A-17076, FEBRUARY 25, 1927, 6 COMP. GEN. 553

A-17076: Feb 25, 1927

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MISCELLANEOUS RECEIPTS - ERRONEOUS DEPOSITS - PROCEEDS FROM SALES OF HORSES TRESPASSING UPON NATIONAL FOREST LAND PROCEEDS FROM SALES OF HORSES TRESPASSING UPON NATIONAL FOREST LAND ARE MONEYS ACCRUING TO THE UNITED STATES. FOR THE PAYMENT OF CLAIMS FOR SUCH PORTIONS OF SAID PROCEEDS AS WERE INADVERTENTLY COVERED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS. IS AVAILABLE UPON THE ESTABLISHMENT OF PROOF OF OWNERSHIP WITHIN ONE YEAR FROM DATE OF SAID SALES. THERE WAS DISALLOWED THE CLAIM OF HENRY WESTPHAL FOR $33.90. THERE WAS DISALLOWED THE CLAIM OF B. THE CLAIM IN EACH INSTANCE WAS FOR A PORTION OF THE PROCEEDS FROM THE SALE OF A CERTAIN HORSE OWNED BY THE CLAIMANT THAT WAS IMPOUNDED AND SOLD FOR TRESPASSING UPON NATIONAL FOREST LAND.

A-17076, FEBRUARY 25, 1927, 6 COMP. GEN. 553

MISCELLANEOUS RECEIPTS - ERRONEOUS DEPOSITS - PROCEEDS FROM SALES OF HORSES TRESPASSING UPON NATIONAL FOREST LAND PROCEEDS FROM SALES OF HORSES TRESPASSING UPON NATIONAL FOREST LAND ARE MONEYS ACCRUING TO THE UNITED STATES; AND FOR THE PAYMENT OF CLAIMS FOR SUCH PORTIONS OF SAID PROCEEDS AS WERE INADVERTENTLY COVERED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK," INSTEAD OF BEING DEPOSITED IN A SPECIAL DEPOSIT ACCOUNT FOR ONE YEAR PENDING SUBMISSION OF PROOF OF OWNERSHIP OF THE HORSES, IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT OF AGRICULTURE FOR THE IMPOUNDING AND SALE OF SUCH HORSES, THE APPROPRIATION "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED" PROVIDED BY SECTION 3689, REVISED STATUTES, IS AVAILABLE UPON THE ESTABLISHMENT OF PROOF OF OWNERSHIP WITHIN ONE YEAR FROM DATE OF SAID SALES.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 25, 1927:

BY SETTLEMENT NO. 0147785, DATED OCTOBER 16, 1926, THERE WAS DISALLOWED THE CLAIM OF HENRY WESTPHAL FOR $33.90, AND BY SETTLEMENT NO. 0147786, SAME DATE, THERE WAS DISALLOWED THE CLAIM OF B. O. PANNELL FOR $23.50.

THE CLAIM IN EACH INSTANCE WAS FOR A PORTION OF THE PROCEEDS FROM THE SALE OF A CERTAIN HORSE OWNED BY THE CLAIMANT THAT WAS IMPOUNDED AND SOLD FOR TRESPASSING UPON NATIONAL FOREST LAND.

THE SECRETARY OF AGRICULTURE, AS BY VIRTUE OF THE AUTHORITY VESTED IN HIM BY THE ACT OF FEBRUARY 1, 1905, 33 STAT. 628, AMENDATORY OF THE ACT OF JUNE 4, 1897, 30 STAT. 11, MADE AND PUBLISHED THE FOLLOWING REGULATIONS FOR THE OCCUPANCY, USE, PROTECTION, AND ADMINISTRATION OF THE NATIONAL FORESTS, TO BE IN FORCE AND EFFECT FROM THE 1ST DAY OF FEBRUARY, 1925, AND TO CONSTITUTE A PART OF THE NATIONAL FOREST MANUAL:

REGULATION T-11, IMPOUNDING OF LIVESTOCK

DOMESTIC LIVESTOCK FOUND TRESPASSING ON NATIONAL FOREST LAND IF NOT REMOVED UPON REASONABLE NOTICE, MAY BE IMPOUNDED BY THE FOREST SERVICE. IF THE OWNER OF THE STOCK IS KNOWN, PROMPT WRITTEN NOTICE OF THE IMPOUNDING WILL BE GIVEN HIM AND UNLESS THE STOCK BE REMOVED BY THE OWNER WITHIN FIVE DAYS FROM THE RECEIPT OF SUCH NOTICE THE STOCK SHALL BE SOLD OR OTHERWISE DISPOSED OF AS HEREINAFTER PRESCRIBED. IF THE OWNER BE NOT KNOWN, NOTICE SHALL BE GIVEN BY PUBLICATION FOR NOT LESS THAN FIFTEEN DAYS IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY IN WHICH THE TRESPASS OCCURS AND CONCURRENTLY BY POSTING AT THE COUNTY COURTHOUSE. IN EITHER CASE THE NOTICE SHALL STATE WHEN AND WHERE THE STOCK WAS IMPOUNDED, DESCRIBE THE STOCK BY BRANDS OR OTHER MEANS OF IDENTIFICATION, AND SPECIFY THE TIME AND PLACE IT WILL BE SOLD IN DEFAULT OF THE REDEMPTION BY THE OWNER. IF THE STOCK BE NOT REDEEMED ON OR BEFORE THE DATE FIXED FOR ITS SALE, IT SHALL BE SOLD AT PUBLIC SALE TO THE HIGHEST BIDDER, OR OTHERWISE DISPOSED OF. THE OWNER MAY REDEEM THE STOCK BY SUBMITTING PROOF OF OWNERSHIP AND PAYING ALL EXPENSES INCURRED BY THE UNITED STATES IN ADVERTISING, GATHERING, PASTURING, AND IMPOUNDING IT. UPON THE SALE OF ANY STOCK IN ACCORDANCE WITH THIS REGULATION THE FOREST OFFICER SHALL ISSUE A CERTIFICATE OF SALE. ANY STOCK IMPOUNDED UNDER THIS REGULATION WHICH IS OFFERED AT PUBLIC SALE AND NO BID RECEIVED THEREFOR, MAY, IN THE DISCRETION OF THE FOREST OFFICER, BE SOLD AT PRIVATE SALE OR BE CONDEMNED AND DESTROYED.

INSTRUCTIONS REGARDING PAYMENTS UNDER REGULATION T-11

IF THE AMOUNT RECEIVED FROM THE SALE OF TRESPASSING STOCK DOES NOT EQUAL OR EXCEED THE COST, THE ENTIRE AMOUNT SHOULD IMMEDIATELY BE DEPOSITED TO "MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK.' IF THE RECEIPTS EXCEED THE COST THE AMOUNT OF THE COST SHOULD BE DEPOSITED TO ,MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK" AT ONCE, AND THE BALANCE DEPOSITED IN THE SPECIAL DEPOSIT ACCOUNT WHERE IT WILL BE HELD PENDING PROOF OF OWNERSHIP OF THE STOCK. IF THE OWNER FAILS TO SUBMIT SUCH PROOF WITHIN ONE YEAR FROM SUCH SALE, THE DISTRICT FISCALAGENT WILL BE NOTIFIED AND HE WILL TAKE STEPS TO HAVE THE AMOUNT TRANSFERRED FROM THE SPECIAL DEPOSIT ACCOUNT TO "MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK.'

WHEN THE OWNER REDEEMS THE STOCK BY PAYING IMPOUNDING FEES, THE MONEY SO COLLECTED WILL BE TREATED AS A REPAYMENT AND DEPOSITED TO THE CREDIT OF THE APPROPRIATION FROM WHICH THE EXPENSES IN CONNECTION WITH THE CASE WERE ORIGINALLY PAID.

IT IS NOTED THAT IN REGULATIONS MADE EFFECTIVE JULY 1, 1926, THE ABOVE- QUOTED REGULATION T-11 APPEARS AS REGULATION T-12.

IT APPEARS THAT THE HORSE OWNED BY WESTPHAL WAS SOLD ON JULY 18, 1925, FOR $40, AND THE ONE OWNED BY PANNELL WAS SOLD ON JULY 11, 1925, FOR $30; THAT THE HANDLING CHARGES IN CONNECTION WITH THE IMPOUNDING AND SALES WERE, RESPECTIVELY, $6.10 AND $6.50; AND THAT INSTEAD OF DEPOSITING THE BALANCES, RESPECTIVELY, OF $33.90 AND $23.50 IN THE DISTRICT FISCAL AGENT'S SPECIAL DEPOSIT ACCOUNT PENDING SUBMISSION OF PROOF OF OWNERSHIP OF THE HORSES AS PROVIDED BY THE REGULATION, THE ENTIRE PROCEEDS OF THE TWO SALES WERE, WITH OTHER MONEYS, INADVERTENTLY COVERED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK," BY CERTIFICATES OF DEPOSIT NOS. 296, DATED JULY 23, 1925, AND 295, DATED JULY 22, 1925, RESPECTIVELY.

THE PROOF OF OWNERSHIP OF THE TWO HORSES WAS FURNISHED WITHIN 1 YEAR FROM THE DATE OF THE SALE BY THE DEPARTMENT, AND AN APPROVED VOUCHER IN THE CASE OF EACH OF THE TWO CLAIMS FOR REFUND WAS REFERRED TO THIS OFFICE FOR SETTLEMENT, CHARGEABLE TO THE APPROPRIATION "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED.'

SECTION 3689, REVISED STATUTES, PROVIDES UNDER SAID TITLE A PERMANENT ANNUAL APPROPRIATION AS FOLLOWS:

THERE ARE APPROPRIATED, OUT OF ANY MONEYS IN THE TREASURY NOT OTHERWISE APPROPRIATED, FOR THE PURPOSES HEREINAFTER SPECIFIED, SUCH SUMS AS MAY BE NECESSARY FOR THE SAME RESPECTIVELY; AND SUCH APPROPRIATIONS SHALL BE DEEMED PERMANENT ANNUAL APPROPRIATIONS.

EXECUTIVE

UNDER THE TREASURY DEPARTMENT

REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED:

"TO REFUND MONEYS RECEIVED AND COVERED INTO THE TREASURY BEFORE THE PAYMENT OF LEGAL AND JUST CHARGES AGAINST THE SAME.'

THIS PROVISION OF SECTION 3689, REVISED STATUTES, WAS TAKEN FROM SECTION 12 OF THE ACT OF JULY 23, 1866, 14 STAT. 208, WHICH PROVIDED:

THAT IN CASES IN WHICH MONEYS ACCRUING TO THE UNITED STATES FROM "FINES, PENALTIES, AND FORFEITURES," OR OTHER SOURCES, HAVE BEEN ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY BEFORE THE PAYMENT OF THE PROPER INFORMERS' MOIETIES OR OTHER CHARGES LEGALLY AND JUSTLY CHARGEABLE AGAINST THE SAME, SO MUCH MONEY AS MAY BE NECESSARY TO PAY SAID CLAIMS, ADMITTED AND CERTIFIED IN DUE COURSE OF SETTLEMENT, IS HEREBY APPROPRIATED OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED.

IT HAS BEEN HELD THAT THIS APPROPRIATION DOES NOT APPLY EXCLUSIVELY TO THE TREASURY DEPARTMENT, THAT IS TO SAY, TO RECEIPTS DERIVED FROM ACTIVITIES OF THE TREASURY DEPARTMENT, BUT IS EQUALLY APPLICABLE TO ALL DEPARTMENTS. 14 COMP. DEC. 82; 17 ID. 343, 346. A PERMANENT ANNUAL APPROPRIATION MADE BY SECTION 3689, REVISED STATUTES, IS SUBJECT TO ALL THE INCIDENTS WHICH ATTACH TO OTHER ANNUAL APPROPRIATIONS, AND, ACCORDINGLY, COMES WITHIN THE OPERATION OF THE ACT OF JUNE 20, 1874, 18 STAT. 110, RELATIVE TO THE AVAILABILITY OF ANNUAL APPROPRIATIONS. COMP. DEC. 05; 22 ID. 294. A PROPER CLAIM FOR REFUND FROM THE PERMANENT ANNUAL APPROPRIATION IN QUESTION IS THEREFORE CHARGEABLE TO SAID APPROPRIATION AS OF THE YEAR IN WHICH THE CLAIM ACCRUED; BUT THE SECTION OF THE REVISED STATUTES ITSELF MAKES THE APPROPRIATION AND THERE IS NO REQUIREMENT OF LAW THAT, IN ORDER TO MAKE SAID APPROPRIATION AVAILABLE FOR THE PAYMENT OF CLAIMS FOR REFUND IN PROPER CASES ARISING UNDER THE OPERATIONS OF A PARTICULAR DEPARTMENT DURING ANY FISCAL YEAR, THE CONGRESS SHALL FOR THAT YEAR HAVE SPECIFICALLY DESIGNATED SAID APPROPRIATION AS AVAILABLE IN A SPECIFIC AMOUNT FOR SUCH REFUNDS. NEITHER DOES THE FACT THAT NO ESTIMATE MAY BE SUBMITTED TO THE CONGRESS FOR SUCH REFUNDS UNDER A PARTICULAR DEPARTMENT FOR A GIVEN FISCAL YEAR AFFECT THE EXISTENCE OR AVAILABILITY OF THE APPROPRIATION.

WITH REFERENCE TO SAID APPROPRIATION, IT IS STATED IN DECISION OF FEBRUARY 26, 1924 (AD-8119):

THE WORDS "LEGAL AND JUST CHARGES" AS USED IN THIS SECTION MEAN AN OBLIGATION OR LIEN ON THE MONEYS RECEIVED WHICH COULD HAVE BEEN DISCHARGED FROM IT BEFORE IT WAS PAID INTO THE TREASURY. 14 COMP. DEC. 82. IN 17 COMP. DEC. 273, IT IS STATED:

"IT IS CLEAR, HOWEVER, THAT EACH OF THE PROVISIONS REFERS ONLY TO MONEYS THAT MIGHT PROPERLY BE PAID INTO THE TREASURY AS PUBLIC MONEYS BUT FOR THE EXISTENCE OF THE LEGAL CHARGES AGAINST IT. THIS IDEA IS EXPRESSED IN THE ORIGINAL ACT BY DESIGNATING IT AS MONEYS "ACCRUING TO THE UNITED STATES" FROM "FINES, PENALTIES, AND FORFEITURES," OR "OTHER SOURCES.' THERE COULD BE NO LEGAL AND JUST CHARGES FOR WHICH THE UNITED STATES WOULD BE LIABLE AGAINST MONEYS THAT DID NOT ACCRUE TO THE UNITED STATES. IT WOULD BE A MISNOMER TO USE THE WORDS "LEGAL AND JUST CHARGES AGAINST THE SAME" AS SYNONYMOUS WITH LEGAL TITLE IN OR TO. THIS PROVISION HAS NEVER BEEN HELD TO AUTHORIZE THE REPAYMENT OF MONEYS THAT BELONGED TO PRIVATE PARTIES WHICH WERE ILLEGALLY COVERED INTO THE TREASURY. IT DOES NOT MAKE AN APPROPRIATION TO REPAY ALL MONEYS THAT MAY HAVE BEEN ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY, BUT ONLY TO SATISFY LEGAL AND JUST CHARGES, IN THE NATURE OF LIENS AGAINST THE MONEYS THAT HAVE BEEN COLLECTED BY PROPER AUTHORITY AND WHICH, BUT FOR THE EXISTENCE OF SUCH CHARGES, WOULD BE COVERED INTO THE TREASURY * * *.'

THE PROCEEDS FROM THE SALES OF THE TWO HORSES WERE MONEYS ACCRUING TO THE UNITED STATES. UNDER THE REGULATIONS, AS MUCH OF SAID PROCEEDS AS COVERED THE HANDLING CHARGES WAS FOR COVERING INTO THE TREASURY AT ONCE AS "MISCELLANEOUS RECEIPTS, SALE OF TRESPASSING STOCK.' THE BALANCES, REPRESENTING THE EXCESS OF SALES RECEIPTS OVER THE HANDLING CHARGES, WERE FOR DEPOSIT IN THE DISTRICT AGENT'S SPECIAL DEPOSIT ACCOUNT FOR ONE YEAR, DURING WHICH PERIOD THEY WERE SUBJECT TO REPAYMENT TO THE OWNERS OF THE HORSES UPON THE SUBMISSION OF PROOF OF OWNERSHIP. BUT UPON THE EXPIRATION OF THE YEAR WITHOUT SUCH PROOF HAVING BEEN ESTABLISHED, SAID BALANCES WERE ALSO FOR COVERING INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS.'

THE PROOF OF OWNERSHIP OF THE HORSES IN THE INSTANT CLAIMS HAVING BEEN ESTABLISHED WITHIN A YEAR FROM THE DATE OF THEIR SALE AS TRESPASSING STOCK, THE AMOUNTS INVOLVED BECAME LEGAL AND JUST CHARGES WHICH SHOULD HAVE BEEN PAID BEFORE THE TOTAL PROCEEDS OF SALE WERE COVERED INTO THE TREASURY AND THE PERMANENT ANNUAL APPROPRIATION "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND OVERED" IS AVAILABLE FOR PAYMENT OF THE AMOUNTS REPRESENTING THE BALANCES OF PROCEEDS OF SAID SALES THAT WERE ERRONEOUSLY COVERED INTO THE TREASURY AS HEREINBEFORE INDICATED.

UPON REVIEW THERE ARE CERTIFIED $33.90 DUE CLAIMANT HENRY WESTPHAL AND $23.50 DUE CLAIMANT B. O. PANNELL, PAYABLE FROM THE APPROPRIATION "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED, 1926.'