B-27023, AUG 24, 1942

B-27023, AUG 24, 1942

PRECIS-UNAVAILABLE

COLONEL J. P. TILLMAN, F.D., U.S. ARMY, WAR DEPARTMENT:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 20, 1942, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPTAIN WALTER OSBORNE, AIR CORPS, IN THE AMOUNT OF $168.05, REPRESENTING THE COMMERCIAL COST OF TRANSPORTATION FOR THE OFFICER'S DEPENDENTS FROM TAMPA, FLORIDA, TO WINTHROP, MASSACHUSETTS, INCIDENT TO HIS PERMANENT CHANGE OF STATION FROM MACDILL FIELD, TAMPA, FLORIDA, TO AN UNDISCLOSED DESTINATION OVERSEAS, PURSUANT TO PARAGRAPH 1, SPECIAL ORDERS NO. 42, HEADQUARTERS ARMY AIR BASE MACDILL FIELD, TAMPA, FLORIDA, DATED FEBRUARY 11, 1942.

IT IS DISCLOSED THAT THE OFFICER'S WIFE AND DEPENDENTS TRAVELED FROM TAMPA, FLORIDA, TO WINTHROP, MASSACHUSETTS, BETWEEN APRIL 28 AND MAY 5, 1942, AND THE VOUCHER CLAIMING REIMBURSEMENT FOR SUCH TRAVEL HAS BEEN SIGNED IN THE NAME OF THE OFFICER BY MRS. VIRGINIA I. OSBORNE (THE OFFICER'S WIFE), ATTORNEY IN FACT. THERE IS ATTACHED TO THE VOUCHER AN AUTHENTICATED COPY OF A POWER OF ATTORNEY EXECUTED BEFORE A NOTARY PUBLIC AND SIGNED AND SEALED IN THE PRESENCE OF THREE WITNESSES. THE BODY OF THE INSTRUMENT IS AS FOLLOWS:

"KNOW ALL MEN BY THESE PRESENTS:

"THAT I, WALTER OSBORNE, CAPTAIN, ARMY OF THE UNITED STATES NOW STATIONED AT MACDILL FIELD, TAMPA, FLORIDA, BY THESE PRESENTS DO HEREBY MAKE, CONSTITUTE, AND APPOINT MY WIFE, MRS. VIRGINIA I. OSBORNE, NOW OF TAMPA, FLORIDA, MY TRUE AND LAWFUL ATTORNEY IN FACT FOR TWENTY-FOUR MONTHS, FROM THIS DAY, FEBRUARY 11, 1942. I GRANT AND GIVE UNTO SAID ATTORNEY IN FACT FULL AUTHORITY AND POWER TO DO AND PERFORM ANY AND ALL ACTS AS FULLY TO ALL INTENTS AND PURPOSES AS I MIGHT OR COULD DO IF PERSONALLY PRESENT, WITH FULL POWER OF SUBSTITUTION."

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

"THAT HEREAFTER WHEN ANY COMMISSIONED OFFICER, NONCOMMISSIONED OFFICER OF THE GRADE OF COLOR SERGEANT AND ABOVE, INCLUDING ANY NONCOMMISSIONED OFFICER OF THE MARINE CORPS OF CORRESPONDING GRADE, WARRANT OFFICER, CHIEF PETTY OFFICER, OR PETTY OFFICER (FIRST CLASS), HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: ***"

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES THAT IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY THE ABOVE SECTION "*** THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED."

IT HAS BEEN STATED THAT THE RIGHTS GRANTED BY THESE STATUTES ARE TO THE OFFICERS OR MEN DESCRIBED THEREIN. THEY DO NOT GIVE A RIGHT TO DEPENDENTS OF MILITARY PERSONNEL TO CLAIM ANYTHING IN THEIR OWN RIGHT. FOR EXAMPLE, IN A DECISION OF JULY 9, 1942, B-25353, 32 COMP.GEN. ***, TO THE SECRETARY OF WAR IT WAS STATED:

"THESE STATUTES SECTION 12 OF THE ACT OF JUNE 16, 1942, PUBLIC LAW NO. 607 AND SECTIONS 4(A), (B), AND (C) OF THE ACT OF JUNE 5, 1942, PUBLIC LAW NO. 580 AS WELL AS THE PRECEDING STATUTES GAVE ONLY TO OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN WITHIN THEIR TERMS A RIGHT TO TRANSPORTATION OF THEIR DEPENDENTS AS DEFINED BY THE STATUTE. IT IS THEREFORE, AN EMOLUMENT OF THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN. TRANSPORTATION IS AUTHORIZED ONLY FOR THE DEPENDENTS AS DEFINED BY THE STATUTES. IT IS THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN WHO HAS THE RIGHT; THE DEPENDENTS UNDER THESE LAWS CAN CLAIM NO BENEFITS ACCRUING TO THEM IN THEIR INDIVIDUAL CAPACITY. ***"

HOWEVER, WHERE MILITARY PERSONNEL FOR WHOM THE LAW AUTHORIZES TRANSPORTATION OF DEPENDENTS OR REIMBURSEMENT THEREFOR ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION FROM A STATION IN THE UNITED STATES TO AN UNDISCLOSED DESTINATION OVERSEAS, IT HAS BEEN HELD THAT VOUCHERS STATED IN FAVOR OF THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN, AS THE CASE MAY BE, REPRESENTING PAYMENTS WITHIN THE LIMITS OF THE LAW, MAY BE SIGNED BY NEAR RELATIVES OF THE OFFICER OR MAN INVOLVED, ON HIS BEHALF UNDER A PROPER POWER OF ATTORNEY. B-23265, FEBRUARY 21, 1942. BUT EVEN WHERE A VOUCHER IS SIGNED BY AN ATTORNEY IN FACT UNDER A PROPER POWER OF ATTORNEY, PAYMENT IS AUTHORIZED ONLY TO THE PERSON HAVING THE RIGHT UNDER THE STATUTE, THAT IS TO THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN. IT IS PAYMENT TO SUCH A PERSON THAT DISCHARGES THE OBLIGATION PLACED UPON THE GOVERNMENT BY THE STATUTE. IF THE CHECK IN PAYMENT OF THE AMOUNT AUTHORIZED BY STATUTE IS TO BE NEGOTIATED IN THE NAME OF THE OFFICER OR MAN BY AN ATTORNEY IN FACT-- AND IT APPEARS THAT IS THE PURPOSE OF OBTAINING PAYMENT UNDER THE CIRCUMSTANCES OF THE CASE-- THE AUTHORITY UNDER WHICH THE AGENT ACTS MUST BE LEGALLY SUFFICIENT TO SECURE TO THE GOVERNMENT A GOOD ACQUITTANCE. IT IS NOT THE DESIRE OF THIS OFFICE TO RAISE TECHNICAL OBJECTIONS TO POWERS OF ATTORNEY EXECUTED BY OFFICERS AND MEN PRIOR TO THE ISSUANCE OF INSTRUCTIONS IN CONNECTION THEREWITH BY THE WAR DEPARTMENT, SEE WAR DEPARTMENT CIRCULAR NO. 149, MAY 18, 1942, BUT WHERE IT APPEARS THAT THE AUTHORITY UNDER WHICH THE AGENT ACTS IS SUCH THAT THE RECEIPT OF THE PROCEEDS OF THE CHECK ISSUED TO THE PRINCIPAL IN SATISFACTION OF HIS CLAIM UNDER THE STATUTE WOULD NOT BAR THE PRINCIPAL'S RECOVERY UPON ASSERTING HIS CLAIM AT A LATER TIME, IT MUST BE HELD THAT THE POWER OF ATTORNEY IS NOT SUFFICIENT TO PROTECT THE INTEREST OF THE GOVERNMENT.

A POWER OF ATTORNEY HAS BEEN DEFINED AS A WRITTEN AUTHORIZATION TO AN AGENT TO PERFORM SPECIFIED ACTS IN BEHALF OF HIS PRINCIPAL, 21 R.C.L. 876 AND IN MULLINS V. COMMONWEALTH, 179, KENTUCKY 71, 200 S.W. 9, THE COURT SAID "IN BRIEF, A POWER OF ATTORNEY IS NOTHING MORE THAN AN INSTRUMENT IN WRITING APPOINTING AN ATTORNEY IN FACT FOR AN AVOWED PURPOSE, AND SETTING FORTH HIS POWERS AND DUTIES." THE AUTHORIZATION NEED NOT BE IN ANY PARTICULAR FORM BUT THE WRITING MUST DISCLOSE THE IDENTITY OF THE AGENT AND SHOULD SHOW WHAT HE IS AUTHORIZED TO DO. 2 C.J.S. 1057. IT IS AN ACCEPTED RULE THAT IT IS INCUMBENT UPON THE PERSON DEALING WITH AN ATTORNEY IN FACT TO DETERMINE THAT THE ACT TO BE PERFORMED COMES WITHIN THE POWER UNDER WHICH THE ATTORNEY IN FACT IS ACTING, THIEL DETECTIVE SERVICE COMPANY V. MCCLURE, 143 FEDERAL 952, 4 L.R.A. (N.S.) 843, AND SUCH POWER MUST BE REASONABLY CERTAIN OR IT WILL BE INOPERATIVE. R.C.S. 878; DAVIS V. DUNNET, 239 N.Y. 338, 146 N.E. 620; B-23269, SUPRA. AS TO THE AUTHORITY OF AN AGENT TO ENDORSE NEGOTIABLE PAPER IT IS STATED IN 2 C.J.S. 1302 THAT--

"IT HAS BEEN SAID WITH REFERENCE TO IMPLIED AUTHORITY OF THIS CHARACTER THAT ITS SCOPE IS MORE LIMITED IN THE FIELD OF NEGOTIABLE INSTRUMENTS THAN IN OTHER INSTANCES. POWER TO EXECUTE OR INDORSE NEGOTIABLE INSTRUMENTS WILL NOT BE LIGHTLY INFERRED BUT MUST ORDINARILY REST ON AN EXPRESS GRANT, IN THE ABSENCE OF CIRCUMSTANCES CLEARLY AND COGENTLY ESTABLISHING IT. NO IMPLICATION OF SUCH POWER WILL BE MADE FROM THE MERE FACT THAT THE RELATION OF PRINCIPAL AND AGENT EXITS; HOWEVER BROAD AND GENERAL THE AGENCY CONFERRED, IT DOES NOT BY IMPLICATION EMBRACE THE AUTHORITY IN QUESTION UNLESS THE EXERCISE OF SUCH AUTHORITY IS SO ESSENTIAL TO THE ACCOMPLISHMENT OF THE AGENCY AS TO COMPEL THE BELIEF THAT IT WAS INTENDED TO BE GRANTED, BY REASON OF THE FACT THAT THE OBJECT AND PURPOSE OF THE AGENCY WOULD OTHERWISE BE DEFEATED. ***"

SEE ALSO COLEMAN V. SEATTLE NATIONAL BANK, 109 WASH. 80, 186 PAC. 275, 12 A.L.R. 108 AND ANNOTATION COMMENCING ON PAGE 111.

IN THE PRESENT CASE THE SO-CALLED POWER OF ATTORNEY IS WRITTEN IN BROAD AND GENERAL LANGUAGE. IT DESIGNATES THE OFFICER'S WIFE HIS TRUE AND LAWFUL ATTORNEY IN FACT FOR A DESIGNATED PERIOD BUT STATES NO SPECIFIC ACTS THAT SHE IS AUTHORIZED TO DO IN HIS BEHALF. THE SECOND AND LAST SENTENCE OF THE BODY OF THE INSTRUMENT MERELY STATES THAT HE GRANTS TO HER "FULL AUTHORITY AND POWER TO DO AND PERFORM ANY AND ALL ACTS AS FULLY TO ALL INTENTS AND PURPOSES AS I MIGHT OR COULD DO IF PERSONALLY PRESENT." IN OTHER WORDS, THE AGENT IS AUTHORIZED TO ACT AS FULLY TO ALL INTENTS AND PURPOSES AS THE OFFICER MIGHT IF HE WERE PRESENT, THAT IS, HER ACTS WOULD BIND THE OFFICER, BUT THE INSTRUMENT MAKES NO STATEMENT AS TO WHAT ACTS SHE IS AUTHORIZED TO PERFORM. ACCORDINGLY, IT CANNOT BE DETERMINED WITH ANY DEGREE OF CERTAINTY THAT THE OFFICER'S WIFE IS AUTHORIZED TO SIGN THE VOUCHER IN HIS BEHALF AND THEREFORE, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT THEREON. THE VOUCHER AND RELATED PAPERS WILL BE RETAINED IN THIS OFFICE.