A-93685, MARCH 31, 1941, 20 COMP. GEN. 573

A-93685, MARCH 31, 1941, 20 COMP. GEN. 573

GENERAL ACCOUNTING OFFICE - JURISDICTION - CLAIMS - FACTUAL DETERMINATIONS THE DETERMINATION OF THE FACTS WITH RESPECT TO A PARTICULAR CLAIM IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE UNDER ITS AUTHORITY TO SETTLE AND ADJUST CLAIMS BY OR AGAINST THE UNITED STATES PURSUANT TO SECTION 236, REVISED STATUTES, AS AMENDED, UNLESS THE CLAIM IS ONE AS TO WHICH A STATUTORY OR CONTRACTUAL PROVISION MAKES THE FINDINGS OF FACT OF A PARTICULAR DEPARTMENT HEAD OR OTHER OFFICER FINAL AND CONCLUSIVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 31, 1941:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1940, RELATIVE TO SETTLEMENT NO. 10559077, DATED SEPTEMBER 13, 1939, WHEREBY MILO SAULICH WAS FOUND TO BE INDEBTED TO THE UNITED STATES IN THE NET AMOUNT OF $205.25.

THE SETTLEMENT COVERED A CLAIM FILED BY SAULICH FOR $5,042.75 FOR DAMAGES ALLEGEDLY SUFFERED BY HIM BY REASON OF A FIRE CLAIMED TO HAVE BEEN STARTED ON JUNE 26, 1934, BY EMPLOYEES OF THE ALASKA RAILROAD WHILE ENGAGED IN THE OPERATION AND MAINTENANCE OF THE RAILROAD LINE. A VOUCHER COVERING THE CLAIM WAS TRANSMITTED TO THIS OFFICE ON JANUARY 14, 1938, BY THE ASSISTANT DIRECTOR, DIVISION OF TERRITORIES AND ISLAND POSSESSIONS, ADMINISTRATIVELY APPROVED FOR PAYMENT IN THE SUM OF $2,979.75, THERE HAVING BEEN ADMINISTRATIVELY DEDUCTED FROM THE VOUCHER ITEMS TOTALING $2,063. THE ADMINISTRATIVE RECOMMENDATION FOR ALLOWANCE OF THE CLAIM IN THE SUM OF $2,979.75 WAS BASED ON A " FINDING OF FACT BY HEAD OF THE DEPARTMENT" REPORTED TO HAVE BEEN MADE BY THE ASSISTANT SECRETARY OF THE INTERIOR ON AUGUST 12, 1937.

IN YOUR LETTER YOU ASK INFORMATION "AS TO THE BASIS UPON WHICH THE SETTLEMENT WAS MADE TOGETHER WITH A REFERENCE TO THE PERTINENT LAW OR LAWS AND DECISIONS PURSUANT TO WHICH YOUR OFFICE UNDERTAKES TO REVIEW AND REVISE AN ADMINISTRATIVE FINDING OF FACT BY THIS DEPARTMENT.'

THE ITEMS COMPRISING THE CLAIM WERE STATED ON THE VOUCHER AS FOLLOWS:

CHART

5 CABINS------------------------------------------ $500.00

85 CORDS WOOD AT 3.75 CORD------------------------ 318.75

1,000 CORDS DRY SPRUCE SLASHINGS------------------ 1,000.00

72 CORDS MINING TIMBERS AT 3.50 CORD-------------- 252.00

54 CORDS LAGGINGS AT 3.00 CORD-------------------- 162.00

11,000 RUNNING FEET POLES AT $0.15 FT------------- 1,650.00

5 TONS HAY AT 20.00 TON--------------------------- 100.00

HEAVY TIMBER------------------------------------- 60.00

DAMAGE TO STANDING TIMBER ON HOMESTEAD 1,000 CORDS

AT 1.00---------------------------------------- 1,000.00

5,042.75 THE $2,063 ADMINISTRATIVELY DEDUCTED CONSISTED OF FOUR ITEMS, NAMELY: THE ITEM OF $1,000 CLAIMED ON THE VOUCHER AS DAMAGE TO STANDING TIMBER REPORTED AS DESTROYED ON SAULICH'S HOMESTEAD CLAIM, WHICH ITEM WAS RECOMMENDED TO BE WITHHELD PENDING ISSUANCE OF PATENT; $979.09 REPORTED AS UNPAID STUMPAGE DUE FROM CLAIMANT TO THE UNITED STATES; AND TWO ITEMS, ONE FOR $46.45 AND THE OTHER FOR $37.46, DUE THE UNITED STATES FOR REPAIRS MADE TO WOOD SPURS BELONGING TO THE CLAIMANT. IN THE SETTLEMENT OF SEPTEMBER 13, 1939, THERE WAS FOUND DUE THE CLAIMANT $500, REPRESENTING $400 FOR FOUR OF THE FIVE CABINS DESTROYED BY THE FIRE, AND $100 FOR 5 TONS OF HAY DESTROYED BY THE FIRE, FROM WHICH AMOUNT SO ALLOWED WERE DEDUCTED THE TWO ITEMS OF $46.45 AND $37.46 ABOVE REFERRED TO, THUS REDUCING THE ALLOWANCE OF $500 TO $416.09. THE ITEM OF $1,000 CLAIMED AS DAMAGE TO STANDING TIMBER ON HOMESTEAD WAS SUSPENDED PENDING COMPLETION OF HOMESTEAD ENTRY, AS ADMINISTRATIVELY RECOMMENDED, AND THE BALANCE OF $3,542.75 WAS DISALLOWED. THE $416.09 WAS APPLIED IN REDUCTION OF AN INDEBTEDNESS OF $621.34, THE LATTER BEING PART OF SAID ITEM OF $979.09, AS HEREINAFTER EXPLAINED.

THE CERTIFICATE OF SETTLEMENT SETS FORTH THE ACTION TAKEN ON THE VARIOUS ITEMS OF THE CLAIM AND THE REASONS THEREFOR AND IT APPEARS FROM THE RECORDS HERE THAT A COPY OF THE CERTIFICATE WHEN ISSUED WAS SENT THE DIVISION OF TERRITORIES AND INSULAR POSSESSIONS. HOWEVER, IN VIEW OF YOUR REQUEST AND FOR YOUR CONVENIENCE, THERE ARE SET FORTH HEREIN THE ITEMS WITH RESPECT TO WHICH THE ACTION TAKEN IN THE SETTLEMENT DIFFERED FROM THAT ADMINISTRATIVELY RECOMMENDED AND A BRIEF STATEMENT OF THE REASONS UPON WHICH SUCH DIFFERENCES WERE BASED.

(1) THE ITEM OF $500 CLAIMED AS THE VALUE OF FIVE CABINS SAID TO HAVE BEEN DESTROYED. AS HEREINABOVE STATED, $400 OF THIS ITEM WAS ALLOWED FOR FOUR OF THE FIVE CABINS AND $100 FOR THE OTHER CABIN DISALLOWED. THE LATTER CABIN APPEARED TO HAVE BEEN LOCATED ABOUT 1 MILE EAST OF MILE POST NO. 449 AND THE FIRE APPEARED TO HAVE BEEN SOME DISTANCE FROM THAT LOCATION. THE DISALLOWANCE OF THE AMOUNT CLAIMED THEREFOR WAS FOR THE REASON THAT THE EVIDENCE OF RECORD INDICATED THE CABIN WAS NOT DESTROYED BY THE FIRE OF JUNE 26, 1934.

(2) THE ITEM OF $318.75 CLAIMED FOR 85 CORDS OF FUEL WOOD WAS DISALLOWED BECAUSE THE RECORD DID NOT ESTABLISH THAT THE WOOD WAS ACTUALLY BURNED IN THE FIRE AND THAT TITLE THERETO WAS IN THE CLAIMANT. THIS ITEM APPEARED TO RELATE POSSIBLY TO WOOD FOR WHICH ONE JOE BELLFOUNTAINE ALSO HAD FILED A CLAIM FOR ALLEGED LOSSES DUE TO THE FIRE, BUT IT APPEARED IN HIS LETTER OF NOVEMBER 15, 1934, WITH REFERENCE TO HIS CLAIM, THAT A PART OF THE 85 CORDS MAY HAVE BEEN CUT FROM SAULICH'S HOMESTEAD. SUCH CUTTING, IN THE ABSENCE OF SPECIAL CIRCUMSTANCES NOT HERE APPEARING, WOULD GIVE NEITHER SAULICH NOR BELLFOUNTAINE ANY PROPERTY RIGHT IN THE WOOD AND NEITHER WOULD BE ENTITLED TO DAMAGES FOR ITS DESTRUCTION. SEE SHIVER V. UNITED STATES, 159 U.S. 491; STONE V. UNITED STATES, 167 U.S. 178.

(3) THE REMAINING ITEMS OF THE CLAIM, NAMELY $1,000 CLAIMED FOR 1,000 CORDS OF DRY SPRUCE SLASHINGS, $252 FOR 72 CORDS OF MINING TIMBERS, $162 FOR 54 CORDS OF LAGGINGS, $1,650 FOR 11,000 RUNNING FEET OF POLES AND $60 FOR HEAVY TIMBER, WERE DISALLOWED FOR THE SAME REASONS AS THOSE FOR WHICH THE ITEM OF $318.75 REFERRED TO ABOVE WAS DISALLOWED; THAT IS, BECAUSE THE RECORD DID NOT ESTABLISH THAT THE WOOD WAS ACTUALLY BURNED IN THE FIRE OR THAT TITLE THERETO WAS IN THE CLAIMANT. THE AMOUNTS CLAIMED FOR THOSE FIVE ITEMS DID NOT APPEAR TO BE SUPPORTED BY THE RECORD. IT WAS STATED IN A REPORT OF NOVEMBER 15, 1935, OF SPECIAL AGENT GUTHREY, THAT A CHECK HAD BEEN MADE OF THE TIMBER WHICH HAD BEEN CUT BY SAULICH IN THE YEARS 1928 TO 1934, INCLUSIVE, AND OF THE QUANTITY SHIPPED AND PURCHASED BY INDIVIDUAL CONSUMERS; AND THAT THE DIFFERENCE BETWEEN THAT CUT AND THAT SHIPPED AND SOLD CHECKED VERY CLOSELY WITH THE AMOUNT WHICH SAULICH CLAIMED WAS BURNED IN THE FIRE. HOWEVER, THE SAME SPECIAL AGENT IN A LETTER REPORT OF FEBRUARY 27, 1936, STATED THAT NO TIMBER APPLICATIONS WERE FILED BY SAULICH IN THE LAND OFFICE AT FAIRBANKS DURING 1932 AND 1933 OR UP TO JUNE 1, 1934, THOUGH HE, SAULICH, CONTINUED TO SELL WOOD DURING THOSE YEARS. IT WAS ALSO STATED IN THE LATER REPORT THAT SAULICH HAD EXPLAINED THAT THE WOOD SOLD DURING 1932 AND 1933 WAS CUT UNDER PREVIOUSLY FILED APPLICATIONS FOR THE YEARS 1928 TO 1931, INCLUSIVE, HIS ALLEGED CUSTOM BEING TO CUT A LARGE QUANTITY OF TIMBER AT ONE TIME AND STORE IT UNTIL SOLD, BUT THAT HE, THE AGENT, WAS UNABLE TO VERIFY THAT OR TO DETERMINE WHETHER SAULICH HAD CONTINUED TO CUT WOOD IN 1932 AND 1933 WITHOUT HAVING FILED TIMBER APPLICATIONS. IN THIS CONNECTION, SAULICH STATED IN HIS AFFIDAVIT OF NOVEMBER 16, 1934, THAT THE WOOD FOR WHICH HE CLAIMED REIMBURSEMENT WAS CUT AT VARIOUS TIMES BETWEEN 1929 AND 1934.

IT WOULD APPEAR FROM THE FOREGOING THAT THE WOOD WAS CUT EITHER PRIOR TO 1932 UNDER A PERMIT OR SUBSEQUENTLY THERETO WITHOUT A PERMIT. IF THE FORMER WAS THE CASE, THE CUTTING APPARENTLY EXCEEDED THE LIMITATION PROVIDED IN SECTION 11 OF THE ACT OF MAY 14, 1898, 30 STAT. 414 (48 U.S.C. 421) THAT SALES OF TIMBER ON PUBLIC LANDS IN ALASKA SHALL AT ALL TIMES BE LIMITED TO ACTUAL CONSUMPTION IN ALASKA FROM YEAR TO YEAR AND IT WOULD APPEAR, THEREFORE, THAT SUCH EXCESS CUTTING WAS UNAUTHORIZED. IF THE WOOD WAS SUBSEQUENTLY CUT WITHOUT A PERMIT, THE CUTTING WOULD, OF COURSE, LIKEWISE BE UNAUTHORIZED. IN EITHER EVENT, THERE WOULD APPEAR NO LEGAL BASIS ON WHICH TO COMPENSATE THE CLAIMANT FOR THE WOOD. SEE NORTHERN PACIFIC RAILROAD CO. V. LEWIS, 162 U.S. 366, AND MCQUILLEN ET AL. V. TANANA ELECTRIC CO., 3 ALASKA 110.

(4) OF THE ITEM OF $979.09 ADMINISTRATIVELY DEDUCTED FOR UNPAID STUMPAGE DUE THE GOVERNMENT THERE WAS DEDUCTED IN THE SETTLEMENT ONLY $621.34, THE DIFFERENCE OF $357.75 NOT BEING DEDUCTED BECAUSE IT WAS FOR STUMPAGE ON WOOD REFERRED TO IN (2) AND (3) ABOVE (WITH THE EXCEPTION OF THE ITEM OF HEAVY TIMBER FOR WHICH $60 WAS CLAIMED) ALLEGEDLY BURNED IN THE FIRE BUT FOR WHICH, AS APPEARS ABOVE, NO ALLOWANCE WAS MADE IN THE SETTLEMENT. SINCE NO ALLOWANCE WAS MADE FOR THE WOOD ON ACCOUNT OF WHICH THE CHARGE OF $357.75 WAS MADE FOR STUMPAGE, NO ACTION WAS TAKEN IN THE SETTLEMENT WITH REFERENCE TO SAID ITEM OF $357.75.

WITH REFERENCE TO YOUR INQUIRY AS TO THE AUTHORITY UNDER WHICH THIS OFFICE "UNDERTAKES TO REVIEW AND REVISE AN ADMINISTRATIVE FINDING OF FACT BY" YOUR DEPARTMENT, I HAVE TO ADVISE THAT SUCH AUTHORITY EXISTS BY VIRTUE OF SECTION 236 OF THE REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, WHICH PROVIDES THAT---

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.

PRIOR TO ITS AMENDMENT PLACING THE AUTHORITY IN THIS OFFICE TO SETTLE AND ADJUST CLAIMS AND DEMANDS BY OR AGAINST THE UNITED STATES, SECTION 236 OF THE REVISED STATUTES, WHICH WAS DERIVED FROM SECTION 2 OF THE ACT OF MARCH 3, 1817, 3 STAT. 366, PLACED SUCH AUTHORITY IN THE TREASURY DEPARTMENT. THE SUPREME COURT OF THE UNITED STATES HAD OCCASION TO CONSIDER THE SCOPE OF SAID SECTION IN ILLINOIS SURETY CO. V. PEELER, 240 U.S. 214, WHEREIN IT STATED (PP. 219-220):

* * * BY THE ACT OF MARCH 3, 1817, C. 45, SECTION 2 (3 STAT. 366) IT WAS PROVIDED THAT "ALL CLAIMS AND DEMANDS WHATEVER, BY THE UNITED STATES OR AGAINST THEM, AND ALL ACCOUNTS WHATEVER, IN WHICH THE UNITED STATES ARE CONCERNED, EITHER AS DEBTORS OR AS CREDITORS, SHALL BE SETTLED AND ADJUSTED IN THE TREASURY DEPARTMENT.' THIS PROVISION WAS CARRIED INTO SECTION 236 OF THE REVISED STATUTES. THE WORDS "SETTLED AND ADJUSTED" WERE TAKEN TO MEAN THE DETERMINATION IN THE TREASURY DEPARTMENT FOR ADMINISTRATIVE PURPOSES OF THE STATE OF THE ACCOUNT AND THE AMOUNT DUE. SEE 2 OP. ATTY. GEN. 518; ID. 625, 629, 630. REFERRING TO THIS PROVISION, IT WAS SAID BY MR. CHIEF JUSTICE WAITE IN DELIVERING THE OPINION OF THE COURT IN COOKE V. UNITED STATES, 91 U.S. 389, 399: " THUS IT IS SEEN THAT ALL CLAIMS AGAINST THE UNITED STATES ARE TO BE SETTLED AND ADJUSTED "IN THE TREASURY DEPARTMENT; " AND THAT IS LOCATED "AT THE SEAT OF GOVERNMENT.' THE ASSISTANT-TREASURER IN NEW YORK IS A CUSTODIAN OF THE PUBLIC MONEY, WHICH HE MAY PAY OUT OR TRANSFER UPON THE ORDER OF THE PROPER DEPARTMENT OR OFFICER; BUT HE HAS NO AUTHORITY TO SETTLE AND ADJUST, THAT IS TO SAY, TO DETERMINE UPON THE VALIDITY OF, ANY CLAIM AGAINST THE GOVERNMENT. * * *"

IN STATE V. CLAUSEN, 87 PAC. 498, THERE WAS CONSIDERED A STATUTE WHICH AUTHORIZED THE STATE AUDITOR "TO AUDIT, ADJUST, AND SETTLE ALL CLAIMS AGAINST THE STATE, PAYABLE OUT OF THE TREASURY, EXCEPT ONLY SUCH CLAIMS AS MAY BE EXPRESSLY REQUIRED BY LAW TO BE AUDITED AND SETTLED BY OTHER OFFICERS OR PERSONS.' THE COURT HELD THAT UNDER SUCH AUTHORITY, UNLESS THE AMOUNT OF A CLAIM WAS FIXED BY LAW OR EXPRESSLY AUTHORIZED BY LAW TO BE AUDITED AND SETTLED BY OTHERS, THE AUDITOR ,EXERCISES JUDGMENT AND DISCRETION IN THE ADJUSTMENT AND SETTLEMENT OF THE CLAIMS PRESENTED TO M.' COMPARE STATE V. MOORE, 25 L.R.A. 774.

IN STAATS V. PIONEER INS. ASSOCIATION, 104 PAC. 185, IT IS STATED THAT TO "ADJUST" A CLAIM IS ,TO DETERMINE WHAT IS DUE; TO SETTLE; TO ASCERTAIN.' TO THE SAME EFFECT IS ALLEN V. PHOENIX ASSURANCE CO., 95 PAC. 829, WHEREIN IT WAS STATED, ALSO, THAT " TO ADJUST A LOSS IS TO ASCERTAIN AND DETERMINE" THE LOSS. ALSO, SEE WORDS AND PHRASES, PERMANENT EDITION, VOLUME 2, PAGE 419-422, AND 1 CORPUS JURIS 1237.

FROM THE FOREGOING AUTHORITIES IT WILL BE SEEN THAT THE WORDS "SETTLE AND ADJUST" HAVE BEEN DEFINED GENERALLY TO MEAN "TO DETERMINE" OR "TO ASCERTAIN," AND THAT SUCH DETERMINING OR ASCERTAINING INVOLVES THE EXERCISE OF JUDGMENT AND DISCRETION. AS HAS BEEN SHOWN, THE SUPREME COURT HAS STATED WITH RESPECT TO THE PARTICULAR STATUTE HERE INVOLVED THAT THE AUTHORITY TO SETTLE AND ADJUST CLAIMS IS THE AUTHORITY TO "DETERMINE THE VALIDITY OF CLAIMS.' THE VALIDITY OF A CLAIM OF NECESSITY IS GOVERNED BY THE RECORD FACTS, AS WELL AS THE APPLICABLE LAW, AND UNDER SECTION 236 OF THE REVISED STATUTES, AS AMENDED, SUPRA, IT IS THE DUTY OF THIS OFFICE TO CONSIDER THE EVIDENCE AND DETERMINE THE FACTS IN A PARTICULAR CLAIM. ORDER TO ACCOMPLISH THAT END, AND PURSUANT TO SECTION 309 OF THE ACT OF JUNE 10, 1921, SUPRA, THERE WAS ISSUED GENERAL REGULATIONS NO. 50 (5 COMP. GEN. 1058), PROVIDING FOR THE TRANSMISSION HERE, FOR SETTLEMENT, OF ALL CLAIMS AGAINST THE UNITED STATES, TOGETHER WITH ALL MATERIAL PAPERS, A REPORT IN DETAIL, AND AN ADMINISTRATIVE RECOMMENDATION. HOWEVER, SUCH ADMINISTRATIVE REPORT OR RECOMMENDATION IS NOT CONCLUSIVE ON THIS OFFICE IN THE EXERCISE OF THE AUTHORITY VESTED IN IT TO ADJUST AND SETTLE CLAIMS, AS EXPLAINED ABOVE. THIS OFFICE DOES--- AND FROM THE VERY NATURE OF THE SYSTEM MUST--- PLACE MUCH RELIANCE UPON THE ADMINISTRATIVE REPORT OF THE FACTS; AND WHERE THERE IS A DISPUTE BETWEEN A CLAIMANT AND AN ADMINISTRATIVE OFFICE AS TO THE FACTS, IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS TO ACCEPT AS CORRECT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS. 5 COMP. DEC. 273; 18 ID. 649; 3 COMP. GEN. 51; 15 ID. 241; 16 ID. 410. BUT WHEN IT APPEARS THAT AN ADMINISTRATIVE FINDING OR CONCLUSION AS TO FACTS IS CONTRARY TO OR IS NOT SUPPORTED BY THE RECORD EVIDENCE THEN IT IS THE PLAIN DUTY AND RESPONSIBILITY OF THIS OFFICE TO APPLY THE LAW TO THE FACTS AS, IN ITS JUDGMENT, THE RECORD SHOWS THEM TO BE. SEE IN THIS CONNECTION 20 COMP. DEC. 87, 93, WHEREIN IT IS STATED---

IT IS UNDERSTOOD SO GENERALLY AS HARDLY TO NEED A STATEMENT NOW THAT THE ACCOUNTING OFFICERS DO AUDIT THE PUBLIC ACCOUNTS UPON THE EVIDENCE FURNISHED LARGELY BY THE CERTIFICATES OF FACT MADE BY RESPONSIBLE GOVERNMENT OFFICERS. BUT, WITH VERY FEW EXCEPTIONS MADE BY LAW, THE CERTIFICATE OR APPROVAL OF AN OFFICER IS NOT INTENDED TO BE CONCLUSIVE UPON THE ACCOUNTING OFFICERS. THE LATTER MUST RENDER A DECISION UPON THE LEGALITY OF A CLAIM FOR PAYMENT, OR FOR CREDIT IN AN ACCOUNT, UPON THE FACTS. UPON THEM IS CAST THE RESPONSIBILITY FOR SECURING THE FACTS. UPON OTHER OFFICERS IS THE DUTY OF FURNISHING, UPON REQUEST, SUCH EVIDENCE, IN ADDITION TO CERTIFICATES, AS MAY BE CALLED FOR BY THE ACCOUNTING OFFICERS. THIS RIGHT TO CALL FOR EVIDENCE, IS INSEPARABLE FROM THE DUTY TO AUDIT AND TO DECIDE QUESTIONS OF LAW AND FACT. IT MUST BE EXERCISED REASONABLY, AS MUST ANY PUBLIC DUTY, BUT THE ACCOUNTING OFFICER, AND NOT AN ADMINISTRATIVE OFFICER INCURRING LIABILITIES OR EXPENDING THE PUBLIC FUNDS, MUST DETERMINE THE EXTENT TO WHICH IT IS NECESSARY TO GO IN ANY PARTICULAR CASE IN COLLECTING THE EVIDENCE TO ESTABLISH WHAT HE BELIEVES TO BE AN ESSENTIAL FACT AS A BASIS FOR DECISION. ALSO, SEE 4 COMP. DEC. 233; ID. 587; 21 ID. 694; 23 ID. 302; 3 COMP. GEN. 801; 13 ID. 140.

THE RIGHT OR AUTHORITY THE ACCOUNTING OFFICERS, IN THE EXERCISE OF THE DUTIES IMPOSED UPON THEM BY LAW, TO OBTAIN SUCH EVIDENCE AS THEY DEEM ESSENTIAL AND TO MAKE THEIR OWN DETERMINATION OF THE FACTS IN THE SETTLEMENT OF CLAIMS AND ACCOUNTS IS STATED IN MARY E. NORTHRUP, WIDOW V. THE UNITED STATES, 45 CT.1CLS. 50, 57, AS FOLLOWS:

THE COURT DOES NOT PRESUME TO LAY DOWN ANY RULE AS TO THE QUANTUM OF EVIDENCE NECESSARY TO SATISFY THE ACCOUNTING OFFICERS IN THE ADJUSTMENT OF SUCH CLAIMS, MUCH LESS TO RESTRICT THEM AS TO THE SOURCES FROM WHICH THEY SHALL PROCURE SUCH EVIDENCE. MANIFESTLY THE RECORDS IN THE WAR DEPARTMENT, IF THEY EXIST, AS CONTRADISTINGUISHED FROM MERE OPINIONS AND CONCLUSIONS OF THE OFFICER HAVING THE CUSTODY OF SUCH RECORDS, ARE THE BEST EVIDENCE OF THE SOLDIER'S STATUS IN THE SERVICE; BUT IF SUCH RECORDS ARE NOT COMPLETE AND DO NOT DISCLOSE THE FACTS ESSENTIAL TO ENABLE THE ACCOUNTING OFFICERS TO ADMINISTER THE LAW IN THE SPIRIT IN WHICH IT WAS INTENDED, THEN THEY MAY ACCEPT FROM OTHER SOURCES SUCH COMPETENT EVIDENCE AS TO THEM MAY BE DEEMED SUFFICIENT TO ENABLE THEM TO DETERMINE THE RIGHTS OF SUCH CLAIMANTS. ( ITALICS SUPPLIED.)

IN THE CASE OF JOHN B. KELLY, INC. V. UNITED STATES, 87 CT.1CLS. 271, THE COURT CONSIDERED THE ACT OF JUNE 16, 1934, 48 STAT. 974, WHICH AUTHORIZED THE COMPTROLLER GENERAL "TO ADJUST AND SETTLE ON A FAIR AND EQUITABLE BASIS" CLAIMS OF CERTAIN PERSONS WHO HAD INCURRED ADDITIONAL COSTS BY REASON OF COMPLIANCE, UNDER THE CONDITIONS THEREIN SPECIFIED, WITH APPROVED CODES OF AIR COMPETITION OR THE PRESIDENT'S REEMPLOYMENT AGREEMENT. SAID ACT SPECIFICALLY PROVIDED THAT CLAIMS PRESENTED THEREUNDER SHOULD BE EXAMINED BY THE ADMINISTRATIVE OFFICE INVOLVED AND SHOULD BE ,TRANSMITTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, ACCOMPANIED WITH AN ADMINISTRATIVE FINDING OF FACT AND RECOMMENDATION WITH RESPECT TO THE CLAIM.' NEVERTHELESS, THE COURT HELD THAT THE COMPTROLLER GENERAL HAD "COMPLETE AND EXCLUSIVE DISCRETION IN THE FACTUAL DETERMINATION" UNDER THE ACT. IN DECLINING JURISDICTION UNDER THE ACT THE COURT STATED THAT THE DISCRETIONARY POWER TO ADJUST AND SETTLE SUCH CLAIMS NECESSARILY INVOLVED A FINDING OF FACT.

THE CONGRESS HAS BY STATUTE, AT TIMES, AUTHORIZED THE HEADS OF DIFFERENT DEPARTMENTS AND ESTABLISHMENTS TO ADJUST AND SETTLE PARTICULAR CLASSES OF CLAIMS AND DEMANDS AGAINST THE UNITED STATES, SUCH AS THE ACT OF MARCH 2, 1919, 40 STAT. 1272, AND HAS MADE THE DETERMINATIONS AND DECISIONS OF SUCH OFFICIALS FINAL AND CONCLUSIVE UPON THIS OFFICE AND THE COURTS. SO, ALSO, IT PROPERLY MAY BE AND IN MANY INSTANCES IS PROVIDED IN CONTRACTS UNDER CERTAIN CIRCUMSTANCES THAT A DESIGNATED OFFICIAL IS AUTHORIZED TO DETERMINE PARTICULAR FACTS, SUCH DETERMINATION TO BE FINAL AND CONCLUSIVE- -- IN WHICH EVENT THIS OFFICE MAY NOT GO BEHIND SUCH FINDINGS IN THE ABSENCE OF FRAUD OR BAD FAITH. KIHLBERG V. UNITED STATES, 97 U.S. 398; MCSHAIN COMPANY V. UNITED STATES, 83 CT.1CLS. 405. BUT SUCH SITUATIONS ARE EXCEPTIONS TO THE GENERAL RULE; AND IN THE ABSENCE OF SUCH A STATUTORY OR CONTRACTUAL PROVISION THE DETERMINATION OF THE FACTS IN A PARTICULAR CLAIM IS THE RESPONSIBILITY OF THIS OFFICE UNDER ITS AUTHORITY TO SETTLE AND ADJUST CLAIMS BY OR AGAINST THE UNITED STATES PURSUANT TO SECTION 236, REVISED STATUTES, AS AMENDED.