A-15596, SEPTEMBER 25, 1926, 6 COMP. GEN. 214

A-15596: Sep 25, 1926

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" THE EXPENSES FOR PREMIUM ON REMOVAL BOND AND FEE FOR REMOVAL APPLICATION INCURRED IN AN ENDEAVOR TO HAVE A CASE. REMOVED TO A FEDERAL COURT ARE PAYABLE FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES. SAID APPROPRIATION WAS MADE IN THE ACT OF MAY 28. ACCORDINGLY SUCH EXPENSES WERE PAYABLE UNDER SAID APPROPRIATION ONLY IF AND WHEN SPECIALLY TAXED AND APPROVED AS PROVIDED FOR UNDER SECTION 846. " SUCH SPECIAL TAXING AND APPROVAL ARE NOT A PREREQUISITE TO THE PAYMENT OF SUCH EXPENSES. CECIL WAS BROUGHT IN A STATE COURT BY A PERSON CLAIMING TITLE TO THE LAND WHICH MR. CECIL WAS OCCUPYING IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR. THAT HIS DEFENSE WAS CONDUCTED BY THE UNITED STATES DISTRICT ATTORNEY.

A-15596, SEPTEMBER 25, 1926, 6 COMP. GEN. 214

OFFICERS AND EMPLOYEES - EXPENSES OF SUIT INSTITUTED AGAINST AN OFFICER IN HIS OFFICIAL CAPACITY IN VIEW OF THE PROVISION IN THE ACT OF MAY 28, 1924, 43 STAT. 221, FOR EXPENSES "IN COURTS OTHER THAN FEDERAL COURTS," THE EXPENSES FOR PREMIUM ON REMOVAL BOND AND FEE FOR REMOVAL APPLICATION INCURRED IN AN ENDEAVOR TO HAVE A CASE, INVOLVING A SUIT INSTITUTED AGAINST A UNITED STATES FOREST SUPERVISOR IN HIS OFFICIAL CAPACITY IN A STATE COURT, REMOVED TO A FEDERAL COURT ARE PAYABLE FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS, 1925," WHEN APPROVED BY THE ATTORNEY GENERAL WITHOUT SPECIAL TAXATION UNDER SECTION 846, REVISED STATUTES. 5 COMP. GEN. 951, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 25, 1926:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0104021 OF JULY 19, 1926, DISALLOWING THE CLAIM OF GEORGE H. CECIL, FOREST SUPERVISOR, DEPARTMENT OF AGRICULTURE, IN THE AMOUNT OF $12 FOR REIMBURSEMENT OF EXPENSES INCURRED BY HIM FOR PREMIUM ON REMOVAL BOND AND FEE FOR REMOVAL APPLICATION IN CONNECTION WITH THE DEFENSE OF AN ACTION IN EJECTMENT AGAINST HIM IN A STATE COURT ON ACCOUNT OF HIS OCCUPANCY, IN HIS OFFICIAL CAPACITY AS A REPRESENTATIVE OF THE FEDERAL GOVERNMENT, OF A CERTAIN TRACT OF LAND IN LOS ANGELES COUNTY, CALIF., DURING THE YEAR 1925.

THE CLAIM HAS BEEN APPROVED BY THE ATTORNEY GENERAL FOR PAYMENT UNDER THE APPROPRIATION ,MISCELLANEOUS EXPENSES, UNITED STATES COURTS, 1925.' SAID APPROPRIATION WAS MADE IN THE ACT OF MAY 28, 1924, 43 STAT. 221, IN THE FOLLOWING TERMS:

FOR SUCH MISCELLANEOUS EXPENSES AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, FOR THE UNITED STATES COURTS AND THEIR OFFICERS, INCLUDING SO MUCH AS MAY BE NECESSARY IN THE DISCRETION OF THE ATTORNEY GENERAL FOR SUCH EXPENSES IN THE DISTRICT OF ALASKA, AND IN COURTS OTHER THAN FEDERAL COURTS. * * *

PRIOR TO THE ACT APPROVED MARCH 4, 1921, 41 STAT. 1413, MAKING APPROPRIATIONS FOR THE SUNDRY CIVIL EXPENSES OF THE GOVERNMENT FOR THE FISCAL YEAR 1922, NO SPECIFIC PROVISION HAD BEEN MADE UNDER THE APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS," TO PAY EXPENSES IN COURTS OTHER THAN FEDERAL COURTS, AND ACCORDINGLY SUCH EXPENSES WERE PAYABLE UNDER SAID APPROPRIATION ONLY IF AND WHEN SPECIALLY TAXED AND APPROVED AS PROVIDED FOR UNDER SECTION 846, REVISED STATUTES. 12 COMP. DEC. 208. HOWEVER, UNDER THE TERMS OF THE APPROPRIATION AS ABOVE QUOTED, SPECIFICALLY PROVIDING FOR EXPENSES "IN COURTS OTHER THAN FEDERAL COURTS," SUCH SPECIAL TAXING AND APPROVAL ARE NOT A PREREQUISITE TO THE PAYMENT OF SUCH EXPENSES.

WITH RESPECT TO THE MERITS OF THE CLAIM, IT APPEARS THAT THE ACTION AGAINST MR. CECIL WAS BROUGHT IN A STATE COURT BY A PERSON CLAIMING TITLE TO THE LAND WHICH MR. CECIL WAS OCCUPYING IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR, DEPARTMENT OF AGRICULTURE; THAT HIS DEFENSE WAS CONDUCTED BY THE UNITED STATES DISTRICT ATTORNEY; AND THAT THE EXPENSES HERE INVOLVED WERE NECESSARILY INCURRED IN AN ENDEAVOR TO HAVE THE CASE REMOVED TO A FEDERAL COURT.

IT IS WELL ESTABLISHED THAT WHERE AN OFFICER OF THE UNITED STATES IS SUED BECAUSE OF SOME OFFICIAL ACT DONE IN THE DISCHARGE OF AN OFFICIAL DUTY THE EXPENSE OF DEFENDING THE SUIT SHOULD BE BORNE BY THE UNITED STATES. SEE 12 COMP. DEC. 191, 208; 17 ID. 570.

EXPENSES INCURRED IN THE DEFENSE OF A SUIT UNDER DIRECTION OF A UNITED STATES DISTRICT ATTORNEY, AS IN THE CASE HERE PRESENTED, ARE DISTINGUISHABLE FROM COSTS ASSESSED AGAINST AN OFFICER UNDER FINAL JUDGMENT OF A STATE COURT AS IN THE CASE DECIDED IN 5 COMP. GEN. 951.

UPON REVIEW THERE IS CERTIFIED DUE CLAIMANT THE SUM OF $12, PAYMENT OF WHICH WILL BE MADE IN DUE COURSE.