A-79146, AUGUST 28, 1936, 16 COMP. GEN. 197

A-79146: Aug 28, 1936

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" TO WHICH THE PENSIONER'S WIFE IS ENTITLED IS FOR THE DETERMINATION OF THE SECRETARY OF THE INTERIOR AND THE ADMINISTRATOR OF VETERANS' AFFAIRS. 1936: REFERENCE IS MADE TO A LETTER DATED JULY 13. AS FOLLOWS: THERE IS INCLOSED HEREWITH FOR SETTLEMENT. THE HOSPITAL STATES THAT WHILE THESE FUNDS ARE PENSION MONEY. THEY WERE ADVISED SAME SHOULD BE DEPOSITED TO THE APPROPRIATION "PERSONAL FUNDS OF PATIENTS.'. THE VOUCHER REFERRED TO IS FOR 4 MONTHS AND 18 DAYS' SHARE OF THE PENSION OF CLARENCE A. THAT THE PENSIONER IS AN INMATE OF ST. ELIZABETHS HOSPITAL AND IS IN RECEIPT OF PENSION AT THE RATE OF $60 PER MONTH. THAT THE PENSIONER'S LAWFUL WIFE WHO ALLEGES SHE IS . IS IN PERTINENT PART.

A-79146, AUGUST 28, 1936, 16 COMP. GEN. 197

VETERANS' ADMINISTRATION - PENSIONS - DISTRIBUTION JURISDICTION - INSANE PENSIONERS PENSION MONEYS RECEIVED BY THE SUPERINTENDENT OF ST. ELIZABETHS HOSPITAL PURSUANT TO THE ACT OF FEBRUARY 2, 1909, 35 STAT. 592, IN CONNECTION WITH A PENSIONER INMATE, BEING, BY SAID ACT, FOR USE AND DISBURSEMENT AS PRESCRIBED BY REGULATION OF THE SECRETARY OF THE INTERIOR, THE MATTER AS TO THE PORTION OF AN INMATE'S PENSION MONEY TO HIS CREDIT IN "PERSONAL FUNDS OF PATIENTS, SAINT ELIZABETHS HOSPITAL," TO WHICH THE PENSIONER'S WIFE IS ENTITLED IS FOR THE DETERMINATION OF THE SECRETARY OF THE INTERIOR AND THE ADMINISTRATOR OF VETERANS' AFFAIRS, AND NOT FOR SETTLEMENT BY VOUCHER PRESENTED TO THE GENERAL ACCOUNTING OFFICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 28, 1936:

REFERENCE IS MADE TO A LETTER DATED JULY 13, 1936, FROM THE CHIEF CLERK, YOUR DEPARTMENT, AS FOLLOWS:

THERE IS INCLOSED HEREWITH FOR SETTLEMENT, VOUCHER FOR PAYMENT OF PENSION MONEY IN FAVOR OF MAMIE N. TRUITT, AMOUNTING TO $168.00, TO BE CHARGED TO THE APPROPRIATION "PERSONAL FUNDS OF PATIENTS, SAINT ELIZABETHS HOSPITAL (14-8558)," AS SUBMITTED TO THIS OFFICE BY THE SAINT ELIZABETHS HOSPITAL.

THE HOSPITAL STATES THAT WHILE THESE FUNDS ARE PENSION MONEY, IN ACCORDANCE WITH DECISION A-50550 OF THE COMPTROLLER GENERAL, DATED OCTOBER 21, 1933, THEY WERE ADVISED SAME SHOULD BE DEPOSITED TO THE APPROPRIATION "PERSONAL FUNDS OF PATIENTS.'

THE VOUCHER REFERRED TO IS FOR 4 MONTHS AND 18 DAYS' SHARE OF THE PENSION OF CLARENCE A. TRUITT PAID ON PENSION CERTIFICATE NO. C 2453665, FROM THE 13TH DAY OF AUGUST 1935 TO THE 31ST DAY OF JANUARY 1936, STATED TO BE DUE MAMIE N. TRUITT, THE PENSIONER'S "LAWFUL WIFE.' THE VOUCHER STATES, FURTHER, THAT THE PENSIONER IS AN INMATE OF ST. ELIZABETHS HOSPITAL AND IS IN RECEIPT OF PENSION AT THE RATE OF $60 PER MONTH, AND THAT THE PENSIONER'S LAWFUL WIFE WHO ALLEGES SHE IS ,WHOLLY DEPENDENT UPON SAID PENSIONER FOR SUPPORT" HAS FILED CLAIM FOR PAYMENT OF A PART OF THE PENSION MONEY "UNDER THE ACTS OF FEBRUARY 20, 1905, FEBRUARY 2, 1909, AND THE REGULATIONS PROMULGATED THEREUNDER.'

THE REFERRED-TO DECISION OF OCTOBER 21, 1933, TO YOU, IS IN PERTINENT PART, AS FOLLOWS:

UNDER PRIOR ACTS AND REGULATIONS THE ENTIRE AMOUNT OF PENSIONS PAYABLE TO PERSONS BEING MAINTAINED BY THE GOVERNMENT OF THE UNITED STATES IN THE HOSPITAL, WAS FORWARDED TO THE SUPERINTENDENT FOR DISTRIBUTION, ONE-SIXTH OF EACH PAYMENT BEING SET APART OR TRANSFERRED FROM THE PATIENT'S PENSION ACCOUNT TO THE PATIENT'S PERSONAL ACCOUNT FOR HIS PERSONAL COMFORTS. INASMUCH AS DISTRIBUTIONS ARE NOW BEING MADE BY THE ADMINISTRATOR OF VETERANS' AFFAIRS FORWARDING ONLY THAT PORTION OF THE PATIENT'S PENSION, INTENDED FOR HIS PERSONAL COMFORTS, TO THE SUPERINTENDENT OF THE HOSPITAL, $15 PER MONTH IN ONE CLASS AND $6 PER MONTH IN THE OTHER, AS THE CASE MAY BE, THE AMOUNT WHEN RECEIVED MAY BE CREDITED TO THE PATIENT'S PERSONAL ACCOUNT AND DEPOSITED TO THE CREDIT OF PERSONAL FUNDS OF PATIENTS, SAINT ELIZABETHS HOSPITAL, TRUST FUNDS, IN THE SAME MANNER AS THE ONE-SIXTH, SUPRA, WAS THERETOFORE CREDITED ALTHOUGH THE AMOUNTS MAY NOT FIRST BE CREDITED TO THE PENSION FUND OF THE PATIENT, THAT BEING SEEMINGLY UNNECESSARY. * * *

THAT DECISION RELATES SOLELY TO THE MATTER OF ACCOUNTING AND IS IN NOWISE TO BE CONSTRUED AS BEING DETERMINATIVE OF THE RIGHTS OF CLAIMANTS TO THE MONEY IN SAID FUND. IN VIEW OF SUBSEQUENT VETERANS' LEGISLATION AND CHANGES IN VETERANS' REGULATIONS, AS SHOWN, INFRA, THE DIRECTION CONTAINED IN THE ABOVE DECISION WITH RESPECT TO THE MATTER OF ACCOUNTING FOR THE FUNDS IN QUESTION IS NOT NOW NECESSARILY FOR FOLLOWING. THERE IS FOR NOTING, TOO, THE FACT THAT THE RATE OF PENSION HERE IS $60 PER MONTH, AND THE DECISION, SUPRA, WOULD APPEAR TO BE NO AUTHORITY FOR DEPOSITING THE ENTIRE AMOUNT IN THE PERSONAL FUND OF THE PATIENT.

THE ACT OF FEBRUARY 2, 1909 (35 STAT. 592), PROVIDES IN PERTINENT PART:

* * * DURING THE TIME THAT ANY PENSIONER SHALL BE AN INMATE OF THE GOVERNMENT HOSPITAL FOR THE INSANE, ALL MONEY DUE OR BECOMING DUE UPON HIS OR HER PENSION SHALL BE PAID BY THE PENSION AGENT TO THE SUPERINTENDENT OR DISBURSING AGENT OF THE HOSPITAL, UPON A CERTIFICATE BY SUCH SUPERINTENDENT THAT THE PENSIONER IS AN INMATE OF THE HOSPITAL AND IS LIVING, AND SUCH PENSION MONEY SHALL BE BY SAID SUPERINTENDENT OR DISBURSING AGENT DISBURSED AND USED, UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE INTERIOR, FOR THE BENEFIT OF THE PENSIONER, AND, IN CASE OF A MALE PENSIONER, HIS WIFE, MINOR CHILDREN, AND DEPENDENT PARENTS, OR, IF A FEMALE PENSIONER, HER MINOR CHILDREN, IF ANY, IN THE ORDER NAMED, AND TO PAY HIS OR HER BOARD AND MAINTENANCE IN THE HOSPITAL, THE REMAINDER OF SUCH PENSION MONEY, IF ANY, TO BE PLACED TO THE CREDIT OF THE PENSIONER AND TO BE PAID TO THE PENSIONER OR THE GUARDIAN OF THE PENSIONER IN THE EVENT OF HIS OR HER DISCHARGE FROM THE HOSPITAL; * * *.

WITH RESPECT TO THE QUESTION OF WHETHER PENSION PAYABLE ON BEHALF OF AN INSANE VETERAN IN SAINT ELIZABETHS HOSPITAL SHOULD BE PAID UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 2, 1909, 35 STAT. 592, AND SUBJECT TO THE PROVISIONS THEREOF, OR WHETHER IT MAY BE PAID TO A GUARDIAN OR OTHERWISE AS PROVIDED IN VETERANS' REGULATIONS NO. 6 (C) AND THE ACT OF AUGUST 12, 1935, 49 STAT. 607, IT WAS HELD IN DECISION OF DECEMBER 13, 1935, 15 COMP. GEN. 498, AT PAGE 505, UNDER "QUESTION NO. 2," THAT---

THE PROVISIONS OF THE 1909 ACT, SUPRA, ARE NOT EXPRESSLY REPEALED BY ANY SUBSEQUENT STATUTE OR BY THE REGULATION IN QUESTION. UNDER THE RULE OF STATUTORY CONSTRUCTION DISCUSSED UNDER THE FIRST QUESTION PRESENTED HEREIN THE 1909 ACT MUST BE GIVEN FULL FORCE AND EFFECT EXCEPT TO THE EXTENT THAT THE PROVISIONS IN THE SUBSEQUENT ACTS, OR THE REGULATION IN QUESTION, ARE INCONSISTENT THEREWITH. A CAREFUL STUDY OF SAID LATER ACTS AND THE REGULATION REVEALS THAT THE MANNER OF PAYMENT OF PENSION THEREUNDER IS REPUGNANT TO THE 1909 STATUTE ONLY IN THOSE CASES WHERE THE ADMINISTRATOR EXERCISES THE DISCRETION THEREIN VESTED IN HIM IN MAKING PAYMENTS TO GUARDIANS, TC., THAT IS TO SAY, TO OTHER THAN "THE SUPERINTENDENT OR DISBURSING AGENT OF THE HOSPITAL" AS PRESCRIBED IN THE SAID 1909 ACT.

IN DECISION TO YOU OF JULY 23, 1935, A-50550, IT WAS STATED:

NOTWITHSTANDING THAT THE FUNDS HERE WERE CREDITED TO THE INMATES' PERSONAL ACCOUNT PURSUANT TO MY DECISION TO YOU OF OCTOBER 21, 1933, A 50550, IT IS CLEAR THAT SUCH FUNDS HAVE NOT LOST THEIR IDENTITY AS PENSION MONEY. * * *

THE DECISION HELD, THEREFORE, THAT SUCH FUNDS WERE FOR DISPOSITION UNDER THE ACT OF FEBRUARY 2, 1909, SUPRA.

WITH RESPECT TO A QUESTION SUBMITTED REGARDING THE APPLICABILITY, AT PRESENT, OF THE REGULATIONS OF YOUR DEPARTMENT ISSUED UNDER DATE OF MAY 1, 1909, UNDER THE 1909 STATUTE, IT WAS HELD IN DECISION, A-67159, MAY 21, 1936, 15 COMP. GEN. 1015, TO YOU, THAT---

WITH RESPECT TO THE FIRST QUESTION, THEREFORE, YOU ARE ADVISED THAT WHERE THE FULL AMOUNT OF THE PENSION IS PAID TO THE SUPERINTENDENT OF SAINT ELIZABETHS HOSPITAL UNDER THE APPLICABLE STATUTE, THE REGULATIONS OF MAY 1, 1909, ARE APPLICABLE IN THEIR ENTIRETY ONLY IN THOSE CASES WHERE THERE IS NO STATUTORY PROVISION FOR THE PAYMENT FOR BOARD AND MAINTENANCE OF THE PENSION INMATES OF SAINT ELIZABETHS HOSPITAL FROM PUBLIC OR SPECIAL FUNDS UNDER FEDERAL CONTROL; AND THAT WHERE SUCH STATUTORY PROVISIONS DO EXIST THE PROVISIONS OF SAID REGULATIONS REQUIRING THE WITHHOLDING OF A CERTAIN AMOUNT OF THE PENSION MONEYS FOR THE PURPOSE OF REIMBURSING THE INSTITUTION FOR BOARD AND MAINTENANCE ARE NOT APPLICABLE.

PAYMENT OF PENSION OF INMATES OF SAINT ELIZABETHS HOSPITAL TO THE SUPERINTENDENT OF THE HOSPITAL UNDER THE TERMS OF SECTION 4839, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 2, 1909, 35 STAT. 592, MAY BE LIKENED TO PAYMENTS OF PENSION TO THE TREASURERS OF THE FORMER NATIONAL HOMES FOR DISABLED VOLUNTEER SOLDIERS UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 26, 1881, 21 STAT. 350, REENACTED AUGUST 7, 1882, 22 STAT. 322. IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE THAT PENSION MONEYS PAID TO THE TREASURERS UNDER THE LATTER ACT RETAIN THEIR CHARACTER AS PENSION MONEYS UNTIL ACTUALLY EXPENDED FOR THE BENEFIT OF THE PENSIONER. 14 COMP. GEN. 115. SIMILARLY, PENSION MONEYS PAID TO THE SUPERINTENDENT OF SAINT ELIZABETHS HOSPITAL UNDER THE APPLICABLE STATUTE RETAIN THEIR CHARACTER AS PENSION MONEYS AS CONTRADISTINGUISHED FROM PERSONAL FUNDS. WITH RESPECT TO YOUR SECOND QUESTION, THEREFORE, YOU ARE ADVISED THAT PENSION MONEYS WHEN RECEIVED BY THE SUPERINTENDENT SHOULD BE DEPOSITED UNDER THE TITLE OF PENSION MONEY, SAINT ELIZABETHS HOSPITAL, TRUST FUND AND NOT TO PERSONAL FUNDS OF PATIENTS, SAINT ELIZABETHS HOSPITAL, TRUST FUNDS.

IT IS PRESUMED THAT PENSION MONEYS PAID TO THE SUPERINTENDENT OF ST. ELIZABETHS HOSPITAL ARE NOW BEING DEPOSITED AS DIRECTED IN THE LAST SENTENCE OF THE ABOVE QUOTE.

PARAGRAPH 12 OF THE REGULATIONS OF MAY 1, 1909, ISSUED PURSUANT TO THE ACT OF FEBRUARY 2, 1909, 35 STAT. 592, PROVIDES:

ALL QUESTIONS AFFECTING THE RIGHT OF CLAIMANTS FOR A SHARE OF THE PENSION OF INMATES OF THE HOSPITAL SHALL BE DETERMINED UPON EVIDENCE TO BE SUBMITTED TO THE COMMISSIONER OF PENSIONS (ADMINISTRATOR OF VETERANS' AFFAIRS) IN ACCORDANCE WITH THE PRACTICE AS GOVERNED BY RULINGS ADOPTED OR OPINIONS RENDERED FROM TIME TO TIME. THE FINDINGS OF THE COMMISSIONER OF PENSIONS (ADMINISTRATOR OF VETERANS' AFFAIRS) UPON SUCH EVIDENCE SHALL BE SUBMITTED FOR THE APPROVAL OF THE SECRETARY OF THE INTERIOR, AND UPON THEIR TRANSMISSION TO THE SUPERINTENDENT OR DISBURSING AGENT OF THE HOSPITAL WITH SUCH APPROVAL, SHALL BE ACCEPTED BY THEM TO CONTROL THE DISBURSEMENT OF THE PENSION UNDER THE LAW AND THESE REGULATIONS.

SINCE ALL PENSION MONEY RECEIVED BY THE SUPERINTENDENT OF ST. ELIZABETHS HOSPITAL PURSUANT TO THE 1909 ACT "SHALL BE BY SAID SUPERINTENDENT OR DISBURSING AGENT DISBURSED AND USED, UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE INTERIOR," IT WOULD APPEAR, IN VIEW, PARTICULARLY, OF THAT PART OF THE REGULATIONS HEREIN QUOTED, THAT THE MATTER OF THE PORTION OF THE INMATE'S PENSION MONEY TO HIS CREDIT IN PERSONAL FUNDS OF PATIENTS, ST. ELIZABETHS HOSPITAL, TO WHICH THE CLAIMANT IS ENTITLED, IS SOLELY FOR THE DETERMINATION OF THE SECRETARY OF THE INTERIOR AND THE ADMINISTRATOR OF VETERANS' AFFAIRS. THE CLAIM PRESENTED ON THE SUBMITTED VOUCHER, THEREFORE, IS NOT PROPERLY FOR SETTLING BY THIS OFFICE BUT RATHER FOR PAYMENT BY THE SUPERINTENDENT OF ST. ELIZABETHS HOSPITAL PURSUANT TO EXISTING STATUTE AND APPLICABLE REGULATIONS. THE VOUCHER IS ACCORDINGLY BEING RETURNED FOR YOUR PROPER DISPOSITION AS INDICATED.