any activity of the Post Office Department when the damage did not exceed $500. However, it was held in a decision of March 5, 1923, by former Comptroller General McCarl to the then Postmaster General, that by reason of the later act of December 28, 1922, 42 Stat. 1066, conferring authority upon the head of each department and establishment to consider, ascertain, adjust, and determine any claim accruing after April 6, 1917, on account of damages to or loss of privately owned property, where the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment and to certify the same to the Congress, claims based on negligence, insofar as property damage was concerned, were thereafter not for consideration under the act of June 16, 1921, but instead were for consideration under the act of December 28, 1922, 42 Stat. 1066, 2 Comp. Gen. 529. Subsequently, the act of June 16, 1921, was amended by the act of June 22, 1934, by adding the provision expressly including claims based on negligence otherwise within the act.

The provisions of the act here involved, as amended June 22, 1934, appear to be substantially similar, insofar as claims based on negligence are concerned, to those of section 26 of the Emergency Relief Appropriation Act of 1939, 53 Stat. 936, which provides:

The Commissioner and the National Youth Administrator are authorized to consider, ascertain, adjust, determine, and pay from the appropriation in section 1 or section 2 hereof any claim arising out of operations thereunder accruing after the effective date of this joint resolution on account of damage to or loss of privately owned property caused by the negligence of any employee of the Work Projects Administration or the National Youth Administration, as the case may be, while acting within the scope of his employment. No claim shall be considered hereunder which is in excess of $500, or which is not presented in writing within one year from the date of accrual thereof. Acceptance by a claimant of the amount allowed on account of his claim shall be deemed to be in full settlement thereof, and the action upon such claim so accepted by the claimant shall be conclusive.

The question whether claims of insurance companies as subrogees might be considered under the quoted provisions of the Emergency Relief Appropriation Act of 1939 was considered in a decision of November 18, 1939, by former Comptroller General Brown to the Federal Works Administrator, reported in 19 Comp. Gen. 503, and referred to in your letter, wherein it was held that, for reasons stated in the decisions, claims of insurance companies or other subrogees of persons whose property had been damaged as a result of negligence of employees of the Work Projects Administration while acting within the scope of their employment were for consideration under said section 26 of the Emergency Relief Appropriation Act of 1939. The reasons for the conclusion there reached were, briefly, (1) that the provision there involved expressly covered "any claim" of $500 or less of the class described in the act; (2) that, as a matter of general law, an insurance company which pays valid claims for loss

or damage to privately owned property pursuant to the requirements of an insurance contract with the injured party is entitled to be subrogated to the rights of the insured against the person legally responsible for the loss; and (3) that the Congress had sanctioned the payment of claims of insurance companies reported to it under the act of December 28, 1922, referred to above, which by its express terms related to "any claim" on account of damages to or loss of privately owned property caused by the negligence of any officer or employee of the Government acting within the scope of his employment-provisions comparable to those in section 26 of the Emergency Relief Appropriation Act of 1939, insofar as the question as to whether claims of subrogees are within its scope is concernedthus indicating legislative approval of the view that subrogation claims, if otherwise proper, are within the 1922 act.

The reasoning in the decision in 19 Comp. Gen. 503, and the conclusion there reached appear to be equally applicable to the present matter. The statute here, as there, provides for the consideration by the administrative official designated therein-in this case, the Postmaster General-of "any claim" of the class described in the act, while under the act here involved the authority to adjust and settle claims thereunder is not such as in itself to create a legal liability against the Government enforceable by legal process-which is also the case with respect to claims under the 1922 and the 1939 acts referred to above-there appears nothing in the act here involved to indicate an intention that the general rule of subrogation stated in the decision in 19 Comp. Gen. 503 and referred to above, should not be regarded as applicable with respect to claims filed under said act. On the contrary, as was said in the cited decision with respect to the act there involved, the use of the broad and comprehensive term "any claim" in the act here involved would appear to cover all claims of the class described in the act when filed by any person to whom the United States would have been liable prior to the enactment of the act but for its sovereign immunity.

You ask, also, whether subrogation claims may be given favorable consideration under the 1921 act, as amended, whether or not there is a definite finding of negligence on the part of the Government employee involved. With reference to this phase of the matter, it may be said that the general right of subrogation is not confined to cases involving negligence. Broadly speaking, the doctrine of subrogation extends to one, who, by reason of a legal obligation to do so, pays the debt of another to a third party. For a general discussion of the doctrine of subrogation, see Aetna Life Insurance Company v. Middleport, 124 U. S. 534; Prairie State Bank v. United States, 164 U. S. 227; 60 Corpus Juris 694, et seq. Under the doc

trine as applied to insurers, it is the general rule that where an insurer under a contract of indemnity pays his insured a loss caused the latter by a third party, the insurer is subrogated to the rights of the insured against such third party. See 33 Corpus Juris 43. Also, the act here involved, as amended, is not confined to the consideration of claims based on negligence but is of a broader scope in that it covers any claim for damage to person or property not in excess of $500 when caused under conditions therein mentioned and found by the Postmaster General upon investigation to be a "proper charge" against the United States. It would seem clear, therefore, that in the case of damage to person or property occurring under such circumstances as to make a claim therefor by the party sustaining the damage properly for consideration and allowance under the act, whether based on negligence or not, a party who, by reason of a legal obligation to do so, paid such damage to the party sustaining the same, may be regarded as a proper claimant by subrogation. In this connection, however, it may be said that no situation readily suggests itself which might arise whereby a claim for damage to person or property arising from the operation of a mail truck could arise unless based on negligence-even though not on the part of the operator of the truck-since it is the apparent purpose and intent of the act that such a claim would be for consideration and allowance only if the circumstances were such as to create a legal liability for such damage were the Government subject to suit in such a matter. Therefore, it seems clear that there is no basis for a claim in such a case by a party as subrogee unless the damage was due to negligence with which the Government would be chargeable were it subject to suit, since such party would be entitled to no greater consideration as a claimant than the party sustaining the damage. And even in such a case, that is, a claim based on negligence, any allowance to a party claiming as subrogee would be limited to such of the items of damage he was obligated to pay and in fact paid to the person sustaining the damage as would be for consideration and allowance under the act to the person sustaining the damage were he the claimant. Standard Marine Ins. Co. v. Scottish Metropolitan Assur. Co., 39 F. (2d) 436.

With reference specifically to whether the State Compensation Insurance Fund of the State of California may be recognized under the act here involved as the subrogee of the party referred to in your letter who is said to have been insured in an accident involving a United States mail truck, there are necessarily for consideration the rights which an insurer may have under the laws of California relating to workmen's compensation insurance against a third person causing injury to an employee of the insured. In this connec

tion, an examination of the labor code of the State of California discloses the following provisions under division IV thereof relating to workmen's compensation insurance:

3211. "Insurer" defined. "Insurer" includes the State Compensation Insurance Fund and any private company, corporation, mutual association, reciprocal or interinsurance exchange authorized under the laws of this State to insure employers against liability for compensation and any employer to whom a certificate of consent to self-insure has been issued. [Enacted 1937.]

3850. Definitions. As used in this chapter:

(a) "Employee" includes the person injured and any other person to whom a claim accrues by reason of the injury or death of the former.

(b) "Employer" includes insurer as defined in this division. [Enacted 1937.]

3852. Action against third persons; Right of employee and employer. The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, may likewise make a claim or bring an action against such third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he was liable including all salary, wage, pension, or other emolument paid to the employee or to his dependents. [Enacted 1937.]

It is thus expressly provided by the laws of California that the claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from injury or death against any person other than the employer, and that any employer who pays or becomes obligated to pay compensation may likewise make a claim or bring an action against such third person. Also, it expressly appears therefrom that "employer" includes an insurer, and that the latter includes the State Compensation Insurance Fund.

It would seem apparent, under the foregoing provisions, that an insurer who pays or is obligated to pay compensation to an insured employee is entitled to assert, by subrogation, any claim or right of action against a third party causing the injury to such employee which such employee may have against such third party, with the right to recover damages as prescribed in the statute. It is also clear that a person sustaining damage as the result of the activities of the Post Office Department under facts and circumstances which would give such person a right of action therefor against the Government if the Government were subject to suit in such a matter would be a proper claimant under the 1921 act, as amended, where the award for such damage did not exceed $500.

Therefore, in view of the provisions of the California law abovequoted, and since claims by subrogees may, as hereinabove indicated, be regarded as within the 1921 act, as amended, an insurer under the workmen's compensation laws of California properly may be regarded as a claimant by subrogation under the 1921 act, as amended, where

the claim is based on facts and circumstances which would give the employee sustaining damage a right of action therefor against the Government if the Government were subject to suit in the matter by such injured party. It should be further pointed out, however, that in determining the amount of any award which might be made to such an insurer, consideration should be given to only such of the items as an insurer would be entitled to recover, as set forth in section 3852 of the labor code of the State of California, quoted above, in a suit under that section, as would be for consideration and allowance in a claim. filed under the 1921 act, as amended, by the person sustaining the damage, and should, of course, in no event exceed $500, and any amount paid should, of course, be in full settlement of all claims in the matter.

(B-20628)

COURTS COSTS-GOVERNMENT LIABILITY-PAUPER PROCEEDINGS A judge in a District Court of the United States has no authority under the act of July 20, 1892, as amended, relating to actions in courts of the United States by poor persons, to order the payment by the United States of the costs of taking testimony on behalf of a poor defendant by deposition of absent witnesses, nor may the judge authorize the advance of public funds to prepay such costs with subsequent reimbursement to the Government by the defendant.

Comptroller General Warren to the Attorney General, October 18, 1941:

I have your letter of September 17, 1941, as follows:

Transmitted herewith, approved for payment from the appropriation "Miscellaneous Expenses, United States Courts (transfer to Justice), 1940," if legally payable, is the voucher of Mr. H. V. Abel, 303 Fourth and Cherry Building, Seattle, Washington. It represents the sum of $29.50 for taking and transcribing a deposition in the case of United States versus George H. Brinkler, pursuant to court orders dated February 23 and April 24, 1940.

It will be observed that the orders relied on sections 644, 646 and 832 of Title 28, United States Code, as authority for charging the cost of the deposition to the United States.

The determination in this case is of interest in establishing the principle and will control payment of a number of other like accounts growing out of the same case and based on the same or similar orders. It was the Department's original position that expenses of taking depositions could not be charged against the United States if the witnesses could not be compelled to appear pursuant to Section 656, Title 28, United States Code; or in other words, that the language could not be borrowed so as to charge the United States with deposition expense if the witnesses are outside the territorial limits fixed by the statute.

A prompt determination will be appreciated.

By the terms of section 866 of the Revised Statutes (28 U. S. C. 644), authority is vested in the District Courts of the United States to direct that depositions be taken in certain cases. In section 868 of the Revised Statutes (28 U. S. C. 646) provision is made as to the method and manner of taking such testimony. However, no provision is made in either of these sections for payment by the United States of the cost of taking such depositions, and it is well