A-26188, MARCH 6, 1929, 8 COMP. GEN. 474

A-26188: Mar 6, 1929

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DOES NOT GIVE HIM DISCRETION OR AUTHORITY TO DETERMINE WHETHER THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA IS AUTHORIZED TO CHARGE AND COLLECT FEES FOR SERVICES SO RENDERED. PROVIDES IN PART AS FOLLOWS: "AUTHORITY IS HEREBY GRANTED FOR THE PAYMENT OF ANY COURT OR OTHER EXPENSES INCIDENT TO ANY INVESTIGATION OR COURT PROCEEDINGS FOR THE APPOINTMENT OF ANY GUARDIAN. WHEN SUCH PAYMENT IS AUTHORIZED BY THE DIRECTOR.'. WHICH ARE NECESSARY OR APPROPRIATE TO CARRY OUT ITS PURPOSES. A COPY OF SUPPLEMENT NO. 1 IS INCLOSED. THE QUESTION INVOLVED IS WHETHER OR NOT AFTER THE BUREAU HAS AUTHORIZED THE INCURRENCE OF COURT COSTS IN SUCH CASES IN THE DISTRICT OF COLUMBIA. THE REGISTER OF WILLS HAS TAKEN THE POSITION THAT HIS OFFICE IS SELF- SUSTAINING AND THEREFORE MUST COLLECT COURT COSTS IN EVERY CASE OF THIS CHARACTER AND THAT IF SUCH COSTS ARE NOT PAID BY THE BUREAU THEY WILL BE CHARGED AGAINST THE ESTATE OF THE WARD IN SPITE OF THE PROVISIONS OF SECTION 21-/2).

A-26188, MARCH 6, 1929, 8 COMP. GEN. 474

REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA - FEES FROM ESTATES OF VETERANS' BUREAU BENEFICIARIES SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, PERMITTING THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU TO AUTHORIZE PAYMENT BY THE UNITED STATES OF COURT COSTS AND OTHER EXPENSES INCIDENT TO THE APPOINTMENT OF GUARDIANS OR PROBATE MATTERS INVOLVING ESTATES OF BENEFICIARIES, DOES NOT GIVE HIM DISCRETION OR AUTHORITY TO DETERMINE WHETHER THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA IS AUTHORIZED TO CHARGE AND COLLECT FEES FOR SERVICES SO RENDERED, BUT ONLY TO DETERMINE WHETHER SUCH FEES SHALL BE PAID FROM THE ESTATE INVOLVED OR FROM APPROPRIATED FUNDS OF THE VETERANS' BUREAU. TO THAT EXTENT, IT REMOVES THE PROHIBITION IN SECTION 177 OF THE CODE OF THE DISTRICT OF COLUMBIA AGAINST THE PAYMENT OF SUCH FEES AND COSTS BY THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 6, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 14, 1929, AS FOLLOWS:

A DISCUSSION HAS ARISEN BETWEEN THIS BUREAU AND THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA, CONCERNING THE PAYMENT OF COURT COSTS INCIDENT TO THE APPOINTMENT OF GUARDIANS FOR BUREAU BENEFICIARIES.

SECTION 21 (2) OF THE WORLD WAR VETERANS' ACT AS AMENDED MAY 29, 1928, PROVIDES IN PART AS FOLLOWS:

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

THE ANNUAL APPROPRIATION ACT FOR THIS BUREAU MAKES APPROPRIATE PROVISION FOR THE PAYMENT OF SUCH COSTS.

PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 21 (2), SUPRA, AND SECTION 5 OF THE WORLD WAR VETERANS' ACT, 1924, TO MAKE RULES AND REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THAT ACT, WHICH ARE NECESSARY OR APPROPRIATE TO CARRY OUT ITS PURPOSES, THE DIRECTOR HAS PROMULGATED INSTRUCTIONS IN THE FORM OF SUPPLEMENT NO. 1 OF GENERAL ORDER 360, PARAGRAPH Q 3 OF WHICH DELEGATES TO THE REGIONAL ATTORNEY THE POWER TO AUTHORIZE THE INCURRENCE OF COURT AND OTHER EXPENSES IN ALL CASES OF ORIGINAL APPOINTMENTS OF GUARDIANS FOR THE PURPOSE OF RECEIVING BENEFITS PAYABLE ON ACCOUNT OF INCOMPETENT VETERANS, AND, UNDER CERTAIN CONDITIONS, DELEGATES TO THE REGIONAL ATTORNEYS, WITH THE APPROVAL OF THE GENERAL COUNSEL, THE POWER TO AUTHORIZE THE INCURRENCE OF EXPENSES OF ORIGINAL APPOINTMENTS OF GUARDIANS TO RECEIVE PAYMENTS OF BENEFITS PAYABLE ON ACCOUNT OF MINOR AND INCOMPETENT DEPENDENTS OF VETERANS. THIS SUPPLEMENT, IN PARAGRAPH Q 11, AUTHORIZES THE INCURRENCE OF EXPENSES INCIDENT TO THE REMOVAL OF GUARDIANS AND THE APPOINTMENT OF SUBSTITUTIONARY GUARDIANS UNDER THE CONDITIONS THEREIN PROVIDED. THE REGIONAL ATTORNEYS, ACTING IN ACCORDANCE WITH THE AUTHORITY THEREIN CONTAINED, PROCEED TO AUTHORIZE THE INCURRENCE OF SUCH EXPENSES. A COPY OF SUPPLEMENT NO. 1 IS INCLOSED.

THE QUESTION INVOLVED IS WHETHER OR NOT AFTER THE BUREAU HAS AUTHORIZED THE INCURRENCE OF COURT COSTS IN SUCH CASES IN THE DISTRICT OF COLUMBIA, SUCH EXPENSES MAY BE PAID BY IT IN VIEW OF THE PROHIBITION CONTAINED IN SECTION 177 OF THE CODE OF LAWS FOR THE DISTRICT OF COLUMBIA AGAINST THE PAYMENT OF COSTS AND FEES BY AGENCIES OF THE FEDERAL GOVERNMENT, FOR SERVICES RENDERED BY THE CLERK AND THE REGISTER OF WILLS. THIS SECTION READS AS FOLLOWS:

"SEC. 177. COSTS PAYABLE IMMEDIATELY.--- ALL COSTS AND FEES FOR SERVICES RENDERED BY THE CLERK AND THE REGISTER OF WILLS AND CHARGEABLE TO OTHERS THAN THE UNITED STATES SHALL BE PAYABLE IN ADVANCE AND SHALL BE COLLECTED BY SUCH RULES AND REGULATIONS, NOT INCOMPATIBLE WITH LAW, AS MAY BE PRESCRIBED BY THE COURT, BUT SHALL IN NO CASE BE PAID BY THE UNITED STATES. THE DISTRICT OF COLUMBIA SHALL NOT BE REQUIRED TO PAY FEES TO THE CLERK OF THE COURT OF APPEALS OF THE DISTRICT, OR TO THE MARSHAL OF THE DISTRICT, AND SHALL BE ENTITLED TO THE SERVICES OF SAID MARSHAL IN THE SERVICE OF ALL CIVIL PROCESS.'

THE REGISTER OF WILLS HAS TAKEN THE POSITION THAT HIS OFFICE IS SELF- SUSTAINING AND THEREFORE MUST COLLECT COURT COSTS IN EVERY CASE OF THIS CHARACTER AND THAT IF SUCH COSTS ARE NOT PAID BY THE BUREAU THEY WILL BE CHARGED AGAINST THE ESTATE OF THE WARD IN SPITE OF THE PROVISIONS OF SECTION 21-/2), SUPRA, WHICH AUTHORIZE THE PAYMENT OF SUCH COSTS BY THE BUREAU. * * *

IT WOULD APPEAR THAT IN VIEW OF THE AUTHORITY GRANTED IN SECTIONS 5 AND 21 (2) OF THE WORLD WAR VETERANS' ACT, AS AMENDED, THE UNITED STATES, RATHER THAN THE ESTATES OF BUREAU BENEFICIARIES, MUST ASSUME THE COSTS OF SUCH APPOINTMENTS INCURRED IN ACCORDANCE WITH THE PROVISIONS OF SUPPLEMENT NO. 1, SUPRA, BUT THAT THE EXEMPTION OF FEDERAL GOVERNMENT AGENCIES FROM THE PAYMENT OF COURT COSTS AND FEES PROVIDED FOR IN SECTION 177 OF THE DISTRICT OF COLUMBIA CODE EXTENDS TO THE UNITED STATES VETERANS' BUREAU AND EFFECTIVELY PREVENTS THE BUREAU FROM MAKING PAYMENT OF COURT COSTS AND FEES IN SUCH CASES TO THE REGISTER OF WILLS AND ALSO PREVENTS THE BUREAU FROM MAKING REIMBURSEMENT IF SUCH COSTS ARE PAID OUT OF THE ESTATES OF SUCH BENEFICIARIES. THE GENERAL WITH THE SAME SUBJECT, THE SPECIAL WILL PREVAIL OVER THE GENERAL STATUTE TO THE EXTENT THAT THE TWO ARE REPUGNANT. WHERE THE SPECIAL STATUTE IS LATER, IT WILL BE REGARDED AS AN EXCEPTION TO, OR QUALIFICATION OF, THE PRIOR GENERAL ONE; AND WHERE THE GENERAL ACT IS LATER, THE SPECIAL WILL BE CONSTRUED AS REMAINING AN EXCEPTION TO ITS TERMS, UNLESS IT IS REPEALED IN EXPRESS WORDS OR BY NECESSARY IMPLICATION. IN THE CASE OF UNITED STATES V. MILLS (11 D.C.APP. 500, 509), IT WAS STATED THAT "IN NO CASE CAN THIS RULE BE MORE APPROPRIATELY APPLIED THAN TO THE LEGISLATION OF CONGRESS FOR THE DISTRICT OF COLUMBIA AS DISTINGUISHED FROM ITS LEGISLATION FOR THE FEDERAL ON.' THE GENERAL STATUTE IN THIS CASE, BEING SECTION 21 (2) OF THE WORLD WAR VETERANS' ACT, AS AMENDED, DOES NOT IN EXPRESS TERMS REPEAL THE PROVISION IN THE SPECIAL STATUTE, SECTION 177 OF THE DISTRICT OF COLUMBIA CODE, AND DOES NOT, IT IS BELIEVED, REPEAL IT BY NECESSARY IMPLICATION. IF THIS INTERPRETATION IS CORRECT THE REGISTER OF WILLS IS LEGALLY BARRED BY THE ABOVE-MENTIONED PROVISION IN SECTION 177 OF THE DISTRICT CODE FROM COLLECTING SUCH COSTS AND FEES, THE INTENT OF CONGRESS BEING THAT HIS OFFICE MUST BEAR SUCH EXPENSES.

YOUR DECISION IS RESPECTFULLY REQUESTED WHETHER OR NOT IN VIEW OF THE ABOVE-MENTIONED PROVISION IN SECTION 177 OF THE DISTRICT OF COLUMBIA CODE THE BUREAU MAY PAY SUCH COSTS AND FEES TO THE REGISTER OF WILLS, AND IF NOT, MAY MAKE REIMBURSEMENT THEREFOR IF PAID IN THE FIRST INSTANCE OUT OF THE ESTATES OF BUREAU BENEFICIARIES.

SECTION 177 OF THE DISTRICT OF COLUMBIA CODE HAS BEEN IN FORCE SINCE 1901. SEE ACT OF MARCH 3, 1901, 31 STAT. 1219. THE PROVISION QUOTED IN YOUR SUBMISSION FROM SECTION 21 OF THE WORLD WAR VETERANS' ACT WAS INSERTED IN THAT ACT BY THE AMENDMENT OF JULY 2, 1926, 44 STAT. 792. PRIOR TO THE AMENDMENT OF JULY 2, 1926, THERE WAS NO PROVISION AUTHORIZING THE UNITED STATES TO ASSUME THE COSTS OF PROBATE OR ADMINISTRATION OF AN ESTATE, OR APPOINTMENT OF GUARDIANS, IN THESE CASES, AND WHERE SUCH ACTION WAS NECESSARY, ANY EXPENSES INVOLVED WERE CHARGEABLE TO THE ESTATE. THEREFORE, IT MAY BE ASSUMED THAT THE PROHIBITION IN SECTION 177 OF THE DISTRICT OF COLUMBIA CODE, AGAINST THE PAYMENT OF COSTS AND FEES BY THE UNITED STATES, WAS NOT INTENDED TO APPLY TO SUCH CASES, AND RELATES ONLY TO COSTS AND FEES INVOLVED IN THE INITIATION OF SUITS OR OTHER PROCEEDINGS BY THE UNITED STATES IN ITS SOVEREIGN CAPACITY. SEE BROWN V. MACFARLAND, 21 APP.D.C. 412.

THE PROVISION QUOTED FROM SECTION 21 OF THE WORLD WAR VETERANS' ACT DOES NOT REQUIRE THAT COURT COSTS OR OTHER EXPENSES BE ASSUMED BY THE UNITED STATES IN ALL CASES OF VETERANS' ESTATES, BUT VESTS IN THE DIRECTOR OF THE VETERANS' BUREAU DISCRETION TO DETERMINE WHEN SUCH COSTS OR EXPENSES SHALL BE PAID BY THE UNITED STATES. BY GENERAL ORDER NO. 360 OF OCTOBER 2, 1928, YOU PROMULGATED REGULATIONS SPECIFYING CONDITIONS UNDER WHICH COURT COSTS AND EXPENSES INCIDENT TO THE APPOINTMENT OF GUARDIANS, ETC., ARE TO BE PAID BY YOUR BUREAU, AND IT APPEARS TO BE YOUR CONTENTION THAT WHEN, UNDER THE REGULATIONS SO PROMULGATED, SUCH EXPENSES ARE OTHERWISE TO BE PAID BY YOUR BUREAU IN THE DISTRICT OF COLUMBIA NO PAYMENT TO THE REGISTER OF WILLS, WHO IS, ALSO, CLERK OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA WHEN SITTING AS THE PROBATE COURT, IS AUTHORIZED. WHILE SECTION 5 OF THE WORLD WAR VETERANS' ACT VESTS IN YOU AUTHORITY TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THAT ACT, THE AUTHORITY SO TO DO DOES NOT AUTHORIZE YOU TO MAKE RULES AND REGULATIONS TO GOVERN THE CONDUCT OF BUSINESS BY THE OFFICE OF THE REGISTER OF WILLS OR THE PROBATE COURT. THE DISCRETION VESTED IN YOU AS DIRECTOR OF THE VETERANS' BUREAU BY SECTIONS 5 AND 21 OF THE WORLD WAR VETERANS' ACT IS DISCRETION TO DETERMINE WHETHER THE COSTS AND OTHER EXPENSES SO AUTHORIZED SHALL BE PAID FROM FUNDS APPROPRIATED FOR THAT PURPOSE IN THE VETERANS' BUREAU APPROPRIATIONS OR LEFT TO BE PAID FROM THE ESTATE, AND IS NOT DISCRETION TO DETERMINE WHETHER THE REGISTER OF WILLS OR THE PROBATE COURT SHALL OR SHALL NOT RECEIVE THE FEES OTHERWISE PROPERLY CHARGEABLE BY THEM.

UNDER WELL ESTABLISHED RULES OF STATUTORY CONSTRUCTION, WHERE TWO LEGISLATIVE ACTS ARE REPUGNANT TO OR IN CONFLICT WITH EACH OTHER, THE ONE LAST PASSED, BEING THE LAST EXPRESSION OF THE LEGISLATIVE WILL, MUST GOVERN. THE AMENDMENT TO SECTION 21 OF THE WORLD WAR VETERANS' ACT, BEING SUBSEQUENT TO THE ENACTMENT OF THE DISTRICT CODE AND, TO A CERTAIN EXTENT, INCONSISTENT THEREWITH, CREATES AN EXCEPTION TO SECTION 177 OF THE DISTRICT CODE AND REMOVES THE PROHIBITION AGAINST THE PAYMENT OF COSTS BY THE UNITED STATES WHEN, IN THE EXERCISE OF YOUR DISCRETION, YOU DETERMINE THAT SUCH COSTS SHOULD BE PAID BY THE UNITED STATES RATHER THAN BY THE ESTATE.

IN CASES IN WHICH THE FEES AND COSTS ARE PAID OUT OF THE ESTATE PRIOR TO THE EXERCISE OF YOUR DISCRETION IN THE MATTER, THERE WOULD APPEAR TO BE NO OBJECTION TO REIMBURSING THE ESTATE FOR SUCH PAYMENTS SHOULD YOU AUTHORIZE THE SAME EITHER SPECIFICALLY OR BY GENERAL REGULATION.