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Comptroller General McCarl to the Attorney General, May 8, 1923:
I have your letter of May 1, 1923, requesting decision whether the appropriation “Detection and prosecution of crimes, 1923” is available to pay rent for five rooms in the Federal-American National Bank Building, Washington, D. C.
You state that the rooms in question are for field offices of the Bureau of Investigation, which is a bureau of your department. You state also that the Public Buildings Commission has authorized the renting of these rooms.
The appropriation involved is made in the act of June 1, 1922, 42 Stat., 613, in the following terms:
Detection and prosecution of crimes: For the detection and prosecution of crimes against the United States; the investigation of the official acts, records, and accounts of marshals, attorneys, and clerks of the United States Courts and the Territorial courts, and United ates commissioners, for which purpose all the official papers, records, and dockets of said officers, without exception, shall be examined by the agents of the Attorney General at any time; for the protection of the person of the President of the United States; for such other investigations regarding official matters under the control of the Department of Justice or the Department of State as may be directed by the Attorney General; hire, maintenance, upkeer, and operation of motor-propelled or horsedrawn passenger-carrying vehicles when necessary, including not to exceed $3,750 for purchase of one automobile, and including not to exceed $10,000 for taxicab hire to be used exclusively for the purposes set forth in this paragraph and to be expended under the direction of the Attorney General, whose certificate as to the expenditure thereof shall be conclusive on the accounting officers of the Treasury Department; per diem in lieu of subsistence when allowed pursuant to section 13 of the Sundry Civil Appropriation Act approved August 1, 1914, including not to exceed $250,000 for necessary employees at the seat of government, and including a Director of the Bureau of Investigation at not exceeding $7,500 per annum, to be expended under the direction of the Attorney General, $2,250,000: Provided, That this appropriation shall be available for advances to be made by the disbursing clerk of the Department of Justice when authorized and approved by the Attorney General, the provisions of section 3648 of the Revised Statutes to the contrary notwithstanding: Provided further, That for the purpose of executing the duties for which provision is made by this appropriation, the Attorney General is authorized to appoint officials who shall be vested with the authority necessary for the execution of such duties.
The provision in this appropriation for necessary employees at the seat of government, including a director of the Bureau of Investigation, necessarily contemplates the establishment or maintenance of offices in the District of Columbia, but the appropriation makes no provision for the rental of such offices.
The act of March 3, 1877, 19 Stat., 370, provides:
Hereafter no contract shall be made for the rent of any building, or part of any building, to be used for the purposes of the Government in the District of Columbia, until an appropriation therefor shall have been made in terms by Congress, and that this clause be regarded as notice to all contractors or lessors of any such building or any part of building.
This provision precludes the use of the appropriation hereinbefore mentioned to pay rent for offices in the District of Columbia, 15 Opin. Atty. Gen., 274; 17 id., 87.
Section 10 of the act of March 1, 1919, 40 Stat., 1269, created a public buildings commission and invested said commission with the "absolute control of and the allotment of all space in the several public buildings owned or buildings leased by the United States in the District of Columbia," with certain exceptions not material to the case here presented, and provided that said commission “shall from time to time assign and allot for the use of the several activities of the Government all such space."
There is nothing in the law creating and defining the powers and duties of the Public Buildings Commission that can be construed to authorize the renting of buildings or parts of buildings in the District of Columbia for which no appropriation has been made in terms by Congress. Therefore, it must be presumed that any authority the commission may have given for the renting of the rooms now in question was intended to be conditioned upon the existence of an available appropriation made in terms for the rental of buildings in the District of Columbia.
The provision of the act of March 3, 1877, hereinbefore quoted, is not, as suggested in your submission, limited in its application to the renting of buildings or parts of buildings for occupancy by regular offices of the executive departments and independent establishments. See 4 Comp. Dec., 139; 9 id., 551; 10 id., 178; 11 id., 678; and the opinions of the Attorney General hereinbefore cited.
The question presented is answered in the negative.
TRAVELING EXPENSES—HIRE OF AUTOMOBILE FROM WIFE.
An employee of the Indian Service is not entitled to reimbursement for pay.
ments made to his wife for the hire of an automobile used on official business in the absence of a showing that the wife had a separate estate, that the automobile was purchased and maintained from the wife's own separate funds, and that the payments would in no way inure to the per
sonal profit of the employee. Decision by Comptroller General McCarl, May 8, 1923:
Horace G. Wilson, supervisor and special disbursing agent, Indian Service, by letter dated January 9, 1923, requested a review of 80 much of settlement per certificate “I”-19826, dated June 5, 1922, as disallowed in his accounts for the fourth quarter, 1921, credit for items as follows:
Vou. 2. H. G. Wilson, traveling expenses. Subvoucher 7, I. M. Wilson,
auto hire, May 18, 19, 20.-
Subvoucher 11, I. M. Wilson, auto hire, May 24 30.
auto hire, June 11 to 22.
$330.00 It appearing that the payee of the subvouchers, I. M. Wilson, is the wife of H. G. Wilson, disallowance of credit was made on the ground that financial transactions between husband and wife, in which the husband pays public money to the wife for supplies furnished or services rendered by her to him for the benefit of the Gov. ernment, are not sanctioned by the accounting officers, for the reason that it is against public policy to permit an officer's payments of public money to be so made as possibly to be turned to personal profit.
In his request for review claimant states:
I was directed by the Indian Office to make a survey of the reservations in northwestern Washington and to consider the possibility of combining some of the reservations under one jurisdiction. In order to do this it was necessary for me to visit all of the several reservations in western Washington, and it was necessary to use an automobile for this purpose.
The automobile used was not my own property, as indicated in the disallowed item by the General Accounting Office. Ordinarily it costs at least $25 a day for automobile hire in western Washington, and in addition the expenses of the driver. I hired this automobile in question for $15 a day and drove the car, thus saving at least $10 a day and the expenses of a driver. There was no other way that I could have obtained the information wanted by the Indian Office, as I had to get distances, the population of the reservations, and various other information necessary to give the Indian Office information as to whether or not the agencies could be consolidated, and I was obliged to hire an automobile to make the trips to the different reservations.
I was also directed by the Indian Office to make an investigation of the salmon fishing on the Quipaielt River and Quinaielt Lake, and this automobile was used partly for that purpose. I was also directed to make an investigation of a school matter on one of the reservations in western Washington. I made a trip for that purpose, and the combined trips and automobile hire amounted to $330.
I feel that the expense was necessary and justified, and the automobile hired for less than what another machine might have been hired for, and that I am entitled to this expense of $330.
The claimant does not deny that the payee of the subvouchers in question, I. M. Wilson, is his wife. It is not shown that the wife had a separate estate or that the automobile used for the official travel was purchased from or maintained by her own separate funds, in view of which the payments to the wife for the hire in question are held to be equivalent to payments to the claimant himself, the husband. There appears no authority of law or regulation for reimbursing employees of the Indian Service for the hire of their own conveyances for official purposes. But such employees are entitled to be reimbursed for the actual cost of gasoline and oil used in their own automobiles for official travel. 23 Comp. Dec., 540. Circular No. 1296 of the Office of Indian Affairs, dated August 24, 1917, states in part: Hereafter
gasoline and oil may be issued for the operation of automobiles belonging to employees of the Indian Service when used by them in the discharge of their official duties, estimated as nearly as practicable on a mileage basis, determined by the quantities thereof actually consumed under the conditions which exist on each reservation, as demonstrated by actual experience.
Upon review of the matter the disallowances in question are affirmed, and also the settlement is revised so as to disallow credit for payment to I. M. Wilson "for hire of automobile 3 days at $15 (June 2-3) used on trips to Chelhalis and Skokomish Reservations, account investigation school matters, traveled 325 miles, $45,” voucher 5, subvoucher No. 1, dated June 3, 1921.
STORAGE OF SURPLUS WAR SUPPLIES.
The renting of ground on which to sell surplus Government property or on
which to store such property temporarily for the express purpose of sale
is an expense of the sale and payable from the proceeds of the sale. The renting of ground on which to store Government property indefinitely or
for several months for the purpose of preserving or protecting said property or preparing it for sale at some future time can not be regarred as an expense of the sale and is not a proper charge against the proceeds thereof, por can the rent in such case be paid from the proceeds of the sale of other property held in special deposit account when such other property
was never stored upon the premises for which rent is to be paid. Comptroller General McCarl to S. B. McIntyre, disbursing officer, War
Department, May 8, 1923:
I have your letter dated April 16, 1923, forwarded through the office of the Chief of Finance, transmitting with request for decision whether payment thereon is authorized, a voucher in favor of Todd Protectograph Co. for $1,500 as rent for the months of January, February, and March, 1923, on premises occupied by the Government for storage of Government-owned property in course of being salvaged.
The voucher is stated for payment from proceeds of sale in disbursing officer's special deposit account and the only question presented is as to whether such fund is available for the payment of rent of land on which property is stored previously to its sale.
If it should become necessary to rent ground on which to sell Government property or on which to store said property temporarily for the express purpose of sale, the rent under such circumstances would be an expense of sale the same as would auctioneer's fees and would be a proper charge against the proceeds of sale. But when premises are leased for the purpose of storing salvaged property indefinitely or for several months for the purpose of preserving or protecting said property, or even for the purpose of converting or otherwise preparing said property with a view to a more advantageous sale thereof at some future time, the rent in such a case can not be regarded as an expense of sale and is not a proper charge against the proceeds of sale; and in no case could the rent of the premises leased for the storage of property, no part of which had been sold, be paid from the proceeds of sale of other property which had not been stored on said premises.
It is understood that the case here presented comes within the latter clause. Accordingly, the question submitted is answered in the negative. It may also be said such rental of land would not be authorized if there be no proper appropriation chargeable therewith. FINES, PENALTIES, FORFEITURES, AND LIABILITIES OF POST
OFFICE DEPARTMENT EMPLOYEES.
The remission of fines, penalties, forfeitures, and liabilities of employees of
the Post Office Department, authorized by section 409, Revised Statutes, extends only to such liabilities as are imposed by administrative action, and does not extend to balances due to the United States through account
ability for public moneys. Comptroller General McCarl to the Postmaster General, May 8, 1923:
I have your letter of April 6, 1923, with reference to the interpretation placed by this office by decision of February 2, 1923, upon section 409, Revised Statutes, and requesting reconsideration thereof because of the long-accepted interpretation of the statute and the practices based thereon.
Section 409 relates to mitigation or remission of postal fine, penalty, or forfeiture; removal of disability, or compromise, release, or discharge of liability for money by way of damage or otherwise; functions for performance by the Auditor for the Post Office Department under direction of the Postmaster General.
The interpretation of February 2, 1923, restricted application of the statute to liabilities imposed by administrative authority as distinguished from balances due the United States through accountability for public moneys. The long-continued practice had been to apply the statute to both classes of liabilities, resulting in the remission of liabilities arising through most every conceivable cause, if such action was deemed just and expedient.
Clearly the statute does not warrant such broad construction except by virtue of the principle of stare decisis, depending almost entirely upon practice as distinguished from precedents. No authoritative decisions appear to have been rendered on the scope of the statute and practice alone would not justify application of this little-regarded principle except under the most liberal rules of construction, which do not exist in this case.
Modification of the basic authority or the enactment of laws inconsistent with the existing practice would bar application of the principle. On this point reference may be made to directions given by me January 30, 1923, as to the auditing procedure in connection with a case involving delinquent postmasters' accounts, wherein it was said:
By section 236, Revised Statutes, prior to recent amendment, all claims, demands, and accounts by or against the United States were to be settled and adjusted in the Department of the Treasury. This required the determination of balances, after proper debits and credits, due by or to the United States, in the Treasury Department, when possible of arithmetical calculation. Section 292, Revised Statutes, required the sixth auditor to superintend the collection of all debts due the Post Office Department and all penalties and forfeitures imposed for any violation of the postal laws, and to take such measures as might be authorized by law to enforce the payment of such debts and the recovery of such penalties and forfeitures. Section 295 authorized the auditor to compromise judgments under certain conditions and section 296