A-65496, FEBRUARY 3, 1936, 15 COMP. GEN. 683

A-65496: Feb 3, 1936

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DAMAGES - PUBLIC PROPERTY - DISPOSITION OF MONEYS RECEIVED MONEYS RECEIVED FROM PRIVATE SOURCES WHICH REPRESENT REIMBURSEMENT FOR COSTS INCURRED AND DAMAGES SUSTAINED BY THE UNITED STATES IN CONNECTION WITH THE ADMINISTRATION OF NATIONAL FORESTS ARE FOR DEPOSITING IN THE TREASURY AS MISCELLANEOUS RECEIPTS WITHOUT ABATEMENT OR DEDUCTION OF ANY KIND WHATSOEVER. THE DISPOSITION OF WHICH IS PROVIDED FOR IN THE VARIOUS LAWS RELATING TO SAID SERVICE. THE OFFER WAS DULY ACCEPTED BY THE ACTING SECRETARY OF THE TREASURY ON SEPTEMBER 9. THE AMOUNT TENDERED IS NOW ON DEPOSIT IN THE SECRETARY OF THE TREASURY'S SPECIAL ACCOUNT NO. 5. AT THE TIME THE OFFER WAS SUBMITTED THE ACTING SECRETARY OF AGRICULTURE WROTE: "IT IS RECOMMENDED.

A-65496, FEBRUARY 3, 1936, 15 COMP. GEN. 683

DAMAGES - PUBLIC PROPERTY - DISPOSITION OF MONEYS RECEIVED MONEYS RECEIVED FROM PRIVATE SOURCES WHICH REPRESENT REIMBURSEMENT FOR COSTS INCURRED AND DAMAGES SUSTAINED BY THE UNITED STATES IN CONNECTION WITH THE ADMINISTRATION OF NATIONAL FORESTS ARE FOR DEPOSITING IN THE TREASURY AS MISCELLANEOUS RECEIPTS WITHOUT ABATEMENT OR DEDUCTION OF ANY KIND WHATSOEVER, AND MAY NOT BE CONSIDERED AS REVENUE DERIVED FROM AUTHORIZED ACTIVITIES OF THE FOREST SERVICE, THE DISPOSITION OF WHICH IS PROVIDED FOR IN THE VARIOUS LAWS RELATING TO SAID SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 3, 1936:

THERE HAS BEEN RECEIVED A LETTER OF SEPTEMBER 13, 1935, FROM YOUR ADMINISTRATIVE ASSISTANT, WRITTEN PRESUMABLY BY YOUR DIRECTION, AS FOLLOWS:

ON MAY 25, 1935, THE ACTING SECRETARY OF AGRICULTURE SUBMITTED, FOR CONSIDERATION UNDER THE GENERAL COMPROMISE STATUTE, AN OFFER BY THE DENVER AND SALT LAKE RAILWAY COMPANY TO PAY $874.51 IN SETTLEMENT OF THE GOVERNMENT'S CLAIM OF $1,791.53 AGAINST IT. THE CLAIM AROSE AS THE RESULT OF A FOREST FIRE WHICH ALLEGEDLY ORIGINATED ALONG THE RAILWAY COMPANY'S RIGHT OF WAY OVER THE ROOSEVELT NATIONAL FOREST, COLORADO, AND CONSISTED OF $917.02 FOR DAMAGE TO TIMBER AND REPRODUCTION AND $874.51 FOR FIRE SUPPRESSION COSTS. THE OFFEROR DENIED LIABILITY FOR THE PAYMENT OF ANY PART OF THE CLAIM, BUT OFFERED AN AMOUNT EQUAL TO THE COST OF THE SUPPRESSION OF THE FIRE IN COMPROMISE OF THE GOVERNMENT'S ENTIRE CLAIM. THE OFFER WAS DULY ACCEPTED BY THE ACTING SECRETARY OF THE TREASURY ON SEPTEMBER 9, 1935, AND THE AMOUNT TENDERED IS NOW ON DEPOSIT IN THE SECRETARY OF THE TREASURY'S SPECIAL ACCOUNT NO. 5.

AT THE TIME THE OFFER WAS SUBMITTED THE ACTING SECRETARY OF AGRICULTURE WROTE:

"IT IS RECOMMENDED, THEREFORE, THAT IF THE OFFER IS ACCEPTED IT MAY BE DEPOSITED TO THE CREDIT OF SALARIES AND EXPENSES, FOREST SERVICE, 1935--- FIRE FIGHTING, SYMBOL NO. 35203.'

IN ACKNOWLEDGING RECEIPT OF THE ACTING SECRETARY OF AGRICULTURE'S LETTER, THE ACTING GENERAL COUNSEL OF THE TREASURY DEPARTMENT WROTE, WITH PARTICULAR REFERENCE TO THE STATEMENT QUOTED:

"IT WOULD APPEAR BY REASON OF THE PROVISIONS OF 31 U.S.C. 484 AND THE DECISION OF THE COMPTROLLER GENERAL REPORTED IN 3 COMP. GEN. 808, THE DEPARTMENT WILL HAVE NO ALTERNATIVE, IF THE OFFER IS ACCEPTED, THAN TO COVER THE AMOUNT INVOLVED INTO THE TREASURY AS A MISCELLANEOUS RECEIPT UNDER SYMBOL NO. 4330, REIMBURSEMENTS, GOVERNMENT PROPERTY LOST OR DAMAGED. IT WILL, THEREFORE, BE APPRECIATED IF YOU WILL ADVISE THE DEPARTMENT OF THE BASIS OF THE ACTING SECRETARY'S REQUEST.'

IN RESPONSE TO THE LETTER OF THE ACTING GENERAL COUNSEL, THE ACTING SECRETARY OF AGRICULTURE WROTE UNDER DATE OF JULY 6, 1935:

"* * * YOU ARE ADVISED THAT THE REQUEST TO HAVE THE SUM OFFERED BY THE COMPANY DEPOSITED TO THE CREDIT OF THE APPROPRIATION IS BASED SOLELY UPON A PRACTICE THAT HAS PREVAILED FOR MANY YEARS. THE RESULT OF THIS PROCEDURE IS MERELY TO REDUCE THE AMOUNT OF THE DEFICIENCY APPROPRIATION THAT MUST BE REQUESTED ON ACCOUNT OF FOREST FIRE EXPENDITURES. WHEN THE MONEY COLLECTED INCLUDES DAMAGES FOR TIMBER DESTROYED, THE FOREST PRESERVE FUND IS CREDITED PROPORTIONATELY IN ACCORDANCE WITH THE ACT OF FEBRUARY 1, 1905 (33 STAT. 628), MAKING FOREST RECEIPTS A SPECIAL FUND, THE ACT OF MAY 23, 1908 (35 STAT. 251, 260), AND THE ACT OF MARCH 4, 1913 (37 STAT. 828), PROVIDING RESPECTIVELY FOR PAYMENT OF 25 PERCENT OF FOREST RECEIPTS TO THE STATES FOR SCHOOL PURPOSES AND FOR USE OF TEN PERCENT BY THE SECRETARY OF AGRICULTURE FOR THE CONSTRUCTION OF ROADS AND TRAILS.

"A COPY OF A MEMORANDUM BY THE CHIEF OF THE DIVISION OF FISCAL CONTROL OF THE FOREST SERVICE IS SUBMITTED FOR YOUR INFORMATION.'

A COPY OF THE MEMORANDUM SUBMITTED IS ENCLOSED. IN CONNECTION WITH THE LAST PARAGRAPH OF THE MEMORANDUM, IT MAY BE WELL TO EMPHASIZE THAT, WHILE THE SUM OFFERED IS, AS STATED, MERELY THE AMOUNT EXPENDED BY THE GOVERNMENT FOR TEMPORARY LABORERS AND SUPPLIES, IT WAS OFFERED AND ACCEPTED IN COMPROMISE OF THE GOVERNMENT'S ENTIRE CLAIM; AND ISSUE IS TAKEN WITH THE STATEMENT THAT IT DOES NOT PURPORT TO COVER ANY PROPERTY LOSS SUFFERED.

YOUR DECISION IS REQUESTED AS TO WHETHER THE SECRETARY OF THE TREASURY MAY PROPERLY CREDIT THE AMOUNT ACCEPTED, WHICH IS NOW ON DEPOSIT IN THE SECRETARY OF THE TREASURY'S SPECIAL ACCOUNT NO. 5, TO THE APPROPRIATION SUGGESTED BY THE ACTING SECRETARY OF AGRICULTURE.

ON MAY 9, 1935, THE ACTING SECRETARY OF AGRICULTURE SUBMITTED AN OFFER OF $100 BY MR. R. J. GREEN, OF LA GRANDE, OREGON, TO PAY $100 IN COMPROMISE OF THE GOVERNMENT'S CLAIM OF $567 AGAINST HIM ON ACCOUNT OF THE FOREST FIRE IN THE WHITMAN NATIONAL FOREST. THIS OFFER WAS ON MAY 17, 1935, DULY ACCEPTED BY THE ACTING SECRETARY OF THE TREASURY, AND UNDER DATE OF JUNE 10, 1935, IN RESPONSE TO AN INQUIRY FROM THE TREASURY DEPARTMENT, THE ACTING SECRETARY OF AGRICULTURE WROTE:

"YOU ARE ADVISED THAT THE AMOUNT ACCEPTED IS TO BE CREDITED TO SALARIES AND EXPENSES, FOREST SERVICE, FISCAL YEAR, 1935, SYMBOL NO. 35203.'

THE AMOUNT IN QUESTION IS NOW ON DEPOSIT IN THE SECRETARY OF THE TREASURY'S SPECIAL ACCOUNT NO. 5. INASMUCH AS THIS MATTER APPEARS TO RAISE CONSIDERATIONS SIMILAR TO THOSE RAISED IN THE DENVER AND SALT LAKE RAILWAY COMPANY MATTER, YOUR DECISION IS ALSO REQUESTED AS TO WHETHER THE AMOUNT ACCEPTED MAY PROPERLY BE CREDITED TO THE APPROPRIATION DESIGNATED BY THE ACTING SECRETARY OF AGRICULTURE.

IT IS NOTED FROM YOUR LETTER THAT THE CLAIM AGAINST THE DENVER AND SALT LAKE RAILWAY CO. CONSISTED OF TWO ITEMS, NAMELY, $917.02 FOR DAMAGE TO TIMBER AND REPRODUCTION, AND $874.51 FOR FIRE SUPPRESSION COSTS, AND THAT WHILE THE CLAIM WAS COMPROMISED FOR THE EXACT AMOUNT OF THE LATTER ITEM, THE AMOUNT RECEIVED WAS NEVERTHELESS RECEIVED IN COMPROMISE OF THE ENTIRE CLAIM.

THE GENERAL RULE IS THAT MONEYS RECEIVED BY THE UNITED STATES AS DAMAGES TO GOVERNMENT PROPERTY ARE FOR DEPOSITING IN THE TREASURY AS MISCELLANEOUS RECEIPTS AND THERE APPEARS NO EXCEPTION INSOFAR AS MONEYS OF THE KIND HERE INVOLVED ARE CONCERNED. SEE 3 COMP. GEN. 808. IN THIS CONNECTION, IT IS TO BE OBSERVED THAT THE ACTING SECRETARY OF AGRICULTURE STATES IN THE QUOTED PART OF HIS LETTER OF JULY 6, 1935, THAT THE REQUEST TO DEPOSIT THE FUNDS TO THE CREDIT OF THE APPROPRIATION IS BASED SOLELY UPON A PRACTICE WHICH HE STATES HAS PREVAILED FOR MANY YEARS. THERE APPEARS NO STATUTORY AUTHORITY FOR SUCH ACTION, AND NOTWITHSTANDING THE LONG CONTINUED PRACTICE WITH RESPECT THERETO, MONEYS RECEIVED FROM PRIVATE SOURCES BY THE DEPARTMENT OF AGRICULTURE WHICH REPRESENT REIMBURSEMENT FOR COSTS INCURRED AND DAMAGES SUSTAINED BY THE UNITED STATES IN CONNECTION WITH THE ADMINISTRATION OF NATIONAL FORESTS MAY NOT BE CONSIDERED PROPERLY AS REVENUE DERIVED FROM AUTHORIZED ACTIVITIES OF THE FOREST SERVICE, SUCH AS THE SALE OF PRODUCTS, ETC., THE DISPOSITION OF WHICH IS PROVIDED FOR IN THE VARIOUS ACTS RELATING TO THE FOREST SERVICE. SUCH MONEYS ARE RECEIVED FOR THE USE OF THE UNITED STATES AND ARE REQUIRED TO BE PAID INTO THE TREASURY WITHOUT ANY ABATEMENT OR DEDUCTION OF ANY KIND WHATSOEVER. SEE SECTION 3617, REVISED STATUTES.

ACCORDINGLY, YOU ARE ADVISED THAT THE MONEYS IN THESE AND SIMILAR CASES SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.