A-35831, MARCH 27, 1931, 10 COMP. GEN. 440

A-35831: Mar 27, 1931

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THE APPROPRIATION MADE FOR CONTINGENT EXPENSES OF LAND OFFICES IS EXCLUSIVELY AVAILABLE FOR THE PAYMENT OF EXPENSES INCIDENT TO THE PUBLICATION OF NOTICES RELATING TO THE PUBLIC LANDS AND THERE IS NO AUTHORITY OF LAW FOR CHARGING ANOTHER APPROPRIATION WITH SUCH EXPENSES WHEN THAT APPROPRIATION HAS BEEN EXHAUSTED. ADVERSE PROCEEDINGS HAVE BEEN INSTITUTED AGAINST NUMEROUS MINING CLAIMS WITHIN THE AREA INVOLVED. WHERE THE ADDRESS OF THE CLAIMANT IS NOT KNOWN IT IS NECESSARY TO SERVE NOTICE OF SUCH PROCEEDINGS BY PUBLICATION IN A NEWSPAPER PUBLISHED NEAREST THE LOCATION OF THE LAND INVOLVED. WHERE THE ADDRESS OF THE CLAIMANT IS KNOWN THE NOTICE OF ADVERSE PROCEEDINGS IS SERVED BY THE REGISTER OF THE APPROPRIATE DISTRICT LAND OFFICE.

A-35831, MARCH 27, 1931, 10 COMP. GEN. 440

APPROPRIATIONS IN THE ABSENCE OF AN APPROPRIATION MADE SPECIFICALLY AVAILABLE FOR THE PURPOSE, THE APPROPRIATION MADE FOR CONTINGENT EXPENSES OF LAND OFFICES IS EXCLUSIVELY AVAILABLE FOR THE PAYMENT OF EXPENSES INCIDENT TO THE PUBLICATION OF NOTICES RELATING TO THE PUBLIC LANDS AND THERE IS NO AUTHORITY OF LAW FOR CHARGING ANOTHER APPROPRIATION WITH SUCH EXPENSES WHEN THAT APPROPRIATION HAS BEEN EXHAUSTED. WHERE EITHER OF TWO APPROPRIATIONS REASONABLY COULD BE CONSTRUED AS AVAILABLE FOR A CERTAIN CLASS OF EXPENDITURES AND THE ADMINISTRATIVE OFFICE ELECTS TO AND DOES USE ONE OF THEM FOR THAT PURPOSE IT CAN NOT THEREAFTER, BECAUSE OF INSUFFICIENT FUNDS IN SAID APPROPRIATION OR FOR OTHER REASON, USE THE OTHER APPROPRIATION FOR THE SAME PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 27, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 17, 1931, AS FOLLOWS:

IN ORDER TO CLEAR OF FRAUDULENT MINING LOCATIONS THE PUBLIC LANDS WITHDRAWN FOR THE HOOVER DAM PROJECT, AND SO PRECLUDE THE POSSIBILITY OF FAKE MINING LOCATORS CLAIMING DAMAGES TO ALLEGED VESTED RIGHTS, ADVERSE PROCEEDINGS HAVE BEEN INSTITUTED AGAINST NUMEROUS MINING CLAIMS WITHIN THE AREA INVOLVED, AND WHERE THE ADDRESS OF THE CLAIMANT IS NOT KNOWN IT IS NECESSARY TO SERVE NOTICE OF SUCH PROCEEDINGS BY PUBLICATION IN A NEWSPAPER PUBLISHED NEAREST THE LOCATION OF THE LAND INVOLVED, AS PROVIDED BY SECTION 2335 OF THE REVISED STATUTES.

WHERE THE ADDRESS OF THE CLAIMANT IS KNOWN THE NOTICE OF ADVERSE PROCEEDINGS IS SERVED BY THE REGISTER OF THE APPROPRIATE DISTRICT LAND OFFICE, BY REGISTERED MAIL AND THE COST OF REGISTRATION IS PAID FROM THE APPROPRIATION FOR CONTINGENT EXPENSES OF LAND OFFICES (ACT MAY 14, 1930, 46 STAT. 279-282). ACCORDINGLY, WHEN IT BECAME NECESSARY FOR THE REGISTERS INVOLVED TO SERVE NOTICE BY PUBLICATION THE EXPENSE WAS CHARGED TO THE SAME APPROPRIATION.

THE EXPENSE WILL BE MUCH MORE THAN WAS ANTICIPATED, SOMEWHERE IN THE NEIGHBORHOOD OF $10,000 OR $12,000, AND IT THEREFORE APPEARS THAT THE APPROPRIATION CHARGED WILL BE INADEQUATE TO PAY FOR ALL THE ADVERTISING THAT IS NECESSARY IN THIS CLASS OF CASES IN ADDITION TO THE ORDINARY RUNNING EXPENSES OF THE DISTRICT LAND OFFICES.

THE APPROPRIATION FOR PROTECTING PUBLIC LANDS, TIMBER, ETC. (ACT MAY 14, 1930, 46 STAT. 279-283) IS CHARGEABLE WITH ALL THE EXPENSE OF INVESTIGATION IN THE FIELD, AND THE PROVISION THEREIN FOR "PROTECTING PUBLIC LANDS FROM ILLEGAL AND FRAUDULENT ENTRY OR APPROPRIATION," WOULD APPEAR TO BE BROAD ENOUGH TO COVER THE EXPENSE OF PUBLICATION OF NOTICES OF ADVERSE PROCEEDINGS WERE THERE ANOTHER APPROPRIATION AVAILABLE.

THE PUBLICATION OF THE NOTICES IS URGENT AND AFTER THE EXHAUSTION OF SUCH PORTION OF THE APPROPRIATION FOR CONTINGENT EXPENSES OF LAND OFFICES AS MAY, WITH DUE REGARD TO THE OBLIGATIONS FOR NORMAL ROUTINE RUNNING EXPENSES, BE UTILIZED, IT WILL BE NECESSARY TO POSTPONE PUBLICATION OF A CONSIDERABLE NUMBER OF THE NOTICES UNTIL THE BEGINNING OF THE NEXT FISCAL YEAR UNLESS RESORT MAY BE HAD TO THE APPROPRIATION FOR PROTECTING PUBLIC LANDS.

YOUR DECISION IS THEREFORE RESPECTFULLY REQUESTED, WHETHER OR NOT THE APPROPRIATION FOR PROTECTING PUBLIC LANDS MAY BE CHARGED WITH THE COST OF PUBLICATION OF THE NOTICES WHEN THE NORMAL AMOUNT FOR SERVICE OF NOTICES PLUS UNOBLIGATED FUNDS, IF ANY, UNDER THE APPROPRIATION FOR CONTINGENT EXPENSES OF LAND OFFICES HAS BEEN EXHAUSTED.

THE TWO APPROPRIATIONS REFERRED TO IN YOUR LETTER AS MADE BY THE ACT OF MAY 14, 1930, 46 STAT. 282, PROVIDE AS FOLLOWS:

CONTINGENT EXPENSES OF LAND OFFICES: FOR CLERK HIRE, RENT, AND OTHER INCIDENTAL EXPENSES OF THE DISTRICT LAND OFFICES, INCLUDING THE EXPENSES OF DEPOSITING PUBLIC MONEY; TRAVELING EXPENSES OF CLERKS DETAILED TO EXAMINE THE BOOKS AND MANAGEMENT OF DISTRICT LAND OFFICES AND TO ASSIST IN THE OPERATION OF SAID OFFICES AND IN THE OPENING OF NEW LAND OFFICES AND RESERVATIONS, AND FOR TRAVELING EXPENSES OF CLERKS TRANSFERRED IN THE INTEREST OF THE PUBLIC SERVICE FROM ONE DISTRICT LAND OFFICE TO ANOTHER, $193,000: PROVIDED, THAT NO EXPENSES CHARGEABLE TO THE GOVERNMENT SHALL BE INCURRED BY REGISTERS IN THE CONDUCT OF LOCAL LAND OFFICES EXCEPT UPON PREVIOUS SPECIFIC AUTHORIZATION BY THE COMMISSIONER OF THE GENERAL LAND OFFICE.

DEPREDATIONS ON PUBLIC TIMBER, PROTECTING PUBLIC LANDS, AND SETTLEMENT OF CLAIMS FOR SWAMP LAND AND SWAMP-LAND INDEMNITY: FOR PROTECTING TIMBER ON THE PUBLIC LANDS, AND FOR THE MORE EFFICIENT EXECUTION OF THE LAW AND RULES RELATING TO THE CUTTING THEREOF; PROTECTING PUBLIC LANDS FROM ILLEGAL AND FRAUDULENT ENTRY OR APPROPRIATION, ADJUSTING CLAIMS FOR SWAMP LANDS AND INDEMNITY FOR SWAMP LANDS; AND TRAVELING EXPENSES OF AGENTS AND OTHERS EMPLOYED HEREUNDER, $450,000, INCLUDING NOT EXCEEDING $35,000 FOR THE PURCHASE, EXCHANGE, OPERATION, AND MAINTENANCE OF MOTOR-PROPELLED PASSENGER CARRYING VEHICLES AND MOTOR BOATS FOR THE USE OF AGENTS AND OTHERS EMPLOYED IN THE FIELD SERVICE AND INCLUDING $60,000 FOR PREVENTION AND FIGHTING OF FOREST AND OTHER FIRES ON THE PUBLIC LANDS, TO BE AVAILABLE FOR THIS AND NO OTHER PURPOSE, AND TO BE EXPENDED UNDER THE DIRECTION OF THE COMMISSIONER.

AS YOU STATE, THE CLAUSE "PROTECTING PUBLIC LANDS FROM ILLEGAL AND FRAUDULENT ENTRY OR APPROBATION" IN THE LAST-QUOTED APPROPRIATION WOULD APPEAR TO COVER SUCH GENERAL AND SPECIFIC EXPENSES AS REASONABLY MAY BE INCIDENT TO THE CARRYING OUT OF THE OBJECTS THEREIN CONTEMPLATED AND WOULD BE BROAD ENOUGH TO COVER THE EXPENSES OF PUBLICATION OF NOTICES OF ADVERSE PROCEEDINGS, WERE THERE NO OTHER APPROPRIATION AVAILABLE FOR THE PURPOSE. HOWEVER, IT APPEARS UNQUESTIONABLE THAT THE CONTINGENT EXPENSES APPROPRIATION PROPERLY COVERS SUCH EXPENSES. THE COST OF PUBLISHING NOTICES, WHETHER IN CONNECTION WITH ADVERSE PROCEEDINGS OR OTHERWISE WITH RESPECT TO LANDS WITHIN A GIVEN LAND DISTRICT, IS PROPERLY FOR CONSIDERATION AS AN INCIDENTAL EXPENSE OF SUCH OFFICE, AS CONTEMPLATED BY THE CONTINGENT EXPENSE APPROPRIATION. IT APPEARS THAT AMOUNTS FOR THE EXPENSE OF SUCH NOTICES ARE ESTIMATED FOR AND APPROPRIATED EACH YEAR UNDER SUCH APPROPRIATION, WHEREAS NO SUCH ITEM IS INCLUDED UNDER THE APPROPRIATION MADE FOR PROTECTING PUBLIC LANDS AND TIMBER. UNDER SUCH CIRCUMSTANCES IT WOULD APPEAR THAT OF THE TWO APPROPRIATIONS HERE IN QUESTION THAT MADE FOR CONTINGENT EXPENSES OF LAND OFFICES IS THE APPROPRIATION PROPERLY CHARGEABLE WITH THE COST OF PUBLICATION OF NOTICES OF ADVERSE PROCEEDINGS OR OTHERWISE WITH RESPECT TO LANDS LOCATED IN A PARTICULAR DISTRICT RATHER THAN THE OTHER APPROPRIATION MADE IN GENERAL TERMS FOR THE PROTECTION OF PUBLIC LANDS AND TIMBER. THIS LEADS TO THE QUESTION ASKED IN YOUR LETTER WHETHER, WHEN THE CONTINGENT EXPENSE APPROPRIATION HAS BEEN EXHAUSTED, SUCH EXPENSES MAY BE CHARGED TO THE OTHER APPROPRIATION, OR, STATED IN OTHER WORDS, WHETHER THE CONTINGENT EXPENSE APPROPRIATION MAY BE SUPPLEMENTED BY USING FUNDS APPROPRIATED UNDER THE OTHER APPROPRIATION.

IT IS A WELL-ESTABLISHED RULE OF LONG STANDING THAT WHEN AN APPROPRIATION, TO WHICH AN EXPENSE IS PROPERLY CHARGEABLE, IS EXHAUSTED, ANOTHER APPROPRIATION CAN NOT BE USED FOR THE PURPOSE. 1 COMP. DEC. 492; 1 COMP. GEN. 312; 4 ID. 476.

IT HAS BEEN HELD, ALSO, THAT WHERE EITHER OF TWO APPROPRIATIONS REASONABLY COULD BE CONSTRUED AS AVAILABLE FOR EXPENDITURES NOT SPECIFICALLY MENTIONED UNDER ANY APPROPRIATION, THE DETERMINATION OF THE ADMINISTRATIVE OFFICE AS TO WHICH OF THE TWO APPROPRIATIONS WILL BE USED FOR THE PURPOSE WILL NOT BE QUESTIONED BY THE ACCOUNTING OFFICERS. COMP. GEN. 479. BUT WHEN SUCH ELECTION HAS BEEN MADE BY THE ADMINISTRATIVE OFFICE, SUCH AS BY THE USE OF ONE OF THE APPROPRIATIONS FOR THE PURPOSE FOR A NUMBER OF YEARS AND THE ESTIMATING THEREFOR UNDER SUCH APPROPRIATION, THE CONTINUED USE OF SUCH APPROPRIATION TO THE EXCLUSION OF ANY OTHER FOR SUCH PURPOSE IS REQUIRED, IN THE ABSENCE OF CHANGES IN THE APPROPRIATION ACTS. THAT IS TO SAY, THE RIGHT OF ELECTION RECOGNIZED IN 5 COMP. GEN. 479, SUPRA, IS NOT A RIGHT TO ELECT TO USE FIRST ONE AND THEN THE OTHER OF THE TWO APPROPRIATIONS FOR THE SAME CLASS OF EXPENDITURES. THE USE MUST BE CONSISTENT. 15 COMP. DEC. 101. ACCORDINGLY, IT MUST BE HELD THAT THE CONTINGENT-EXPENSE APPROPRIATION IS EXCLUSIVELY AVAILABLE FOR THE EXPENDITURES HERE IN QUESTION.

IN THIS CONNECTION IT MAY BE STATED THAT IN SO FAR AS CONCERNS THE USE OF AN APPROPRIATION, IT IS NOT A QUESTION AS TO WHERE IT COULD BE USED MOST BENEFICIALLY, BUT AS TO WHERE AND FOR WHAT PURPOSE THE CONGRESS INTENDED SUCH APPROPRIATION TO BE USED--- 18 COMP. DEC. 777-- PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTION 3678, REVISED STATUTES, THAT ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE AVAILABLE AND FOR NO OTHERS. IN CONNECTION WITH ALLOTMENTS OF CONTINGENT-EXPENSES APPROPRIATIONS, ATTENTION IS INVITED, ALSO, TO SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49.

IN SPECIFIC ANSWER TO THE QUESTION SUBMITTED, I HAVE TO ADVISE THAT IN THE ABSENCE OF AN APPROPRIATION MADE SPECIFICALLY AVAILABLE FOR THE PURPOSE, THE APPROPRIATION FOR CONTINGENT EXPENSES OF LAND OFFICES IS EXCLUSIVELY AVAILABLE FOR THE EXPENSE OF PUBLICATION OF NOTICES OF ADVERSE PROCEEDINGS SUCH AS REFERRED TO IN YOUR LETTER, AND THAT THERE IS NO AUTHORITY OF LAW FOR SUPPLEMENTING SUCH APPROPRIATION BY CHARGING SUCH EXPENSES TO THE APPROPRIATION MADE FOR PROTECTING PUBLIC LANDS AND TIMBER WHEN THE CONTINGENT-EXPENSES APPROPRIATION HAS BEEN EXHAUSTED.