A-6951, JANUARY 15, 1925, 4 COMP. GEN. 606

A-6951: Jan 15, 1925

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IS EXCLUSIVE IN THE ABSENCE OF OTHER SPECIFIC LEGISLATIVE AUTHORITY AND THE PURCHASE OF ARMS AND AMMUNITION FROM APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE FOR USE OF PENITENTIARY GUARDS IS. IN WHICH CREDIT WAS DISALLOWED FOR AN ITEM OF $45.80. THE DISALLOWANCE WAS ON THE GROUNDS THAT THE ARMS AND AMMUNITION SHOULD HAVE BEEN PROCURED FROM THE WAR DEPARTMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 3. THE SPECIAL DISBURSING AGENT CONTENDS THAT THE STATUTE CITED DOES NOT APPLY BECAUSE THE ARMS AND AMMUNITION PURCHASED WERE NOT FOR THE PROTECTION OF PUBLIC MONEY OR PROPERTY BUT TO ENFORCE DISCIPLINE AT THE PENITENTIARY AND TO PREVENT PRISONERS FROM ESCAPING AND FOR THE USE OF GUARDS WHEN HUNTING ESCAPED CONVICTS.

A-6951, JANUARY 15, 1925, 4 COMP. GEN. 606

PURCHASES - ARMS AND AMMUNITION THE ACT OF MARCH 3, 1879, 20 STAT. 412, AUTHORIZING AND DIRECTING THE SECRETARY OF WAR TO ISSUE ARMS AND AMMUNITION AT THE REQUEST OF THE HEAD OF A DEPARTMENT WHENEVER REQUIRED FOR THE PROTECTION OF PUBLIC MONEY AND PROPERTY, IS EXCLUSIVE IN THE ABSENCE OF OTHER SPECIFIC LEGISLATIVE AUTHORITY AND THE PURCHASE OF ARMS AND AMMUNITION FROM APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE FOR USE OF PENITENTIARY GUARDS IS, IN THE ABSENCE OF SUCH SPECIFIC LEGISLATIVE AUTHORITY, OR THE EXISTENCE OF AN EMERGENCY WHICH WOULD NOT PERMIT THE DELAY NECESSARY TO ACQUIRE SUCH ARMS AND AMMUNITION FROM THE WAR DEPARTMENT, NOT AUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 15, 1925:

FINCH R. ARCHER, SPECIAL DISBURSING AGENT, UNITED STATES PENITENTIARY, MCNEIL ISLAND, WASH., APPLIED DECEMBER 8, 1924, FOR REVIEW OF SETTLEMENT C -17719-J, DATED NOVEMBER 15, 1924, IN WHICH CREDIT WAS DISALLOWED FOR AN ITEM OF $45.80, REPRESENTING A PAYMENT MADE BY HIM TO THE KIMBALL SUN STORE (INC.), FOR ARMS AND AMMUNITION PURCHASED FOR THE USE OF GUARDS AT THE PENITENTIARY.

THE DISALLOWANCE WAS ON THE GROUNDS THAT THE ARMS AND AMMUNITION SHOULD HAVE BEEN PROCURED FROM THE WAR DEPARTMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 3, 1879, 20 STAT. 412, WHICH AUTHORIZES AND DIRECTS THE SECRETARY OF WAR TO ISSUE ARMS AND AMMUNITION AT THE REQUEST OF THE HEAD OF A DEPARTMENT WHENEVER REQUIRED FOR THE PROTECTION OF PUBLIC MONEY AND PROPERTY.

THE SPECIAL DISBURSING AGENT CONTENDS THAT THE STATUTE CITED DOES NOT APPLY BECAUSE THE ARMS AND AMMUNITION PURCHASED WERE NOT FOR THE PROTECTION OF PUBLIC MONEY OR PROPERTY BUT TO ENFORCE DISCIPLINE AT THE PENITENTIARY AND TO PREVENT PRISONERS FROM ESCAPING AND FOR THE USE OF GUARDS WHEN HUNTING ESCAPED CONVICTS.

IN DECISION OF FEBRUARY 15, 1923, 18 MS. COMP. GEN. 780, TO THE ATTORNEY GENERAL, THE QUESTION WAS WHETHER THE APPROPRIATION "SUPPLIES, UNITED STATES COURTS," OR "DETECTION AND PROSECUTION OF CRIMES" WAS AVAILABLE FOR THE PURCHASE OF ARMS AND AMMUNITION FOR USE OF UNITED STATES MARSHALS AND SPECIAL AGENTS OF THE DEPARTMENT OF JUSTICE FOR THE PURPOSE OF ENFORCING ARREST OR PREVENTING THE ESCAPE OF PRISONERS. IT WAS HELD THAT, STRICTLY CONSTRUED, THE ACT OF MARCH 3, 1879, RELATES ONLY TO ARMS AND AMMUNITION FOR THE PROTECTION OF PUBLIC MONEY OR PROPERTY AND DOES NOT COVER THE PURCHASE THERE IN QUESTION, BUT AS A MATTER OF GENERAL POLICY IT WOULD SEEM THAT SUCH PURCHASES ARE ORDINARILY WITHIN THE SPIRIT AND INTENT OF THE ACT CITED, REFERENCE BEING MADE TO 27 COMP. DEC. 504, AND 85 MS. COMP. DEC. 800.

IN THE DECISION OF FEBRUARY 15, 1923, SUPRA, THE ARGUMENT WAS ADVANCED THAT THE MODEL OF REVOLVERS OBTAINED FROM THE WAR DEPARTMENT WAS NOT PRACTICABLE FOR THE PURPOSE OF ENFORCING ARREST OR PREVENTING THE ESCAPE OF PRISONERS. IN THE DECISION IT WAS POINTED OUT THAT THE WAR DEPARTMENT HAS AN APPROPRIATION AVAILABLE FOR THE PURCHASE OF ANY MODEL OF REVOLVER ON THE MARKET AND WHETHER A MODEL DIFFERENT FROM THAT NOW ISSUED WOULD BE PURCHASED BY THE WAR DEPARTMENT WAS A MATTER WITHIN THE DISCRETION OF THE SECRETARY OF WAR.

IT HAS BEEN HELD IN THE DECISIONS THAT UNLESS THERE IS A SHOWING OF AN EMERGENCY THAT WOULD NOT PERMIT THE DELAY NECESSARY TO OBTAIN ARMS AND AMMUNITION FROM THE WAR DEPARTMENT AND UNLESS THERE IS SPECIFIC STATUTORY AUTHORITY FOR THE PURCHASE, THE ACT OF MARCH 3, 1879, MUST BE HELD APPLICABLE AND ARMS AND AMMUNITION NEEDED TO CARRY ON ACTIVITIES OF THE FEDERAL GOVERNMENT MUST BE OBTAINED FROM THE WAR DEPARTMENT.

IN THE INSTANT CASE NO SHOWING HAS BEEN MADE OF AN EMERGENCY REQUIRING THE ACQUISITION OF THE ARMS AND AMMUNITION OTHER THAN THROUGH THE WAR DEPARTMENT, AND THERE IS NO STATUTORY AUTHORITY FOR THE PAYMENT FOR THE ITEMS DISALLOWED UNDER THE APPROPRIATION SOUGHT TO BE CHARGED THEREWITH.