A-9712, JULY 13, 1925, 5 COMP. GEN. 22

A-9712: Jul 13, 1925

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NAVY - PURCHASE OF FLORAL WREATHS WHERE AN EXPENDITURE OR PURCHASE DIRECTED BY THE HEAD OF AN EXECUTIVE DEPARTMENT FROM THE CONTINGENT FUND OF THE DEPARTMENT IS SHOWN TO BE REASONABLY FOR THE BUSINESS OF THE DEPARTMENT. REVISED STATUTES THE ACCOUNTING OFFICERS WILL NOT QUESTION THE MATTER IN THE ACCOUNTS OF THE DISBURSING OFFICER. WHERE THERE IS NO SUCH SHOWING AND A PLAIN EXCEEDING OF AUTHORITY IN THE EXERCISE OF THE DISCRETION VESTED IN THE HEAD OF THE DEPARTMENT BY CONGRESS IN THE ENACTMENT OF CONTINGENT APPROPRIATIONS. IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO DISALLOW CREDIT THEREFOR IN THE ACCOUNTS OF THE DISBURSING OFFICER MAKING PAYMENT. THE ANNUAL CONTINGENT FUND FOR THE NAVY IS NOT AVAILABLE FOR THE PURCHASE OF FLORAL WREATHS FOR THE FUNERALS OF DECEASED MEMBERS OF CONGRESS.

A-9712, JULY 13, 1925, 5 COMP. GEN. 22

CONTINGENT FUND, NAVY - PURCHASE OF FLORAL WREATHS WHERE AN EXPENDITURE OR PURCHASE DIRECTED BY THE HEAD OF AN EXECUTIVE DEPARTMENT FROM THE CONTINGENT FUND OF THE DEPARTMENT IS SHOWN TO BE REASONABLY FOR THE BUSINESS OF THE DEPARTMENT, AS REQUIRED BY SECTION 3683, REVISED STATUTES THE ACCOUNTING OFFICERS WILL NOT QUESTION THE MATTER IN THE ACCOUNTS OF THE DISBURSING OFFICER, BUT WHERE THERE IS NO SUCH SHOWING AND A PLAIN EXCEEDING OF AUTHORITY IN THE EXERCISE OF THE DISCRETION VESTED IN THE HEAD OF THE DEPARTMENT BY CONGRESS IN THE ENACTMENT OF CONTINGENT APPROPRIATIONS, IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO DISALLOW CREDIT THEREFOR IN THE ACCOUNTS OF THE DISBURSING OFFICER MAKING PAYMENT. THE ANNUAL CONTINGENT FUND FOR THE NAVY IS NOT AVAILABLE FOR THE PURCHASE OF FLORAL WREATHS FOR THE FUNERALS OF DECEASED MEMBERS OF CONGRESS, NOTWITHSTANDING THE APPROVAL OF THE EXPENDITURE BY THE SECRETARY OF THE NAVY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 13, 1925:

THERE HAS BEEN RECEIVED YOUR COMMUNICATION OF MAY 19, 1925, TRANSMITTING A BRIEF PREPARED IN YOUR DEPARTMENT IN SUPPORT OF A REQUEST FOR REVIEW OF THE ACTION OF THIS OFFICE IN DISALLOWING CREDIT IN THE ACCOUNTS OF COMMANDER C. G. MAYO, SUPPLY CORPS, UNITED STATES NAVY, FOR PAYMENTS MADE BY HIM UPON AUTHORITY OF THE SECRETARY OF THE NAVY FROM THE APPROPRIATION "CONTINGENT, NAVY, 1923," AS FOLLOWS: CERTIFICATE M-8887-E. SECOND QUARTER, 1923, NAVY DISBURSING OFFICE,

WASHINGTON, D.C. DISALLOWED OCT. 8, 1923. CONT. NAVY, 1923 ------------- ------- $50.00

P.B. 826, J. H. SMALL AND SONS. AMOUNT PAID FOR FLORAL WREATH IN CONNECTION WITH FUNERAL OF REPRESENTATIVE PADGETT. THIS EXPENDITURE IS NOT A NECESSARY OR APPROPRIATE MEANS OF PROMOTING ANY OF THE OBJECTS FOR WHICH THE APPROPRIATION FOR CONTINGENCIES OF THE NAVY WAS MADE, AND THERE IS NO OTHER APPROPRIATION FROM WHICH THE EXPENDITURE COULD BE MADE. CERTIFICATE M-1736-N. THIRD QUARTER, 1923. NAVY DISBURSING OFFICE,

WASHINGTON, D.C. P.B. 1935. DISALLOWED OCT. 8, 1923. CONT. NAVY, 1923 - ------- $40.00

PAYMENT TO MANGEL, FLORIST, FOR FLORAL WREATH FURNISHED FOR FUNERAL OF LATE REPRESENTATIVE MANN. IT DOES NOT APPEAR THAT THE EXPENDITURE IS A NECESSARY OR APPROPRIATE MEANS FOR PROMOTING ANY OF THE OBJECTS FOR WHICH THE APPROPRIATION FOR CONTINGENCIES OF THE NAVY WAS MADE, AND THERE IS NO OTHER APPROPRIATION FROM WHICH THE EXPENDITURE COULD BE MADE. CERTIFICATE M-4014-N. FOURTH QUARTER, 1923, NAVY DISBURSING OFFICE,

WASHINGTON, D.C. P.B. 6216. DISALLOWED NOV. 30, 1923. CONT. NAVY, 1923 ------- $25.00

PAYMENT TO BLACKISTONE, INC., FOR FLORAL WREATH FURNISHED FOR FUNERAL OF REPRESENTATIVE D. J. RIORDAN. THERE IS NO AUTHORITY UNDER WHICH EXPENDITURE OF THIS CHARACTER COULD BE MADE FROM CONT. NAVY AND THERE SEEMS TO BE NO OTHER APPROPRIATION FROM WHICH EXPENDITURE COULD BE MADE.

THE SOLE QUESTION INVOLVED IN A REVIEW OF THE THREE DISALLOWANCES IS WHETHER THE CONTINGENT APPROPRIATION FOR THE NAVY IS LEGALLY AVAILABLE FOR COST OF FLORAL WREATHS PURCHASED AND FURNISHED AT THE FUNERAL OF THE THREE DECEASED CONGRESSMEN, THE EXPENDITURES HAVING BEEN DIRECTED BY THE SECRETARY OF THE NAVY.

THE CONTINGENT APPROPRIATION FOR THE FISCAL YEAR, 1923, HERE INVOLVED, ACT OF JULY 2, 1922, 42 STAT. 778, IS AS FOLLOWS:

CONTINGENT, NAVY.

FOR ALL EMERGENCIES AND EXTRAORDINARY EXPENSES, EXCLUSIVE OF PERSONAL SERVICES IN THE NAVY DEPARTMENT OR ANY OF ITS SUBORDINATE BUREAUS OR OFFICES AT WASHINGTON, DISTRICT OF COLUMBIA, ARISING AT HOME OR ABROAD, BUT IMPOSSIBLE TO BE ANTICIPATED OR CLASSIFIED, TO BE EXPENDED ON THE APPROVAL AND AUTHORITY OF THE SECRETARY OF THE NAVY, AND FOR SUCH PURPOSES AS HE MAY DEEM PROPER, $45,000.

THE SAME WORDING HAS APPEARED IN THE ANNUAL CONTINGENT APPROPRIATIONS FOR THE NAVY SINCE THE ENACTMENT FOR THE FISCAL YEAR, 1904, ACT OF MARCH 3, 1903, 32 STAT. 1177.

SECTION 3683, REVISED STATUTES, PROVIDES AS FOLLOWS:

NO PART OF THE CONTINGENT FUND APPROPRIATED TO ANY DEPARTMENT, BUREAU, OR OFFICE, SHALL BE APPLIED TO THE PURCHASE OF ANY ARTICLES EXCEPT SUCH AS THE HEAD OF THE DEPARTMENT SHALL DEEM NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT, BUREAU, OR OFFICE, AND SHALL, BY WRITTEN ORDER, DIRECT TO BE PROCURED.

IN THE CASES HERE PRESENTED THE HEAD OF THE DEPARTMENT DIRECTED THE PAYMENTS, BUT IT DOES NOT APPEAR THAT HE DEEMED THE PURCHASES "NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT" OR THAT HE "BY WRITTEN ORDER" DIRECTED THE PURCHASES TO BE MADE. AVAILABILITY OF ANNUAL APPROPRIATIONS FOR CONTINGENT EXPENSES MUST BE CONSIDERED IN THE LIGHT OF SAID SECTION 3683, REVISED STATUTES, WHICH CONSTITUTES A RESTRICTION OR LIMITATION ON THE HEAD OF A DEPARTMENT IN DIRECTING THE EXPENDITURE OF CONTINGENT FUNDS PROVIDED FOR THE DEPARTMENT OF WHICH HE IS THE HEAD. THIS CONNECTION REFERENCE IS MADE TO THE DEFINITIONS OF THE PHRASE "CONTINGENT EXPENSES" FOUND IN THE DECISION OF THE COMPTROLLER OF THE TREASURY, DATED DECEMBER 7, 1897, 4 COMP. GEN. 287.

IT IS TRUE THAT THE WORDING OF THE NAVY APPROPRIATION HERE INVOLVED IS MORE SPECIFIC IN THE MATTER OF VESTING DISCRETION IN THE HEAD OF THE DEPARTMENT THAN SIMILAR PROVISIONS PROVIDING FOR CONTINGENT EXPENSES FOR OTHER DEPARTMENTS, BUT THERE IS NOTHING IN THE TERMS OF SAID APPROPRIATION TO INDICATE AN INTENTION TO EXEMPT IT FROM THE REQUIREMENTS OF SECTION 3683, REVISED STATUTES. ON THE CONTRARY THE WORDING OF THE NAVY APPROPRIATION WOULD INDICATE MORE SPECIFICALLY AN INTENT THAT THE REQUIREMENTS OF THE REVISED STATUTE, SUPRA, ARE TO BE OBSERVED. THE APPROPRIATION VESTS IN THE SECRETARY OF THE NAVY DISCRETION IN THE USE OF THE CONTINGENT FUND, BUT THAT DISCRETION MUST BE HELD TO BE A LEGAL DISCRETION TO BE EXERCISED SUBJECT TO THE LIMITATION OF THE REVISED STATUTE PROVIDING THAT THE "PURCHASE OF ANY ARTICLES" MUST BE "NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT.' IT IS NOT TO BE ASSUMED THAT THE CONGRESS INTENDED TO VEST IN THE ADMINISTRATIVE HEAD OF A DEPARTMENT THE UNLIMITED AUTHORITY TO EXPEND PUBLIC FUNDS FOR PURPOSES HAVING NO DIRECT CONNECTION WITH THE AUTHORIZED ACTIVITIES OF THE DEPARTMENT. THEREFORE, CREDIT MAY NOT BE ALLOWED FOR AN EXPENDITURE FROM A CONTINGENT FUND IN THE ABSENCE OF A REASONABLE SHOWING THAT THE EXPENDITURE PERTAINED TO THE BUSINESS OF THE DEPARTMENT. WHERE A PURCHASE OR EXPENDITURE FROM THE CONTINGENT FUND IS OF A CHARACTER THAT MIGHT REASONABLY BE REGARDED AS FOR THE BUSINESS OF THE DEPARTMENT, AND WAS AUTHORIZED AND APPROVED BY THE HEAD OF THE DEPARTMENT AS REQUIRED BY LAW, THE ACCOUNTING OFFICERS OF THE GOVERNMENT WOULD BE JUSTIFIED IN ASSUMING THAT IT WAS A LEGAL CHARGE AGAINST THE APPROPRIATION AND IN ALLOWING CREDIT FOR THE ITEM IN THE ACCOUNTS OF THE PAYING DISBURSING OFFICER; BUT WHERE THE CHARACTER OF THE PURCHASE IS SUCH AS TO NEGATIVE ANY PRESUMPTION OF ITS BEING NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT--- AND PARTICULARLY IN THE ABSENCE OF A SPECIFIC FINDING BY THE HEAD OF THE DEPARTMENT THAT IT IS NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT--- IT IS THE PLAIN DUTY OF THE ACCOUNTING OFFICERS TO QUESTION THE PAYMENTS IN THE ACCOUNTS OF THE DISBURSING OFFICER.

IN THIS CASE IT HAS NOT BEEN SHOWN, AND I ASSUME THAT IT WOULD NOT SERIOUSLY BE CONTENDED, THAT FLORAL TRIBUTES TO DECEASED CONGRESSMEN WERE "NECESSARY AND PROPER TO CARRY ON THE BUSINESS" OF THE NAVY DEPARTMENT, IT NOT APPEARING THAT THERE IS ANY OFFICIAL DUTY DEVOLVING UPON THE NAVY DEPARTMENT RELATIVE TO THE FURNISHING OF FLORAL TRIBUTES FOR THE FUNERAL OF DECEASED CONGRESSMEN. IT MUST BE HELD, THEREFORE, THAT THE FORMER SECRETARY OF THE NAVY EXCEEDED HIS AUTHORITY IN DIRECTING THE USE OF CONTINGENT FUND OF THE NAVY TO PAY FOR THE FLORAL TRIBUTES PURCHASED BY HIM, OR AT HIS DIRECTION, AND THAT SUCH ACTION DID NOT OBLIGATE THE GOVERNMENT.

IN COMPLIANCE WITH YOUR REQUEST, I HAVE GIVEN CAREFUL CONSIDERATION TO THE MATTERS SET FORTH IN THE BRIEF ACCOMPANYING YOUR SUBMISSION, PARTICULARLY THE DECISION OF THE COMPTROLLER OF THE TREASURY, DATED DECEMBER 12, 1907, 14 COMP. DEC. 344, A DISCUSSION OF WHICH CONSTITUTES THE GREATER PART OF THE BRIEF. AN ANALYSIS OF THAT DECISION, WHICH INVOLVED AN EXPENDITURE FOR ENTERTAINMENT OF NAVAL AUTHORITIES OF ANOTHER NATION BY OFFICERS OF THE NAVY OF THE UNITED STATES, DISCLOSES THAT THE COMPTROLLER WAS CAREFUL TO OBSERVE THAT THE ENTERTAINMENT WAS BUSINESS ,PERTAINING TO THE NAVY" AND REFUSED ONLY TO REVIEW THE ACTION OF THE SECRETARY OF THE NAVY IN PROVIDING CERTAIN ITEMS OF ENTERTAINMENT. FOR INSTANCE, IN CONSTRUING THE TERMS OF THE CONTINGENT APPROPRIATION FOR THE FISCAL YEAR 1904, IDENTICAL IN PHRASEOLOGY TO THAT HERE INVOLVED, HE STATED (P. 348):

* * * UNDER ITS EXACT TERMS THE SECRETARY OF THE NAVY IS AUTHORIZED TO EXPEND IT, OR ANY PART OF IT, FOR ALL EMERGENCIES AND EXTRAORDINARY EXPENSES PERTAINING TO THE NAVY * * *. AND AGAIN, ON THE SAME PAGE:

* * * TO MY MIND THE ADDITION OF THIS LANGUAGE SHOWS THAT CONGRESS REPOSED THE UTMOST CONFIDENCE IN THE DISCRETION OF THE SECRETARY OF THE NAVY AND CLOTHED HIM WITH PRACTICALLY UNLIMITED POWER, LIMITED ONLY BY THE FACT THAT THE SECRETARY SHOULD CONSIDER A GIVEN EXPENDITURE OUT OF THIS APPROPRIATION TO BE CONCERNING A MATTER RELATIVE TO AND APPROPRIATE AS AN EMERGENCY AND EXTRAORDINARY EXPENSE CONNECTED WITH THE NAVY * * *.

AT NO PLACE IN THE DECISION, WHICH IS A LENGTHY CONSIDERATION OF THE SUBJECT, WAS A STATEMENT MADE THAT THE SECRETARY COULD DIRECT THE USE OF PUBLIC FUNDS PROVIDED UNDER CONTINGENT APPROPRIATIONS FOR PURPOSES HAVING NO CONNECTION WITH THE AUTHORIZED ACTIVITIES OF THE NAVY.

UPON REVIEW THE SETTLEMENTS DISALLOWING THE ITEMS FOR PURCHASE OF FLORAL WREATHS MUST BE AND ARE SUSTAINED.