CONSERVATION OF PERSONAL ESTATES OF AMERICAN CITIZENS DYING WITHIN CONSULATES

Reference is made to H. R. 6310, Seventy-second Congress, which was pending at the close of that Congress before the Committee on Foreign Relations of the Senate (print of February 24, calendar day February 25, 1932), which reads

That section 1709 of the Revised Statutes, as amended by the Act of March 3, 1911 (36 Stat. 1083), and section 304 of the Budget and Accounting Act, 1921 (42 Stat. 24), is hereby further amended by substituting for fourth, fifth, and sixth paragraphs new paragraphs fourth, fifth, sixth, and seventh, reading as follows:

"Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts incurred in such country, and, at the expiration of one year from his decease, the residue, if no legal claimant has appeared: Provided, That investments of bonds, shares of stocks, and notes of indebtedness, and also articles of a purely personal or sentimental value, such as jewelry, heirlooms, keepsakes, and so forth, shall not be sold unless necessary for the payments of debts incurred in such country.

"Fifth. To transmit the balance of the estate to the General Accounting Office to be holden in trust for the legal claimant; except that if at any time before such transmission the legal representatives of the deceased shall appear and demand his effects which are in the hands of such consul or vice consul, said consul or vice consul shall deliver them up, being paid their fees, costs, and expenses, and shall cease their proceedings.

"Sixth. The Comptroller General of the United States, or such member of the General Accounting Office as he may duly empower to act as his representative for the purpose, shall act as conservator of such parts of these estates as may be received by the General Accounting Office or are in its possession, and for their protection he may order such effects to be sold as may consist of bonds, shares of stock, notes of indebtedness, and also of jewelry or other articles which have heretofore or may hereafter be so received, and pay the expenses of such sale out of the proceeds, provided application for these effects shall not have been made by the legal claimant within six years after their receipt. The Comptroller General is authorized, in the name of the deceased, to receive any balances due to such estates, to draw therefor on banks, safe deposits, trust or loan companies, or other like institutions, to indorse all checks, bills of exchange, promissory notes, and other evidences of indebtedness due to such estates, and take such other steps as necessary for their collection, and to do and perform all and any other acts necessary for the conservation of such estates. The net proceeds of such sales, together with such cther moneys as may be collected by him, shall be deposited into the Treasury to a fund in trust for the legal claimant and reported to the Secretary of State.

"Seventh. If no claim to the effects the proceeds of which have been so deposited shall have been received from a legal claimant of the deceased within six years from the date of the receipt of the effects by the General Accounting Office, the funds so deposited, with any remaining unsold effects, less transmittal charges, shall be transmitted by that office to the proper officers of the State or Territory of the domicile of the deceased citizen, if known, or, if not, such funds shall be covered into the general fund of the Treasury as miscellaneous receipts on account of proceeds of deceased citizens, and any such remaining unsold effects shall be disposed of by the General Accounting Office in such manner as, in the judgment of the Comptroller General, is deemed appropriate, or they may be destroyed if considered no longer possessed of any value: Provided, That when the estate shall be valued in excess of $500, and no claim therefor has been presented to the General Accounting Office by a legal claimant within the period specified in this paragraph or the legal claimant is unknown, before disposition of the estate as provided herein, notice shall be given by publishing once a week for four consecutive weeks in a newspaper published in the county of the last known domicile of the deceased, the expense thereof to be deducted from the proceeds of such estate, and any lawful claim received as the result of such advertisement shall be adjusted and settled as provided for hercin."

The existing law on the subject is found in section 1709, Revised Statutes, as amended by acts of March 3, 1911 (36 Stat. 1083), and

June 10, 1921, section 304 (42 Stat. 24), United States Code, title 22, section 75, and provides

It shall be the duty of consuls and vice consuls, where the laws of the country permit

First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by him appointed to take care of his effects.

Second. To inventory the same with the assistance of two merchants of the United States, or, for want of them, of any others at their choice.

Third. To collect the debts due the deceased in the country where he died, and pay the debts due from his estate which he shall have there contracted.

Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts, and, at the expiration of one year from his decease, the residue.

Fifth. To transmit the balance of the estate to the Treasury of the United States, to be holden in trust for the legal claimant; except that if at any time before such transmission the legal representative of the deceased shall appear and demand his effects in their hands they shall deliver them up, being paid their fees, and shall cease their proceedings.

Sixth. The General Accounting Office shall act as conservator of such part of these estates as may be received at the Treasury, and for their protection the Secretary of the Treasury may order such effects to be sold as may consist of jewelry or other articles which have heretofore or may hereafter be received at the Treasury, and pay the expenses of such sale out of the proceeds, provided application for these effects shall not have been made by the legal claimant within two years after their receipt. The General Accounting Office is authorized to indorse all bills of exchange, promissory notes, and other evidences of indebtedness due to such estates, and to take such steps as may be necessary for their collection. The proceeds of such sales, together with such other moneys as may be collected by it, shall be deposited into the Treasury in trust for the legal claimant, and be reported to the Secretary of State.

The reasons why this legislation should be enacted were set forth by the Committee on Foreign Affairs of the House in reporting out said H. R. 6310 (H. Rep. 223), as follows:

The primary reason for the proposed legislation is that section 1709, Revised Statutes, as amended by the act of March 3, 1911, was enacted when the accounting officers of the United States were a part of the Treasury Department. The Budget and Accounting Act, 1921, separated this connection, but did not as to certain statutes expressly substitute the General Accounting Office or its head for the performance of duties theretofore expressly imposed by statute on the Treasury Department or the Secretary of the Treasury due to the then status of the accounting branch, and it now gives rise in instances to divided authority, with a need for a single authority only, and more or less doubt as to which official should act. See, in this connection, the recent case of the United States v. La Grange Grocery Co., decided March 29, 1929, district court, northern district of Georgia (31 Fed. Rep., 2d, 297), in which the court concluded that by the operation of the Budget and Accounting Act, 1921, certain jurisdiction passed from the Secretary of the Treasury, as former accounting bureau head, to the Comptroller General of the United States as head of the General Accounting Office, an independent accounting establishment created by that act, without an express statute to that effect.

While the effect of section 1709, Revised Statutes, as amended, in estates matters is, on the one hand, to require the General Accounting Office to act as conservator of the estates of said deceased citizens and for the purpose to authorize the Comptroller General to "endorse all bills of exchange, promissory notes, and other evidences of indebtedness due to such estates, and to take such steps as may be necessary for their collection," and to require said officer to deposit into the Treasury in trust for the legal claimants the net proceeds of sales by the Secretary of the Treasury of jewelry and other articles of said estates, together with such other moneys as the General Accounting Office may collect, and to report thereon to the Secretary of State; on the other hand, the effect of such existing legislation is still to require the consulates to transmit the balances of said estates to the Treasury Department and to authorize the Secretary of the Treasury

to order sold such received effects as are not applied for within 2 years thereafter and consist of jewelry or other articles, and to pay the expenses of sale out of the proceeds. The result is an anomalous and impracticable statutory procedure. In order to correct this procedure amendatory legislation is necessary.

Certain other amendments to the existing law of a helpful character appear in the bill, as hereinafter pointed out.

The existing inadequate law on the subject is found in section 1709, Revised Statutes, as amended by the acts of March 3, 1911 (36 Stat. 1083), and June 10, 1921, section 304 (42 Stat. 24). As will be seen, this proposed legislation makes no change therein in that part preceding the fourth section.

The effect of the changes which the bill makes in the fourth, fifth, and sixth sections of the law, and by the addition in the bill of a new seventh section, are as follows:

Fourth. Abolishes the second auction sale abroad of the effects of deceased American citizens dying within consulates as now required and confines the single sale it requires the consul or vice consul to make to such effects-additional to perishable ones as necessary for the payment of the debts of the deceased incurred in such country.

Fifth. Substitutes the General Accounting Office for the Treasury Department as the Federal activity to which the consul or vice consul shall transmit the unsold balance of the estate of the deceased, and entitles such transmitting official to his costs and expenses incurred in connection with the estate

Sixth. Enables the Comptroller General of the United States to empower some member of the General Accounting Office to represent him for the purpose of the conservation of such part of the estates as received by him, or as the General Accounting Office may have in its possession; substitutes the Comptroller General for the Secretary of the Treasury as the official who shall sell the effects which the General Accounting Office receives and pay the sale expenses; substitutes 6 years for 2 years as the time to intervene between the time the effects are received by said office and their sale; enlarges the specific provisions for the conservation to meet difficulties in collections of a nature encountered in the past; and confines the sale proceeds to be deposited in the Treasury in a trust fund for the legal claimant to net proceeds.

Seventh. Provides for the transmittal by the General Accounting Office of the trust funds in the Treasury, with any remaining unsold effects, to proper State or Territorial officers of domicile of deceased, or, if said domicile be unknown, for the covering of such funds into the Treasury as miscellaneous receipts, and for the final disposition of any such remaining unsold effects; and affords added protection for such of the unclaimed estates as exceed $500 in value in the form of advertisement before disposition thereof.

In these reasons this Office concurs. (See 1931 report, pp. 27, 28.)

OFFICIAL MILEAGE TABLES

The Chief of Finance, War Department, has the authority under the act of June 12, 1906 (34 Stat. 246), to establish the routes over which mileage shall be computed for travel directed to be performed by officers of the Army which, in practice, is also applicable to officers of the Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service. The clearly expressed intent of the Congress as set out in the law is that the distances shall be computed and that mileage shall be paid "over the shortest usually traveled route." While the shortest usually traveled route between two given places is a question of fact, and with existing facilities, is readily determinable, it would appear that during the past few years there has been a change of view in the War Department as to the meaning of the law without any change therein, in that routes involving all rail travel with the least number of changes at junction points, resulting in unnecessarily increased mileage payments to officers, are established, while the purpose of the ordered travel could and may have been accomplished by actually traveling over a shorter route, open, available, and practicable, and using modes of transportation regularly used by the general public.

The act of June 12, 1906 (34 Stat. 246), reads in part as follows:

* * * payment and settlement of mileage accounts of officers shall be made according to distances and deductions computed over routes established and by mileage tables prepared by the Paymaster-General of the Army [now the Chief of Finance] under the direction of the Secretary of War.

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Section 12 of the act of June 10, 1922 (42 Stat. 631), provides:

That officers of any of the services mentioned in the title of this Act, when traveling under competent orders without troops, shall receive a mileage allowance at the rate of 8 cents per mile, distance to be computed by the shortest usually traveled route

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A few of the changes of routing made by the War Department in the Official Mileage Tables, authorized under the cited 1906 statute, during recent years, which changes in effect result in the payment of increased emoluments or a gratuity in excess of the reasonable reimbursement contemplated by the law for the ordered travel, are here referred to.

The official tables show the distance from Fort D. A. Russell, Tex., to Topeka, Kans., as 1,226 miles, computed via San Antonio, Tex., whereas the shortest usually traveled route is 1,078 miles, computed via El Paso, Tex., unnecessarily increasing the expense to the Government by $11.84 for each trip between these points.

The official distance from Duluth, Minn., to Helena, Mont., is listed as 1,081 miles via the Great Northern. The actual distance over the Great Northern is 1,153 miles, not 1,081, with no land grant involved. The distance over the Northern Pacific is 1,138 miles, all land grant. Thus, on the basis of the official distance as now established, an officer traveling from Duluth to Helena is entitled to mileage for 1,081 miles at 8 cents per mile, or $86.48, instead of 1,138 miles at 5 cents per mile, or $56.90 and transportation at the expense of the Government.

The official distance from Baton Rouge, La., to Billings, Mont., is listed as 1,923 miles via Denver, Colo., with no land grant, whereas the distance via Kansas City, Mo., is 1,827 miles, with 13 miles land grant.

The Official Mileage Tables show the distances between Baltimore, Md., and Washington, D. C., and Philadelphia, Pa., and Washington, as 40 and 135 miles, respectively, computed via the Pennsylvania Railroad. The distances computed over the Baltimore & Ohio Railroad are 38 and 133 miles, respectively.

The railroad station for Frankford Arsenal is Bridesburg, Pa., and is located on the main line of the Pennsylvania Railroad 10 miles northeast of Philadelphia. For many years the established distance between Frankford Arsenal and New York City was 81 miles. By Finance Bulletin No. 25, May 2, 1932, it was provided:

Frankford Arsenal, Pa., all distances except for local travel between Philadelphia. Pa., and Trenton, N. J., via Philadelphia, Pa., 10 miles. Effective May 31, 1932.

While through trains do not stop at Bridesburg, there are frequent local trains both ways between Philadelphia and Trenton. When an officer is ordered to travel between Frankford Arsenal and any point in the general direction of New York City, mileage for 20 miles (10) miles each way) is unnecessarily paid for because of this provision of the Official Mileage Tables. Travel to Philadelphia is not essential to performance of travel in the direction of New York.

The official distance between Ashmore and Scott Field, Ill., was changed from 140 miles, with 80 miles land grant, to 167 miles, with no land grant. The shorter route was made up over the Cleveland, Cincinnati, Chicago & St. Louis Railroad to Mattoon, Ill., 19.4 miles; the Illinois Central to Centralia, 80 miles; and the Southern to Scott Field, 41 miles. The longer (now official) route was established westerly over the Cleveland, Cincinnati, Chicago & St. Louis Railroad to St. Louis, Mo., 143 miles, thence easterly over the Southern to Scott Field, 23.7 miles. The Chief of Finance advised, February 15, 1935, that this "change in the distance was made due to the fact that there were fewer changes of cars by way of St. Louis, Mo., than by way of Centralia and Mattoon, Ill."

It would seem proper to observe that with the development of hardsurfaced highways and the establishment of regularly scheduled bus service acting as common carriers, and in some cases supplanting rail service formerly used, the utilization of such bus routes is reasonably within the provisions of the law, the shortest usually traveled route being by such modes of transportation. For example, the official route from Washington, D. C., to Annapolis, Md., was formerly over the Washington, Baltimore, & Annapolis Railroad (electric), a distance of 36 miles. This rail service was discontinued August 20, 1935, and regularly scheduled bus service is now the usual mode of commoncarrier service between these places, the distance being 33 miles. Following the discontinuance of rail service and the establishing of bus service for travel by the general public the Official Mileage Tables were changed, establishing the official route by rail to Baltimore, thence by rail to Annapolis, and increasing the official distance from 33 miles to 63 miles. Additional mileage in the amount of $2.40 is now paid for all travel ordered between these points, irrespective of the mode of transportation used by the officer.

Another example is the case of Army officers on duty with the Civilian Conservation Corps with headquarters at Missoula, Mont., who were frequently ordered to travel by Government automobile to camps in Glacier National Park, having Belton, Mont., as a rail head. Regular scheduled bus service, carrying the United States mail, was also established between these points, involving a distance over the Park-to-Park Highway of 165 miles. Notwithstanding this regularly established bus service, and the fact that Government automobile is normally used for this travel, Official Mileage Tables issued by the War Department established as the official route the circuitous all-rail route east to Helena, thence north through Great Falls to Shelby, thence west to Belton, involving a distance of 444 miles. The cost over the shortest usually traveled route would have been 165 miles at 8 cents per mile, or $13.20, while the cost over the longer (official) route was 444 miles at 8 cents, or $35.32. It appears doubtful if any officer ordered to travel between these points ever used the designated official rail route. However, regardless of the mode of transportation actually used, computation of mileage was required over the route established by the War Department, resulting in increased and unnecessary payment of $44.24 for each round trip ordered to these camps and return to the officer's headquarters at Missoula.

The usually traveled route from Cascade, Idaho, to New Meadows, Idaho, is by highway, a distance of 42 miles. The official distance by rail, on which mileage is paid, is 248 miles.