A-19942, OCTOBER 5, 1927, 7 COMP. GEN. 269

A-19942: Oct 5, 1927

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IS AVAILABLE FOR THE PAYMENT IN ADVANCE OF FILING FEES. 1927: I HAVE YOUR LETTER OF SEPTEMBER 20. IT IS NECESSARY IN MANY JURISDICTIONS TO PAY FILING FEES. THE PERTINENT PROVISION IN SECTION 21 OF THE AFOREMENTIONED ACT READS AS FOLLOWS: "AUTHORITY IS HEREBY GRANTED FOR THE PAYMENT OF ANY COURT OR OTHER EXPENSES INCIDENT TO ANY INVESTIGATION OR COURT PROCEEDING FOR THE APPOINTMENT OR REMOVAL OF ANY GUARDIAN. WHEN SUCH PAYMENT IS AUTHORIZED BY THE DIRECTOR.'. YOUR DECISION IS REQUESTED AS TO WHETHER THIS BUREAU MAY PAY SUCH FEES AND COURT COSTS IN ADVANCE OF THE SERVICES TO BE RENDERED UNDER THE AUTHORITY CONTAINED IN THE ACT ABOVE CITED. YOUR CONSIDERATION OF THIS CASE IT IS REQUESTED THAT YOU BEAR IN MIND THE FACT THAT.

A-19942, OCTOBER 5, 1927, 7 COMP. GEN. 269

PAYMENTS, ADVANCE - COURT COSTS, ETC. - APPOINTMENT OR REMOVAL OF GUARDIANS FOR VETERANS' BUREAU BENEFICIARIES AND COMMITMENT OF VETERANS TO HOSPITALS FOR THE INSANE THE APPROPRIATION "MEDICAL AND HOSPITAL SERVICES" CONTAINED IN THE ACT OF FEBRUARY 11, 1927, 44 STAT. 1084, PROVIDING, PURSUANT TO THE PROVISIONS OF SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, FOR THE PAYMENT OF COURT AND OTHER EXPENSES INCURRED IN CONNECTION WITH THE APPOINTMENT OR REMOVAL OF GUARDIANS FOR VETERANS' BUREAU BENEFICIARIES, AS WELL AS COSTS AND EXPENSES OF OTHER COURT PROCEEDINGS NECESSARY FOR THE COMMITMENT, ETC., OF VETERANS TO HOSPITALS FOR THE CARE AND TREATMENT OF THE INSANE, IS AVAILABLE FOR THE PAYMENT IN ADVANCE OF FILING FEES, WITNESS FEES, COURT COSTS, ETC., IN JURISDICTIONS WHERE THE STATE LAWS SO REQUIRE, NOTWITHSTANDING THE PROVISIONS OF SECTION 3648 OF THE REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, OCTOBER 5, 1927:

I HAVE YOUR LETTER OF SEPTEMBER 20, 1927, AS FOLLOWS:

IT HAS DEVELOPED THAT IN INCURRING EXPENSES UNDER THE AUTHORITY CONTAINED IN SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED (44 STAT. 790, 792), IT IS NECESSARY IN MANY JURISDICTIONS TO PAY FILING FEES, WITNESS FEES, AND COURT COSTS IN ADVANCE OF THE SERVICES RENDERED, THIS BEING A REQUIREMENT OF THE STATE LAW. THE PERTINENT PROVISION IN SECTION 21 OF THE AFOREMENTIONED ACT READS AS FOLLOWS:

"AUTHORITY IS HEREBY GRANTED FOR THE PAYMENT OF ANY COURT OR OTHER EXPENSES INCIDENT TO ANY INVESTIGATION OR COURT PROCEEDING FOR THE APPOINTMENT OR REMOVAL OF ANY GUARDIAN, CURATOR, CONSERVATOR, OR OTHER PERSON LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE, OR IN CONNECTION WITH THE ADMINISTRATION OF SUCH ESTATES BY SUCH FIDUCIARIES, WHEN SUCH PAYMENT IS AUTHORIZED BY THE DIRECTOR.'

THE APPROPRIATION ACT FOR THIS BUREAU FOR THE FISCAL YEAR 1928 (PUBLIC, NO. 600, SIXTY-NINTH CONGRESS) PROVIDES FOR THE PAYMENT OUT OF THE APPROPRIATION,"MEDICAL AND HOSPITAL SERVICES," OF ,COURT OR OTHER EXPENSES INCIDENT TO ANY INVESTIGATION OR COURT PROCEEDINGS FOR THE APPOINTMENT OR REMOVAL OF ANY GUARDIAN, CURATOR, CONSERVATOR, OR OTHER PERSON LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE, OR IN CONNECTION WITH THE ADMINISTRATION OF SUCH ESTATE BY SUCH FIDUCIARIES, INCLUDING COURT COSTS AND OTHER EXPENSES INCIDENT TO PROCEEDINGS HERETOFORE OR HEREAFTER TAKEN FOR COMMITMENT OF MENTALLY INCOMPETENT PERSONS TO HOSPITALS FOR THE CARE AND TREATMENT OF THE INSANE.'

IN VIEW OF THE REQUIREMENT OF THE STATE LAW THAT FILING FEES, WITNESS FEES, AND COURT COSTS BE PAID IN ADVANCE, YOUR DECISION IS REQUESTED AS TO WHETHER THIS BUREAU MAY PAY SUCH FEES AND COURT COSTS IN ADVANCE OF THE SERVICES TO BE RENDERED UNDER THE AUTHORITY CONTAINED IN THE ACT ABOVE CITED, OR WHETHER SUCH ACTION WOULD CONSTITUTE A VIOLATION OF SECTION 3648 OF THE UNITED STATES REVISED STATUTES PROHIBITING ADVANCE PAYMENTS. YOUR CONSIDERATION OF THIS CASE IT IS REQUESTED THAT YOU BEAR IN MIND THE FACT THAT, ACCORDING TO INFORMATION FURNISHED CENTRAL OFFICE FROM CERTAIN OFFICES IN THE FIELD, IT APPEARS THAT WHERE THE STATE LAWS REQUIRE SUCH PAYMENTS TO BE MADE IN ADVANCE THE COUNTY CLERKS ARE UNWILLING TO ACT WITHOUT RECEIVING SUCH ADVANCE PAYMENTS. IN THE EVENT YOU FIND THAT THE PAYMENT OF SUCH FEES AND COURT COSTS IN ADVANCE BY THIS BUREAU WOULD CONSTITUTE A VIOLATION OF SECTION 3648 OF THE REVISED STATUTES, YOUR DECISION IS FURTHER REQUESTED AS TO WHETHER OR NOT, IN THE EVENT A BUREAU EMPLOYEE PERSONALLY ADVANCES FUNDS FOR THE PAYMENT THEREOF, REIMBURSEMENT MAY BE MADE BY THE BUREAU TO THAT EMPLOYEE AFTER THE SERVICES HAVE BEEN PERFORMED. IN CONNECTION WITH THIS LATTER QUESTION, ATTENTION IS INVITED TO DECISIONS IN 2 COMP. GEN. 581 AND 24 COMP. DEC. 155, 158.

SECTION 3648, REVISED STATUTES, PROVIDES THAT NO ADVANCE OF PUBLIC MONEYS SHALL BE MADE IN ANY CASE WHATEVER AND THAT IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY OF ARTICLES OF ANY DESCRIPTION FOR THE USE OF THE UNITED STATES PAYMENT SHOULD NOT EXCEED THE VALUE OF THE SERVICES RENDERED OR THE ARTICLES ACTUALLY DELIVERED PREVIOUS TO SUCH PAYMENT.

THE PROVISION IN THIS SECTION THAT NO ADVANCE OF PUBLIC MONEYS SHALL BE MADE IN ANY CASE WHATEVER WOULD APPEAR TO BE BROAD ENOUGH TO INCLUDE ALL CASES IN WHICH IS INVOLVED A PAYMENT IN ADVANCE OF THE PERFORMANCE OF THE SERVICE FOR WHICH THE PAYMENT IS MADE. HOWEVER, THE APPROPRIATION "MEDICAL AND HOSPITAL SERVICES" AS MADE BY THE ACT OF FEBRUARY 11, 1927, 44 STAT. 1084, FOR THE FISCAL YEAR 1928, PROVIDES SPECIFICALLY FOR THE PAYMENT OF COURT AND OTHER EXPENSES INCIDENT TO ANY INVESTIGATION OR COURT PROCEEDING FOR THE APPOINTMENT OR REMOVAL OF ANY GUARDIAN, INCLUDING COURT COSTS AND OTHER EXPENSES INCIDENT TO PROCEEDINGS THERETOFORE OR THEREAFTER TAKEN FOR COMMITMENT OF MENTALLY INCOMPETENT PERSONS TO HOSPITALS FOR THE CARE AND TREATMENT OF THE INSANE.

IT MAY BE ASSUMED THAT THE APPROPRIATION WAS MADE WITH KNOWLEDGE OF THE FACT THAT IN SOME JURISDICTIONS AT LEAST THE STATE LAWS REQUIRE PAYMENT IN ADVANCE OF CERTAIN FEES AND COURT COSTS; AND IT IS NOT TO BE ASSUMED THAT THE INTERVENTION PROVIDED FOR UNDER SECTION 21 OF THE WORLD WAR VETERANS' ACT AS AMENDED, WAS INTENDED TO BE AUTHORIZED ONLY IN JURISDICTIONS, IF ANY, WHERE NO FEES OR COURT COSTS ARE REQUIRED TO BE PAID OR DEPOSITED IN ADVANCE.

IT MUST HAVE BEEN THE INTENTION OF THE CONGRESS IN PROVIDING FOR THE INTERVENTION OF THE DIRECTOR AS AUTHORIZED IN THE SAID SECTION 21, AS AMENDED, AND IN MAKING THE APPROPRIATION, SUPRA, THAT PAYMENT OF THE COURT COSTS SHOULD BE MADE IN ACCORDANCE WITH THE PRACTICE PREVAILING IN THE STATES WHERE THE SUITS OR LEGAL PROCEEDINGS HAD TO BE INSTITUTED NOTWITHSTANDING THE PROVISION OF SECTION 3648, REVISED STATUTES. ACCORDINGLY, THE AUTHORIZATION AND THE APPROPRIATION MAY BE REGARDED AS EXEMPTING THESE COURT COSTS FROM THE INHIBITION OF THE PROVISIONS OF THE SAID SECTION 3648. OTHERWISE, THE CLEARLY ANNOUNCED PURPOSE OF THE SUBSEQUENT ENACTMENTS WOULD BE DEFEATED.

ANSWERING SPECIFICALLY THE QUESTION PRESENTED, I HAVE TO ADVISE THAT IN JURISDICTIONS WHERE PAYMENT OR DEPOSIT OF FILING FEES, WITNESS FEES, COURT COSTS, ETC., IS REQUIRED TO BE MADE IN ADVANCE, SUCH PAYMENT OR DEPOSIT MAY BE SO MADE UNDER THE APPROPRIATION HEREIN MENTIONED, NOTWITHSTANDING THE PROVISIONS OF SECTION 3648, REVISED STATUTES.