A-16179, NOVEMBER 16, 1926, 6 COMP. GEN. 337

A-16179: Nov 16, 1926

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WHETHER SUCH APPROPRIATIONS HAVE LAPSED OR ARE STILL AVAILABLE FOR EXPENDITURES. ARE FOR CREDIT TO THE APPROPRIATIONS. EVEN THOUGH THE AMOUNTS WERE COLLECTED IN CONSEQUENCE OF A JUDGMENT RENDERED IN BEHALF OF THE UNITED STATES BY A UNITED STATES COURT. ARE NOT FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER THE DEPARTMENT OF JUSTICE AS A CREDIT TO THE TITLE "FINES. 1926: I HAVE YOUR LETTER OF OCTOBER 27. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION A COMMUNICATION FROM THE CHIEF OF FINANCE. ACCOMPANYING THE LETTER OF THE CHIEF OF FINANCE ARE COPIES OF CORRESPONDENCE BETWEEN THE WAR DEPARTMENT AND THE DEPARTMENT OF JUSTICE FROM WHICH IT WILL BE NOTED THAT IT IS HELD BY THE CHIEF OF FINANCE THAT THE AMOUNT IN QUESTION SHOULD BE CREDITED TO THE WAR DEPARTMENT AS A REPAYMENT TO THE APPROPRIATION "ARMAMENT OF FORTIFICATIONS.

A-16179, NOVEMBER 16, 1926, 6 COMP. GEN. 337

ACCOUNTING - REPAYMENTS TO APPROPRIATIONS AMOUNTS REPRESENTING REPAYMENTS TO APPROPRIATIONS, WHETHER SUCH APPROPRIATIONS HAVE LAPSED OR ARE STILL AVAILABLE FOR EXPENDITURES, ARE FOR CREDIT TO THE APPROPRIATIONS, EVEN THOUGH THE AMOUNTS WERE COLLECTED IN CONSEQUENCE OF A JUDGMENT RENDERED IN BEHALF OF THE UNITED STATES BY A UNITED STATES COURT, AND ARE NOT FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER THE DEPARTMENT OF JUSTICE AS A CREDIT TO THE TITLE "FINES, PENALTIES, AND FORFEITURES.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 16, 1926:

I HAVE YOUR LETTER OF OCTOBER 27, 1926, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION A COMMUNICATION FROM THE CHIEF OF FINANCE, WAR DEPARTMENT, DATED AUGUST 30, 1926, REGARDING THE PROPER DISPOSITION OF THE SUM OF $647,265.65 RECEIVED BY THE DEPARTMENT OF JUSTICE FROM THE RECEIVERS OF THE BUTTERWORTH-JUDSON CORPORATION IN SETTLEMENT OF A JUDGMENT COVERING CERTAIN CLAIMS FILED BY THAT DEPARTMENT ON BEHALF OF THE WAR DEPARTMENT FOR THE RECOVERY OF MONEYS ADVANCED FROM A WAR DEPARTMENT APPROPRIATION IN CONNECTION WITH WAR-TIME CONTRACTS UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF OCTOBER 6, 1917.

ACCOMPANYING THE LETTER OF THE CHIEF OF FINANCE ARE COPIES OF CORRESPONDENCE BETWEEN THE WAR DEPARTMENT AND THE DEPARTMENT OF JUSTICE FROM WHICH IT WILL BE NOTED THAT IT IS HELD BY THE CHIEF OF FINANCE THAT THE AMOUNT IN QUESTION SHOULD BE CREDITED TO THE WAR DEPARTMENT AS A REPAYMENT TO THE APPROPRIATION "ARMAMENT OF FORTIFICATIONS," INASMUCH AS IT REPRESENTS RECOUPMENT OF AN ADVANCE PAYMENT FROM A WAR DEPARTMENT APPROPRIATION.

THE TREASURY DEPARTMENT HAD NO RECORD OF A DEPOSIT OF THE SPECIFIC AMOUNT REFERRED TO, $647,265.65, AND ACCORDINGLY, REQUESTED THE DEPARTMENT OF JUSTICE TO FURNISH INFORMATION AS TO THE DATE AND AMOUNT OF THE PARTICULAR DEPOSIT THAT INCLUDED THIS ITEM. THERE IS ENCLOSED A COPY OF REPLY FROM THE DEPARTMENT OF JUSTICE DATED OCTOBER 7, 1926, STATING THAT THE AMOUNT IN QUESTION FORMS A PART OF THE SUM OF $744,064.67 COVERED BY CERTIFICATE OF DEPOSIT NO. 62686, DATED JULY 6, 1926, SHOWING THE ACCOUNT TO BE CREDITED AS "MISCELLANEOUS RECEIPTS--- FINES, PENALTIES, AND FORFEITURES (JUDICIAL).'

THE RECORDS OF THIS DEPARTMENT SHOW THAT THIS TOTAL AMOUNT, $744,064.67, WAS COVERED INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF "MISCELLANEOUS RECEIPTS--- FINES, PENALTIES, AND FORFEITURES (JUDICIAL)" UNDER MISCELLANEOUS RECEIPT COVERING WARRANT NO. 43, 1ST QR. 1927, LIST NO. 106612.

IF THE TRANSFER OF FUNDS REQUESTED BY THE CHIEF OF FINANCE IS CONSIDERED A PROPER ONE, IT IS ASSUMED THAT YOUR OFFICE WILL HAVE A CERTIFICATE OF TRANSFER SETTLEMENT ISSUED CALLING FOR A CHARGE AGAINST "MISCELLANEOUS RECEIPTS--- FINES, PENALTIES, AND FORFEITURES," IN THE SUM OF $647,265.65 AND A CREDIT OF THE SAME AMOUNT TO THE WAR APPROPRIATION,"ARMAMENT OF FORTIFICATIONS.'

IN THIS CONNECTION IT MAY BE STATED THAT THE POSITION NOW TAKEN BY THE DEPARTMENT OF JUSTICE THAT AMOUNTS COLLECTED PURSUANT TO JUDGMENTS OF COURTS SHOULD BE DEPOSITED BY THE DEPARTMENT OF JUSTICE AND COVERED INTO THE TREASURY AS A DEPARTMENT OF JUSTICE RECEIPT, REGARDLESS OF THE DEPARTMENT IN WHOSE ACCOUNTS THE INDEBTEDNESS OCCURS AND UPON WHOSE REQUEST THE DEPARTMENT OF JUSTICE HAS TAKEN ACTION THROUGH COURT PROCEDURE TO EFFECT COLLECTION OF THE INDEBTEDNESS, WOULD ESTABLISH A PRACTICE THAT IS AT VARIANCE IN MANY CASES WITH THE USUAL METHOD OF THIS DEPARTMENT OF CLASSIFYING AND CREDITING RECEIPTS AND REPAYMENTS DEPOSITED IN THE TREASURY ON ACCOUNT OF PAYMENTS MADE UNDER JUDGMENTS OF COURTS OR COMPROMISE SETTLEMENTS CONSUMMATED BY THE DEPARTMENT OF JUSTICE. THE POLICY HERETOFORE OBSERVED, PARTICULARLY IN CASES COVERING LARGE AMOUNTS COLLECTED IN SETTLEMENT OF CLAIMS OF THE WAR AND NAVY DEPARTMENTS, HAS BEEN TO CLASSIFY AND COVER SUCH SUMS INTO THE TREASURY EITHER AS REPAYMENTS TO APPROPRIATIONS SHOWN TO BE ENTITLED TO THE CREDITS OR AS MISCELLANEOUS RECEIPTS UNDER APPROPRIATE TITLES UNDER THE DEPARTMENTS AFFECTED, THUS GIVING SUCH DEPARTMENTS CREDIT FOR THE COLLECTIONS UNDER THEIR CLAIMS. IF, HOWEVER, COLLECTIONS OF THIS CHARACTER ARE DEPOSITED BY THE DEPARTMENT OF JUSTICE AS "FINES, PENALTIES, AND FORFEITURES," THE TREASURY DEPARTMENT WILL HAVE NO MEANS OF ASCERTAINING WHETHER ANY OTHER DEPARTMENT IS CONCERNED IN THE COLLECTIONS OR ENTITLED TO ANY PART THEREOF.

IT WILL BE APPRECIATED, THEREFORE, IF YOU WILL ADVISE THIS DEPARTMENT AS TO YOUR VIEWS CONCERNING THIS GENERAL QUESTION OF CREDITING THE DEPARTMENT OF JUSTICE WITH MONEYS COLLECTED PURSUANT TO JUDGMENTS OF THE COURTS REGARDLESS OF THE DEPARTMENTS INVOLVED.

IN 5 COMP. GEN. 736, IN WHICH REFERENCE WAS MADE TO SECTIONS 3617 AND 3618, REVISED STATUTES, PROVIDING THAT ANY MONEY RECEIVED FOR THE USE OF THE UNITED STATES SHALL BE TURNED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AND THAT THE MONEY THUS COVERED CAN NOT BE WITHDRAWN THEREFROM, EXCEPT IN CONSEQUENCE OF A SUBSEQUENT APPROPRIATION MADE BY LAW, IT WAS STATED:

IN THE PRACTICAL APPLICATION OF THESE PROVISIONS OF LAW IT HAS BEEN THE ACCEPTED AND UNIFORM RULE OF THE ACCOUNTING OFFICERS IN THE PAST TO HOLD THAT ANY MONEY COLLECTED FOR THE USE OF THE UNITED STATES IS PROPERLY FOR CREDIT AS MISCELLANEOUS RECEIPTS IF IT IS COLLECTED UNDER SOME GENERAL LAW OR STATUTE AS A PENALTY; 23 COMP. DEC. 352; A SET OFF, 20 COMP. DEC. 349; INDEMNITIES FOR PUBLIC GOODS LOST BY CARRIERS, 22 COMP. DEC. 279; ID. 703; 2 COMP. GEN. 599. ON THE OTHER HAND, IF THE COLLECTION INVOLVES A REFUND OR REPAYMENT OF MONEYS PAID FROM AN APPROPRIATION IN EXCESS OF WHAT WAS ACTUALLY DUE SUCH REFUND HAS BEEN HELD TO BE PROPERLY FOR CREDIT TO THE APPROPRIATION ORIGINALLY CHARGED; 18 COMP. DEC. 980; 2 COMP. GEN. 599; PROVIDED THE CREDITING OF SUCH MONEYS WILL NOT OPERATE TO AUGMENT THE ORIGINAL AMOUNT APPROPRIATED BY THE CONGRESS FOR THE PURPOSES FOR WHICH THE APPROPRIATION WAS MADE. 22 COMP. DEC. 314. SEE ALSO 18 COMP. DEC. 430 AND 22 ID. 297.

IN A CASE SUCH AS THAT PRESENTED BY YOUR SUBMISSION IT IS EVIDENT THAT THE AMOUNT OF $647,265.65 DOES NOT REPRESENT FINES, PENALTIES, OR OTHER FUNDS PROPERLY FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER SECTIONS 3617 AND 3618, REVISED STATUTES, AS INTERPRETED AND CONSTRUED BY THE ACCOUNTING OFFICERS, BUT REPRESENTS A REPAYMENT TO THE APPROPRIATION FROM WHICH THE ADVANCES WERE ORIGINALLY MADE, AND AS SUCH SHOULD PROPERLY HAVE BEEN CREDITED WHEN COLLECTED TO THE APPROPRIATION "ARMAMENT OF FORTIFICATIONS" AS REQUESTED BY THE WAR DEPARTMENT, WHETHER THE MONEY WAS OBTAINED IN CONSEQUENCE OF A COURT JUDGMENT OR OTHERWISE.

IT IS CONTENDED, HOWEVER, BY THE ATTORNEY GENERAL THAT WHEN PAYMENTS ARE MADE PURSUANT TO A JUDGMENT OF A UNITED STATES COURT THE FUNDS "SHOULD BE DEPOSITED UNDER THE DEPARTMENT OF JUSTICE TO THE CREDIT OF THE FUND ENTITLED "FINES, PENALTIES, AND FORFEITURES" EXCEPTING IN CASES WHERE FOR SOME SPECIFIC REASON, SUCH AS CREDITING A CURRENT APPROPRIATION, CREDIT IS NECESSARILY GIVEN OTHERWISE.' THE ATTORNEY GENERAL FURTHER STATES IN LETTER TO THE SECRETARY OF WAR, DATED JULY 30, 1926:

THIS MONEY WAS PAID IN SETTLEMENT OF A JUDGMENT OF THE UNITED STATES DISTRICT COURT, AND IT IS BELIEVED WAS PROPERLY DEPOSITED TO THE CREDIT OF THE FUND UNDER THE DEPARTMENT OF JUSTICE ENTITLED "FINES, PENALTIES, AND FORFEITURES.' IT IS UNDERSTOOD THAT THE APPROPRIATIONS FROM WHICH THE OVERPAYMENTS WERE MADE HAVE LONG SINCE LAPSED, AND THAT IF THE MONEY WERE CREDITED UNDER THESE APPROPRIATIONS, SUCH ACTION WOULD BE PURELY FORMAL, AND IT WOULD BE AT ONCE CARRIED TO THE SURPLUS FUND OF THE TREASURY.

IT IS NOT APPARENT UPON WHAT THEORY IT CAN BE CONTENDED THAT THE CHARACTER OF THE FUNDS COLLECTED CAN BE AFFECTED BY THE FACT THAT THE APPROPRIATION FROM WHICH THE FUNDS WERE ORIGINALLY ADVANCED MAY HAVE LAPSED OR MAY STILL BE AVAILABLE FOR EXPENDITURES. AS INDICATED BY THE QUOTATION IN 5 COMP. GEN. 736, SUPRA, THE GUIDING FACTOR AS TO WHETHER FUNDS COLLECTED ARE FOR COVERING AS MISCELLANEOUS RECEIPTS OR FOR CREDIT TO AN APPROPRIATION, IS THE NATURE OF SUCH FUNDS, AND THE FACT THAT AN APPROPRIATION TO WHICH THE FUNDS ARE PROPERLY FOR CREDIT HAS LAPSED AT THE TIME OF THE COLLECTION HAS NEVER BEEN CONSIDERED A SUFFICIENT JUSTIFICATION FOR COVERING THE FUNDS INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. WHILE IT IS TRUE, AS STATED BY THE ATTORNEY GENERAL, THAT THE MONEYS THUS DEPOSITED TO THE CREDIT OF A LAPSED APPROPRIATION ARE AT ONCE CARRIED TO THE SURPLUS FUND IN THE TREASURY BY OPERATION OF LAW, YET IN THE INTEREST OF A PROPER ACCOUNTING OF RECEIPTS AND DISBURSEMENTS OF PUBLIC FUNDS IN THE TREASURY OF THE UNITED STATES IT IS ESSENTIAL THAT FUNDS REPRESENTING REPAYMENTS TO AN APPROPRIATION APPEAR IN THE SURPLUS FUNDS OF THE TREASURY TO THE CREDIT OF THE LAPSED APPROPRIATIONS, AND NOT AS A CREDIT UNDER THE DEPARTMENT OF JUSTICE AS MISCELLANEOUS RECEIPTS--- FINES, PENALTIES, AND FORFEITURES--- WHEN THE FUNDS DO NOT REPRESENT FUNDS OF THE CHARACTER INCLUDED UNDER THIS TITLE.

ACCORDINGLY, TRANSFER SETTLEMENT TO ADJUST THE MATTER WILL BE ISSUED BY THIS OFFICE CHARGING THE SUM OF $647,265.65 AGAINST MISCELLANEOUS RECEIPTS --- FINES, PENALTIES, AND FORFEITURES--- AND CREDITING THE APPROPRIATIONS "ARMAMENT OF FORTIFICATIONS" WITH A LIKE AMOUNT.

HEREAFTER, WHEN MONEYS ARE DEPOSITED BY THE DEPARTMENT OF JUSTICE AS FINES, PENALTIES, AND FORFEITURES, THERE SHOULD BE REQUIRED, BEFORE COVERING SUCH MONEYS INTO THE TREASURY, A STATEMENT OF FACTS FROM WHICH A DETERMINATION CAN BE MADE AS TO WHETHER THE MONEYS IN FACT REPRESENT FINES, PENALTIES, OR FORFEITURES, OR WHETHER THEY REPRESENT RECOVERIES OF MONEYS THERETOFORE ILLEGALLY OR ERRONEOUSLY PAID FROM APPROPRIATED FUNDS.