A-84769, APRIL 12, 1937, 16 COMP. GEN. 916

A-84769, APRIL 12, 1937, 16 COMP. GEN. 916

VEHICLES - MOTOR-PROPELLED PASSENGER-CARRYING - RENTAL LIMITATIONS - DEPARTMENT OF AGRICULTURE THE PROVISIONS OF THE ACT OF AUGUST 11, 1916, 39 STAT. 491, AUTHORIZING THE HIRING, MAINTENANCE, REPAIR, AND OPERATION OF MOTOR PROPELLED PASSENGER-CARRYING VEHICLES FOR USE IN FIELD WORK OF THE DEPARTMENT OF AGRICULTURE WITHOUT REGARD TO THE INHIBITION IN SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, DO NOT AUTHORIZE THE HIRING BY SAID DEPARTMENT OF AN AUTOMOBILE WITHOUT REGARD TO THE LIMITATIONS IMPOSED ON THE USE OF ANNUAL APPROPRIATIONS FOR THE PURCHASE, OR MAINTENANCE, UPKEEP, AND REPAIR OF SUCH VEHICLES BY SECTION 3 OF THE ACT OF JUNE 23, 1936, 49 STAT. 1854.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, APRIL 12, 1937:

YOUR LETTER OF APRIL 6, 1937, IS AS FOLLOWS:

ON MARCH 27, 1937, WE ADDRESSED A LETTER TO YOU RELATING TO THE RENTAL OF A PASSENGER-CARRYING MOTOR VEHICLE IN ENGLAND, UNDER A CONTRACT WHICH PRESCRIBED A RENTAL FEE AT A RATE IN EXCESS OF $400 PER YEAR. IT WAS POINTED OUT TO YOU THAT IF THE RULE OF YOUR DECISION OF OCTOBER 19, 1934, TO THE SECRETARY OF WAR (A-55239, 14 COMP. GEN. 325), AND YOUR DECISION OF JANUARY 31, 1936, TO THE SECRETARY OF THE TREASURY, WERE TO BE STRICTLY APPLIED, WE SHOULD BE UNABLE TO RENT A CAR IN ENGLAND AND THAT THE WORK OF THE DEPARTMENT BEING PROSECUTED THERE WOULD SUFFER ACCORDINGLY. IN THESE DECISIONS YOU HELD THAT THE $400 LIMITATION PRESCRIBED IN THE POST OFFICE APPROPRIATION ACT FOR THE UPKEEP AND MAINTENANCE OF MOTOR-PROPELLED VEHICLES APPLIED ALSO TO THE RENTAL OF SUCH VEHICLES, DESPITE THE FACT THAT THE STATUTE IS ABSOLUTELY SILENT AS TO RENT. WE FEEL THAT THERE IS ROOM FOR REASONABLE DOUBT AS TO WHETHER THIS RULING SHOULD BE APPLIED TO THE DEPARTMENT OF AGRICULTURE IN ITS FIELD OPERATIONS, IN VIEW OF THE FACT THAT SECTION 33 OF "AN ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE FOR THE FISCAL YEAR ENDING JUNE THIRTIETH, NINETEEN HUNDRED AND SEVENTEEN, AND FOR OTHER PURPOSES," PUBLIC, NO. 190, 64TH CONGRESS, PROVIDES:

"THAT HEREAFTER, NOTHING IN THIS PARAGRAPH OR IN SECTION FIVE OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL APPROPRIATION ACT APPROVED JULY SIXTEENTH, NINETEEN HUNDRED AND FOURTEEN (THIRTY-EIGHT STATUTES AT LARGE, PAGE FIVE HUNDRED AND EIGHT), SHALL BE CONSTRUED TO APPLY TO THE HIRE OF MOTOR-PROPELLED AND HORSE-DRAWN PASSENGER-CARRYING VEHICLES AND MOTOR BOATS NECESSARY IN THE CONDUCT OF THE FIELD WORK OF THE DEPARTMENT, OR TO THE MAINTENANCE, REPAIR, OR OPERATION OF VEHICLES SO HIRED.'

WE CALLED YOUR ATTENTION TO THIS STATUTORY PROVISION IN OUR LETTER OF MARCH 27, RELATING TO THE RENTAL OF PASSENGER-CARRYING MOTOR VEHICLES ABROAD; AND IN YOUR REPLY, THE EXPEDITION OF WHICH WE SINCERELY APPRECIATE, YOU MADE NO REFERENCE WHATEVER TO THIS LEGISLATION APPLICABLE SPECIFICALLY TO THE DEPARTMENT OF AGRICULTURE. IN ENACTING THIS LEGISLATION WE BELIEVE CONGRESS GAVE DUE CONSIDERATION TO THE PECULIAR NATURE OF THE FIELD WORK OF THE DEPARTMENT, THE REMOTE REGIONS IN WHICH SOME OF THE OPERATIONS ARE PERFORMED, AND THE URGENT NEED FOR RENTED MOTOR EQUIPMENT UNDER VARYING CIRCUMSTANCES, AND THAT FOR THESE REASONS, AMONG OTHERS, NO LIMITATION WAS PLACED ON THE RENTAL OR THE UPKEEP AND REPAIR OF DEPARTMENTAL PASSENGER-CARRYING VEHICLES IN THE FIELD.

IN VIEW OF THE UNRESTRICTED LANGUAGE OF PUBLIC, NO. 190, 64TH CONGRESS, SUPRA, AND IN VIEW OF THE ADDITIONAL FACT THAT THE TREASURY AND POST OFFICE APPROPRIATION ACT MAKES NO REFERENCE TO RENT, IT IS NOT BELIEVED THAT A LIMITATION AS TO THE RENTAL AND UPKEEP BY THE DEPARTMENT OF AGRICULTURE OF A HIRED MACHINE IN THE FIELD SHOULD BE GOVERNED BY THE DECISIONS OF YOUR OFFICE PERTAINING TO THE $400 LIMITATION FOR MAINTENANCE AND REPAIRS IN THE TREASURY AND POST OFFICE APPROPRIATION ACT.

NO DOUBT, IN CONSIDERING OUR REQUEST FOR AN EARLY REPLY TO THE SPECIFIC CASE OUTLINED IN YOUR SUBMISSION OF MARCH 27, THE FOREGOING PROVISION FROM PUBLIC, NO. 190, 64TH CONGRESS, PERTAINING TO THE DEPARTMENT WAS EITHER OVERLOOKED OR NOT FOUND NECESSARY TO A DETERMINATION OF THE CASE, AND IT IS FOR THIS REASON THAT THE MATTER IS BEING SUBMITTED AGAIN IN ORDER TO ASCERTAIN WHETHER YOU AGREE WITH OUR CONCLUSION AS SET FORTH ABOVE.

IN THE DECISION TO YOU OF MARCH 31, 1937, A-84769 (16 COMP. GEN. 903), IT WAS STATED:

THE LIMITATION UPON THE AMOUNTS WHICH MAY BE EXPENDED FOR MAINTENANCE, UPKEEP, AND REPAIR OF PASSENGER-CARRYING VEHICLES IS A LIMITATION UPON THE APPROPRIATIONS FOR EACH PARTICULAR FISCAL YEAR. SEE SECTION 3, ACT OF JUNE 23, 1936, 49 STAT. 1854. THAT IS TO SAY, IT PROHIBITS THE EXPENDITURE OF MORE THAN THE MAXIMUM AMOUNT FIXED THEREIN DURING THE ENTIRE FISCAL YEAR. IN ORDER THAT THIS LIMITATION MAY NOT BE AVOIDED BY REPEATED RENTING OF VEHICLES FOR LESS THAN ONE YEAR PERIODS, IT IS NECESSARY TO APPLY THE RESTRICTION PRO RATA TO THE RENTAL OF AUTOMOBILES FOR PERIODS OF LESS THAN ONE YEAR. IN 16 COMP. GEN. 95, IT WAS HELD:

"AGREEMENTS FOR THE RENTAL OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES WHICH PROVIDE FOR THE MAKING OF ALL REPAIRS, ETC., BY THE CONTRACTOR, ARE UNAUTHORIZED IF THEY EXCEED THE MAXIMUM LIMITATION PLACED BY STATUTE UPON THE AMOUNT WHICH MAY BE EXPENDED IN ANY ONE YEAR FOR MAINTENANCE, UPKEEP, AND REPAIR, EXCLUSIVE OF THE ITEMS EXCLUDED BY STATUTE, AND SUCH LIMITATION, FOR THE PURPOSE OF MONTHLY RENTAL PAYMENTS, IS FOR DETERMINATION, GENERALLY, ON THE BASIS OF ONE TWELFTH OF THE YEARLY LIMITATION, NOTWITHSTANDING THE RENTAL BASIS IS LESS THAN THE YEARLY PERIOD.'

WHERE, HOWEVER, IT IS SHOWN THAT THE NEED FOR A PASSENGER-CARRYING VEHICLE IS LIMITED TO A SHORTER PERIOD THAN ONE YEAR AND THE RENTAL FOR SUCH LIMITED PERIOD DOES NOT EXCEED THE MAXIMUM PERMITTED TO BE EXPENDED FOR THE WHOLE YEAR, THE DECISION IN 16 COMP. GEN. 95 IS NOT FOR APPLICATION AND THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF SUCH RENTAL.

THERE WAS NOT OVERLOOKED IN THAT DECISION THE PROVISION IN THE AGRICULTURAL APPROPRIATION ACT TO WHICH YOU AGAIN CALL ATTENTION. THAT PROVISION, HOWEVER, DOES NOT EXEMPT FROM OR OVERCOME THE STATUTORY LIMITATIONS UPON WHICH THE DECISION OF MARCH 31, 1937, AND THE PRIOR DECISION IN 16 COMP. GEN. 95 WERE BASED, AND WHICH FOR THE FISCAL YEAR 1937 ARE FOUND NOT IN THE APPROPRIATION FOR YOUR DEPARTMENT NOR IN THE ACT OF JULY 16, 1914, BUT IN SECTION 3 OF THE POST OFFICE DEPARTMENT APPROPRIATION ACT, APPROVED JUNE 23, 1936, 49 STAT. 1854, AND WHICH LIMITATIONS ARE SPECIFICALLY MADE APPLICABLE TO ALL APPROPRIATIONS FOR EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR THE FISCAL YEAR 1937. WHILE IT IS TRUE THESE LIMITATIONS DO NOT MENTION RENT, NEITHER DOES THE INHIBITION IN SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, MENTION RENT, AND YET IT HAS BEEN HELD UNIFORMLY THAT SAID INHIBITION DOES APPLY TO RENT. SEE DECISION OF JANUARY 19, 1915, 21 COMP. DEC. 462, AND NUMEROUS SUBSEQUENT DECISIONS. HENCE, ALTHOUGH THE PROVISION OF THE ACT OF AUGUST 11, 1916, 39 STAT. 491 (QUOTED IN YOUR LETTER, SUPRA), AUTHORIZES THE HIRING OF AUTOMOBILES FOR USE IN THE FIELDWORK OF YOUR DEPARTMENT AND THE MAINTENANCE, REPAIR, AND OPERATION OF THE VEHICLES SO HIRED, NOTWITHSTANDING THE INHIBITION IN SECTION 5 OF THE ACT OF JULY 16, 1914, SAID PROVISION CANNOT OPERATE TO REMOVE OR MAKE AN EXCEPTION TO THE LIMITATIONS IMPOSED ON THE USE OF ANNUAL APPROPRIATIONS FOR THE PURCHASE, OR THE MAINTENANCE, UPKEEP, AND REPAIR OF AUTOMOBILES. THEREFORE, ANY HIRING OF AN AUTOMOBILE THE PURPOSE OR EFFECT OF WHICH IS TO CIRCUMVENT EITHER OR BOTH OF SAID LIMITATIONS IS UNAUTHORIZED AND THE DECISION OF JULY 31, 1936, 16 COMP. GEN. 95, IS TO BE UNDERSTOOD AND APPLIED ACCORDINGLY.