question in either the Department of Commerce, the Department of Justice, or the Department of State, and that the question has not arisen heretofore in the Treasury Department. The War Department, the Department of the Interior, the Department of Agriculture, and the Veterans' Administration report that they have construed the Act of 1922 so as not to include subrogation claims by insurers and it has not been their practice to certify such claims for payment. On the other hand, the Post Office Department, the Navy Department, and the Department of Labor report that they have taken the other view and it has been their consistent practice to certify such claims for payment.

The rulings adverse to the allowance of such claims seem to be based on a reluctance to pay out Government funds in satisfaction of a claim where an insurance company has been paid a premium to carry the risk, rather than upon anything contained in the words of the statute. Furthermore, it is quite evident that the mere denial of subrogation claims presented by insurers does not meet the situation. Anyone familiar with insurance.practice knows that policies of insurance contain a variety of provisions respecting subrogation. If the loss is only partially covered by insurance, it is commonly provided that the insured shall prosecute the claim in his own name for the full loss sustained, accounting to the insurance company only for that part of the recovery equal to the amount of the insurance. In other cases, although the loss may be fully covered, the insured is required to prosecute the claim in his own name but for the account of the insurance company. Often it will happen that a claim prosecuted by the owner of damaged property is wholly or in part for the benefit of an insurer and unless in every case the claimant is required to disclose whether he carried insurance, and the principle is applied that he will not be reimbursed by the Government to the extent that his claim is covered by collectible insurance, a discrimination would result in the treatment of those subrogation claims presented by the insured, in whole or in part for the benefit of an insurer, as compared with claims presented directly by insurance companies.

Merely refusing claims presented by an insurer would not meet the situation. To be consistent, it is necessary to go further and read into the statute a provision that any claim presented by the owner of damaged property will be disallowed to the extent that the loss is covered by collectible insurance. The War Department, the Department of Agriculture, the Department of the Interior, and the Veterans' Administration, which refuse to certify claims covered by insurance, have recognized these conditions, and, in each case where the owner of the property makes the claim, require him to disclose whether his loss was covered by insurance in whole or in part and the amount of the insurance, and decline to certify claims for payment to the extent that they are covered by insurance.

Standard Form No. 28, for use in presentation of such claims, contains a question calling for the disclosure of information respecting insurance. It thus appears that to carry out the principle contended for in the Comptroller General's decision and in the rulings of the three executive departments and the independent establishment which have refused certification of insured losses, the statute should have contained a provision that the Government shall have the benefit of any insurance carried by the claimant, and no claim shall be certified to the extent covered by collectible insurance. To read such a provision into this statute seems to me to be stretching the rule of strict construction to the breaking point. Nevertheless, because the Comptroller General in 1927 construed a similar statute not to allow payment of insured losses, and his decision under that statute has apparently been acquiesced in, I would be disposed to lay aside my views as to the plain meaning of the Act of 1922 and adopt the same view that the Comptroller General did with respect to the Act of 1919, were it not for one further consideration. It appears that whenever subrogation claims of insurers have been certified by the Post Office Department, the Department of Labor, and the Navy Department through the Bureau of the Budget to Congress for payment, the record laid before Congress has clearly disclosed in every case the nature of the claim and the fact that it was a subrogation claim by an insurer, and in every

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such case Congress without question has recognized the claim as a proper one for certification under the Act of 1922 and appropriated the money to pay it; and that a very large proportion of all claims arising under the Act of 1922 have arisen in the Post Office Department.

As the ultimate question is the intention of Congress, this practical construction by the legislative body is impressive. Our objective being to ascertain the purpose of Congress in the enactment of this statute, and since no claim may be paid under the statute until it has been certified to Congress and an appropriation made for that purpose, a ready means is afforded of obtaining a final and conclusive legislative construction. By refusing certification we might obtain ultimately a judicial determination of the question through a mandamus suit brought by some claimant to compel certification of his claim, but that would involve expense and delay, and the sensible course is to have the question cleared up by legislation or by legislative action amounting to a conclusive legislative construction.

For these reasons I believe the practical course is to resolve any doubts by construing the statute to require certification, thus giving the Congress an opportunity to consider and decide whether it intended by this statute that such claims should be paid. In making the certification special attention should be called to the fact that it is a subrogation claim by an insurer and the attention of Congress should be drawn to the point involved so that it may receive deliberate consideration.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE TREASURY.

ACCIDENTS.

INDEX-DIGEST

[See also Index to subjects, p. xxiii]

CAUSES OF AIR ACCIDENTS, PUBLICATION. See AIR COM-
MERCE ACT.

ADMINISTRATOR OF VETERANS' AFFAIRS.

DISPUTED INSURANCE CLAIMS. See VETERANS' ADMINIS

TRATION.

AGRICULTURAL COLLEGES.

LAND GRANT. See MILITARY TACTICS. AGRICULTURAL MARKETING ACT.

1. Application to territories.-The Agricultural Marketing Act (46 Stat. 11), extends to the Territories of Alaska, Hawaii and Porto Rico, but does not extend to the Philippine Islands. 326.

2. Co-operative associations.-Associations dealing solely in intrastate as distinguished from interstate commerce are not "cooperative associations" within the definition in the first sentence of section 15(a) of the Agricultural Marketing Act but the Federal Farm Board is authorized to loan money to them in case the conditions specified in the second sentence of that section exist. 326.

3. Same. The proposed organization of agricultural producers referred to herein, which is to be formed under the general incorporation laws of a State and whose membership will consist of cooperative associations instead of individual producers, is a cooperative association, qualified under the Capper-Volstead Act (42 Stat. 388), and therefore is a cooperative association within the meaning of the Agricultural Marketing Act, supra. 326.

4. Federal Farm Board. The Federal Farm Board is without authority to make loans for the sole purpose of refinancing mortgages on existing facilities. 326.

5. Same. "Naval stores," defined in the Naval Stores Act (42 Stat. 1435), are not agricultural commodities within the meaning of the Agricultural Marketing Act and hence the Federal Farm Board has no authority to deal with an organized group of producers of naval stores. 326.

AGRICULTURE DEPARTMENT.

NATIONAL MONUMENTS. See NATIONAL MONUMENTS. 141183°-32-VOL 36-36

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