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The contract was lawfully annulled for 6 repeated failures to run agreeably to contract." The appellant is not entitled to one month's extra pay. The question, whether the balance of $306.80 found due to the United States can be deducted from any sum which has been, or may be, found due to the contractor for mail service under other contracts, does not now arise. Such question can only be decided by the First Comptroller in case it is presented on appeal from the action which may be taken by the proper Auditor under such other contract. The question, whether such balance of $306.80 can be recovered by judicial action against the contractor, is one which is not to be decided by the First Comptroller.
The following order is made : In the matter of the appeal to the First Comptroller taken by J. E. Reeside from the action of the Auditor of the Treasury for the PostOffice Department in relation to the claims of said Reeside for compensation, &c., for service performed under contract of July 27, 1880, for transporting the mail on route No. 13095 from Elizabeth City, North Carolina, to Williamston, &c.
This appeal came on to be heard on the papers and evidence transmitted to the First Comptroller by the Auditor of the Treasury for the Post-Office Department, and on other evidence introduced by the appellant, J. E. Reeside, and said Reeside having appeared in person and by his counsel, Hon. John J. Weed, and having argued said appeal before the First Comptroller, who being fully advised in the premises:
It is by the said First Comptroller in the Department of the Treasury of the United States considered, ordered, and adjudged, that the action of said Auditor in certifying a balance due for services rendered on said mail-route No. 13095 for the several quarters ended September 30, and December 31, 1880, and March 31, 1881, is ratified, approved, and confirmed ; and that the action of said Auditor in stating an account April 12, 1882, and finding a balance due from said Reeside to the United States of $1,663.21 is reversed and set aside.
And said First Comptroller does now find that the United States is indebted to said Reeside in the sum of $1,607.14 for service under said contract on said route No. 13095 from April 1, to May 30, 1881, inclusive; that the United States has paid thereon to a subcontractor entitled thereto $494.51 ; that the Postmaster General has duly found and ordered that $499.96 should be deducted from the pay of said Reeside as contractor for failures occasioned by the fault of said contractor or carrier to perform service according to contract on said route, over and above all deductious for the price of trips not performed, without reference to such fault, for the period prior to April 1, 1881; and that said Postmaster-General has duly found and ordered that $795.22 should be deducted from the pay of said Reeside as contractor on said route for the price of irips not performed according to said contract between April 1, and May 30, 1881, and that a deduction of $124.25 should be made for failures occasioned by the fault of said contractor or carrier to perform service according to said contract within said period last nained; all of which findings and orders to the extent mentioned, and the action of said Auditor in stating an account on the basis of said findings and orders to the extent stated, are approved, ratified, and confirmed.
And it is further considered, ordered, and adjudged that the United States does not owe, and is not indebted to, said Reeside in any sum whatever on account of said contract, or for service rendered by reason thereof, but that, if, upon the facts stated and found as aforesaid, there may lawfully be due froin said Reeside to the United States any sum, then there should be and is due from him to the United States the sum of $306.80, and it is now so adjudged accordingly.
And, so far as the United States can, upon said facts and judgment, lawfully retain from said Reeside said sum on account of any sum or sums due, or to become due, from the United States to said Reeside, i; is adjudged that the United States shall have such right, and the righ; also, if any can lawfully exist, to maintain an action in any court of competent jurisdiction to recover said sum. And it is adjudged, that, in case the law does not authorize the United States to retain such sun or maintain any such action so mentioned, the rights of said Reeside shall not be prejudiced by the premises.* TREASURY DEPARTMENT,
First Comptroller's Office, May 9, 1883.
NOTE BY FIRST COMPTROLLER.
DEPARTMENT OF JUSTICE,
Washington, Norember 17, 1881. Hon. C. J. FOLGER,
Secretary of the Treasury. SIR: I have considered the case presented in the accompanying letter of the Auditor of the Treasury for the Post-Office Department, dated the 1st instant, which was referred to the Attorney-General by the Hon. H. F. French, Acting Secretary of the Treasury, on the 3d instant, with a request for an opinion upon the question suggested therein. The letter states:
* In a case pending in this office [i, e., office of the Auditor), the pay of & contractor is held to be applied to indebtedness incurred by reason of fines, forfeitures, and penalties, certified to the Auditor by the Postmaster-General, in accordance with the law and a contract entered into with J. E. Reeside, for the transportation of the mails, for the proper performance of which contract Edwin Reeside was one of the sureties. Edwin Reeside is also a contractor for the transportation of the mails, and there not being enongh due J. E. Reeside to cover the indebtedness, the pay of Edwin Reeside, surety, has also been withheld, with the view to protecting the Government from loss on account of the principal.
“Before the service was performed by Edwin Reeside, for which payment is withheld, he gave a pay draft to Joseph Lockey, for money had and received by Reeside to his use, as has long been a custom and usage with contractors for the transportation of the mails; and Mr. Lockey feels aggrieved, and protests against the action of the Auditor in withholding the payment of this draft, with a view to meeting Edwin Reeside's liability to the Government as the surety of J. E. Reeside. As no appeal from the action of the Auditor can be taken to the Comptroller in this case. I desire that you obtain the opinion of the Attorney-General upon the right of the Auditor to withhold payment to a surety, to protect the Government from loss, and the rights of the parties interested, upon the facts as herewith submitted.”
The draft given by Edwin Reeside, contractor, is dated February 17, 1881. It is drawn upon the Auditor in favor of Joseph Lockey or order, and calls for the payment of $987,50 out of any moneys due the drawer on route 1109:3 “for the quarter ending June 30, 1881." By the regulations of the Auditor's Office, drafts of mail contractors on their quarterly pay are not" accepted” but are simply received and placed on file, and they are moreover filed “subject to fines, deductions, collections, the amount due the subcontractor, in accordance with the act of Congress approved May 17, 1878, and any claim or demand the Post-Office Department may have against the contractor." These regulations are printed on the blank form of draft furnished by the Auditor, which was made use of in preparing the draft above mentioned; so that Mr. Lockey must be presumed to have had notice of their pairport when he took the draft.
At the time said draft was drawn by Edwin Reeside, he was a surety on the contract of J. E. Reeside, for transporting the mail on route 13095. In adjusting the account of J. E. Reeside for service performed under that contract for the quarter ending March 31, 1881, the Auditor has found a balance of $1,750.64 due the United States, arising from fines, penalties, and forfeitures incurred by the contractor under the same contract and certified to the Auditor by the Postmaster-General. For this balance, assuming it to be a valid claim against the contractor, Edwin Reeside is liable as his surety.
I am of opinion that the Auditor may lawfully withhold payment of an amount due Edwin Reeside under his contract, sufficient to meet his liability for indebtedness to the Government as surety on the contract of J. E. Reeside. (See McKnight v. United States, 98 U. S. Rep., 179), and that the draft given by the former upon his quarterly pay confers upon the holder thereof no right which prevents such pay being thus withheld. In the first place, the draft is void as an assignment of the fund upon which it was drawn (Spotford v. Kirk, 97 U. S. Rep., 484); and, secondly, the regulations of the Auditor's Office, under which the draft was received and placed on file there, and of which the holder had notice preclude any obligation thence arising that would bind the Government to apply the fund to the payment thereof, in preference to retaining the same, as a measure for its own protection, to offset a liabilitv of the drawer. There was not only no acceptance of the draft by the Auditor, but it was received and filed by him subject to any claim or demand” of the Post-Office Department against the drawer. I am, sir, very respectfully,
S. F. PHILLIPS,
TREASURY DEPARTMENT, November 25, 1881, Respectfully referred to the Auditor of the Treasury for the Post-Office Department.
H. F. FRENCH,
IN THE MATTER OF THE AUTHORITY OF ACCOUNTING OFFICERS TO ADJUST ACCOUNTS FOR EXPENSES INCURRED FOR THE LAST SICKNESS AND BURIAL OF DECEASED PENSIONERS, UNDER SECTION 4718 OF THE REVISED STATUTES.-PENSIONERS' BURIAL EXPENSE CASE.
1. The decision of the Commissioner of Pensions placing a person on the pension roll
and fixing the amount of his pension, is conclusive upon the accounting officers, who, consequently, in settling the accounts of pension agonts, have no authority
to go behind the pensioners' certificate. 2. The general intention of Congress, in the statutes regulating the adjustment of
public accounts, is that all unliquidated demands against the Government shall
be adjusted by the accounting officers. 3, Section 4718 of the Revised Statutes was not intended to restrict or qualify the
declaration contained in section 236, that all demands and accounts whatever
against the Government shall be audited and adjusted in the Treasury.* * Section 236 of the Revised Statutes declares that “all claims and demands whatecer" against the United States "shall be settled and adjusted in the Department of the Treasury," "The same section declares that “all accounts whatever in which the United States are concerned as debtors shall be adjusted” in the same Department. Thus, “ claims and demands” are used to comprehend more than “ accounts." The foregoing opinion of the Attorney-General seems to favor the conclusion that account. ing officers have jurisdiction of unliquidated demands. The same conclusion seems to be supported by Baird v. United States, 96 U.S., 430; s. c. 13 Court Cl., 561. It was held in Printers' Case (2 Lawrence, Compt. Dec., 522), that accounting officers have jurisdiction of nnliquidated demands not sounding in tort. But see Power's case, 18 Court CI., 274, citing Carmack's case, 2 Court Cl., 140; McKee's case, 12 Court Cl., 556; 4 Op. Att.-Gen., 327, 627; 6 Id., 524; 14 Id., 24. The weight of authority is that accounting officers have jurisdiction of all claims of whatever pature which may be lawfully made against the United States. When accounting officers have allowed part of an entire indivisible demand, and the claimant bas received payment thereof without objection, he is estopped from bringing an action for another part of the same demand. Baird r. United States, 96 U. S., 430.
4. The Commissioner of Pensions bas no authority to audit and adjust accounts pre
sented by persons who have borne the expenses of the last sickness and burial
of deceased pensioners under section 4710 of the Revised Statutes. 5. Such accounts must be audited and adjusted by the accounting officers in the
Treasury Department. 6. Accounting officers have jurisdiction of demands for unliquidated damages in those
cases in which claims therefor lawfully exist against the United States.* The following opinion is published, not only for its compact and clear statement of the law applicable to the questions therein directly considered, but because in principle it applies to the adjustment of many accounts.
DEPARTMENT OF JUSTICE,
Washington, 3d August, 1882. SIR: The question presented by the letter of the Second Comptroller, referred to in and accompanying your communication of the 8th of July ultimo, requesting my opinion, is, whether the accounts presented by persons who have borne the expenses of the last sickness and burial" of deceased pensioners, under section 4718 of the Revised Statutes, must be audited and adjusted in the Treasury by the accounting officers after an examination of the original vouchers and papers, or whether the Commissioner of Pensions may determine finally the amount properly due for such expenses, and, by withholding the original vouchers from the accounting officers, compel them to audit and allow such claims upon the mere certificate of that officer.
It is conceded by the Comptroller, in his letter, that the Commissioner of Pensions is authorized to decide who are entitled to be pensioners and the amounts to be paid to them, respectively, as such, and that his decision is, to that extent, conclusive as to the accounting officers; but he insists that claimants for reimbursement of expenses of the last sick. ness and burial of pensioners are not in any sense on the footing of pen. sioners, and that the ascertainment and allowance of the different items of such expenses belongs exclusively to the accounting officers of the Treasury.
Section 4718 of the Revised Statutes provides that when a pensioner or a person entitled to a pension and “having an application therefor pending," sball die, not leaving a widow or child surviving bim, “no payment whatsoever of the accrued pension shall be made or allowed, except so much as may be necessary to reimburse the person who bore the expenses of the last sickness and burial of the decedent in cases where he did not leave sufficient assets to meet such expenses."
It may be assumed as established that the decision of the Commissioner of Pensions placing a person on tbe pension roll and fixing the amount of his pension is conclusive, and, consequently, that in settling the accounts of pension agents the accounting officers bave no authority to go behind the pensioner's certificate.
It must be taken as equally clear, that as the pension law determines the amounts to be paid the various pensioners, the action of the Commissioner of Pensions in allowing or directing payment of a pension cannot be said ever to involve an accounting, in any proper sense of that term.
*The foregoing syllabus of the opinion of the Attorney-General and of the foot-note was prepared by the First Comptroller. The able opinion of the learned AttorneyGeneral is taken from the Annual Report of the Commiss.oner of Pensions for the fiscal year 1882.
As to opinions of Attorney-General to aid an auditor, see 10 Op. Att.-Gen., 48; 11 Op. Att.-Gen., 5, 6; 3 Lawrence, Compt. Dec., Introduction, xvi.
An examination of the various provisions under the title - Pensions” in the Revised Statutes will show that, with the exception of said section 4718, there is not one that calls for the auditing and settling of accounts, and that there is an entire absence of any direct or express intention that the Commissioner of Pensions should have the power to audit accounts.
So far from it, indeed, the law withholds from him the power to administer oaths, which is expressly conferred on the Auditors of the Treas. ury, that they may take testimony "in any case in which they may deem it necessary for the due examination of the accounts with which they shall be charged." (§ 297 R. S.)
Congress has provided an admirable system for the adjustments of public accounts (chapters 3 and 4 R.S.), and has declared 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 Department of the Treasury." ( 236 R. S.) This system has been in operation from the foundation of the Government, and there can be no doubt as to the general intention of Congress that all unliquidated demands against the Government shall be adjusted by the accounting officers forming the system.
Whether we regard sections 4718 and 236 as holding the same relation to one another as when the former was section 25 of the act of 3d March, 1873, and the latter section 3 of the act of 3d March, 1817, or since the enactment of the Revised Statutes as parts of one and the same statute, I perceive no ground wbatever for holding that section 4718 was intended to restrict or qualify the declaration contained in section 236 that all demands and accounts whatever against the Government shall be audited and adjusted in the Treasury.
It is the first duty of the expounder of several cognate statutes, or of several provisions of the same statute, to give them all a harmonious interpretation, and nothing short of some irreconcilable repugnancy can justify him in imputing to the legislature confused or inconsistent intentions.
From the time of the passage of the act of 1873 until a very recent date, according to the Comptroller's letter, these two provisions have been treated as in perfect harmony, and accounts under section 4718 have been audited and adjusted by the accounting officers after an examination of the original vouchers and papers, in the accustomed way, and it is only by a strained construction of this section that any collision between it and section 236 is now produced.
It follows, therefore, that the Commissioner of Pensions has no authority to audit and adjust accounts under said section 4718 R. S.
It is proper to add that my opinion of the 28th April, 1882, which, the Comptroller says, bas been invoked as an authority for the new interpretation of section 4718, does not conflict with this opinion. In the former it was held that Congress intended that a decision of the Commissioner of Pensions as to the amount demandable by a pensioner should be conclusive, while this opinion holds that Congress had no intention to invest that officer with the power to audit and adjust accounts under section 4718.
The language of each opinion must be taken in connection with its subject matter. Very respectfully, your obedient servant, BENJAMIN HARRIS BREWSTER,
Attorney-General. The SECRETARY OF THE TREASURY.