A-88123, APRIL 21, 1938, 17 COMP. GEN. 860

A-88123: Apr 21, 1938

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PHOTOGRAPH PURCHASES - STATE OFFICER KILLED IN FEDERAL RAID APPROPRIATED MONEYS ARE NOT AVAILABLE FOR PAYMENT OF MEDICAL. EXPENSES OF A PRISONER DOES NOT ARISE ALONE BECAUSE OF THE ACT OF ARREST BUT ONLY WHEN THE ARRESTED PRISONER IS PROPERLY IN THE CUSTODY OF THE UNITED STATES AS THE RESULT OF A LAWFUL ARREST. WERE PURCHASED FOR USE IN DEFENDING. THE APPROPRIATION IS NOT AVAILABLE FOR THE EXPENDITURE INVOLVED. THE EXPENSES COVERED BY THE VOUCHERS WERE INCURRED IN CONNECTION WITH THE FATAL SHOOTING ON JUNE 7. WERE THE OPERATORS OF THE STILL. THE STATE OFFICERS APPARENTLY THOUGH THE FEDERAL OFFICERS WERE THE OPERATORS OF THE STILL. THE VOUCHERS HAVE TWICE BEEN RETURNED HERETOFORE TO THE TREASURY DEPARTMENT WITHOUT CERTIFICATION UNDER THE RULE STATED IN THE DECISION OF OCTOBER 10.

A-88123, APRIL 21, 1938, 17 COMP. GEN. 860

MEDICAL AND HOSPITAL TREATMENT, BURIAL EXPENSES, AND PHOTOGRAPH PURCHASES - STATE OFFICER KILLED IN FEDERAL RAID APPROPRIATED MONEYS ARE NOT AVAILABLE FOR PAYMENT OF MEDICAL, HOSPITAL, AND BURIAL EXPENSES OF A STATE OFFICER MISTAKENLY AND FATALLY SHOT BY A FEDERAL OFFICER DURING A RAID ON AN ILLICIT STILL, NOTWITHSTANDING THE CONTENTION THAT THE SHOOTING RESULTED FROM A TECHNICAL ARREST, AS THE OBLIGATION OF THE UNITED STATES TO BEAR THE MEDICAL, ETC., EXPENSES OF A PRISONER DOES NOT ARISE ALONE BECAUSE OF THE ACT OF ARREST BUT ONLY WHEN THE ARRESTED PRISONER IS PROPERLY IN THE CUSTODY OF THE UNITED STATES AS THE RESULT OF A LAWFUL ARREST. WHERE PHOTOGRAPHS, ETC., WERE PURCHASED FOR USE IN DEFENDING, FROM A CRIMINAL CHARGE, A FEDERAL INTERNAL REVENUE AGENT WHO SHOT A STATE OFFICER DURING A RAID ON AN ILLICIT STILL, AND NOT TO SECURE EVIDENCE OF VIOLATION OF THE INTERNAL REVENUE LAWS AS PROVIDED BY THE APPROPRIATION FOR SALARIES AND EXPENSES, BUREAU OF INTERNAL REVENUE, 50 STAT. 143, THE APPROPRIATION IS NOT AVAILABLE FOR THE EXPENDITURE INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, APRIL 21, 1938:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR THE THIRD TIME FOR PREAUDIT VOUCHERS IN FAVOR OF DR. J. L. BAIRD, CASTETTER'S ART SHOP, AND THE COLE FURNITURE CO., IN THE AMOUNTS OF $25 (FIRST AID PROFESSIONAL SERVICES), $59.50 (PHOTOGRAPHS), AND $142.50 (BURIAL EXPENSES), RESPECTIVELY, BUREAU OF INTERNAL REVENUE SCHEDULE NO. P-40, DATED FEBRUARY 24, 1938. THE EXPENSES COVERED BY THE VOUCHERS WERE INCURRED IN CONNECTION WITH THE FATAL SHOOTING ON JUNE 7, 1937, OF A STATE OFFICER, DEPUTY CONSTABLE FRANK WHITE, AT MARKED TREE, ARK., BY INVESTIGATOR JAMES L. KIDD OF THE ALCOHOL TAX UNIT, BUREAU OF INTERNAL REVENUE, TREASURY DEPARTMENT. THE RECORD DISCLOSES THAT THE SHOOTING RESULTED FROM MISTAKEN IDENTITY DURING A RAID ON AN ILLICIT STILL. THE FEDERAL OFFICERS THOUGH THE VICTIM, TOGETHER WITH ANOTHER STATE OFFICER, WERE THE OPERATORS OF THE STILL, WHEREAS, THE STATE OFFICERS APPARENTLY THOUGH THE FEDERAL OFFICERS WERE THE OPERATORS OF THE STILL.

THE VOUCHERS HAVE TWICE BEEN RETURNED HERETOFORE TO THE TREASURY DEPARTMENT WITHOUT CERTIFICATION UNDER THE RULE STATED IN THE DECISION OF OCTOBER 10, 1934, 14 COMP. GEN. 300, 301, HOLDING AS FOLLOWS:

THE NECESSARY EXPENSE OF MEDICAL OR SURGICAL TREATMENT OF PERSONS WHO HAVE BEEN ARRESTED BY OFFICERS OF THE UNITED STATES AND ARE HELD AS PRISONERS OF THE UNITED STATES IS AN EXPENSE INCIDENT TO THE ARREST WHICH, IF OCCURRED UNDER PROPER CONDITIONS AND WITH DUE AUTHORITY, IS A LAWFUL CHARGE AGAINST THE UNITED STATES. SEE 2 COMP. GEN. 804. THERE IS, HOWEVER, NO AUTHORITY FOR THE PAYMENT OF SUCH EXPENSES WHERE THE INJURIES WERE CAUSED BY A GOVERNMENT OFFICER AND THE INJURED PERSON HAS NOT BEEN ARRESTED AND CHARGED WITH A CRIME AGAINST THE UNITED STATES.

THERE HAS BEEN SUBMITTED WITH THE VOUCHERS AN ADDITIONAL ADMINISTRATIVE STATEMENT WHICH ATTEMPTS AT SOME LENGTH TO SHOW THE LEGALITY OF THE PROPOSED PAYMENTS AS CONSTITUTING PROPER CHARGES UNDER THE APPROPRIATION, "COLLECTING THE INTERNAL REVENUE, 1937.' IT IS STATED IN EFFECT THAT AS THERE WAS "PROBABLE CAUSE" FOR AN ARREST, THERE WAS A TECHNICAL ARREST OF THE STATE OFFICER AND ACCORDINGLY, AS THE SHOOTING RESULTED FROM THE TECHNICAL ARREST BY A FEDERAL OFFICER ALL OF THE EXPENSES INCURRED CONSTITUTED PROPER CHARGES AGAINST THE APPROPRIATION IN QUESTION.

WHILE THIS STATEMENT MIGHT BE REGARDED AS ESTABLISHING THAT THE SHOOTING WAS AN ACCIDENT OCCURRING DURING THE PERFORMANCE OF OFFICIAL DUTY AND THAT THE FEDERAL OFFICER SHOULD BE EXONERATED FROM CRIMINAL LIABILITY, IT SHOWS ALSO A MISCONCEPTION OF THE RULE ESTABLISHED BY ACCOUNTING OFFICERS WHICH DENIES THE LIABILITY OF THE GOVERNMENT FOR SUCH EXPENSES INCURRED IN A CASE OF THIS KIND. THE OBLIGATION OF THE UNITED STATES TO BEAR THE COST OF MEDICAL, HOSPITAL, AND BURIAL (5 COMP. GEN. 929) EXPENSES OF A PRISONER DOES NOT ARISE ALONE BY REASON OF THE ACT OF ARREST BUT ONLY WHEN THE ARRESTED PRISONER IS PROPERLY IN THE CUSTODY OF THE UNITED STATES AS THE RESULT OF A LAWFUL ARREST. IN OTHER WORDS, THE CUSTODY IN THE UNITED STATES OF A PRISONER, AND NOT HIS ARREST, IS THE DETERMINING FACTOR. FOR INSTANCE, IN DECISION OF DECEMBER 10, 1920, 27 COMP. DEC. 531, A FORMER COMPTROLLER OF THE TREASURY STATED:

THE EXPENSE OF NECESSARY MEDICAL OR SURGICAL TREATMENT OF PERSONS WHO HAVE BEEN ARRESTED BY OFFICERS OF THE UNITED STATES AND ARE HELD AS PRISONERS OF THE UNITED STATES IS AN EXPENSE INCIDENT TO THE ARREST WHICH, IF INCURRED UNDER PROPER CONDITIONS AND WITH DUE AUTHORITY, IS A LAWFUL CHARGE AGAINST THE UNITED STATES. THE GENERAL RULE AS REGARDS THE APPROPRIATION TO BE CHARGED WITH EXPENSE INCIDENTAL TO AN ARREST HAS BEEN STATED BY THIS OFFICE AS FOLLOWS:

"WHERE AUTHORITY IS EXERCISED BY A SPECIAL CLASS OF OFFICERS IN THE ARREST OF PERSONS FOR VIOLATIONS OF THE LAWS OF THE UNITED STATES ALL EXPENSES INCIDENT TO SUCH ARRESTS ARE DEFRAYED BY THE GOVERNMENT AND PAID OUT OF APPROPRIATIONS MADE FOR CERTAIN PURPOSES, AND NOT UNTIL PRISONERS COME INTO THE CUSTODY OF THE UNITED STATES MARSHAL BY VIRTUE OF A DULY RECOGNIZED AUTHORITY CAN IT BE SAID THAT A JUDICIARY APPROPRIATION MAY BE AVAILABLE FOR THE PAYMENT OF SUCH EXPENSE.' 16 COMP. DEC. 371.

GENERALLY SPEAKING, PAYMENT OF REASONABLE EXPENSE OF NECESSARY MEDICAL OR SURGICAL TREATMENT OF A PRISONER WHO HAS BEEN ARRESTED AND IS IN THE CUSTODY OF OFFICERS OR AGENTS OF THE UNITED STATES SHOULD FOLLOW THE RULE THUS ANNOUNCED.

AS REGARDS THE INSTANT CASE THE MATTER FOR DETERMINATION IS WHETHER THE PRISONER WAS IN THE CUSTODY OF PROHIBITION OFFICERS, OR OF THE UNITED STATES MARSHAL AT THE TIME THE TREATMENT WAS GIVEN. THAT IS A QUESTION OF FACT WHICH CAN NOT PROPERLY BE DETERMINED BY AN ADVANCE DECISION OF THIS OFFICE.

IN THIS CASE, THE STATE OFFICER WAS NOT, AND COULD NOT HAVE BEEN ARRESTED AND PLACED IN THE CUSTODY OF THE UNITED STATES AS A PRISONER. THE SHOOTING WAS AN ACCIDENT WHICH OCCURRED IN THE PERFORMANCE OF OFFICIAL DUTIES. IN DECISION OF NOVEMBER 14, 1936, 16 COMP. GEN. 490, 492, IT WAS STATED AS FOLLOWS:

HOWEVER, THE MERE INFLICTION OF AN INJURY BY A FEDERAL OFFICER IN THE PERFORMANCE OF HIS DUTY WOULD NOT OF ITSELF AUTHORIZE PAYMENT OF MEDICAL AND HOSPITAL EXPENSES THEREFOR BY THE UNITED STATES, AND WHERE SUCH EXPENSES ARE INCURRED WITHOUT PROPER AUTHORITY AND ON ACCOUNT OF A PERSON WHO HAS NOT BEEN ARRESTED FOR A CRIME COMMITTED AGAINST THE UNITED STATES, THERE IS NO BASIS FOR THEIR PAYMENT FROM APPROPRIATED MONEYS OF THE UNITED STATES. 14 COMP. GEN. 300.

ACCORDINGLY, THERE EXISTS NO STATUTORY BASIS PURSUANT TO WHICH ANY FEDERAL APPROPRIATION MAY BE CHARGED WITH THE COST OF THE MEDICAL, HOSPITAL, AND BURIAL EXPENSES INCURRED IN THIS CASE.

THE PHOTOGRAPHS, ETC., FOR WHICH VOUCHER IN THE AMOUNT OF $59.50 HAS BEEN PRESENTED BY THE CASTETTER'S ART SHOP WERE ORDERED BY THE DISTRICT SUPERVISOR APPARENTLY FOR USE IN DEFENDING THE FEDERAL AGENT WHO KILLED THE STATE OFFICER FROM A CRIMINAL CHARGE, NOT TO SECURE "EVIDENCE OF VIOLATIONS OF THE ACTS (INTERNAL REVENUE LAWS)" QUOTING FROM THE APPROPRIATION FOR SALARIES AND EXPENSES, BUREAU OF INTERNAL REVENUE, 50 STAT. 143. IF SO, THE APPROPRIATION FOR COLLECTING THE INTERNAL REVENUE SOUGHT TO BE CHARGED WOULD NOT BE AVAILABLE FOR THE EXPENDITURE. SEE DECISION OF JULY 16, 1936, A-75478, TO YOU INVOLVING THE MURDER OF NARCOTIC AGENT SPENCER STAFFORD.

ACCORDINGLY, ALL THREE VOUCHERS IN THIS CASE WILL AGAIN BE RETURNED IN DUE COURSE WITHOUT CERTIFICATION FOR PAYMENT.