A-72954, FEBRUARY 8, 1937, 16 COMP. GEN. 739

A-72954: Feb 8, 1937

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" SUCH DAMAGES ARE FOR PAYMENT FROM SAID FUND NOTWITHSTANDING THE PROJECT IS FINANCED WITH NATIONAL INDUSTRIAL RECOVERY ACT FUNDS AND NOT APPROPRIATED RECLAMATION MONEYS. AS FOLLOWS: REFERENCE IS MADE TO CERTIFICATE OF SETTLEMENT NO. 0428206. THIS SETTLEMENT WAS MADE BY G. IN WHICH IT WAS STATED THAT NO APPROPRIATION WAS MADE FOR THE EXPENDITURE OF RECLAMATION FUND (14 6000) (4S502) FUNDS FOR THE OGDEN PROJECT. PLEASE ADVISE UNDER WHAT AUTHORITY OF LAW THE PAYMENT OF A CLAIM FROM A FUND FOR A PROJECT FOR WHICH NO APPROPRIATION HAS BEEN MADE IS PERMITTED. IT IS THE CONTENTION OF THIS OFFICE. THAT THIS CLAIM IS A PROPER CHARGE AGAINST THE FUND: ("4-03/7640.29/. IN VIEW OF THAT FACT IT IS RESPECTFULLY REQUESTED THAT THE CASE BE REVIEWED AND COUNTER WARRANT OR OTHER SUITABLE WARRANT BE ISSUED DEBITING THE FUND ( ("4-03/7640.29/.

A-72954, FEBRUARY 8, 1937, 16 COMP. GEN. 739

DAMAGES - PRIVATE PROPERTY - RECLAMATION PROJECT FINANCED WITH NATIONAL INDUSTRIAL RECOVERY ACT FUNDS A CLAIM FOR DAMAGES TO A PRIVATELY OWNED RADIO CAUSED BY EMPLOYEES OF THE BUREAU OF RECLAMATION WHILE MAKING SURVEYS FOR AN OGDEN RIVER PROJECT NOT BEING PAYABLE EXCEPT PURSUANT TO STATUTORY AUTHORITY, AND THE ONLY STATUTORY AUTHORITY IN SUCH CASES BEING THAT WITH REFERENCE TO "THE RECLAMATION FUND," SUCH DAMAGES ARE FOR PAYMENT FROM SAID FUND NOTWITHSTANDING THE PROJECT IS FINANCED WITH NATIONAL INDUSTRIAL RECOVERY ACT FUNDS AND NOT APPROPRIATED RECLAMATION MONEYS, THE AUTHORITY BEING SPECIFIC AS TO THE SOURCE OF SUCH PAYMENT AND NOT BEING FOR APPLICATION TO SUMS OTHERWISE APPROPRIATED OR MADE AVAILABLE FOR PARTICULAR PROJECTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, FEBRUARY 8, 1937:

THERE HAS BEEN RECEIVED FROM THE COMMISSIONER, BUREAU OF RECLAMATION, A LETTER DATED DECEMBER 4, 1936, AS FOLLOWS:

REFERENCE IS MADE TO CERTIFICATE OF SETTLEMENT NO. 0428206, CERTIFYING CLAIM OF JOE D. HAVENS IN THE AMOUNT OF $20 FOR PAYMENT FROM THE FUND ("14 -6000--- (4S502 RECLAMATION FUND.' THIS SETTLEMENT WAS MADE BY G. F. ALLEN ON HIS VOUCHER NO. 905127, NOVEMBER 28, 1936.

IN THIS CONNECTION PLEASE REFER TO PARAGRAPH TWO OF LETTER DATED FEBRUARY 28, 1936, FROM THIS OFFICE IN REPLY TO YOUR LETTER DATED FEBRUARY 1, 1936, FILE CONT-0548626-CB, IN WHICH IT WAS STATED THAT NO APPROPRIATION WAS MADE FOR THE EXPENDITURE OF RECLAMATION FUND (14 6000)

(4S502) FUNDS FOR THE OGDEN PROJECT. PLEASE ADVISE UNDER WHAT AUTHORITY OF LAW THE PAYMENT OF A CLAIM FROM A FUND FOR A PROJECT FOR WHICH NO APPROPRIATION HAS BEEN MADE IS PERMITTED.

IT IS THE CONTENTION OF THIS OFFICE, AS STATED IN OFFICE LETTER OF FEBRUARY 28, 1936, THAT THIS CLAIM IS A PROPER CHARGE AGAINST THE FUND: ("4-03/7640.29/--- (14-443/70630 ( NATIONAL INDUSTRIAL RECOVERY, INTERIOR, RECLAMATION (REIMBURSABLE) 1933-1937," OGDEN RIVER PROJECT F.P. 25, AND IN VIEW OF THAT FACT IT IS RESPECTFULLY REQUESTED THAT THE CASE BE REVIEWED AND COUNTER WARRANT OR OTHER SUITABLE WARRANT BE ISSUED DEBITING THE FUND ( ("4-03/7640.29/--- ( (14-443/70630 (--- NATIONAL INDUSTRIAL RECOVERY, INTERIOR, RECLAMATION (REIMBURSABLE) 1933-1937," OGDEN RIVER PROJECT F.P. 25, AND CREDITING THE FUND ("4S502)

(14-6000/--- RECLAMATION FUND.'

THE CLAIM SETTLEMENT IN QUESTION, NO. 0428206, DATED NOVEMBER 20, 1936, IN FAVOR OF JOE D. HAVENS FOR $20, WAS IN PAYMENT FOR DAMAGES TO HIS RADIO ON JULY 19, 1935, CAUSED BY EMPLOYEES OF THE BUREAU OF RECLAMATION IN THE COURSE OF MAKING SURVEYS FOR THE OGDEN RIVER PROJECT, A TREE HAVING BEEN FELLED ACROSS NEARBY POWER LINES, CAUSING A SHORT CIRCUIT WHICH BURNED OUT MR. HAVENS' RADIO SET.

SUCH DAMAGE CLAIMS ARE NOT PAYABLE BY THE GOVERNMENT EXCEPT PURSUANT TO EXPRESS STATUTORY AUTHORITY. THE ONLY STATUTORY AUTHORITY FOR THE PAYMENT OF THE PRESENT CLAIM APPEARS TO BE THAT CONTAINED IN THE ANNUAL APPROPRIATION ACT OF MAY 9, 1935, 49 STAT. 176, 197, FOR THE DEPARTMENT OF THE INTERIOR, MAKING APPROPRIATION FOR THE BUREAU OF RECLAMATION FOR THE FISCAL YEAR ENDED JUNE 30, 1936, IN PART AS FOLLOWS:

THE FOLLOWING SUMS ARE APPROPRIATED OUT OF THE SPECIAL FUND IN THE TREASURY OF THE UNITED STATES CREATED BY THE ACT OF JUNE 17, 1902 (U.S.C. TITLE 43, SECS. 391, 411), AND THEREIN DESIGNATED "THE RECLAMATION FUND," TO BE AVAILABLE IMMEDIATELY:

ADMINISTRATIVE PROVISIONS AND LIMITATIONS: * * * PAYMENT OF DAMAGES CAUSED TO THE OWNERS OF LANDS OR OTHER PRIVATE PROPERTY OF ANY KIND BY REASON OF THE OPERATIONS OF THE UNITED STATES, ITS OFFICERS, OR EMPLOYEES, IN THE SURVEY, CONSTRUCTION, OPERATION, OR MAINTENANCE OF IRRIGATION WORKS, AND WHICH MAY BE COMPROMISED BY AGREEMENT BETWEEN THE CLAIMANT AND THE SECRETARY OF THE INTERIOR, OR SUCH OFFICERS AS HE MAY DESIGNATE; * *

IT IS TO BE NOTED THAT THIS IS A SPECIFIC APPROPRIATION FOR THIS PARTICULAR PURPOSE FROM THE RECLAMATION FUND GENERALLY AND IS NOT AN AUTHORIZATION TO PAY SUCH DAMAGES FROM SUMS OTHERWISE APPROPRIATED OR MADE AVAILABLE FOR PARTICULAR PROJECTS. THE CIRCUMSTANCE THAT SIMILAR PROVISIONS HAVE BEEN MADE FOR MANY YEARS IN ANNUAL APPROPRIATIONS FOR THE BUREAU OF RECLAMATION DOES NOT CHANGE THE CHARACTER OF SUCH AUTHORIZATION TO ONE OF PERMANENT LAW IMPOSING ON THE UNITED STATES LEGAL LIABILITY FOR SUCH DAMAGES. IN OTHER WORDS, THE ONLY RIGHT IN THE CLAIMANT TO REIMBURSEMENT IN THE PRESENT CASE IS BY VIRTUE OF, AND EXPRESSLY UNDER, THE SPECIFIC ANNUAL APPROPRIATION SUPRA, FOR THAT PARTICULAR PURPOSE, AND THE FACT THAT THE INDIVIDUAL RECLAMATION PROJECT IN CONNECTION WITH WHICH THE DAMAGES OCCURRED WAS BEING FINANCED BY AN ALLOTMENT OF FUNDS UNDER THE APPROPRIATION MADE TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT CANNOT OPERATE TO MAKE SUCH FUNDS, INSTEAD OF THE SAID SPECIFIC APPROPRIATION, AVAILABLE TO PAY SUCH DAMAGE CLAIMS.

IT FOLLOWS THAT THE ACTION TAKEN IN THE SETTLEMENT CHARGING THE AMOUNT ALLOWED THEREIN TO THE RECLAMATION FUND APPROPRIATION WAS CORRECT, AND, ACCORDINGLY, THE REQUEST THAT SUCH CHARGE BE TRANSFERRED TO THE NATIONAL INDUSTRY RECOVERY ALLOTMENT FOR THE PARTICULAR PROJECT MUST BE AND IS DENIED.