE GERMANE.

DECISION AS TO REIMBURSEMENT UNDER THIS CONTRACT AND THE AMOUNT THEREOF WILL BE MADE BY THE DISTRICT FORESTER.

ANIMALS FURNISHED UNDER THIS CONTRACT MUST BE SERVICEABLE AND IN HEALTHY CONDITION.

THIS CONTRACT MAY BE TERMINATED AT ANY TIME BY THE FORESTER OR HIS AUTHORIZED REPRESENTATIVES.

REGULATION A-5 OF THE FOREST SERVICE MANUAL, REFERRED TO IN THE CONTRACT, PROVIDES:

OFFICERS OR EMPLOYEES OF THE FOREST SERVICE OF ANY GRADE OR SALARY MAY, IN THE DISCRETION OF SUCH OFFICERS AS THE FORESTER MAY DESIGNATE, BE REQUIRED TO FURNISH SADDLE AND OTHER ANIMALS, OR MOTOR VEHICLES AND EQUIPMENT, NECESSARY FOR THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ALL ANIMALS, VEHICLES, AND EQUIPMENT SO SUPPLIED WILL BE FURNISHED UNDER A CONTRACT OF HIRE WHICH WILL BE IN WRITING.

SHOULD ANY EMERGENCY DEVELOP REQUIRING THE USE THEREOF, ANY FOREST OFFICER OWNING ANIMALS, MOTOR VEHICLES, OR EQUIPMENT NOT COVERED BY WRITTEN CONTRACT, IS REQUIRED TO FURNISH SUCH ANIMALS, OR EQUIPMENT AS MAY BE NECESSARY FOR EMERGENCY FIRE FIGHTING, TRAIL BUILDING OR OTHER OFFICIAL USE, AND IN THE EVENT SUCH ANIMALS, MOTOR VEHICLES, OR EQUIPMENT ARE LOST, DAMAGED OR DESTROYED WHILE IN SUCH ACTUAL USE, THE OWNER, UPON PROPER PROOF, MAY BE REIMBURSED THEREFOR UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913.

FORAGE, CARE, AND HOUSING FOR ANIMALS WILL BE FURNISHED AND MILEAGE AND HOUSING FOR MOTOR VEHICLES WILL BE ALLOWED WHILE IN USE ON OFFICIAL BUSINESS OR HELD IN READINESS FOR SUCH USE.

REIMBURSEMENT IS PROPOSED TO BE MADE TO MR. BURR UNDER THE AUTHORITY VESTED IN THE SECRETARY OF AGRICULTURE BY THE ACT OF MARCH 4, 1913, 37 STAT. 843, PROVIDING AS FOLLOWS:

THAT HEREAFTER THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO REIMBURSE OWNERS OF HORSES, VEHICLES, AND OTHER EQUIPMENT LOST, DAMAGED, OR DESTROYED WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS, SUCH REIMBURSEMENT TO BE MADE FROM ANY AVAILABLE FUNDS IN THE APPROPRIATION TO WHICH THE HIRE OF SUCH EQUIPMENT IS PROPERLY CHARGEABLE.

IN CONSIDERING THE RESPECTIVE JURISDICTIONS OF THE ACCOUNTING OFFICERS AND THE SECRETARY OF AGRICULTURE IN CONNECTION WITH THIS ACT, THE FORMER COMPTROLLER OF THE TREASURY HELD IN 21 COMP. DEC. 250, QUOTING FROM THE SYLLABUS:

THE COMPTROLLER OF THE TREASURY HAS JURISDICTION TO DETERMINE GENERALLY THE SCOPE AND PURPOSES OF THE ACT OF MARCH 4, 1913 (37 STAT. 843), AUTHORIZING REIMBURSEMENT OF OWNERS OF HORSES, VEHICLES, ETC., LOST, DAMAGED, OR DESTROYED IN THE FOREST SERVICE UNDER CERTAIN CONDITIONS, BUT THE SECRETARY OF AGRICULTURE HAS THE RIGHT, WITH RESPECT TO THE FACTS IN EACH CASE, TO CONSIDER, DETERMINE, AND ALLOW CLAIMS PRESENTED THEREUNDER WITHOUT REFERENCE TO THE ACCOUNTING OFFICERS.

IN CONSTRUING SIMILAR STATUTORY PROVISIONS IT HAS BEEN CONSISTENTLY HELD THAT THE AUTHORITY THUS VESTED IN ADMINISTRATIVE OFFICERS RELATIVE TO THE SETTLEMENT OF SUCH CLAIMS DOES NOT OPERATE TO SUPERSEDE OR SUSPEND THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO DETERMINE WHETHER ANY PARTICULAR CASE CAME WITHIN THE GENERAL SCOPE OF AN ACT OR WITHIN THE JURISDICTION SO CONFERRED UPON AN ADMINISTRATIVE OFFICIAL. 4 COMP. GEN. 713. THERE IS, ACCORDINGLY, FOR DETERMINATION BY THIS OFFICE THE QUESTION AS TO WHETHER UPON THE FACTS AS FOUND BY YOU THE LOSS OR DAMAGE FOR WHICH REIMBURSEMENT IS PROPOSED TO BE MADE COMES WITHIN THE PURVIEW OF THIS STATUTE. IT APPEARS THAT THE HORSE CAME INTO THE POSSESSION OR CUSTODY OF THE GOVERNMENT ON MARCH 18, 1924, AND REMAINED CONTINUOUSLY IN ITS POSSESSION OR CUSTODY UNTIL THE DEATH OF THE HORSE RESULTING FROM WIRE CUT ON OR ABOUT APRIL 10, 1925. THESE FACTS DISTINGUISH THIS CASE FROM THE CASE OF A HORSE RETURNED TO THE POSSESSION AND CUSTODY OF ITS OWNER TO BE KEPT BY HIM DURING AN EXTENDED PERIOD OF NONUSE AND INJURED OR KILLED DURING SUCH PERIOD, IN WHICH CASE THERE WOULD BE NO LIABILITY ON THE PART OF THE UNITED STATES TO REIMBURSE THE OWNER FOR THE LOSS.

THE CONTRACT IN THE INSTANT CASE PROVIDED FOR REIMBURSEMENT FOR LOSS OR DAMAGE--- EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT HERE INVOLVED--- OCCURRING DURING THE PERIOD OF HIRE; SUCH PERIOD OF HIRE NOT BEING SPECIFIED IT WAS CONTINUOUS UNTIL THE CONTRACT WAS TERMINATED EITHER BY FORMAL NOTICE OF SUCH TERMINATION OR BY THE RETURN OF THE HORSE TO THE OWNER. THE CLAIMANT WAS NOT REQUIRED TO FURNISH A HORSE UNDER THE TERMS OF HIS EMPLOYMENT AND THE CONSIDERATION FOR THE USE OF HIS HORSE BY THE GOVERNMENT WAS THE MAINTENANCE OF SUCH HORSE AT THE EXPENSE OF THE GOVERNMENT AND THE UNDERTAKING TO PAY THE ASSESSED VALUATION THEREOF IF THE HORSE SHOULD BE KILLED UNDER CERTAIN CONDITIONS.

THE PROPOSED PAYMENT WOULD APPEAR TO BE FAIRLY WITHIN THE TERMS OF THE CONTRACT AND THE REGULATION, SUPRA, BUT I AM CONSTRAINED TO HOLD THAT THE CONTRACT AND THE REGULATIONS HAVE GONE BEYOND THE SCOPE OF THE PROVISION IN THE ACT OF 1913 HEREINBEFORE QUOTED, WHICH AUTHORIZES REIMBURSING OWNERS OF HORSES LOST, DAMAGED, OR DESTROYED ONLY "WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS.' HOWEVER, IN VIEW OF ALL THE CIRCUMSTANCES APPEARING, REIMBURSEMENT WILL BE AUTHORIZED UNDER EXISTING CONTRACTS DURING THE REMAINDER OF THIS FISCAL YEAR WHERE THE LOSS OR DAMAGE IS SHOWN TO HAVE OCCURRED WHILE THE HORSE WAS KEPT UNDER GOVERNMENT CONTROL AND AVAILABLE FOR USE. BUT UNLESS FURTHER LEGISLATION IN THE MATTER IS ENACTED IN THE MEANTIME, NO REIMBURSEMENT WILL BE AUTHORIZED FOR ANY LOSS, DAMAGE, OR DESTRUCTION OCCURRING AFTER JUNE 30, 1926, UNLESS SHOWN TO HAVE BEEN CAUSED BY, AND AS A DIRECT RESULT OF, THE ACTUAL USE IN CONNECTION WITH THE WORK FOR WHICH HIRED.