A-81703, JANUARY 11, 1937, 16 COMP. GEN. 642

A-81703: Jan 11, 1937

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IS NOT ONE FOR WHICH AN APPROPRIATION HAS HERETOFORE BEEN MADE BY THE CONGRESS. NOR SUCH CLAIM AS IS FOR REPORTING TO THE CONGRESS BY THE GENERAL ACCOUNTING OFFICE UNDER THE ACT OF APRIL 10. RELIEF IN SUCH MATTERS IS NECESSARILY FOR ADMINISTRATIVE PRESENTATION TO THE CONGRESS. WHICH IS DESCRIBED IN AN ACCOMPANYING MEMORANDUM OF JUNE 4. AS FOLLOWS: I HAVE EXAMINED THE ATTACHED VOUCHER IN FAVOR OF ROBERT BROWN OF AVERY. IT APPEARS THAT THE ROAD WAS BEING CONSTRUCTED ON A STEEP SLOPE ABOVE. THE USUAL PRECAUTIONS TO PREVENT DAMAGE WERE TAKEN BUT TWO PIECES OF ROCK ROLLED DOWN THE STEEP SLOPE AND DESTROYED THE HOUSE AND MR. THERE DOES NOT APPEAR TO HAVE BEEN ANY NEGLIGENCE ON THE PART OF EITHER MR.

A-81703, JANUARY 11, 1937, 16 COMP. GEN. 642

DAMAGES TO PRIVATE PROPERTY - EMERGENCY CONSERVATION WORK - REPORTING TO THE CONGRESS FOR RELIEF A CLAIM FOR DAMAGES BECAUSE OF THE DESTRUCTION OF HOUSEHOLD GOODS OF A PRIVATE CITIZEN RESULTING FROM BLASTING OPERATIONS ON AN EMERGENCY CONSERVATION WORK ROAD CONSTRUCTION PROJECT WITHOUT FAULT OR NEGLIGENCE OF OFFICERS AND EMPLOYEES OF THE UNITED STATES, IS NOT ONE FOR WHICH AN APPROPRIATION HAS HERETOFORE BEEN MADE BY THE CONGRESS, NOR SUCH CLAIM AS IS FOR REPORTING TO THE CONGRESS BY THE GENERAL ACCOUNTING OFFICE UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, BUT RELIEF IN SUCH MATTERS IS NECESSARILY FOR ADMINISTRATIVE PRESENTATION TO THE CONGRESS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, JANUARY 11, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 13, 1936, RECOMMENDING THAT THIS OFFICE CONSIDER UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, A CLAIM OF ROBERT BROWN FOR $147.21, WHICH IS DESCRIBED IN AN ACCOMPANYING MEMORANDUM OF JUNE 4, 1936, BY AN ASSISTANT TO THE SOLICITOR, DEPARTMENT OF AGRICULTURE, AS FOLLOWS:

I HAVE EXAMINED THE ATTACHED VOUCHER IN FAVOR OF ROBERT BROWN OF AVERY, IDAHO, AND ACCOMPANYING PAPERS COVERING MR. BROWN'S CLAIM FOR REIMBURSEMENT ON ACCOUNT OF DAMAGE TO HIS HOUSEHOLD EFFECTS WHICH RESULTED FROM FOREST SERVICE BLASTING ON A ROAD CONSTRUCTION JOB ON THE ST. JOE NATIONAL FOREST.

IT APPEARS THAT THE ROAD WAS BEING CONSTRUCTED ON A STEEP SLOPE ABOVE, AND ABOUT 20 FEET FROM, THE HOUSE OCCUPIED BY MR. BROWN. THE USUAL PRECAUTIONS TO PREVENT DAMAGE WERE TAKEN BUT TWO PIECES OF ROCK ROLLED DOWN THE STEEP SLOPE AND DESTROYED THE HOUSE AND MR. BROWN'S EFFECTS THEREIN. THERE DOES NOT APPEAR TO HAVE BEEN ANY NEGLIGENCE ON THE PART OF EITHER MR. BROWN OR THE EMPLOYEES OF THE FOREST SERVICE. THE LOSS WAS NOT COVERED BY INSURANCE.

THE AMOUNT OF THE DAMAGE WAS DETERMINED BY COMPARISON OF THE ARTICLES DESTROYED WITH THE CATALOGUE PRICES OF SEARS-ROEBUCK AND COMPANY FROM WHOM THEY WERE PURCHASED LAST DECEMBER. THERE IS ALSO AN ITEM OF $10.00 FOR CLEANING AND LAUNDRY. THE AMOUNT CLAIMED APPEARS TO BE REASONABLE.

THE FACTS APPEAR TO BE SUCH AS TO BRING THE CLAIM WITHIN THE PROVISIONS OF THE ACT OF MAY 27, 1930, 46 STAT. 387, 16 U.S.C. 574, BUT SINCE THE LOSS OCCURRED IN CONNECTION WITH EMERGENCY CONSERVATION WORK, PAYMENT MAY NOT BE MADE AS HELD BY THE COMPTROLLER GENERAL. APPARENTLY, THE CASE HAS SUCH EQUITIES AS TO BRING IT WITHIN THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, AND IN MY OPINION IT MAY PROPERLY BE TRANSMITTED TO THE COMPTROLLER GENERAL WITH RECOMMENDATION THAT IT BE SUBMITTED TO CONGRESS FOR AN APPROPRIATION AS CONTEMPLATED IN THAT ACT.

THE ACT OF APRIL 10, 1928, 45 STAT. 413, PROVIDES:

THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.

A CLAIM FOR THE DESTRUCTION OF HOUSEHOLD GOODS RESULTING FROM BLASTING OPERATIONS ON AN EMERGENCY CONSERVATION WORK ROAD CONSTRUCTION PROJECT IS NOT ONE ARISING OUT OF CONTRACT OR FOR WHICH AN APPROPRIATION HAS BEEN HERETOFORE MADE BY THE CONGRESS. ON THE CONTRARY, SUCH A CLAIM IS TORT CLAIM ARISING BY REASON OF THE ACTION OF EMPLOYEES OF THE UNITED STATES. THE CONGRESS HAS HAD BEFORE IT A NUMBER OF TIMES BILLS TO AUTHORIZE GENERALLY THE SETTLEMENT AND ADJUSTMENT OF TORT CLAIMS BUT SUCH BILLS HAVE FAILED TO BECOME LAW. A SPECIFIC PROVISION FOR THE SETTLEMENT OF CERTAIN TORT CLAIMS HAS BEEN MADE IN THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, 1067, WHERE THE LOSS NOT TO EXCEED $1,000 WAS CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. ALSO, A PROVISION HAS BEEN CARRIED IN ARMY APPROPRIATION ACTS FOR A NUMBER OF YEARS AUTHORIZING THE SETTLEMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICES, OPERATION, OR MAINTENANCE OF THE ARMY. SEE, FOR INSTANCE, THE ACT OF MARCH 2, 1923, 42 STAT. 1386, AND A SIMILAR PROVISION WITH RESPECT TO THE POSTAL SERVICE WHICH IS CONTAINED IN THE ACT OF JUNE 16, 1921, 42 STAT. 63. NO SIMILAR STATUTORY PROVISION HAS BEEN MADE FOR THE SETTLEMENT OF SUCH CLAIMS AS THIS ONE OF ROBERT BROWN WHERE THE DAMAGES APPEAR TO HAVE BEEN WITHOUT FAULT OR NEGLIGENCE OF OFFICERS OR EMPLOYEES OF THE UNITED STATES, AND THE ACT OF APRIL 10, 1928, HAS NOT BEEN INTERPRETED AS APPLYING TO TORT CLAIMS AGAINST THE UNITED STATES.

UNDER THESE CIRCUMSTANCES, YOU ARE INFORMED THAT IT IS NOT FOR THIS OFFICE TO ACT UNDER THE 1928 ACT AND MAKE A REPORT AND RECOMMENDATION TO THE CONGRESS FOR AN APPROPRIATION FOR PAYMENT OF THIS CLAIM AND AS THERE IS NO APPROPRIATION AVAILABLE FOR ITS PAYMENT, THIS OFFICE CANNOT MAKE SETTLEMENT THEREOF UNLESS AND UNTIL AN APPROPRIATION THEREFOR HAS BEEN MADE BY THE CONGRESS. RELIEF IN A MATTER OF THIS KIND IS NECESSARILY ONE FOR THE ADMINISTRATIVE AGENCY TO PRESENT TO THE CONGRESS THROUGH THE USUAL CHANNELS AND NOT THROUGH THIS OFFICE.