A-12594, JULY 5, 1927, 7 COMP. GEN. 4

A-12594: Jul 5, 1927

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PAY - STOPPAGES - DISBURSING OFFICERS WHERE ARTICLES CARRIED FOR SALE IN SHIP'S STORE WERE NOT PROPERLY ACCOUNTED FOR. THE AMOUNT OF WHICH DEFICIENCY WAS REPORTED BY THE PAYMASTER GENERAL OF THE NAVY TO THE GENERAL ACCOUNTING OFFICE FOR DEBIT PURSUANT TO THE ACT OF MARCH 29. THE PROVISIONS OF SECTION 1766 OF THE REVISED STATUTES ARE INTERPRETED TO REQUIRE THAT NO FURTHER PAYMENT FOR HIS COMPENSATION BE MADE TO THE DELINQUENT OFFICER UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY OF THE UNITED STATES THE SUM FOR WHICH HE IS IN ARREARS. 1927: THERE WAS RECEIVED MARCH 23. FOR WHICH CREDIT IN COMMANDER HAGNER'S DISBURSING ACCOUNT WAS DISALLOWED AUGUST 25. IS SURETY. WAS FOUND IN ACCORDANCE WITH SECTIONS 1.

A-12594, JULY 5, 1927, 7 COMP. GEN. 4

PAY - STOPPAGES - DISBURSING OFFICERS WHERE ARTICLES CARRIED FOR SALE IN SHIP'S STORE WERE NOT PROPERLY ACCOUNTED FOR, RESULTING IN A DEFICIENCY IN THE ACCOUNTS OF A DISBURSING OFFICER OF THE NAVY, THE AMOUNT OF WHICH DEFICIENCY WAS REPORTED BY THE PAYMASTER GENERAL OF THE NAVY TO THE GENERAL ACCOUNTING OFFICE FOR DEBIT PURSUANT TO THE ACT OF MARCH 29, 1894, 28 STAT. 47, THE PROVISIONS OF SECTION 1766 OF THE REVISED STATUTES ARE INTERPRETED TO REQUIRE THAT NO FURTHER PAYMENT FOR HIS COMPENSATION BE MADE TO THE DELINQUENT OFFICER UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY OF THE UNITED STATES THE SUM FOR WHICH HE IS IN ARREARS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 5, 1927:

THERE WAS RECEIVED MARCH 23, 1927, YOUR REQUEST FOR DECISION WHETHER COMMANDER IGNATIUS T. HAGNER (SC), SHOULD BE PERMITTED TO LIQUIDATE HIS INDEBTEDNESS TO THE UNITED STATES OF $5,195.42 AT THE RATE OF $100 PER MONTH.

THIS DEFICIENCY OF $5,195.42, FOR WHICH CREDIT IN COMMANDER HAGNER'S DISBURSING ACCOUNT WAS DISALLOWED AUGUST 25, 1925, UNDER HIS BOND OF MARCH 10, 1919, FOR $25,000, ON WHICH THE UNITED STATES FIDELITY AND GUARANTY CO. IS SURETY, WAS FOUND IN ACCORDANCE WITH SECTIONS 1, 2 AND 3, AS AMENDED, ACT MARCH 29, 1894, 28 STAT. 47, AND WAS REPORTED TO THIS OFFICE APRIL 13, 1925, PURSUANT THERETO, BY THE PAYMASTER GENERAL OF THE NAVY, AS FOLLOWS:

IT IS REQUESTED THAT THE SUM OF $5,195.42 BE CHECKED AGAINST THE ACCOUNT OF COMMANDER I. T. HAGNER, SUPPLY CORPS, U.S.N., AND THE APPROPRIATION "SHIP'S STORE PROFIT, NAVY," CREDITED:

IN ACCORDANCE WITH THE AUTHORITY OF THE ACT OF 29 MARCH, 1894 (28 STAT. 47), I HEREBY CERTIFY THAT IN THE AUDIT OF THE SHIP'S STORE RETURN OF THE U.S.S. IDAHO RENDERED FOR COMMANDER I. T. HAGNER, SUPPLY CORPS, U.S.N., FOR THE PERIOD FROM OCTOBER 1 TO DECEMBER 31, 1923 (SECOND QUARTER, 1924), IT WAS FOUND THAT ARTICLES CARRIED FOR SALE, AGGREGATING $5,195.42, WERE NOT PROPERLY ACCOUNTED FOR; THAT IT INCLUDES ALL CHARGES UP TO AND INCLUDING DECEMBER 31, 1923, AND NOT PREVIOUSLY CERTIFIED; THAT HE HAS HAD A REASONABLE OPPORTUNITY TO MAKE A SATISFACTORY EXPLANATION REGARDING SAME AND THAT HE HAS NOT BEEN RELIEVED OF THE RESPONSIBILITY.

IT IS PROVIDED IN SECTION 2 OF THE ACT OF MARCH 29, 1894, 28 STAT. 47, THAT THE EFFECT OF SUCH A CERTIFICATE, WHEN RECEIVED IN THIS OFFICE, SHALL BE THE SAME AS IF THE FACTS THEREIN SET FORTH HAD BEEN ASCERTAINED IN THIS OFFICE; THAT IS, THE BALANCE THEREUPON STATED TO BE DUE IS MADE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BY SECTION 8 OF THE DOCKERY ACT, 28 STAT. 207, AS AMENDED BY THE BUDGET AND ACCOUNTING ACT OF 1921, AND IS REQUIRED BY SECTION 2 OF THE ACT OF AUGUST 8, 1888, 25 STAT. 387, TO BE IMMEDIATELY BROUGHT TO THE NOTICE OF ALL OBLIGORS UPON THE BOND OR BONDS OF THE DISBURSING OFFICER CONCERNED BY THE HEAD OF THE DEPARTMENT HAVING CONTROL OVER HIS AFFAIRS; MOREOVER, IT IS PROVIDED IN SECTION 1766 OF THE REVISED STATUTES, THE SAID DISBURSING OFFICER SHALL NOT BE PAID ANY MONEY FOR HIS COMPENSATION UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY THE FULL AMOUNT OF THE DEFICIENCY. UNITED STATES V. POTTER ET AL., 27 FED.CAS. 603; 4 OP.ATTY.GEN. 33; UNITED STATES V. VAN ZANDT (DIST.COL. 1826), 11 WHEAT. 184, 6 L.ED. 448; UNITED STATES V. DUPEROW, 208 FED.REP. 895.

THE EVENTS AND TRANSACTIONS WHICH GAVE RISE TO THE DEFICIENCY IN COMMANDER HAGNER'S DISBURSING ACCOUNT OCCURRED PRIOR TO DECEMBER 31, 1923, OF MORE THAN THREE AND ONE-HALF YEARS AGO, AND THE FINAL SETTLEMENT OF THE ACCOUNT WHEREIN THE DEFICIENCY APPEARS WAS MADE APPROXIMATELY ONE YEAR AGO, JULY 6, 1926. IT WOULD SEEM, THEREFORE, AMPLE TIME HAS BEEN AFFORDED THE OFFICER TO ARRANGE FOR THE LIQUIDATION OF HIS INDEBTEDNESS, AND HIS SUGGESTION THAT THERE BE ALLOWED HIM AN ADDITIONAL FOUR YEARS AND FOUR MONTHS IN WHICH TO SATISFY THE DEFICIENCY, THROUGH THE MONTHLY STOPPAGE OF THE COMPARATIVELY SMALL SUM OF $100 AGAINST HIS PAY, WHICH SUGGESTION THE PAYMASTER GENERAL HAS FAVORABLY RECOMMENDED, NOT ONLY WOULD BE DECIDEDLY PREJUDICIAL TO THE IMMEDIATE FINANCIAL INTERESTS OF THE GOVERNMENT, IF ADOPTED AND IF OTHERWISE LEGAL, BUT ULTIMATELY MIGHT GIVE RISE TO A QUESTION, BEFORE THE INDEBTEDNESS HAD BEEN COMPLETELY SATISFIED, AS TO WHETHER THE SURETY ON HIS BOND HAD NOT, BY REASON OF THE ARRANGEMENT, BEEN DISCHARGED FROM LIABILITY, UNDER THE PROVISION CONTAINED IN SECTION 2 OF THE ACT OF AUGUST 8, 1888, 25 STAT. 387.

THE SUGGESTION OFFERED APPARENTLY HAS FOR ITS BASIS WHAT IS REGARDED TO BE THE EXTREME HARDSHIP WHICH WOULD RESULT TO COMMANDER HAGNER FROM A COMPLETE STOPPAGE OF HIS COMPENSATION AS REQUIRED BY SECTION 1766 OF THE REVISED STATUTES, AND IN THAT RESPECT THE SUGGESTION IS IN NOWISE NOVEL, THE SAME PLEA HAVING BEEN FREQUENTLY PRESENTED BY DISBURSING OFFICERS DURING THE PERIOD OF MORE THAN ONE HUNDRED YEARS STATUTES OF THIS CHARACTER HAVE BEEN IN EFFECT. AS EARLY AS MARCH 22, 1831, ATTORNEY GENERAL MCPHERSON BERREIN, 2 OP.ATTY.GEN. 420, 425, CONSIDERED JUST SUCH A PLEA, AT THE REQUEST OF THE THEN SECRETARY OF THE NAVY, RESPECTING A REQUIREMENT IN THE ACT OF JANUARY 25, 1828, 4 STAT. 246, SIMILAR TO THE REQUIREMENT CONTAINED IN SECTION 1766 OF THE REVISED STATUTES, HIS CONCLUSION THEREON BEING EXPRESSED IN THE FOLLOWING LANGUAGE:

* * * THE SUGGESTION THAT IT STOPS THE ENTIRE SALARY OF THE SALARIED OFFICER, ON WHICH HE MAY DEPEND FOR HIS SUBSISTENCE, IS UNQUESTIONABLY TRUE; BUT THE ANSWER IS, THAT WHATEVER MAY BE THE HARDSHIP IN RELATION TO THAT CLASS OF OFFICERS, SUCH IS THE WILL OF CONGRESS; AND THEY HAVE EXPRESSED IT IN A MANNER NOT TO BE MISTAKEN. * * *

A LIKE PLEA, ADVANCED NEARLY 100 YEARS LATER, ON APRIL 17, 1927, BY LIEUT. COMMANDER THOMAS COCHRAN, CONCERNING A DEFICIENCY OF $620.80 IN HIS DISBURSING ACCOUNT, WAS ANSWERED BY YOU IN A LETTER TO HIM OF MAY 10, 1927, AS FOLLOWS:

2. REFERENCE (A), DIRECTING THE DISBURSING OFFICER CARRYING YOUR ACCOUNTS TO COMPLY WITH THE REQUIREMENTS OF SECTION 1766, REVISED STATUTES, WAS ISSUED PURSUANT TO A REPORT OF THE DEFICIENCY IN YOUR ACCOUNTS MADE BY THE COMPTROLLER GENERAL ON JULY 22, 1926. IT WILL BE OBSERVED, THEREFORE, THAT CONSIDERABLE TIME WAS ALLOWED YOU FOR SETTLEMENT BEFORE THE APPLICATION OF SECTION 1766, REVISED STATUTES, WAS INVOKED. AS THIS STATUTE HAS NOW BEEN INVOKED THE DEPARTMENT IS WITHOUT POWER TO WITHHOLD ITS APPLICATION, AS REQUESTED BY YOU, WHILE YOU REMAIN IN ARREARS TO THE UNITED STATES IN YOUR ACCOUNTS. NOR WILL THE STATUTE PERMIT OF A PORTION OF YOUR PAY BEING DELIVERED TO YOU, AS YOU REQUEST, WHILE YOU ARE LIQUIDATING THE AMOUNT OUTSTANDING AGAINST YOU.

IN YOUR LETTER OF MAY 10, 1927, TO THIS OFFICE, TRANSMITTING A COPY OF YOUR LETTER TO PAYMASTER COCHRAN, IT IS STATED THAT AS THE CIRCUMSTANCES SET FORTH IN HIS APPEAL WILL PROBABLY APPLY TO OTHER CASES IN WHICH SIMILAR ORDERS MAY BE ISSUED, THE DEPARTMENT WILL BE GLAD TO RECEIVE ANY COMMENT OR SUGGESTION I MAY HAVE TO MAKE IN THAT CONNECTION.

IN GENERAL RESPONSE, THEREFORE, TO THE COMMUNICATION OF MARCH 23, 1927, CONCERNING THE DEFICIENCY IN COMMANDER HAGNER'S DISBURSING ACCOUNTS AND THE COMMUNICATION OF MAY 10, 1927, CONCERNING THE DEFICIENCY IN LIEUTENANT COMMANDER COCHRAN'S DISBURSING ACCOUNT, YOU ARE ADVISED THAT I FULLY CONCUR IN THE ABOVE-QUOTED CONCLUSIONS REACHED BY ATTORNEY GENERAL BERREIN AND YOURSELF. SPECIFICALLY, YOU ARE ADVISED THAT SECTION 1766 OF THE REVISED STATUTES IS INTERPRETED TO REQUIRE THAT NO FURTHER PAYMENT FOR HIS COMPENSATION BE MADE TO COMMANDER HAGNER UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY THE SUM FOR WHICH HE IS IN ARREARS.

WHETHER AN ARRANGEMENT COULD BE MADE BY THE OFFICER WITH HIS SURETY WHEREBY THE SURETY WOULD IMMEDIATELY DISCHARGE HIS INDEBTEDNESS TO THE UNITED STATES BY A DEPOSIT OF $5,195.42 AND WOULD PERMIT HIM TO LIQUIDATE HIS RESULTANT OBLIGATION TO IT ON TERMS LESS ONEROUS THAN THOSE PRESCRIBED BY SECTION 1766 OF THE REVISED STATUTES IS, OF COURSE, A MATTER ENTIRELY FOR THE CONSIDERATION OF THE OFFICER.