A-19401, AUGUST 31, 1927, 7 COMP. GEN. 167

A-19401, AUGUST 31, 1927, 7 COMP. GEN. 167

VOLUNTARY SERVICES - MORAL OBLIGATIONS STORAGE BY A COLLECTOR OF CUSTOMS IN HIS OWN PRIVATE BOATHOUSE OF A MOTOR BOAT SEIZED FOR VIOLATION OF THE CUSTOMS LAWS, PENDING CONDEMNATION AND SALE, WHERE SUCH STORAGE WAS NOT AUTHORIZED BY SUPERIOR AUTHORITY, IS A VOLUNTARY SERVICE FOR WHICH PAYMENT MAY NOT BE MADE IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE ACCEPTANCE OF SUCH SERVICE AND PAYMENT THEREFOR BEING IN CONTRAVENTION OF SECTION 3679 OF THE REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, AND SUCH PAYMENT BEING ALSO QUESTIONABLE AS IN CONFLICT WITH SECTION 1765 OF THE REVISED STATUTES. A CONTRACT OBLIGATION MAY NOT BE IMPOSED UPON THE UNITED STATES BY AN OFFICER VOLUNTARILY FURNISHING SERVICES THERETO WITHOUT SUPERIOR AUTHORITY, EVEN THOUGH HE MAY BE AUTHORIZED TO CONTRACT WITH OTHERS FOR SUCH SERVICES, BEING UNABLE TO ACT AS A CONTRACTING OFFICER FOR THE GOVERNMENT AND THE OTHER CONTRACTING PARTY AT ONE AND THE SAME TIME. THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO ALLOW CREDIT FOR A PAYMENT OR TO PAY A CLAIM BASED SOLELY ON AN ALLEGED MORAL OBLIGATION OF THE GOVERNMENT TO PAY FOR BENEFITS RECEIVED.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 31, 1927:

THERE IS FOR CONSIDERATION THE QUESTION OF THE VALIDITY OF A PAYMENT OF $122.59 MADE BY D. F. BREITENSTEIN, UNITED STATES MARSHAL AT UTICA, N.Y., TO J. C. TULLOCH, COLLECTOR OF CUSTOMS AT OGDENSBURG, N.Y., UNDER CIRCUMSTANCES APPEARING FROM THE RECORD TO BE AS HEREINAFTER SET FORTH.

WHEN MR. TULLOCH BECAME COLLECTOR OF CUSTOMS AT OGDENSBURG ON NOVEMBER 4, 1923, THERE WAS TIED UP AT A DOCK IN THE CITY A 50-FOOT MOTOR BOAT WHICH HAD BEEN SEIZED BY HIS PREDECESSOR ON SEPTEMBER 21, 1923, FOR SMUGGLING WHISKEY AND WAS BEING HELD PRESUMABLY TO AWAIT CONDEMNATION PROCEEDINGS PURSUANT TO THE PROVISIONS OF SECTION 610 OF THE TARIFF ACT OF SEPTEMBER 21, 1922, 42 STAT. 985. THE BOAT WAS FORMALLY APPRAISED, AS REQUIRED BY SECTION 606 OF THE SAID TARIFF ACT, WHETHER BEFORE OR AFTER MR. TULLOCH TOOK OFFICE IS NOT SHOWN, AND ITS VALUE FIXED AT $1,800. DUE TO APPROACHING WINTER, THE COLLECTOR DECIDED TO HAUL THE BOAT OUT OF THE WATER AND LAY IT UP. INQUIRIES WERE MADE BUT ONLY ONE PLACE WAS FOUND WHERE STORAGE COULD BE SECURED FOR SO LARGE A CRAFT, AND A RENTAL OF $27.60 A MONTH WAS ASKED FOR THAT. THE COLLECTOR CONSIDERED SUCH DEMAND EXCESSIVE AND ON NOVEMBER 28, 1923, HAD THE BOAT HAULED OUT AND PLACED IN HIS OWN PRIVATE BOATHOUSE, WHERE IT REMAINED UNTIL SOLD BY THE MARSHAL ON AUGUST 7, 1926. THE COLLECTOR STATES IN HIS LETTER OF SEPTEMBER 7, 1926, TO THIS OFFICE THAT DURING THE INTERVENING PERIOD OF ALMOST THREE YEARS HE MADE REPEATED REQUESTS ON THE UNITED STATES DISTRICT ATTORNEY TO BRING CONDEMNATION PROCEEDINGS, BUT THAT NO ACTION WAS TAKEN UNTIL HE REPORTED THE MATTER TO THE TREASURY DEPARTMENT ON MAY 5, 1926, AND ASKED THAT IT BE TAKEN UP WITH THE DEPARTMENT OF JUSTICE, AND THAT---

* * * SHORTLY AFTER THIS FORFEITURE PROCEEDINGS WERE INSTITUTED BY THE UNITED STATES ATTORNEY'S OFFICE AND THE BOAT WAS ATTACHED BY THE UNITED STATES MARSHAL AND SOLD AT AUCTION ON AUGUST 7, 1926, FOR $135.00.

SAID LETTER OF SEPTEMBER 7, 1926, ALSO CONTAINS THE FOLLOWING STATEMENT:

AT THE TIME OF THE SALE I DELIVERED TO THE UNITED STATES MARSHAL A BILL MADE UP AS FOLLOWS:

CHART AMOUNT PAID TO HAVE BOAT PLACED IN STORAGE ------------------ - $20.00 STORAGE 3 SEASONS, AT $50.00 PER SEASON --------------------- - 150.00

TOTAL ---------------------------------------------------- 170.00 AND A SHORT TIME LATER I RECEIVED FROM THE UNITED STATES MARSHAL A CHECK IN AMOUNT $122.59 TO APPLY ON THE STORAGE, THE MARSHAL STATING THAT THIS WAS ALL THE MONEY AVAILABLE FROM THE PROCEEDS OF THE SALE OF THE SEIZURE TO APPLY ON MY BILL.

NO EVIDENCE IS SUBMITTED AS TO THE FORM OR DATE OF THE REQUESTS ALLEGED TO HAVE BEEN MADE BY THE COLLECTOR TO THE DISTRICT ATTORNEY FOR THE INSTITUTION OF CONDEMNATION PROCEEDINGS.

THE PROPRIETY OF THE PAYMENT BY THE MARSHAL TO THE COLLECTOR FOR STORAGE OF THE BOAT IN HIS OWN BOATHOUSE HAVING BEEN QUESTIONED IN THE AUDIT OF THE MARSHAL'S ACCOUNTS, THE COLLECTOR IN A COMMUNICATION DATED JULY 14, 1927, TO A REPRESENTATIVE OF THIS OFFICE, MADE THE FOLLOWING STATEMENTS RELATIVE TO THE TRANSACTION:

* * * YOU CAN READILY SEE THAT STORAGE BY THE ST. LAWRENCE BOAT WORKS AT $27.50 A MONTH FOR THE THIRTY-THREE (33) MONTHS THE BOAT WAS IN STORAGE WOULD AMOUNT TO $907.50, WHILE STORAGE IN MY BOATHOUSE COST THE GOVERNMENT ABOUT $800 LESS THAN THAT AMOUNT, THUS EFFECTING A LARGE SAVING.

* * * IT APPEARS UNJUST FOR THE GOVERNMENT TO OCCUPY FOR NEARLY THREE YEARS A BOATHOUSE UNDER A CONTRACT ENTERED INTO AT A TIME WHEN IT WAS CONSIDERED PROPER TO MAKE SUCH A CONTRACT, AND THEN REFUSE TO PAY THE RENTAL, ESPECIALLY IN VIEW OF THE LARGE SAVING TO THE GOVERNMENT.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE NO GENERAL AUTHORITY OR DISCRETION TO ALLOW CREDIT FOR A PAYMENT OR TO PAY A CLAIM BASED ON BENEFITS RECEIVED OR AMOUNTS SAVED BY THE UNITED STATES UNLESS THERE BE STATUTORY PROVISIONS FOR SUCH PAYMENT OR UNLESS THE SAME BE DUE UNDER A CONTRACT AUTHORIZED BY LAW. WHILE THE PAYMENT HERE INVOLVED IS ATTEMPTED TO BE JUSTIFIED ON THE BASIS OF A CONTRACT OBLIGATION, IT IS CLEAR THERE WAS NOT AND COULD NOT BE A LEGAL AND VALID CONTRACT UNDER THE FACTS SUBMITTED. THE STORAGE WAS NOT AUTHORIZED OR APPROVED BY ANYONE IN AUTHORITY OVER THE COLLECTOR BUT WAS FURNISHED ON HIS OWN INITIATIVE. IS ELEMENTARY THAT A CONTRACT REQUIRES TWO OR MORE OPPOSING PARTIES, AND THAT A PERSON CAN NOT CONTRACT WITH HIMSELF EVEN THOUGH HE ACTS ON ONE SIDE IN A REPRESENTATIVE CAPACITY. 13 CORPUS JURIS 261; PAGE ON CONTRACTS, SEC. 1568; 5 COMP. GEN. 94. IT DOES NOT APPEAR IN THE PRESENT CASE THAT AN EXPRESS CONTRACT WAS ATTEMPTED TO BE ENTERED INTO COVERING THE SERVICE, NOR CAN THE PAYMENTS BE JUSTIFIED ON THE BASIS OF AN IMPLIED CONTRACT TO PAY FOR THE USE AND OCCUPATION OF THE PREMISES, FOR THE REASON THAT THE UNITED STATES DID NOT EXPRESSLY OR IMPLIEDLY REQUEST THE USE OF THE PREMISES AND THEREFORE DID NOT BY IMPLICATION PROMISE TO PAY THEREFOR. THE COLLECTOR WAS NOT REQUIRED TO FURNISH OR USE HIS OWN PROPERTY IN THE PERFORMANCE OF HIS DUTIES, AND HIS ACTION IN STORING THE SEIZED BOAT IN HIS OWN BOATHOUSE WAS A VOLUNTARY SERVICE, THE RENDERING OR ACCEPTANCE OF WHICH WAS IN DIRECT CONTRAVENTION OF THE PROVISIONS OF SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49. SEE DECISION OF JULY 7, 1924, A-1788, HOLDING THAT A PHYSICIAN EMPLOYED BY THE VETERANS' BUREAU COULD NOT BE PAID FOR THE USE OF HIS OWN PRIVATE OFFICE FOR THE TRANSACTION OF GOVERNMENT BUSINESS EVEN THOUGH SPACE FURNISHED BY THE GOVERNMENT COULD NOT FOR THE TIME BE UTILIZED. SEE ALSO 2 COMP. GEN. 149 AND 3 ID. 319. FURTHERMORE, THE PAYMENT TO THE COLLECTOR, UNDER THE FACTS STATED, APPEARS SUBJECT TO QUESTION AS IN CONTRAVENTION OF SECTION 1765, REVISED STATUTES, PROHIBITING THE PAYMENT TO ANY OFFICER IN THE PUBLIC SERVICE OF ADDITIONAL PAY, ALLOWANCES, OR COMPENSATION FOR EXTRA SERVICES UNLESS AUTHORIZED BY LAW AND SPECIFICALLY APPROPRIATED FOR. SEE A-9242, MAY 15, 1926, AND RECONSIDERATION THEREOF, OCTOBER 15, 1926, AFFIRMING THE DISALLOWANCE IN THE ACCOUNTS OF THE COLLECTOR OF CUSTOMS AT PORTLAND, EG., FOR PAYMENTS MADE FOR RENTAL OF A BOATHOUSE FROM THE WIFE OF THE ENGINEER OF A GOVERNMENT LAUNCH MOORED THERE.

THE BASIS FOR THE PAYMENT THUS RESOLVES ITSELF INTO ONE OF A POSSIBLE MORAL OBLIGATION, AND THE ACCOUNTING OFFICERS HAVE NO AUTHORITY TO ALLOW CREDIT FOR SUCH PAYMENTS IN THE ABSENCE OF A SPECIFIC APPROPRIATION FOR THE PURPOSE. 5 COMP. GEN. 253. IT MAY BE STATED, ALSO, WITHOUT QUESTIONING THE GOOD FAITH OF THE COLLECTOR, THAT THE CIRCUMSTANCES ARE NOT PARTICULARLY APPEALING AS CREATING EVEN A MORAL OBLIGATION. WHILE UNDER SECTION 605 OF THE TARIFF ACT OF 1922, 42 STAT. 985, THE COLLECTOR IS CHARGED WITH THE CUSTODY OF ALL VESSELS, VEHICLES, MERCHANDISE, AND BAGGAGE UNTIL DISPOSED OF ACCORDING TO LAW, THE DISPOSITION ACCORDING TO LAW IN SUCH CASES AS THIS IS THAT PRESCRIBED IN SECTION 612 OF THE ACT WHEREIN IT IS PROVIDED THAT IF IT APPEARS "THAT ANY VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE SEIZED UNDER THE CUSTOMS LAWS IS LIABLE TO PERISH OR TO WASTE OR TO BE GREATLY REDUCED IN VALUE BY KEEPING, OR THAT THE EXPENSE OF KEEPING THE SAME IS DISPROPORTIONATE TO THE VALUE THEREOF, * * * THE COLLECTOR SHALL * * * PROCEED FORTHWITH TO ADVERTISE AND SELL THE SAME" IF THE APPRAISED VALUE IS LESS THAN $1,000, AND THAT IF IT EXCEEDS $1,000 HE SHALL FORTHWITH REPORT THE MATTER TO THE DISTRICT ATTORNEY "WHO SHALL PETITION THE COURT TO ORDER AN IMMEDIATE SALE," THE PROCEEDS TO BE HELD BY THE COURT PENDING DETERMINATION OF THE CONDEMNATION PROCEEDINGS. THE FACT THAT THE SEIZED BOAT EVENTUALLY SOLD, AFTER ITS PERIOD OF STORAGE BY THE COLLECTOR, FOR LESS THAN 10 PERCENT OF ITS APPRAISED VALUE AT THE TIME OF SEIZURE AND THE STATEMENT THAT OTHER STORAGE COULD BE PROCURED ONLY AT AN EXCESSIVE COST, STRONGLY SUGGEST THAT THE DUTY OF THE COLLECTOR WAS TO DISPOSE OF THE PROPERTY IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTION 612 AND NOT TO AWAIT FORMAL CONDEMNATION PROCEEDINGS UNDER SECTION 610 OF THE ACT. NOR DOES IT APPEAR THAT HIS ACTION CONFERRED ANY BENEFIT ON OR SECURED ANY SAVING FOR THE UNITED STATES. IF THE PAYMENT TO THE COLLECTOR FOR THE STORAGE WERE ALLOWABLE, THE UNITED STATES WOULD NOT DERIVE A SINGLE PENNY FROM THE FORFEITURE OF A BOAT APPRAISED AT $1,800 WHEN SEIZED. WHILE NECESSARY STORAGE PROPERLY CONTRACTED FOR MAY BE PAID FOR UNDER SECTION 613 OF THE ACT FROM THE PROCEEDS OF THE SALE AS AN EXPENSE OF MAINTAINING THE CUSTODY OF THE PROPERTY, IF SUCH CHARGES WERE ALLOWABLE IN THE INSTANT CASE, THE UNITED STATES WOULD BE IN NO BETTER POSITION BY THE COLLECTOR'S ACTION THAN IF HE HAD NOT STORED THE BOAT AT ALL BUT HAD ALLOWED IT TO GO TO RUIN AT THE DOCK. THE ADVANTAGE TO THE UNITED STATES FROM THE STORAGE IN THE COLLECTOR'S BOATHOUSE FOR ALMOST THREE YEARS OF A SEIZED BOAT, FOLLOWED BY A DEMAND FROM THE COLLECTOR FOR EVEN MORE THAN THE NET PROCEEDS OF THE SALE THEREOF FOR STORAGE, IS NOT APPARENT. HENCE, EVEN THE EQUITIES OF THE CLAIM ARE AT BEST DOUBTFUL, ESPECIALLY IN VIEW OF THE SPECIFIC REQUIREMENTS OF SECTION 612 OF THE STATUTE, RELATIVE TO PROMPT DISPOSITION.

HOWEVER, IRRESPECTIVE OF THE EQUITIES OF THE CASE, THE STORAGE WAS VOLUNTARILY FURNISHED AND THERE IS NO AUTHORITY OF LAW TO ALLOW PAYMENT THEREFOR. CREDIT WILL BE ALLOWED IN THE MARSHAL'S ACCOUNT FOR $20, THE AMOUNT PAID BY THE COLLECTOR TO CHARLES C. IVES FOR HAULING OUT AND LAYING UP THE BOAT, BUT CREDIT FOR THE BALANCE OF THE PAYMENT, $102.59, FOR STORAGE FURNISHED BY THE COLLECTOR HIMSELF, MUST BE AND IS DISALLOWED.

WHAT HAS BEEN SAID MAKES IT UNNECESSARY TO CONSIDER FURTHER THE CLAIM OF MR. TULLOCH FOR THE BALANCE OF THE $150 STORAGE CHARGES ASSERTED AGAINST THE UNITED STATES, WHICH CLAIM WAS PROPERLY DISALLOWED IN SETTLEMENT NO. 0161083, NOVEMBER 8, 1926.