A-6633, FEBRUARY 26, 1925, 4 COMP. GEN. 713

A-6633: Feb 26, 1925

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ARE AUTHORIZED TO BE COMPROMISED BY AGREEMENT BETWEEN THE CLAIMANT AND THE SECRETARY OF THE INTERIOR AND PAID FROM THE RECLAMATION FUND. THE PROVISION IS SIMILAR TO THAT WHICH HAS HERETOFORE APPEARED IN APPROPRIATIONS FOR THE RECLAMATION SERVICE. YOUR SUBMISSION URGES THAT THE APPROPRIATION AUTHORITY "TAKES FROM THE ACCOUNTING OFFICERS JURISDICTION WHICH THEY MIGHT OTHERWISE HAVE HAD AND THUS VESTS IT IN THE SECRETARY OF THE INTERIOR WHO. THE ACTION TAKEN IS NOT INITIALLY BY THE GENERAL ACCOUNTING OFFICE BUT BY THE ADMINISTRATIVE OFFICE CONCERNED. THE DUTIES OF THE GENERAL ACCOUNTING OFFICE ARE PURSUANT TO PERMANENT SUBSTANTIVE LAW APPLICABLE GENERALLY. THE AUTHORITY GIVEN BY THE APPROPRIATION PROVISION WAS PRIMARILY ADMINISTRATIVE.

A-6633, FEBRUARY 26, 1925, 4 COMP. GEN. 713

CLAIMS, COMPROMISE - RECLAMATION SERVICE - JURISDICTION OF DISBURSING OFFICERS UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1924, 43 STAT. 416, DAMAGES CAUSED TO THE OWNERS OF LANDS OR PRIVATE PROPERTY OF ANY KIND BY REASON OF IRRIGATION OPERATIONS, ETC., ARE AUTHORIZED TO BE COMPROMISED BY AGREEMENT BETWEEN THE CLAIMANT AND THE SECRETARY OF THE INTERIOR AND PAID FROM THE RECLAMATION FUND, AND NO PAYMENTS OF DAMAGES AS A RESULT OF COMPROMISE AGREEMENTS MAY BE MADE PRIOR TO APPROVAL OF THE SECRETARY OF THE INTERIOR. THE ACT OF JUNE 5, 1924, 43 STAT. 416, MERELY AUTHORIZES THE COMPROMISE BY THE SECRETARY OF THE INTERIOR OF CLAIMS FOR DAMAGES CAUSED TO THE OWNERS OF LANDS OR PRIVATE PROPERTY OF ANY KIND BY REASON OF IRRIGATION OPERATIONS, ETC., AND IN NO WAY SUSPENDS OR SUPERSEDES THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO SETTLE AND ADJUST SUCH CLAIMS, AS PROVIDED BY SECTION 236, REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24. CLAIMS FOR PAYMENT OF DAMAGES UNDER THE ACT OF JUNE 5, 1924, 43 STAT. 416, INVOLVING DOUBTFUL QUESTIONS OF LAW AND FACT, SHOULD NOT BE PAID BY DISBURSING OFFICERS BUT FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 26, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 2, 1924, RESPECTING THE PROVISION IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1925, 43 STAT. 416, FOR THE RECLAMATION SERVICE AUTHORIZING THE COMPROMISE BY THE SECRETARY OF THE INTERIOR OF CLAIMS FOR DAMAGES TO OWNERS OF LANDS OR PRIVATE PROPERTY "BY REASON OF THE OPERATIONS OF THE UNITED STATES, ITS OFFICERS OR EMPLOYEES, IN THE SURVEY, CONSTRUCTION, OPERATION, OR MAINTENANCE OF IRRIGATION WORKS," PURSUANT TO THE RECLAMATION ACT OF JUNE 17, 1902, 32 STAT. 388, AND ITS AMENDMENTS. THE PROVISION IS SIMILAR TO THAT WHICH HAS HERETOFORE APPEARED IN APPROPRIATIONS FOR THE RECLAMATION SERVICE.

YOUR SUBMISSION URGES THAT THE APPROPRIATION AUTHORITY "TAKES FROM THE ACCOUNTING OFFICERS JURISDICTION WHICH THEY MIGHT OTHERWISE HAVE HAD AND THUS VESTS IT IN THE SECRETARY OF THE INTERIOR WHO, IN HIS DISCRETION, MAY LIQUIDATE BY COMPROMISE AGREEMENTS THOSE CLAIMS WHICH HE BELIEVES TO BE MERITORIOUS.'

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.

THE DECISION BY THIS OFFICE NOVEMBER 2, 1923, REVIEW NO. 4967, IN CONNECTION WITH THE CLAIM OF GEORGE H. MCFADDEN AND BRO., TO WHICH THE SUBMISSION MAKES REFERENCE, NEGATIVED THAT THERE WAS AUTHORITY TO COMPROMISE OR SETTLE A CLAIM FOR SHORTAGE OF COTTON SHIPPED OVER THE YUMA VALLEY RAILROAD OF THE YUMA PROJECT. THE SHIPMENT OF THE COTTON WAS BETWEEN PRIVATE PARTIES AND HAD NO CONNECTION WITH THE GOVERNMENT PROJECT. THE PERMITTING SUCH TRANSPORTATION FOR PRIVATE PARTIES WAS ITSELF OF DOUBTFUL AUTHORITY. THE CASE ILLUSTRATES THE PRIMARY PRINCIPLE IN THE EXERCISE OF THE ADMINISTRATIVE AUTHORITY THAT THE FACTS MUST FIRST SHOW A PROPER CLAIM UNDER THE LAW BEFORE THERE MAY BE A COMPROMISE.

IN CONNECTION WITH YOUR STATEMENT THAT "PAYMENTS HAVE BEEN MADE WITHOUT QUESTION UNTIL ON NOVEMBER 2, 1923," YOUR ATTENTION IS INVITED TO DECISION OF MARCH 15, 1922 (REVIEW NO. 686), SUSTAINING SETTLEMENT NO. 16422, OF SEPTEMBER 10, 1921, BY WHICH WAS DISALLOWED AN ITEM OF $30, VOUCHER NO. 701, R.R. VANNOY, COVERING DAMAGES ON ACCOUNT OF AN INJURY TO A HORSE HIRED FROM THE SAID VANNOY. IN THAT DECISION IT WAS HELD:

REMOTELY, THE DAMAGES MAY BE SAID TO HAVE BEEN CAUSED BY REASON OF THE OPERATIONS OF THE UNITED STATES, IN THAT THERE WOULD NOT HAVE BEEN ANY HORSE HIRE, NOR ANY DAMAGE BY REASON THEREOF, IF WORK ON THE PROJECT WAS NOT BEING PROSECUTED. THE PROXIMATE CAUSE OF THE DAMAGE, HOWEVER, WAS NOT THE OPERATIONS OF THE UNITED STATES, ITS OFFICERS OR EMPLOYEES, IN THE SURVEY, CONSTRUCTION, OPERATION, OR MAINTENANCE OF IRRIGATION WORKS, BUT CIRCUMSTANCES APPARENTLY ENTIRELY FOREIGN TO AND IN NO WAY CONNECTED WITH SUCH OPERATIONS. THERE WAS NO LIABILITY ON THE PART OF THE GOVERNMENT UNDER THE ACT OF JUNE 5, 1920, OR INDEPENDENTLY THEREOF WARRANTING PAYMENT UNDER THE CIRCUMSTANCES OF THIS CASE.

WITH REFERENCE TO YOUR STATEMENT THAT THE PROVISION IN QUESTION IS "APPARENTLY BROAD ENOUGH TO COVER THE MATTER OF NEGLIGENCE OF EMPLOYEES," ETC., YOUR ATTENTION IS INVITED TO THE DECISION OF JUNE 15, 1915, TO THE SECRETARY OF THE INTERIOR, INVOLVING WHETHER THE PROVISION AS CONTAINED IN THE ACT OF MARCH 3, 1915, 38 STAT. 859, AUTHORIZED THE PAYMENT OF COMPROMISED CLAIMS FOR DAMAGES INCURRED PRIOR TO MARCH 3, 1915, WHEREIN IT WAS SAID:

WHILE THIS PROVISION DOES NOT OF ITSELF EXPRESSLY AUTHORIZE THE PAYMENT OF THE CLAIM IN QUESTION, IT MAY WELL BE REGARDED AS A LEGISLATIVE CONSTRUCTION OF THE RECLAMATION ACT OF 1902 AS TO THE OBJECTS FOR WHICH THE FUND PROVIDED IN THAT ACT WERE INTENDED TO BE AVAILABLE, PARTICULARLY AS IN THIS PROVISION THE PAYMENT OF DAMAGES OF THE KIND HERE IN QUESTION IS REFERRED TO AS INCLUDED WITHIN THE EXPENDITURE, WHICH, IT IS DECLARED, WAS AUTHORIZED IN THE ACT OF JUNE 17, 1902, AND NOT IN ADDITION THERETO. CONSTRUCTION OF EXISTING LAW IS PRIMARILY A JUDICIAL RATHER THAN A LEGISLATIVE FUNCTION, BUT LEGISLATIVE CONSTRUCTION IS RECOGNIZED BY THE COURTS, AND THE RULES IN RELATION THERETO ARE FAIRLY WELL ESTABLISHED. IS WELL WITHIN THE RULE TO RECOGNIZE A LEGISLATIVE CONSTRUCTION AS CONFIRMING AN OTHERWISE AUTHORIZED BUT POSSIBLY DOUBTFUL JUDICIAL CONSTRUCTION. THIS ACT BEING THE FIRST ACT MAKING SPECIFIC APPROPRIATIONS ON A FISCAL YEAR BASIS, IT IS NOT UNREASONABLE TO CONCLUDE THAT CONGRESS INTENDED IN THAT CONNECTION TO SPECIFICALLY AUTHORIZE WHAT IT REGARDED AS WITHIN THE GENERAL AUTHORITY EXISTENT THERETOFORE UNDER THE OLD PLAN.

IF IT IS CONCLUDED THAT CONGRESS THUS INTERPRETED THE RECLAMATION FUND AS AVAILABLE FOR THE PAYMENT OF DAMAGES TO PRIVATE PROPERTY RESULTING FROM THE OPERATION OF ITS IRRIGATION WORKS, IT MUST INFERENTIALLY BE CONCLUDED THAT CONGRESS CONTEMPLATED THAT THERE HAD BEEN OR WOULD BE DAMAGES TO PRIVATE PROPERTY RESULTING FROM SUCH OPERATION FOR WHICH THE GOVERNMENT WOULD BE LIABLE. SUCH A CONCLUSION AS TO LIABILITY IN FACT, AS WELL AS IN CONTEMPLATION OF THE LEGISLATIVE BODY, IS EASILY ARRIVED AT WITHOUT DOING VIOLENCE TO ANY ESTABLISHED PRINCIPLE IF WE BEAR IN MIND THAT THE DAMAGES IN QUESTION WERE THE RESULT OF ACTS DONE BY DIRECTION OF COMPETENT AUTHORITY IN THE NECESSARY AND PROPER OPERATIONS OF THE SYSTEM AND REASONABLY TO BE ANTICIPATED THEREFROM, AND NOT THE RESULT EITHER OF ACCIDENT OR THE NEGLIGENCE OF EMPLOYEES.

THE MATTER MAY BE SUMMARIZED BY SAYING THAT THE PRIME QUESTION FOR CONSIDERATION IS WHETHER THE ACTION OF THE SECRETARY OF THE INTERIOR IN COMPROMISING AND AUTHORIZING THE PAYMENT OF A CLAIM FOR A GIVEN AMOUNT, UNDER AND PURSUANT TO THE PROVISION IN QUESTION, IS SUCH AS NOT TO BE SUBJECT TO REVIEW BY THIS OFFICE.

THE PROVISION IN QUESTION MERELY AUTHORIZES THE COMPROMISE BY THE SECRETARY OF THE INTERIOR OF DAMAGES SUSTAINED BY CERTAIN PERSONS BY REASON OF THE OPERATIONS OF THE UNITED STATES, ETC., AND I FIND NOTHING IN SAID PROVISION SUSPENDING OR SUPERSEDING THE JURISDICTION OF THIS OFFICE TO SETTLE AND ADJUST ALL CLAIMS, DEMANDS, AND ACCOUNTS WHATEVER IN WHICH THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, AS PROVIDED BY SECTION 236, REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24.

THE APPROVAL OR DISAPPROVAL OF THE COMPROMISE IS NECESSARY BY THE SECRETARY OF THE INTERIOR, OR BY AN ASSISTANT SECRETARY TO WHOM SUCH DUTY HAS BEEN DULY ASSIGNED, AND THE PRESENT REGULATIONS WHICH APPEAR TO PROVIDE OTHERWISE SHOULD BE AMENDED ACCORDINGLY. SUCH CLAIMS, INVOLVING, AS THEY DO, DOUBTFUL QUESTIONS OF LAW AND FACT, SHOULD NOT BE PAID BY DISBURSING OFFICERS. SINCE THE COMPROMISE AGREEMENTS MUST NECESSARILY BE MADE OR APPROVED BY THE SECRETARY OF THE INTERIOR, NO REASON APPEARS, AFTER THEIR TRANSMISSION TO WASHINGTON FOR THAT PURPOSE, WHY THEY SHOULD THEREAFTER BE RETURNED TO THE FIELD OR BE TRANSMITTED ELSEWHERE THAN TO THIS OFFICE FOR SETTLEMENT.