MAY 8, 1923, 2 COMP. GEN. 727

MAY 8, 1923, 2 COMP. GEN. 727

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 ACCOUNTABILITY 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. 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 REQUIRED HIM TO FORWARD TO THE DEPARTMENT OF JUSTICE CERTIFIED COPIES OF PAPERS TO SUSTAIN ACTIONS ON ACCOUNT OF DELINQUENCIES IN THE POST OFFICE DEPARTMENT. SECTION 4 OF THE ACT OF JULY 31, 1894, 28 STAT., 206, REQUIRED THE AUDITORS, UNDER THE DIRECTION OF THE COMPTROLLER OF THE TREASURY, TO SUPERINTEND THE RECOVERY OF ALL DEBTS FINALLY CERTIFIED BY THEM, RESPECTIVELY, TO BE DUE THE UNITED STATES.

PRIOR TO JUNE 10, 1921, THE AUDITORS AND THE COMPTROLLER BEING OFFICERS OF THE TREASURY DEPARTMENT, IT WAS THE FUNCTION OF THAT DEPARTMENT THROUGH ITS SAID ACCOUNTING OFFICERS, TO SETTLE ALL CLAIMS, DEMANDS, AND ACCOUNTS OF OR AGAINST THE UNITED STATES AND TO COLLECT ALL DEBTS CERTIFIED BY THEM TO BE DUE THE UNITED STATES. SECTION 304 OF THE BUDGET AND ACCOUNTING ACT, APPROVED JUNE 10, 1921, 42 STAT., 24, VESTS IN AND IMPOSES UPON THE GENERAL ACCOUNTING OFFICE ALL POWERS AND DUTIES THEN CONFERRED OR IMPOSED BY LAW UPON THE FORMER AUDITOR FOR THE POST OFFICE DEPARTMENT, EXCEPT THAT THE SECTION CREATES A COMPTROLLER AND A BUREAU OF ACCOUNTS OF THE POST OFFICE DEPARTMENT AND PROVIDES THAT THE ADMINISTRATIVE EXAMINATION OF ACCOUNTS AND VOUCHERS OF THE POSTAL SERVICE THERETOFORE IMPOSED BY LAW ON THE AUDITOR FOR THE POST OFFICE DEPARTMENT SHALL BE PERFORMED IN THE SAID BUREAU OF ACCOUNTS, AND THAT THE SAID COMPTROLLER SHALL PERFORM THE ADMINISTRATIVE DUTIES THEN PERFORMED BY THE AUDITOR FOR THE POST OFFICE DEPARTMENT.

IN ADDITION TO SEPARATING THE ADMINISTRATIVE DUTIES PERFORMED BY THE FORMER AUDITOR FROM THOSE OF AN ACCOUNTING OFFICER AND IMPOSING SAME UPON THE COMPTROLLER AND THE GENERAL ACCOUNTING OFFICE, RESPECTIVELY, THE BUDGET AND ACCOUNTING ACT, IN SECTION 305, AMENDED SECTION 236, REVISED STATUTES, AS FOLLOWS:

"SEC. 236. ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

THIS AMENDMENT ACCOMPLISHED THE TRANSITION OF SUCH MATTERS FROM THE TREASURY DEPARTMENT TO THE GENERAL ACCOUNTING OFFICE AND ASSIMILATED THE JURISDICTION OVER THE AUDIT OF POSTAL CLAIMS, DEMANDS, AND ACCOUNTS TO THAT OVER THE OTHER DEPARTMENTS AND OFFICES, LEAVING IN THE POST OFFICE DEPARTMENT THOSE ADMINISTRATIVE DUTIES PROPERLY BELONGING THERETO. THE AUTHORITY OF THE POSTMASTER GENERAL OVER THE FORMER AUDITOR MUST NOW BE CONSIDERED AS APPLICABLE ONLY TO THOSE ADMINISTRATIVE DUTIES OF THE AUDITOR AND WHICH ARE NOW IMPOSED UPON THE COMPTROLLER AND BUREAU OF ACCOUNTS, POST OFFICE DEPARTMENT. THE AUTHORITY VESTED IN THE AUDITOR AS AN ACCOUNTING OFFICER OF THE TREASURY WAS A DEFINITE AND INDEPENDENT AUTHORITY AND IT WAS THIS THAT WAS VESTED IN AND IMPOSED UPON THE GENERAL ACCOUNTING OFFICE.

SECTION 409, REVISED STATUTES, PROVIDES---

"IN ALL CASES OF FINE, PENALTY, FORFEITURE, OR DISABILITY, OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE, UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, THE POSTMASTER GENERAL MAY PRESCRIBE SUCH GENERAL RULES AND MODES OF PROCEEDING AS SHALL APPEAR TO BE EXPEDIENT, FOR THE GOVERNMENT OF THE SIXTH AUDITOR, IN ASCERTAINING THE FACT IN EACH CASE IN WHICH THE AUDITOR SHALL CERTIFY TO HIM THAT THE INTERESTS OF THE DEPARTMENT PROBABLY REQUIRE THE EXERCISE OF HIS POWERS OVER FINES, PENALTIES, FORFEITURES, AND LIABILITIES; AND UPON THE FACT BEING ASCERTAINED, THE AUDITOR MAY, WITH THE WRITTEN CONSENT OF THE POSTMASTER GENERAL, MITIGATE OR REMIT SUCH FINE, PENALTY, OR FORFEITURE, REMOVE SUCH DISABILITY, OR COMPROMISE, RELEASE, OR DISCHARGE SUCH CLAIM FOR SUCH SUM OF MONEY AND DAMAGES, AND ON SUCH TERMS AS THE AUDITOR SHALL DEEM JUST AND EXPEDIENT.'

SECTION 410 PERMITS THE POSTMASTER GENERAL TO DISCHARGE JUDGMENT DEBTORS FROM IMPRISONMENT IF IT APPEARS THAT THEY ARE WITHOUT PROPERTY, BUT SECTION 411 PROVIDES THAT THE RELEASE SHALL NOT BAR SUBSEQUENT EXECUTION ON THE SAME JUDGMENT. THESE SECTIONS HAVE RELATION TO FINES, FORFEITURES, ETC., THE IMPOSITION OF WHICH IS VESTED IN THE POSTMASTER GENERAL AS DISTINGUISHED FROM ACCOUNTS INVOLVING APPROPRIATED AND PUBLIC MONEYS, THE AUDIT OF WHICH IS VESTED IN THE ACCOUNTING OFFICERS UNDER THE ACTS OF JULY 31, 1894, AND JUNE 10, 1921, AND PRIOR ACTS. THAT PART OF SECTION 409 PRECEDING THE SEMICOLON, AUTHORIZING THE POSTMASTER GENERAL TO PRESCRIBE RULES AND REGULATIONS, RELATES TO ADMINISTRATIVE DUTIES SUCH AS WOULD PROPERLY FALL TO THE COMPTROLLER AND THE BUREAU OF ACCOUNTS, POST OFFICE DEPARTMENT. ALL LAWFUL RULES AND REGULATIONS ARE "FOR THE GOVERNMENT OF THE SIXTH AUDITOR" WHETHER AS AN ADMINISTRATIVE OR ACCOUNTING OFFICER, BUT "ASCERTAINING THE FACT" TO "CERTIFY" THE INTEREST, ETC., IS ADMINISTRATIVE. THE WORDS "LIABILITY" AND "LIABILITIES" ARE LIMITED IN MEANING BY THE RESTRICTIVE WORDS, FINE, PENALTY, AND FORFEITURE, PRECEDING SAME, OTHERWISE "LIABILITY" WOULD BE INCLUSIVE AND MAKE THE PRECEDING WORDS SUPERFLUOUS. THE ENUMERATION OF THE CHARACTER OF LIABILITIES BEFORE, AND THE PERSONS AND BUSINESS AFTER THE TERM ,ANY PROVISION OF LAW IN RELATION" THERETO, MUST BE INFERRED AS EXCLUDING BALANCES FOUND DUE THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS AND APPLYING ONLY TO THOSE LIMITED LIABILITIES IMPOSED BY ADMINISTRATIVE AUTHORITY PURSUANT TO THE SEVERAL STATUTES PROVIDING THEREFOR.

THAT PART OF SECTION 409, SUPRA, FOLLOWING THE SEMICOLON, AUTHORIZING THE AUDITOR TO MITIGATE OR REMIT, REMOVE, COMPROMISE, RELEASE, OR DISCHARGE, CORRESPONDS TO THE PRIMARY FUNCTIONS OF THE ACCOUNTING OFFICERS. THE FACT THAT THE STATUTE IS SEPARABLE AS TO THE POWER OVER FINES, ETC., AS DISTINGUISHED FROM THE POWER TO REMIT SAME CONFORMS TO THE DUTIES AND POWERS OF THE RESPECTIVE AUTHORITIES UNDER EXISTING LAWS AND PROVIDES THE CUSTOMARY CHECK UPON INDEPENDENCE OF ACTION. IT IS FOR THE ADMINISTRATIVE OFFICE TO ASCERTAIN THE FACTS AND CERTIFY SAME TO THE POSTMASTER GENERAL AND FOR THIS OFFICE TO MITIGATE OR REMIT THE FINES, ETC., WHEN THE POSTMASTER GENERAL CONSENTS THERETO. REMISSION AND MITIGATION BY THE ACCOUNTING OFFICERS HAS REFERENCE TO THOSE FINES, ETC., RECORDED BY THEM AND NOT TO SUCH AS HAVE NOT BEEN REPORTED AS FINALLY IMPOSED WHICH MAY BE LAWFULLY REMITTED OR MITIGATED BY THE POSTMASTER GENERAL. SEE 16 COMP. DEC., 108.

IN DECISION OF DECEMBER 20, 1922, 16 MS. COMP. GEN., 928, IT WAS HELD THAT---

"IT MAY BE CONCLUDED FROM THE LAWS NOW IN FORCE THAT THE FINAL ACTION UPON BALANCES IN POSTAL ACCOUNTS WITH RESPECT TO ENFORCING COLLECTION THEREOF IS A MATTER FOR THIS OFFICE IN SO FAR AS CONCERNS THE POSTMASTER. IN ORDER TO AVOID MULTIPLICITY OF ACTION AND DUPLICATION OF EFFORT IT WOULD APPEAR PROPER THAT WHERE AN ASSISTANT POSTMASTER HAS BEEN BONDED AND IS PRIMA FACIE CHARGEABLE WITH THE UNACCOUNTED-FOR MONEYS THIS OFFICE MAY ADOPT A PROCEDURE UNDER WHICH IT WILL TRANSMIT A TRANSCRIPT OF THE INDEBTEDNESS TO THE SOLICITOR OF THE TREASURY WITH A RECOMMENDATION FOR ACTION THEREON, BUT ALSO GIVING THE INFORMATION OF THE FACTS EVIDENCING THE RESPONSIBILITY OF THE ASSISTANT POSTMASTER. IT WILL THEREUPON BECOME A QUESTION FOR THE OFFICE OF THE SOLICITOR OF THE TREASURY TO DETERMINE THE FORM OF ACTION TO BE TAKEN TO MAKE RECOVERY IF LEGAL PROCEEDINGS THEREUNDER BECOME NECESSARY; THAT IS TO SAY, WHETHER THE ACTION SHALL BE AGAINST THE POSTMASTER OR ASSISTANT POSTMASTER AND THE RESPECTIVE SURETIES UPON THEIR BONDS IN THE FIRST INSTANCE.

"IN THE PRESENT MATTER THE POST OFFICE DEPARTMENT DIVISION WILL TRANSMIT THE RECORD TO THE DIVISION OF LAW, THIS OFFICE, WHICH WILL PROCEED THEREIN AS IN OTHER CASES OF HAVING THE MATTER TRANSCRIBED, PREPARED AND SUBMITTED TO THE SOLICITOR OF THE TREASURY FOR HIS CONSIDERATION AND ACTION.

IN THUS DEFINING THE LIABILITIES COMING WITHIN SECTION TO CLASSIFY SUCH LIABILITIES AS WOULD COME WITHIN THAT AUTHORITY. WHETHER A PARTICULAR TRANSACTION INVOLVING A LOSS TO THE UNITED STATES, SUCH AS IMPROPER PAYMENT OF MONEY ORDERS, ETC., IS SUCH AS TO CREATE AN INDEBTEDNESS IS A QUESTION FOR DETERMINATION IN EACH CASE ON THE FACTS APPEARING, DUE CONSIDERATION TO BE GIVEN TO THE PROPER EXERCISE OF AUTHORITY BY THE ACCOUNTABLE OFFICER IN HIS MINISTERIAL CAPACITY.

WHERE THERE IS DOUBT AS TO THE OFFICER'S LIABILITY THE FACTS MAY BE REPORTED, WITH RECOMMENDATION, BEFORE A CHARGE IS MADE IN THE ACCOUNTS, AND THE QUESTION THUS RAISED WILL THEN BE FOR DETERMINATION. SHOULD THE PRELIMINARY ACTION BY THIS OFFICE BE ADVERSE TO WHAT THE PARTIES MAY DEEM JUST AND EXPEDIENT A REVIEW THEREOF MAY BE HAD UPON APPLICATION TO THE COMPTROLLER GENERAL.

UPON FURTHER CONSIDERATION THE ACTION TAKEN MUST BE ADHERED TO SUBJECT TO REVIEW OF INDIVIDUAL CASES ON APPLICATION BEING MADE FULLY SETTING FORTH THE FACTS.