B-371, APRIL 16, 1940, 19 COMP. GEN. 863

B-371, APRIL 16, 1940, 19 COMP. GEN. 863

APPROPRIATIONS - PERIODS OF AVAILABILITY FOR OBLIGATIONS AND PAYMENTS THE GENERAL RULE THAT AN APPROPRIATION MADE AVAILABLE UNTIL A SPECIFIED DATE MAY NOT BE OBLIGATED AFTER SUCH DATE BUT MAY BE USED FOR PAYMENT OF PROPER OBLIGATIONS AT ANY TIME WITHIN 2 YEARS AFTER THE END OF THE FISCAL YEAR CURRENT ON THE SPECIFIED DATE, IS NOT APPLICABLE TO THE APPROPRIATION (ACT, APRIL 5, 1939) FOR "RETIREMENT OF COTTON POOL PARTICIPATION TRUST CERTIFICATES" WHICH FIXES BOTH A TIME LIMIT FOR FILING APPLICATION PAYMENT AND A SUBSEQUENT DATE FOR TERMINATION OF THE PERIOD OF ITS AVAILABILITY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE APRIL 16, 1940:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1940, AS FOLLOWS:

TITLE IV OF PUBLIC ACT NO. 430, 75TH CONGRESS, APPROVED FEBRUARY 16, 1938, AS AMENDED, AUTHORIZES THE REDEMPTION OF COTTON POOL PARTICIPATION TRUST CERTIFICATES, FORM C-5-I, AT THE RATE OF ONE DOLLAR PER BALE WHERE SUCH CERTIFICATES SHALL BE TENDERED TO THE MANAGER, COTTON POOL, BY THE PERSON OR PERSONS SHOWN BY THE RECORDS OF THE DEPARTMENT OF AGRICULTURE TO BE THE LAWFUL HOLDER AND OWNER THEREOF.

PUBLIC ACT NO. 27, 76TH CONGRESS, APPROVED APRIL 5, 1939, PROVIDES "THAT THE APPROPRIATION OF $1,800,000 MADE IN THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1939, UNDER THE ITEM ENTITLED "RETIREMENT OF COTTON POOL PARTICIPATION TRUST CERTIFICATES" SHALL REMAIN AVAILABLE UNTIL DECEMBER 31, 1939, AND THE AUTHORITY OF THE MANAGER, COTTON POOL, TO PURCHASE AND PAY FOR PARTICIPATION TRUST CERTIFICATES, FORM C-5-I, SHALL EXTEND TO AND INCLUDE THE 30TH DAY OF SEPTEMBER 1939, BUT AFTER THE EXPIRATION OF SAID LIMIT THE PURCHASE MAY BE CONSUMMATED OF ANY SUCH CERTIFICATES TENDERED TO THE MANAGER, COTTON POOL, ON OR BEFORE SEPTEMBER 30, 1939, BUT WHERE FOR ANY REASON THE PURCHASE PRICE SHALL NOT HAVE BEEN PAID BY THE MANAGER, COTTON POOL.'

THERE ARE A NUMBER OF PARTICIPATION TRUST CERTIFICATES, FORM C-5-I, WHICH WERE TENDERED FOR PAYMENT PRIOR TO SEPTEMBER 30, 1939, AND WHICH HAVE NOT BEEN PAID. YOUR ATTENTION IS DIRECTED TO THE OPINION SIGNED BY THE COMPTROLLER GENERAL, DATED APRIL 17, 1939, B-371. PAYMENT WAS NOT MADE ON THESE CASES PRIOR TO DECEMBER 31, 1939, BECAUSE OF THE ADMINISTRATIVE DIFFICULTY OF CLEARING THE RIGHTS OF THOSE TENDERING THE CERTIFICATES IN ORDER TO DETERMINE CONCLUSIVELY THAT THE TENDER WAS MADE BY THE LAWFUL HOLDER AND OWNER OF THE CERTIFICATE. THE QUESTION NOW ARISES AS TO WHETHER THE APPROPRIATION OF $1,800,000 IS STILL AVAILABLE TO MAKE PAYMENTS IN INSTANCES WHERE A TENDER WAS MADE BY A PROPER PARTY PRIOR TO SEPTEMBER 30, 1939, AND WHERE THE AUDIT OF THE PAYMENT WAS NOT COMPLETED FOR CERTIFICATION PRIOR TO DECEMBER 31, 1939. IT IS THE OPINION OF THIS OFFICE THAT AN OBLIGATION WAS CREATED ON THE PART OF THE GOVERNMENT AT THE TIME PROPER TENDER OF THE CERTIFICATE WAS MADE, AND THAT THE FUND APPROPRIATED BY PUBLIC ACT NO. 27, 76TH CONGRESS, APPROVED APRIL 5, 1939, WILL REMAIN AVAILABLE FOR THE MAKING OF SUCH PAYMENTS UNTIL DECEMBER 31, 1941, IN ACCORDANCE WITH REVISED STATUTES, SECTION 3691. YOUR CONCURRENCE IN THIS VIEW IS REQUESTED.

WHEN AN APPROPRIATION BY ITS TERMS IS MADE AVAILABLE UNTIL A SPECIFIED DATE, THE GENERAL RULE IS THAT THE PERIOD OF AVAILABILITY RELATES TO THE AUTHORITY TO OBLIGATE THE APPROPRIATION, AFTER WHICH PAYMENT MAY BE MADE AT ANY TIME WITHIN TWO YEARS AFTER THE END OF THE FISCAL YEAR CURRENT AT THE TIME OF SUCH SPECIFIED DATE. SUCH RULE, HOWEVER, IS NOT FOR APPLICATION IN A CASE SUCH AS HERE INVOLVED. THE APPROPRIATION WAS NOT MADE AS ARE ORDINARY APPROPRIATIONS FOR THE INCURRING OF OBLIGATIONS BUT FOR THE PAYMENT OF OBLIGATIONS SUPPOSEDLY EXISTING OR AT LEAST RECOGNIZED BY THE LAW AUTHORIZING THE PAYMENTS. IN SUCH LAW THE CONGRESS FIXED A TIME LIMIT FOR FILING APPLICATIONS FOR PAYMENT AND A SUBSEQUENT DATE FOR TERMINATION OF THE PERIOD OF AVAILABILITY OF THE APPROPRIATION. IN SUCH CIRCUMSTANCES, THE LATER DATE, DECEMBER 31, 1939, MUST BE CONSTRUED NOT AS THE DATE TO WHICH OBLIGATIONS COULD BE INCURRED BUT THE TERMINATION OF THE PERIOD DURING WHICH THE PAYMENTS COULD BE MADE ON APPLICATIONS FILED ON OR BEFORE SEPTEMBER 30, 1939. ANY OTHER CONSTRUCTION WOULD FAIL TO GIVE EFFECT TO THE TWO DATES SPECIFICALLY PROVIDED FOR IN THE LAW.

ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION SUBMITTED, I HAVE TO ADVISE THAT THE FUNDS IN QUESTION ARE NOT AVAILABLE TO MAKE ANY OF THE PAYMENTS INVOLVED SUBSEQUENT TO DECEMBER 31, 1939.