A-14519, JUNE 1, 1926, 5 COMP. GEN. 951

A-14519: Jun 1, 1926

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JUDGMENTS - COSTS ASSESSED AGAINST AN OFFICIAL OF THE UNITED STATES COSTS IN A STATE COURT NOT BEING TAXABLE UNDER SECTION 846 OF THE REVISED STATUTES ARE NOT PAYABLE FROM THE JUDICIAL APPROPRIATION "MISCELLANEOUS EXPENSES. IS NOT AVAILABLE FOR THE PAYMENT OF COSTS ADJUDGED IN A SUIT IN A STATE COURT AGAINST A UNITED STATES FOREST SUPERVISOR IN EJECTMENT PROCEEDINGS. IS AVAILABLE FOR PAYMENT OF A JUDGMENT FOR COSTS AGAINST A FOREST SUPERVISOR IN AN EJECTMENT PROCEEDING FILED AGAINST HIM IN THE SUPERIOR COURT OF LOS ANGELES. IT IS STATED THAT THE UNITED STATES WAS UNABLE TO HAVE THIS CASE TRANSFERRED TO THE FEDERAL COURTS. IT IS FURTHER STATED THAT: IT APPEARS TO BE WELL SETTLED THAT A FEDERAL OFFICER SHOULD NOT BE REQUIRED TO PAY OUT OF HIS PRIVATE FUNDS EXPENSES INCURRED IN LITIGATION RESULTING FROM HIS OFFICIAL ACTION.

A-14519, JUNE 1, 1926, 5 COMP. GEN. 951

JUDGMENTS - COSTS ASSESSED AGAINST AN OFFICIAL OF THE UNITED STATES COSTS IN A STATE COURT NOT BEING TAXABLE UNDER SECTION 846 OF THE REVISED STATUTES ARE NOT PAYABLE FROM THE JUDICIAL APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS.' THE APPROPRIATION MADE BY THE ACT OF FEBRUARY 10, 1925, 43 STAT. 822, IS NOT AVAILABLE FOR THE PAYMENT OF COSTS ADJUDGED IN A SUIT IN A STATE COURT AGAINST A UNITED STATES FOREST SUPERVISOR IN EJECTMENT PROCEEDINGS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, JUNE 1, 1926:

THERE HAS BEEN RECEIVED YOUR REQUEST OF MAY 24, 1926, FOR DECISION WHETHER THE APPROPRIATION MADE BY THE ACT OF FEBRUARY 10, 1925, 43 STAT. 822, IS AVAILABLE FOR PAYMENT OF A JUDGMENT FOR COSTS AGAINST A FOREST SUPERVISOR IN AN EJECTMENT PROCEEDING FILED AGAINST HIM IN THE SUPERIOR COURT OF LOS ANGELES, CALIF. IT IS STATED THAT THE UNITED STATES WAS UNABLE TO HAVE THIS CASE TRANSFERRED TO THE FEDERAL COURTS; THAT THE GOVERNMENT DEFENDED THE FOREST SUPERVISOR IN THE STATE COURT; AND THAT THE UNITED STATES ATTORNEY RECOMMENDS THE CASE BE DROPPED AND, AFTER AN OFFICIAL RESURVEY, A SUIT TO QUIET TITLE BE INSTITUTED IN THE FEDERAL COURTS.

IT IS FURTHER STATED THAT:

IT APPEARS TO BE WELL SETTLED THAT A FEDERAL OFFICER SHOULD NOT BE REQUIRED TO PAY OUT OF HIS PRIVATE FUNDS EXPENSES INCURRED IN LITIGATION RESULTING FROM HIS OFFICIAL ACTION. UNITED STATES V. SCHURZ, 102 U.S. 378; 6 A.G. 220; 9 A.G. 51 AND 146; 4 COMP. DEC. 89; 12 ID. 198 AND 208; 15 ID. 621 AND 17 ID. 570. SUCH EXPENSES HAVE BEEN PAID OUT OF THE APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS," UNDER AUTHORITY OF SECTION 846 OF THE REVISED STATUTES. HOWEVER, THE GENERAL AGENT FOR THE DEPARTMENT OF JUSTICE ADVISES IN A MEMORANDUM OF THE 13TH INSTANT TO ASSISTANT ATTORNEY GENERAL PARMENTER CONCERNING THIS CASE THAT THAT APPROPRIATION IS AVAILABLE ONLY FOR PAYMENT OF EXPENSES INCURRED PERSONALLY BY THE OFFICER IN HIS DEFENSE, AND NOT FOR PAYMENT OF COSTS OF THE PLAINTIFF TAXED AGAINST THE OFFICER. IT WOULD SEEM THAT THE APPROPRIATION FOR THE FOREST SERVICE ABOVE REFERRED TO WOULD BE AVAILABLE, AS THE EXPENSE WAS DIRECTLY AND NECESSARILY INCIDENT TO THE ADMINISTRATION OF THE ANGELES NATIONAL FOREST. IN A DECISION OF AUGUST 26, 1897 (4 COMP. DEC. 89), IT WAS HELD BY COMPTROLLER BOWERS THAT THE APPROPRIATION FOR TAYLORSVILLE LOCK (RIVER AND HARBOR ACT, AUGUST 18, 1894, 28 STAT. 355) WAS AVAILABLE FOR PAYING THE COST OF A CONTINUANCE MADE AT THE REQUEST OF THE UNITED STATES ATTORNEY IN AN ACTION OF TRESPASS AGAINST AN ASSISTANT ENGINEER AND LOCK-KEEPER.

IT WOULD BE A GREAT HARDSHIP UPON THE FOREST SUPERVISOR TO BE REQUIRED TO PAY THIS EXPENSE, AND THE DEPARTMENT WOULD LIKE TO RELIEVE HIM FROM THE OBLIGATION IF THE ABOVE-MENTIONED OR ANY OTHER APPROPRIATION IS AVAILABLE.

THE RULE HAS LONG BEEN ESTABLISHED THAT IN THE ABSENCE OF A SPECIFIC APPROPRIATION OR STATUTE TO THE CONTRARY, JUDGMENTS FOR COSTS AGAINST AN OFFICER OF THE UNITED STATES ACTING IN HIS OFFICIAL CAPACITY CAN NOT BE PAID FROM PUBLIC FUNDS (18 COMP. DEC. 458) UNLESS PROPERLY TAXED UNDER SECTION 846, REVISED STATUTES, WHEN SAME MAY BE PAID FROM "MISCELLANEOUS EXPENSES, UNITED STATES COURTS.' THIS PROCEEDING BEING IN A STATE COURT, THE COSTS ARE NOT PROPERLY TAXABLE UNDER SECTION 846, REVISED STATUTES.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE APPROPRIATION MADE BY THE ACT OF FEBRUARY 10, 1925, 43 STAT. 822, IS NOT AVAILABLE FOR PAYMENT OF THE COSTS IN THIS CASE, NOR AM I INFORMED OF ANY AVAILABLE APPROPRIATION THEREFOR UNDER THE CONTROL OF YOUR DEPARTMENT. THE MATTER IS FOR ADMINISTRATIVE SUBMISSION TO THE CONGRESS FOR AN APPROPRIATION.