A-6498, APRIL 20, 1925, 4 COMP. GEN. 876

A-6498: Apr 20, 1925

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DAMAGES TO PRIVATE PROPERTY - NAVY IT IS WITHIN THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO DETERMINE WHETHER PAYMENTS MADE UNDER A STATUTE AUTHORIZING AN ADMINISTRATIVE OFFICER TO PAY CLAIMS AGAINST THE UNITED STATES OF A CERTAIN DEFINED CLASS OR CLASSES. 1925: I HAVE YOUR LETTER OF MARCH 12. WAS HELD RESPONSIBLE BY THE AUTHORITIES OF THE NAVY DEPARTMENT. THE MATTER WAS PRESENTED FOR CONSIDERATION OF THIS OFFICE IN THE AUDIT OF THE DISBURSING ACCOUNTS OF COMMANDER F. IT WAS STATED THAT THE EVIDENCE THEREIN REQUESTED "IS DESIRED FOR THE PURPOSE OF DETERMINING THAT THE CLAIM WAS PROPERLY FOR DETERMINATION AND SETTLEMENT WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY.'. CONTENDING THAT THE AUTHORITY THEREUNDER GIVEN THE SECRETARY OF THE NAVY TO PASS UPON THE VALIDITY OF THE CLAIMS "IPSO FACTO IS POWER TO DETERMINE WHETHER OR NOT THE CLAIM (DAMAGE) IS ONE WHICH HE IS AUTHORIZED BY CONGRESS TO PAY.'.

A-6498, APRIL 20, 1925, 4 COMP. GEN. 876

DAMAGES TO PRIVATE PROPERTY - NAVY IT IS WITHIN THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO DETERMINE WHETHER PAYMENTS MADE UNDER A STATUTE AUTHORIZING AN ADMINISTRATIVE OFFICER TO PAY CLAIMS AGAINST THE UNITED STATES OF A CERTAIN DEFINED CLASS OR CLASSES, COME WITHIN THE GENERAL CLASS TO WHICH THE STATUTE APPLIES AND TO DISALLOW CREDIT IN A DISBURSING OFFICER'S ACCOUNT FOR PAYMENTS NOT COMING WITHIN THE SCOPE OF THE LAW. THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZING THE HEADS OF DEPARTMENTS TO CONSIDER, ASCERTAIN, ADJUST AND DETERMINE DAMAGE CLAIMS IN AMOUNTS NOT TO EXCEED $1,000 CAUSED BY NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT SUPERSEDES IN NEGLIGENCE CASES THE ACT OF JULY 11, 1919, 41 STAT. 132, AND REQUIRES THAT DAMAGE CLAIMS RESULTING FROM NEGLIGENCE OF EMPLOYEES AND ENLISTED MEN OF THE NAVY WITHIN THE SCOPE OF THEIR EMPLOYMENT BE CERTIFIED TO CONGRESS AND NOT PAID BY DISBURSING OFFICERS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, APRIL 20, 1925:

I HAVE YOUR LETTER OF MARCH 12, 1925, FURNISHING ADDITIONAL EVIDENCE REQUESTED BY OFFICE LETTER OF FEBRUARY 6, 1925, RELATIVE TO THE AWARD AND PAYMENT OF $450 TO COMMANDER WILLIAM B. TATE, UNITED STATES NAVY, UNDER PROVISIONS OF THE ACT OF JULY 11, 1919, 41 STAT. 132, FOR DAMAGES TO HIS AUTOMOBILE SUSTAINED IN COLLISION WITH A NAVY AMBULANCE, FOR WHICH C. A. ROBEY, SEAMAN (S.C.), UNITED STATES NAVY, THE DRIVER OF THE AMBULANCE, WAS HELD RESPONSIBLE BY THE AUTHORITIES OF THE NAVY DEPARTMENT. THE MATTER WAS PRESENTED FOR CONSIDERATION OF THIS OFFICE IN THE AUDIT OF THE DISBURSING ACCOUNTS OF COMMANDER F. G. PYNE, UNITED STATES NAVY, FOR AUGUST, 1924.

IN LETTER TO YOU OF FEBRUARY 6, 1925, IT WAS STATED THAT THE EVIDENCE THEREIN REQUESTED "IS DESIRED FOR THE PURPOSE OF DETERMINING THAT THE CLAIM WAS PROPERLY FOR DETERMINATION AND SETTLEMENT WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY.' YOU STATE YOU DO NOT UNDERSTAND THIS REQUEST AND DISCUSS THE JURISDICTION OF THE SECRETARY OF THE NAVY UNDER THE ACT OF JULY 11, 1919, SUPRA, CONTENDING THAT THE AUTHORITY THEREUNDER GIVEN THE SECRETARY OF THE NAVY TO PASS UPON THE VALIDITY OF THE CLAIMS "IPSO FACTO IS POWER TO DETERMINE WHETHER OR NOT THE CLAIM (DAMAGE) IS ONE WHICH HE IS AUTHORIZED BY CONGRESS TO PAY.' IT IS ALSO STATED THAT YOU "DO NOT WISH TO ACCEDE TO THE CLAIM THAT YOU (I) HAVE THE POWER TO REVIEW THE ACT OF THE SECRETARY OF THE NAVY IN ALLOWING CLAIMS OF THIS CHARACTER UNDER CIRCUMSTANCES STATED BY YOU.'

YOUR LETTER SUGGESTS THAT YOU ARE IN DOUBT AS TO THE RELATIVE DUTIES OF THE NAVY DEPARTMENT AND THIS OFFICE UNDER THE STATUTES INVOLVED, AND I SHALL REPLY ACCORDINGLY, AND I SHALL ALSO BE GLAD TO CONFER WITH YOU PERSONALLY, IF, IN CONNECTION WITH THIS REPLY, YOU BELIEVE IT NECESSARY.

THE LETTER OF FEBRUARY 6, 1925, IS NOT TO BE UNDERSTOOD AS INVOLVING A REVIEW OF THE MERITS OF SUCH CLAIMS. THE PRIME FUNCTION OF THIS OFFICE, IN SO FAR AS THE AUDIT OF DISBURSING ACCOUNTS IS CONCERNED, IS TO DETERMINE THAT THE EXPENDITURES OF APPROPRIATED FUNDS FOR WHICH CREDIT IS ASKED HAVE BEEN MADE FOR THE PURPOSE FOR WHICH APPROPRIATED. ALL STATUTES AUTHORIZING ADMINISTRATIVE OFFICERS TO MAKE PAYMENT OF CLAIMS AGAINST THE UNITED STATES DEFINE THE CLASSES OF CLAIMS COMING WITHIN THE TERMS OF THE ACTS. THE GENERAL ACCOUNTING OFFICE UNDOUBTEDLY HAS THE DUTY TO DETERMINE WHETHER A PAYMENT MADE UNDER SUCH A STATUTE, FOR WHICH CREDIT IS CLAIMED IN THE ACCOUNTS OF A DISBURSING OFFICER COMING BEFORE IT FOR SETTLEMENT, WAS BASED ON A CLAIM COMING WITHIN THE TERMS OF THE CONTROLLING STATUTE. IF IT APPEARS THAT THE CLAIM WAS NOT OF THE CLASS WITHIN THE TERMS OF THE STATUE WHICH THE GOVERNMENT OFFICER HAD AUTHORITY TO PAY, THE AMOUNT THEREOF MUST BE DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER, BUT IF IT APPEARS THAT THE CLAIM WAS OF THE CLASS WITHIN THE TERMS OF THE STATUTE, THE PAYMENT IS PROPERLY ALLOWABLE IN THE ACCOUNTS. IT IS NECESSARY, THEREFORE THAT THE RECORD PRESENTED TO THE GENERAL ACCOUNTING OFFICE SHOW THE PROPER FACTS UPON WHICH THE CLAIM PAID MUST REST TO BE WITHIN THE STATUTE.

I MAY QUOTE FROM A DECISION RECENTLY RENDERED BY ME TO THE SECRETARY OF THE INTERIOR, FEBRUARY 26, 1925, 4 COMP. GEN. 713, IN WHICH IT WAS SAID:

THE DUTIES OF THE GENERAL ACCOUNTING OFFICE RELATE SPECIFICALLY TO THE SETTLEMENT OF ALL CLAIMS AND DEMANDS BY OR AGAINST THE UNITED STATES AND THE ADJUSTMENT OF ACCOUNTS IN WHICH THE UNITED STATES APPEARS AS DEBTOR OR CREDITOR. THESE DUTIES NECESSARILY INVOLVE THE USES AND AVAILABILITY OF APPROPRIATIONS; AND WHILE IN THE PERFORMANCE OF THESE DUTIES, PARTICULARLY IN VIEW OF THE PRESENT SYSTEM OF GOVERNMENT DISBURSEMENTS, THE ACTION TAKEN IS NOT INITIALLY BY THE GENERAL ACCOUNTING OFFICE BUT BY THE ADMINISTRATIVE OFFICE CONCERNED, YET ACTION IN THE MATTER EVENTUALLY AND FINALLY MUST BE BY THE GENERAL ACCOUNTING OFFICE. THE DUTIES OF THE GENERAL ACCOUNTING OFFICE ARE PURSUANT TO PERMANENT SUBSTANTIVE LAW APPLICABLE GENERALLY, SO THAT APPROPRIATION AUTHORITY OR OTHER LEGISLATIVE AUTHORITY DOES NOT REQUIRE THE EXPRESS REENACTMENT OF OR SPECIFIC SUBJECTION TO SUCH ACCOUNTING DUTIES, BUT ON THE CONTRARY IT WOULD BE NECESSARY FOR EXPRESS AND SPECIFIC STATUTORY PROVISION TO APPEAR TO REMOVE FROM THE JURISDICTION ATTENDANT UPON THE PERFORMANCE OF SUCH ACCOUNTING DUTIES. THE AUTHORITY GIVEN BY THE APPROPRIATION PROVISION WAS PRIMARILY ADMINISTRATIVE, THE SAME AS ANY OTHER ADMINISTRATIVE AUTHORITY. THE PURPOSE WAS TO GIVE AN ADMINISTRATIVE AUTHORITY AND THERE WAS NEITHER PURPOSE NOR NEED TO EXCLUDE THE ACCOUNTING DUTIES; AND THE PERMANENT SUBSTANTIVE LAW RELATING TO ACCOUNTING FOR PUBLIC FUNDS MUST ATTACH TO THE ADMINISTRATIVE AUTHORITY GIVEN BY THE APPROPRIATION PROVISION. THE ONE NEED NOT, MUST NOT, TAKE FROM THE OTHER.

THE REAL AND PRACTICAL QUESTION APPARENTLY INVOLVED CONCERNS THE PERFORMANCE OF THE ADMINISTRATIVE AUTHORITY SO AS TO MEET ACCOUNTING REQUIREMENTS. THE BASIC ADMINISTRATIVE COURSE IS LIMITED TO MATTERS WITHIN THE LAW OF THE APPROPRIATION. THE BASIC ACCOUNTING REQUIREMENT IS THE EXAMINATION OF THE MATTERS TO DETERMINE THAT THE ADMINISTRATIVE COURSE WAS WITHIN THE LAW OF THE APPROPRIATION. HENCE, IN A CLAIM FOR DAMAGES COMPROMISED UNDER THE APPROPRIATION AUTHORITY THERE MUST APPEAR FACTS SHOWING THAT IT WAS "BY REASON OF THE OPERATIONS OF THE UNITED STATES, ITS OFFICERS, OR EMPLOYEES, IN THE SURVEY, CONSTRUCTION, OPERATION, OR MAINTENANCE OF IRRIGATION WORKS.' THE BASIC CONDITION MUST ALWAYS APPEAR, THAT THERE WAS A CLAIM OF THE CHARACTER SPECIFIED BY THE LAW; AND PROBABLY THEREIN LIES THE MOST OF ADMINISTRATIVE DIFFICULTY. IF THERE BE DOUBT OF THE CLAIM BEING WITHIN THE LAW, THE MATTER MAY BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION IN ADVANCE OF PAYMENT AS AUTHORIZED BY LAW. ACT OF JULY 31, 1894, 28 STAT. 208. LIKEWISE, THE FACTS MUST SUPPORT THE AMOUNT CLAIMED AND THUS ALSO SUPPORT THE AMOUNT AGREED UPON IN COMPROMISE.

IN THE PRESENT INSTANCE THERE ARE TWO STATUTES PRIMARILY FOR CONSIDERATION. THE ACT OF JULY 11, 1919, SUPRA, AUTHORIZES THE SECRETARY OF THE NAVY "TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY" DAMAGE CLAIMS IN AMOUNTS NOT IN EXCESS OF $500 FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE. ANNUAL APPROPRIATIONS ARE PROVIDED FOR PAYMENT OF THESE CLAIMS. THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZES THE HEAD OF EACH DEPARTMENT, WHICH WOULD INCLUDE THE SECRETARY OF THE NAVY, TO "CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE" DAMAGE CLAIMS IN AMOUNTS NOT TO EXCEED $1,000 ACCRUED SINCE APRIL 6, 1917,"CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS PLOYMENT.' ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS ARE EXPRESSLY INCLUDED AS MPLOYEES.' YOU WILL NOTE THAT THIS ACT DOES NOT AUTHORIZE THE HEAD OF A DEPARTMENT TO "PAY" THE CLAIM BUT REQUIRES THE CERTIFICATION OF THE AMOUNT FOUND DUE TO THE CONGRESS FOR SPECIFIC APPROPRIATION.

THUS, IT WAS THE DUTY OF THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF COMMANDER PYNE'S ACCOUNTS TO DETERMINE UNDER WHICH OF THESE TWO ACTS, IF EITHER, THE CLAIMANT, TATE, WAS AUTHORIZED TO ASSERT CLAIM AGAINST THE UNITED STATES, AND THE PROPER PERFORMANCE OF THAT DUTY NECESSITATED THE LETTER OF FEBRUARY 6, 1925, TO OBTAIN THE FULL FACTS.

THE ACT OF JULY 11, 1919, SPECIFIED THAT MEN IN THE NAVAL SERVICE MUST BE "RESPONSIBLE" FOR THE DAMAGE OR LOSS TO THE PRIVATE PROPERTY. THE ACT OF DECEMBER 28, 1922, SPECIFIED THAT THE DAMAGE OR LOSS MUST HAVE BEEN CAUSED BY THE "NEGLIGENCE" OF THE EMPLOYEE. THE EARLIER LAW WAS BROAD ENOUGH TO INCLUDE NEGLIGENCE CLAIMS BUT THE ENACTMENT OF THE SUBSEQUENT LAW, SPECIFICALLY APPLICABLE TO NEGLIGENCE CLAIMS, HAD THE EFFECT OF SUPERSEDING THE EARLIER LAW WITH RESPECT TO THAT CLASS OF CLAIMS. THAT IS TO SAY, WHERE THERE IS BOTH A GENERAL AND SPECIAL STATUTE COVERING DISPOSITION OF PRIVATE PROPERTY DAMAGE CLAIMS AGAINST THE UNITED STATES, THE SPECIAL STATUTE IS EXCLUSIVELY APPLICABLE TO THE CLASS OF CLAIMS COMING THEREUNDER. IF THE CLAIM IS ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF AN ENLISTED MAN IN THE NAVY THERE IS NO AUTHORITY FOR ITS CONSIDERATION AND SETTLEMENT UNDER THE ACT OF JULY 11, 1919, AND PAYMENT IS NOT AUTHORIZED BY A DISBURSING OFFICER OF THE NAVY FROM THE ANNUAL APPROPRIATIONS PROVIDED FOR PAYMENT OF CLAIMS UNDER THAT STATUTE, BUT IS FOR CONSIDERATION, ADJUSTMENT, AND DETERMINATION UNDER THE ACT OF DECEMBER 28, 1922, AND FOR CERTIFICATION OF THE AMOUNT FOUND DUE TO CONGRESS FOR SPECIFIC APPROPRIATION. THE ONLY CLAIMS NOW FOR SETTLEMENT AND PAYMENT BY THE NAVY DEPARTMENT UNDER THE ACT OF JULY 11, 1919, ARE THOSE PRIVATE PROPERTY DAMAGE CLAIMS NOT IN EXCESS OF $500 FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE DETERMINED TO BE RESPONSIBLE OTHER THAN THROUGH NEGLIGENCE IN THE SCOPE OF THEIR EMPLOYMENT.

A SOMEWHAT SIMILAR SITUATION AROSE AS TO THE RESPECTIVE SCOPE OF THE ACT OF JUNE 16, 1921, 42 STAT. 63, RELATIVE TO SETTLEMENT OF CLAIMS FOR DAMAGE TO PERSONS OR PROPERTY BY OR THROUGH THE OPERATIONS OF THE POST OFFICE DEPARTMENT, AND THE ACT OF DECEMBER 28, 1922, SUPRA. IN DECISION OF MARCH 5, 1923, 2 COMP. GEN. 529, IT WAS HELD THAT THE ACT OF DECEMBER 28, 1922, SUPERSEDED THE ACT OF JUNE 16, 1921, WITH RESPECT TO NEGLIGENCE CLAIMS.

IN THE ADDITIONAL MEMORANDUM, DATED MARCH 12, 1925, FURNISHED WITH YOUR LETTER OF THE SAME DATE, IT IS DEFINITELY STATED THAT THE DAMAGE TO THE AUTOMOBILE OWNED BY COMMANDER TATE WAS "BY REASON OF THE NEGLIGENCE OF DRIVER ROBEY.' ACCEPTING THE FINDING OF FACTS OF THE NAVY DEPARTMENT THE CLAIM IS A "NEGLIGENCE" CLAIM FOR CONSIDERATION, ASCERTAINMENT, ADJUSTMENT, AND DETERMINATION, AS SUCH, UNDER THE ACT OF DECEMBER 28, 1922, WHICH DOES NOT AUTHORIZE A DISBURSING OFFICER OF THE NAVY TO MAKE PAYMENT OF THE AMOUNT FOUND DUE.

I HAVE NO ALTERNATIVE UNDER THE LAW BUT TO DISALLOW THE ITEM OF $450 IN THE ACCOUNTS OF COMMANDER PYNE. THERE IS FOR YOUR CONSIDERATION WHETHER YOU DESIRE TO REPORT THE CLAIM TO CONGRESS FOR AN APPROPRIATION UNDER THE TERMS OF THE ACT OF DECEMBER 28, 1922.