B-36492 August 27, 1943

B-36492 August 27, 1943

Honorable Francis Case,

House of Representatives.

My dear Mr. Case:

I have your letter of August 17, 1943, and enclosures consisting of copy of your letter of July 29, 1943, to The Adjutant General, his reply of August 12, and yours of August 17, to him, relative to personal property losses said to have been suffered by owners or leasees of lands in Washington County, South Dakota, as the result of the acquisition of the lands by the Army for an serial gunnery range, your letter stating that while the owners of the lands were paid therefor, the owners of personal property have not been reimbursed for their losses resulting from such acquisitions.

Your letter states, with reference to the general character of the losses, that the property consisted of hay in stacks, fences on leased land subject to removal by the tennants under the terms of their leases, grain uncut, etc: that the notice given for clearing the properties was too short to permit the removal of the fences and that, with reference to the grain and hay, ranchers who could not cut all of their grain or who had hay in stacks or who could not cut their normal hay crop suffered heavy losses by reason of the fact that it was not practical to move the hay over the trails in that vast Indian country and to such places as they might find to relocate anywhere from 75 to 200 miles away.

You refer to certain testimony of Mr. McPherson, of the War Department, in the Hearings on the Military Establishment Appropriation Bill, 1944, and in view of such testimony and also because of the reference in The Adjutant General's letter of August 12 to the act of April 10, 1928, 45 Stat. 413, you request to be advised whether this office is prepared to receive claims of such nature under the provisions in the appropriation "Engineer Service, Army, 1944" or otherwise, and also as to the procedure that should be followed in filing such claims. It appears that by your letter of August 17 you have also made inquiry of The Adjutant General as to whether such claims may be paid under the appropriation referred to.

Said appropriation--"Engineer Service, Army, 1944"--as made by the Military Appropriation Act, 1944, 57 Stat. 359, Public Law 108, approved July 1, 1943, contains a provision as follows:

"* * *(f) the settlement of claims (not exceeding $500 each) for damages to or loss of private property resulting from the use and occupancy of real estate by the Army, that have accrued or may hereafter accrue, when payment thereof will be accepted by the owners of the property in full satisfaction of such damages, and each claim is substantiated in such manner as the Secretary of War may prescribe by regulations and is approved by the Secretary of War, or by such officer or officers as he may designate, whose action thereon shall be conclusive * * *."

The referred to testimony of Mr. McPherson is understood to be that on page 342 of the Hearings, where, in response to your question whether losses such as referred to by you might be settled under the above quoted provision of the bill, he replied, "I believe so. However, the question has been submitted to the Comptroller General for decision." The provision, as you appear to be aware, is a new provision and at the time of the Hearings had not become law. Therefore, Mr. McPherson's statement that the question had then been submitted to this office is not fully understood. Possibly he may have had in mind a submission, then pending, involving the question of whether the War Department appropriations for the acquisition of lands or interstate therein were available for compensating former occupants of Government-owned lands taken over by the War Department for loss of their crops or their improvements which they were unable to remove before the War Department took possession of the lands. It was held by decision of June 29, 1943, B-34337, addressed to the Secretary of War, that tenants occupying Government-owned lands under various types of agreements and under the circumstances there involved did not possess such an interest therein as to make appropriations of the War Department for acquisition of lands or interests therein available for reimbursement for loss of crops or improvements resulting from the War Department's occupation of the lands. A copy of said decision is enclosed herewith for your information. You will note that there is nothing therein which could be of any help in the consideration of the matter referred to in your letter.

As to your inquiry whether this office is prepared to receive claims of the character referred to under the above-quoted provision of the appropriation "Engineer Service, Army, 1944," it will be noted that the express language of the provision is that any claim for consideration thereunder shall be "substantiated in such manner as the Secretary of War may prescribe by regulations and is approved by the Secretary of War, or by such officer or officers as he may designate, whose action thereon shall be conclusive." Under such broad provision of law the question of what claims are for consideration thereunder, and, if they are of that class, the further question whether they are or are not for allowance, would appear to be for determination in the first instance by the War Department. Therefore, I would suggest that, if it is believed that the claims in question or other similar claims are for consideration under the provision referred to, or under the even broader provisions of the act of July 3, 1943, 57 Stat. 372, Public Law 112, such claims be submitted to the War Department for its consideration. If the Department has any doubt in the matter it may then submit the question to this office for decision with a full showing of all the facts and circumstances.

Whether the claims herein referred to should be reported to the Congress under the Equitable Claims Act of April 10, 1928, supra, does not appear to be a question for consideration at this time since the provisions of that act are for invoking only when it is definetly determined that a claim or demand against the United States "may not lawfully be adjusted by the use of an appropriation theretofore made," and then only when the claim or demand "contains such elements of legal liability or equity as to be deserving of the consideration of the Congress." In the absence of a full showing of the facts with reference to any given claim, I would hesitate to express any opinion as to whether any such claim should be reported under that act. I may say, however, that if there are numerous claims and they are not for consideration under the laws referred to in the proceding paragraph, it would seem preferable, if the Congress should feel relief should be granted, that consideration be given to the enactment of legislation for this class of claims rather than report them individually under the act of April 10, 1928.

I trust the foregoing may serve the purpose of your inquiry.

Sincerely yours,

Lindsay C. Warren Comptroller General of the United States