B-137187, SEPTEMBER 11, 1958, 38 COMP. GEN. 207

B-137187, SEPTEMBER 11, 1958, 38 COMP. GEN. 207

BONDS - PURCHASE OF BONDS UNDER 6 U.S.C. 14 - MINERAL SURVEYORS - STATUS IN VIEW OF THE FACT THAT MINERAL SURVEYORS WHO ARE REQUIRED TO TAKE AN OATH OF OFFICE BUT WHO DO NOT RECEIVE ANY COMPENSATION FROM THE GOVERNMENT FOR WORK IN CONNECTION WITH THE SURVEY OF MINING CLAIMS HAVE BEEN HELD TO BE SUBJECT TO THE CONFLICT OF INTEREST STATUTE, 43 U.S.C. 11--- A PENAL STATUTE WHICH PROHIBITS OFFICERS AND EMPLOYEES OF THE BUREAU OF LAND MANAGEMENT FROM ACQUIRING AN INTEREST IN PUBLIC LAND--- THEY MAY ALSO BE CONSIDERED WITHIN THE SCOPE OF THE BONDING ACT OF AUGUST 9, 1955, 6 U.S.C. 14--- A STATUTE REMEDIAL IN NATURE ENTITLED TO A LIBERAL CONSTRUCTION--- AND, THEREFORE, APPROPRIATIONS MAY BE USED FOR THE PURCHASE OF BONDS REQUIRED OF MINERAL SURVEYORS.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 11, 1958:

ON AUGUST 20, 1958, THE UNDER SECRETARY OF THE INTERIOR, REQUESTED OUR DECISION AS TO WHETHER UNDER THE ACT OF AUGUST 9, 1955, 69 STAT. 618, 6 U.S.C. 14, APPROPRIATIONS OF THE BUREAU OF LAND MANAGEMENT MAY BE USED TO PURCHASE BONDS REQUIRED OF MINERAL SURVEYORS.

THE UNDER SECRETARY EXPLAINS THAT IN ACCORDANCE WITH THE PROVISIONS OF 30 U.S.C. 39, APPLICANTS FOUND TECHNICALLY COMPETENT TO SURVEY MINING CLAIMS ARE APPOINTED AS MINERAL SURVEYORS. THEY ARE REQUIRED TO EXECUTE AN OATH OF OFFICE AND, IN ACCORDANCE WITH 43 C.F.R. 185.49, ARE REQUIRED TO FURNISH A PERFORMANCE BOND OF NOT LESS THAN $5,000. A MINERAL SURVEYOR RECEIVES NO COMPENSATION FROM THE GOVERNMENT AND WHEN HE IS APPOINTED HE HAS NO ASSURANCE THAT HE WILL EVER BE REQUESTED TO SURVEY A CLAIM. THE CLAIMANT IS FURNISHED THE NAMES OF ALL DULY APPOINTED SURVEYORS AND HE IS FREE TO MAKE HIS OWN SELECTION. THE CLAIMANT MUST MAKE ARRANGEMENTS WITH THE SURVEYOR REGARDING THE CHARGES FOR THE WORK. THE SURVEYORS, HOWEVER, ARE ACCOUNTABLE TO THE BUREAU OF LAND MANAGEMENT FOR THE PERFORMANCE OF THEIR DUTIES AND THE BUREAU MAY SUSPEND OR REVOKE THEIR APPOINTMENTS UPON SHOWING OF SUFFICIENT CAUSE.

THE REFERRED-TO ACT OF AUGUST 9, 1955, REQUIRES THE HEAD OF EACH DEPARTMENT IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT TO OBTAIN BONDS COVERING THE OFFICERS AND EMPLOYEES OF SUCH DEPARTMENT WHO ARE REQUIRED BY LAW OR ADMINISTRATIVE RULING TO BE BONDED. THE QUESTION TO CONSIDER HERE, THEREFORE, IS WHETHER IN THE CIRCUMSTANCES DESCRIBED ABOVE, MINERAL SURVEYORS PROPERLY MAY BE CONSIDERED TO BE EMPLOYEES OF THE UNITED STATES WITHIN THE PURVIEW OF THE 1955 STATUTE.

AS POINTED OUT IN THE UNDER SECRETARY'S LETTER, THE COURT HELD IN WAS KEY V. HAMMER, 223 U.S. 85, THAT MINERAL SURVEYORS ARE WITHIN THE RESTRICTIONS OF 43 U.S.C. 11, WHICH PROHIBIT OFFICERS, CLERKS, OR EMPLOYEES OF THE BUREAU OF LAND MANAGEMENT FROM ACQUIRING INTEREST IN PUBLIC LAND AND PROVIDES THAT ANY PERSON WHO VIOLATES SUCH PROVISION SHALL BE REMOVED FROM OFFICE. SUCH A LAW IS PENAL IN NATURE AND UNDER THE RULES OF STATUTORY CONSTRUCTION IT ORDINARILY IS REQUIRED TO BE STRICTLY CONSTRUED.

SINCE THE SUPREME COURT OF THE UNITED STATES HAS HELD MINERAL SURVEYORS TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES WITHIN THE SCOPE OF A LAW WHICH IS PENAL IN NATURE, NO SOUND BASIS APPEARS FOR HOLDING SUCH SURVEYORS TO BE WITHOUT THE SCOPE OF THE ACT OF AUGUST 9, 1955, PARTICULARLY SINCE THAT ACT IS REMEDIAL IN NATURE AND, AS SUCH, IS TO BE LIBERALLY CONSTRUED. THE FACT THAT THEY ARE NOT COMPENSATED BY THE GOVERNMENT IS NOT MATERIAL. COMPARE 21 COMP. GEN. 377 (QUESTION AND ANSWER NO. 6 BEGINNING AT FOOT OF PAGE 380).

THEREFORE, OUR VIEW IS THAT THE APPROPRIATIONS OF THE BUREAU OF LAND MANAGEMENT PROPERLY MAY BE USED TO PURCHASE BONDS COVERING MINERAL SURVEYORS.