A-16804, JANUARY 7, 1927, 6 COMP. GEN. 457

A-16804: Jan 7, 1927

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PROHIBITION ENFORCEMENT - SECURING OF EVIDENCE THE APPROPRIATION FOR EXPENSES OF ENFORCING THE PROVISIONS OF THE NATIONAL PROHIBITION ACT IS NOT AVAILABLE TO REIMBURSE PROHIBITION INSPECTORS FOR EXPENSES INCURRED IN ENGAGING IN GAMBLING AND GAMES OF CHANCE IN VIOLATION OF STATE LAWS. WHEREIN WAS DISALLOWED THE CLAIM OF JAMES L. WHEREIN WAS DISALLOWED THE CLAIM OF DOUGLAS S. THE CLAIMANTS ARE PROHIBITION INSPECTORS. THEIR RESPECTIVE CLAIMS WERE FOR REIMBURSEMENT OF EXPENSES INCURRED IN SECURING EVIDENCE OF VIOLATIONS OF THE NATIONAL PROHIBITION ACT. THE EXACT AMOUNT LOST AT GAMBLING AND WHAT AMOUNT WAS ACTUALLY EXPENDED FOR LIQUOR ARE NOT STATED. THE DISTRICT PROHIBITION ADMINISTRATOR STATES: THE MONEYS WERE SPENT IN GOOD FAITH FOR THE GOVERNMENT IN APPREHENDING VIOLATORS OF THE NATIONAL PROHIBITION ACT.

A-16804, JANUARY 7, 1927, 6 COMP. GEN. 457

PROHIBITION ENFORCEMENT - SECURING OF EVIDENCE THE APPROPRIATION FOR EXPENSES OF ENFORCING THE PROVISIONS OF THE NATIONAL PROHIBITION ACT IS NOT AVAILABLE TO REIMBURSE PROHIBITION INSPECTORS FOR EXPENSES INCURRED IN ENGAGING IN GAMBLING AND GAMES OF CHANCE IN VIOLATION OF STATE LAWS, IN AN EFFORT TO DETECT OR SECURE EVIDENCE OF VIOLATION OF THE NATIONAL PROHIBITION ACT. THE FACT THAT AN EXPENDITURE HAS BEEN AUTHORIZED BY A SUPERIOR OFFICER OF THE GOVERNMENT DOES NOT NECESSARILY CONSTITUTE AUTHORITY THEREFOR, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORIZATION.

DECISION BY ASSISTANT COMPTROLLER GENERAL GINN, JANUARY 7, 1927:

REQUEST HAS BEEN MADE FOR REVIEW OF SETTLEMENT NO. 0145397, DATED AUGUST 11, 1926, WHEREIN WAS DISALLOWED THE CLAIM OF JAMES L. DAUSMAN, IN THE AMOUNT OF $223.05, AND SETTLEMENT NO. 0145186, DATED AUGUST 13, 1926, WHEREIN WAS DISALLOWED THE CLAIM OF DOUGLAS S. BAKER, IN THE AMOUNT $266.80. THE CLAIMANTS ARE PROHIBITION INSPECTORS, AND THEIR RESPECTIVE CLAIMS WERE FOR REIMBURSEMENT OF EXPENSES INCURRED IN SECURING EVIDENCE OF VIOLATIONS OF THE NATIONAL PROHIBITION ACT, BY ENGAGING IN GAMBLING, GAMES OF CHANCE, AND THE PURCHASE OF WHISKEY DURING THE MONTH OF FEBRUARY, 1926. THE EXACT AMOUNT LOST AT GAMBLING AND WHAT AMOUNT WAS ACTUALLY EXPENDED FOR LIQUOR ARE NOT STATED, THE ITEMS BEING COMBINED.

IN CONNECTION WITH THE REQUEST FOR REVIEW, THE DISTRICT PROHIBITION ADMINISTRATOR STATES:

THE MONEYS WERE SPENT IN GOOD FAITH FOR THE GOVERNMENT IN APPREHENDING VIOLATORS OF THE NATIONAL PROHIBITION ACT. THE EXPENDITURES WERE MADE UPON INSTRUCTIONS OF A SUPERIOR OFFICER, F. M. POOL, AT THAT TIME DEPUTY PROHIBITION ADMINISTRATOR, AT PHOENIX, ARIZONA, WHO INFORMED THE AGENTS THAT THEY WOULD BE REIMBURSED FOR THE EXPENDITURES.

IT WOULD HAVE BEEN IMPOSSIBLE TO GAIN THE CONFIDENCE OF THE VIOLATORS OF THE NATIONAL PROHIBITION ACT EXCEPT BY THE METHOD USED BY THESE AGENTS WHICH REQUIRED THAT THEY ENTER INTO GAMBLING GAMES. THE FACT THAT THESE MEN SECURED EVIDENCE AGAINST TWENTY-TWO DEFENDANTS WHOSE SENTENCES TOTALED THIRTY-TWO YEARS AND THREE MONTHS AND FINES AMOUNTED TO $6,851.00 SHOULD BE CONSIDERED IN THE PASSING UPON THIS CLAIM.

IN REFERENCE TO THE REASON FOR DISALLOWANCE ON ACCOUNT OF VIOLATION OF STATE LAW, PERMIT ME TO CALL YOUR ATTENTION TO THE STATEMENT BY JUDGE SAWTELLE, FEDERAL JUDGE, WHO STATED THAT THE CONDITION WAS THE WORST THAT HE HAD EVER SEEN IN ANY TOWN AND THAT THE AGENTS DID EXCELLENT WORK, AND THAT IF HE WERE THE RESPONSIBLE PARTY FOR MAKING THE PAYMENTS FOR THE EXPENSES INCURRED BY THE AGENTS THERE WOULD BE NO QUESTION OF THEIR SETTLEMENT. IN THE EVENT IT WOULD ASSIST IN THE SATISFACTORY SETTLEMENT OF THESE CLAIMS, I WILL BE PLEASED TO REQUEST AN OPINION OR WRITTEN STATEMENT FROM JUDGE SAWTELLE IN REFERENCE TO WHETHER IT IS CONSIDERED A VIOLATION OF THE STATE LAW OF ARIZONA FOR GOVERNMENT AGENTS TO GAMBLE IN ORDER TO SECURE EVIDENCE. IT WOULD APPEAR TO THE OFFICE THAT THESE EXPENSES SHOULD BE PAID ON THE SAME THEORY THAT REIMBURSEMENT IS MADE TO AGENTS FOR EXPENSES IN THE PURCHASE OF LIQUOR EVIDENCE.

THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 305, PROVIDES THAT THE COMMISSIONER OF INTERNAL REVENUE, HIS ASSISTANTS, AGENTS, AND INSPECTORS, SHALL INVESTIGATE AND REPORT VIOLATIONS OF THE PROHIBITION LAWS, AND THE ACT OF JANUARY 22, 1925, 43 STAT. 771, MAKING APPROPRIATION FOR THE FISCAL YEAR 1926, PROVIDES:

FOR EXPENSES TO ENFORCE THE PROVISIONS OF THE NATIONAL PROHIBITION ACT * * * INCLUDING * * * THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACTS * * * AND SUCH OTHER EXPENDITURES AS MAY BE NECESSARY IN THE DISTRICT OF COLUMBIA AND THE SEVERAL FIELD OFFICES * * * $11,000,000 * * *. PROVIDED FURTHER, THAT NOT TO EXCEED $50,000 OF THE TOTAL AMOUNT APPROPRIATED SHALL BE AVAILABLE FOR ADVANCES TO BE MADE BY SPECIAL DISBURSING AGENTS WHEN AUTHORIZED BY THE COMMISSIONER OF INTERNAL REVENUE AND APPROVED BY THE SECRETARY OF THE TREASURY, THE PROVISIONS OF SECTION 3648 OF THE REVISED STATUTES TO THE CONTRARY NOTWITHSTANDING: * * *.

SECTION 298 OF CHAPTER VIII, REVISED STATUTES OF ARIZONA, 1913, PROHIBITS THE SALE OR GIVING AWAY OF INTOXICATING LIQUOR, AND FIXES THE PUNISHMENT FOR VIOLATION THEREOF, WHILE SECTION 319 OF CHAPTER X OF THE SAME STATUTES, PROHIBITS THE PLAYING OF GAMES OF CHANCE, AND DEFINES THE PUNISHMENT FOR ALL SUCH VIOLATIONS OF THE STATUTE.

IN 4 COMP. GEN. 917, WHEREIN THE FACTS ARE SIMILAR TO THE FACTS IN THIS CASE, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE APPROPRIATION FOR EXPENSES OF ENFORCING THE PROVISIONS OF THE NATIONAL PROHIBITION ACT IS NOT AVAILABLE TO REIMBURSE PROHIBITION AGENTS FOR LOSSES SUSTAINED WHILE ENGAGED IN GAMBLING IN VIOLATION OF THE STATE LAWS IN AN EFFORT TO DETECT OR SECURE EVIDENCE OF VIOLATIONS OF THE PROHIBITION LAWS.

SAID DECISION WAS RENDERED MAY 4, 1925, AND WAS PRINTED AND DISTRIBUTED BEFORE THE EXPENDITURES HERE IN QUESTION WERE INCURRED, AND IN SAID DECISION IT WAS STATED THAT:

THE FACT THAT AN EXPENDITURE HAS BEEN AUTHORIZED BY A SUPERIOR OFFICER DOES NOT ALWAYS CONSTITUTE AUTHORITY THEREFOR. THE CHARACTER OF THE EXPENDITURE HERE INVOLVED IS SUCH THAT REIMBURSEMENT THEREFOR CAN NOT BE AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR.

IN THE ABSENCE OF A DEFINITE SHOWING AS TO WHAT PART, IF ANY, OF THE AMOUNTS CLAIMED WAS ACTUALLY AND NECESSARILY EXPENDED FOR THE SECURING OF EVIDENCE, THE DISALLOWANCES MUST BE AND ARE SUSTAINED.