A-9147, JULY 9, 1925, 5 COMP. GEN. 15

A-9147: Jul 9, 1925

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" IS AUTHORITY FOR THE RECLAMATION SERVICE TO REFUND SUCH OVERCOLLECTIONS MADE PRIOR TO THE DATE OF ITS ENACTMENT AND THE SUBSEQUENT ANNUAL ENACTMENTS OF SUCH PROVISO. 1925: I HAVE YOUR LETTER OF APRIL 16. IN VIEW OF THE REPEATED ENACTMENT OF THE ABOVE-STATED PROVISION THE DEPARTMENT WOULD SEEM TO BE WARRANTED IN CONCLUDING THAT IT IS THE INTENTION OF CONGRESS TO AUTHORIZE REFUNDS AS TO ALL OVERCOLLECTIONS MADE ON ACCOUNT OF WATER CHARGES. HAS CAUSED SOME DOUBT AS TO THE AUTHORITY TO REFUND WHERE THE MATTER OF REFUND IS NOT PRESENTED UNTIL SEVERAL YEARS AFTER THE OVERCOLLECTION. THE GOVERNMENT DOES NOT AS A RULE INITIATE A REFUND AND OFTEN IN PRACTICE THE CLAIMANT WILL DELAY HIS APPLICATION FOR SOME YEARS.

A-9147, JULY 9, 1925, 5 COMP. GEN. 15

RECLAMATION SERVICE - REFUNDS OF OVERCOLLECTIONS OF WATER-RIGHT CHARGES, RENTALS, ETC. THE PROVISION IN THE APPROPRIATION ACT OF JUNE 5, 1920, 41 STAT. 913, FOR THE REFUND OF ,OVERCOLLECTIONS HERETOFORE OR HEREAFTER RECEIVED ON ACCOUNT OF WATER-RIGHT CHARGES, RENTALS, AND DEPOSITS FOR OTHER PURPOSES," IS AUTHORITY FOR THE RECLAMATION SERVICE TO REFUND SUCH OVERCOLLECTIONS MADE PRIOR TO THE DATE OF ITS ENACTMENT AND THE SUBSEQUENT ANNUAL ENACTMENTS OF SUCH PROVISO, ALTHOUGH OMITTING THE WORD "HERETOFORE," MAY BE TAKEN AS AUTHORITY FOR THE REFUND OF SUCH OVERCOLLECTIONS AT LEAST TO THE DATE OF NEXT ENACTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 9, 1925:

I HAVE YOUR LETTER OF APRIL 16, 1925, REQUESTING DECISION OF A QUESTION THEREIN STATED, AS FOLLOWS:

THE SUNDRY CIVIL APPROPRIATION ACT FOR 1921, ENACTED JUNE 5, 1920 (41 STAT. 913) CONTAINS THE FOLLOWING ITEM UNDER THE TITLE, "RECLAMATION SERVICE: "

"REFUNDS FOR OVERCOLLECTIONS HERETOFORE OR HEREAFTER RECEIVED ON ACCOUNT OF WATER-RIGHT CHARGES, RENTALS, AND DEPOSITS FOR OTHER PURPOSES; "

AND EACH ANNUAL APPROPRIATION ACT HAS CARRIED THE SAME ITEM EXCEPT FOR THE OMISSION OF THE WORD "HERETOFORE.'

IN VIEW OF THE REPEATED ENACTMENT OF THE ABOVE-STATED PROVISION THE DEPARTMENT WOULD SEEM TO BE WARRANTED IN CONCLUDING THAT IT IS THE INTENTION OF CONGRESS TO AUTHORIZE REFUNDS AS TO ALL OVERCOLLECTIONS MADE ON ACCOUNT OF WATER CHARGES, ETC., BUT THE OMISSION OF THE WORD "HERETOFORE" SINCE THE SAID ACT OF JUNE 5, 1920, HAS CAUSED SOME DOUBT AS TO THE AUTHORITY TO REFUND WHERE THE MATTER OF REFUND IS NOT PRESENTED UNTIL SEVERAL YEARS AFTER THE OVERCOLLECTION. THE GOVERNMENT DOES NOT AS A RULE INITIATE A REFUND AND OFTEN IN PRACTICE THE CLAIMANT WILL DELAY HIS APPLICATION FOR SOME YEARS; AS FOR EXAMPLE IN A CASE NOW PENDING BEFORE THE BUREAU OF RECLAMATION, AN APPLICATION HAS BEEN JUST FILED FOR REFUND OF AN OVERCOLLECTION MADE JANUARY 17, 1922. THE APPROPRIATION FOR THE FISCAL YEAR 1922 IS NO LONGER AVAILABLE FOR THIS REFUND AND THE CURRENT APPROPRIATION RECITES,"OVERCOLLECTIONS HEREAFTER RECEIVED.'

YOUR OPINION IS REQUESTED AS TO WHETHER THE BUREAU OF RECLAMATION IS AUTHORIZED TO REFUND THE OVERCOLLECTION IN THE CASE DESCRIBED, AND IF SO, TO WHICH APPROPRIATION ACT SHOULD THE REPAYMENT BE CHARGED.

THE AUTHORITY OF THE ACT OF 1920, CITED, NECESSARILY HAD TO INCLUDE OVERCOLLECTIONS HERETOFORE" MADE AS IT WAS THE PRIMARY STATUTORY AUTHORITY AND IF THE PRIOR OVERCOLLECTIONS HAD NOT BEEN AUTHORIZED TO BE REFUNDED THE ENACTMENT WOULD HAVE BEEN EFFECTIVE ONLY TO THOSE OVERCOLLECTIONS MADE AFTER ITS DATE. THE TENOR OF THE ENACTMENT IS PERMANENT LEGISLATION. THE REPETITION OF IT IN SUBSEQUENT APPROPRIATIONS HAS NO SPECIAL SIGNIFICANCE WITH RESPECT TO THE AUTHORITY TO MAKE REFUND OF OVERCOLLECTIONS WHERE SOME MIGHT BE PRIOR TO THE DATE OF THE ENACTMENT ANNUALLY MADE. OTHERWISE THERE WOULD APPEAR VARYING DATES ANNUALLY WITH RESULTING CONFUSION AS TO OVERCOLLECTIONS FALLING BETWEEN THE DATES IN THE RESPECTIVE YEARS. HENCE INITIALLY THE ACT OF 1920 IS AUTHORITY FOR REFUND OF OVERCOLLECTIONS PRIOR TO THE DATE OF THE ENACTMENT AND THE SUBSEQUENT ANNUAL ENACTMENTS ARE TO BE TAKEN AS AUTHORITY FOR REFUND OF OVERCOLLECTIONS AT LEAST TO THE DATE OF THE NEXT ENACTMENT.

IT SHOULD BE KEPT IN MIND THAT THE AUTHORITY IS TO MAKE A REFUND AND NOT TO INCUR AN OBLIGATION. IT DOES NOT NECESSARILY FOLLOW THAT THE REENACTMENT OF THE AUTHORITY TO USE THE RECLAMATION FUND TO MAKE THE REFUND IS LIMITED TO THE RECEIPTS FOR THE FISCAL YEAR IN WHICH THE OVERCOLLECTION WAS MADE. NO SPECIFIC AMOUNT IS APPROPRIATED TO MAKE THESE REFUNDS, AND THE FUND FROM WHICH THEY ARE TO BE MADE IS NOT AN ORDINARY ANNUAL APPROPRIATION BUT IS A SPECIAL FUND CARRIED ON THE BOOKS WITHOUT YEAR BUT WITH CERTAIN LIMITATIONS AS TO THE AMOUNTS WHICH MAY BE EXPENDED ON THE VARIOUS PROJECTS DURING THE PERIOD COVERED BY THE APPROPRIATION ACTS. IN VIEW OF THIS FACT, AND BEARING IN MIND THE SOURCES OF THE RECLAMATION FUND BEING FROM SALES OF CERTAIN PUBLIC LAND AS AUTHORIZED BY THE ACT OF 1902, AND ALSO RENTS PAID BY WATER USERS, ETC., THERE APPEARS TO ME NO REASON WHY THE ALLOTMENT OF THE FUND CURRENT AT THE TIME THE CLAIM FOR THE OVERCOLLECTION IS ALLOWED MAY NOT BE CHARGED WITH SUCH REFUND.