A-13389, MARCH 8, 1926, 5 COMP. GEN. 702

A-13389: Mar 8, 1926

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AFFORD NO PROTECTION TO DISBURSING OFFICERS WHO ARE LIABLE TO THE UNITED STATES UNDER THEIR OFFICIAL BONDS FOR ANY ILLEGAL PAYMENTS. THE QUESTION WHETHER THE PRINCIPLES ON WHICH A COURT BASES ITS DECISION IN A PARTICULAR CASE ARE APPLICABLE IN THE MATTER OF DISBURSEMENTS FROM GENERAL APPROPRIATIONS IS FOR DETERMINATION BY THE COMPTROLLER GENERAL OF THE UNITED STATES AND NOT BY THE DEPARTMENT OR ESTABLISHMENT HAVING THE ADMINISTRATIVE DIRECTION OVER THE APPROPRIATION INVOLVED. THE PURPORT OF THE OPINION AND INDORSEMENT IS TO INSTRUCT DISBURSING OFFICERS OF THE WAR DEPARTMENT TO IGNORE THE SETTLEMENTS AND DECISIONS OF THIS OFFICE IN THE MATTER OF A CERTAIN CLASS OF PAYMENTS AND TO MAKE PAYMENTS IN DIRECTION CONTRAVENTION THEREOF.

A-13389, MARCH 8, 1926, 5 COMP. GEN. 702

GENERAL ACCOUNTING OFFICE, JURISDICTION - SUBSISTENCE, FRACTIONAL DAYS THE GENERAL ACCOUNTING OFFICE HAS EXCLUSIVE JURISDICTION AND AUTHORITY, SUBJECT TO APPEAL TO THE CONGRESS, TO DETERMINE THE AVAILABILITY OF APPROPRIATIONS MADE IN GENERAL TERMS FOR THE SUPPORT OF THE ACTIVITIES OF THE GOVERNMENT AND DIRECTIONS OF ADMINISTRATIVE OFFICERS, EVEN THOUGH BASED ON A COURT DECISION BELIEVED BY THEM TO BE APPLICABLE, THAT PAYMENTS BE MADE FROM SUCH APPROPRIATIONS IN CONTRAVENTION OF THE DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, AFFORD NO PROTECTION TO DISBURSING OFFICERS WHO ARE LIABLE TO THE UNITED STATES UNDER THEIR OFFICIAL BONDS FOR ANY ILLEGAL PAYMENTS. THE QUESTION WHETHER THE PRINCIPLES ON WHICH A COURT BASES ITS DECISION IN A PARTICULAR CASE ARE APPLICABLE IN THE MATTER OF DISBURSEMENTS FROM GENERAL APPROPRIATIONS IS FOR DETERMINATION BY THE COMPTROLLER GENERAL OF THE UNITED STATES AND NOT BY THE DEPARTMENT OR ESTABLISHMENT HAVING THE ADMINISTRATIVE DIRECTION OVER THE APPROPRIATION INVOLVED. LOCOMOTION IN THE VICINAGE OF AN EMPLOYEE'S POST OF DUTY DURING THE ORDINARY WORKING HOURS DOES NOT CONSTITUTE TRAVELING AWAY FROM A DESIGNATED POST OF DUTY WITHIN THE MEANING AND REQUIREMENTS OF GENERAL STATUTES FOR THE PAYMENT OF ACTUAL EXPENSES OF SUBSISTENCE OR PER DIEM IN LIEU THEREOF.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MARCH 8, 1926:

IN THE CONSIDERATION OF CERTAIN QUESTIONS PRESENTED TO THIS OFFICE BY MAJS. E. S. DALEY AND F. K. NEWCOMBE, DISBURSING OFFICERS OF THE ENGINEER CORPS, RESPECTING CERTAIN PAYMENTS HEREINAFTER MORE FULLY DESCRIBED THERE HAS COME TO MY ATTENTION AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY WHICH BEARS YOUR APPROVAL BY INDORSEMENT DATED SEPTEMBER 29, 1925. THE PURPORT OF THE OPINION AND INDORSEMENT IS TO INSTRUCT DISBURSING OFFICERS OF THE WAR DEPARTMENT TO IGNORE THE SETTLEMENTS AND DECISIONS OF THIS OFFICE IN THE MATTER OF A CERTAIN CLASS OF PAYMENTS AND TO MAKE PAYMENTS IN DIRECTION CONTRAVENTION THEREOF. SUCH ACTION IS SO INCONSISTENT WITH THE FUNDAMENTAL PRINCIPLES ON WHICH THE ACCOUNTING AND DISBURSING SYSTEMS OF THIS GOVERNMENT ARE BASED THAT I AM LOATH TO REGARD IT AS REPRESENTING YOUR ATTITUDE AND DETERMINATION IN THE MATTER WITHOUT FIRST BRINGING IT TO YOUR PERSONAL ATTENTION.

ARTICLE I, SECTION 9, OF THE CONSTITUTION PROVIDES THAT NO MONEY SHALL BE DRAWN FROM THE TREASURY SAVE IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW. THE CONGRESS AUTHORIZES FROM TIME TO TIME THE DRAWING OF MONEY FROM THE TREASURY EITHER IN SPECIFIC SUMS FOR SPECIFIC PURPOSES OR FOR PURPOSES AUTHORIZED BY GENERAL PROVISIONS OF LAW. THE PUBLIC FUNDS WHICH THE ARMY DISBURSING OFFICERS ARE INSTRUCTED IN THE OPINION AND MEMORANDUM DATED SEPTEMBER 29, 1925, TO DISBURSE IN CONTRAVENTION OF THE DECISIONS AND SETTLEMENTS OF THIS OFFICE ARE MONEYS ADVANCED TO THEM UNDER GENERAL APPROPRIATIONS.

DISBURSING OFFICERS ARE STRICTLY ACCOUNTABLE FOR PUBLIC FUNDS ENTRUSTED TO THEM AND ARE LIABLE PERSONALLY AND ON THEIR BONDS FOR ALL UNAUTHORIZED EXPENDITURES THEREFROM, AND THE MATTER OF DETERMINING THE AVAILABILITY OF AN APPROPRIATION FOR A USE, PROPOSED OR ACCOMPLISHED, IS, UNDER THE LAW, THE DUTY AND RESPONSIBILITY OF THE ACCOUNTING OFFICERS AND NOT THAT OF THE OFFICIAL HAVING ADMINISTRATIVE CONTROL OVER THE APPROPRIATION. IT WILL BE RECALLED IN THIS CONNECTION THAT IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO SETTLE AND ADJUST ALL CLAIMS AND ACCOUNTS IN WHICH THE UNITED STATES IS INTERESTED AS DEBTOR OR CREDITOR. THAT THE MATTER OF FINAL AND CONCLUSIVE CONTROL IN THE ACCOUNTING OFFICERS OVER DISBURSEMENTS FROM APPROPRIATED FUNDS IS NOT NEW, IS INDICATED BY A THOUGHT EXPRESSED BY SECRETARY OF THE TREASURY WOODBURY IN A REPORT TO THE SENATE ON DECEMBER 5, 1834, WHEREIN HE SAID:

IT SEEMS REQUIRED, BY A DUE REGARD TO SYSTEM, UNIFORMITY, AND PROPER ACCOUNTABILITY, THAT NEITHER THOSE EMPOWERED BY LAW TO DECIDE ON THE NECESSITY OF CERTAIN SERVICES AND PURCHASES NOR THOSE WHO MAKE THE PURCHASES AND CONTRACTS SHOULD ALSO ADJUST THE ACCOUNTS RENDERED FOR THEM; BUT THAT THE AUDITORS THEMSELVES, WHETHER THE CLAIMS ORIGINATE UNDER THE AUTHORITY OF THE HEADS OF BUREAUS OR OF DEPARTMENTS, SHOULD HAVE THE EXCLUSIVE POWER, IN THE FIRST INSTANCE, TO JUDGE OF THE REASONABLENESS AND JUST AMOUNT DUE, LOOKING TO ALL THE EVIDENCE IN THE CASE, AND TO THE LAWS AND FIXED PROSPECTIVE REGULATIONS THAT APPLY TO IT * * * (26 CONG.REC. 4305).

AS A CHECK ON THE AGENCIES OF THE GOVERNMENT ENTRUSTED WITH ADMINISTRATIVE CONTROL OVER APPROPRIATIONS, THE CONGRESS ESTABLISHED BY THE ACT OF SEPTEMBER 2, 1789, 1 STAT. 65, A COUNTERPART OF THE ACCOUNTING SYSTEM EXISTING UNDER THE ORDINANCE OF SEPTEMBER 26, 1778, OF THE CONTINENTAL CONGRESS. THIS ACCOUNTING SYSTEM PROVIDED FOR A COMPTROLLER AND AN AUDITOR TO COUNTERSIGN ALL WARRANTS FOR THE DRAWING OF PUBLIC MONEY FROM THE TREASURY AS APPROPRIATED AND AUTHORIZED BY LAW AND FOR THE SETTLEMENT OF ALL CLAIMS AND DEMANDS AND ACCOUNTS WHATEVER AGAINST THE UNITED STATES. THE FUNDAMENTALS OF THAT SYSTEM HAVE EXISTED, EXCEPT FOR THE PERIOD FROM MAY 8, 1792, TO MARCH 3, 1817, FROM THAT DATE TO THE PRESENT. WHILE FROM 1789 TO 1921, SAID ACCOUNTING SYSTEM WAS A PART OF THE TREASURY DEPARTMENT, THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, PLACED IT UNDER AN ESTABLISHMENT INDEPENDENT OF ALL OF THE EXECUTIVE DEPARTMENTS AND OTHER ESTABLISHMENTS, TO THE END THAT ITS FUNCTIONS COULD NOT BE INFLUENCED OR CONTROLLED BY OR FOR THOSE REQUIRED TO ACCOUNT, OR OTHERWISE.

DURING THE PERIOD FROM MAY 8, 1792, TO MARCH 3, 1817, DISBURSEMENTS OF APPROPRIATIONS FOR THE WAR AND NAVY DEPARTMENTS WERE REQUIRED TO BE MADE, NOT BY WARRANTS OF THE SECRETARY OF THE TREASURY COUNTERSIGNED BY THE COMPTROLLER OF THE TREASURY, AS PREVIOUSLY DONE PURSUANT TO THE REQUISITIONS OF THESE DEPARTMENTS, ACCORDING TO THE ACT OF 1789, BUT BY WARRANTS OF THE SECRETARIES OF WAR AND NAVY, COUNTERSIGNED BY THEIR RESPECTIVE ACCOUNTANTS AS PROVIDED IN THE ACT OF MAY 8, 1792, 1 STAT. 279, AS AMENDED BY THE ACT OF APRIL 29, 1816, 3 STAT. 322, AND BY THE ACT OF JULY 16, 1798, 1 STAT. 610. HOWEVER, EVEN THEN THESE ACCOUNTANTS WERE REQUIRED TO REPORT THEIR SETTLEMENTS FROM TIME TO TIME FOR THE REVISION AND APPROVAL OF THE OFFICERS OF THE TREASURY. THIS PROVED UNSATISFACTORY IN PRACTICE AND THE ACT OF MARCH 3, 1817, 3 STAT. 366, RESTORED TO THE THEN ACCOUNTING OFFICERS OF THE TREASURY THE AUTHORITY THEY HAD THERETOFORE HAD UNDER THE 1789 STATUTE AND THE ORDINANCE OF 1778, TO AUDIT AND SETTLE ALL CLAIMS AND ACCOUNTS WHATEVER IN WHICH THE UNITED STATES IS CONCERNED AND TO COUNTERSIGN ALL WARRANTS FOR THE DRAWING OF PUBLIC MONEY FROM THE TREASURY. AS HERETOFORE STATED, CONGRESS HAS NEVER DEEMED IT DESIRABLE TO MODIFY SUCH AUTHORITY AND JURISDICTION AND THIS PROBABLY FOR THE REASONS COGENTLY URGED BY POSTMASTER GENERAL KENDALL IN HIS ANNUAL REPORT OF DECEMBER 4, 1835, FOR AN INDEPENDENT AUDIT BY THE ACCOUNTING OFFICERS OF THE TREASURY OF THE FINANCIAL TRANSACTIONS OF THE POST OFFICE DEPARTMENT. HE SAID:

* * * IT IS BELIEVED TO BE A SOUND PRINCIPLE THAT PUBLIC OFFICERS WHO HAVE AN AGENCY IN ORIGINATING ACCOUNTS SHOULD HAVE NONE IN THEIR SETTLEMENT. THE WAR AND NAVY DEPARTMENTS ARE IN GENERAL ORGANIZED UPON THIS PRINCIPLE * * *. IF FROM ANY CAUSE AN ILLEGAL EXPENDITURE BE DIRECTED BY THE HEAD OF A DEPARTMENT, IT IS THE DUTY OF THE DISBURSING AGENT NOT TO PAY THE MONEY; AND IF HE DOES PAY IT, IT IS THE DUTY OF THE AUDITORS AND COMPTROLLERS TO REJECT THE ITEM IN THE SETTLEMENT OF HIS ACCOUNT. * * * (QUOTED 1 LAW. COMP. DEC. 527.)

THE SENATE COMMITTEE WHICH INVESTIGATED THE IRREGULARITIES THEN EXISTING IN THE POST OFFICE DEPARTMENT SUMMED THE MATTER UP IN A REPORT DATED JANUARY 27, 1835 (SEN.DOC.NO. 422, 1ST SESS. 23D CONG.), AS FOLLOWS:

THEY MAY BE PRINCIPALLY TRACED TO THE ABSOLUTE AND UNCHECKED POWER WHICH A SINGLE INDIVIDUAL (THE POSTMASTER GENERAL) HOLDS OVER THE RESOURCES AND DISBURSEMENTS AND ALL THE VAST MACHINERY OF THE DEPARTMENT. THE CHECKS OF VARIOUS INFERIOR OFFICERS UPON EACH OTHER ARE OF NO VALUE WHEN ALL ARE GUIDED AND CONTROLLED IN THEIR ACTS BY ONE DOMINANT WILL. * * *

THE ACT OF JULY 2, 1836, 5 STAT. 80, PROVIDED FOR A SIXTH AUDITOR OF THE TREASURY TO AUDIT AND SETTLE THE TRANSACTIONS OF THE POST OFFICE DEPARTMENT AND THAT DUTY HAS SINCE DEVOLVED ON THE ACCOUNTING OFFICERS OF THE UNITED STATES.

THERE HAS BEEN NO DOUBT AS TO THE NATURE OF SUCH DUTIES. ATTORNEY GENERAL WIRT, IN AN OPINION OF 1823, WITH RESPECT TO THE JURISDICTION OF THE ACCOUNTING OFFICERS UNDER THE ACT OF MARCH 3, 1817, SUPRA, SAID, IN 1 OP.ATTY.GEN. 624, 629, THAT:

MY OPINION IS THAT THE SETTLEMENT MADE OF THE ACCOUNTS OF INDIVIDUALS BY THE ACCOUNTING OFFICERS APPOINTED BY LAW IS FINAL AND CONCLUSIVE, SO FAR AS THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT IS CONCERNED. IF AN INDIVIDUAL CONCEIVES HIMSELF INJURED BY SUCH SETTLEMENT, HIS RECOURSE MUST BE ONE OF THE OTHER TWO BRANCHES OF GOVERNMENT--- THE LEGISLATIVE OR JUDICIAL. IF A BALANCE BE FOUND AGAINST HIM, BY THE DISALLOWANCE OF CREDITS WHICH HE DEEMS JUST, HE MAY REFUSE PAYMENT AND ABIDE A SUIT; IN WHICH CASE HE WILL HAVE THE BENEFIT OF THE OPINION OF A COURT AND JURY. IF A BALANCE IS FOUND IN HIS FAVOR, BUT SMALLER THAN HE THINKS HIMSELF ENTITLED TO, HIS APPEAL IS TO CONGRESS, WHERE THE REPRESENTATIVES OF THE PEOPLE WILL PASS UPON HIS CLAIM.

THE COURT OF CLAIMS ALSO CONSIDERED AT LENGTH IN MCKNIGHT V. UNITED STATES, 13 CT.CLS, 292, 304, THE ACCOUNTING SYSTEM AS IT WAS ORGANIZED UNDER THE ACT OF MARCH 3, 1817, AND SAID, WITH RESPECT TO THE AUDIT AND SETTLEMENT OF ACCOUNTS OF DISBURSING OFFICERS, THAT:

BUT VAST SUMS OF MONEY ARE PAID TO PARTIES FOR SALARIES AND ON OTHER ACCOUNTS BY DISBURSING OFFICERS BEFORE THE CLAIMS HAVE PASSED THE TREASURY ACCOUNTING, AND THE NUMBER OF SUCH OFFICERS IS LARGE, THEIR APPOINTMENTS BEING PROVIDED FOR BY SPECIAL OR GENERAL PROVISIONS OF STATUTE (REV. STAT., SECS. 56-58, 62, 176, 255, 496, 1153, 1382, 1550, 1563, 1765, 1951, 3144, 3646, 3648, 3658, 3677, 4839, ETC.). THEY ARE ALL UNDER BONDS AND RESPONSIBLE FOR THE LEGALITY AND CORRECTNESS OF THEIR PAYMENTS. THEIR ACCOUNTS ARE FINALLY SETTLED THROUGH THE ACCOUNTING OFFICERS, AND EVERY ITEM CHARGED THEREIN IS SUBJECT TO EXAMINATION AND ADJUSTMENT AS ARE ALL OTHER DEMANDS, AND ONLY SUCH ARE ALLOWED AS ARE FOUND TO BE SUFFICIENTLY VOUCHED FOR AND TO HAVE BEEN LEGALLY AND RIGHTLY PAID. ALL OTHERS ARE REJECTED, AND THE DISBURSING OFFICER AND HIS BONDSMEN ARE HELD LIABLE FOR ANY BALANCES FOUND AGAINST HIM ON SUCH SETTLEMENT (REV.STAT., SECS. 3622- 3625; MCKEE V. UNITED STATES, 12 C.CLS.R., 553).

EVEN AS EARLY AS PRESIDENT ANDREW JACKSON, WHO HAD BEEN IMPORTUNED TO REVIEW A SETTLEMENT OF THE ACCOUNTING OFFICERS, IT HAD BEEN RECOGNIZED THAT THE SPENDING AGENCIES COULD NOT INTERFERE WITH SUCH SETTLEMENTS, FOR HE NOTIFIED ONE OF YOUR PREDECESSORS BY AN INDORSEMENT DATED JULY 1, 1835, AS FOLLOWS:

THE REPORT MADE--- ATTORNEY GENERAL'S OPINION REFERRED TO. THE DECISION OF THE SECOND COMPTROLLER IS FINAL, OVER WHOSE DECISIONS THE PRESIDENT HAS NO POWER EXCEPT BY REMOVAL. THE SECRETARY OF WAR WILL MAKE KNOWN THIS DECISION TO MR. PEEBLES.

PRESIDENT POLK SIMILARLY INFORMED ONE OF YOUR PREDECESSORS ON AUGUST 9, 1845, IN THE CLAIM OF BRYANT, CLEMENTS AND CO.; AND THE MATTER OF INTERFERENCE OF THE SPENDING AGENCIES IN THE SETTLEMENTS OF THE ACCOUNTING OFFICERS FINALLY RESULTED IN THE ENACTMENT OF THE PROVISIONS IN THE ACT OF MARCH 30, 1868, 15 STAT. 54, WHICH READ:

THAT THE ACT OF MARCH THREE, EIGHTEEN HUNDRED AND SEVENTEEN, ENTITLED"AN ACT TO PROVIDE FOR THE PROMPT SETTLEMENT OF PUBLIC ACCOUNTS," SHALL NOT BE CONSTRUED TO AUTHORIZE THE HEADS OF DEPARTMENTS TO CHANGE OR MODIFY THE BALANCES THAT MAY BE CERTIFIED TO THEM BY THE COMMISSIONER OF CUSTOMS OR THE COMPTROLLER OF THE TREASURY, BUT THAT SUCH BALANCES, WHEN STATED BY THE AUDITOR AND PROPERLY CERTIFIED BY THE COMPTROLLER AS PROVIDED BY THAT ACT, SHALL BE TAKEN AND CONSIDERED AS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND BE SUBJECT TO REVISION ONLY BY CONGRESS OR THE PROPER COURTS: PROVIDED, THAT THE HEAD OF THE PROPER DEPARTMENT, BEFORE SIGNING A WARRANT FOR ANY BALANCE CERTIFIED TO HIM BY A COMPTROLLER, MAY SUBMIT TO SUCH COMPTROLLER ANY FACTS IN HIS JUDGMENT AFFECTING THE CORRECTNESS OF SUCH BALANCE, BUT THE DECISION OF THE COMPTROLLER THEREON SHALL BE FINAL AND CONCLUSIVE AS HEREINBEFORE PROVIDED.

THE COURT OF CLAIMS SAID IN WINNISIMMET COMPANY V. UNITED STATES, 12 CT.CLS. 319, 326, WITH REFERENCE TO THIS STATUTE WHICH WAS CARRIED FORWARD AS SECTION 191, REVISED STATUTES, AND IS NOW A PART OF SECTION 304 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, THAT:

IT WILL BE OBSERVED THAT AFTER ITS PASSAGE, THOUGH IT PROVIDED THAT THE DECISION OF THE COMPTROLLER MIGHT BE REVIEWED BY THE PROPER COURTS, THERE WAS NO WAY PRESCRIBED FOR THE HEAD OF A DEPARTMENT, HOWEVER FIRM HIS CONVICTION THAT A CLAIM OUGHT NOT TO BE PAID, TO BRING IT UNDER SUCH REVIEW. * * *

THE SUPREME COURT OF THE UNITED STATES SAID IN ST. LOUIS, BROWNSVILLE AND MEXICO RAILWAY COMPANY V. UNITED STATES, 268, U.S. 169, 174, WITH RESPECT TO THE JURISDICTION AND AUTHORITY OF THE ACCOUNTING OFFICERS UNDER THE ACT OF JULY 31, 1894, 28 STAT. 205, 211, THAT:

* * * PAYMENT FOR TRANSPORTATION, AS FOR OTHER SERVICE OR SUPPLIES, MAY ORDINARILY BE SECURED BY PRESENTING THE CLAIM TO THE APPROPRIATE DISBURSING OFFICER OF THE DEPARTMENT SERVED. BECAUSE OF LIMITATIONS IMPOSED UPON THE POWERS OF DISBURSING OFFICERS, IT IS OFTEN DESIRABLE TO PRESENT THE CLAIM FOR DIRECT SETTLEMENT TO THE AUDITOR FOR THE DEPARTMENT, WHO IS AN ACCOUNTING OFFICER OF THE TREASURY. THE AUDITOR MAY ALLOW THE CLAIM IN WHOLE OR IN PART. IF HIS ACTION IS NOT SATISFACTORY, EITHER TO THE CLAIMANT OR TO THE HEAD OF THE DEPARTMENT AFFECTED, AN APPEAL MAY BE TAKEN TO THE COMPTROLLER OF THE TREASURY, FOR ITS REVISION. IN THE ABSENCE OF AN APPEAL, THE SETTLEMENT OF THE AUDITOR IS "FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT.' IN CASE OF SUCH APPEAL THE DECISION OF THE COMPTROLLER IS CONCLUSIVE. * * *

THE MATTER WAS ALSO CONSIDERED IN RE REFERENCE, 59 CT.CLS. 813, WITH RESPECT TO THE AUTHORITY SUBSEQUENT TO THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, AND IT WAS THERE SAID THAT: THE DISALLOWANCE OF PART OF THE CLAIM OF HUBERT C. ANDERSON WAS REVIEWED BY THE COMPTROLLER GENERAL OF THE UNITED STATES AT THE REQUEST OF THE TREASURY DEPARTMENT, AND THE SETTLEMENT WAS SUSTAINED BY HIS DECISION RENDERED DECEMBER 8, 1923. THIS RULING IS CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BY VIRTUE OF THE DOCKERY ACT OF 1894 AND THE ACT OF JUNE 10, 1921, 42 STAT. 24. THERE BEING NO AUTHORITY AFTER THIS DECISION BY THE COMPTROLLER GENERAL FOR THE TREASURY DEPARTMENT TO SETTLE OR PAY THE CLAIM IT CAN NOT BE TRANSMITTED BY THE SECRETARY UNDER SECTION 148. SEE SECOR CASE, 54 C.CLS., 92, 107. IT IS PROPER HERE TO NOTE THAT ONE OF YOUR PREDECESSORS RECOMMENDED TO THE CONGRESS THAT THE ACT OF MARCH 30, 1868, SUPRA, BE REPEALED AND THE COMMUNICATION WAS REFERRED TO THE HOUSE COMMITTEE ON REVISION OF THE LAWS WHICH REPORTED AMONG OTHER THINGS, THAT:

IN THE JUDGMENT OF THE COMMITTEE THE PRESENT SYSTEM OF PUBLIC ACCOUNTING (WHICH HAS WORKED SO SATISFACTORILY WITH FEW INTERRUPTIONS FOR MORE THAN HALF A CENTURY) OUGHT NOT TO BE DISTURBED, AND THAT THE ACT OF MARCH 30, 1868, WHICH WAS DESIGNED TO PREVENT SUCH INTERRUPTIONS IN THE FUTURE, WAS JUST AND WISE, AND THAT NO NECESSITY EXISTS FOR ITS REPEAL OR MODIFICATION. (26 CONG.REC. 4342.)

THIS COMMITTEE FURTHER REPORTED THAT THE ACCOUNTING SYSTEM OF THE UNITED STATES WAS "DESIGNED TO PREVENT OFFICERS WHO MADE OR DIRECTED THE EXPENDITURE FROM HAVING ANY VOICE OR INFLUENCE IN JUDGING OF THE LEGALITY OR RIGHTFULNESS OF IT, AND SUCH CHECK WAS NECESSARY TO INSURE A JUDICIOUS AND HONEST EXPENDITURE OF THE PUBLIC FUNDS.' (THIS REPORT IS REPUBLISHED IN 26 CONG. RECORD 4341, 4342.)

IT IS, THEREFORE, CLEAR AS A MATTER OF PRACTICE, AS A MATTER OF STATUTES, AND AS A MATTER OF COURT DECISIONS THAT THE ACCOUNTING AND DISBURSING SYSTEMS OF THE UNITED STATES HAVE BEEN ESTABLISHED, EXCEPT FOR THE PERIOD FROM 1798 TO 1817 AS RESPECTS THE WAR AND NAVY DEPARTMENTS, AND EXCEPT FOR THE PERIOD TO 1836 AS RESPECTS THE POST OFFICE DEPARTMENT, ON THE PRINCIPLE STATED BY SECRETARY WOODBURY IN HIS REPORT OF 1834; THAT IS, THAT THE OFFICERS CONCERNED WITH THE NECESSITY OF SERVICES AND PURCHASES SHOULD NOT SETTLE AND ADJUST THE PECUNIARY OBLIGATIONS ARISING THEREFROM AND THAT SUCH SETTLEMENT AND ADJUSTMENT SHOULD BE MADE BY THE ACCOUNTING OFFICERS OF THE UNITED STATES WITHOUT ANY INTERFERENCE WHATEVER BY THE SPENDING AGENCIES OF THE GOVERNMENT. SEE DECISION OF THE SECOND COMPTROLLER OF THE TREASURY, DATED FEBRUARY 10, 1851, REPUBLISHED IN 1 LAWRENCE, COMPTROLLER'S DECISIONS, 510, 533.

THE CONGRESS PROVIDED IN SECTION 8 OF THE ACT OF JULY 31, 1894, THAT THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR DISBURSING OFFICER COULD APPLY TO THE COMPTROLLERS OF THE TREASURY, NOW THE COMPTROLLER GENERAL OF THE UNITED STATES, FOR DECISION OF ANY QUESTION INVOLVED IN A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED,"SHALL GOVERN * * * IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.' THE PURPOSE OF THIS SECTION WAS DECLARED BY ITS SPONSORS (HOUSE REPORT NO. 637, 53D CONGRESS, 2D SESSION) TO BE "A MEASURE OF RELIEF FOR DISBURSING OFFICERS, AND ALSO TO ALLOW THE EXECUTIVE DEPARTMENTS TO KNOW WHAT THE ACTION OF THE COMPTROLLER WILL BE BEFORE AN EXPENSE IS INCURRED BY THEM.'

PRIOR TO THIS PROVISION OF LAW, THE HEADS OF SOME OF THE DEPARTMENTS WHO DISAGREED WITH SOME PARTICULAR CLASS OF SETTLEMENTS MADE BY THE ACCOUNTING OFFICERS AND NOT HAVING AUTHORITY IN VIEW OF THE ACT OF MARCH 30, 1868, TO INTERFERE WITH SAID SETTLEMENTS, ATTEMPTED BY INDIRECTION TO SECURE ACCEPTANCE OF THEIR VIEWS. THIS WAS DONE BY APPLICATION TO THE ATTORNEY GENERAL FOR AN OPINION. HOWEVER, SINCE 1894, THE ATTORNEYS GENERAL, WITH A FEW RECENT EXCEPTIONS, HAVE REFUSED TO RENDER OPINIONS RESPECTING DISBURSEMENT OF PUBLIC FUNDS (SEE 20 OP.ATTY.GEN. 655, 21 ID. 178, ID. 188, ID. 221, ID. 405, ID. 530; 22 ID. 581, 23 ID. 1, ID. 2, ID. 10, ID. 86, ID. 431, ID. 468, ID. 586; 24 ID. 85; 24 ID. 553; 25 ID. 185; 28 ID. 129; 33 ID. 265, ID. 268) BECAUSE "THE COMPTROLLER, BY HIS GREATER EXPERIENCE IS BETTER QUALIFIED TO PASS UPON (THEM), AND IT IS DESIRABLE TO AVOID ANY POSSIBLE CONFLICT OF PRECEDENTS.'

EX-PRESIDENT AND NOW CHIEF JUSTICE TAFT SUMMARIZED THE MATTER AT PAGE 81 OF HIS BOOK ON "OUR CHIEF MAGISTRATE AND HIS POWERS," AS IT EXISTED PRIOR TO THE BUDGET AND ACCOUNTING ACT OF 1921, AS FOLLOWS:

THEN CONSIDER THE DRAWING OF MONEY FROM THE TREASURY DEPARTMENT UNDER AN APPROPRIATION ACT. THE DRAWING OF THE WARRANT MUST BE APPROVED BY THE COMPTROLLER OF THE TREASURY. IT IS FOR HIM TO SAY HOW THE APPROPRIATION ACT SHALL BE CONSTRUED AND WHETHER THE WARRANT IS LAWFUL AND WHETHER THE MONEY CAN BE DRAWN. THE COMPTROLLER OF THE TREASURY IS AN APPOINTEE OF THE PRESIDENT, AND IN A GENERAL SENSE IS HIS SUBORDINATE. IF THE PRESIDENT DOES NOT LIKE HIM AS A COMPTROLLER, HE CAN REMOVE HIM AND WITH THE CONSENT OF THE SENATE PUT IN ANOTHER ONE, BUT UNDER THE ACT OF CONGRESS CREATING THE OFFICE, THE PRESIDENT CAN NOT CONTROL OR REVISE THE DECISIONS OF THIS OFFICER. HIS WORK IS LIKE THE WORK I HAVE REFERRED TO, QUASI JUDICIAL. IF THE CLAIM IS REJECTED BY HIM, THE CLAIMANT MAY IN SOME CASES CARRY HIS CASE INTO THE COURT OF CLAIMS, BUT IF HE DECIDES FOR THE CLAIMANT, THE PUBLIC AND THOSE INTERESTED IN MAINTAINING THE SIDE OF THE GOVERNMENT HAVE NO APPEAL, AND HIS DECISION IS FINAL.

THERE IS, OF COURSE, A CLEAR RIGHT TO APPEAL TO THE CONGRESS FROM A DECISION OF THE CHIEF ACCOUNTING OFFICER DENYING THE AVAILABILITY OF AN APPROPRIATION FOR THE PAYMENT OF A CLAIM BUT THERE IS NO APPEAL TO THE HEAD OF AN EXECUTIVE DEPARTMENT NOR TO THE COURTS FROM SUCH DECISION. THERE IS NO APPEAL TO THE COURTS FOR THE COURTS ARE NOT CONCERNED WITH THE AVAILABILITY OF APPROPRIATIONS; THEIR JUDGMENTS ON THE MERITS OF CLAIMS AGAINST THE UNITED STATES MUST BE REPORTED TO THE CONGRESS IN ACCORDANCE WITH THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 537, FOR A SPECIFIC APPROPRIATION BEFORE THEY MAY BE PAID AND IT RESTS IN THE DISCRETION OF THE CONGRESS UNDER ARTICLE I, SECTION 9, OF THE CONSTITUTION, WHETHER SUCH APPROPRIATION SHALL BE MADE.

THE DECISIONS OF THE COURTS ARE ALWAYS HELPFUL TO THE ACCOUNTING OFFICERS, ESPECIALLY SO WHEN A QUESTION THAT HAS GIVEN DIFFICULTY HAS BEEN SO FULLY AND FAIRLY SUBMITTED TO THE COURT AS TO PERMIT OF DUE CONSIDERATION THEREOF AND A CLARIFYING OPINION THEREON, BUT THE MATTER OF APPLYING THE PRINCIPLES THUS WORKED OUT TO QUESTIONS INVOLVING THE USES OF APPROPRIATED FUNDS IS ONE FOR THE ACCOUNTING OFFICERS RATHER THAN CLAIMANTS OR THOSE WHOSE DUTY IT IS TO ACCOUNT.

IT WAS REPORTED FEBRUARY 16, 1869, BY THE AFORESAID HOUSE COMMITTEE ON REVISION OF THE LAWS WITH RESPECT TO THE REQUEST OF YOUR PREDECESSOR FOR REPEAL OR MODIFICATION OF THE ACT OF MARCH 30, 1868, SUPRA, THAT:

* * * POWER IN THE HEAD OF THE WAR ON ANY OTHER DEPARTMENT TO SET ASIDE AND CHANGE THE FINDINGS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS AT WAR WITH THE WHOLE PRINCIPLE UPON WHICH THE SYSTEM IS BASED; THAT THE ALLOWANCE AND SETTLEMENT OF THE DISBURSEMENT OF ALL PUBLIC FUNDS SHOULD BE VESTED WHOLLY IN A SET OF OFFICERS OTHER AND DIFFERENT FROM THOSE WHO MADE THE EXPENDITURE. IF THEIR ALLOWANCES AND SETTLEMENTS CAN BE SET ASIDE AND CHANGED BY THE HEAD OF THE DEPARTMENT UNDER WHOSE DIRECTION THE MONEY WAS PAID, OR THE CLAIM ACCRUED, THEN THE WHOLE SYSTEM OF CHECKS TO IMPROPER EXPENDITURES, WHICH IT WAS SUPPOSED HAD BEEN ESTABLISHED, FALLS TO THE GROUND. (26 CONG.REC. 4342.)

I AM LOATH TO BELIEVE THAT IN YOUR DIRECTIONS OF SEPTEMBER 29, 1925, TO DISBURSING OFFICERS TO MAKE CERTAIN CLASSES OF PAYMENTS IN DIRECT CONTRAVENTION OF DECISIONS OF THIS OFFICE, YOU HAD ANY INTENTION OF ATTEMPTING AT THIS LATE DATE TO OVERRIDE THE PLAIN AND UNAMBIGUOUS TERMS OF THE LAW AND THE PRACTICES OF A CENTURY, OR TO ADOPT A PROCEDURE CONTRARY TO THAT ESTABLISHED IN THE WISDOM OF THE ILLUSTRIOUS STATESMEN TO WHOSE WORKS REFERENCE IS MADE HEREIN, OR TO RENEW THE EFFORTS OF CERTAIN OF YOUR PREDECESSORS TO RENDER INEFFECTIVE ANY ACCOUNTING FOR PUBLIC FUNDS, AND THUS TO BRING FORWARD THE QUESTION WHETHER THIS OFFICE IN ORDER TO ENFORCE ITS DECISIONS MUST WITHHOLD APPROVAL OF FURTHER ADVANCES OF FUNDS TO ANY DISBURSING OFFICERS OF YOUR DEPARTMENT WHO MAY SO DISREGARD THE REQUIREMENTS OF LAW IN THE MATTER. I CAN ONLY ASSUME THAT SUCH DIRECTIONS WERE GIVEN WITHOUT CONSIDERATION OF THE FOREGOING AND THROUGH ZEAL FOR THE SUPPOSED WELFARE OF THE CIVILIAN EMPLOYEES OF YOUR DEPARTMENT IN A BELIEF THAT THE MEMORANDUM DECISION OF THE COURT OF CLAIMS IN THE WARD CASE, RATHER THAN THE DECISIONS OF THIS OFFICE, REPRESENTED THE SOUNDER VIEW OF THE LAW FOR THE DISBURSEMENT OF GENERAL APPROPRIATIONS.

SETTING ASIDE FOR THE MOMENT THE FACT THAT THE LAW AND PRACTICES OF MORE THAN A CENTURY IMPOSE ON THE ACCOUNTING OFFICERS OF THE UNITED STATES THE RESPONSIBILITY IN THE MATTER, AND THAT IT IS THE DUTY OF DISBURSING OFFICERS TO CONFORM TO AND ABIDE BY THE SETTLEMENTS AND DECISIONS OF SAID ACCOUNTING OFFICERS, RIGHT OR WRONG, LET US AGAIN CONSIDER THE LAW WITH RESPECT TO THE CLASS OF PAYMENTS INVOLVED IN YOUR INDORSEMENT OF SEPTEMBER 29, 1925, BEARING IN MIND THE FACT THAT THE DECISIONS OF THE COURT OF CLAIMS ARE CONCERNED WITH THE MERITS OF CLAIMS AGAINST THE UNITED STATES, AND THAT ITS JUDGMENTS, WHEN RENDERED AGAINST THE GOVERNMENT, MUST BE SPECIFICALLY APPROPRIATED FOR BY THE CONGRESS BEFORE THEY MAY BE PAID, WHILE THE DECISIONS OF THIS OFFICE ARE CONCERNED PRIMARILY WITH THE AVAILABILITY OF APPROPRIATIONS, EXCEPT IN A COMPARATIVELY FEW INSTANCES WHERE ITS JURISDICTION ON THE MERITS OF THE CLAIM IS EXCLUSIVE. SEE UNITED STATES V. BABCOCK, 250 U.S. 328, FOR ONE OF SUCH INSTANCES. THE COURT OF CLAIMS RECOGNIZED THIS DISTINCTION IN GEDDES V. UNITED STATES, 38 CT.CLS. 428, AT PAGE 444, AS FOLLOWS:

THE ACCOUNTING OFFICERS ARE THE GUARDIANS OF THE APPROPRIATIONS. IT IS THEIR BUSINESS TO SEE THAT NO MONEY IS PAID OUT OF THE TREASURY UNLESS THE PAYMENT IS AUTHORIZED BY AN APPROPRIATION ACT. IT IS NOT THEIR BUSINESS TO ADJUDICATE ABSTRACT QUESTIONS OF LEGAL RIGHT BEYOND THE LEGAL RIGHT OF A PERSON TO BE PAID OUT OF A SPECIFIC APPROPRIATION. AN APPROPRIATION CONSTITUTES THE MEANS FOR DISCHARGING THE LEGAL DEBTS OF THE GOVERNMENT.

THE JUDGMENT OF A COURT HAS NOTHING TO DO WITH THE MEANS--- WITH THE REMEDY FOR SATISFYING A JUDGMENT. IT IS THE BUSINESS OF COURTS TO RENDER JUDGMENTS, LEAVING TO CONGRESS AND THE EXECUTIVE OFFICERS THE DUTY OF SATISFYING THEM. * * *

SECTION 9 OF THE ACT OF JULY 18, 1918, 40 STAT. 912, WHICH IS, IN EFFECT, AN AMENDMENT OF THE ACT OF MARCH 3, 1875, AND SIMILAR TO THE ACTS OF APRIL 6, 1914, 38 STAT. 318, AND AUGUST 1, 1914, 38 STAT. 680, IS A PROVISION OF PERMANENT LAW WITH RESPECT TO TRAVEL EXPENSES OF CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY, AND PROVIDES:

THAT HEREAFTER WHEN THE EXPENSES OF PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA, AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, ARE CHARGEABLE TO APPROPRIATIONS OF THE ENGINEER DEPARTMENT, A PER DIEM OF NOT EXCEEDING $4 MAY BE ALLOWED IN LIEU OF SUBSISTENCE WHEN NOT OTHERWISE FIXED BY LAW.

ASSUMING PROPER ORDERS FOR TRAVEL ISSUED IN THE DISCRETION OF YOUR DEPARTMENT, SAID ACT AUTHORIZED PER DIEMS OF $4 IN LIEU OF SUBSISTENCE, (1) WHEN THE EMPLOYEE IS ENGAGED IN FIELD WORK, AND (2) WHEN TRAVELING OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.

THE MEN TO WHOM YOU HAVE DIRECTED THAT PAYMENTS OF PER DIEM BE MADE IN CONTRAVENTION OF THE DECISIONS AND SETTLEMENTS OF THIS OFFICE CLEARLY WERE NOT ENGAGED IN FIELD WORK. THE ONLY QUESTION, THEREFORE, IS WHETHER THEY WERE TRAVELING "AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' IN MY DECISION IN 5 COMP. GEN. 100 (WITH WHICH COMPARE THE LANGUAGE OF THE COURT OF CLAIMS IN DECISION DATED NOVEMBER 16, 1925, IN ANDERSON V. UNITED STATES), I REVIEWED THE HISTORY OF THESE REIMBURSEMENT STATUTES AND CITED VARIOUS DECISIONS OF THE SUPREME COURT OF THE UNITED STATES AND PRIOR DECISIONS OF THE COURT OF CLAIMS HOLDING THAT LOCOMOTION IN THE VICINAGE OF THE POST OF DUTY DID NOT CONSTITUTE TRAVELING AWAY FROM A DESIGNATED POST OF DUTY WITHIN THE CONTEMPLATION OF THESE PER DIEM AND SUBSISTENCE STATUTES AS INDICATED EITHER BY THEIR HISTORY OR THEIR REQUIREMENTS. AS STATED IN UNITED STATES V. SMITH, 158 U.S., AT PAGE 352:

* * * REIMBURSEMENT IS ONLY INTENDED IN CASES WHERE AN EXPENSE IS INCURRED IN THE SERVICES OF THE GOVERNMENT, WHICH WOULD NOT BE INCURRED IF THE CLAIMANT WERE LIVING AT HIS USUAL PLACE OF ABODE. * * *

IT IS A WELL-KNOWN FACT THAT UNDER PRESENT DAY ECONOMIC AND EMPLOYMENT CONDITIONS THE ORDINARY EMPLOYEE OF THE GOVERNMENT DOES NOT TAKE HIS NOONDAY MEAL AT HIS HOME, AND WITHOUT EXPENSE. HE EITHER CARRIES HIS LUNCH WITH HIM TO HIS WORK OR SECURES IT AT SOME LUNCH ROOM OR MORE PRETENTIOUS ESTABLISHMENT. SHORT ABSENCES FROM A GOVERNMENT OFFICE DURING THE ORDINARY PERIOD BETWEEN THE MORNING AND EVENING MEALS DO NOT NECESSARILY INCREASE THE SUBSISTENCE EXPENSES OF THE EMPLOYEE BUT EVEN SO, THERE APPEARS NEITHER REASON NOR JUSTIFICATION FOR THE INCREASE OF THE EMPLOYEE'S SALARY IN VIOLATION OF SECTION 1765, REVISED STATUTES, BY THE AMOUNT OF HIS EXPENDITURE FOR HIS NOONDAY MEAL--- AN EXPENDITURE WHICH HE WOULD HAVE MADE NO MATTER WHETHER HE WAS PHYSICALLY LOCATED AT HIS POST OF DUTY OR ON A SHORT TRIP BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. THEREFROM IF HE WAS ACCUSTOMED TO PURCHASE SUCH NOONDAY MEAL, INSTEAD OF CARRYING IT WITH HIM--- BUT AT ALL EVENTS ADVANTAGE IS NOT TO BE TAKEN BY HIM OF A CONDITION AND PURCHASE A MEAL BECAUSE OF OPPORTUNITY TO PUT THE EXPENSE UPON THE UNITED STATES. COMPARE THE DECISION IN THE WARD CASE WITH THE CONTRARY HOLDING IN TEST V. UNITED STATES, 27 CT.CLS. 352, AND HARTMAN V. UNITED STATES, 40 ID. 133. AS TO THE PROPOSITION THAT SHORT TRIPS FROM A STATION DO NOT CONSTITUTE TRAVELING, SEE HARRISTON V. STATE, 37 S.W. 858, CITED IN 5 COMP. GEN. 100. SUCH BEING THE SITUATION, I DID NOT FEEL JUSTIFIED IN HOLDING THAT GENERAL APPROPRIATIONS WERE AVAILABLE FOR REIMBURSEMENT TO EMPLOYEES OF THE COST OF MEALS TAKEN WHEN ON SHORT TRIPS WITHIN THEIR DISTRICT, OR IN THE VICINITY OF THEIR PERMANENT STATIONS, AND HENCE THE RULE WAS ESTABLISHED THAT GENERAL APPROPRIATIONS WERE NOT CHARGEABLE WITH REIMBURSEMENT OF THE COST OF SUCH MEALS WHEN THE SHORT TRIPS OCCURRED BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. OF THE SAME DAY.

IT IS NOT BELIEVED THAT THE POSSIBLE DIFFICULTIES CONFRONTING THE ACCOUNTING OFFICERS IN ACCOMPLISHING RETURN TO THE TREASURY OF FUNDS SO USED AS TO RENDER IT IMPROPER FOR THEM TO GIVE CREDIT, AS SUGGESTED IN PARAGRAPH 21 OF THE OPINION OF THE JUDGE ADVOCATE GENERAL, ARE PROPER FOR CONSIDERATION OR COULD HAVE INFLUENCED YOUR ACTION IN THE MATTER.

FOR WHAT HAS BEEN SAID HEREIN, IT WILL DOUBTLESS BE CLEAR TO YOU THAT THIS OFFICE MAY NOT PROPERLY ACCEPT THE OPINION OF THE JUDGE ADVOCATE GENERAL, OR YOUR ACTION BASED THEREON, AS AUTHORITY FOR ALLOWING, IN THE ACCOUNTS OF DISBURSING OFFICERS, CREDIT FOR PAYMENTS MADE IN CONTRAVENTION OF THE DECISIONS OF THIS OFFICE. THEREFORE, TO THE END THAT MATTERS MAY NOT BECOME UNDULY COMPLICATED, I VENTURE THE HOPE THAT YOU WILL FIND IT PROPER TO GIVE EARLY FURTHER CONSIDERATION TO THE OPINION OF THE JUDGE ADVOCATE GENERAL AND YOUR INDORSEMENT THEREOF AND THAT I MAY BE ADVISED OF ANY ACTION TAKEN BY YOU RELATIVE THERETO.