A-9211, MAY 4, 1925, 4 COMP. GEN. 917

A-9211: May 4, 1925

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ENFORCEMENT OF NATIONAL PROHIBITION - SECURING EVIDENCE THE APPROPRIATION FOR EXPENSES OF ENFORCING THE PROVISIONS OF THE NATIONAL PROHIBITION ACT IS NOT AVAILABLE TO REIMBURSE PROHIBITION AGENTS FOR LOSSES SUSTAINED WHILE ENGAGED IN GAMBLING IN VIOLATION OF THE STATE LAWS IN AN EFFORT TO DETECT OR SECURE EVIDENCE OF VIOLATIONS OF THE PROHIBITION LAWS. WHEREIN WAS DISALLOWED HIS CLAIM. STATED: THESE EXPENDITURES ARE OUT OF THE ORDINARY. IT IS QUITE EVIDENT THAT THIS MONEY HAD TO BE EXPENDED IN ORDER TO SECURE EVIDENCE IN THESE PLACES. STATED: REFERENCE IS MADE TO YOUR MEMORANDUM OF DECEMBER 19. YOU WILL NOTE FROM THE AGENT'S LETTER. WHICH IS ATTACHED TO THE ACCOUNT. THAT THIS WAS A VERY DIFFICULT PROPOSITION AND THAT THE ONLY WAY THE NECESSARY EVIDENCE COULD BE OBTAINED IN THESE CASES WAS FOR THE AGENTS TO PUT UP THE APPEARANCE OF TOURISTS.

A-9211, MAY 4, 1925, 4 COMP. GEN. 917

ENFORCEMENT OF NATIONAL PROHIBITION - SECURING EVIDENCE THE APPROPRIATION FOR EXPENSES OF ENFORCING THE PROVISIONS OF THE NATIONAL PROHIBITION ACT IS NOT AVAILABLE TO REIMBURSE PROHIBITION AGENTS FOR LOSSES SUSTAINED WHILE ENGAGED IN GAMBLING IN VIOLATION OF THE STATE LAWS IN AN EFFORT TO DETECT OR SECURE EVIDENCE OF VIOLATIONS OF THE PROHIBITION LAWS.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 4, 1925:

HOWARD G. BETHARDS, GENERAL PROHIBITION AGENT, REQUESTED, APRIL 20, 1925, REVIEW OF SETTLEMENT NO. 077731, DATED APRIL 16, 1925, WHEREIN WAS DISALLOWED HIS CLAIM, AMOUNTING TO $236, FOR LOSSES SUSTAINED AT ROULETTE, CARDS, DICE, ETC., DURING NOVEMBER, 1924, AS INTERNAL REVENUE GENERAL PROHIBITION AGENT, FOR THE PURPOSE OF SECURING EVIDENCE OF VIOLATIONS OF THE NATIONAL PROHIBITION ACT.

THE DIVISION CHIEF, GENERAL PROHIBITION AGENTS, JACKSONVILLE, FLA., IN TRANSMITTING AGENT BETHARDS'S CLAIM TO WASHINGTON FOR SETTLEMENT, UNDER DATE OF DECEMBER 5, 1924, STATED:

THESE EXPENDITURES ARE OUT OF THE ORDINARY, AND AT MY SUGGESTION MR. BETHARDS HAS SUBMITTED SAME IN THE FORM OF A SUPPLEMENTAL.

IT IS QUITE EVIDENT THAT THIS MONEY HAD TO BE EXPENDED IN ORDER TO SECURE EVIDENCE IN THESE PLACES, AND I AM THEREFORE APPROVING SAME FOR PAYMENT, AND BELIEVE THAT THE AMOUNT CLAIMED SHOULD BE PAID IN FULL.

THE ACTING CHIEF, GENERAL PROHIBITION AGENTS, IN A MEMORANDUM TO THE BUREAU UNDER DATE OF JANUARY 30, 1925, STATED:

REFERENCE IS MADE TO YOUR MEMORANDUM OF DECEMBER 19, 1924, RETURNING THE SUPPLEMENTAL FORM 63 1/2 OF GENERAL PROHIBITION AGENT HOWARD G. BETHARDS, CONTAINING CLAIMS IN THE TOTAL AMOUNT OF $236.00, FOR EXPENSES INCURRED FOR THE PURPOSE OF OBTAINING EVIDENCE OF VIOLATIONS OF THE NATIONAL PROHIBITION ACT.

FOR YOUR INFORMATION, THIS OFFICE RECEIVED NUMEROUS REPORTS OF WHOLESALE VIOLATIONS AT KEY WEST, FLORIDA. YOU WILL NOTE FROM THE AGENT'S LETTER, WHICH IS ATTACHED TO THE ACCOUNT, THAT THIS WAS A VERY DIFFICULT PROPOSITION AND THAT THE ONLY WAY THE NECESSARY EVIDENCE COULD BE OBTAINED IN THESE CASES WAS FOR THE AGENTS TO PUT UP THE APPEARANCE OF TOURISTS, INCURRING A CONSIDERABLE AMOUNT OF EXPENSE PLAYING GAMBLING GAMES, ETC., IN ORDER TO GAIN THE CONFIDENCE OF THE VIOLATORS AND BE ABLE TO PURCHASE EVIDENCE. DIVISIONAL CHIEF DUNCAN, WHO WAS REQUESTED TO HAVE THIS INVESTIGATION MADE, STATES THAT IT WAS ABSOLUTELY NECESSARY TO EXPEND THIS MONEY IN ORDER TO SECURE THE EVIDENCE, AND THAT HE BELIEVES THAT THE AMOUNT CLAIMED SHOULD BE PAID IN FULL.

IT IS THE OPINION OF THIS OFFICE THAT THE RESULTS OBTAINED FROM THIS INVESTIGATION FULLY JUSTIFY THE AMOUNT OF EXPENSE INCURRED, AND PAYMENT OF THIS ACCOUNT IS RECOMMENDED.

THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 305, PROVIDES THAT THE COMMISSIONER OF INTERNAL REVENUE, HIS ASSISTANTS, AGENTS, AND INSPECTORS SHALL INVESTIGATE AND REPORT VIOLATIONS OF THE PROHIBITION LAWS, AND THE ACT OF APRIL 4, 1924, 43 STAT. 71, MAKING APPROPRIATION FOR THE FISCAL YEAR 1925, PROVIDES:

FOR EXPENSES TO ENFORCE THE PROVISIONS OF THE NATIONAL PROHIBITION ACT * * * INCLUDING * * * THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACTS * * * AND SUCH OTHER EXPENDITURES AS MAY BE NECESSARY IN THE DISTRICT OF COLUMBIA AND SEVERAL FIELD OFFICES * * * $10,629,770 * * *.

THE APPROPRIATION QUOTED IS AVAILABLE FOR MAKING INVESTIGATIONS FOR THE PURPOSE OF SECURING EVIDENCE AND THE PURCHASE OF EVIDENCE IN PROPER CASES, BUT IT DOES NOT AUTHORIZE EXPENDITURES OF SUCH DOUBTFUL PROPRIETY AS ENGAGING IN GAMBLING FOR THE PURPOSE OF SECURING EVIDENCE, WHICH IN ITSELF IS A VIOLATION OF THE LAWS OF THE STATE. SEE REVISED GENERAL STATUTES, STATE OF FLORIDA, 1920, VOLUME 2, SECTION 5508, PAGE 2676.

THE FACT THAT AN EXPENDITURE HAS BEEN AUTHORIZED BY A SUPERIOR OFFICER DOES NOT ALWAYS CONSTITUTE AUTHORITY THEREFOR. THE CHARACTER OF THE EXPENDITURE HERE INVOLVED IS SUCH THAT REIMBURSEMENT THEREFOR CAN NOT BE AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR.