B-76122, MAY 19, 1948, 27 COMP. GEN. 708

B-76122: May 19, 1948

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1948: REFERENCE IS MADE TO YOUR LETTER DATED MAY 5. THERE IS NOTED IN PARTICULAR THE PROVISION OF SAID ACT TO THE EFFECT THAT. IT IS SIGNIFICANT THAT. THERE ARE DECISIONS OF STATE COURTS TO THE EFFECT THAT REASONABLE EXPENDITURES FOR THE PERPETUAL CARE OF A BURIAL PLOT CONSTITUTE PAYMENTS FOR "FUNERAL EXPENSES.'. THE PRINCIPLES CONTROLLING THE CONCLUSIONS THEREIN ARE NOT NECESSARILY FOR APPLICATION IN THE INSTANT CASE. IT IS EVIDENT FROM YOUR LETTER THAT FOR A PERIOD OF YEARS NO FUNDS HAVE BEEN EXPENDED FOR THAT PURPOSE.

B-76122, MAY 19, 1948, 27 COMP. GEN. 708

APPROPRIATIONS - BURIAL EXPENSES - AVAILABILITY FOR UNKEEP AND PERPETUAL CARE OF GRAVES IN THE ABSENCE OF SPECIFIC AUTHORIZATION BY THE CONGRESS, FUNDS APPROPRIATED TO THE PUBLIC HEALTH SERVICE BY THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, FOR "REASONABLE BURIAL EXPENSES" OF PATIENTS DYING WHILE UNDERGOING HOSPITALIZATION FURNISHED BY THE SERVICE MAY NOT BE REGARDED AS AVAILABLE FOR THE UPKEEP OF GRAVE SITES AND FOR THE PERPETUAL CARE OF GRAVES.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, MAY 19, 1948:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1948, IN WHICH YOU REQUEST TO BE ADVISED AS TO WHETHER FUNDS MADE AVAILABLE TO THE PUBLIC HEALTH SERVICE BY THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, PUBLIC LAW 165, BOTH CONGRESS, 61 STAT. 268, TO PAY FOR THE "EXPENSES, FOR ANY PATIENT DYING IN A HOSPITAL," MAY BE EMPLOYED FOR THE UPKEEP OF GRAVE SITES AND TO PROVIDE FOR PERPETUAL CARE OF GRAVES PURSUANT TO ANNUAL CONTRACTS TO BE ENTERED INTO ON A LUMP-SUM BASIS.

IN CERTAIN INSTANCES THE CONGRESS HAS SPECIFICALLY AUTHORIZED THE EXPENDITURE OF FUNDS FOR THE UPKEEP OR PERPETUAL CARE OF GRADE SITES. THUS, THE ACT OF APRIL 20, 1940, 54 STAT. 144, AUTHORIZES APPROPRIATIONS TO BE MADE FOR THE FUNERAL EXPENSES OF PERSONNEL OF THE NAVY AND MARINE CORPS, CERTAIN CIVILIAN EMPLOYEES OF THE NAVY, PENSIONERS AND DESTITUTE PATIENTS WHO DIE IN NAVAL HOSPITALS. SECTION 2 OF SAID ACT, 54 STAT. 145, DEFINES "FUNERAL EXPENSES" AS INCLUDING CERTAIN ITEMS OF EXPENSE, BUT SECTION 6, 54 STAT. 145, MAKES SPECIFIC AND SEPARATE PROVISION FOR THE PURCHASE AND CARE OF CEMETERY LOTS AND FOR THE CARE OF GRAVES OF DECEASED PERSONNEL OF THE NAVY AND MARINE CORPS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. THERE IS NOTED IN PARTICULAR THE PROVISION OF SAID ACT TO THE EFFECT THAT, FOR PENSIONERS AND DESTITUTE PATIENTS, ONLY THE EXPENSES OF PREPARATION FOR BURIAL AND INTERMENT SHALL BE ALLOWED. HOWEVER, IT IS SIGNIFICANT THAT, IN THIS INSTANCE AT LEAST, THE CONGRESS DID NOT CONSIDER AUTHORITY FOR THE UPKEEP AND CARE OF GRAVES AS NECESSARILY INCLUDED IN "REASONABLE BURIAL EXPENSES.'

ON THE OTHER HAND, THERE ARE DECISIONS OF STATE COURTS TO THE EFFECT THAT REASONABLE EXPENDITURES FOR THE PERPETUAL CARE OF A BURIAL PLOT CONSTITUTE PAYMENTS FOR "FUNERAL EXPENSES.' IN RE COHEN'S ESTATE, 269 N.Y.S. 551; IN RE VOELKER'S ESTATE, 285 N.Y.S. 519; IN RE GILCHRIST'S ESTATE, 128 A. 876; CHASE V. MARTIN, 183 A. 726. HOWEVER, THESE CASES INVOLVED THE CONSTRUCTION OF THE TERM "FUNERAL EXPENSES" AS CONTAINED IN CERTAIN EXEMPTION PROVISIONS OF TAX STATUTES, AND THE PRINCIPLES CONTROLLING THE CONCLUSIONS THEREIN ARE NOT NECESSARILY FOR APPLICATION IN THE INSTANT CASE. THE INTENDED SCOPE OF THE TERM WOULD DEPEND TO SOME EXTENT UPON THE NATURE OF THE STATUTE IN WHICH IT APPEARS.

HERE, THE QUESTION ARISES IN CONNECTION WITH A PROVISION APPEARING IN ANNUAL APPROPRIATIONS, AND APPARENTLY SAID PROVISION HAS NOT HERETOFORE BEEN CONSTRUED AS COVERING THE EXPENSE OF PERPETUAL CARE OF GRAVES. ANY RATE, IT IS EVIDENT FROM YOUR LETTER THAT FOR A PERIOD OF YEARS NO FUNDS HAVE BEEN EXPENDED FOR THAT PURPOSE. UNDER SUCH CIRCUMSTANCES, I DEEM THE MATTER SUFFICIENTLY DOUBTFUL TO WARRANT SPECIFIC AUTHORIZATION BY THE CONGRESS FOR EXPENDITURES OF THE NATURE DESCRIBED.