A-55239, JUNE 22, 1934, 13 COMP. GEN. 458

A-55239, JUNE 22, 1934, 13 COMP. GEN. 458

VEHICLES - PASSENGER CARRYING - LIMITATION A RENTAL AGREEMENT PURSUANT TO WHICH THE GOVERNMENT AGREES TO RENT PASSENGER-CARRYING VEHICLES FOR ONE YEAR AT MONTHLY RATES WHICH WOULD EXCEED $750 PER YEAR IS IN CONTRAVENTION OF SECTION 3 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1513, WHICH LIMITS THE AMOUNT WHICH MAY BE PAID FOR THE PURCHASE OF ANY MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE TO $750 AND THE AMOUNT WHICH MAY BE PAID FOR MAINTENANCE, UPKEEP, AND REPAIRS TO $400 PER ANNUM.

COMPTROLLER GENERAL MCCARL TO SECRETARY OF WAR, JUNE 22, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 25, 1934, AS FOLLOWS:

THE U.S. DISTRICT ENGINEER, KANSAS CITY, MISSOURI, ENTERED INTO CONTRACT W-461-ENG-5341 WITH THE BOHANNAN RENT-A-CAR COMPANY, KANSAS CITY, MISSOURI, FOR THE HIRE OF EIGHTEEN AUTOMOBILES FOR A PERIOD OF ONE YEAR. PARAGRAPH NINE OF THE SPECIFICATIONS OF SAID CONTRACT PROVIDES FOR LIABILITY ON THE PART OF THE UNITED STATES FOR REPAIRS TO THE AUTOMOBILES RESULTING FROM ACCIDENTS FOR WHICH IT IS FOUND A GOVERNMENT EMPLOYEE WAS RESPONSIBLE.

THE DISTRICT ENGINEER HAS SUBMITTED REPORTS ON AN ACCIDENT WITH ACCOMPANYING CLAIM BY THE CONTRACTOR FOR THE COST OF REPAIRS TO HIS CAR, AND RECOMMENDS THE APPROVAL OF THE CLAIM BY THIS OFFICE. THE FUNDS INVOLVED WERE ALLOTTED TO THE KANSAS CITY DISTRICT UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE APPROPRIATION REFERRED TO IS AVAILABLE TO PAY SAID CLAIM, AND IF SO WHETHER OR NOT SIMILAR CLAIMS MAY BE PAID BY DISBURSING OFFICERS ON PROPERLY APPROVED VOUCHERS OR SHOULD BE REFERRED TO YOUR OFFICE FOR DIRECT SETTLEMENT. THE PAPERS ON THE CLAIM REFERRED TO ARE ATTACHED.

THE CONTRACT REFERRED TO IN YOUR SUBMISSION PROVIDES FOR THE RENTAL OF 14 SEDANS, 2 STATION WAGONS, AND 2 ONE-HALF TON TRUCKS, COMPARABLE TO FORDS, CHEVROLETS, OR PLYMOUTHS, FOR A PERIOD OF 1 YEAR AT THE RATE OF $62.50 PER MONTH, PLUS 1 CENT PER MILE FOR THE AVERAGE MILEAGE TRAVELED PER MONTH. WITH RESPECT TO DAMAGES, THE CONTRACT PROVIDES:

IN CASE OF AN ACCIDENT CAUSING SERIOUS DAMAGE TO ANY AUTOMOBILE OR TRUCK THE CASE WILL BE REFERRED TO A BOARD OF OFFICERS WHO WILL DETERMINE THE RESPONSIBILITY. IF A GOVERNMENT EMPLOYEE IS FOUND TO BE RESPONSIBLE THE UNITED STATES WILL PAY FOR THE DAMAGE TO THE CAR. IF THE RESPONSIBILITY FOR THE ACCIDENT IS FOUND TO REST WITH ANOTHER PARTY THE UNITED STATES WILL NOT PAY FOR THE DAMAGES.

THIS STIPULATION IN THE CONTRACT IS NOT AUTHORIZED BY LAW AND APPROPRIATIONS NOT HAVING MADE PROVISION FOR THE PAYMENT OF CLAIMS FOR DAMAGES ARE NOT AVAILABLE THEREFOR. SEE SECTION 3678, REVISED STATUTES. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR PAYMENT OF THE INSTANT CLAIM FOR DAMAGES TO ONE OF THE MOTOR VEHICLES.

THERE APPEARS A FURTHER QUESTION IN THIS CASE. EXECUTIVE ORDER NO. 6660 OF MARCH 27, 1934, PROVIDED:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME BY THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933 (CH. 90, 48 STAT. 195), AND THE FOURTH DEFICIENCY ACT, FISCAL YEAR 1933, OF JUNE 16, 1933 (CH. 100, 48 STAT. 274, 275), THE HEADS OF ALL EMERGENCY AGENCIES ESTABLISHED UNDER THE AUTHORITY OF THE SAID NATIONAL INDUSTRIAL RECOVERY ACT AND OPERATING UNDER FUNDS ALLOCATED TO THEM BY THE PRESIDENT FROM THE APPROPRIATION FOR NATIONAL INDUSTRIAL RECOVERY CONTAINED IN THE SAID FOURTH DEFICIENCY ACT, TOGETHER WITH THE HEADS OF ALL EXECUTIVE DEPARTMENTS AND OTHER INDEPENDENT ESTABLISHMENTS INSOFAR AS THEY OPERATE UNDER FUNDS ALLOCATED TO THEM BY THE PRESIDENT FROM THE SAID APPROPRIATION, ARE HEREBY AUTHORIZED, OUT OF FUNDS SO ALLOCATED TO MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES AND RENT AT THE SEAT OF GOVERNMENT AND ELSEWHERE, FOR LAW BOOKS AND BOOKS OF REFERENCE, FOR PAPER, PRINTING AND BINDING, AND FOR THE PURCHASE, MAINTENANCE, AND OPERATION OF PASSENGER-CARRYING VEHICLES), AS THEY MAY DEEM NECESSARY TO EFFECTUATE THE PURPOSES FOR WHICH THE SAID FUNDS ARE ALLOCATED: PROVIDED, THAT THE PURCHASE, MAINTENANCE, AND OPERATION OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES SUBSEQUENT TO THE DATE OF THIS ORDER SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 3, 1933, (CH. 212, 47 STAT. 1489, 1513).

ALL SUCH EXPENDITURES MADE OR INCURRED PRIOR TO THE DATE OF THIS ORDER ARE HEREBY CONFIRMED AND RATIFIED.

SECTION 3 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1513, PROHIBITS THE USE OF APPROPRIATIONS AS FOLLOWS:

(A) TO PURCHASE ANY MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE (EXCLUSIVE OF BUSSES, AMBULANCES, AND STATION WAGONS), AT A COST, COMPLETELY EQUIPPED FOR OPERATION, AND INCLUDING THE VALUE OF ANY VEHICLE EXCHANGED, IN EXCESS OF $750, UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR IN THE APPROPRIATION.

(C) FOR THE MAINTENANCE, UPKEEP, AND REPAIR (EXCLUSIVE OF GARAGE RENT, PAY OF OPERATORS, TIRES, FUEL, AND LUBRICANTS) ON ANY ONE MOTOR PROPELLED PASSENGER-CARRYING VEHICLE, EXCEPT BUSSES AND AMBULANCES, IN EXCESS OF ONE -THIRD OF THE MARKET PRICE OF A NEW VEHICLE OF THE SAME MAKE AND CLASS AND IN NO CASE IN EXCESS OF $400.

IF THE EXECUTIVE ORDER, QUOTED ABOVE, MAY BE ACCEPTED AS AUTHORIZING THE PURCHASE, OPERATION AND MAINTENANCE OF PASSENGER-CARRYING VEHICLES NOTWITHSTANDING THE TERMS OF SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, IT DOES NOT AUTHORIZE EXPENDITURES IN EXCESS OF THE RESTRICTIONS IN THE ACT OF MARCH 3, 1933. SEE DECISION OF APRIL 28, 1934, A-51743, 13 COMP. GEN. 305.

FOR THE FRACTIONAL MONTH OF SEPTEMBER 9 TO 30, 1933, PAYMENTS PER VEHICLE WERE $53.51; FOR THE MONTH OF OCTOBER PAYMENTS WERE MADE AT THE RATE OF $72.18 PER VEHICLE, AND FOR NOVEMBER AT THE RATE OF $71.05. AT THIS RATE OF PAYMENT, THERE WILL HAVE BEEN EXPENDED BY THE END OF THE YEAR MORE THAN THE LIMITATION FIXED BY THE ACT OF MARCH 3, 1933, SUPRA, FOR THE PURCHASE OF NEW AUTOMOBILES--- BUT THE RENTED VEHICLES WILL NOT BELONG TO THE GOVERNMENT. THE LIMITATION OF $400 FOR MAINTENANCE, UPKEEP, AND REPAIR FIXED BY THE ACT OF MARCH 3, 1933, IS FOR APPLICATION TO THE VEHICLES INVOLVED IN THIS CONTRACT AND THERE MAY NOT BE EXPENDED MORE THAN THAT AMOUNT PER VEHICLE. WHEN THAT LIMIT HAS BEEN REACHED, CREDIT MUST BE DISALLOWED FOR ALL PAYMENTS THEREAFTER MADE.

PAYMENTS FOR RENTAL AT THE ABOVE RATES WOULD HAVE EXCEEDED THE LIMITATION OF $400 BY MAY 1 AND AS IT MAY BE PRESUMED THAT SUCH PAYMENTS HAVE BEEN MADE, NO PAYMENT IN ADDITION THERETO IS NOW AUTHORIZED.