A-3696, AUGUST 2, 1924, 4 COMP. GEN. 145

A-3696: Aug 2, 1924

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TRAINING THE NATIONAL GUARD ARE NOT AVAILABLE FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY THE CONCUSSION AND VIBRATIONS FROM THE FIRING OF LARGE-CALIBER GUNS BY NATIONAL GUARD TROOPS AT A REGULAR ARMY FORT. IF THEY ARE NOT THE RESULT OF NEGLIGENCE AND ARE WITHIN THE MAXIMUM SPECIFIED IN THE CURRENT APPROPRIATION FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING. IN WHICH WAS DISALLOWED IN THE ACCOUNTS OF MAJ. THE CHIEF OF A BUREAU IS NOT THE PROPER PARTY TO SECURE REVIEW OF A SETTLEMENT. 1 COMP. THE REQUEST WILL BE CONSIDERED AS IF MADE BY THE DISBURSING OFFICER OR THE SECRETARY OF WAR. A BOARD OF OFFICERS WAS APPOINTED UNDER THE PROVISIONS OF ARMY REGULATIONS 35-7040 TO INVESTIGATE AND REPORT UPON SUCH CLAIMS FOR DAMAGE TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING.

A-3696, AUGUST 2, 1924, 4 COMP. GEN. 145

DAMAGES TO PRIVATE PROPERTY BY NATIONAL GUARD APPROPRIATIONS FOR ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD ARE NOT AVAILABLE FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY THE CONCUSSION AND VIBRATIONS FROM THE FIRING OF LARGE-CALIBER GUNS BY NATIONAL GUARD TROOPS AT A REGULAR ARMY FORT. CLAIMS FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY THE FIRING OF LARGE CALIBER GUNS BY NATIONAL GUARD TROOPS AT A REGULAR ARMY FORT, IF THEY ARE NOT THE RESULT OF NEGLIGENCE AND ARE WITHIN THE MAXIMUM SPECIFIED IN THE CURRENT APPROPRIATION FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, MAY BE PAID SUBJECT TO THE CONDITIONS SPECIFIED THEREIN ON SETTLEMENTS MADE BY THE GENERAL ACCOUNTING OFFICE.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 2, 1924:

THE CHIEF OF THE MILITIA BUREAU HAS APPLIED FOR REVIEW OF SETTLEMENT NO. M-5947-W, DATED MAY 8, 1924, IN WHICH WAS DISALLOWED IN THE ACCOUNTS OF MAJ. J. F. SHERBURN CREDIT FOR A TOTAL OF $137.38 PAID TO VARIOUS CLAIMANTS FOR DAMAGES TO THEIR PRIVATE PROPERTY, CONSISTING OF THE BREAKING OF WINDOWS, ELECTRIC FIXTURES, AND PLASTER BY THE CONCUSSION AND VIBRATIONS OCCASIONED BY THE FIRING OF LARGE-CALIBER GUNS AT FORT MACARTHUR, CALIF., ON JULY 19, 1923, BY THE CALIFORNIA NATIONAL GUARD TROOPS, COAST ARTILLERY CORPS. THE CHIEF OF A BUREAU IS NOT THE PROPER PARTY TO SECURE REVIEW OF A SETTLEMENT. 1 COMP. GEN. 776. BUT IN THIS INSTANCE, AND, TO EXPEDITE MATTERS, THE REQUEST WILL BE CONSIDERED AS IF MADE BY THE DISBURSING OFFICER OR THE SECRETARY OF WAR.

BY SPECIAL ORDERS, NO. 121, DATED JULY 19, 1923, A BOARD OF OFFICERS WAS APPOINTED UNDER THE PROVISIONS OF ARMY REGULATIONS 35-7040 TO INVESTIGATE AND REPORT UPON SUCH CLAIMS FOR DAMAGE TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY AS MAY BE REFERRED TO IT. SAID REGULATIONS DIRECT SUCH CLAIMS TO BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, AS REQUIRED BY THE ACT OF MARCH 2, 1923; 42 STAT. 1386. THE CLAIMS IN QUESTION WERE CONSIDERED BY SAID BOARD BUT INSTEAD OF BEING TRANSMITTED TO THIS OFFICE FOR SETTLEMENT AS REQUIRED BY LAW, THEY WERE PAID BY MAJOR SHERBURN FROM NATIONAL GUARD APPROPRIATIONS. IT IS CONTENDED THAT THE PAYMENTS WERE IN ACCORDANCE WITH DECISION OF THE COMPTROLLER OF THE TREASURY DATED MARCH 10, 1910, IN 16 COMP. DEC. 589 AND PARAGRAPH 680 OF THE NATIONAL GUARD REGULATIONS BASED UPON THAT DECISION. IT IS TO BE OBSERVED THAT WHEN THE DECISION OF MARCH 10, 1910, WAS RENDERED THERE WAS NO SEPARATE SPECIFIC APPROPRIATION FOR THE PAYMENT OF DAMAGES TO PRIVATE PROPERTY, AND IN THE ABSENCE OF SUCH A SPECIFIC APPROPRIATION, AN APPROPRIATION SIMILAR TO THE ONE IN QUESTION WAS HELD TO BE AVAILABLE FOR THE PAYMENT OF CERTAIN DAMAGES. BUT BY THE ACT OF AUGUST 24, 1912, 37 STAT. 586, WHICH WAS THE FIRST LAW MAKING A GENERAL PROVISION WITH REFERENCE TO PAYMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY RESULTING FROM OPERATIONS OF THE ARMY (SEE 27 COMP. DEC. 669) IT WAS PROVIDED THAT THEREAFTER---

* * * THE SECRETARY OF WAR IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE THE AMOUNTS DUE ON ALL CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY WHEN THE AMOUNT OF THE CLAIM DOES NOT EXCEED THE SUM OF ONE THOUSAND DOLLARS, OCCASIONED BY HEAVY GUN FIRE AND TARGET PRACTICE OF TROOPS, AND FOR DAMAGES TO VESSELS, WHARVES, AND OTHER PRIVATE PROPERTY, FOUND TO BE DUE TO MANEUVERS OR OTHER MILITARY OPERATIONS FOR WHICH THE GOVERNMENT IS RESPONSIBLE, AND REPORT THE AMOUNTS SO ASCERTAINED AND DETERMINED TO BE DUE THE CLAIMANTS TO CONGRESS AT EACH SESSION THEREOF THROUGH THE TREASURY DEPARTMENT FOR PAYMENT AS LEGAL CLAIMS OUT OF APPROPRIATIONS THAT MAY BE MADE BY CONGRESS THEREFOR.

SAID PROVISION WAS PERMANENT LEGISLATION AND CONSTITUTED A PROHIBITION AGAINST THE PAYMENT BY DISBURSING OFFICERS FOR DAMAGES TO PRIVATE PROPERTY OCCASIONED BY HEAVY-GUN FIRE AND TARGET PRACTICE OF TROOPS AND FOR OTHER DAMAGES TO PRIVATE PROPERTY FOUND TO BE DUE TO MANEUVERS OR OTHER MILITARY OPERATIONS FOR WHICH THE GOVERNMENT WAS RESPONSIBLE, AND MADE THE DECISION IN 16 COMP. DEC. 589 INAPPLICABLE TO SUCH CLAIMS ARISING THEREAFTER. THE CLAIMS WERE REQUIRED, UNDER SUCH PROVISION, TO BE REPORTED TO CONGRESS FOR PAYMENT OUT OF APPROPRIATIONS TO BE THEREAFTER MADE. THE ACT OF MARCH 2, 1923, 42 STAT. 1386, PROVIDED THAT CLAIMS NOT EXCEEDING $500, RESULTING FROM THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, COULD BE PAID TO THE EXTENT OF FUNDS THEREIN APPROPRIATED WHEN THE SECRETARY OF WAR HAD ASCERTAINED THE AMOUNT OF THE DAMAGE THE CLAIMANT WOULD ACCEPT, THE AMOUNT RECOMMENDED IN FULL SATISFACTION OF SUCH DAMAGES, THE PAYMENTS TO BE MADE ON CERTIFICATES OF THE GENERAL ACCOUNTING OFFICE. SIMILAR PROVISION WAS MADE BY THE ACT OF JUNE 7, 1924, 43 STAT. 483.

WHERE THE CLAIM FOR DAMAGES ARISES BECAUSE OF NEGLIGENCE THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, REQUIRES SUCH CLAIMS TO BE CERTIFIED TO CONGRESS. SEE 2 COMP. GEN. 529. ALSO, IF THE CLAIM FOR DAMAGES DID NOT ARISE BECAUSE OF NEGLIGENCE IN THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, BUT EXCEEDS THE MAXIMUM OF $500 NAMED IN THE ACTS OF MARCH 2, 1923, AND JUNE 7, 1924, RELIEF MUST BE OBTAINED, IF AT ALL, FROM THE CONGRESS. SEE 2 COMP. GEN. 19.

OBVIOUSLY, APPROPRIATIONS FOR ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD ARE NOT AVAILABLE FOR PAYMENT OF CLAIMS FOR DAMAGES TO PROPERTY CAUSED BY A NATIONAL GUARD ORGANIZATION DURING A PERIOD OF SUMMER TRAINING IN FIRING HEAVY GUNS FROM A REGULAR ARMY FORT OR ELSEWHERE. THE CLAIMS DO NOT RESULT FROM NEGLIGENCE OF THE MEMBERS OF THE NATIONAL GUARD ORGANIZATION IN THE SCOPE OF THIS SUMMER TRAINING, AS SUPERVISED AND DIRECTED BY OFFICERS OF THE REGULAR ARMY AND DO NOT EXCEED THE MAXIMUM AMOUNTS SPECIFIED, THEY MAY BE PAID FROM APPROPRIATIONS SPECIFICALLY MADE AVAILABLE FOR PAYMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY DUE TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY AND IN THE MANNER AND SUBJECT TO THE CONDITIONS SPECIFIED IN THE APPROPRIATIONS. THEY DO RESULT FROM NEGLIGENCE ON THE PART OF THE MEMBERS OF THE NATIONAL GUARD ORGANIZATIONS OR THEIR TRAINERS, OR IF THEY EXCEED THE MAXIMUM AMOUNTS SPECIFIED IN THE APPROPRIATIONS, THEY CAN NOT BE PAID UNLESS AND UNTIL SPECIFICALLY APPROPRIATED FOR AFTER PRESENTATION TO AND CONSIDERATION OF THE CONGRESS.

THE CLAIMS IN THE INSTANT CASE DO NOT EXCEED THE MAXIMUM AMOUNTS SPECIFIED IN THE ACT OF MARCH 2, 1923, AND THE ACT OF JUNE 7, 1924, AND THEY DO NOT APPEAR TO HAVE RESULTED FROM NEGLIGENCE WITHIN THE MEANING OF THE ACT OF DECEMBER 28, 1922. THE CLAIMANTS AGREED TO ACCEPT THE AMOUNTS RECOMMENDED BY THE BOARD IN FULL SATISFACTION OF THE DAMAGES SUSTAINED. THE PROCEEDINGS OF THE BOARD SHOULD HAVE BEEN APPROVED AND TRANSMITTED TO THIS OFFICE FOR SETTLEMENT AS REQUIRED BY LAW. SEE 26 COMP. DEC. 910. HOWEVER, IF THE SECRETARY OF WAR WILL NOW APPROVE THE PROCEEDINGS OF THE BOARD AND RECOMMEND PAYMENT OF THE CLAIMS AND TRANSMIT THE RECOMMENDATIONS TO THIS OFFICE A SETTLEMENT WILL BE STATED ADJUSTING THE APPROPRIATIONS AND CREDITING THE ACCOUNTS OF THE DISBURSING OFFICER.

AS THE MATTER NOW STANDS, THE DISALLOWANCE OF CREDIT MUST BE, AND IS, AFFIRMED.