« PreviousContinue »
Your ruling is requested as to whether the administrative determination of duly authorized officers of the War Department, to whom authority is delegated, will be binding and that the freight charges assessed and paid pursuant thereto, will not be subject to suspension or disallowance.
(2) Your ruling is requested as to whether you will approve the payment of freight charges as provided by section 7 (d) of the proposed contract.
(3) Your ruling is requested as to whether you will approve the payment of freight charges assessed by forwarders in accordance with the proposed contract, notwithstanding the fact that the methods of rating and classification of freight forwarders differ from the methods employed in the tariffs of carriers now subject to Federal Regulation.
With reference to the questions so presented it seems appropriate to invite attention to the fact that as stated by a former Comptroller General in a decision, A. D. 6680, May 20, 1922, to a collector of
The function of an advance decision of the Comptroller General is to decide doubtful questions involved in payments to be made by disbursing officers. Such a decision cannot properly be made to cover an advance examination and approval of vouchers which is an auditing function for exercise in the settlement of disbursing accounts.
Your request, therefore, for a "ruling" as to whether this office "will approve" freight charges paid in conformity with the bases suggested in your submission, or that said charges "will not be subject to suspension or disallowance" makes it necessary to point out that while decisions rendered to disbursing officers or heads of departments pursuant to the provisions of section 8 of the Dockery Act of July 31, 1894, 28 Stat. 207, as amended (31 U. S. C. 74), "upon any question involving a payment to be made by them or under them * shall govern the General Accounting Office in passing upon the account containing said disbursement," it has been held uniformly by the accounting officers that advance decisions necessarily are based upon the statement of facts submitted as the basis for the request for advance decision and where the material facts pertaining to a payment made are shown to be otherwise than those on the basis of which the decision was rendered, the decision is not controlling in the audit of the payment so made. Thus, in 22 Comp. Dec. 421, quoting from the syllabus, it was held:
An advance decision by the Comptroller of the Treasury determines only questions of law, not of fact, the conclusion of law being predicated, for the purposes of the decision, upon an assumed state of facts.
The effect of advance decisions, insofar as questions of fact are concerned, was stated therein more specifically as follows:
The decision cited was necessarily based upon the statement of facts submitted.
This office has repeatedly stated that advance decisions which it renders must of necessity be based upon and limited to the particular statement of facts submitted. Principles of law thus decided and announced may be of general application, but questions of fact referred to in such decisions are not decided; but for the purposes of the particular case in hand the statement of fact submitted is and must be accepted. The decision rendered cannot properly be extended and applied to any other case or to the same case when there is
presented a state of facts different from the statement on which the decision is rendered.
It will be appreciated, therefore, that an audit of the paid accounts will be necessary and that where the material facts involved are found to be otherwise than those on the assumption of which the decision was rendered and such as to make inapplicable the principles of law therein applied, such suspension or disallowance as may be necessary on the basis of the actual facts of record will not be precluded by the operation of the advance decision.
Considering now your question whether "the administrative determination of duly authorized officers of the War Department, to whom authority is delegated, will be binding and that the freight charges assessed and paid pursuant thereto, will not be subject to suspension or disallowance" it is to be noted that the decision of May 4, 1942, was based upon the assumption that the transportation services available otherwise than as procurable through forwarders would not afford the expedition of movement requisite for the Government's purposes and that the entire services to be procured from the forwarders were not available at lawfully filed tariff rates. In view of the situation so understood as obtaining you were informed
that where it is administratively determined that the needs of the Government service require a handling by forwarders, in connection with transportation, that is not available at the published tariff rates of the railroads but is procurable from forwarders, an agreement with the forwarders to furnish such transportation service at other than land-grant rates would appear to be authorized; and where the record in connection with disbursements shows that payments for such special services are made pursuant to and in accordance with a contract for the application of agreed rates, this office will not be required to withhold credit for such payments merely because such agreed rates were in excess of net land-grant rates applicable for service over land-grant railroads. This conclusion recognized that the question whether the needs of the Government would require the procurement of a given service is one for determination administratively and it is the purpose of this office to give effect without question to such determination. However, the question whether a service so procured was available at lawfully filed and published tariff rates open to the public is a question of law and, of course, an erroneous administrative determination in this respect would not be controlling upon the accounting officers. In this connection it may be pointed out that the decision expressly assumed that opportunities for the furnishing of special services on the part of forwarders probably would occur either in connection with the assembling of separate lots at origin, or in their distribution at destination, or in the expedition of movement not available otherwise than in forwarder service. There has now come to attention, however, the fact that by virtue of Public Law 558, approved May 16, 1942, 56 Stat. 284, being entitled "An act to amend the Interstate Commerce Act, as amended, to provide for the regulation of freight forwarders,”
it is provided in section 404 (a), that "It shall be the duty of every freight forwarder to provide and furnish, upon reasonable request therefor, the service subject to this part covered by its permit issued under this part," and the requirement is made, as provided in section 405 (a), that "Every freight forwarder shall file with the Commission and print, and keep open to public inspection, tariffs showing its rates and charges for service subject to this part, and all classifications, rules, regulations, and practices with respect thereto." When, therefore, the requirements of these provisions shall have been complied with the situation then existing will be materially changed from that which obtained when this matter received consideration in the decision of May 4, 1942, and the audit of accounts involving payments as for services denominated “special” necessarily will be made in the light of services available at the lawfully filed and published rates of the forwarders involved, effective as of the time of said services.
Paragraph 7 (d) of the proposed agreement referred to in your second question is as follows:
7. Forwarder further offers:
(d) That the maximum rates charged shall be the lowest standard less carload/all-rail rates or charges and that the total charge for a military shipment will not be greater than the charge for a minimum carload of the same freight at the standard carload all-rail rate between the same origin and destination. notwithstanding the existence of lower rail-water or all-water rates.
On the assumption that the service rendered is not available to the public at large on the basis of lower lawfully filed and published tariff rates or charges, no objection is noted to the limitation so imposed. In this connection, attention is invited to Mo. Pac. R. R. Co. v. United States, 71 Ct. Cls. 650, 661, in which it was said "Government officers are without authority to contract for rates higher than those tendered to the public in duly published and authorized tariffs.”
Relative to your third question, if, as apparently must be assumed, the service rendered as special under the contract is not available at rates published "in the tariffs of carriers now subject to Federal Regulation," that is, carriers other than freight forwarders, then the classifications and ratings prescribed for use in connection with said rates would not be controlling upon the charges of the forwarders. In this connection, it is noted that paragraph 6 of the proposed agreement provides for attachment to the agreement of a "complete file of all forwarder's tariffs including name and address of publishing agent, if any" and paragraph 7 (b) of the proposed agreement stipulates that the forwarder offers "To assess charges on military shipments not to exceed those made to any other shipper or receiver for an identical shipment between the same points." It is assumed the purpose of this provision is to protect the Government against the payment of more
than required by the forwarder to be paid by the public at large for like transportation.
Accordingly, subject to the limitations noted above that the service procured is not available at lawfully filed and published tariff rates and that the question of whether the services procured were so available is one of law as to which an administrative determination is not necessarily controlling upon the accounting officers, I find no objection to the matters presented in your questions.
Where, during the present war, unusual conditions prevent Army officers serving overseas from submitting each 6 months the affidavits of dependent mothers required by General Regulations No. 57 in support of claims for increased allowances on account of dependent mothers, the affidavits may be submitted within 2 years from the date of filing the last, but if an officer returns to the United States within the 2-year period, the affidavit should accompany his first pay and allowance voucher after arrival, or if his mother's dependency status changes during the period through remarriage, etc., he should immediately notify the disbursing officer involved to discontinue payments effective from date of cessation of dependency.
Assistant Comptroller General Elliott to the Secretary of War, May 23, 1942: There has been received your letter of April 29, 1942, as follows:
Under the provisions of Paragraph 6d, AR 35-4220, it is required that an officer who is receiving increased allowances because of his dependent mother must submit a renewed affidavit of the mother on the first day of January and the first day of July each year. Many of these officers are now serving overseas, and, in view of the fact that mail communication with many of the overseas stations has been temporarily suspended, it will be practically impossible in such cases for the mother to forward the renewed affidavit to the officer son for submission with his pay voucher.
In view of existing conditions, it is requested that consideration be given to the suspension of the requirement of the above-cited regulation during the period of the emergency, and that this office be authorized to advise disbursing officers that, after the initial approval by your office of a claim for additional allowances because of a dependent mother, payment of such allowances to the officer may continue while he is on overseas service and conditions prevent the filing of the renewed affidavit.
As this is a matter of great concern to the service, a prompt indication of your views will be appreciated.
Standard Form No. 1037, approved by the Comptroller General of the United States September 3, 1926, was prescribed for use of the services coming within the purview of the act of June 10, 1922, 42 Stat. 625, by General Accounting Office General Regulations No. 57, 6 Comp. Gen. 881, Appendix.
Paragraph 3 of the regulations, supra, provides:
3. The affidavit of the mother must be regularly renewed on the 1st day of January and July of each year and submitted with voucher covering period for which claim is first made thereafter, except that when in the interval changes
materially affecting the condition of dependency have occurred a new affidavit will be required and submitted at once.
The purpose of the above-quoted provision is obvious. An officer's mother may have been dependent on him within the meaning of the law at the time she executed her affidavit on Standard Form No. 1037, but subsequent thereto changes may occur which would terminate her dependency on the claiming officer. The 6 months' period for renewal of the affidavit was fixed as a reasonable period of time for requiring evidence that conditions of dependency continue to exist.
Your request that your office be authorized to advise disbursing officers that, after the initial approval by this office of a claim for additional allowances for dependent mother, such payment to the officer may continue while he is on overseas duty and conditions prevent the filing of a new affidavit, would, in effect, require this office to approve payment of the additional allowances for an indefinite period on the basis of facts existing at some time in the past. It has been the uniform practice to authorize such payments only for the period covered by the voucher submitted to this office for decision, with the understanding, of course, that payments for subsequent periods would be passed to credit in the disbursing officer's accounts so long as the periodical affidavits show no change materially affecting the condition of the mother's dependency. However, in view of the unusual conditions under which officers are now serving at some overseas stations and the fact that at such stations the discontinuance of mail communication with the United States will make it practically impossible for the officers serving thereat to obtain the affidavit of their mother for submission with their pay and allowance vouchers, the requirement of this office that a new affidavit of the officer's mother be submitted on January 1 and July 1 of each year after initial approval of the claim will in such cases be modified, to the extent that, during the period of the present war, and as to officers serving at overseas stations with which mail communications are interrupted, the new affidavit will be required to be submitted to this office within 2 years from the date of the last affidavit filed by the officer. In all such cases the officer upon his return to the United States within the 2-year period will be required to submit a new affidavit of his mother on Standard Form 1037 with the first pay and allowance voucher presented by him after his arrival in the United States.
In the event an officer serving at an overseas station where conditions prevent the filing of a new affidavit, receives information that his mother has died, has remarried, or has come into possession of property of a value that would affect her dependency, such officer should upon receipt of such information immediately request the disbursing officer