CONGRESSIONAL. RECORD - HOUSE

tax which the taxpayer had made for

1951. The Internal Revenue Service did

not match the taxpayer's prepayment

documents with her return for 1951 and

was not aware of the taxpayer's error.

In March 1955, an agent of the Internal

Revenue Service discovered the possibility of the erroneous overpayment when

he assisted the taxpayer in preparing her

income-tax return for 1954. At that

time the 3-year statutory period of

limitation had not expired, and the agent

advised the taxpayer to file a claim for

refund. The taxpayer, however, did not

file her claim until about 2 months later,

at which time the statutory period had

expired, and the claim could not under

the law be allowed. The record on this

bill affords no explanation for the taxpayer's failure to file a timely claim for

refund.

The statutory period of limitations,

which the Congress has included in the

revenue system as a matter of sound policy, is essential in order to achieve finality in tax administration. Granting special relief in this case would constitute a

discrimination against other taxpayers

similarly situated and would create an

undesirable precedent.

For these reasons I am constrained to

withhold my approval from the bill.

On August 28, 1958:

'NORTH COUNTIES HYDRO-ELECTRIC CO.

H. R. 10419. I am withholding my approval from H. R. 10419, for the relief of

North Counties Hydro-Electric Co.

The bill provides that--

notwithstanding any statute of limitation,

lapse of time, or any prior court decision of

this claim by any court of the United States,

jurisdiction is hereby conferred upon the

United States Court of Claims to hear, determine, and render judgment on the claim of

North Counties Hydro-Electric Co., of Illinois, against the United States for damages

to its powerplant and dam at Dayton, Ill.,

sustained as the result of a dam built by the

United States on the Illinois River, at Starved

Rock near Ottawa, Ill.

The North Counties Hydro-Electric

Co. owns a hydroelectric power development on the Fox River near Dayton, Ill.

On two occasions, once in 1943 and again

in 1952, the company suffered damages

to its facilities from ice jams and flooding in the river. It twice brought suit

against the United States in the Court

of Claims alleging that the ice jam and

flooding were caused by the erection by

the United States of the Starved Rock

Dam, which is located on the Illinois

River at a point approximately 14 miles

below the corporation's properties. In

each instance the decision of the Court

of Claims went against the company.

The matters covered by this bill have

been fully considered on their merits and

decided adversely to the corporation.

The company has had its day in court

on two occasions and the Court of Claims

should not now be required to consider

the same matter again.

On September 2, 1958:

SOUTHWEST RESEARCH INSTITUTE

H. R. 1494. I am withholding my approval from H. R. 1494, for the relief of

the Southwest Research Institute.

This bill would direct the Secretary of

the Treasury to pay to the Southwest

Research Institute such sum, not exceeding $8,200.84, as the Housing and

Home Finance Administrator may ap-:

prove. This payment would be for

services rendered by the beneficiary in

excess of its written contract with the

Government.

Approval of this legislation could well

encourage others to perform unauthorized work and expect payment therefor

from the Government. Furthermore,

under this bill this organization would

receive preferential treatment which has

in the past been denied other research

contractors who performed work in excess of their contract obligations.

On September 2, 1958:

HARRY N. DUFF

H. R. 1695. I am withholding my approval from H. R. 1695, for the relief of

Harry N. Duff.

This bill would confer jurisdiction on

the Court of Claims, notwithstanding

the applicable statute of limitations, to

adjudicate the claim of Harry N. Duff

arising out of the failure of the then War

Department to retire him, in 1946, for

physical disability incurred as an incident of his military service.

The beneficiary of this bill had a long

history of spinal trouble and arthritis

while serving as an officer in the Army

during World War II. He contends that

these disabilities were suffered or aggravated as a result of injuries incurred in

the service. Although early medical

records do not support this contention, in

1945 an Army retiring board found the

beneficiary permanently incapacitated

for active duty as an incident of the

service and recommended his retirement.

Reviewing the case in accordance with

applicable regulations, the Office of the

Surgeon General of the Army disagreed

with the findings of the retiring board

and requested it to reconsider the case.

Upon reconsideration, the retiring board

reaffirmed its previous findings, whereupon the Office of the Surgeon General

recommended to the Secretary of War

that the findings of the board be disapproved. The recommendation of that

office was based on its opinion that a

spinal defect and arthritis clearly had

existed prior to entry on active duty

and had not been aggravated permanently by such service. The findings of the

board were disapproved by the Secretary of War, and the beneficiary was

thereupon released from active duty in

1946, without entitlement to retired pay.

In 1949, however, he was awarded disability compensation by the Veterans'

Administration on account of serviceaggravation of a congenital defect.

The beneficiary appealed the decision

in his case to the statutory Army Disability Review Board. In 1947 this Board

affirmed the decision of the Secretary

of War and, subsequently, reaffirmed its

decision upon a request for reconsideration. In 1955 the Army Board for Correction of Military Records found no error or injustice in the determinations

which had been made in the beneficiary's

case. He also brought an action in the

Court of Claims in 1955, which was dismissed as barred by the statute of limitations.

Traditionally, eligibility for retirement

on account of physical disability has been

determined by the military services in

accordance with general provisions of

law. Appellate review of these determinations has been provided within the

executive branch by means of statutory

boards such as the Disability Review

Board and the Board for Correction of

Military Records.

In recent years the Court of Claims has

been petitioned in various cases to award

disability retirement to individuals who

have been found not entitled to such pay

by the Secretary of the military department concerned. In consistently denying these petitions, the court has stated,

in effect, that, under the statutory procedures for determining and reviewing

entitlement to retirement, it has jurisdiction only in cases where it can be shown

that the cognizant military Secretary has

acted arbitrarily, capriciously, or plainly

contrary to law.

I believe that this rule which the Court

of Claims has adopted is a sound one. It

conforms to an important principle underlying judicial review of administrative decisions; namely, that the courts

will not substitute their judgment for

that of the experienced officials who have

been given adjudicative responsibility by

law. For this reason and since there is

no evidence in this case that the Secretary of War acted arbitrarily, capriciously, or contrary to law, I can see no

justification for special legislation which

would require the Court of Claims to

grant the beneficiary a de novo hearing.

Approval of this bill would discriminate

against the many hundreds of individuals who have had their claims for disability retirement denied without benefit

of judicial review. It would also establish an undesirable precedent leading to

other exceptions to the orderly procedure

which is now provided for under general

law and which currently governs the

hundreds of similar cases that are adjudicated each year.

On September 2, 1958:

TOLEY'S CHARTER BOATS, INC., ETC.

H. R. 3193. I am withholding my approval from H. R. 3193, entitled "For the

relief of Toley's Charter Boats, Inc.,

Toley Engebretsen, and Harvey Homlar."

The bill would direct the Secretary of

the Treasury to pay the sum of $37.65 to

Toley's Charter Boats, Inc., of Salerno,

Fla., and the sum of $3,227.10 to Toley

Engebretsen and Harvey Homlar, of Salerno, Fla., in full settlement of all claims

of the named persons for a refund of

taxes paid pursuant to section 3469 of the

Internal Revenue Code of 1939, relating

to tax on the transportation of persons.

The records of the Treasury Department show that the amounts which this

bill would refund to the claimants were

paid as transportation taxes with respect

to fees charged for the charter of fishing

boats by the claimants at various times

between January 1945 and November

1951. On March 31, 1953, the District

Court for the Northern District of Florida held that the transportation tax was

not applicable to amounts paid for fishing parties in situations similar to the

one involved in this bill. On the date of

this decision, the claimants could have

1958 19721