A-15461, SEPTEMBER 23, 1926, 6 COMP. GEN. 199

A-15461: Sep 23, 1926

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THERE IS NO AUTHORITY FOR PAYMENT OF A CLAIM FOR REPORTING AND TRANSCRIBING BY CONTRACT WITH THE AMERICAN AGENCY THE ORAL HEARINGS BEFORE THE GENERAL CLAIMS COMMISSION. IN VIEW OF THE NEED FOR SUCH SERVICE AND THE FACT THAT THE SERVICES WERE CONTRACTED FOR UNDER A MISAPPREHENSION AS TO THE SCOPE OF THE AGENT'S AUTHORITY. OBJECTION WILL NOT BE MADE TO PAYMENTS COVERING SPECIAL REPORTING SERVICES RENDERED PRIOR TO JUNE 30. DICE AND CARLSON HAVE REQUESTED REVIEW OF SETTLEMENT NO. 030588. THE SERVICES WERE PERFORMED UNDER A CONTRACT CONSISTING OF CLAIMANT'S PROPOSAL. YOU ARE HEREBY INSTRUCTED TO PERFORM SUCH SERVICE. THE APPROPRIATION SOUGHT TO BE CHARGED IS PROVIDED IN THE ACT OF FEBRUARY 25.

A-15461, SEPTEMBER 23, 1926, 6 COMP. GEN. 199

PERSONAL SERVICES - STENOGRAPHIC REPORTERS - GENERAL CLAIMS COMMISSION, UNITED STATES AND MEXICO THE ACTS MAKING APPROPRIATIONS FOR THE GENERAL AND SPECIAL CLAIMS COMMISSIONS, UNITED STATES AND MEXICO, FOR THE FISCAL YEARS 1926 AND 1927, ACTS OF FEBRUARY 27, 1925, 43 STAT. 1024, AND APRIL 29, 1926, 44 STAT. 340, NOT SPECIFICALLY AUTHORIZING THE CONTRACTING BY THE AMERICAN AGENCY FOR STENOGRAPHIC REPORTING, THERE IS NO AUTHORITY FOR PAYMENT OF A CLAIM FOR REPORTING AND TRANSCRIBING BY CONTRACT WITH THE AMERICAN AGENCY THE ORAL HEARINGS BEFORE THE GENERAL CLAIMS COMMISSION, UNITED STATES AND MEXICO, SITTING AT WASHINGTON, BUT IN VIEW OF THE NEED FOR SUCH SERVICE AND THE FACT THAT THE SERVICES WERE CONTRACTED FOR UNDER A MISAPPREHENSION AS TO THE SCOPE OF THE AGENT'S AUTHORITY, OBJECTION WILL NOT BE MADE TO PAYMENTS COVERING SPECIAL REPORTING SERVICES RENDERED PRIOR TO JUNE 30, 1927, AFTER COMPLIANCE WITH SECTION 3709, REVISED STATUTES, REGARDING ADVERTISEMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 23, 1926:

HART, DICE AND CARLSON HAVE REQUESTED REVIEW OF SETTLEMENT NO. 030588, DATED JULY 1, 1926, DISALLOWING THEIR CLAIM FOR $1,851.30 FOR SERVICES PERFORMED IN REPORTING AND TRANSCRIBING DURING THE PERIOD MARCH 8 TO 18, 1926, ARGUMENTS IN CASES BEFORE THE GENERAL CLAIMS COMMISSION, UNITED STATES AND MEXICO, AS PER VOUCHER APPROVED BY THE ASSISTANT SECRETARY OF STATE AND REFERRED BY HIM TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT.

THE SERVICES WERE PERFORMED UNDER A CONTRACT CONSISTING OF CLAIMANT'S PROPOSAL, DATED MARCH 6, 1926, ADDRESSED TO COL. HENRY W. ANDERSON, AMERICAN AGENT, MEXICAN-AMERICAN GENERAL CLAIMS COMMISSION, WASHINGTON, D.C., TO REPORT STENOGRAPHICALLY THE PROCEEDINGS TO BE HELD BY THE MEXICAN -AMERICAN GENERAL CLAIMS COMMISSION, TO BEGIN SITTINGS ON MARCH 8, AND TO FURNISH 7 COPIES OF TRANSCRIPT THEREOF FOR 55 CENTS A FOLIO (A FOLIO BEING 100 WORDS OR FIGURES), AND OF ACCEPTANCE THEREOF BY LETTER OF HOWARD P. LOCKE, ADMINISTRATIVE OFFICER, DATED MARCH 8, 1926, AS FOLLOWS:

IN ACCORDANCE WITH YOUR PROPOSAL, YOU ARE HEREBY INSTRUCTED TO PERFORM SUCH SERVICE, COMMENCING THIS DATE, AND CONTINUING UNTIL SUCH TIME AS THE PROCEEDINGS OF THE COMMISSION SHALL REQUIRE, PROVIDED THIS DOES NOT EXTEND BEYOND JUNE 30, 1926.

THE APPROPRIATION SOUGHT TO BE CHARGED IS PROVIDED IN THE ACT OF FEBRUARY 25, 1925, MAKING APPROPRIATIONS FOR THE DEPARTMENTS OF STATE AND JUSTICE AND FOR THE JUDICIARY AND FOR THE DEPARTMENTS OF COMMERCE AND LABOR FOR THE FISCAL YEAR ENDING JUNE 30, 1926, AND READS:

FOR THE EXPENSES OF THE SETTLEMENT AND ADJUSTMENT OF CLAIMS BY THE CITIZENS OF EACH COUNTRY AGAINST THE OTHER UNDER A CONVENTION CONCLUDED SEPTEMBER 8, 1923, AND OF CITIZENS OF THE UNITED STATES AGAINST MEXICO UNDER A CONVENTION CONCLUDED SEPTEMBER 10, 1923, BETWEEN THE UNITED STATES AND MEXICO, INCLUDING THE EXPENSES WHICH, UNDER THE TERMS OF THE TWO CONVENTIONS ARE CHARGEABLE IN PART TO THE UNITED STATES, THE EXPENSES OF THE TWO COMMISSIONS, AND THE EXPENSES OF AN AGENCY OF THE UNITED STATES TO PERFORM ALL NECESSARY SERVICES IN CONNECTION WITH THE PREPARATION OF THE CLAIMS AND THE PRESENTING THEREOF BEFORE THE SAID COMMISSIONS, AS WELL AS DEFENDING THE UNITED STATES IN CASES PRESENTED UNDER THE GENERAL CONVENTION BY MEXICO, INCLUDING SALARIES OF AN AGENT AND NECESSARY COUNSEL AND OTHER ASSISTANTS AND EMPLOYEES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, RENT, LAW BOOKS AND BOOKS OF REFERENCE, PRINTING AND BINDING, CONTINGENT EXPENSES, TRAVELING AND SUBSISTENCE EXPENSES (NOTWITHSTANDING THE PROVISIONS OF ANY OTHER ACT), AND SUCH OTHER EXPENSES IN THE UNITED STATES AND ELSEWHERE AS THE PRESIDENT MAY DEEM PROPER, $275,000, OF WHICH $100,000 SHALL BE IMMEDIATELY AVAILABLE. (43 STAT. 1024.)

THE CLAIM WAS DISALLOWED ON THE GROUND THAT THE ACT OF AUGUST 5, 1882, 22 STAT. 255, PROHIBITS THE EMPLOYMENT AT THE SEAT OF GOVERNMENT OF ANY EMPLOYEES EXCEPT PURSUANT TO SPECIFIC APPROPRIATIONS FOR SUCH PERSONAL SERVICES AND PROHIBITS THE PAYMENT FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT FROM ANY CONTINGENT EXPENSES SPECIFIC, OR GENERAL APPROPRIATION, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION.

THE GENERAL CLAIMS COMMISSION, UNITED STATES AND MEXICO, WAS ESTABLISHED PURSUANT TO A CONVENTION BETWEEN THE TWO GOVERNMENTS CONCLUDED SEPTEMBER 8, 1923, PROVIDING FOR THE ESTABLISHMENT OF A COMMISSION TO ADJUDICATE CLAIMS OF AMERICAN CITIZENS AGAINST MEXICO AND OF MEXICAN CITIZENS AGAINST THE UNITED STATED, THE COMMISSION TO CONSIST OF THREE COMMISSIONERS, ONE TO BE APPOINTED BY THE PRESIDENT OF THE UNITED STATES, ONE BY THE PRESIDENT OF MEXICO, AND THE THIRD, TO PRESIDE, TO BE SELECTED BY MUTUAL AGREEMENT OF THE TWO GOVERNMENTS. 43 STAT., PART 2 (TREATIES AND CONVENTION), 1730.

ARTICLE III OF THE CONVENTION PROVIDES IN PART AS FOLLOWS:

EACH GOVERNMENT MAY NOMINATE AND APPOINT AGENTS AND COUNSEL WHO WILL BE AUTHORIZED TO PRESENT TO THE COMMISSION, ORALLY OR IN WRITING, ALL THE ARGUMENTS DEEMED EXPEDIENT IN FAVOR OF OR AGAINST ANY CLAIM. THE AGENTS OR COUNSEL OF EITHER GOVERNMENT MAY OFFER TO THE COMMISSION ANY DOCUMENTS, AFFIDAVITS, INTERROGATORIES, OR OTHER EVIDENCE DESIRED IN FAVOR OF OR AGAINST ANY CLAIM AND SHALL HAVE THE RIGHT TO EXAMINE WITNESSES UNDER OATH OR AFFIRMATION BEFORE THE COMMISSION, IN ACCORDANCE WITH SUCH RULES OF PROCEDURE AS THE COMMISSION SHALL ADOPT.

ARTICLE IV PROVIDES:

THE COMMISSION SHALL KEEP AN ACCURATE RECORD OF THE CLAIMS AND CASES SUBMITTED, AND MINUTES OF ITS PROCEEDINGS WITH THE DATES THEREOF. TO THIS END, EACH GOVERNMENT MAY APPOINT A SECRETARY; THESE SECRETARIES SHALL ACT AS JOINT SECRETARIES OF THE COMMISSION AND SHALL BE SUBJECT TO ITS INSTRUCTIONS. EACH GOVERNMENT MAY ALSO APPOINT AND EMPLOY ANY NECESSARY ASSISTANT SECRETARIES AND SUCH OTHER ASSISTANCE AS DEEMED NECESSARY. THE COMMISSION MAY ALSO APPOINT AND EMPLOY ANY PERSONS NECESSARY TO ASSIST IN THE PERFORMANCE OF ITS DUTIES.

ARTICLE X PROVIDES:

EACH GOVERNMENT SHALL PAY ITS OWN COMMISSIONER AND BEAR ITS OWN EXPENSES. THE EXPENSES OF THE COMMISSION INCLUDING THE SALARY OF THE THIRD COMMISSIONER SHALL BE DEFRAYED IN EQUAL PROPORTIONS BY THE TWO GOVERNMENTS.

THE ACTING SECRETARY OF STATE, IN LETTER DATED AUGUST 20, 1926, TRANSMITTING CLAIMANTS' REQUEST FOR REVIEW, STATES IN PART:

* * * MESSRS. HART, DICE, AND CARLSON WERE ENGAGED TO REPORT THE ORAL ARGUMENTS IN ORDER THAT THEY MIGHT BE AVAILABLE FOR THE CONSIDERATION OF THE COMMISSION AND FOR THE USE OF THE AGENT AND COUNSEL OF THE UNITED STATES IN PREPARING ANSWERS TO THE ORAL ARGUMENTS OF THE AGENT AND COUNSEL OF THE MEXICAN GOVERNMENT. IN ORDER THAT THE ORAL ARGUMENTS OF THE AGENTS OF BOTH GOVERNMENTS MIGHT BE AVAILABLE FOR PROPER CONSIDERATION OF THE COMMISSION AND IN ORDER THAT THE AMERICAN AGENT AND COUNSEL MIGHT HAVE OPPORTUNITY TO ANSWER THE ORAL ARGUMENTS OF THE MEXICAN AGENT AND COUNSEL, IT WAS NECESSARY THAT THE ORAL ARGUMENTS OF THE AGENTS AND COUNSEL OF BOTH GOVERNMENTS BE REDUCED TO TANGIBLE FORM. IT WAS FELT THAT THIS SERVICE WAS NECESSARY ADEQUATELY TO PROTECT THE INTERESTS OF THE GOVERNMENT OF THE UNITED STATES AND OF AMERICAN CITIZENS WHOSE CLAIMS HAVE BEEN PRESENTED TO THE COMMISSION FOR ADJUDICATION. * * * IT WOULD SEEM THAT THE CONVENTION SHOULD BE REGARDED AS HAVING CONFERRED UPON THE AGENT OF THE UNITED STATES AND THE COMMISSION NOT ONLY THE AUTHORITY BUT THE DUTY TO PROVIDE MEANS TO REDUCE TO WRITING THE ORAL ARGUMENTS OF THE AGENTS AND COUNSEL OF THE TWO GOVERNMENTS, WRITTEN REPORTS OF THOSE ARGUMENTS BEING ESSENTIAL TO THE PROPER PERFORMANCE OF THE DUTIES OF THE COMMISSION AND THE AGENT AND COUNSEL OF THE UNITED STATES * * *. IT IS NOT BELIEVED THAT THE INHIBITIONS OF THE ACT OF AUGUST 5, 1882, HAVE ANY APPLICATION TO THE GENERAL CLAIMS COMMISSION, UNITED STATES AND MEXICO, OR TO THE AGENCY OF THE UNITED STATES * * *. IT IS FELT THAT IF THE SERVICES OF REPORTERS CAN NOT BE ENGAGED FOR THE FORTHCOMING SESSIONS OF THE COMMISSION, THE AGENT OF THE UNITED STATES WILL BE GREATLY HINDERED IN HIS EFFORTS TO PROTECT THE INTERESTS OF THE GOVERNMENT OF THE UNITED STATES AND OF AMERICAN CITIZENS BEFORE THE COMMISSION.

RULES AND REGULATIONS APPROVED AND ESTABLISHED BY THE COMMISSION BY ORDER ENTERED SEPTEMBER 4, 1924, PROVIDE UNDER SECTION I, PLACE AND TIME OF HEARINGS, THAT THE OFFICE OF THE COMMISSION SHALL BE MAINTAINED AT THE CITY OF WASHINGTON, WHERE ITS RECORDS SHALL BE KEPT; UNDER SECTION IX, TAKING OF ORAL TESTIMONY, THAT WHERE ORAL TESTIMONY IS TAKEN BEFORE THE COMMISSION, IT SHALL BE REPORTED VERBATIM IN WRITING BY A STENOGRAPHER APPOINTED BY THE COMMISSION, OR OTHERWISE AS IT MAY DIRECT; AND UNDER SECTION X, HEARINGS, THAT TIME ALLOWED FOR ORAL ARGUMENTS WILL BE FIXED BY THE COMMISSION, BUT NO REQUIREMENT IS STATED THAT THE ORAL ARGUMENTS SHALL BE REPORTED STENOGRAPHICALLY.

IN THE BUDGET FOR THE FISCAL YEAR 1926, TRANSMITTED BY THE PRESIDENT TO THE CONGRESS UNDER DATE OF DECEMBER 1, 1924, THERE IS INCLUDED IN THE ESTIMATES OF APPROPRIATIONS FOR THE DEPARTMENT OF STATE THE ESTIMATE OF EXPENSES FOR THE GENERAL AND SPECIAL CLAIMS COMMISSIONS, UNITED STATES AND MEXICO, BASED ON ITEMS THEREIN SET OUT, INCLUDED IN WHICH, UNDER PERSONAL SERVICES, ARE ITEMS FOR STENOGRAPHERS AT STATED SALARIES. THE WORDING OF THE ESTIMATED APPROPRIATION THEREIN, AS WELL AS THE ESTIMATED SUM, IS THE SAME AS IN THE APPROPRIATION MADE IN THE ACT OF FEBRUARY 27, 1925, SUPRA. THE SAME IS SUBSTANTIALLY TRUE WITH RESPECT TO THE ESTIMATES IN THE BUDGET FOR THE FISCAL YEAR 1927, TRANSMITTED BY THE PRESIDENT TO THE CONGRESS UNDER DATE OF DECEMBER 7, 1925, AND THE APPROPRIATION IN THE ACT OF APRIL 29, 1926, 44 STAT. 340.

IT WOULD THUS APPEAR THAT SUCH STENOGRAPHIC WORK AS WAS ESTIMATED TO BE NECESSARY FOR THE COMMISSION AND FOR THE AMERICAN AGENCY WAS TO BE PERFORMED BY STENOGRAPHERS REGULARLY EMPLOYED AT STATED SALARIES, AND THEREFORE THE APPROPRIATION DID NOT PROVIDE FOR PAYMENT OF PERSONAL SERVICES OF A REPORTER FOR REPORTING STENOGRAPHICALLY AND TRANSCRIBING, UNDER CONTRACT AT A PRICE PER FOLIO, ORAL ARGUMENTS MADE BY THE AGENTS AND COUNSEL OF THE TWO GOVERNMENTS BEFORE THE COMMISSION SITTING AT WASHINGTON, D.C. WITH REGARD TO SUCH CONTRACTS GENERALLY, SEE 4 COMP. GEN. 977; 5 ID. 968; ALSO DECISIONS OF SEPTEMBER 9, 1925, A-10076, AND OCTOBER 21, 1925, A-11393.

IT APPEARS, HOWEVER, FROM A LETTER OF THE SPECIAL DISBURSING OFFICER, ADDRESSED TO THE CHIEF, BUREAU OF ACCOUNTS, DEPARTMENT OF STATE, UNDER DATE OF JUNE 7, 1926, THAT THE SPECIAL NEED FOR STENOGRAPHICALLY REPORTING AND TRANSCRIBING THE ORAL ARGUMENTS DID NOT BECOME APPARENT TO THE AMERICAN AGENT UNTIL SHORTLY BEFORE THE TIME THE CLAIMANTS WERE INVITED BY THE AMERICAN AGENT TO SUBMIT A PROPOSAL FOR THE PERFORMANCE OF THE SERVICE; AND IN VIEW OF THE FACT THE SERVICES WERE CONTRACTED FOR UNDER A MISAPPREHENSION AS TO THE SCOPE OF THE AGENT'S AUTHORITY IN THE MATTER--- DUE TO THE PECULIAR CHARACTER OF THE COMMISSION AND THE WORK TO BE PERFORMED BY IT--- THE CLAIM MAY NOW BE ALLOWED.

ACCORDINGLY, UPON REVIEW, THERE IS CERTIFIED DUE CLAIMANTS $1,851.30.

WITH THE UNDERSTANDING THAT AN EFFORT IS TO BE MADE BY THE STATE DEPARTMENT TO OBTAIN EXPRESS AUTHORIZATION OF LAW FOR THE PROCURING OF SUCH REPORTING SERVICE BY CONTRACT IN THE FUTURE, PAYMENTS COVERING SUCH SPECIAL SERVICE UNDER CONTRACT ENTERED INTO AFTER COMPLIANCE WITH SECTION 3709, REVISED STATUTES, REGARDING ADVERTISEMENT, NOT TO EXTEND BEYOND JUNE 30, 1927, WILL NOT BE FURTHER QUESTIONED, IF OTHERWISE CORRECT AND PROPER.