B-11281, APRIL 2, 1941, 20 COMP. GEN. 592

B-11281: Apr 2, 1941

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ARE APPLICABLE TO EMPLOYEES OF THE PANAMA RAILROAD CO. 1941: THERE WAS RECEIVED MARCH 8. WILL NOT BE AVAILABLE FOR PAYMENT TO THE PANAMA RAILROAD CO. UNLESS MODIFYING LEGISLATION PREVIOUSLY IS ENACTED OR THE PRESIDENT SUSPENDS COMPLIANCE THEREWITH PURSUANT TO THE LAST PROVISO OF SUCH SECTION. THE CRUX OF YOUR ARGUMENT AGAINST THE DECISION IS CONTAINED ON PAGES 6 AND 7 OF YOUR LETTER. AS FOLLOWS: THE ARGUMENT IN THE DECISION THAT NO OTHER CONSTRUCTION IS APPARENT WHICH WOULD GIVE EFFECT TO THE WHOLE OF THE SECTION. " FAILS WHEN IT IS CONSIDERED THAT THERE IS NO SUCH LEGISLATIVE PURPOSE BECAUSE NOT EXPRESSED OR IMPLIED IN THE LANGUAGE USED. IN THIS CONNECTION IT IS OBSERVED THAT THE DECISION CITES NOT AUTHORITIES SUPPORTING THE PROPOSITION THAT THE ASSUMED.

B-11281, APRIL 2, 1941, 20 COMP. GEN. 592

PANAMA CANAL - EMPLOYMENT RESTRICTIONS THE PANAMA CANAL ZONE CITIZENSHIP EMPLOYMENT RESTRICTIONS OF SECTION 2 OF THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1941, ARE APPLICABLE TO EMPLOYEES OF THE PANAMA RAILROAD CO., WHETHER DIRECTLY OR INDIRECTLY EMPLOYED, INCLUDING EMPLOYEES OF CONTRACTORS PERFORMING WORK UNDER DIRECT CONTRACT. 20 COMP. GEN. 81 AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE GOVERNOR, THE PANAMA CANAL, APRIL 2, 1941:

THERE WAS RECEIVED MARCH 8, 1941, YOUR LETTER OF FEBRUARY 17, 1941, REQUESTING RECONSIDERATION OF THE DECISION OF THIS OFFICE, AUGUST 13, 1940, 20 COMP. GEN. 81, HOLDING THAT APPROPRIATIONS FOR THE PANAMA CANAL MADE BY THE WAR DEPARTMENT CIVIL APPROPRIATIONS ACT, 1941, PUBLIC, NO. 653, JUNE 24, 1940, 54 STAT. 505, WILL NOT BE AVAILABLE FOR PAYMENT TO THE PANAMA RAILROAD CO. WITH RESPECT TO SERVICES AFTER MAY 1, 1941, EXCEPT UPON COMPLIANCE BY THE RAILROAD, AND BY CONTRACTORS PERFORMING WORK UNDER DIRECT CONTRACT FOR THE RAILROAD, WITH THE RESTRICTIONS ON ALIEN EMPLOYMENT PRESCRIBED BY SECTION 2 OF THE SAID APPROPRIATION ACT, UNLESS MODIFYING LEGISLATION PREVIOUSLY IS ENACTED OR THE PRESIDENT SUSPENDS COMPLIANCE THEREWITH PURSUANT TO THE LAST PROVISO OF SUCH SECTION.

THE CRUX OF YOUR ARGUMENT AGAINST THE DECISION IS CONTAINED ON PAGES 6 AND 7 OF YOUR LETTER, AS FOLLOWS:

THE ARGUMENT IN THE DECISION THAT NO OTHER CONSTRUCTION IS APPARENT WHICH WOULD GIVE EFFECT TO THE WHOLE OF THE SECTION, INCLUDING THE MCCARRAN AMENDMENT, AND TO THE "EVIDENT LEGISLATIVE PURPOSE," FAILS WHEN IT IS CONSIDERED THAT THERE IS NO SUCH LEGISLATIVE PURPOSE BECAUSE NOT EXPRESSED OR IMPLIED IN THE LANGUAGE USED. IN THIS CONNECTION IT IS OBSERVED THAT THE DECISION CITES NOT AUTHORITIES SUPPORTING THE PROPOSITION THAT THE ASSUMED, BUT UNEXPRESSED, LEGISLATIVE INTENT, WHICH ASSUMED LEGISLATIVE INTENT IS REJECTED IN THE DECISION, REQUIRES A BROAD CONSTRUCTION OF THE PROVISO AT VARIANCE WITH THE USUAL RULE OF STRICT CONSTRUCTION.

THE RULE OF STATUTORY CONSTRUCTION STATED ON PAGE 84 OF THE DECISION (20 C.G. 84), THAT THE LEGISLATURE IS PRESUMED TO HAVE USED NO SUPERFLUOUS WORDS, AND THE FURTHER RULE THAT A STATUTE IS TO BE SO CONSTRUED THAT, IF POSSIBLE NO CLAUSE, SENTENCE, NOR WORD SHALL BE SUPERFLUOUS, VOID OR INSIGNIFICANT, ARE NOT, IT IS SUBMITTED SUSCEPTIBLE OF APPLICATION TO THIS SITUATION FOR THE REASON THAT IT IS NOT POSSIBLE TO ASCRIBE TO THE LANGUAGE OF PROVISO "/6)" ANY EFFECT BEYOND THE EFFECT, REFERRED TO IN THE DECISION (PG. 89), OF EXTENDING THE PROHIBITION TO PERSONS EMPLOYED ,INDIRECTLY" BY THE PANAMA RAILROAD COMPANY, WHICH EFFECT IS IMPERCEPTIBLE AS A PRACTICAL MATTER. IN SECTION 2, INCLUDING PROVISO "/6)," CONGRESS HAS CLEARLY EXPRESSED ITSELF TAUTOLOGICALLY. THAT CONGRESS DOES ON OCCASION SO EXPRESS ITSELF IS COMMON KNOWLEDGE AND IS RECOGNIZED IN THE CASE OF EMERY BIRD THAYER DRY GOODS CO. VS. WILLIAMS, 98 FED. 2D 166, WHEREIN IT IS SAID THAT " WHILE CONGRESS MAY EXPRESS ITSELF TAUTOLOGICALLY, THE FACT THAT IT HAS DONE SO IS A CONCLUSION OR INTERPRETATION TO BE AVOIDED IF FAIRLY POSSIBLE.' ( ITALICS SUPPLIED.) IT IS SUBMITTED THAT IT IS NOT "FAIRLY POSSIBLE" TO AVOID THAT CONCLUSION IN THE SITUATION AT HAND. IT IS FURTHER SUBMITTED THAT THE PROPER RULE FOR APPLICATION HERE IS THAT STATED IN U.S. VS. JACKSON, 143 F. 783, 75 C.C.A. 41, THAT WHEN WORDS OCCUR IN A STATUTE WHICH CAN BE GIVEN NO EFFECT CONSISTENT WITH THE PLAIN INTENT OF THE STATUTE, THEY MUST BE REJECTED AS WITHOUT MEANING.

AS HEREINBEFORE ASSERTED, SECTION 2 IS LIMITED IN APPLICATION TO SUCH PERSONS EMPLOYED IN THE CANAL ZONE AS ARE PAID "DIRECTLY OR INDIRECTLY" FROM THE RESTRICTED APPROPRIATIONS. THE DECISION DOES NOT PURPORT TO FIND THAT ALL THE GENERAL REVENUES OF THE COMPANY ARE DERIVED FROM THE RESTRICTED APPROPRIATIONS BUT ONLY THAT SUCH GENERAL REVENUES ARE "DERIVED IN PRINCIPAL PART" FROM SUCH APPROPRIATIONS. THE PANAMA RAILROAD COMPANY RECEIVES VERY SUBSTANTIAL REVENUES FROM COMMERCIAL AND OTHER PRIVATE SOURCES, FROM ITS RAILROAD SERVICE, HARBOR TERMINALS, COALING PLANT, TELEPHONE SECTION, DAIRY FARM, HOTELS, AND COMMISSARY SERVICE. THE DECISION, BY APPLYING SECTION 2 TO ALL EMPLOYEES OF THE COMPANY, HAS NECESSARILY APPLIED THE SECTION TO SUCH EMPLOYEES AS MUST BE PRESUMED TO HAVE BEEN PAID FROM FUNDS RECEIVED FROM PRIVATE SOURCES AND NOT PAID INDIRECTLY FROM THE RESTRICTED APPROPRIATIONS. INSOFAR AS THE DECISION APPLIES SECTION 2 TO SUCH EMPLOYEES OF THE COMPANY AS ARE NOT PAID INDIRECTLY FROM THE RESTRICTED APPROPRIATION, IT CAN HAVE NO LEGAL BASIS AND OBVIOUSLY CONSTITUTES "JUDICIAL" LEGISLATION. AS IS SAID IN 59 CORPUS JURIS AT PAGE 955, A STATUTE MUST BE GIVEN EFFECT ACCORDING TO ITS PLAIN AND OBVIOUS MEANING, AND CANNOT BE EXTENDED BEYOND IT BECAUSE OF SOME SUPPOSED POLICY OF THE LAW, OR BECAUSE THE LEGISLATURE DID NOT USE PROPER WORDS TO EXPRESS ITS MEANING, OR THE COURT WOULD BE ASSUMING LEGISLATIVE AUTHORITY.

THUS THE ISSUE IS WHETHER THE MCCARRAN AMENDMENT, THE SO-CALLED "PROVISO (6)" IN SECTION 2 OF THE ACT, IS SURPLUSAGE AND MEANINGLESS, OR WHETHER, AS HELD IN THE DECISION, WHEN READ IN CONJUNCTION WITH THE REST OF THE SECTION IN THE LIGHT OF ITS LEGISLATIVE HISTORY, IT SUFFICIENTLY DENOTES A LEGISLATIVE PURPOSE TO EXTEND THE PROHIBITION OF SECTION 2 AGAINST ALIEN EMPLOYMENT ON THE CANAL ZONE TO THE GOVERNMENT OWNED PANAMA RAILROAD CO. YOU URGE THAT NO SUCH LEGISLATIVE PURPOSE IS EVIDENCED "BECAUSE NOT EXPRESSED OR IMPLIED IN THE LANGUAGE USED.' BUT THERE APPEARS AT LEAST A FAIR IMPLICATION OF SUCH PURPOSE IN THE LANGUAGE OF THE SAID MCCARRAN AMENDMENT THAT "/6) THIS ENTIRE SECTION SHALL APPLY ONLY TO PERSONS EMPLOYED IN SKILLED, TECHNICAL, CLERICAL, ADMINISTRATIVE, EXECUTIVE, OR SUPERVISORY POSITIONS ON THE CANAL ZONE DIRECTLY OR INDIRECTLY BY ANY BRANCH OF THE UNITED STATES GOVERNMENT OR BY ANY CORPORATION OR COMPANY WHOSE STOCK IS OWNED WHOLLY OR IN PART BY THE UNITED STATES GOVERNMENT.' ( ITALICS SUPPLIED.) IT MUST BE ASSUMED THAT CONGRESS WAS AWARE THAT THE ACT MADE NO APPROPRIATIONS FOR ANY SUCH CORPORATIONS OR COMPANIES, AND THE DELIBERATE INCORPORATION IN THE ACT BY A SEPARATE AMENDMENT OF THE EXPRESS LANGUAGE "ANY CORPORATION OR COMPANY WHOSE STOCK IS OWNED WHOLLY OR IN PART BY THE UNITED STATES GOVERNMENT" CERTAINLY RAISES AN IMPLICATION THAT SUCH CORPORATIONS AND COMPANIES WERE INTENDED TO BE AFFECTED AND BROUGHT WITHIN THE AMBIT OF THE RESTRICTION. " WHILE CONGRESS MAY EXPRESS ITSELF TAUTOLOGICALLY, THE FACT THAT IT HAS DONE SO IS A CONCLUSION OR INTERPRETATION TO BE AVOIDED IF FAIRLY POSSIBLE," AND WHERE, AS HERE, THE LANGUAGE HAS BEEN INCORPORATED IN THE LEGISLATION AS AN AMENDMENT SEPARATELY CONSIDERED AND DELIBERATELY ADOPTED, IT WOULD REQUIRE THE UTMOST JUSTIFICATION TO DISREGARD IT AS MEANINGLESS OR TAUTOLOGICAL. THE EXPRESS INCLUSION IN THE AMENDMENT OF "ANY CORPORATION OR COMPANY WHOSE STOCK IS OWNED WHOLLY OR IN PART BY THE UNITED STATES GOVERNMENT," ALTHOUGH NO APPROPRIATIONS WERE MADE BY THE ACT FOR ANY SUCH CORPORATION OR COMPANY, AT LEAST RAISES A SUFFICIENT IMPLICATION THAT THE RESTRICTIONS OF SECTION 2 WERE TO EXTEND TO ANY SUCH CORPORATION OR COMPANY TO WARRANT EXAMINATION OF THE LEGISLATIVE HISTORY OF THE AMENDMENT TO RESOLVE THE AMBIGUITY OF SUCH LANGUAGE AS USED IN CONJUNCTION WITH THE LANGUAGE WHICH IT AMENDED, EXTENDED, OR RESTRICTED. SUCH EXAMINATION SHOWED CLEARLY ENOUGH, AS SET FORTH IN THE DECISION OF AUGUST 13, 1940, THAT THE AMENDMENT WAS INTENDED TO EXTEND THE RESTRICTIONS OF SECTION 2 TO THE PANAMA RAILROAD CO. YOU URGE, NEVERTHELESS, THAT BEING CAST IN THE FORM OF A PROVISO, WHICH NORMALLY WOULD LIMIT AND NOT EXTEND THE RESTRICTIONS, THE WORDS USED FAILED TO EXPRESS THAT PURPOSE AND, HAVING NO OTHER APPARENT PURPOSE, SHOULD BE DISREGARDED AS TAUTOLOGICAL AND MEANINGLESS. THIS VIEW LOOKS TO THE FORM AND DISREGARDS THE SUBSTANCE OF THE ENACTMENT. RECENTLY AS UNITED STATES V. HUTCHESON, DECIDED FEBRUARY 3, 1941, THE SUPREME COURT OF THE UNITED STATES HAD OCCASION TO SAY ON THIS SUBJECT:

* * * ON MATTERS FAR LESS VITAL AND FAR LESS INTERRELATED WE HAVE HAD OCCASION TO POINT OUT THE IMPORTANCE OF GIVING "HOSPITABLE SCOPE" TO CONGRESSIONAL PURPOSE EVEN WHEN METICULOUS WORDS ARE LACKING. KEIFER AND KEIFER V. R.F.C., 306 U.S. 381, 391, AND AUTHORITIES THERE CITED. THE APPROPRIATE WAY TO READ LEGISLATION IN A SITUATION LIKE THE ONE BEFORE US, WAS INDICATED BY MR. JUSTICE HOLMES ON CIRCUIT: "A STATUTE MAY INDICATE OR REQUIRE AS ITS JUSTIFICATION A CHANGE IN THE POLICY OF THE LAW, ALTHOUGH IT EXPRESSES THAT CHANGE ONLY IN THE SPECIFIC CASES MOST LIKELY TO OCCUR IN THE MIND. THE LEGISLATURE HAS THE POWER TO DECIDE WHAT THE POLICY OF THE LAW SHALL BE, AND IF IT HAS INTIMATED ITS WILL, HOWEVER INDIRECTLY, THAT WILL SHOULD BE RECOGNIZED AND OBEYED. THE MAJOR PREMISE OF THE CONCLUSION EXPRESSED IN A STATUTE, THE CHANGE OF POLICY THAT INDUCES THE ENACTMENT, MAY NOT BE SET OUT IN TERMS, BUT IT IS NOT AN ADEQUATE DISCHARGE OF DUTY FOR THE COURTS TO SAY: WE SEE WHAT YOU ARE DRIVING AT, BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO ON AS BEFORE.' JOHNSON V. UNITED STATES, 163 FED. 30, 32. ( ITALICS SUPPLIED.)

AS WAS ATTEMPTED TO BE POINTED OUT IN THE DECISION OF AUGUST 13, 1940, THE WORDS OF THE MCCARRAN AMENDMENT READ IN CONJUNCTION WITH THE PRECEDING LANGUAGE IN SECTION 2 IN THE LIGHT OF THE LEGISLATIVE PURPOSE IMPLIED IN THE MCCARRAN AMENDMENT BY THE EXPRESS INCLUSION THEREIN OF "ANY CORPORATION OR COMPANY WHOSE STOCK IS OWNED WHOLLY OR IN PART BY TH UNITED STATES GOVERNMENT," AS WELL AS SHOWN BY THE LEGISLATIVE HISTORY, ARE NOT INAPPROPRIATE TO EFFECT THAT PURPOSE. THIS IS MADE MORE CLEAR BY READING THE SECTION ELLIPTICALLY AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED * * * INDIRECTLY AFTER MAY 1, 1941, * * * FOR THE PAYMENT OF ANY CIVILIAN FOR SERVICES RENDERED BY HIM ON THE CANAL ZONE * * * UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES OF AMERICA OR OF THE REPUBLIC OF PANAMA * * * EMPLOYED IN SKILLED, TECHNICAL, CLERICAL,ADMINISTRATIVE, EXECUTIVE, OR SUPERVISORY POSITIONS ON THE CANAL ZONE * * * BY ANY CORPORATION OR COMPANY WHOSE STOCK IS OWNED WHOLLY OR IN PART BY THE UNITED STATES GOVERNMENT * * * ( ITALICS SUPPLIED.)

THAT IS, NO PART OF THE MONEY APPROPRIATED BY THE ACT IS TO BE USED INDIRECTLY FOR THE PAYMENT OF ALIENS (OTHER THAN CITIZENS OF PANAMA) EMPLOYED IN THE DESCRIBED POSITIONS ON THE CANAL ZONE BY THE PANAMA RAILROAD CO. WHILE YOU POINT OUT THAT SOMETHING LESS THAN HALF OF THE REVENUES OF THE RAILROAD COMPANY ARE CURRENTLY BEING DERIVED FROM THE RESTRICTED APPROPRIATIONS, THE SUBSTANTIAL AMOUNTS SO DERIVED ARE PAID INTO THE GENERAL REVENUES OF THE RAILROAD COMPANY, TO BE USED, AMONG OTHER THINGS, WITHOUT APPORTIONMENT OR SEGREGATION FROM OTHER FUNDS, FOR PAYMENT OF THE RAILROAD COMPANY'S EMPLOYEES, SO THAT, IF ALIENS ARE EMPLOYED, THE RESTRICTED APPROPRIATIONS WILL BE ,INDIRECTLY" USED TO PAY THEM, AT LEAST IN SOME SUBSTANTIAL PART, CONTRARY TO THE ACT, SUCH PAYMENTS BEING ONLY ONE STEP REMOVED FROM THE APPROPRIATIONS. THE DECISION OF AUGUST 13, 1940, WENT NO FURTHER IN THIS RESPECT THAN TO HOLD THAT THE WORD "INDIRECTLY" SHOULD BE SO CONSTRUED, GIVING SUCH WORD IN THE STATUTE A MEANING FAIRLY WITHIN ITS USUAL CONNOTATION AND APPROPRIATE TO EFFECT THE ONLY PURPOSE DISCERNIBLE IN ADOPTING THE MCCARRAN AMENDMENT, RATHER THAN HOLDING SUCH AMENDMENT TO BE NUGATORY AND MEANINGLESS. I SEE NO REASON TO DIFFER FROM THE CONCLUSIONS THERE REACHED. IF THERE BE ADMINISTRATIVE REASONS IN THE PUBLIC INTEREST FOR NOT PUTTING THE SECTION INTO EFFECT, THE PRESIDENT IS EXPRESSLY AUTHORIZED TO SUSPEND COMPLIANCE THEREWITH IN TIME OF WAR OR NATIONAL EMERGENCY. IT IS NOTED IN THIS CONNECTION THAT THE LANGUAGE OF THE SECTION, INCLUDING THE LANGUAGE OF THE SAID MCCARRAN AMENDMENT, IS REPEATED VERBATIM IN THE NAVAL APPROPRIATION BILL FOR 1942, H.R. 3981, AS PASSED BY THE HOUSE OF REPRESENTATIVES, MARCH 14, 1941, AND BY THE SENATE, MARCH 20, 1941. WHETHER OR NOT THIS ACTION WAS TAKEN WITH KNOWLEDGE OF THE INTERPRETATION GIVEN THE LANGUAGE BY THIS OFFICE IN THE DECISION OF AUGUST 13, 1940, IT DENOTES THAT THERE IS NO PRESENT LEGISLATIVE PURPOSE TO REMOVE OR CHANGE THE EFFECT OF THE RESTRICTIONS PREVIOUSLY IMPOSED ON ALIEN EMPLOYMENT ON THE CANAL ZONE.

Nov 24, 2017

  • FEI Systems
    We deny the protest in part and dismiss it in part.
    B-414852.2

Nov 22, 2017

Nov 21, 2017

  • A-P-T Research, Inc.
    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

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