Secretary of the Treasury to pre

rendition of accounts.

639. The Secretary of the Treasury shall prescribe suitscribe rules for able rules and regulations, and may make orders in particular cases relaxing the requirement of mailing or otherwise sending accounts as aforesaid within ten or twenty days, or waiving delinquency, in such cases only in which there is, or is likely to be, a manifest physical difficulty in complying with the same, it being the purpose of this provision to require the prompt rendition of accounts without regard to the mere convenience of the officers, and to forbid the advance of money to those delinquent in rendering them. Ibid.

mitting a c

counts.

Delays in sub- 640. Should there be a delay by the administrative Departments beyond the aforesaid twenty or sixty days in transmitting accounts, an order of the President [or, in the event of the absence from the seat of government or sickness of the President, an order of the Secretary of the Treasury] in the particular case shall be necessary to authorize the advance of money requested: And provided further, That this section shall not apply to accounts of the postal revenue and expenditures therefrom, which shall be rendered as now required by law.' Ibid.

Amended by the insertion of the clause in brackets by section 4 of the act of March 2, 1895 (28 Stat. L., 807).

Under the authority vested in him by this statute, the Secretary of the Treasury relaxed the requirements in respect to the mailing of accounts by extending the time of mailing the accounts of disbursing officers as set forth therein.

Such period of relaxation was still further extended to December 31, 1900 (see General Orders, No. 211, A. G. O., of December 29, 1899, and the orders therein cited). Under this permission the date of mailing as fixed by A. R. 709, has been temporarily changed to the 20th day of each month for all accounts, whether rendered in this country or in the island possessions.

The exigency which required this temporary change having now ceased in the Subsistence Department at all depots, posts, and stations in the United States, except at the purchasing depots at New York, Chicago, and San Francisco, the relaxation of the law as to time of rendition of accounts is hereby withdrawn to take effect May 1, 1900, from all but the excepted depots, and accounts will thereafter be mailed on or before the 10th day of the month as required by A. R. 627. At the excepted depots the mailing of accounts may continue to be delayed until the 20th day of the month until further orders, or until December 31, 1900.

In the island possessions of Cuba, Porto Rico, and Hawaii the relaxation is hereby withdrawn as of date May 1, 1900, from all officers in those islands engaged in the receipt or disbursement of subsistence funds, and their accounts will thereafter be mailed on or before the 10th day of the month, as required by A. R. 709.

The mailing of the accounts of officers receiving and disbursing subsistence funds in the Philippines may continue to be delayed until the 20th day of the month until further orders, or until December 31, 1900.

Officers receiving and disbursing subsistence funds on United States transports will, after May 1, 1900, mail their accounts and returns at the port at which they may be when the ten days' limit will expire, or, if they should be at sea when the ten days' limit expires, they will mail their accounts and returns at the next United States or island port at which a stop is made.

Returns of subsistence stores and subsistence property will be rendered and mailed at all places concurrently with the rendering and mailing of accounts current and

vouchers.

An officer delinquent in mailing his subsistence account current and vouchers or his returns within the time hereinabove limited will transmit with them at the time

REPORT OF DELINQUENTS.

of

Treasury to reofficers.

1896, v. 29, p. 179.

641. The Secretary of the Treasury shall, on the first Secretary Monday of January in each year, make report to Congress port delinquent of such officers and administrative departments and offices, Sec. 4, May 28, of the Government as were, respectively, at any time during the last preceding fiscal year delinquent in rendering or transmitting accounts to the proper offices in Washington and the cause therefor, and in each case indicating whether the delinquency was waived, together with such officers, including postmasters and officers of the Post-Office Department, as were found upon final settlement of their accounts to have been indebted to the Government, with the amount of such indebtedness in each case, and who, at the date of making report, had failed to pay the same into the Treasury of the United States.1 Sec. 4, act of May 28, 1896 (29 Stat. L., 179).

REVISION OF ACCOUNTS.

Balances, con

clusive charac

Comptroller.

8, v. 28, p. 207.

642. The balances which may from time to time be certified by the Auditors to the division of bookkeeping ter. Revision by and warrants, or to the Postmaster-General, upon the July 31, 1894, s. settlement of public accounts, shall be final and conclusive upon the executive branch of the Government, except that any person whose accounts have been settled, the head of an Executive Department to which the account pertains, or the Comptroller of the Treasury, may, within a year, obtain a revision of the said account by the Comptroller of the Treasury, whose decision upon such revision shall be final and conclusive upon the executive branch of the Government: Provided, That the Secretary of the Treasury may, when in his judgment the interests of the Government require it, suspend payment and direct the reexamination of any account.2 Sec. 8, act of July 31, 1894 (28 Stat. L., 207).

of mailing a full explanation of the causes of delay for the action of the proper authorities. G. O. 42, A. G. O., 1900.

The time for examination of monthly accounts by the bureaus and offices of the War Department after the date of actual receipt and before transmitting the same to the Auditor for the War Department was extended from twenty to sixty days for the period of one year from December 20, 1899, by the act of December 20, 1899 (31 Stat. L., 1.)

This provision replaces the requirement of section 12 of the act of July 31, 1894 (28 Stat. L., 209), that "the Secretary of the Treasury shall, on the first Monday in January in each year, make report to Congress of such officers as are then delinquent in the rendering of their accounts, or in the payment of balances found due from them for the last preceding fiscal year."

2 (1) The Auditor, in the first instance, has the original and exclusive jurisdiction to receive, examine, and settle all accounts.

(2) The Comptroller is without jurisdiction to entertain any claim not previously

Suits to recover money.

20, s. 1, v. 1, p. 512.

SUITS FOR RECOVERY OF MONEY.

643. Whenever any person accountable for public money Mar. 3, 1797, c. neglects or refuses to pay into the Treasury the sum or Sec. 3624, B. S. balance reported to be due to the United States upon the adjustment of his account, the Comptroller of the Treasury shall institute suit for the recovery of the same, adding to the sum stated to be due on such account the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained thereon, and an interest of six per centum per annum from the time of receiving the money until it shall be repaid into the Treasury.1

passed upon and settled by the Auditor, and, until the Auditor has settled the account, the Comptroller is without jurisdiction to revise it.

(3) The settlement of an account by the Auditor, so far as the claimant's right or power before the accounting officers is concerned, is final and conclusive, except that any person whose account may have been settled by the Auditor may, within a year, obtain a revision of said account by the Comptroller.

(4) The person who may obtain such revision is the person whose account has been settled by the Auditor. V Compt. Dec., 333, 334.

The Comptroller has the exclusive right to reopen an account which has been revised by himself or his predecessors. IV Compt. Dec., 303. After the expiration of a year from the date of settlement an Auditor has the exclusive right to reopen an account settled by himself or his predecessors. Ibid. Before the expiration of a year the right of revision by the Comptroller is exclusive, and an Auditor can not reopen an account within that period. Ibid. After the expiration of six months from the date of settlement by the Second Auditor, under the act of July 1,1892 (27 Stat. L., 194), no appeal having been taken within that period, the Auditor fo the War Department has the exclusive right to reopen the settlement. Ibid, 471.

Section 8 of the act of July 31, 1894, specifies the officers and persons by whom the revision of accounts by the Comptroller may be obtained, and it must be construed to be exclusive. IV Compt. Dec., 723. Under section 8 of the act of July 31, 1894, the Comptroller of the Treasury is authorized to revise, upon his own motion, all items embraced in an account, including items upon which payment has been accepted; and in particular instances, where justice requires it, such authority may be exercised in favor of a claimant. Ibid, 22.

The accounting officers are not authorized to reopen accounts which have been settled, except for the purpose of correcting mistakes of fact arising from errors of calculation, or upon the production of newly discovered material evidence. VI Compt. Dec., 236. The accounting officers are not authorized to reopen accounts for the purpose of correcting decisions upon questions of law subsequently held to be erroneous. Ibid, 91.

The right of the accounting officers to reopen accounts which have been settled, either by themselves or their predecessors, for the purpose of correcting mistakes of fact arising from errors of calculation, or upon the production of newly discovered material evidence, or for fraud or collusion, has received the sanction of the courts and of the law-making power. The act of July 31, 1894, does not take away or modify that right. IV Compt. Dec., 303.

Where the Comptroller has made a final settlement of a claim from the War Department, an order of the Secretary that the accounts be reexamined has no validity. B. & O. R. R. Co. v. U. S. 31, Ct. Cls., 484.

For other statutory provisions respecting the recovery of debts or balances due the United States, see the titles "The Comptroller of the Treasury" and "The Auditors of the Treasury" in the chapter entitled THE TREASURY DEPARTMENT, and the title "Distress Warrants" in the chapter entitled THE PUBLIC MONEY. See also U. S. v. Gaussen, 19 Wall., 198.

MISCELLANEOUS OFFENSES IN CONNECTION WITH THE SAFE-KEEPING AND DISBURSEMENT OF THE PUBLIC MONEY.

Penalty for are paid. 15,16, p.

receipting for larger sums than

Mar. 3, c. 104, s. 4, v.

644. Every officer charged with the payment of any of the appropriations made by any act of Congress who pays to any clerk, or other employee of the United States, a sum less than that provided by law, and requires such 239 Sec. 5483, R.S. employee to receipt or give a voucher for an amount greater than that actually paid to and received by him, is guilty of embezzlement, and shall be fined in double the amount so withheld from any employee of the Government, and shall be imprisoned at hard labor for the term of two years.

EMBEZZLEMENT.

ficer unlawfully

verting, loaning, transferring public money.

122, s. 2, v. 14, p.

Sec. 5488, R.S.

645. Every disbursing officer of the United States who Disbursing of deposits any public money intrusted to him in any place depositing, conor in any manner except as authorized by law, or converts or to his own use in any way whatever, or loans with or with-June 14, 1866, c. out interest, or for any purpose not prescribed by law withdraws from the Treasurer or any assistant treasurer or any authorized depository, or for any purpose not prescribed by law transfers or applies any portion of the public money intrusted to him, is, in every such act, deemed guilty of an embezzlement of the money so deposited, converted, loaned, withdrawn, transferred, or applied, and shall be punished by imprisonment with hard labor for a term not less than one year nor more than ten years, or by a fine of not more than the amount embezzled or less than one thousand dollars, or by both such fine and imprisonment. (See secs. 3620, 5497, R. S.)

of Treasurer, etc.,

public moneys.

646. If the Treasurer of the United States, or Failure assistany ant treasurer, or any public depositary, fails safely to keep to safely keep all moneys deposited by any disbursing officer or disbursing agent, as well as all moneys deposited by any receiver,

Mar. 3, 1857, c. 24Sec. 5489, R.S.

114, s. 2, v. 11, p.

public money

keep, without loaning, etc. Aug. 6, 1846, c.

63.

collector, or other person having moneys of the United States, he shall be deemed guilty of embezzlement of the moneys not so safely kept, and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money so embezzled. (See sec. 3639, R. S.)

Custodians of 647. Every officer or other person charged by any act of failing to safely Congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, con90, s. 16, v. 9, p. verting to his own use, depositing in banks, or exchanging Sec. 5490, B.S. for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money so embezzled.' (See sec. 3639, R. S.)

Failure of officer to render ac

July 17, 1862, c.

593; Mar. 2, 1867,

571; July 15, 1870,

648. Every officer or agent of the United States who, counts, etc. having received public money which he is not authorized 199, s. 1. v. 12, p. to retain as salary, pay, or emolument, fails to render his Res. 48, v. 14, p. accounts for the same as provided by law, shall be deemed c. 295, s. 15, v. 16, guilty of embezzlement, and shall be fined in a sum equal 1846, c. 90, s. 16, to the amount of the money embezzled, and shall be imSec. 5491,B.S. prisoned not less than six months or more than ten years.* (See secs. 3622, 3633, R. S.)

p. 334; Aug. 6,

v. 9, p. 63.

Failure to de

posit as required.

114, s. 3, v. 11, p.

649. Every person who, having moneys of the United Mar. 3, 1857, c. States in his hands or possession, fails to make deposit of 249: Aug. 6, 1816, the same with the Treasurer, or some assistant treasurer, Sec. 5492, R.S. Or some public depositary of the United States, when re

e. 90, s. 16, v. 9, p.

63.

quired so to do by the Secretary of the Treasury or the head of any other proper Department, or by the accounting officers of the Treasury, shall be deemed guilty of embezzlement thereof, and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money embezzled.

1It is a defense to a charge (under the 62d article) of the embezzlement defined in section 5490 of the Revised Statutes as consisting in a failure to safely keep public moneys by an officer charged with the safe-keeping of the same that the funds alleged to have been embezzled were, without fault on the part of the accused, lost in transportation or fraudulently or feloniously abstracted. Dig. Opin. J. A. G., par. 155. 2 In view of the injunction and definition of sections 3622 and 5491 of the Revised Statutes, an officer who, in his official capacity, receives public money (not pay or allowances) which he fails duly to account for to the United States is guilty of embezzlement. The statute makes no distinction as to the sources from which the money is derived or the circumstances of its receipt. Nor is it material whether or not the officer actually converted it to his own use or what was the motive of his disposition of it. So, held, that an officer who, having claimed and exacted certain moneys from Government contractors for alleged liabilities on their part, failed to pay the same into the Treasury or to duly account therefor, was guilty of embezzlement under the ninth paragraph of article 60. Dig. Opin. J. A. G., par. 156.