A-20925, NOVEMBER 3, 1938, 18 COMP. GEN. 410

A-20925: Nov 3, 1938

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MAY NOT BE REFUNDED CLAIMANT WHERE THE AMOUNT INVOLVES AN ESTIMATE AND CLAIM IS NOT MADE UNTIL AFTER MORE THAN 20 YEARS OF DELAY. NOTWITHSTANDING THE ALLEGED SELF-EXECUTING RATE CHANGE PROVISIONS OF THE AGREEMENT WHERE RATE CHANGES ARE SUBSEQUENTLY MADE. 1938: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION YOUR REQUEST FOR REVIEW OF SETTLEMENT DATED FEBRUARY 5. THE SECRETARY OF AGRICULTURE IS SHOWN TO HAVE ISSUED CERTAIN REGULATIONS CHANGING THE BASIS OF COMPUTING THE RENTAL CHARGES FOR PERMITS OF THIS NATURE. YOU ARE UNDERSTOOD TO HAVE CONTINUED FOR MANY YEARS TO MAKE PAYMENTS PURSUANT TO THE OLD RATE SCHEDULE. SO FAR AS THE RECORD SHOWS IT WAS NOT UNTIL JANUARY 21. THAT ANY OBJECTION WAS RAISED OR ANY ALLEGATION MADE BY YOU THAT THE RATES SET FORTH IN CLAUSE 2 OF THE CONTRACT WERE NO LONGER APPLICABLE.

A-20925, NOVEMBER 3, 1938, 18 COMP. GEN. 410

VOLUNTARY PAYMENTS - NATIONAL FOREST PERMITS - DELAYED REFUND CLAIMS DIFFERENCE BETWEEN THE RENTAL VOLUNTARILY PAID, UNDER AN AGREEMENT WITH THE UNITED STATES FOR THE USE OF LANDS AND RIGHTS-OF-WAY AS A POWER DEVELOPMENT SITE IN A NATIONAL FOREST, AT THE RATE ESTABLISHED BY THE AGREEMENT AND THE RENTAL AS COMPUTED ON THE BASIS OF THE SUBSEQUENT CHANGE FOR PERMITS OF THIS NATURE BY REGULATION ISSUED PURSUANT TO AUTHORITY CREATED BY STATUTE, MAY NOT BE REFUNDED CLAIMANT WHERE THE AMOUNT INVOLVES AN ESTIMATE AND CLAIM IS NOT MADE UNTIL AFTER MORE THAN 20 YEARS OF DELAY, NOTWITHSTANDING THE ALLEGED SELF-EXECUTING RATE CHANGE PROVISIONS OF THE AGREEMENT WHERE RATE CHANGES ARE SUBSEQUENTLY MADE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SOUTHERN CALIFORNIA EDISON CO., LTD., NOVEMBER 3, 1938:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION YOUR REQUEST FOR REVIEW OF SETTLEMENT DATED FEBRUARY 5, 1938, WHICH DISALLOWED YOUR CLAIM FOR $12,373.24 REFUND OF ASSERTED OVERPAYMENTS UNDER POWER AGREEMENT APPROVED NOVEMBER 24, 1909, BETWEEN YOUR FIRM AND THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE.

CLAUSE 2 OF THE CITED POWER AGREEMENT STIPULATED FOR PAYMENT OF CERTAIN CHARGES FOR THE USE OF LANDS AND RIGHTS-OF-WAY TO BE USED AS A POWER DEVELOPMENT SITE IN THE SEQUOIA NATIONAL FOREST. CLAUSE 6, HOWEVER, PROVIDED THAT:

IF THE UNITED STATES SHALL HEREAFTER, FOR PERMITS OF THIS NATURE IN NATIONAL FORESTS, REDUCE THE GENERAL SCALE OF MAXIMUM RATES BELOW THOSE IN CLAUSE 2 HEREOF ABOVE PROVIDED FOR, OR SHALL WHOLLY ABOLISH CHARGES FOR PERMITS OF THIS NATURE, THEN AND THEREUPON THE CHARGES TO BE CALCULATED AND FIXED HEREUNDER, AS PROVIDED IN CLAUSE 2 HEREOF, SHALL BE REDUCED OR ABOLISHED IN LIKE DEGREE.

ON DECEMBER 14, 1915, THE SECRETARY OF AGRICULTURE IS SHOWN TO HAVE ISSUED CERTAIN REGULATIONS CHANGING THE BASIS OF COMPUTING THE RENTAL CHARGES FOR PERMITS OF THIS NATURE; HOWEVER, YOU ARE UNDERSTOOD TO HAVE CONTINUED FOR MANY YEARS TO MAKE PAYMENTS PURSUANT TO THE OLD RATE SCHEDULE; AND SO FAR AS THE RECORD SHOWS IT WAS NOT UNTIL JANUARY 21, 1936, THAT ANY OBJECTION WAS RAISED OR ANY ALLEGATION MADE BY YOU THAT THE RATES SET FORTH IN CLAUSE 2 OF THE CONTRACT WERE NO LONGER APPLICABLE. THAT DATE YOU ADVISED THE REGIONAL FORESTER AT SAN FRANCISCO THAT A CHANGE IN THE BASIS OF RENTAL CHARGES WAS DESIRED AND REQUESTED THAT THEY BE COMPUTED ACCORDING TO THE METHOD PROVIDED IN THE 1915 REGULATIONS. THIS REQUEST WAS GRANTED AND A MODIFICATION OF THE POWER AGREEMENT WAS APPROVED BY THE SECRETARY OF AGRICULTURE ON MARCH 1, 1937.

IT APPEARS TO BE YOUR CONTENTION THAT THE REGULATION OF 1915 OPERATED TO AUTOMATICALLY CHANGE THE RATE BASE AND THAT YOU ARE ACCORDINGLY NOW ENTITLED TO A REFUND OF THE DIFFERENCE BETWEEN THE AMOUNT PAID AT THE OLD RATE DURING THESE YEARS AND THE AMOUNT WHEN COMPUTED PURSUANT TO THE RATES PROVIDED IN THE 1915 REGULATION. YOU CLAIM THIS DIFFERENCE IS $12,373.24 FOR THE PERIOD DECEMBER 15, 1915, TO AUGUST 31, 1935. THE RECORD SHOWS THAT THIS AMOUNT IS MERELY AN ESTIMATE OF THE DIFFERENCE. THUS AFTER MORE THAN 20 YEARS OF DELAY, DURING WHICH TIME YOU APPARENTLY MADE PAYMENTS AT THE OLD RATE WITHOUT QUESTION THAT IT WAS INCORRECT, YOU ASK THAT YOU NOW BE REIMBURSED IN THE ESTIMATED AMOUNT OF THE DIFFERENCE BETWEEN THE RENTAL AT THE OLD AND NEW RATES.

THE RECORD CONTAINS NO INDICATION THAT YOU DID NOT KNOW, OR IN THE REASONABLE EXERCISE OF DILIGENCE SHOULD NOT HAVE KNOWN, OF THE CHANGE IN RATES BROUGHT ABOUT BY THIS 1915 REGULATION. AS A MATTER OF FACT, THE REGULATIONS PROVIDING CHANGE IN RATES WERE PROMULGATED PURSUANT TO AUTHORITY CREATED BY STATUTE AND IT IS WELL SETTLED THAT SUCH REGULATIONS HAVE THE FORCE AND EFFECT OF LAW. MARYLAND CASUALTY CO. V. UNITED STATES, 251 U.S. 342, 349, AND CASES THERE CITED. YOU ARE, OF COURSE, CHARGED WITH KNOWLEDGE OF WHAT THE LAW PROVIDES.

BUT AS ABOVE NOTED, IN SPITE OF THIS ACTUAL OR IMPUTED KNOWLEDGE OF THE CHANGE YOU CONTINUED VOLUNTARILY TO PAY AT THE OLD RATE. IN THE CASE OF SYNTHETIC PATENTS CO. V. SUTHERLAND, 22 F./2D) 494, 495, THE COURT STATED:

* * * WITHOUT PASSING UPON THE SUFFICIENCY OF THE PROOF, WHICH IS HERE CONTESTED, AS TO WHETHER THERE WERE, IN POINT OF FACT, OVERPAYMENTS MADE, AND ACCEPTING THE FINDINGS OF THE MASTER THAT THEY WERE MADE, IT IS APPARENT THAT SUCH REMITTANCES WERE VOLUNTARY PAYMENTS. THERE WAS NO ALLEGATION IN THE COMPLAINT, NOR IS THERE EVIDENCE IN THE RECORD, TO SUPPORT A CLAIM THAT SUCH PAYMENTS WERE MADE THROUGH MISTAKE, FRAUD, OR DURESS. * * * OVERPAYMENTS VOLUNTARILY MADE ARE NOT RECOVERABLE. IT MUST BE SHOWN THAT THEY WERE MADE THROUGH A MISTAKE OF FACT, FRAUD, OR DURESS. A PARTY MAY NOT, BY DIRECT ACTION OR BY WAY OF SET-OFF OR COUNTERCLAIM, RECOVER MONEY VOLUNTARILY PAID WITH THE FULL KNOWLEDGE OF ALL THE FACTS, WITHOUT PROOF OF FRAUD, DURESS, OR MISTAKE, ALTHOUGH NO OBLIGATION TO MAKE SUCH PAYMENT EXISTS. * * *

SEE, ALSO, SHELL OIL CO. V. CY MILLER, INC., 53 F/2D) 74; BENTON HARBOR- ST. JOSEPH GAS AND FUEL CO. V. MIDDLE WEST COAL CO., 271 FED. 216; SWIFT AND CO. V. COLUMBIA RAILWAY GAS AND ELECTRIC CO., 17 F./2D) 46. FURTHERMORE, IT IS WELL SETTLED THAT "MISTAKE, IN ORDER TO BE A GROUND OF RECOVERY, MUST BE A MISTAKE OF FACT, AND NOT OF LAW.' LAMBORN V. COUNTY COMMISSIONERS, 97 U.S. 181, 185. EVEN WHEN PAID UNDER PROTEST A VOLUNTARY PAYMENT CANNOT BE RECOVERED. IGNATOVIZ V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, 16 FED.SUPP. 764.

IN VIEW OF THE ABOVE, IT BECOMES UNNECESSARY TO CONSIDER YOUR CONTENTION THAT CLAUSE 6 OF THE CONTRACT WAS SELF-EXECUTING AND THAT THE RATE STIPULATED IN THE 1915 REGULATION AUTOMATICALLY WENT INTO EFFECT WHEN SAID REGULATION WAS PROMULGATED.