A-13000, DECEMBER 21, 1926, 6 COMP. GEN. 408

A-13000: Dec 21, 1926

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PAY - UNITED STATES PROPERTY AND DISBURSING OFFICER OF NATIONAL GUARD AN OFFICER OF THE NATIONAL GUARD APPOINTED A UNITED STATES PROPERTY AND DISBURSING OFFICER IS NOT ENTITLED TO THE PAY ATTACHED TO SUCH OFFICE PRIOR TO THE DATE OF APPROVAL OF HIS BOND. WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF TIMOTHY J. STOCKTON WAS RELIEVED AS UNITED STATES PROPERTY AND DISBURSING OFFICER OF TEXAS AND LIEUT. POWERS WAS APPOINTED IN HIS STEAD AS PER GENERAL ORDERS NO. 37. ISSUED BY THE ADJUTANT GENERAL OF TEXAS BY ORDER OF THE GOVERNOR WHICH IS AS FOLLOWS: I. STOCKTON IS HEREBY RELIEVED AS U.S. COLONEL STOCKTON WILL CLOSE HIS MONEY ACCOUNTS IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN PARAGRAPHS 782.

A-13000, DECEMBER 21, 1926, 6 COMP. GEN. 408

PAY - UNITED STATES PROPERTY AND DISBURSING OFFICER OF NATIONAL GUARD AN OFFICER OF THE NATIONAL GUARD APPOINTED A UNITED STATES PROPERTY AND DISBURSING OFFICER IS NOT ENTITLED TO THE PAY ATTACHED TO SUCH OFFICE PRIOR TO THE DATE OF APPROVAL OF HIS BOND.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 21, 1926:

CLAUDE A. ADAMS, LIEUTENANT COLONEL, TEXAS NATIONAL GUARD, UNITED STATES PROPERTY AND DISBURSING OFFICER, FOR THE STATE OF TEXAS, HAS APPLIED FOR REVIEW OF SETTLEMENT NO. M-16222-W, DATED NOVEMBER 25, 1925, WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF TIMOTHY J. POWERS, LIEUTENANT COLONEL, FORMER UNITED STATES PROPERTY AND DISBURSING OFFICER, TEXAS NATIONAL GUARD, IN THE AMOUNT OF $208.33, COVERING THE AMOUNT PAID TO HIMSELF AS SALARY FOR THE PERIOD FROM DECEMBER 19, 1924, TO JANUARY 18, 1925, AS PER VOUCHER NO. 1112, FEBRUARY, 1925.

IT APPEARS THAT LIEUT. COL. JAMES T. STOCKTON WAS RELIEVED AS UNITED STATES PROPERTY AND DISBURSING OFFICER OF TEXAS AND LIEUT. COL. TIMOTHY J. POWERS WAS APPOINTED IN HIS STEAD AS PER GENERAL ORDERS NO. 37, DATED DECEMBER 18, 1924, ISSUED BY THE ADJUTANT GENERAL OF TEXAS BY ORDER OF THE GOVERNOR WHICH IS AS FOLLOWS:

I. PURSUANT TO AUTHORITY CONTAINED IN SECTION 67, NATIONAL DEFENSE ACT, JUNE 3, 1916, AS AMENDED, AND PARAGRAPH 616, NATIONAL GUARD REGULATIONS, 1922, AND UPON TELEGRAPHIC APPROVAL OF THE WAR DEPARTMENT, DATED DECEMBER 18, 1924, LIEUTENANT COLONEL JAMES T. STOCKTON IS HEREBY RELIEVED AS U.S. PROPERTY AND DISBURSING OFFICER OF TEXAS AND LIEUTENANT COLONEL TIMOTHY J. POWERS APPOINTED U.S. PROPERTY AND DISBURSING OFFICER IN HIS STEAD.

II. LIEUT. COLONEL STOCKTON WILL CLOSE HIS MONEY ACCOUNTS IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN PARAGRAPHS 782, 783, AND 785, N.G.R. 1922.

III. IMMEDIATELY UPON RECEIPT OF THE BLANK FORMS LIEUT. COLONEL POWERS WILL EXECUTE BOND IN THE AMOUNT AS PROVIDED BY PARAGRAPH 621, NATIONAL GUARD REGULATIONS, 1922.

IV. LIEUT. COLONEL STOCKTON WILL TRANSFER ALL FEDERAL PROPERTY FOR WHICH HE IS RESPONSIBLE OR ACCOUNTABLE TO LIEUT. COLONEL POWERS IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 873, NATIONAL GUARD REGULATIONS, 1922.

LIEUTENANT COLONEL STOCKTON CLOSED HIS MONEY ACCOUNTS AS OF DECEMBER 18, 1924, AND IT IS ALLEGED THAT HE TRANSFERRED ALL FEDERAL PROPERTY FOR WHICH HE WAS RESPONSIBLE OR ACCOUNTABLE TO LIEUTENANT COLONEL POWERS ON DECEMBER 19, 1924, AND THAT THE LATTER OFFICER ASSUMED ON THAT DATE THE RESPONSIBILITY OR ACCOUNTABILITY THEREFOR. LIEUTENANT COLONEL POWERS EXECUTED THE REQUIRED BOND WHICH WAS APPROVED BY THE SECRETARY OF WAR, JANUARY 19, 1925, AND THEREAFTER ON JANUARY 30, 1925, THE SECRETARY OF WAR MADE REQUISITION ON THE SECRETARY OF THE TREASURY FOR FUNDS TO BE PLACED WITH THE TREASURER OF THE UNITED STATES TO THE OFFICIAL CREDIT OF LIEUTENANT COLONEL POWERS. HIS FIRST MONEY ACCOUNTS WERE RENDERED FOR THE PERIOD JANUARY 19 TO 31, 1925.

THE DISALLOWANCE WAS MADE ON THE GROUND THAT LIEUTENANT COLONEL POWERS WAS NOT ENTITLED TO PAY AS UNITED STATES PROPERTY AND DISBURSING OFFICER PRIOR TO JANUARY 19, 1925, THE DATE OF THE APPROVAL OF HIS BOND.

SECTION 67 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 200, AS AMENDED BY THE ACT OF JULY 9, 1918, 40 STAT. 878, SO FAR AS HERE MATERIAL PROVIDES:

THE GOVERNOR OF EACH STATE AND TERRITORY AND THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA SHALL APPOINT, DESIGNATE, OR DETAIL, SUBJECT TO THE APPROVAL OF THE SECRETARY OF WAR, THE ADJUTANT GENERAL OR AN OFFICER OF THE NATIONAL GUARD OF THE STATE, TERRITORY, OR DISTRICT OF COLUMBIA, WHO SHALL BE REGARDED AS PROPERTY AND DISBURSING OFFICER OF THE UNITED STATES: * * * BEFORE ENTERING UPON THE PERFORMANCE OF HIS DUTIES AS PROPERTY AND DISBURSING OFFICER HE SHALL BE REQUIRED TO GIVE GOOD AND SUFFICIENT BOND TO THE UNITED STATES, THE AMOUNT THEREOF TO BE DETERMINED BY THE SECRETARY OF WAR, FOR THE FAITHFUL PERFORMANCE OF HIS DUTIES AND FOR THE SAFEKEEPING AND PROPER DISPOSITION OF THE FEDERAL PROPERTY AND FUNDS INTRUSTED TO HIS CARE. HE SHALL, AFTER HAVING QUALIFIED AS PROPERTY AND DISBURSING OFFICER, RECEIVE PAY FOR HIS SERVICES AT A RATE TO BE FIXED BY THE SECRETARY OF WAR, AND SUCH COMPENSATION SHALL BE A CHARGE AGAINST THE WHOLE SUM ANNUALLY APPROPRIATED FOR THE SUPPORT OF THE NATIONAL GUARD: * * *

THE NATIONAL GUARD REGULATIONS, 1922, PROVIDE:

617. THE PROPERTY AND DISBURSING OFFICER SHALL, AFTER HAVING QUALIFIED AS SUCH, I.E., UPON APPROVAL OF THE REQUIRED BOND, RECEIVE PAY FOR HIS SERVICES FROM FUNDS APPROPRIATED FOR THE PURPOSE UNDER THE PROVISIONS OF SECTION 67 IN ACCORDANCE WITH THE NUMBER OF OFFICERS AND ENLISTED MEN ACTUALLY ENROLLED IN THE NATIONAL GUARD OF THE STATE ON JUNE 30 OF EACH YEAR, AS FOLLOWS: * * *

626. THE DATE OF THE BOND, SO FAR AS THE UNITED STATES GOVERNMENT IS CONCERNED, IS THE DATE THE BOND IS APPROVED BY THE SECRETARY OF WAR, AND SUCH DATE SHOULD AT ALL TIMES BE USED WHENEVER THE BOND IS REFERRED TO.

627. WHEN THE COMPLETED BOND REQUIRED BY PARAGRAPH 616 IS APPROVED BY THE SECRETARY OF WAR, AND UPON RECEIPT OF A REQUEST FOR FUNDS MADE IN ACCORDANCE WITH PARAGRAPH 628, THE SECRETARY OF WAR WILL MAKE REQUISITION ON THE SECRETARY OF THE TREASURY TO HAVE THE AMOUNT CALLED FOR PLACED WITH THE TREASURER OF THE UNITED STATES TO THE OFFICIAL CREDIT OF THE DESIGNATED PROPERTY AND DISBURSING OFFICER.

IT IS URGED THAT LIEUTENANT COLONEL POWERS ASSUMED THE RESPONSIBILITIES AND PERFORMED THE DUTIES OF THE OFFICE FROM DECEMBER 19, 1924, AND THEREFORE IS ENTITLED TO THE PAY ATTACHED TO THE OFFICE FROM THAT DATE. HE MAY HAVE ASSUMED BY THE CONSENT OF THE GOVERNOR THE PROPERTY RESPONSIBILITY OR ACCOUNTABILITY PRIOR TO THE APPROVAL OF HIS BOND, BUT HE DID NOT AND COULD NOT ASSUME ANY RESPONSIBILITY FOR FEDERAL FUNDS OR PERFORM ALL THE DUTIES OF HIS OFFICE, BECAUSE NO SUCH FUNDS WERE ADVANCED TO HIM UNTIL AFTER THE APPROVAL OF HIS BOND.

IN UNITED STATES V. FLANDERS, 112 U.S. 88, IT WAS HELD THAT A PERSON APPOINTED AND COMMISSIONED AS A COLLECTOR OF INTERNAL REVENUE, UNDER THE ACT OF JULY 1, 1862, 12 STAT. 432, IS ENTITLED TO THE COMPENSATION, PROVIDED BY SECTION 34 OF THAT ACT, OF A PERCENTAGE COMMISSION TO BE COMPUTED ON THE MONEYS ACCOUNTED FOR AND PAID OVER BY HIM, FROM THE TIME HE ENTERED ON THE DUTIES OF HIS OFFICE AND HIS SERVICES ARE ACCEPTED, AND NOT MERELY FROM THE TIME HE TOOK THE OATH OF OFFICE AND FILED HIS OFFICIAL BOND ABOUT TWO MONTHS LATER, THE COURT SAYING:

* * * THE COMPENSATION IS GIVEN BY THE STATUTE TO THE COLLECTOR, WHEN APPOINTED, AND IS BASED WHOLLY ON THE AMOUNT OF MONEYS PAID OVER AND ACCOUNTED FOR. IF HE IS APPOINTED, AND ACTS, AND COLLECTS THE MONEYS, AND PAYS THEM OVER AND ACCOUNTS FOR THEM, AND THE GOVERNMENT ACCEPTS HIS SERVICES AND RECEIVES THE MONEYS, HIS TITLE TO THE COMPENSATION NECESSARILY ACCRUES, UNLESS THERE IS A RESTRICTION GROWING OUT OF THE FACT THAT ANOTHER STATUTE SAYS THAT HE MUST TAKE THE OATH ,BEFORE BEING ENTITLED TO ANY OF THE SALARY OR OTHER EMOLUMENTS" OF THE OFFICE. BUT WE ARE OF OPINION THAT THE STATUTE IS SATISFIED BY HOLDING THAT HIS TITLE TO RECEIVE, OR RETAIN, OR HOLD, OR APPROPRIATE, THE COMMISSIONS AS COMPENSATION, DOES NOT ARISE UNTIL HE TAKES AND SUBSCRIBES THE OATH OR AFFIRMATION, BUT THAT, WHEN HE DOES SO, HIS COMPENSATION IS TO BE COMPUTED ON MONEYS COLLECTED BY HIM, FROM THE TIME WHEN, UNDER HIS APPOINTMENT, HE BEGAN TO PERFORM SERVICES AS COLLECTOR, WHICH THE GOVERNMENT ACCEPTED, PROVIDED HE HAS PAID OVER AND ACCOUNTED FOR SUCH MONEYS. * * * SEE ALSO UNITED STATES V. EATON, 169 U.S. 331.

IN THE CASE OF A UNITED STATES PROPERTY AND DISBURSING OFFICER COMPENSATION IS NOT GIVEN BY THE STATUTE "WHEN APPOINTED," BUT ONLY "AFTER HAVING QUALIFIED.' FURTHERMORE, LIEUTENANT COLONEL POWERS DID NOT PERFORM ALL THE DUTIES OF THE OFFICE OF UNITED STATES PROPERTY AND DISBURSING OFFICER, NOR DOES IT APPEAR THAT HE WAS RECOGNIZED BY THE SECRETARY OF WAR AS HAVING THE RIGHT TO PERFORM THE DUTIES OF THE OFFICE PRIOR TO THE APPROVAL OF HIS BOND. ON THE CONTRARY, AND IN ACCORDANCE WITH PARAGRAPH 627 OF THE NATIONAL GUARD REGULATIONS QUOTED ABOVE, THE SECRETARY OF WAR DID NOT MAKE REQUISITION FOR ADVANCE OF FUNDS TO HIM PRIOR TO THE APPROVAL OF HIS BOND, THUS ENFORCING THE DIRECTION OF THE STATUTE THAT GOOD AND SUFFICIENT BOND BE GIVEN BEFORE ENTRANCE ON THE PERFORMANCE OF DUTY.

IN VIEW OF THESE DIFFERENCES IN THE LAW AND FACTS IT WOULD SEEM THAT THE PRINCIPLES OF THE FLANDERS CASE HAVE NO APPLICATION TO THIS CASE.