A-71966, AUGUST 6, 1936, 16 COMP. GEN. 123

A-71966: Aug 6, 1936

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NOTWITHSTANDING THE RENTAL AGREEMENT MAY HAVE BEEN MADE BY A QUALIFIED OFFICER OF THE FOREST SERVICE. AS FOLLOWS: REFERENCE IS MADE TO SETTLEMENT CERTIFICATE OF OCTOBER 22. REVIEW OF THE SETTLEMENT IS RECOMMENDED. AS IT ESTABLISHES A RATHER FAR REACHING PRECEDENT IN THE ADMINISTRATION OF WORK PROJECTS FOR WHICH THE DEPARTMENT OF AGRICULTURE IS RESPONSIBLE. IT IS TRUE THAT THE EMERGENCY CONSERVATION FUNDS UTILIZED BY THE FOREST SERVICE ARE ACCORDING TO THE RECORD ALLOCATED BY THE WAR DEPARTMENT. THAT IS MERELY A MATTER OF FISCAL CONVENIENCE. THE ALLOCATIONS ARE IN FACT MADE BY THE DIRECTOR OF EMERGENCY CONSERVATION WORK AND THE MONEYS ARE EXPENDED UNDER THE PROCEDURE AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO THE AGRICULTURAL DEPARTMENT.

A-71966, AUGUST 6, 1936, 16 COMP. GEN. 123

DAMAGES - PRIVATE PROPERTY - EMERGENCY CONSERVATION WORK PROJECT SUPERVISED BY FOREST SERVICE THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, AUTHORIZING THE SECRETARY OF AGRICULTURE TO REIMBURSE OWNERS FOR LOSS, DAMAGE, OR DESTRUCTION OF HORSES, VEHICLES, AND OTHER EQUIPMENT ,OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE," DOES NOT AUTHORIZE PAYMENT EITHER FROM THE EMERGENCY CONSERVATION FUND OR APPROPRIATIONS MADE SPECIFICALLY FOR THE FOREST SERVICE, FOR DAMAGES TO A WAGON HIRED FOR USE ON AN EMERGENCY CONSERVATION WORK PROJECT SUPERVISED BY THE FOREST SERVICE BUT FINANCED FROM THE EMERGENCY CONSERVATION FUND, NOTWITHSTANDING THE RENTAL AGREEMENT MAY HAVE BEEN MADE BY A QUALIFIED OFFICER OF THE FOREST SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, AUGUST 6, 1936:

CONSIDERATION HAS BEEN GIVEN TO THE MATTERS CONTAINED IN YOUR LETTER OF MARCH 4, 1936, AS FOLLOWS:

REFERENCE IS MADE TO SETTLEMENT CERTIFICATE OF OCTOBER 22, 1935, ADDRESSED TO MR. DAVID FROHOCK, EQUALITY, ILLINOIS, ADVISING HIM OF DISALLOWANCE OF HIS CLAIM IN THE AMOUNT OF $4.50, GENERAL ACCOUNTING OFFICE NO. 0522485.

REVIEW OF THE SETTLEMENT IS RECOMMENDED, AS IT ESTABLISHES A RATHER FAR REACHING PRECEDENT IN THE ADMINISTRATION OF WORK PROJECTS FOR WHICH THE DEPARTMENT OF AGRICULTURE IS RESPONSIBLE. IT IS TRUE THAT THE EMERGENCY CONSERVATION FUNDS UTILIZED BY THE FOREST SERVICE ARE ACCORDING TO THE RECORD ALLOCATED BY THE WAR DEPARTMENT, BUT THAT IS MERELY A MATTER OF FISCAL CONVENIENCE; THE ALLOCATIONS ARE IN FACT MADE BY THE DIRECTOR OF EMERGENCY CONSERVATION WORK AND THE MONEYS ARE EXPENDED UNDER THE PROCEDURE AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO THE AGRICULTURAL DEPARTMENT, AS PRESCRIBED BY THE REGULATIONS OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK DATED APRIL 17 AND MAY 20, 1933.

SECTION (C) OF THE ACT OF JANUARY 31, 1931 (46 STAT. 1052), AUTHORIZES THE SECRETARY OF AGRICULTURE "TO REIMBURSE OWNERS FOR LOSS, DAMAGE, OR DESTRUCTION OF HORSES, VEHICLES, AND OTHER EQUIPMENT OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE FROM EMPLOYEES OR OTHER PRIVATE OWNERS: PROVIDED THAT PAYMENTS OR REIMBURSEMENTS HEREIN AUTHORIZED MAY BE MADE FROM THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE.'

IN THE INSTANT CASE THE FARM WAGON OWNED BY MR. DAVID FROHOCK WAS RENTED BY A DULY QUALIFIED OFFICER OF THE FOREST SERVICE FOR USE BY THAT SERVICE ON A NATIONAL FOREST PROJECT, ALTHOUGH THE ENROLLEE USING THE WAGON WAS PAID FROM THE EMERGENCY CONSERVATION FUND. ENROLLEES WHEN AT WORK ON PROJECTS OF THE OPERATING DEPARTMENT ARE UNDER THE SUPERVISION OF THAT DEPARTMENT, AT OTHER TIMES THEY ARE UNDER THE SUPERVISION OF THE WAR DEPARTMENT. AT THE TIME OF DAMAGE TO CLAIMANT'S WAGON THE ENROLLEE WAS FUNCTIONING UNDER THE SUPERVISION AND DIRECTION OF FOREST OFFICERS.

IN YOUR DECISION A-62188 OF AUGUST 15, 1935, SECTION 4 OF THE ACT OF MARCH 3, 1925 (43 STAT. 1132), WAS RECOGNIZED AS APPLICABLE TO EMPLOYEES WHOSE SERVICES WERE PAID FROM THE EMERGENCY CONSERVATION FUND, WHICH HARMONIZES WITH THE DEPARTMENT'S UNDERSTANDING. SECTION 4 OF THAT ACT AUTHORIZES DEDUCTIONS "FROM MONEYS APPROPRIATED FOR SALARY PAYMENTS OR OTHERWISE DUE SUCH EMPLOYEES.' THE AUGUST 15 DECISION REFERS TO THE EMERGENCY CONSERVATION APPROPRIATION AS BEING MONEYS ALLOTTED TO THE FOREST SERVICE AND CONSTRUES SUCH SECTION 4 AS APPLICABLE TO THE EMPLOYEES OF THE FOREST SERVICE IRRESPECTIVE OF THE SOURCE OF THE FUNDS FROM WHICH THEIR SALARY PAYMENTS MAY BE MADE.

SINCE THE ACT OF JANUARY 31, 1931, WAS DESIGNED TO REIMBURSE OWNERS OF EQUIPMENT OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE FOR LOSS, DAMAGE, OR DESTRUCTION OF SUCH EQUIPMENT, IT IS HIGHLY DESIRABLE ADMINISTRATIVELY THAT THE ACT BE REGARDED AS APPLICABLE TO DAMAGE CLAIMS GROWING OUT OF DEPARTMENT PROJECTS FINANCED FROM THE EMERGENCY CONSERVATION FUND. ADMINISTRATIVE PROBLEMS WILL BE MULTIPLIED AND, I FEAR, MANY SPECIAL RELIEF BILLS WILL RESULT SHOULD YOU FEEL IMPELLED TO SUSTAIN THE RULING EXPRESSED IN THE SETTLEMENT CERTIFICATE.

IN THE EVENT YOUR DECISION IS ADVERSE TO PAYMENT OF THE FROHOCK CLAIM FROM THE EMERGENCY CONSERVATION FUND, IT IS RECOMMENDED THAT PAYMENT BE AUTHORIZED FROM THE APPROPRIATION "SALARIES AND EXPENSES, FOREST SERVICE, 1935--- SYMBOL 35203," WHICH APPROPRIATION WOULD HAVE BEEN LEGALLY AVAILABLE FOR FINANCING THE WORK PROJECT IN CONNECTION WITH WHICH THE CLAIM AROSE IN ITS ENTIRETY.

THE CLAIM IN QUESTION FOR $4.50 WAS FOR REIMBURSEMENT UNDER THE PROVISIONS OF THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, FOR DAMAGE TO CLAIMANT'S FARM WAGON WHICH HAD BEEN RENTED TO THE UNITED STATES ON AUGUST 14, 1934, FOR 50 CENTS A DAY AND WHICH WAS DAMAGED ON OR ABOUT AUGUST 16, 1934, BY THE BREAKING OF THE FRONT AXLE AND THE COUPLING POLE WHILE BEING USED BY A CIVILIAN CONSERVATION CORPS ENROLLEE TO HAUL SAND AND GRAVEL OVER A STEEP TRAIL FOR THE CONSTRUCTION OF A LOOKOUT TOWER AT HIGH KNOB, ILL.

THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, AUTHORIZES THE SECRETARY OF AGRICULTURE, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO REIMBURSE OWNERS FOR LOSS, DAMAGE, OR DESTRUCTION OF HORSES, VEHICLES, AND OTHER EQUIPMENT "OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICES" WITH THE PROVISION THAT SUCH REIMBURSEMENT MAY BE MADE FROM "THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE.'

YOU STATE THAT IN THIS CASE THE FARM WAGON WAS RENTED BY A DULY QUALIFIED OFFICER OF THE FOREST SERVICE "FOR USE BY THAT SERVICE ON A NATIONAL FOREST PROJECT," ALTHOUGH THE ENROLLEE USING THE WAGON WAS PAID FROM THE EMERGENCY CONSERVATION FUND. THE RECORD SHOWS THE RENTAL CONTRACT WAS SIGNED BY "J. E. SMITH, CAMP SUPERINTENDENT," THAT THE WAGON WAS IN USE BY A CIVILIAN CONSERVATION CORPS ENROLLEE WHEN THE DAMAGE OCCURRED AND THAT IT WAS PROPOSED TO REIMBURSE THE OWNER FROM THE EMERGENCY CONSERVATION FUND. UNDER THESE CONDITIONS IT IS PRESUMED THAT WHILE THE RENTAL AGREEMENT MAY HAVE BEEN MADE ON BEHALF OF THE UNITED STATES BY AN OFFICER OF THE FOREST SERVICE, THE VEHICLE WAS NOT OBTAINED FOR THE FOREST SERVICE BUT FOR USE ON AN EMERGENCY CONSERVATION WORK PROJECT, BEING SUPERVISED BY THE FOREST SERVICE, BUT FINANCED FROM THE EMERGENCY CONSERVATION FUND.

THE DIFFERENT POINTS RAISED BY YOUR LETTER HAVE BEEN ANSWERED IN THE RECENT DECISIONS OF THIS OFFICE. IN DECISION OF JULY 23, 1935, 15 COMP. GEN. 64, IT WAS SAID WITH RESPECT TO THE SCOPE OF THE SAID ACT OF JANUARY 31, 1931, HERE INVOLVED, THAT---

IN DETERMINING WHETHER UNDER THE CIRCUMSTANCES SURROUNDING THE ACQUISITION, USE, AND DESTRUCTION OF THE TYPEWRITER, THE OWNER MAY BE REIMBURSED THEREFOR UNDER THE ABOVE-QUOTED STATUTE, THERE IS FOR APPLICATION THE GENERAL RULE OF CONSTRUCTION THAT IN CONSTRUING A STATUTE GIVING A REMEDY AGAINST A PARTY WHO WOULD NOT OTHERWISE BE LIABLE, SUCH STATUTE MUST BE STRICTLY CONSTRUED IN FAVOR OF THE PERSON SOUGHT TO BE SUBJECTED TO ITS OPERATION. (59 C.J. 1129.) ACCORDINGLY, THE PROVISION OF THE STATUTE MAY NOT BE EXTENDED BEYOND THE DIRECT OPERATION OF THE WORDS EMPLOYED THEREIN. (SEE 59 C.J. 1124.)

IN A RECONSIDERATION OF THIS MATTER IT WAS SAID IN DECISION OF MAY 26, 1936, A-62062, IN ANSWER TO THE ARGUMENT THAT THE LOSS OF THE TYPEWRITER SHOULD BE REIMBURSED FROM THE EMERGENCY CONSERVATION FUND, PURSUANT TO THE PROVISIONS OF THE ACT OF JANUARY 31, 1931, FOR THE REASON THAT THE WORK INVOLVED WAS UNDER THE SUPERVISION OF THE FOREST SERVICE---

REGARDLESS OF WHETHER THE DISTRICT INSPECTOR, FOREST SERVICE, DEPARTMENT OF AGRICULTURE, AUTHORIZED THE DEPARTMENT OF FOREST AND WATERS, COMMONWEALTH OF PENNSYLVANIA, TO CONTRACT FOR THE RENTAL OF THE TYPEWRITER, OR WHETHER THE WORK IN CONNECTION WITH WHICH THE TYPEWRITER WAS USED WAS CARRIED ON UNDER THE SUPERVISION OF THE FOREST SERVICE, THERE IS NO PROVISION IN THE ACT OF MARCH 31, 1933, 48 STAT. 22, AS EXTENDED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, ACT OF APRIL 8, 1935, 49 STAT. 115, THAT COULD BE CONSTRUED AS AUTHORIZING PAYMENT TO OWNERS OF PRIVATE PROPERTY FOR LOSS, DAMAGE, OR DESTRUCTION OF EQUIPMENT UNDER HIRE IN THE PERFORMANCE OF USEFUL PUBLIC WORK CONTEMPLATED BY SAID ACTS.

AS THE APPROPRIATION SOUGHT TO BE CHARGED IS NOT AN APPROPRIATION FOR THE FOREST SERVICE AND IS NOT APPROPRIATED FOR EXPENDITURE UNDER THE ADMINISTRATIVE CONTROL OF THE SECRETARY OF AGRICULTURE, THE PROVISION IN THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, RELATIVE TO PAYMENT FOR LOSS OF HIRED OR RENTED PROPERTY UNDER CERTAIN CIRCUMSTANCES, HAS NO APPLICATION HERE.

RESPECTING YOUR SUGGESTION THAT THIS MATTER IS SIMILAR TO THAT INVOLVED IN DECISION OF AUGUST 15, 1935, WHEREIN SECTION 4 OF THE ACT OF MARCH 3, 1925 (43 STAT. 1132), WAS RECOGNIZED AS APPLICABLE TO EMPLOYEES PAID FROM THE EMERGENCY CONSERVATION FUND, YOUR ATTENTION IS INVITED TO DECISION OF OCTOBER 28, 1935, A-62063, ADDRESSED TO YOU, WHEREIN IT WAS SAID---

SECTION 4 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1133, CONSIDERED IN THE DECISION OF AUGUST 15, 1935, A-62188, REFERRED TO BY YOU, AUTHORIZED THE SECRETARY OF AGRICULTURE TO PURCHASE PERSONAL EQUIPMENT AND SUPPLIES FOR EMPLOYEES OF THE FOREST SERVICE, AND MAKE DEDUCTIONS FROM THEIR SALARIES. THIS PERMITTED PURCHASE OF THE DESCRIBED ARTICLES UNDER APPROPRIATIONS WITH THE REQUIREMENT THAT DEDUCTIONS BE MADE THEREFOR FROM THE SALARY PAYMENTS OR OTHER MONEY DUE SUCH EMPLOYEES. AS THE EXTENSION OF CREDIT BY THE GOVERNMENT TO SUCH EMPLOYEES TO BE PAID FROM ACCRUING SALARY WAS A BENEFIT TO THE EMPLOYEES OF THE FOREST SERVICE IRRESPECTIVE OF THE APPROPRIATION UNDER WHICH THE EMPLOYEES MAY BE PAID, NO LEGAL REASON EXISTS FOR DENYING THE BENEFITS SO CONFERRED ON SUCH FOREST SERVICE EMPLOYEE PAID UNDER EMERGENCY APPROPRIATIONS NOT UNDER THE CONTROL OF THE DEPARTMENT OF AGRICULTURE. THAT DECISION IS NOT, HOWEVER, APPLICABLE TO THE MATTER HERE PRESENTED, NOR DOES IT SERVE AS A PRECEDENT FOR EXPANDING THE LIMITED AUTHORITY CONFERRED ON THE SECRETARY OF AGRICULTURE TO SETTLE CLAIMS FOR DAMAGES CAUSED BY EMPLOYEES OF THE UNITED STATES IN CONNECTION WITH THE PROTECTION, ADMINISTRATION, OR IMPROVEMENT OF THE NATIONAL FORESTS UNDER APPROPRIATIONS SPECIFICALLY MADE FOR THAT PURPOSE. * * *

WITH RESPECT TO YOUR RECOMMENDATION IN THIS CASE IN THE EVENT PAYMENT CANNOT BE MADE FROM THE EMERGENCY CONSERVATION FUND, THAT PAYMENT BE AUTHORIZED UNDER THE APPROPRIATION "SALARIES AND EXPENSES, FOREST SERVICE, 1935" WHICH YOU STATE "WOULD HAVE BEEN LEGALLY AVAILABLE FOR FINANCING THE WORK PROJECT IN CONNECTION WITH WHICH THE CLAIM AROSE IN ITS ENTIRETY," YOUR ATTENTION IS INVITED TO DECISION OF DECEMBER 19, 1935, A-62063, ADDRESSED TO YOU. WHILE THAT CASE INVOLVED A DAMAGE CLAIM NOT UNDER THE ACT OF JANUARY 31, 1931, BUT UNDER THE ACT OF MAY 27, 1930, 46 STAT. 387, AUTHORIZING THE SECRETARY OF AGRICULTURE TO REIMBURSE OWNERS OF PRIVATE PROPERTY FOR DAMAGE OR DESTRUCTION CAUSED BY EMPLOYEES OF THE UNITED STATES IN CONNECTION WITH THE PROTECTION, ADMINISTRATION, OR IMPROVEMENT OF THE NATIONAL FORESTS, PAYMENT TO BE MADE FROM ANY FUNDS APPROPRIATED FOR THE PROTECTION, ADMINISTRATION, AND IMPROVEMENT OF THE NATIONAL FORESTS, THE APPLICABLE PRINCIPLE IS OBVIOUSLY THE SAME. SUCH DECISION IS IN PART AS FOLLOWS:

* * * YOU STATE THAT THIS ROAD WAS A DULY AUTHORIZED PROJECT BEING CONSTRUCTED FOR THE PROTECTION, ADMINISTRATION, AND IMPROVEMENT OF THE PISGAH NATIONAL FOREST AND COULD HAVE BEEN CONSTRUCTED AND PAID FOR FROM APPROPRIATION 3X411,"FOREST ROADS AND TRAILS," UNDER WHICH APPROPRIATION THE SECRETARY OF AGRICULTURE IS AUTHORIZED BY THE ACT OF MAY 27, 1930, TO REIMBURSE OWNERS OF PRIVATE PROPERTY FOR DAMAGES CAUSED BY EMPLOYEES OF THE UNITED STATES, AND YOU RECOMMEND THAT THE PAYMENT OF THE DAMAGES IN QUESTION BE AUTHORIZED FROM THIS APPROPRIATION.

THE APPROPRIATION "EMERGENCY CONSERVATION FUND," AS SET OUT IN THE DECISION OF JUNE 20, 1935, WAS ESTABLISHED BY THE CONGRESS FOR THE RELIEF OF UNEMPLOYMENT THROUGH THE PERFORMANCE OF USEFUL PUBLIC WORK AND WAS AUTHORIZED TO BE EXPENDED UNDER THE DIRECTION OF THE PRESIDENT. IT IS A SEPARATE AND DISTINCT APPROPRIATION FOR THE SPECIFIC PURPOSE SET OUT, AND IF ITS USE FOR THAT PURPOSE OPERATES TO SUPPLEMENT APPROPRIATIONS UNDER THE JURISDICTION OF THE SECRETARY OF AGRICULTURE THAT FACT DOES NOT CHANGE ITS CHARACTER. THE FACT THAT IT WAS AUTHORIZED TO BE USED FOR A USEFUL PUBLIC WORK IN CONNECTION WITH WHICH AN APPROPRIATION MORE SPECIFIC IN ITS TERMS MIGHT HAVE BEEN AVAILABLE UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE, IS NO AUTHORITY FOR CHARGING AN ITEM OF DAMAGE INCURRED IN CONNECTION WITH THE EMERGENCY PROJECT AGAINST THE APPROPRIATION "FOREST ROADS AND TRAILS.' * * *

SIMPLY STATED, THE PROPOSITION IS THAT THE ACT OF JANUARY 31, 1931, WAS SPECIAL LEGISLATION LIMITED IN SCOPE TO THE EXPRESS CONDITIONS STIPULATED THEREIN, AND THE OPERATION OF SUCH LEGISLATION IS NOT TO BE EXTENDED BY CONSTRUCTION TO PERMIT THE PAYMENT OF DAMAGE CLAIMS AGAINST THE UNITED STATES NOT ALLOWABLE UNDER GENERAL LAW AND NOT WITHIN THE EXPRESS TERMS OF THE PARTICULAR STATUTE.

ACCORDINGLY, I HAVE TO ADVISE YOU THAT, ON THE PRESENT RECORD, THERE IS NO LEGAL AUTHORITY TO PAY THE CLAIM IN QUESTION, EITHER FROM THE EMERGENCY CONSERVATION FUND OR UNDER APPROPRIATIONS MADE SPECIFICALLY FOR THE FOREST SERVICE.