JANUARY 22, 1924, 3 COMP. GEN. 443

JANUARY 22, 1924, 3 COMP. GEN. 443

PURCHASE OF PASSENGER-CARRYING VEHICLES - EXTRAORDINARY EXPENSE THE PURCHASE, BY INSTALLMENTS CHARGED AS RENT, OF PASSENGER-CARRYING MOTOR-PROPELLED VEHICLES BY A UNITED STATES MARSHAL INCIDENT TO THE ORDINARY CONDUCT OF HIS OFFICE, WHEN NOT SPECIFICALLY AUTHORIZED BY LAW, IS IN VIOLATION OF THE ACT OF JULY 16, 1914, 38 STAT., 508, AND CAN NOT BE LEGALIZED BY THE TAXATION OF THE COST BY THE COURT AS AN EXTRAORDINARY EXPENSE AND THE APPROVAL OF SUCH TAXATION BY THE PRESIDENT UNDER SECTION 846, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JANUARY 22, 1924:

I HAVE YOUR LETTER OF NOVEMBER 8, 1923, INCLOSING A DUPLICATE ACCOUNT COVERING THE SUM OF $150, REPRESENTING THE FINAL PAYMENT ON THE PURCHASE PRICE OF AN AUTOMOBILE FOR THE USE OF THE UNITED STATES MARSHAL OF THE DISTRICT OF PORTO RICO DISALLOWED IN THE ACCOUNTS OF HENRY HINDLE, UNITED STATES MARSHAL FOR THE DISTRICT OF PORTO RICO FOR THE PERIOD JULY 1 TO AUGUST 17, 1922, CERTIFICATE J.F.O.C. 12767, DATED APRIL 24, 1923, WHICH SUM IT APPEARS HAS BEEN SINCE SPECIALLY TAXED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PORTO RICO AS AN EXTRAORDINARY EXPENSE UNDER THE PROVISIONS OF SECTION 846 OF THE REVISED STATUTES, AND APPROVED BY THE PRESIDENT UNDER DATE OF NOVEMBER 1, 1923, AND, IN VIEW OF THIS SUBSEQUENT ACTION, IT IS REQUESTED THAT I REVISE THE ACCOUNT AND ALLOW THE CHARGE, IF OF THE OPINION THE CIRCUMSTANCES WARRANT IT.

THE DISALLOWANCE WAS OF VOUCHER 13 OF MARSHAL HINDLE'S JUNE, 1922, ACCOUNTS, THE OBJECTION BEING STATED THAT IT WAS "PAYMENT ON PURCHASE PRICE OF AUTOMOBILE (CHARGED AS RENTAL FOR MONTH OF MAY, 1922), UNAUTHORIZED.' 38 STAT., 508.

INSPECTION OF THE VOUCHER EXHIBITS THAT IT IS STATED AS "FOR RENTAL OF AUTOMOBILE FOR THE USE OF THE UNITED STATES MARSHAL'S OFFICE FOR THE MONTH OF MAY, 1922," WHILE AN ATTACHED TYPEWRITTEN STATEMENT SIGNED BY MARSHAL HENRY HINDLE OTHERWISE STATES:

THE VOUCHER HEREWITH COVERS THE LAST PAYMENT MADE ON THE CAR AS RENTAL, AUTHORITY FOR THE PAYMENT OF WHICH WAS OBTAINED BY MY PREDECESSOR, W. R. BENNETT, FROM THE ATTORNEY GENERAL, AND INCLUDES THE PERIOD OF USE FROM MAY 1, 1922, TO JUNE 13, 1922, THE DATE OF SALE OF SAID AUTOMOBILE EFFECTED UNDER DIRECTION OF THE ATTORNEY GENERAL.

IN CONTRADICTION TO THIS LATTER STATEMENT IS A FORM OF REQUEST SIGNED BY W. R. BENNETT, DATED DECEMBER 30, 1919, APPLYING FOR AUTHORITY TO INCUR EXPENSE:

FOR RENTAL OF FRANKLIN CAR, AT RATE OF $150.00 PER MONTH, FOR OFFICIAL USE OF MARSHAL'S OFFICE FOR THE DISTRICT OF PORTO RICO.

NECESSITY EXPLAINED IN PREVIOUS CORRESPONDENCE. REQUEST NOW MADE ON THIS FORM IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN DEPARTMENT COMMUNICATION OF DECEMBER 17, 1919, MARGINAL INITIALS ,MCC,-CS-ENB.'

AUTHORIZATION OF THIS EXPENDITURE BEARS APPROVAL OF THE DEPARTMENT OF JUSTICE DATED JANUARY 12, 1920.

IT IS DISCLOSED THAT IN REALITY TWO AUTOMOBILES WERE PURCHASED UNDER THE PLAN AS AUTHORIZED, THE CORRESPONDENCE REVEALING THAT THE FIRST CAR WAS REFINISHED AND SOLD FOR $575, AND THE RECEIPTS APPARENTLY APPLIED IN PART PAYMENT OF A SECOND CAR, LEAVING A BALANCE OF $955, THAT WAS TO BE PAID FOR AS IF RENTAL.

THE ACT OF JULY 16, 1914, 38 STAT., 508, PROVIDES:

SEC. 5. NO APPROPRIATION MADE IN THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR THE PURCHASE OF ANY MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER -CARRYING VEHICLE FOR ANY OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS, OR ANY BRANCH OF THE GOVERNMENT SERVICE, UNLESS SPECIFIC AUTHORITY IS GIVEN THEREFOR, AND AFTER THE CLOSE OF THE FISCAL YEAR NINETEEN HUNDRED AND FIFTEEN THERE SHALL NOT BE EXPENDED OUT OF ANY APPROPRIATION MADE BY CONGRESS ANY SUM FOR PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE PUBLIC SERVICE OF THE UNITED STATES UNLESS THE SAME IS SPECIFICALLY AUTHORIZED BY LAW, * * *.

THUS NOT ONLY HAS THE PURCHASE OF ANY MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLE BEEN PROHIBITED FOR ANY BRANCH OF THE GOVERNMENT SERVICE BY THIS ACT, 21 COMP. DEC., 14, BUT ALSO THE PROHIBITION EXTENDS TO EXPENDITURES OF ANY SUM FOR MAINTENANCE, REPAIR OR OPERATION OF VEHICLES OBTAINED CONTRARY TO SUCH PROHIBITION. 95 MS. COMP. DEC., 24. IN THIS CONNECTION IT HAS BEEN HELD ALSO THAT THE HIRING OF AN AUTOMOBILE BY THE MONTH OR YEAR WOULD BE AN EVASION OF THIS LAW, INASMUCH AS HIRING MIGHT BECOME EQUIVALENT TO PURCHASE, AND A CONTINUOUS HIRING UNDER SUCH CONDITIONS WAS UNAUTHORIZED. 21 COMP.DEC., 462; ID., 560. IS EVIDENT FROM THE CORRESPONDENCE INVOLVED THAT ALL PARTIES TO THIS TRANSACTION WERE AWARE OF THE STATUTORY PROHIBITION, YET, NOTWITHSTANDING WHICH, THE ARRANGEMENT WAS MADE AS STATED. UPON DISCOVERY OF THE TRUE CIRCUMSTANCES, CREDIT WAS DISALLOWED OF THE UNAUTHORIZED DISBURSEMENT, BUT IT IS NOW SOUGHT TO REMOVE THIS BY RESORTING TO HAVING THE PAYMENT APPROVED BY THE EXECUTIVE UNDER A SPECIAL TAXATION OF THE DISTRICT COURT IN ACCORDANCE WITH WHAT EVIDENTLY IS A MISCONCEPTION OF THE PURPORT OF SECTION 846, REVISED STATUTES, PROVIDING:

THAT WHERE THE MINISTERIAL OFFICERS OF THE UNITED STATES HAVE OR SHALL INCUR EXTRAORDINARY EXPENSE IN EXECUTING THE LAWS THEREOF, THE PAYMENT OF WHICH IS NOT SPECIFICALLY PROVIDED FOR, THE PRESIDENT OF THE UNITED STATES IS AUTHORIZED TO ALLOW THE PAYMENT THEREOF UNDER THE SPECIAL TAXATION OF THE DISTRICT OR CIRCUIT COURT OF THE DISTRICT IN WHICH THE SAID SERVICES HAVE BEEN OR SHALL BE RENDERED TO BE PAID FROM THE APPROPRIATION FOR DEFRAYING THE EXPENSES OF THE JUDICIARY.

THE DISBURSEMENT HEREIN CONCERNED IS NOT AN EXTRAORDINARY EXPENSE IN CONTEMPLATION OF THE ACT CITED SUPRA, FOR IT RELATES MERELY TO THE CURRENT REQUIREMENTS OF THE OFFICE IN A GENERAL WAY AND NOT TO THE EXTRAORDINARY CIRCUMSTANCES OF AN EXCEPTIONAL CASE REQUIRING UNUSUAL MEANS. THIS DISTINCTION HAS BEEN APTLY DIFFERENTIATED BY THE COURT IN THE CASE OF UNITED STATES MARSHAL EDWARD ALBRIGHT, MIDDLE DISTRICT OF TENNESSEE, THE SUBJECT OF A DECISION DATED OCTOBER 22, 1921, 2 MS. COMP. GEN., 938, WHICH WAS THE CASE OF A DEPUTY MARSHAL AND UNITED STATES COMMISSIONER TRAVELING UNDER DIRECTIONS OF THE DISTRICT ATTORNEY AS GUARDS WITH SOME PLATINUM NECESSARILY TO BE ASSAYED IN CONNECTION WITH THE PROSECUTION OF A CASE, THE EXPENSES OF WHICH WERE DIRECTED BY THE ATTORNEY GENERAL TO BE PAID BY THE MARSHAL AFTER HAVING BEEN SPECIALLY TAXED BY THE COURT UNDER THE PROVISIONS OF SECTION 846, REVISED STATUTES. THE COURT DENIED THE REQUEST FOR SPECIAL TAXATION, THE REASONS THEREFOR BEING IN PART AS FOLLOWS:

THE MARSHAL HAS PRESENTED A CERTIFICATE CONTAINING AN INFORMAL REQUEST THAT THE COURT SPECIALLY TAX, UNDER R.S. 846, TWO ITEMS OF EXPENSE AGGREGATING $313.59, INCURRED BY HIM FOR GUARDS EMPLOYED TO TRANSPORT CERTAIN PLATINUM FROM NASHVILLE, TENN., TO WASHINGTON, D.C.

ASSUMING THAT FOR PRESENT PURPOSES THESE EXPENSES WERE INCURRED BY THE MARSHAL IN CONNECTION WITH THE PERFORMANCE OF SERVICES RENDERED IN EXECUTING THE LAWS OF THE UNITED STATES AS THE CUSTODIAN OF THE PLATINUM COMMITTED TO HIS CHARGE, IT NEVERTHELESS APPEARS THAT, IN ITS ESSENCE, THESE EXPENSES WERE MERELY ORDINARY EXPENSES INCURRED, AT THE INSTANCE OF THE DISTRICT ATTORNEY, AND UNDER THE AUTHORITY OF THE ATTORNEY GENERAL, TO ENABLE THE DISTRICT ATTORNEY TO MORE EFFICIENTLY PREPARE FOR THE PROSECUTION OF THE CHARGES AGAINST THE PERSONS COMMITTED FOR TRIAL. EXCEPT IN THEIR AMOUNT AND IN THE FACT THAT THEY WERE NOT INCURRED DIRECTLY BY THE DISTRICT ATTORNEY BUT BY THE MARSHAL AT HIS INSTANCE,THEY DIFFER IN NO RESPECT FROM ANY OTHER INCIDENTAL EXPENSE INCURRED BY THE DISTRICT ATTORNEY IN THE PREPARATION OF CASES FOR TRIAL. IT HAS NEVER BEEN THE CUSTOM TO HAVE SUCH EXPENSES OF THE DISTRICT ATTORNEY SPECIALLY TAXED BY THE COURT AND SUBMITTED TO THE PRESIDENT FOR ALLOWANCE UNDER R.S. 846 AS A CONDITION PRECEDENT TO THEIR PAYMENT. ON THE CONTRARY SUCH EXPENSES ARE CUSTOMARILY PAID OUT OF THE USUAL CURRENT APPROPRIATIONS, UPON THE AUTHORITY OF THE ATTORNEY GENERAL ALONE. IT HAS NOT BEEN POINTED OUT THAT THERE IS ANY LACK OF A GENERAL APPROPRIATION UNDER WHICH THESE EXPENSES CAN BE PAID AS ANY OTHER ORDINARY EXPENSES OF THE DISTRICT ATTORNEY UPON THE AUTHORIZATION OF THE ATTORNEY GENERAL, AND OUT OF THE GENERAL APPROPRIATIONS SUBJECT TO HIS CONTROL, SUCH AS THE APPROPRIATION FOR THE FEES AND EXPENSES OF THE DISTRICT ATTORNEYS. ON THE CONTRARY AND IN THE LIGHT OF THE PUBLIC POLICY, WHICH WOULD PREVENT SUCH CONSTRUCTION OF R.S. 846 AS WOULD REQUIRE ORDINARY EXPENSES OF THIS CHARACTER TO BE EXAMINED AND APPROVED BOTH BY THE COURTS AND BY THE PRESIDENT BEFORE PAYMENT, I AM OF OPINION THAT THE EXPENSE ITEMS IN QUESTION ARE NOT TO BE HELD "EXTRAORDINARY" EXPENSES REQUIRING OR JUSTIFYING SPECIAL TAXATION BY THE COURT UNDER THE STATUTE IN QUESTION, BUT ARE ORDINARY EXPENSES TO BE PAID IN THE USUAL COURSE OF PROCEDURE.

THE MARSHAL'S REQUEST FOR THE SPECIAL TAXATION OF THESE EXPENSE ITEMS IS HENCE DENIED.

THE PURPOSE OF THESE AUTOMOBILES WAS A GENERAL ONE INCIDENT TO THE CONDUCT OF THE AFFAIRS OF THE UNITED STATES MARSHAL'S OFFICE, THE EXPENSES OF WHICH ARE PROVIDED FOR BY ANNUAL APPROPRIATIONS, WITH NO SPECIFIC PROVISION, HOWEVER, FOR THE PURCHASE, ETC., OF AUTOMOBILES, AS REQUIRED BY THE ACT OF JULY 16, 1914, TO AUTHORIZE SUCH EXPENDITURES.

AS THE USUAL EXPENSES OF THE MARSHAL'S OFFICE PROVIDED IN THE APPROPRIATION,"SALARIES, FEES, AND EXPENSES OF MARSHALS, 1922," INCLUDE NECESSARY TRANSPORTATION, THE CHARACTER OF THE EXTRAORDINARY EXPENSES CONTEMPLATED BY SECTION 846, R.S., TO ARISE THROUGH SOME EXIGENCY TO MEET WHICH THE EMERGENCY MEANS WERE PROVIDED, CAN NOT BE ACQUIRED BY AN OBLIGATION INCURRED THROUGH THE ATTEMPTED TRANSMUTATION OF AUTHORIZED TRAVEL INTO A VEHICLE FOR GENERAL TRANSPORTATION. THEREFORE THE DISALLOWANCE BY THIS OFFICE OF THE PAYMENT AS FOR THE PURCHASE OF AN AUTOMOBILE WAS EMINENTLY CORRECT.

THE IMPRESSION IS STRONG THAT THE EXECUTIVE WAS NOT MADE ACQUAINTED WITH THE TRUE CIRCUMSTANCES OF THIS CASE, AND HAS IN CONSEQUENCE BEEN LED INTO EXERCISING THE SPECIAL POWERS CONFERRED BY SECTION 846, REVISED STATUTES, FOR PURPOSES NOT WITHIN THE INTENDMENT OF THAT ACT.

ON THE FACTS APPEARING THE DISALLOWANCE MUST STAND AND THE MATTER BE REPORTED TO THE CONGRESS AS AN EXPENDITURE MADE IN VIOLATION OF LAW, PURSUANT TO SECTION 312 (C) OF THE ACT OF JUNE 10, 1921, 42 STAT., 26.