B-157618, NOV. 15, 1965, 45 COMP. GEN. 249

B-157618: Nov 15, 1965

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PREDICATED ON THE RULE THAT HE DID NOT HAVE AUTHORITY TO FURNISH A MUNICIPALITY WITH MONEY FOR THE PURCHASE OF A WATER PIPELINE RIGHT-OF-WAY NEEDED TO SUPPLY WATER TO THE SCHOOL MAY NOT BE PAID. THE EXCEPTION WAS BASED UPON THE DECISION PUBLISHED IN 6 COMP. GEN. 568 WHEREIN THE GENERAL RULE WAS STATED THAT THE MATTER OF NEGOTIATING FOR THE PURCHASE OF LANDS. IS AN ADMINISTRATIVE DUTY THAT CANNOT BE DELEGATED TO ANYONE OTHER THAN TO RESPONSIBLE OFFICERS OF THE GOVERNMENT. A DETAILED EXPLANATION WAS REQUESTED BY THE NOTICE. TO THE NOTICE OF EXCEPTION WAS AS FOLLOWS: WE HAVE NO OTHER AUTHORITIES TO OFFER AS JUSTIFICATION FOR MAKING PAYMENT DIRECT EXCEPT THE FIFTH PARAGRAPH OF INDIAN OFFICE LETTER OF FEB. 25.

B-157618, NOV. 15, 1965, 45 COMP. GEN. 249

STATUTES OF LIMITATION - CLAIMS - DATE OF ACCRUAL - REFUND CLAIMS A CLAIM FILED IN 1965 BY A FORMER INDIAN SCHOOL SUPERINTENDENT FOR REFUND OF THE PAYMENT HE MADE TO CLEAR HIS ACCOUNTS OF A GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION TAKEN IN 1933, PREDICATED ON THE RULE THAT HE DID NOT HAVE AUTHORITY TO FURNISH A MUNICIPALITY WITH MONEY FOR THE PURCHASE OF A WATER PIPELINE RIGHT-OF-WAY NEEDED TO SUPPLY WATER TO THE SCHOOL MAY NOT BE PAID, EVEN THOUGH THE FORMER EMPLOYEE PARTIALLY SATISFIED THE REQUIREMENTS OF THE EXCEPTION--- EVIDENCE OF RECEIPT OF PAYMENT BY THE PARTIES GRANTING THE RIGHT-OF WAY, TOGETHER WITH EVIDENCE OF THE TRANSFER OF THE RIGHT-OF-WAY TO THE GOVERNMENT, AND THAT GOOD TITLE VESTED IN THE GOVERNMENT--- THE CLAIM SUBMITTED AS A DOUBTFUL CLAIM FOR ADJUSTMENT AND SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE BEING SUBJECT TO THE PROHIBITION IN THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, HAVING BEEN FILED MORE THAN 10 YEARS AFTER IT FIRST ACCRUED.

TO THE SECRETARY OF THE INTERIOR, NOVEMBER 15, 1965:

BY LETTER DATED AUGUST 27, 1965, WITH ENCLOSURES, THE CHIEF, BRANCH OF ADP AND FINANCE, BUREAU OF INDIAN AFFAIRS, REQUESTED A DECISION ON THE PROPRIETY OF REFUNDING THE AMOUNT OF $751.50 TO MR. JACK BROWN, FORMER SUPERINTENDENT AND SPECIAL DISBURSING AGENT, SEQUOYAH ORPHAN TRAINING SCHOOL, TAHLEQUAH, OKLAHOMA. THE RECORD SHOWS THAT MR. BROWN, ON JANUARY 12, 1939, DEPOSITED $751.50 TO THE CREDIT OF THE UNITED STATES TO CLEAR HIS ACCOUNTS OF A GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION, DATED OCTOBER 2, 1933.

THE NOTICE OF EXCEPTION CONCERNED A PAYMENT MADE TO THE CITY OF TAHLEQUAH IN CONNECTION WITH A WATER PIPELINE RIGHT-OF-WAY PURCHASED BY THE CITY INCIDENT TO WATER SUPPLY FOR THE SCHOOL. THE EXCEPTION WAS BASED UPON THE DECISION PUBLISHED IN 6 COMP. GEN. 568 WHEREIN THE GENERAL RULE WAS STATED THAT THE MATTER OF NEGOTIATING FOR THE PURCHASE OF LANDS, OR ANY INTERESTS IN LANDS FOR THE UNITED STATES, IS AN ADMINISTRATIVE DUTY THAT CANNOT BE DELEGATED TO ANYONE OTHER THAN TO RESPONSIBLE OFFICERS OF THE GOVERNMENT. A DETAILED EXPLANATION WAS REQUESTED BY THE NOTICE, AS WELL AS EVIDENCE OF RECEIPT OF PAYMENT BY THE PERSONS RECEIVING THE MONEY TOGETHER WITH EVIDENCE OF TRANSFER OF RIGHT-OF-WAY TO THE GOVERNMENT AND EVIDENCE THAT GOOD TITLE VESTED IN THE GOVERNMENT. THE REPLY OF NOVEMBER 20, 1933, TO THE NOTICE OF EXCEPTION WAS AS FOLLOWS:

WE HAVE NO OTHER AUTHORITIES TO OFFER AS JUSTIFICATION FOR MAKING PAYMENT DIRECT EXCEPT THE FIFTH PARAGRAPH OF INDIAN OFFICE LETTER OF FEB. 25, 1933, ATTACHED TO OUR REPLY OF SEPT. 16, 1933, INDICATING THAT THE CITY OF TAHLEQUAH WAS TO ACT IN THE CAPACITY OF AGENT IN SECURING THE RIGHT-OF- WAY; ALSO INDIAN OFFICE LETTER OF MARCH 20, 1933, ATTACHED TO MY REPLY OF SEPT. 16, 1933, AUTHORIZING PAYMENT DIRECT, AFTER CLAIM FOR WASHINGTON SETTLEMENT HAD BEEN SUBMITTED ON FORM 5-647.

RELATIVE TO EVIDENCE OF RECEIPT OF PAYMENT TO THE VARIOUS PARTIES GRANTING RIGHT OF WAYS YOU ARE ADVISED THAT THE DIFFERENT DOCUMENTS, OR EASEMENT, INDICATE THE EXACT AMOUNTS AS CONSIDERATIONS. NO OTHER RECEIPTS WERE SECURED; PAYMENT MADE BY CHECKS AND PHOTOSTATIC COPIES COULD BE SECURED IF REQUIRED. RELATIVE TO TITLE, YOU ARE ADVISED THAT WE ARE WORKING ON THIS MATTER IN ORDER TO MEET THE REQUIREMENT, PREVIOUSLY MADE, BY INDIAN OFFICE. AS SOON AS REQUIREMENTS ARE COMPLIED WITH THE PAPERS WILL BE SUBMITTED THROUGH THE INDIAN OFFICE.

THE CHIEF, BRANCH OF ADP AND FINANCE, IN HIS LETTER OF AUGUST 25, 1965, RECOMMENDS THAT MR. BROWN BE REFUNDED THE AMOUNT OF $751.50, GIVING THE FOLLOWING AS A BASIS FOR SUCH RECOMMENDATION:

BUREAU OF INDIAN AFFAIRS MEMORANDUM DATED JULY 20, 1965, COPY ENCLOSED, TO THE CHIEF, BRANCH OF FINANCE FROM THE CHIEF, BRANCH OF REAL PROPERTY MANAGEMENT, FURNISHES INFORMATION AS TO THE EXTENT MR. BROWN HAS COMPLIED WITH THE EXCEPTION REQUIREMENT OF OBTAINING GOVERNMENT TITLE TO THE WATER PIPELINE RIGHT-OF-WAY ON 10 PARCELS OF LAND FOR WHICH THE SUM OF $751.50 WAS EXPENDED.

YOU WILL NOTE ON THE EXCEPTION NOTICE THAT THE REPLY STATES IN PART:

"RELATIVE TO TITLE, YOU ARE ADVISED THAT WE ARE WORKING ON THIS MATTER IN ORDER TO MEET THE REQUIREMENT, PREVIOUSLY MADE, BY INDIAN OFFICE. AS SOON AS REQUIREMENTS ARE COMPLIED WITH THE PAPERS WILL BE SUBMITTED THROUGH THE INDIAN OFFICE.'

ALTHOUGH MR. BROWN CONTINUED TO PURSUE THE MATTER AND WAS SUCCESSFUL IN OBTAINING EASEMENT DEEDS AND SUPPORTING TITLE DATA FROM THE OWNERS OF EIGHT PARCELS CROSSED BY THE RIGHT-OF-WAY, THE BUREAU OF INDIAN AFFAIRS DID NOTHING TO RECTIFY THE MATTER. FAILURE TO OBTAIN TITLE DOCUMENTS ON THE REMAINING TWO PARCELS WAS DUE TO CIRCUMSTANCES BEYOND MR. BROWN'S CONTROL. ALSO, THE FACT THAT THE GOVERNMENT AND THE SEQUOYAH SCHOOL HAVE ENJOYED TROUBLE FREE BENEFITS FROM THE WATER PIPELINE RIGHT-OF-WAY FOR MORE THAN 30 YEARS APPEARS CONCLUSIVE EVIDENCE THAT THE WORK WAS COMPLETED.

IN VIEW OF THE CIRCUMSTANCES, WE RECOMMEND THAT MR. BROWN BE REFUNDED THE AMOUNT OF $751.50 PAID BY HIM. IF PROPER, WE PROPOSED TO USE THE FUND "14X2301, CONSTRUCTION, BUREAU OF INDIAN AFFAIRS," TO EFFECT PAYMENT.

MR. BROWN'S REQUEST FOR REFUND CONCERNS A RIGHT OF ACTION WHICH ACCRUED UPON HIS COMPLYING WITH THE EXCEPTION REQUIREMENT. THE RECORD SHOWS THAT MR. BROWN OBTAINED EXECUTION OF NEW DEEDS OVER THE PERIOD FROM MARCH 1939 TO MARCH 1941, AND THAT EIGHT DEEDS WERE OBTAINED. ALTHOUGH EASEMENTS TO THE CITY WERE IN EFFECT, TWO OWNERS REFUSED TO GRANT NEW EASEMENTS IN FAVOR OF THE UNITED STATES. CONCERNING THESE TWO PARCELS, NO PROBLEM AROSE DURING A PERIOD OF OVER 30 YEARS OVER USE OF THE RIGHT-OF-WAYS, AND, AS STATED BY MR. BROWN CONCERNING THE STATUTORY PERIOD UNDER WHICH ACTION MAY BE BROUGHT IN OKLAHOMA FOR DETERMINATION OF ANY ADVERSE RIGHT OR INTEREST IN REAL PROPERTY, SAID PERIOD HAS "RUN ITS COURSE MORE THAN AN ADDITIONAL FIFTEEN YEARS.'

SINCE NO APPROPRIATION IS AVAILABLE TO YOUR DEPARTMENT FOR PAYMENT OF A CLAIM SUCH AS HERE INVOLVED, AND AS THE MATTER INVOLVES A DOUBTFUL CLAIM AS EVIDENCED BY THE REQUEST FOR ADVICE IN THE MATTER, THE CLAIM IS ONE FOR ADJUSTMENT AND SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, AND IN THAT CONNECTION THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES:

(1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.

THE ABOVE PROVISION OF LAW EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. IT IS APPARENT FROM THE FACTS AS RELATED ABOVE THAT MORE THAN 10 YEARS HAVE PASSED SINCE MR. BROWN'S CLAIM FIRST ACCRUED, AND, THEREFORE, AS A CLAIM WAS NOT TIMELY FILED IN THIS OFFICE THE STATUTE PRECLUDES ITS CONSIDERATION.

THE PAPERS TRANSMITTED WITH THE LETTER OF AUGUST 27, 1965 ARE RETURNED HEREWITH.