A-25286, SEPTEMBER 8, 1933, 13 COMP. GEN. 77

A-25286: Sep 8, 1933

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THE ONLY FUNDS AVAILABLE FOR SUCH PAYMENTS ARE THOSE TO THE CREDIT OF THE SPECIAL FUND "OREGON AND CALIFORNIA LAND-GRANT FUND" ESTABLISHED UNDER THE ACT OF JUNE 9. AS FOLLOWS: REFERENCE IS HAD TO MY LETTER DATED APRIL 13 AND YOUR REPLY THERETO DATED APRIL 28. THE LAST PARAGRAPH OF YOUR LETTER READS AS FOLLOWS: "IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THE TAX CLAIMS OF ALL THE COUNTIES HAVE NOT YET BEEN RECEIVED. THE CLAIMS OF ONLY FOUR OF THE COUNTIES CONCERNED HAVE BEEN RECEIVED. THAT THE TOTAL TAX CLAIMS PAID FOR THE YEAR 1931 IS THE BASIS OF AN ESTIMATE OF WHAT THE CLAIMS MAY BE FOR THE YEAR 1932. WHICH INDICATES THAT THE FUNDS AVAILABLE WILL BE INSUFFICIENT TO MEET ALL THE 1932 CLAIMS IN FULL.

A-25286, SEPTEMBER 8, 1933, 13 COMP. GEN. 77

APPROPRIATIONS - PAYMENTS TO CERTAIN COUNTIES IN OREGON AND WASHINGTON IN LIEU OF TAXES SECTION 3 OF THE ACT OF JULY 13, 1926, 44 STAT. 916, PROVIDING THAT AFTER 1926 THE SECRETARY OF THE TREASURY, UPON THE ORDER OF THE SECRETARY OF THE INTERIOR, SHALL PAY TO THE SEVERAL COUNTIES AMOUNTS OF MONEY EQUAL TO THE TAXES UPON REVESTED LANDS WITHIN SUCH COUNTIES, DOES NOT MAKE AN APPROPRIATION FROM THE GENERAL FUND OF THE TREASURY, AND THE ONLY FUNDS AVAILABLE FOR SUCH PAYMENTS ARE THOSE TO THE CREDIT OF THE SPECIAL FUND "OREGON AND CALIFORNIA LAND-GRANT FUND" ESTABLISHED UNDER THE ACT OF JUNE 9, 1916, 39 STAT. 222. SINCE FOR THE CALENDAR YEAR 1932 FUNDS AVAILABLE IN THE SPECIAL FUND COVER ONLY APPROXIMATELY 50 PERCENT OF THE CLAIMS OF THE SEVERAL COUNTIES FOR THAT YEAR, PRO RATA PAYMENTS MAY BE MADE TO SAID COUNTIES OF ONLY 50 PERCENT OF THE AMOUNT OF EACH CLAIM, THE PAYMENT OF THE BALANCE TO BE FOR CONSIDERATION AFTER A SUFFICIENT AMOUNT THEREFOR HAS ACCUMULATED IN THE SPECIAL FUND OR THE CONGRESS MAKES AVAILABLE OTHER FUNDS FOR THE PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 8, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 11, 1933, AS FOLLOWS:

REFERENCE IS HAD TO MY LETTER DATED APRIL 13 AND YOUR REPLY THERETO DATED APRIL 28, A-25286, REGARDING THE PAYMENTS TO 18 COUNTIES IN THE STATE OF OREGON UNDER THE ACT OF JULY 13, 1926 (44 STAT. 915).

THE LAST PARAGRAPH OF YOUR LETTER READS AS FOLLOWS:

"IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THE TAX CLAIMS OF ALL THE COUNTIES HAVE NOT YET BEEN RECEIVED, BUT THE CLAIMS OF ONLY FOUR OF THE COUNTIES CONCERNED HAVE BEEN RECEIVED, AND THAT THE TOTAL TAX CLAIMS PAID FOR THE YEAR 1931 IS THE BASIS OF AN ESTIMATE OF WHAT THE CLAIMS MAY BE FOR THE YEAR 1932, WHICH INDICATES THAT THE FUNDS AVAILABLE WILL BE INSUFFICIENT TO MEET ALL THE 1932 CLAIMS IN FULL. THE ESTIMATED TOTAL OF THE TAX CLAIMS WOULD BE NO AUTHORITY TO MAKE A PAYMENT IN WHOLE OR IN PART TO THE COUNTIES WHOSE CLAIMS HAVE BEEN RECEIVED. IF IT IS BELIEVED THAT THERE WILL BE AN INSUFFICIENCY OF FUNDS FOR PAYMENT OF ALL IN FULL, THEN NO PAYMENTS SHOULD BE MADE UNTIL THE CLAIMS OF ALL COUNTIES HAVE BEEN RECEIVED AND THE PROPORTION OF THE FUNDS IN HAND TO THE CLAIM BE ESTABLISHED. IF THEN THERE APPEARS AN INSUFFICIENCY OF FUNDS TO PAY ALL COUNTIES IN FULL, THE MATTER MAY BE SUBMITTED HERE, WHAT PAYMENT, IF ANY, MAY BE MADE TO THE COUNTIES RESPECTIVELY.'

ALL OF THE CLAIMS HAVE NOW BEEN RECEIVED. LISTED BELOW IN PARALLEL COLUMNS ARE THE AMOUNTS CLAIMED BY EACH COUNTY AND THOSE FOUND TO BE DUE BY THE DEPARTMENT, TOGETHER WITH REDUCTIONS OR ADDITIONS MADE BY REASON OF ERRORS DISCOVERED IN AUDITING THE CLAIMS.

TABLE

COUNTY AMOUNT CLAIMED AMOUNT DUE DIFFERENCE BENTON ----- ------------ $18,893.07 $18,820.00 $73.07 CLACKAMAS -------- ------ 31,301.81 31,467.38 165.57 COLUMBIA ---------------- 7,083.11 7,036.68 46.43 COOS ------------ -------- 32,141.77 29,917.83 2,223.94 CURRY ------------------- 2,886.78 2,886.78 -------- DOUGLAS ----------------- 129,747.00 129,285.03461.97 JACKSON ----------------- 69,218.84 69,174.11 44.73 JOSEPHINE ------------ --- 43,164.82

42,971.30 193.52 KLAMATH ----------------- 7,505.46 7,505.49 .03 LANE --- ----------------- 95,461.84 95,242.63 219.21 LINCOLN ----------------- 3,892.81

3,777.74 115.07 LINN -------------------- 16,834.32 16,834.31 .01 MARION ------------------ 6,283.92 6,197.05 86.87 MULTNOMAH --------------- 2,617.92

2,617.92 -------- POLK -------------------- 10,778.63 10,863.29 84.66 TILLAMOOK --------------- 6,512.33 6,511.18 1.15 WASHINGTON -------------- 2,408.48 2,398.13 10.35 YAMHILL ----------------- 5,203.11 5,104.28 98.83

THE TREASURY DEPARTMENT REPORTS A BALANCE IN THE FUND FROM WHICH PAYMENTS HAVE HERETOFORE BEEN MADE OF $263,467.08 AS OF JULY 31. THE TOTAL AMOUNT CLAIMED BY THE SEVERAL COUNTIES IN LIEU OF TAXES FOR THE YEAR 1932, PAYABLE IN 1933, IS $491,936.02; AND THE AMOUNT FOUND TO BE DUE BY THIS DEPARTMENT IS $488,611.13, A DIFFERENCE OF $3,324.89.

THE WHOLE MATTER IS AGAIN SUBMITTED TO YOU FOR A DECISION AS TO WHAT PAYMENTS, IF ANY, SHOULD BE MADE TO THE COUNTIES UNDER SAID ACT OF JULY 13, 1926.

SUBSEQUENT TO MY LETTER TO YOU OF APRIL 28, 1933, THERE WERE SUBMITTED BY REPRESENTATIVES OF THE COUNTIES INVOLVED TWO MEMORANDUM BRIEFS CONTENDING THAT UNDER THE ACT OF JULY 13, 1926, 44 STAT. 915, THE ANNUAL PAYMENTS TO THE COUNTIES SUBSEQUENT TO 1926 DID NOT DEPEND UPON THE AVAILABILITY OF FUNDS IN THE OREGON AND CALIFORNIA LAND-GRANT FUND BUT THAT SAID ACT OF 1926 CONTEMPLATES THAT SUCH PAYMENTS SHOULD BE MADE FROM FUNDS TAKEN FROM THE GENERAL FUND OF THE TREASURY AND SUBSEQUENTLY CHARGED TO THE LAND- GRANT FUND AND THE TREASURY REIMBURSED. IN OTHER WORDS, THE BRIEFS REFERRED TO QUESTIONED THE CORRECTNESS OF THE HOLDING IN THE DECISION OF THIS OFFICE UNDER DATE OF DECEMBER 12, 1928, TO THE SECRETARY OF THE TREASURY, THAT THE INDEFINITE APPROPRIATION MADE BY SECTION 1 OF THE ACT APPLIED ONLY TO THE YEARS FROM 1916 TO 1926 AND THAT FOR THE YEAR BEGINNING WITH 1927 THE ONLY FUNDS AVAILABLE FOR THESE PAYMENTS IN LIEU OF TAXES WERE THOSE IN THE LAND-GRANT FUND. IT IS CONTENDED ON BEHALF OF THE COUNTIES THAT WHILE SECTION 3 OF THE ACT OF 1926 COVERING THE PAYMENTS FOR THE YEARS BEGINNING 1927 DOES NOT CONTAIN THE DIRECTION TO PAY "OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED," SUCH WORDS MUST BE IMPLIED IF THE PURPOSE OF THE ACT IS TO BE CARRIED INTO EFFECT AS INTENDED. WITH RESPECT TO THE INTENT OF THE CONGRESS, PARTICULAR STRESS IS LAID UPON THE STATEMENT IN THE REPORT OF BOTH HOUSES WHEN THE BILL, WHICH BECAME THE LAW OF 1926, WAS PENDING, AS FOLLOWS:

THE BILL DOES NOT PROPOSE THAT THE GOVERNMENT SHALL PAY THE COUNTIES ANY MONEYS IN LIEU OF TAXES ON LANDS PUBLICLY HELD. IT DOES PROPOSE IN LIEU OF THE UNFORSEEN AND DISTRESSING CONDITIONS THAT HAVE ARISEN AND NOW EXIST BY REASON OF THE DELAYS IN THE DISPOSITION OF THE LANDS AND TIMBER CONTEMPLATED IN THE REVESTMENT ACT BUT NOT REALIZED, THAT THE GOVERNMENT ADVANCES NOW THE AMOUNT OF TAXES THAT WOULD HAVE ACCRUED ON THE LANDS FOR THE YEARS 1916-1926, INCLUSIVE, HAD THEY NOT BEEN REVESTED, AND FOR SUBSEQUENT YEARS UNTIL THE COUNTIES HAVE RECEIVED THE 25 PERCENT COMING TO THEM UNDER THE REVESTMENT ACT, OR UNTIL THE SALES HAVE BEEN MADE TO SUCH AN EXTENT THAT THE YEARLY DISTRIBUTION TO THE COUNTIES PRACTICALLY EQUALS THE FORMER TAXES COLLECTED THEREFROM. THE BILL WILL NOT GIVE TO COUNTIES ANY MORE MONEY THAN THE REVESTING ACT PROVIDES, BUT IT DOES MAKE THE MONEY AVAILABLE BEFORE THE SALES OCCUR.

THE CONTENTIONS ON BEHALF OF THE COUNTIES HAVE BEEN GIVEN CAREFUL CONSIDERATION, BUT IT IS NOT BELIEVED THE ARGUMENTS PRESENTED WOULD JUSTIFY A DIFFERENT CONCLUSION IN THE MATTER THAN THAT REACHED IN THE PREVIOUS DECISION. THERE IS NOTHING IN THE STATEMENT QUOTED, SUPRA, SHOWING THAT IT WAS THE INTENT TO CHARGE THE GENERAL FUND OF THE TREASURY FOR THE YEARS SUBSEQUENT TO 1926. THE ABOVE QUOTED STATEMENT IS NOT INCONSISTENT WITH THE VIEW THAT UP TO AND INCLUDING 1926THE FUNDS NECESSARILY WOULD BE TAKEN FROM THE GENERAL FUND OF THE TREASURY AS SPECIFICALLY PROVIDED IN SECTION 1 OF THE ACT AND THAT WITH RESPECT TO SUBSEQUENT YEARS THE NECESSARY FUNDS WOULD BE APPROPRIATED THEREAFTER FROM TIME TO TIME IN THE USUAL WAY IN THE EVENT THE AMOUNT IN THE LAND-GRANT FUND SHOULD BE INSUFFICIENT FOR THAT PURPOSE. HOWEVER, NOTWITHSTANDING ANY STATEMENT MADE WHILE THE BILL WAS PENDING, THE TERMS OF THE ACT ITSELF MUST BE GIVEN CONSIDERATION IN THE LIGHT OF THE GENERAL LAWS APPLICABLE IN CONNECTION WITH MAKING APPROPRIATIONS FROM THE GENERAL FUND OF THE TREASURY.

SECTION 1 OF THE ACT PROVIDES IN SPECIFIC TERMS THAT THE TREASURER OF THE UNITED STATES SHALL PAY TO THE SEVERAL COUNTIES "OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, AMOUNTS OF MONEY EQUAL TO THE TAXES THAT WOULD HAVE ACCRUED AGAINST SAID LANDS FOR THE YEARS 1916 TO 1926, INCLUSIVE, IF THE LANDS HAD REMAINED PRIVATELY OWNED AND TAXABLE.' WHILE THE WORD ,APPROPRIATION" IS NOT USED IN THIS SECTION, THE DIRECTION TO PAY "OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED" WAS TANTAMOUNT TO DECLARING AN APPROPRIATION TO BE MADE FOR THAT PURPOSE. HAS BEEN UNIFORMLY HELD THAT A SPECIFIC DIRECTION TO PAY AND A DESIGNATION OF THE FUNDS TO BE USED FOR THE PURPOSE DO MAKE AN APPROPRIATION.

IN SECTION 3 OF THE ACT IT IS PROVIDED THAT ON OR BEFORE THE FIRST DAY OF OCTOBER EACH YEAR AFTER 1926, THE SECRETARY OF THE TREASURY, UPON THE ORDER OF THE SECRETARY OF THE INTERIOR, SHALL PAY TO THE SEVERAL COUNTIES AMOUNTS OF MONEY EQUAL TO THE TAXES UPON SAID LANDS WITHIN SUCH COUNTIES, TO BE ASCERTAINED, COMPUTED, AND REPORTED IN THE SAME MANNER AS FOR THE PRECEDING YEARS, UNTIL ALL CHARGES AGAINST SAID OREGON AND CALIFORNIA LAND -GRANT FUND SHALL HAVE BEEN LIQUIDATED AND THE SAID FUND SHOWS A CREDIT BALANCE AS AVAILABLE FOR DISTRIBUTION UNDER SECTION 10 OF THE ACT OF JUNE 9, 1916. WHILE THIS SECTION CONTAINS A DIRECTION TO PAY, NO FUNDS ARE PROVIDED THEREFOR; AND, IN THIS CONNECTION, IT MAY BE STATED THAT THE CONTENTION ON BEHALF OF THE COUNTIES THAT THERE ARE MADE AVAILABLE UNDER THIS SECTION NEITHER FUNDS UNDER THE GENERAL FUND OF THE TREASURY NOR UNDER THE LAND-GRANT FUND IS CORRECT. HOWEVER, IT IS PROVIDED IN THIS SECTION AND IN SECTION 4 THAT THE PAYMENTS MADE UNDER THE ACT OF 1926 SHOULD BE CHARGED TO THE LAND-GRANT FUND; AND IN ORDER TO GIVE EFFECT TO THE PROVISIONS OF SECTION 3 THIS OFFICE HELD, IN THE DECISION OF 1928, SUPRA, THAT THE LAND-GRANT FUND COULD BE USED FOR PAYMENT SUBSEQUENT TO 1926.

I CANNOT AGREE WITH THE CONTENTION ON BEHALF OF THE COUNTIES THAT SECTION 3 OF THE ACT OF 1926 MAKES AN APPROPRIATION FROM THE GENERAL FUND OF THE TREASURY. SECTION 9 OF THE ACT OF JUNE 30, 1906, 34 STAT. 764, PROVIDES THAT NO ACT OF CONGRESS SHALL BE CONSTRUED TO MAKE AN APPROPRIATION OUT OF THE TREASURY OF THE UNITED STATES "UNLESS SUCH ACT SHALL, IN SPECIFIC TERMS, DECLARE AN APPROPRIATION TO BE MADE.' IN THE CONSTRUCTION OF THIS PROVISION OF LAW IT HAS BEEN HELD CONSISTENTLY THAT THERE MUST BE SPECIFIC LANGUAGE USED IN AN ACT TO MAKE AN APPROPRIATION BEFORE IT CAN BE CONSTRUED AS DOING SO. NO SUCH LANGUAGE WAS CONTAINED IN THE PROVISIONS OF SECTION 3 OF THE ACT OF 1926. THE SEVERAL DECISIONS OF THE ACCOUNTING OFFICERS CITED ON BEHALF OF THE COUNTIES SHOWING THAT NO PARTICULAR WORDS ARE NECESSARY TO MAKE AN APPROPRIATION, PURSUANT TO THE PROVISIONS OF THE ACT OF 1906, HAVE BEEN DULY CONSIDERED, BUT IN ALL SUCH CASES IN WHICH THE DOUBTFUL LANGUAGE IN AN ACT OF CONGRESS WAS CONSTRUED TO MAKE AN APPROPRIATION IT WAS CONSIDERED BY THE ACCOUNTING OFFICERS THAT SUCH ACTION OR HOLDING WAS NECESSARY TO GIVE EFFECT TO THE PLAIN TERMS OF THE LEGISLATION ENACTED BY THE CONGRESS. IN THE PRESENT MATTER THE LAW IN QUESTION CONTAINED VARIOUS PROVISIONS AS TO WHAT SHOULD BE DONE IN CONNECTION WITH THE FUNDS COLLECTED FOR THE CREDIT OF THE OREGON AND CALIFORNIA LAND-GRANT FUND AND, ALSO, APPROPRIATED SPECIFICALLY FUNDS FOR THE PAYMENT OF MONEYS IN LIEU OF TAXES TO THE SEVERAL COUNTIES IN OREGON AND WASHINGTON FOR THE YEARS FROM 1916 TO 1926.

THE PROVISIONS IN SECTION 3 OF THE ACT COVERING THE YEARS SUBSEQUENT TO 1926 EVIDENTLY WERE INTENDED TO BE CONSIDERED AS A SEPARATE MATTER; AND, WHILE THE PROVISIONS OF THIS SECTION MUST BE GIVEN EFFECT, THAT WAS DONE BY THE HOLDING THAT THE FUNDS IN THE LAND-GRANT FUND COULD BE USED TO MAKE THE PAYMENTS DIRECTED BY THE SECTION PRIOR TO THE AVAILABILITY OF SUCH FUNDS FOR DISTRIBUTION UNDER THE PRIOR LAW OF 1916. FURTHERMORE, EVEN IF IT HAD BEEN KNOWN AT THAT TIME THAT SUCH FUND WOULD NOT BE SUFFICIENT TO CONTINUE SUCH PAYMENTS FOR SUBSEQUENT YEARS, THERE WAS NO NECESSITY AT THAT TIME TO MAKE AN APPROPRIATION THEREFOR, THE USUAL AND ESTABLISHED PROCEDURE IN SUCH CASES BEING TO AUTHORIZE THE FUTURE PAYMENTS BUT TO LEAVE THE MATTER OF PROVIDING FUNDS WITH WHICH TO MAKE THEM FOR THE CONSIDERATION OF FUTURE CONGRESSES. ACCORDINGLY, I HAVE TO ADVISE THAT THERE ARE NO FUNDS AVAILABLE AT THIS TIME FOR THE PAYMENTS IN QUESTION EXCEPT THOSE TO THE CREDIT OF THE OREGON AND CALIFORNIA LAND-GRANT FUND.

IT IS STATED IN YOUR LETTER THAT THE AMOUNT AVAILABLE FOR SUCH PURPOSE, AS REPORTED BY THE TREASURY DEPARTMENT, IS $263,467.08 AS OF JULY 31, 1933, AND THAT THE AMOUNT FOUND DUE BY YOUR DEPARTMENT FOR PAYMENTS IN LIEU OF TAXES FOR THE CALENDAR YEAR 1932 TO THE SEVERAL COUNTIES AGGREGATED $488,611.13. IN VIEW OF THE FACT THAT APPARENTLY THE SEVERAL COUNTIES ARE IN NEED OF SUCH FUNDS AS MAY BE AVAILABLE AT THIS TIME, NO OBJECTION WILL BE RAISED BY THIS OFFICE TO PAYMENT TO THE COUNTIES OF THE FUNDS WHICH ARE AVAILABLE IN THE LAND-GRANT FUND. SUCH FUNDS BEING AVAILABLE APPROXIMATELY ON THE BASIS OF 50 PERCENT OF THE CLAIMS SUBMITTED, THIS OFFICE WILL ENTERTAIN CLAIMS BY SUCH COUNTIES APPROVED BY YOUR DEPARTMENT ON THAT BASIS, THE BALANCE OF 50 PERCENT OF SUCH CLAIMS TO BE FOR CONSIDERATION AFTER A SUFFICIENT AMOUNT THEREFOR HAS ACCUMULATED IN THE LAND-GRANT FUND OR THE CONGRESS MAKES AVAILABLE OTHER FUNDS FOR THE PURPOSE.

THE REPRESENTATIVE FOR THE SEVERAL COUNTIES HAS BEEN FURNISHED COPY OF THIS DECISION FOR THE INFORMATION OF THE COUNTY OFFICIALS.