A-5491, FEBRUARY 12, 1925, 4 COMP. GEN. 685

A-5491: Feb 12, 1925

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TO BE MADE BY THE SECRETARY OF AGRICULTURE TO OWNERS OF ANIMALS DESTROYED IN THE EFFORT TO CONTROL AND ERADICATE TUBERCULOSIS ARE IN THE NATURE OF GRATUITIES AND ARE TO BE MADE ONLY IN THE DISCRETION OF THE SECRETARY. WHEN IN HIS OPINION SUCH PAYMENTS ARE NECESSARY TO PROMOTE THE WORK OF CONTROLLING AND ERADICATING THE DISEASE OF TUBERCULOSIS OF ANIMALS. 1925: I HAVE YOUR LETTER OF SEPTEMBER 29. AS FOLLOWS: THERE IS BEFORE THE DEPARTMENT FOR PAYMENT A VOUCHER EXECUTED BY THE FIRST NATIONAL BANK OF HALLOCK. THE CATTLE FOR WHICH CLAIM IS MADE BY THE FIRST NATIONAL BANK WERE THE PROPERTY OF MR. WHO IS NOW DECEASED. IT SEEMS FROM THE FILE TRANSMITTED HEREWITH THAT THE SLAUGHTERED CATTLE WERE INCLUDED IN A CHATTEL MORTGAGE GIVEN BY MR.

A-5491, FEBRUARY 12, 1925, 4 COMP. GEN. 685

APPROPRIATIONS - DEPARTMENT OF AGRICULTURE - DESTRUCTION OF DISEASED ANIMALS THE PAYMENTS AUTHORIZED, BY THE ACT OF MAY 11, 1922, 42 STAT. 511, TO BE MADE BY THE SECRETARY OF AGRICULTURE TO OWNERS OF ANIMALS DESTROYED IN THE EFFORT TO CONTROL AND ERADICATE TUBERCULOSIS ARE IN THE NATURE OF GRATUITIES AND ARE TO BE MADE ONLY IN THE DISCRETION OF THE SECRETARY, SUBJECT TO THE STATUTORY RESTRICTIONS, WHEN IN HIS OPINION SUCH PAYMENTS ARE NECESSARY TO PROMOTE THE WORK OF CONTROLLING AND ERADICATING THE DISEASE OF TUBERCULOSIS OF ANIMALS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, FEBRUARY 12, 1925:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1924, AS FOLLOWS:

THERE IS BEFORE THE DEPARTMENT FOR PAYMENT A VOUCHER EXECUTED BY THE FIRST NATIONAL BANK OF HALLOCK, MINNESOTA, AS MORTGAGEE OF CATTLE SLAUGHTERED UNDER THE PROVISIONS OF THE ITEM IN THE AGRICULTURAL APPROPRIATION ACT FOR THE FISCAL YEAR 1923 (42 STAT. 507, 511), READING AS FOLLOWS:

"GENERAL EXPENSES, BUREAU OF ANIMAL INDUSTRY.

"* * *; TO PURCHASE AND DESTROY DISEASED OR EXPOSED ANIMALS OR QUARANTINE THE SAME WHENEVER IN HIS JUDGMENT ESSENTIAL TO PREVENT THE SPREAD OF PLEUROPNEUMONIA, TUBERCULOSIS, OR OTHER DISEASES OF ANIMALS FROM ONE STATE TO ANOTHER, AS FOLLOWS:

"FOR INVESTIGATING THE DISEASE OF TUBERCULOSIS OF ANIMALS, FOR ITS CONTROL AND ERADICATION, FOR THE TUBERCULIN TESTING OF ANIMALS, AND FOR RESEARCHES CONCERNING THE CAUSE OF THE DISEASE, ITS MODES OF SPREAD, AND METHODS OF TREATMENT AND PREVENTION, INCLUDING DEMONSTRATIONS, THE FORMATION OF ORGANIZATIONS, AND SUCH OTHER MEANS AS MAY BE NECESSARY, EITHER INDEPENDENTLY OR IN COOPERATION WITH FARMERS, ASSOCIATIONS, STATE, TERRITORY, OR COUNTY AUTHORITIES, $2,877,600, OF WHICH $850,000 SHALL BE SET ASIDE FOR ADMINISTRATIVE AND OPERATING EXPENSES AND $2,027,600, OF WHICH $300,000 SHALL BE IMMEDIATELY AVAILABLE, FOR THE PAYMENT OF INDEMNITIES: (1) PROVIDED, HOWEVER, THAT IN CARRYING OUT THE PURPOSE OF THIS APPROPRIATION, IF IN THE OPINION OF THE SECRETARY OF AGRICULTURE IT SHALL BE NECESSARY TO DESTROY TUBERCULOUS ANIMALS AND TO COMPENSATE OWNERS FOR LOSS THEREOF, HE MAY, IN HIS DISCRETION, AND IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, EXPEND IN THE CITY OF WASHINGTON OR ELSEWHERE OUT OF THE MONEYS OF THIS APPROPRIATION, SUCH SUMS AS HE SHALL DETERMINE TO BE NECESSARY, WITHIN THE LIMITATIONS ABOVE PROVIDED, FOR THE REIMBURSEMENT OF OWNERS OF ANIMALS SO DESTROYED, IN COOPERATION WITH SUCH STATES, TERRITORIES, COUNTIES, OR MUNICIPALITIES, AS SHALL BY LAW OR BY SUITABLE ACTION IN KEEPING WITH ITS AUTHORITY IN THE MATTER, AND BY RULES AND REGULATIONS ADOPTED AND ENFORCED IN PURSUANCE THEREOF, PROVIDE INSPECTION OF TUBERCULOUS ANIMALS AND FOR COMPENSATION TO OWNERS OF ANIMALS SO DESTROYED, BUT NO PART OF THE MONEY HEREBY APPROPRIATED SHALL BE USED IN COMPENSATING OWNERS OF SUCH ANIMALS EXCEPT IN COOPERATION WITH AND SUPPLEMENTARY TO PAYMENTS TO BE MADE BY STATE, TERRITORY, COUNTY, OR MUNICIPALITY WHERE CONDEMNATION OF SUCH ANIMALS SHALL TAKE PLACE; NOR SHALL ANY PAYMENT BE MADE HEREUNDER AS COMPENSATION FOR OR ON ACCOUNT OF ANY SUCH ANIMAL DESTROYED IF AT THE TIME OF INSPECTION OR TEST OF SUCH ANIMAL, OR AT THE TIME OF CONDEMNATION THEREOF, IT SHALL BELONG TO OR BE UPON THE PREMISES OF ANY PERSON, FIRM, OR CORPORATION, TO WHICH IT HAS BEEN SOLD, SHIPPED, OR DELIVERED FOR THE PURPOSE OF BEING SLAUGHTERED: (2) PROVIDED FURTHER, THAT OUT OF THE MONEY HEREBY APPROPRIATED NO PAYMENT AS COMPENSATION FOR ANY TUBERCULOUS ANIMAL DESTROYED SHALL EXCEED ONE-THIRD OF THE DIFFERENCE BETWEEN THE APPRAISED VALUE OF SUCH ANIMAL AND THE VALUE OF THE SALVAGE THEREOF; THAT NO PAYMENT HEREUNDER SHALL EXCEED THE AMOUNT PAID OR TO BE PAID BY THE STATE, TERRITORY, COUNTY, OR MUNICIPALITY, WHERE THE ANIMAL SHALL BE CONDEMNED; AND THAT IN NO CASE SHALL ANY PAYMENT HEREUNDER BE MORE THAN $25 FOR ANY GRADE ANIMAL OR MORE THAN $50 FOR ANY PURE-BRED ANIMAL, AND NO PAYMENT SHALL BE MADE UNLESS THE OWNER HAS COMPLIED WITH ALL LAWFUL QUARANTINE REGULATIONS; * * *.'

THE CATTLE FOR WHICH CLAIM IS MADE BY THE FIRST NATIONAL BANK WERE THE PROPERTY OF MR. OLIVER CUTT, WHO IS NOW DECEASED. IT SEEMS FROM THE FILE TRANSMITTED HEREWITH THAT THE SLAUGHTERED CATTLE WERE INCLUDED IN A CHATTEL MORTGAGE GIVEN BY MR. CUTT TO THE FIRST NATIONAL BANK OF HALLOCK.

B.A.I. ORDER 237, REGULATION VIII, REQUIRES THAT WHEN ANIMALS HAVE BEEN DESTROYED IN CARRYING OUT TUBERCULOSIS-ERADICATION WORK, THE INSPECTOR SHALL TAKE REASONABLE PRECAUTION TO DETERMINE WHO IS THE OWNER OF THE SLAUGHTERED CATTLE AND WHETHER THERE IS ANY MORTGAGE OR OTHER LIEN OUTSTANDING AGAINST THE ANIMALS. A COPY OF THIS ORDER IS ALSO TRANSMITTED. IT HAS BEEN THE UNIFORM PRACTICE IN PAYING THESE CLAIMS THAT, WHERE IT APPEARS THAT A FIRST LIEN EXISTS AGAINST THE SLAUGHTERED ANIMALS, THE HOLDER OF THE LIEN IS EITHER REQUIRED TO RELEASE THE SAME OR IS INCLUDED IN THE VOUCHER, TOGETHER WITH THE RECORD OWNER. SOME QUESTION, HOWEVER, HAS ARISEN AS TO THE PROPRIETY OF THIS PROCEDURE AND YOUR DECISION IS RESPECTFULLY REQUESTED WHETHER, IN THE INSTANT CASE, THE DEPARTMENT IS AUTHORIZED TO PAY THE FIRST NATIONAL BANK OF HALLOCK AS THE HOLDER OF THE FIRST LIEN AGAINST THE SLAUGHTERED CATTLE WITHOUT REFERENCE TO THE DECEASED OWNER OR HIS ESTATE TO THE EXTENT OF THE AMOUNT OF THE MORTGAGE.

THERE IS ALSO A CLAIM PENDING BEFORE THE DEPARTMENT IN WHICH THE FACTS ARE SIMILAR TO THOSE ABOVE DESCRIBED, WITH THE EXCEPTION THAT THE RECORD OWNER, ONE G. S. BATSON, CAN NOT BE LOCATED, HAVING DISAPPEARED FOR PARTS UNKNOWN. YOUR DECISION IS REQUESTED WHETHER IN SUCH A CASE THE HOLDER OF THE LIEN, ASSUMING THE LIEN TO COVER THE ENTIRE INTEREST OF THE MORTGAGOR, IS ENTITLED TO PAYMENT, OR WILL THE DEPARTMENT BE REQUIRED TO HOLD THE AMOUNT OF THE INDEMNITY UNTIL THE RECORD OWNER CAN BE LOCATED AND MAKE PAYMENT TO HIM WITHOUT REFERENCE TO THE MORTGAGEE.

WOULD YOUR ANSWER BE THE SAME IN THE CASE OF THE SLAUGHTER OF TUBERCULOUS CATTLE BOUGHT BY A CLAIMANT FROM ANOTHER PERSON ON A CONDITIONAL-SALE CONTRACT?

THE PAYMENTS AUTHORIZED TO BE MADE UNDER THE PROVISIONS OF LAW QUOTED IN YOUR LETTER, TO OWNERS OF DESTROYED TUBERCULOUS ANIMALS, ARE IN THE NATURE OF GRATUITIES AS THE GOVERNMENT RECEIVES NO TANGIBLE RETURN FROM SUCH PAYMENTS. THE STATUTE DOES NOT CONFER UPON THE OWNERS OF, OR PERSONS HAVING AN INTEREST IN, THE DESTROYED ANIMALS ANY LEGAL RIGHT TO REQUIRE THE UNITED STATES TO MAKE ANY PAYMENT THEREUNDER. SUCH PAYMENTS AS ARE AUTHORIZED TO BE MADE BY THE SECRETARY OF AGRICULTURE TO SUCH OWNERS ARE TO BE MADE ONLY "IN HIS DISCRETION, AND IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE," SUBJECT TO THE RESTRICTIONS AND LIMITATIONS SPECIFICALLY IMPOSED BY THE STATUTE. THE RESTRICTIONS IMPOSED BY THE STATUTE WITH REFERENCE TO THE PERSONS TO WHOM AND THE CONDITIONS UNDER WHICH THE PAYMENTS MAY BE MADE ARE:

(1) THAT THE PAYMENTS ARE AUTHORIZED TO BE MADE ONLY WHERE THE ANIMALS ARE DESTROYED IN "SUCH STATES, TERRITORIES, COUNTIES, OR MUNICIPALITIES, AS SHALL BY LAW OR BY SUITABLE ACTION IN KEEPING WITH ITS AUTHORITY IN THE MATTER, AND BY RULES AND REGULATIONS ADOPTED AND ENFORCED IN PURSUANCE THEREOF, PROVIDE INSPECTION OF TUBERCULOUS ANIMALS AND FOR COMPENSATION TO OWNERS OF ANIMALS SO DESTROYED.' THAT IS TO SAY, UNLESS THE STATE, TERRITORY, COUNTY, OR MUNICIPALITY PROVIDES BY LAW, OR UNDER AUHORITY OF LAW, FOR THE DESTRUCTION OF TUBERCULOUS ANIMALS AND FOR COMPENSATION TO THE OWNERS THEREOF, THERE IS NO AUTHORITY TO USE THE FEDERAL FUNDS FOR THAT PURPOSE.

(2) THAT NO PART OF THE FEDERAL FUNDS SO APPROPRIATED "SHALL BE USED IN COMPENSATING OWNERS OF SUCH ANIMALS EXCEPT IN COOPERATION WITH AND SUPPLEMENTARY TO PAYMENTS TO BE MADE BY STATE, TERRITORY, COUNTY, OR MUNICIPALITY WHERE CONDEMNATION OF SUCH ANIMALS SHALL TAKE PLACE.'

(3) THAT NO PAYMENT SHALL BE MADE IF THE DESTROYED ANIMAL, AT THE TIME OF INSPECTION, TEST, OR CONDEMNATION, BELONGED TO OR WAS UPON THE PREMISES OF ANY PERSON, FIRM, OR CORPORATION TO WHICH IT HAD BEEN "SOLD, SHIPPED, OR DELIVERED FOR THE PURPOSE OF BEING SLAUGHTERED.'

(4) THAT "NO PAYMENT SHALL BE MADE UNLESS THE OWNER HAS COMPLIED WITH ALL LAWFUL QUARANTINE REGULATIONS.'

IN VIEW OF THESE RESTRICTIONS YOU ARE NOT AUTHORIZED TO MAKE PAYMENT UNDER THE PROVISIONS IN QUESTION UNLESS THE PERSON CLAIMING TO BE THE OWNER OF THE DESTROYED ANIMALS ESTABLISHES TO YOUR SATISFACTION (1) THAT HE HAS COMPLIED WITH ALL LAWFUL QUARANTINE REGULATIONS; (2) THAT THE ANIMAL HAD NOT AT THE TIME OF INSPECTION, TEST, OR CONDEMNATION BEEN SOLD, SHIPPED, OR DELIVERED FOR THE PURPOSE OF BEING SLAUGHTERED; AND (3) THAT THE STATE, TERRITORY, COUNTY, OR MUNICIPALITY IN WHICH THE ANIMAL WAS DESTROYED HAS MADE OR WILL MAKE PAYMENT TO HIM ON ACCOUNT OF THE DESTRUCTION IN ACCORDANCE WITH PROVISION MADE THEREFOR BY LAW OR UNDER LEGAL AUTHORITY. SUCH ESSENTIAL FACTS BEING DULY ESTABLISHED, YOU ARE AUTHORIZED, IN YOUR DISCRETION, TO MAKE PAYMENT TO SUCH PERSON WITHOUT MAKING INDEPENDENT INQUIRY AS TO MORTGAGES, LIENS, ETC., BUT SHOULD CONFLICTING CLAIMS BE ASSERTED YOU WOULD BE JUSTIFIED, IN THE EXERCISE OF YOUR DISCRETION, TO DECLINE MAKING ANY PAYMENT UNTIL SUCH CONFLICTS HAVE BEEN RECONCILED TO YOUR SATISFACTION.

THE LAW DOES NOT REQUIRE THAT PAYMENT BE MADE ON ACCOUNT OF EACH AND EVERY ANIMAL DESTROYED; NOR DOES IT REQUIRE THAT THE AMOUNT AUTHORIZED TO BE PAID IN ANY GIVEN CASE BE APPORTIONED TO ALL PARTIES WHO HAD AN INTEREST IN THE DESTROYED ANIMAL AT THE TIME OF ITS DESTRUCTION. HEREINBEFORE STATED, THE PAYMENTS AUTHORIZED TO BE MADE UNDER THIS LAW ARE IN THE NATURE OF GRATUITIES PAYABLE ONLY IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE SUBJECT TO THE STATUTORY RESTRICTIONS; AND IN NO CASE SHOULD SUCH PAYMENT BE MADE UNLESS "IN THE OPINION OF THE SECRETARY OF AGRICULTURE IT SHALL BE NECESSARY" TO PROMOTE THE WORK OF CONTROLLING AND ERADICATING THE DISEASE OF TUBERCULOSIS OF ANIMALS.