Reply Brief — Stollings v. United States

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' ILE CUrRY PIL

APR 14

CHARLES [Laors

Supreme Court if the United States

Ocroser Trrm, 1947.

No. 526

THE UNITED STATES OF AMERICA, Petitioner,

vs.

CHARLES KRUSZEWSKI.

Response to Petition for a Writ of iorari to the United

States Circuit Court of Appeals for the Seventh Circuit.

Law Office of:

Joun V. CLINNIN,

Attorney-at-Law, Of Counsel.

/ Jutius L. Kapaker,

Counsel for Respondent,

Member of the Bar of the Supreme

Court of the United States.

.* Samurt 8. Brown,

Attorney-at-Law,

Ali of Chicago, Illinois.

11 So. La Salle Street.

Scheffer Printing Company, Del, 717!

a

INDEX

PAGE

I. Opinion .. ; 1

TA, GURRID ccetseneseteennieneniagnins 1-2

III. Questions Presented ............. ciclo ae 2

IV. Statutes, Rules and saudittens ti Involved ............ 2-3

VV, CRRRIINIIE wcenicsetpnsentonsesngrnnarenteentannennvinsiananineny gonsnerens 3-4

VI. The writ should be demied ...................cccssssssssscsssseees 4

A. The statutory provisions and Rules of the

House of Representatives eliminated by peti-

tioner (5 U.S.C. 266-cross reference 31 U.S.C.

714 and Sees. 837 and 838 of House Rule X XI)

clearly defeat petitioner’s alleged issue con-

testing the finality of adjudication of ‘‘claims

audited under authority of law.”? «0... oo

B. Petitioner’s claim as to the alleged incon-

sistency and invalidity of 31 U.S.C.A. 74, after

checking all available sources with the Com-

mittee on the Revision of Laws, House Judi-

ciary, and the Official Codifiers and Custodian

of the Statutes, is unfounded and is still con-

eidered elaine BP enenninnittianin 14

C. The decision below conforms to the applicable

statutory provisions and House rules as well

as to decisions of this Court; is not in con-

flict with decisions rendered by other Circuit

Courts, and does not involve principles of far-

reaching effect, overthrow administrative fis-

cal construction or diminish the power of the

Comptroller General . istnnnpnnapdiions 18

i ; 20

EEN PE RRS EE ETT FO OT

ii

CrraTIONs.

CasEs.

Beebe 0. Ti, ., BF ed. BA GIG wc censesnccscscsccsscvecesocvercoysconosnese 18

Buchanan v. Patterson, 190 U. S. 353 .......cccceseseseeeeeeees 11

Furness, Withy & Co. v. Yang Tsze Insurance Co.,

Be MG I I ascliichs sSicheiestsinoidsonhawnnidbbehtetaneitinth athotnsucinenshicnsiblits 4

Smith v. Jackson, 246 U. S. 388 ........sscssssesessesseeeseeseens 20

United States v. Louisville, 169 U. S. 249 ........ 10, 11, 12, 13

United States v. Olmstead, 118 Fed. 433 ..0..... cess 7,18

United States v. Price, 116 U.S. 43 «0... 9, 10, 11, 12, 13

United States v. Riner, 230 U. S. 547 wc seseseeeeeenees 20

STaTUTEs.

Act of June 20, 1874, Sec. 5, 18 Stat. 110, as amended,

a MI ieeieieiedicentieeandipestnttsaansnanansniccnnnonsssagnetenemnedet 2, 5,13

Act of July 7, 1884, c. 334, par. 1, 23 Stat. 254, 5 U.S.C.

BUT wekasshectboaasseidlatuaindseesigheesbenceastavindnsvevipits 2, 4, 5, 6, 8, 10, 13, 19

Act of June 14, 1878, c. 191 par. 4, 20 Stat. 130, as

amended, 31 U.S.C. 714 .....ccccsscseesesees 2, 4, 5, 6, 9, 10, 13,19

Act of March 26, 1934, c. 87, 48 Stat. 466, as amended,

TN iad Fi cals ct scinisinintaasupieentdicnisdieadsssaipdanemmaeenns 2, 5,6

Budget and Accounting Act of June 10, 1921, c. 18,

SO ee ie Rs OD eiiisttsansnsissescccssnsnenincorrcesatve 2, 3, 5, 14, 15, 16

Dockery Act of July 31, 1894, c. 174, sec. 8, 28 Stat.,

SESE GS ere ereeee 2, 3, 8, 9, 14, 16

First Deficiency Appropriation Act, 1938, ¢. 42, 52

I IN atti crcnenctinsinneetisneninmananasevesssnsisnsensgenssanes 3,7

First Deficiency Appropriation Act, 1945, c. 95, 59

Bg gy eae i sce UI OO GE tp tsnscncccsnsocccncessescsssccsnees 19

Act of March 3, 1871, c. 116, s. 2, vol. 16 Rev. Stat. ...... 9

Act of March 3, 1875, 18 Stat. 637, 646, ¢. 205 0.0... 9

Act of March 3, 1891, c. 540, 26 Stat. 862, 867 ............... 10

Joint Resolution of March 3, 1929 (H. J. Res. 399—Pub.

Res. 101) c. 586, 45 Stat. 1540, 1541 (2a) wees 16

ili

PAGE

The ED ssetiesicsnerniidiinicatpuih viciouiieianicbilaianbinimabiaciions 20

BU Ti eatin’ FA. Sidiessecsnihukeccsleenlocalsmsaieiasatteomiandeeddaesrasteiaibecinta’ 13, 14

Bh UE FE Gi vcsccsicnin 10, 13

Bh TR Ck cciesinintes sersdnneinide 3, 7, 13, 14, 15, 16, 17, 19

BE SEGA EE seinsdinsicinsinwicinasnesnseeniioadiokennailansmabismnalinn tie 13

BS GARAas SIE iniinesnnisestintnacnieninnibabdsebb ia iacidsiianiaanan tat 13

A CER CGF :sostendckacheisentciiulinigbiaunniaciaiekiiaai ite aca oa 2, 5, 13

BE SEs TUNE accirenciatineentsisiiaieteae 2, 4, 5, 6, 9, 10, 13, 19

MisCELLANEOUS,

A Corman Fi FO aii cisceriiincecs anihcesciaicitegeeciccscencecnstetcinins 17

Hixecutive Order 6657-A, March 27, 1934 ......ccccccssssseeees 3

House Executive Document No. 260, 51 st. Congr. 2d

Vs. TAR xceninsssisteivnisiiveernitiunaasighecdeatlalilastaabadnabiiabaniadaneiciamanialaa 10

House Document 498, 75th Congress, 3d Sess. ............. 2,6

United States Code Annotated (1926) Historical Note-

I: SEs: TOR Sasanccctiatnsliccepichinbaibaitakaniaatibsaahbiabcieisaciiciand 15

Parallel Reference Table II in U. S. Codes showing

unrepealed statutes ........... 19) eishaisiniaansienniaaapiniaiplliicsdiaits 16

Constitution, Jefferson’s Manual and Rules of the /

House of Representatives of the United States, /

Seventy-Fifth Congress, House Document No. 496,/

Bh SIRs, Fe I TUE I | cssienicrintiiaesnietniciindbeanbiiniasatarcaiasaciie 2, 7-8

Hinds’ Precedents of the House of Representatives,

PUNE. 2: wececsecneiqpacssnbacieasnnaibededaislenteisiniehancntaadaenstiasersdie 8

Code of Federal Regulations of the United States

(1939) Title 4, Accounts, Chapter 1, General Ac-

counting Office, Part 2, Revision, Reopening, Review

OF Hotilomontes, Boctiow B.2! ..aciscsceacscscsvcocecsessrarmsrsevecoces 17

Preface to the First Edition of the U.S. Code 1926 ed... 16

Vth Supp. to U. S. Code (1926) issued in 1931 (p. 493)-

re-stating Sec. 74 U.S.C. 31 to express ‘‘existing

SET” sistaissansedssicnsinhintaiinanleibtagbahigheiaieiinesiacsiendinntadsnivioniinadiobiien 16, 17

Constitution of the United States:

te ts Si RINNE TF ansnceitinininshiaheriicticibinsesenidinineissiians 12

VER AMOPRORE oicccccscssccescccseccocscoeee LEE ACORN vat 18

IN THE

Supreme Court of the United States

Ocroser Term, 1947.

No. 526

THE UNITED STATES OF AMERICA, Petitioner,

vs.

CHARLES KRUSZEWSKI.

Response to Petition for a Writ of Certiorari to the United

States Circuit Court of Appeals for the Seventh Circuit.

Respondent respectfully submits to the Supreme Court

of the United States and the Honorable Justices thereof,

his opposing brief in the above-entitled case.

I. Opinion.

The District Court did not write an opinion. The opin-

ion of the Circuit Court of Appeals for the Seventh Cir-

cuit (Evans and Major, Circuit Judges, and Lindley, Dis-

trict Judge; Circuit Judge Major, writing) was filed on

October 13, 1947 and appears at pages 142 to 147 of the

record. It is reported in 163 Fed. 2d, 884.

II. Jurisdiction.

The judgment was entered on October 13, 1947, Juris-

diction is invoked in petition under the provisions of

_

Act of February 13, 1925 (347 U.S.C.A. Title 28).

III. Questions Presented.

1. Whether the deficiency appropriation act was such

an adjudication by Congress of respondent’s claim as

will bar a reopening and revision of the settlement of

that claim by the Comptroller General.

2. Whether the limitation of one year, contained in

Section 8 of the Dockery Act of 1894, on the time within

which the Comptroller cf the Treasury could revise the

settlement of a public account is properly applicable to

the Comptroller General, as it has been made applicable

in the codification of that section and Section 304 of the

Budget and Accounting Act of 1921, 31 U.S.C. 74, so as

to bar a revision of the settlement of respondent’s claim.

IV. Statutes, Rules and Regulations Involved.

1. The pertinent provisions of the Act of March 26,

1934, c. 87, 48 Stat. 466, as amended, 5 U.S.C. 118 ¢; Ap-

pendix A, petition, p. 25.

2. Section 2 of the Act of July 7, 1884, c. 334, par. 1,

23 Stat. 254, 5 U.S.C. 266—Not Listed on p. 3 in petition;

printed below.

3. 31 U.S.C. 714, which repeats as cross-reference in

the last sentence the text of 5 U.S.C. 266, and quotes as

authority the following statutes:

Act of June 14, 1878, c. 191, par. 4, 20 Stat. 130;

July 7, 1884 c. 234, par. 1, 23 Stat. 234; June 10,

1921, c. 13, par. 304, 42 Stat. 24.

Not listed on p. 3 in petition; printed below.

4. Sections 837 and 838 of Rule XXI of the Rules of

the House of Representatives, 75th Congress, House Docu-

Section 240 (a) of the Judicial Code, as amended by the

eh

== § a

ment No. 496, p. 387, 74th Congress, 2d Session; Not List-

ed on p. 3 in Petition; printed below.

5. The First Deficiency Appropriation Act, fiscal year

1938, c. 42, 52 Stat. 85, 95, 99, Appendix A, petition, pp.

25-26. (Printed with deletions which deletions. however,

are important to observe because they show the statutory

authorities under which the audited claim of respondent

was re-appropriated and certified to Congress under 5

U.S.C. 266, not printed or mentioned in petition (see

supra, 2 and 3).

6. and 7. The Dockery Act of July 31, 1894, ec. 174,

sec. 8, 28 Stat. 162, 207, augmented by the Budget and

Accounting Act of June 10, 1921, c. 18, sec. 304, 42 Stat.

20, 24; 31 U.S.C. 74. Appendix A, petition, pp. 26-30.

8. The pertinent provisions of the regulations relat-

ing to this case, as contained in Executive Order 6657-A,

are set forth in Appendix B, petition, pp. 31-32.

V. Statement.

The disputed points are reflected in the transcript of

record, especially on pp. 106-11. The court below (Record

p. 143) stated that: ‘‘In view of the conclusion which we

have reached, there is no occasion to relate in detail the

facts out of which the instant controversy originated and

which the Government alleges resulted in an overpayment

to plaintiff.’’ * * * ‘It was the method or formula to be

applied in determining such losses which forms the basis

of this controversy. In 1937, the statute and executive

order were interpreted in favor of the plaintiff and as

a result his claim was allowed. In 1944, long after plain-

tiff’s claim had been allowed and paid, the Government

reviewed its prior action, disallowed the claim and sought

to recover from the plaintiff. In our view, the action

iets

of the Government in 1944 in revising and determining

that the claim had previously been erroneously allowed

was unauthorized. It therefore becomes unnecessary to

enter any discussion of the merits of the claim or whether

the Government ‘n the first instance erroneously inter-

preted plaintiff’s rights under the statute and regula-

tion.’’

VI. The writ should be denied.

A The statutory provisions and Rules of the House of

Representatives eliminated by petitioner (5 U.S.C. 266—cross

reference 31 U.S.C. 714 and Secs. 837 and 838 of House Rule

XXI) clearly defeat petitioner’s alleged issue contesting the

finality of adjudication of “claims audited under the author-

ity of the law.”

Respondent does not wish to burden this Honorable

Court with lengthy and extraneous arguments, but the

voluminous petition compels respondent to go beyond the

scope of desired brevity by this Court and ‘‘when the

real situation is not set forth by the petition, a duty rests

on opposing counsel to reveal it in their reply.’’ 242

U. S. 4830 Furness, Withy & Co. v. Yang-Tsze Insurance

Association, Limited et Al.

In regard to the first question presented in their lengthy

irrelevant arguments (pp. 9-16) petitioner omits the most

important statutory provision, which in unambiguous

language prescribes the procedure as to making reports

to the Congress covering claims on balances of appro-

priations. Such unprinted section is quoted below in or-

der to rebut the rather technical argument advanced by

petitioner that Congress did not repeat specifically re-

spondent’s name in the First: Deficiency Appropriation

Act 52 Stat. 85, at 95, and therefore did not specifically

witb Abs

‘authorize and require’ the Secretary of the Treasury

to pay a stated sum to an individual named in the act:

Section 714 of Title 31 U.S.C.A., in its effective form,

reads:

‘‘BALANCES OF APPROPRIATIONS; REPORTS TO

CONGRESS AS TO CLAIMS

It shall be the duty of the General Account-

ing Office to continue to receive, examine, and

consider the justice and validity of all claims under

appropriations the balances of which have been ex-

hausted or carried to the surplus fund under the

provisions of section 713 of this title that may be

brought before them within a period of five years.

The Secretary of the Treasury shall, at the com-

mencement of each session of Congress, report the

amount due each claimant whose claim has been al-

lowed in whole or in part to the Speaker of the House

of Representatives and the presiding officer of the

Senate, who shall lay the same before their respec-

tive Houses for consideration; provided * * * (June

14, 1878, c. 191, par. 4, 20 Stat. 130; July 7, 1884, e¢.

334, par. 1, 23 Stat. 254; June 10, 1921, ec. 18, par.

304, 42 Stat. 24.)”’

Annotations: Secretary of Treasury, at commence-

ment of each session of Congress, to report amount

due claimants whose claims have been allowed to

Congress for consideration, see section 266 of Title

5. Executive Departments. Government Officers and

Employees.

The last sentence of section 714 U.S.C. 31 is a textual

repetition and a cross-reference of 5 U.S.C. 266. The

court below used correctly the latter as principal authori-

ty in its valued opinion (163 F. 2d 884), coupled with

5 U.S.C. 118 ¢., granting authority for the payment of

losses of exchange due to the appreciation of the Ameri-

ean dollar in relation to foreign currencies, including the

German mark. This Court’s special attention is invited

to pages 8 to 10 of the Record (Exhibit ‘‘D’’) from which

it will be noted that 4 (four) times reference is made to

authority granted under U.S.C. Title 5 Sec. 266.

Respondent’s brief to the court below made specific

reference to these two sections of statutes (5 U.S.C. 266

and 714 U.S.C. 31) as to the auditing of the claim, and

to 5 U.S.C. 118 ¢, as to the authority for appropriating

such money. It is evident from the records examined by

the court below that the Secretary of Treasury was re-

quired by these two statutory provisions to report to

Congress the amount due each claimant whose claim has

been allowed in whole or in part by the General Account-

ing Office.

The entire procedure, step by step, of “auditing this

claim under authorization of law’’ is published in House

Document No. 498, 75th Congress, 3d Session (Record

pages 8 to 10) and it is obvious from the learned opin-

ion of the court below at page 885 in 163 F. 2d that it

made a thorough analysis of such Document which is and

remains part and parcel of the appropriation act! The

court below determined that the schedule transmitted to

Congress for appropriation specifically included the name

of respondent. Congress consequently and subsequently

appropriated for the payment of the claims as fully set

forth in House Document Numbered 498.

Although a number of claims are added up under each

department and category of application or use, in order to

arrive at totals of moneys required to be appropriated,

the claims as such were payable .as certified, unless re-

vised while pending, against each certificate of settlement,

of which respondent was one of the persons whose claim

re ee ge

on

had been audited and allowed under the law and regula-

tions in force at the time of auditing and for which he

received a preliminary certificate of settlement (Rec. p.

7/8 )and a Final Certificate of Settlement (Rec. 113/14).

(Incidentally, judgments reported in the same First

Deficiency Appropriation Act in 52 Stat. 85, Sec. 2a for

payment of the final judgments and decrees, including

cost of suits, rendered under U.S.C. 28, sec. 41, par. 20;

sec. 258, secs. 761-765, certified to the Congress in Senate

Document Numbered 144, and House Document Numbered

490, are also lump-summed under the various departments

and establishments, but such grouping certainly did not

bar the individuals mentioned in the judgments to be en-

titled to payment of their judgments. Even the Comp-

troller General cannot go beyond such judgments, al-

though under common-law principles in cases where claim-

ants are indebted to the Government, he may set-off

prior to payment of such judgments with consent of the

plaintiff as provided under par. 227 U.S.C. 31, or bring

suit.) }

It is therefore submitted that once an audit under law

is performed by the General Accounting Office, in the

absence of a timely revision made in compliance with

the provisions of Section 74 U.S.C. Title 31 while settle-

ment is pending, (U. S. v. Olmstead, 118 F. 433, 55 CCA

249), under the Rules of the House of Representatwes,

it is considered an award and judgment, and for seventy

years it has been held that auditing under authority of

law to be ‘‘authorization” for the appropriations for the

payment of claims.

This fact can be learned best from pars. 837 and 838

under rule XXI as published in: Constitution, Jefferson’s

Manual and Rules of the House of Representatives of the

ee ee

a ee ae

=

vases

No. 496, p. 387, 74th Congress, 2d Session:

Par: 837. The reappropriation of an unexpended bal-

ance for an object authorized by law may be made on

an appropriation bill (IV, 3591, 35°2).

Par. 838. Judgments of courts certified to Congress

in accordance with law or authorized by treaty (IV, 3634,

3635, 3644) and auditing under authority of law have

been held to be authorization for appropriations for the

payment of claims (IV, 3634, 3635). But unadjudicated

claims (IV, 3628), even though ascertained and transmit-

ted by an executive officer (IV, 3625-40), and findings

filed under the Bowman Act do not constitute authoriza-

tion. (IV, 3463).

According to the preface of the above-cited manual,

‘‘the rulings of the Speakers of the House and of the

Chairmen of the Committee of the Whole are to the rules

of the House what the decisions of the courts are to the

statutes.’’ The above-mentioned precedents and rulings

thereon are published in Hinds’ Precedents of the House

of Representatives, vol. IV, and it should be noted that

Congress classifies “claims audited under authority of

law,’’ together with ‘‘judgments of courts certified to

Congress in accordance with law or authorized by treaty.”

Such adjudicated claims carry with it an inherent author-

ization and do not require a ‘‘specific’’ authorization as

urged by petitioner, nor is an examination as to fact or

law necessarily the function or duty of Congress, which

ean be learned from precedent IV, 3638 which makes a

complete analysis of these aspects, quotes the jurisdic-

tional text of 5 U.S.C. 266, also Sec. 8 of the Dockery Act

as the pertinent statute governing the auditing and the

one year limitation of revision of claims and the holding

United States, Seventy-Fifth Congress, House Document |

— |

—

by the Committee of the Whole that ‘‘the finding and

judgment of the Comptroller constitute the only legal

authority for the payment of the claim.’’ The full text

of such precedent was before the court below. (Exhibit

CC, item 3 p. 35, Record and verified by exhibits DD and

EE telegraphically by the competent Parliamentarian of

the House of Representatives, simultaneously indicating

that the Congress still considers sec. 8 of the Dockery

Act of July 31, 1894 existing law (see below under ‘‘B’’).

It will be observed that the first citation in the credit

to the text of 81 U.S.C. 714 (supra) is June 14, 1878, ce.

191, par. 4, 20 Stat. 130, making it the duty of the several

accounting officers of the Treasury (in 1921 substituted

by the General Accounting Office) ‘‘to continue to receive,

examine, and consider the justice and validity of all

claims under appropriations the balances of which have

been exhausted * * *” (Italics supplied). The same type

of authority and function will be found involved in the

Price case (116 U.S. 48), which case the court below used

partly in support of its studied opinion. The payment to

Price was made as a result of an appropriation act of

March 3, 1875, 18 Stat. 637, 646, chap. 205, on the basis

of a claim reported allowed by the Commissioners of

claims under the Act of Congress of March third, eighteen

hundred and seventy-one. (1871, c. 116, s. 2, vol. 16 Re-

vised Statutes, p. 824).

A careful review of the latter act will reveal that ac-

cording to section 2 the President of the United States

was authorized to nominate * * * and appoint a board

of commissioners as commissioner of claims * * * “whose

duty it shall be to receive, examine, and consider the

justice and validity of such claims as shall be brought

before them. * * *’’ (Italics supplied), And section 4

“=

Aeon

of the same act contains practically the same provision

as the present section of 5 U.S.C. 266 and incorporated

in 31 U.S.C. 714:

‘‘See. 4. That said commissioners shall make re-

port of their proceedings, and of each claim consid-

ered by them, at the commencement of each session

of Congress, to the Speaker of the House of Repre-

sentatives, who shall lay the same before Congress

for consideration; * * *’’

In the equally supporting case, U. 8. v. City of Louis-

ville (169 U.S. 249), the Board of Commissions of the

Sinking Fund of the City of Louisville, Kentucky, sub-

mitted their claim and the First Comptroller audited it,

sent his report to the Acting Secretary of Treasury, who

transmitted it to The Speaker of the House of Repre-

sentatives and on February 14, 1891, it was referred to

the Committee on Appropriations, being ordered printed

by the House of Representatives as Executive Document

No. 260, 51st Congress, 2d Session (vol. 36). Under the

act of March 3, 1891, c. 540, being an appropriation

to supply deficiencies, 26 Stat. 862, at 867, Congress pro-

vided ‘‘for payment (italics supplied) to the city of Louis-

ville, Kentucky, the amount found due, under the act of

Congress approved June 16, 1890, and reported to Con-

gress in House Executive Document No. 260, $42,514.03.”

Congress and this Court held it to be an audited claim,

and payment being made, it was considered final and

conclusive on all parties, including any court. The same

situation prevailed in the Price case analyzed above, and

the court below by using the two cited cases in support

of respondent’s case below, correctly and fully upheld

the entire procedure required by Congress and laid down

in Section 714 U.S.C. Title 31 and Section 266 U.S.C.

Title 5. It recognized clearly and described succinctly the

nti nis

legal principle that without such an audit and adjudica-

tion, no appropriation could be made, and that any un-

timely or unauthorized revisions of such settlements,

would be contrary to the well-established law of the land.

This court saying in the Price case: “It was when the

payment was made and is now, the law of the land that

he was entitled to that sum from the United States on

account of his claim.”

Petitioner relies heavily on the case of Buchanan v.

Patterson, 190 U. S. 355. The original findings in this

case were made by the Court of Claims under the so-

called Bowman Act to persons not specifically named, and

such findings did not and do not constitute ‘‘authoriza-

tion” for payment under the long and well-established

rule of the House of Representatives (supra, and IV,

3643). Nothing in this latter case can be found that can

be regarded as relevant or controlling, whereas the Price-

Louisville cases are definitely applicable and are cited

at intervals throughout our legal history in eases in

which it is held that the Congressional intention to in-

trust the determination of the questions therein involved

to the discretion of persons or agencies, acting in quasi-

judicial, rather than in a ministerial capacity, unless im-

peached for fraud or mistake of calculation, must be ac-

cepted as final and conclusive, and are not subject to re-

view, unless specifically provided for by law, as in 74

U.S.C, 31.

The matter of fraud being specifically denied in this

case as a result of a determination by the Attorney Gen-

eral of the United States (record p. 13, item 27), and no

claim as to mistake in calculation being made or estab-

lished, the court below saying on page 144 of Record,

that if any mistake was made as alleged by petitioner, it

ee A

sv wey Soe YIM OMG ELELIPI A” Fc

. nna

=

was a mistake in interpretation of the statutory provision

and the executive order issued pursuant thereto as to

the method properly employable in determining the

amount of plaintiff’s loss, it is submitted that the court

below did not draw from the Price-Lowisville cases in

its decision any broader rule than that an allowance in

this class of cases, including the one at bar, is not an

‘‘ordinary’’ or routine” claim as petitioner is now at-

tempting to purport, but a ‘“statement of accounts by

one having authority for that purpose under an act of

Congress.’’ It may therefore be safe to conclude that

the court below did not unreasonably or at liberty en-

large by construction the plain and unambiguous pro-

visions of the statute through any misapplication of the

decisions of this Court.

The federal courts, the General Accounting Office, and

some other federal agencies, such as the Veterans Admin-

istration, within the scope of their designated statutory

jurisdiction are authorized by law to investigate claims

against the Government of the United States and de-

termine legal liabilities incurred, but they do not deal

with questions of appropriations. The authority of the

Congress to make appropriations, within the framework

of the Constitution (Art. I, Sec. 9, Clause 7), is plenary

and having made such an appropriation on a direct settle-

ment ‘‘duly received, examined, and found valid and

just’? by the General Accounting Office in a certificate

of settlement issued specifically to claimant (respondent),

and paid without being revised, doubtless constituted a

final adjudication and therefore appears to be conclusive

on all parties concerned, including any court. (United

States v. Price, 116 U.S. 48, 6 S. Ct. 235, 236, 29 L. Ed.

541; United States v. Louisville, 169 U.S. 249, 18 S. Ct.

358, 42 L. Ed. 735).

—.

It is considered incumbent upon respondent to correct

a drastic error made by petitioner on page 14 (lines 14

to 17) in stating that ‘‘claims for amounts chargeable

against such funds (unexpended appropriation balances

under 31 U.S.C. 713) may be filed at any time up to

ten years. (31 U.S.C. 71 (a), 237.

Section 714 U.S.C. 31 (printed in full above) provides

specifically that “all claims under appropriations the bal-

ances of which have been exhausted or carried to the

surplus fund under the provisions of section 713 of this

title may be brought before them (the General Accounting

Office) within a period of five years.’’ (Italics supplied).

The ten year limitation applies only to claims or de-

mands (with stated exceptions) against the United States

cognizable by the General Accounting Office under sec-

tions 71 and 236 of this title (31 Money and Finance) as

provided under sections 71 (a) and 237 U.S.C. 31. Sec-

tion 71 refers to ‘‘public accounts to be settled in the

General Accounting Office’? and section 236 to ‘‘meritori-

ous claims against United States not subject to lawful

adjustments; submission to Congress by Comptroller Gen-

eral,”

The court below clearly recognized this confused and

wrong conception of petitioner by bringing an audited

claim cognizable only under Section 714 Title 31 (266

U.S.C. Title 5) under Section 71 U.S.C. Title 31. As to

the cases cited by petitioner and repeated in footnote 2 on

page 10 of petition, including an inapplicable comment

and an attempt to assimilate them with the Jordan, Price,

and Louisville cases decided by this Court, the court dis-

tinctly said at p. 886 (163 Fed. 2d): “We think it is un-

necessary to cite or discuss these cases for the reason

that the rule is without application to the facts of the

instant situation.”’

oe

Furthermore, the court said at p. 886 (163 Fed. 2d)

(2):

“The Government, in support of its position, relies

strongly upon Title 31 U.S.C.A. section 71, which pro-

vides: (Text follows).

‘‘We think this provision is of no benefit to the Gov-

ernment under the circumstances of the instant case.

Especially is this so when taken in connection with Title

31 U.S.C.A. section 74, which provides in part: (Text).

Petitioner now comes and attempts to contest the validity

of 31 U.S.C.A. Section 74 under question 2 presented above.

B. Petitioner’s claim as to the alleged inconsistency and

invalidity of 31 U.S.C.A. 74, after checking all available

sources with the Committee on the Revision of Laws, House

Judiciary, and the Official Codifiers and Custodian of the

Statutes, is unfounded and is still considered existing law.

On page 16 of his petition it is stated that ‘‘the court

below also held that the Comptroller General’s authority

to revise the settlement of a claim is limited to one year

by 31 U.S.C. 74.” Petitioner continues to state:

While concededly 31 U.S.C. 74, in its present form

does contain this limitation on the power of the Comp-

troller General, and, if valid, barred the revision

here involved, we submit that in its present form 31

U.S.C. 74 is an erroneous codification of the basic stat-

utes.” (Italics supplied.)

Petitioner prints the material portion of Section 8 of

the Dockery Act on page 17 and introduces such re-print

with words to the effect that ‘‘the citations in the credit

to the test of 31 U.S.C. 74 are section 8 of the Dockery Act

of July 31, 1894, c. 174, 28 Stat. 207, and Section 304 of the

Budget and Accounting Act of June 10, 1921, c. 18, 42

Stat. 24.”’

ee a 2 at

ee

alias

The full text of these two sections involved are reprinted

in Appendix ‘‘A”’ to petition, pp. 26-28 (items 3 and 4).

Under item 5 petitioner prints the text of 31 U.S.C. 74 as

originally codified in the 1926 edition of the United States

(which edition temporarily eliminated the provision con-

cerning the conclusiveness of balances certified and the

revisions to be obtained by the three parties named).

Careful research work of the official codifiers, in pre-

paring the United States Code Annotated, discovered no

specific authority for the change from the wording of the

Statutes-at-Large, and, therefore, appended a caveat in

the third paragraph of the ‘‘Historical Note,’’ reading:

‘*Prior to its incorporation into the Code, this sec-

tion contained further provisions concerning the con-

clusiveness of balances certified, revision by the Comp-

troller of the Treasury, ete. but that ‘‘they were prob-

ably omitted as superseded by Act June 10, 1921, ec.

18, particularly sections 301, 304, and 310.”

Prior to the hearing before the court below, these official

compilers advised respondent that very probably because

of this editorial note in the United States Code Annotated, /

Congress later decided as a result of several complaints

and letters from the Bench and Bar that the omission that

it originally made when compiling the United States Code

was not justified and in Supplement V (1931), of which

they supplied a photostat, and in subsequent cumulative

supplements VI and VII to the United States Code, it pub-

lished the text of the present form of 31 U.S.C. 74 with an

explicit statement underneath:

“THIS SECTION HAS BEEN RESTATED TO

EXPRESS EXISTING LAW.”

Upon printing the new Code of the Laws of the United

States in force January 3, 1935 (1934) edition and the 1940

a

ee

edition, in force on January 3, 1941, this re-stated section

was carried on in both editions and still reads as shown

under item 6 on pages 29-30 in Annex ‘‘A”’ of the petition,

and these editions were in force when the Comptroller as.

sumed authority to act contrary to the one-year limitation

expressed in U.S.C. 74.

According to the preface to the First Edition of the

Code (1926) ‘‘the presumption (of inconsistencies) is re-

buttable by production of prior unrepealed Acts of Con-

gress at variance with the Code. Because of such possi-

bility of error in the Code and of appeal to the Revised

Statutes and Statutes at Large, a table of statutes re-

pealed is published therein.’’ Petitioner does not offer any

such rebuttal of repeal; the custodian of the statutes, the

State Department of the United States, under whose super-

vision the statutes are printed, could not find any express

repeal, and a most thorough search by the Committee of

the Revision of Laws, House Judiciary, under whose super-

vision the Codes and Supplements are published, based on

the authority provided by Joint Resolution of March 3,

1929 (H. J. Resolution 399—Pub. Res. No. 101) e. 586, 45

Stat. 1540, at 1541 section 2a is convincing that the state-

ment in the Vth Supplement (1931) expressing that Sec-

tion 74 U.S.C. 31 ‘“‘HAS BEEN RESTATED TO EX-

PRESS EXISTING LAW” was and is still correct and

that petitioner’s allegation of inconsistency and invalidity

could find no support.

The parallel Reference Table II in the Codes show as

unrepealed Statutes at Large: Act of July 31, 1894, e. 174,

s. 8, vol. 28, p. 207... . 31 U.S.C. 74.

Section 304 of the Budget and Accounting Act of June

10, 1921, ¢. 18, 42 Stat. 24 was correctly published in all

editions of the U. S. Code in Section 44 of Title 31. It

ao 17 —

transferred certain powers and duties to the General Ac-

counting Office and to the Comptroller General, wherefore

the term ‘‘the Comptroller of the Treasury’’ was textually

substituted by ‘‘the Comptroller General’’ in 74 U.S.C. 31.

The fact that the 1926 edition of the U. S. Code incom-

pletely stated section 74 Title 31 is immaterial. It was

corrected by the Vth supplement (1931) and the pertinent

section was restated by Congress to express ‘‘existing

law.’’

The Comptroller General, when he assumed his duties

in 1921, considered it ‘‘existing law’’ in his own circular

1921 No. 2, dated August 23, 1921, published in 2 Comp.

Gen. 775, at 776 under the title: Revision, Reopening, or

Review of Audited Settlements; this circular letter clearly

indicates under subsection (4) that the Comptroller Gen-

eral is listed among the officers and persons by whom the

revision of settlements may be obtained within one year

from the date of the settlement by the Comptroller Gen-

eral. It remained unchanged in effect because it is cited

and repeated in the Code of Federal Regulations of the

United States (1939), Title 4, Accounts, Chapter 1, Gen-

eral Accounting Office, Part 2, Revision, Reopening, Review

of Settlements, Section 2.1.

Petitioner’s claim of invalidity of section 74 U.S.C. Title

31 is obviously unfounded and the Court below certainly

did not err in holding that the revision by the Comptroller

General of respondent’s settled and paid account was with-

out authority because it was made more than one year after

settlement, thus leading unavoidably to the conclusion that

petitioner was guilty of laches, wherefore it is respectfully

submitted that the court’s opinion of October 13, 1947 (163

Fed. 2d, 884) should stand as written, thereby ‘‘attribut-

ing to the circuit court of appeals a prestige which in-

vites reliance for the burdens of appellate review.’’

— 18 —

C. The decision below conforms to the applicable statu-

tory provisions and House rules as well as to decisions of

this Court; is not in conflict with decisions rendered by other

Circuit Courts, and does not involve principles of far-reach-

ing effect, overthrow administrative fiscal construction or

diminish the power of the Comptroller General.

As shown above under chapter VI (A), the decision be-

low conforms to the applicable statutory provisions and

House rules as well as to decisions of this Court. It is

evident that the court’s first holding did not result from

a complete misapprehension of the applicable decisions of

this Court. It correctly and admirably upheld the Vth

Amendment of our Constitution and also observed consti-

tutional law to the extent that ‘‘the judiciary cannot go

behind an act of Congress, to show motives of Legislature,

or from whence it derives its knowledge.’’ (Baker v. U. 8S.

27 F. 2d 863, at 876, citing U. 9. v. Price, 116 U. S. 48.)

The decision below is therefore not in conflict with the

foregoing decision rendered by another Circuit Court and

conforms to the decision rendered in U. S. v. Olmstead, 118

F. 433, 55 CCA 249.

While the decision below in its clarifying form of stud-

ied accuracy may affect adversely some unwarranted pro-

cedures in the administration of the fiscal affairs of our

government, it is the view of respondent that the two

questions of federal law presented by petitioner by means

of important omissions disclosed above, aided by consider-

able irrelevant make-weight and confusion, are not of such

importance and substance or involve principles of far-

reaching effect, overthrow administrative fiscal construc-

tion or diminish the power of the Comptroller General of

the United States. (United States v. Riner, 230 U. S. 547).

For instance, on page 16 of the petition an attempt is

made to impress this Court that Congress has modified the

ie Wi cies

procedure in recent years, beginning with the First De-

ficiency Appropriation Act, 1945, ¢. 95, 59 Stat. 77, 90.

Such exceptional legislation (enacted eight years after

respondent’s claim was finally and conclusively settled and

paid) is irrelevant and is a one-time legislation limited to

certified claims up to $500.00 covering two fiscal years only

(1945 and 1946) arising in #fe Bureau of Accounts of the

Treasury Department. It did NOT repeal, change, effect

or create inequitable results within the meaning of the

long established statute or intentions thereunder, enacted

as 714 U.S.C.A. Title 31 (5 U.S.C.A. 266). A few pages

onward in c. 95, 59 Stat. at 94 appropriations will be found

duly made under Sec. 304 for the payment of claims cer-

tified to be due by the General Accounting Office * * * un-

der 5 U.S.C. 266, including claims on foreign currency; in

c. 589, same statute 59 Stat. 632, at 657, Sec. 204 similar

‘audited claims’’ are granted appropriations.

The several cases of overtime pay listed in footnote 7

page 22 of petition were NOT ‘‘balances certified by the

General Accounting Office to Congress” BUT judgments

made in the Court of Claims and reviewed on certiorari to

that court by this Court. Section 74 U.S.C. Title 31 ob-

viously has no bearing whatsoever on such judgments and

decrees of the Court of Claims for which a review is pro-

vided under section 288 U.S.C. Title 28.

Furthermore, considerable irrelevant make-weight is in-

cluded in Record pp. 38-102. Not one of these decisions by

the Comptroller General refers to claims audited under

authority of law. (5 U.S.C. 266—31 U.S.C. 714).

Error is also assigned to footnote 6 of page 22 of peti-

tion. While it is admitted under the cases cited that the

right of set-off is inherent in the United States Govern-

ment and is grounded in the common-law right of every

“a

a

creditor to apply the moneys of his debtor in his hands to

the extinguishment of claims due him from the debtor, it

is settled that such right of set-off is not enforceable so far

as concerns the withholding of current compensations to

officers and employees still in the Federal Service. See

Smith v. Jackson 246 U. S. 388 and record p. 5 item 22;

action of withholding can be brought only within the

narrow category and defined particularity of the Act of

May 26, 1936 (c. 452, 49 Stat. 1374)—5 U.S.C. 46 (b). See

record p. 4 item 20. (The court below, deciding the primary

issue in favor of respondent, did not find it necessary to

decide whether the Government had a right to set off the

alleged overpayment against monies advanced and other-

wise due respondent.)

CONCLUSION.

For the reasons stated above (VI A to C), it is respect-

fully submitted that the petition for a writ of certiorari be

denied.

Respectfully submitted,

Juuius L. Kapaker,

Counsel for Respondent,

Member of the Bar of the Supreme Court

of the United States.

Joun V. CLINNIN,

Attorney-at-Law.

Of Counsel

April 1948.