A-21771, APRIL 10, 1928, 7 COMP. GEN. 651

A-21771: Apr 10, 1928

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TELEPHONES - PRIVATE RESIDENCES THE USE OF APPROPRIATED INDIAN MONEYS OR TRIBAL FUNDS IS NOT AUTHORIZED FOR THE PAYMENT OF CHARGES FOR TELEPHONE EXCHANGE SERVICE IN THE PRIVATE RESIDENCES OF GOVERNMENT OFFICERS OR EMPLOYEES RESIDING IN GOVERNMENT QUARTERS ON INDIAN RESERVATIONS WHEREON AN OFFICE IS REGULARLY MAINTAINED FOR THE CONDUCT OF GOVERNMENT BUSINESS. PERTAINING TO HIS INDIAN AND SPECIAL DEPOSIT ACCOUNT WHEREIN CREDIT WAS DISALLOWED FOR $3.90. FOR WHICH THE MONTHLY EXCHANGE CHARGE OF 65 CENTS EACH WAS MADE. APPEAR TO HAVE BEEN THOSE THAT HAD BEEN INSTALLED IN THE PRIVATE RESIDENCE OR QUARTERS OF THE SUPERINTENDENT. CREDIT FOR THE PAYMENT FROM "INTEREST ON UMATILLA SCHOOL FUND" WAS DISALLOWED FOR THE REASON THAT THE PAYMENT WAS IN VIOLATION OF THE PROHIBITION CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 23.

A-21771, APRIL 10, 1928, 7 COMP. GEN. 651

TELEPHONES - PRIVATE RESIDENCES THE USE OF APPROPRIATED INDIAN MONEYS OR TRIBAL FUNDS IS NOT AUTHORIZED FOR THE PAYMENT OF CHARGES FOR TELEPHONE EXCHANGE SERVICE IN THE PRIVATE RESIDENCES OF GOVERNMENT OFFICERS OR EMPLOYEES RESIDING IN GOVERNMENT QUARTERS ON INDIAN RESERVATIONS WHEREON AN OFFICE IS REGULARLY MAINTAINED FOR THE CONDUCT OF GOVERNMENT BUSINESS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 10, 1928:

O. L. BABCOCK, SUPERINTENDENT AND SPECIAL DISBURSING AGENT, UMATILLA INDIAN AGENCY, PENDLETON, OREG., APPLIED FEBRUARY 8, 1928, FOR REVIEW OF SETTLEMENT K-19423-IN, DATED DECEMBER 23, 1927, PERTAINING TO HIS INDIAN AND SPECIAL DEPOSIT ACCOUNT WHEREIN CREDIT WAS DISALLOWED FOR $3.90, REPRESENTING PAYMENTS MADE TO PACIFIC TELEPHONE AND TELEGRAPH CO., OF PENDLETON, OREG., IN THE SUM OF $1.95 AS TELEPHONE EXCHANGE SERVICE FOR THE MONTH OF JUNE, 1927, FROM "INDIAN MONEYS, PROCEEDS OF LABOR," AND $1.95 FOR TELEPHONE EXCHANGE SERVICE FOR THE MONTH OF JULY, 1927, FROM "INTEREST ON UMATILLA SCHOOL FUND.'

THE THREE PHONES, FOR WHICH THE MONTHLY EXCHANGE CHARGE OF 65 CENTS EACH WAS MADE, APPEAR TO HAVE BEEN THOSE THAT HAD BEEN INSTALLED IN THE PRIVATE RESIDENCE OR QUARTERS OF THE SUPERINTENDENT, DEPUTY SPECIAL DISBURSING AGENT, AND SPECIAL OFFICER AT THE UMATILLA INDIAN AGENCY.

CREDIT FOR THE PAYMENT FROM "INTEREST ON UMATILLA SCHOOL FUND" WAS DISALLOWED FOR THE REASON THAT THE PAYMENT WAS IN VIOLATION OF THE PROHIBITION CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, WHEREIN IT IS PROVIDED THAT SUCH PAYMENTS SHALL NOT BE MADE FROM PUBLIC FUNDS. THE SIMILAR PAYMENT FROM "INDIAN MONEYS, PROCEEDS OF LABOR" WAS DISALLOWED FOR THE REASON THAT THE STATUTORY PROHIBITION WAS LIKEWISE APPLICABLE, NO SHOWING HAVING BEEN MADE THAT THE FUND USED IN THIS INSTANCE WAS DERIVED FROM A SCHOOL OR OTHER NONTRIBAL ACTIVITY. SEE ACT OF MAY 17, 1926, 44 STAT. 560, AND SECTION 27 OF THE ACT OF MAY 18, 1916, 39 STAT. 158.

IT IS CONTENDED THAT THE MAINTENANCE OF TELEPHONES IN THE RESIDENCES OF THE SUPERINTENDENT, THE DEPUTY SPECIAL DISBURSING AGENT, AND THE SPECIAL OFFICER WAS ESSENTIAL TO RENDER THE MOST EFFECTIVE SERVICE TO THE INDIANS FOR THE REASON THAT THE AGENCY OFFICE IS OPEN ONLY EIGHT HOURS EACH DAY FOR SIX DAYS A WEEK AND THAT NEITHER THE INDIANS OF THE RESERVATION NOR THE FARMERS LEASING THE INDIAN LANDS CONFINE THEIR BUSINESS DEALINGS WITH THE AGENCY TO THE OFFICE HOURS, BUT FREQUENTLY RESORT TO THE USE OF THE TELEPHONE AT ANY HOUR OF THE DAY OR NIGHT. IT IS FURTHER CONTENDED THAT UNDER THE CIRCUMSTANCES THE TELEPHONES LOSE THEIR IDENTITY AS PRIVATE TELEPHONES AND BECOME OFFICIAL PHONES NECESSARY FOR THE TRANSACTION OF GOVERNMENT BUSINESS.

SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, PROVIDES:

THAT NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS * * *

THE LANGUAGE OF THE SECTION QUOTED IS PLAIN AND COMPREHENSIVE AND HAS BEEN UNIFORMLY CONSTRUED IN A LONG LINE OF DECISIONS TO PROHIBIT THE FURNISHING AT PUBLIC EXPENSE OF PERSONAL TELEPHONE SERVICE TO A GOVERNMENT OFFICER OR EMPLOYEE IN HIS PRIVATE HOME OR QUARTERS. SEE 19 COMP. DEC. 198, 202, 212, AND 350; 21 ID. 248; 22 ID. 602, AND 4 COMP. GEN. 19 AND 891.

THE BUILDINGS OCCUPIED BY THE OFFICIAL AND EMPLOYEES ARE STATED TO BE GOVERNMENT BUILDINGS ON GOVERNMENT LAND AND AS SUCH ARE PUBLIC PROPERTY. HOWEVER, THE FACT THAT THE BUILDINGS ARE PUBLIC PROPERTY DOES NOT MAKE THEM ANY THE LESS PRIVATE RESIDENCES OR QUARTERS WHEN THEY ARE TURNED OVER TO GOVERNMENT OFFICERS AND EMPLOYEES FOR THE PRIVATE AND EXCLUSIVE PERSONAL USE OF THEMSELVES AND THEIR FAMILIES. IT HAS BEEN HELD THAT CALLING, OR EVEN USING, A ROOM IN A PRIVATE RESIDENCE AS AN "OFFICE," WHERE A REGULAR OFFICE IS ELSEWHERE AVAILABLE AND PROVIDED, WOULD NOT MAKE IT SUCH, AND THAT SUCH A TRANSACTION COULD BE REGARDED IN NO OTHER LIGHT THAN AS A PATENT ATTEMPT TO EVADE THE LAW. 19 COMP. DEC. 212.

THE PAYMENT MADE FROM "INTEREST ON UMATILLA SCHOOL FUND" WAS CLEARLY A PAYMENT FROM A PUBLIC FUND AND AS SUCH COMES WITHIN THE PROHIBITION AS TO TELEPHONE SERVICES IN PRIVATE RESIDENCES.

WITH REFERENCE TO THE PAYMENT MADE FROM "INDIAN MONEYS, PROCEEDS OF LABOR" IT IS NOT SHOWN, NOR ARE THERE ANY REASONABLE GROUNDS FOR AN ASSUMPTION FROM THE EVIDENCE SUBMITTED, THAT THE FUNDS USED TO MAKE THE PAYMENTS IN QUESTION WERE DERIVED FROM A SCHOOL OR OTHER NONTRIBAL ACTIVITY OVER WHICH THE SECRETARY OF THE INTERIOR HAS CONTROL, AS PROVIDED BY THE ACT OF MAY 17, 1926. IN VIEW OF THE PROHIBITION CONTAINED IN SECTION 27 OF THE ACT OF MAY 18, 1916, 39 STAT. 158, THAT MO MONEY SHALL BE EXPENDED FROM INDIAN TRIBAL FUNDS WITHOUT SPECIFIC APPROPRIATION EXCEPT FOR THE EQUALIZATION OF ALLOTMENTS, THE EDUCATION OF INDIAN CHILDREN, PER CAPITA AND OTHER PAYMENTS (SEE 6 COMP. GEN. 73) AND THE FACT THAT INDIAN TRIBAL FUNDS ARE IN THE STATUS OF PUBLIC FUNDS (DECISION A-9406, MAY 1, 1925), THE PAYMENTS FOR TELEPHONE SERVICES INSTALLED IN PRIVATE RESIDENCES FROM A FUND OTHER THAN THE EXCEPTED PORTION OF THE "INDIAN MONEYS, PROCEEDS OF LABOR," AS SPECIFIED IN THE ACT OF MAY 17, 1926, IN THE ABSENCE OF SPECIFIC AUTHORITY OF LAW, ARE UNAUTHORIZED. 6 COMP. GEN. 73.

ACCORDINGLY, IT MUST BE HELD THAT THE PAYMENTS FROM THE TWO FUNDS INVOLVED FOR TELEPHONE EXCHANGE SERVICE WERE MADE FROM PUBLIC FUNDS FOR PURPOSES PROHIBITED BY SECTION 7 OF THE ACT OF AUGUST 23, 1912, SUPRA, AND THEREFORE WERE UNAUTHORIZED. UPON REVIEW THE SETTLEMENT IS SUSTAINED.