A-2328, FEBRUARY 6, 1929, 8 COMP. GEN. 411

A-2328: Feb 6, 1929

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APPROPRIATIONS - AGRICULTURAL EXPERIMENT STATIONS - FEDERAL AID TO STATES THE RIGHT OF A STATE TO SHARE IN APPROPRIATIONS FOR EXPERIMENT STATIONS IS CONDITIONAL UNDER THE ACTS OF MARCH 16. UPON THE CERTIFICATE OF THE SECRETARY OF AGRICULTURE MADE ON OR BEFORE JULY 1 OF EACH YEAR THAT "IT IS COMPLYING WITH THE PROVISIONS OF THIS ACT. " AND WHERE CONDITIONS ARE SUCH AS TO PRECLUDE SUCH CERTIFICATION ON OR BEFORE JULY 1 THERE IS NO AUTHORITY. THIS WAS BECAUSE OF UNSATISFACTORY CONDITIONS OF ORGANIZATION AND OPERATION AT THE STATION IN QUESTION. ENTERED UPON THE CORRECTION OF THESE CONDITIONS AND HAVE NOW REMOVED ALL OBSTACLES TO DEPARTMENTAL ACTION. WE ARE AT THIS TIME PREPARED TO CERTIFY THAT THE STATE OF OKLAHOMA IS ENTITLED TO RECEIVE ITS SHARE OF THE FUNDS MENTIONED FOR THE CURRENT FISCAL YEAR.

A-2328, FEBRUARY 6, 1929, 8 COMP. GEN. 411

APPROPRIATIONS - AGRICULTURAL EXPERIMENT STATIONS - FEDERAL AID TO STATES THE RIGHT OF A STATE TO SHARE IN APPROPRIATIONS FOR EXPERIMENT STATIONS IS CONDITIONAL UNDER THE ACTS OF MARCH 16, 1906, 34 STAT. 64, AND FEBRUARY 24, 1925, 43 STAT. 971, UPON THE CERTIFICATE OF THE SECRETARY OF AGRICULTURE MADE ON OR BEFORE JULY 1 OF EACH YEAR THAT "IT IS COMPLYING WITH THE PROVISIONS OF THIS ACT," AND WHERE CONDITIONS ARE SUCH AS TO PRECLUDE SUCH CERTIFICATION ON OR BEFORE JULY 1 THERE IS NO AUTHORITY, UPON THE LATER CORRECTION OF SUCH CONDITIONS, FOR THE SECRETARY OF AGRICULTURE TO WAIVE THE FAILURE OF THE STATE TO COMPLY WITH THE CONDITIONS OF THE STATUTE ON OR BEFORE JULY 1 AND TO CERTIFY IT AS ENTITLED TO SHARE THE APPROPRIATION FOR THE FISCAL YEAR BEGINNING THAT DATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, FEBRUARY 6, 1929:

CONSIDERATION HAS BEEN GIVEN THE MATTERS INVOLVED IN YOUR LETTER OF DECEMBER 21, 1928, AS FOLLOWS:

AT THE BEGINNING OF THE PRESENT FISCAL YEAR NO CERTIFICATION ISSUED FROM THIS DEPARTMENT FOR PAYMENT TO THE OKLAHOMA AGRICULTURAL EXPERIMENT STATION OF THE FUNDS ACCRUING TO THE STATE OF OKLAHOMA UNDER THE ACTS OF MARCH 4, 1887 (HARCH ACT), MARCH 16, 1906 (ADAMS ACT), AND FEBRUARY 24, 1925, (PURNELL ACT). THIS WAS BECAUSE OF UNSATISFACTORY CONDITIONS OF ORGANIZATION AND OPERATION AT THE STATION IN QUESTION. THE AUTHORITIES OF THE STATION, HOWEVER, ENTERED UPON THE CORRECTION OF THESE CONDITIONS AND HAVE NOW REMOVED ALL OBSTACLES TO DEPARTMENTAL ACTION. IN OTHER WORDS, WE ARE AT THIS TIME PREPARED TO CERTIFY THAT THE STATE OF OKLAHOMA IS ENTITLED TO RECEIVE ITS SHARE OF THE FUNDS MENTIONED FOR THE CURRENT FISCAL YEAR.

WE ARE PRECLUDED FROM DOING SO BY YOUR DECISION OF APRIL 18, 1924 (RE A.D. 8078), HOLDING THAT ON THE FIRST OF JULY OF EACH FISCAL YEAR THE SECRETARY'S RIGHT EXPIRES BY LIMITATION TO CERTIFY FOR THE FISCAL YEAR THEN BEGUN. NOT IMPROBABLY THIS RULING WILL COST THE STATE OF OKLAHOMA ITS PROPORTION OF THE FEDERAL FUNDS FOR 1929. IT HAS, IT IS TRUE, THE RIGHT OF APPEAL TO CONGRESS, BUT WITH THE CROWDED PROGRAM OF THE PRESENT SESSION THE PROSPECTS OF RELIEF FROM THAT SOURCE ARE FAR FROM EXCELLENT.

THE OUTLOOK FOR THE STATE IS SO GRAVE THAT EVEN AT THE RISK OF OVERTAXING YOUR PATIENCE I AM CONSTRAINED TO ASK A SECOND RECONSIDERATION OF A.D. 8078. THIS IS PARTICULARLY BECAUSE YOUR DECISION SEEMS TO TURN ON THE THEORY THAT UNDER NO OTHER INTERPRETATION WOULD THE STATES BE PROTECTED FROM POSSIBLE DEPARTMENTAL DELINQUENCY IN THE CERTIFICATIONS. QUOTING A SIGNIFICANT PARAGRAPH: "THE NAMING OF THE DATE ON OR BEFORE WHICH THE CERTIFICATE IS TO BE MADE WAS IN ORDER THAT THE RIGHT OF A STATE TO RECEIVE ITS SHARE OF THE ANNUAL APPROPRIATION FOR AGRICULTURAL EXPERIMENT STATIONS SHOULD NOT BE DEFEATED BY MERE INACTION, THE ACT PROVIDING FOR AN APPEAL TO CONGRESS BY THE STATE AGAINST WHICH A CERTIFICATE HAS BEEN WITHHELD.'

THE PRESENT INSTANCE SEEMS TO US TO SHOW THAT THE DANGER TO THE STATES LIES IN QUITE ANOTHER DIRECTION. IN PRACTICAL EFFECT THE CONSTRUCTION ADOPTED IN A.D. 8087 ADDS NO NEW PROTECTION BUT WITHDRAWS THE VERY IMPORTANT PROTECTION AFFORDED BY THE FORMER PRACTICE TO THE STATES WHICH THROUGH THEIR OWN DELAY IN FURNISHING THE NECESSARY PROGRAMS OR FINANCIAL STATEMENTS OR IN CORRECTING UNSATISFACTORY CONDITIONS MAKE IMPOSSIBLE CERTIFICATION AT THE VERY BEGINNING OF THE YEAR BUT TAKE STEPS TO REMOVE THESE OBSTACLES WITH REASONABLE DISPATCH. DEPARTMENTAL INACTION, HOWEVER THEORETICALLY POSSIBLE, MUST BE PRACTICALLY ELIMINATED FROM CONSIDERATION. CERTIFICATION AND ALL OPERATIONS THAT PRECEDE AND FOLLOW IT ARE THE BUSINESS OF A SUBSTANTIAL ORGANIZATION IN THIS DEPARTMENT. THERE IS NO MORE LIKELIHOOD THAT THE OFFICERS OF THIS ORGANIZATION WILL OVERLOOK THESE DUTIES THAN THAT OUR ACCOUNTING OFFICERS WILL OVERLOOK THE PREPARATION OF PAY ROLLS OR OUR BUDGET OFFICERS THE PREPARATION OF THE ANNUAL ESTIMATES. WE CAN NOT READILY CONVINCE OURSELVES THAT SUCH A CONTINGENCY WAS IN THE MIND OF CONGRESS. OUR VIEW HAS BEEN FROM THE FIRST THAT THE PHRASE,"IF THE SECRETARY OF AGRICULTURE SHALL WITHHOLD CERTIFICATION," IN SEC. 4 OF THE ACT OF MARCH 16, 1906 (34 STAT. 64) CONTEMPLATES NOT A DEFERRED CERTIFICATION PENDING THE ADJUSTMENT OF DIFFERENCES OR THE REMOVAL OF UNSATISFACTORY CONDITIONS, BUT A FORMAL AND FINAL DECISION BY THE DEPARTMENT THAT THE STATE SHOULD NOT RECEIVE THE FEDERAL FUNDS DURING THE FISCAL YEAR. SUCH A SITUATION WOULD ARISE THROUGH IRRECONCILABLE DIFFERENCES BETWEEN THE DEPARTMENT AND THE STATE COLLEGE; A DEFINITE REFUSAL TO MEET REQUIREMENTS DEEMED ESSENTIAL BY THE DEPARTMENT; A SPECIFIC JOINDER OF ISSUE. WHOLLY CONSISTENT WITH THIS VIEW IS THE DIRECTION IN THE SECTION ABOVE CITED THAT "IF THE SECRETARY OF AGRICULTURE SHALL WITHHOLD A CERTIFICATE FROM ANY STATE OR TERRITORY OF ITS APPROPRIATION, THE FACTS AND REASONS THEREFOR SHALL BE REPORTED TO THE PRESIDENT AND THE AMOUNT INVOLVED SHALL BE KEPT SEPARATE IN THE TREASURY UNTIL THE CLOSE OF THE NEXT CONGRESS IN ORDER THAT THE STATE OR TERRITORY MAY, IF IT SHALL SO DESIRE, APPEAL TO CONGRESS FROM THE DETERMINATION OF THE SECRETARY OF AGRICULTURE.' NOT ONLY DOES THE WORD "DETERMINATION" IMPLY SOMETHING MORE THAN THE LAPSE OF TIME BEYOND A FIXED DATE, BUT THE PROVISION SEEMS CLEARLY TO CONSTITUTE THE CONGRESS AS THE UMPIRE IN AN UNADJUSTED AND UNADJUSTABLE DIFFERENCE BETWEEN THE DEPARTMENT AND THE STATE. IF IN THE CASE NOW IN QUESTION, OR IN ANY CASE WHERE THE FIRST OF JULY MIGHT HAVE PASSED WITHOUT CERTIFICATION THROUGH LACK OF FORMULATION BY THE STATE INSTITUTION OF ITS PROGRAM OR PRODUCTION OF CERTAIN INDISPENSABLE EVIDENCE, THROUGH ANY OF THE CIRCUMSTANCES IN FACT DWELT ON IN THE DEPARTMENT'S LETTER OF DECEMBER 14, 1923, PARTLY QUOTED IN RE A.D. 8078--- BUT WITHOUT DEVELOPMENT OF ANY SERIOUS ISSUE BETWEEN THE FEDERAL AND STATE OFFICERS, THE DEPARTMENT, TAKING JULY 1 AS A DEAD LINE, WERE TO CERTIFY TO THE PRESIDENT THAT IT HAD WITHHELD CERTIFICATION, WITH THE FACTS AND REASONS THEREFOR, THE CERTIFICATION WOULD REVEAL A PASSING SITUATION WHICH MIGHT HAVE TERMINATED EVEN BEFORE THE PAPERS REACHED THE WHITE HOUSE AND WHICH IN THE MAJORITY OF CASES WOULD HAVE DISAPPEARED MONTHS BEFORE THE OPENING OF THE SESSION OF CONGRESS. IN OTHER WORDS, THE CONSTRUCTION FOR WHICH WE CONTEND, FAR FROM THREATENING THE SECURITY OF THE STATES IN THEIR RECEIPT OF THE FEDERAL APPROPRIATION, AVOIDS LONG WITHHOLDINGS OF THE FUNDS PENDING THE CONGRESSIONAL ADJUSTMENT AND SAVES, MOREOVER, A FRUITLESS EXPENDITURE OF TIME ON THE PART OF CONGRESS. FOR WHEN THE STATE HAD APPEALED AND THE CONGRESSIONAL COMMITTEE CHARGED WITH THE MATTER CALLED UPON THE DEPARTMENT TO STATE THE GROUNDS OF DISPUTE OUR RESPONSE WOULD BE,"THERE IS NO DISPUTE; EVERYTHING WAS SETTLED LONG AGO.' I THINK YOU WILL ADMIT THE STRONG PROBABILITY THAT THE COMMITTEE WOULD AT ONCE ASK,"THEN WHY BRING THE MATTER TO US? WHY DIDN-T YOU CERTIFY?

I SHOULD BE GLAD IF IN THE LIGHT OF THESE CONSIDERATIONS YOU WOULD REVIEW THE DEPARTMENT'S DISCUSSION IN LETTER OF MARCH 17, 1924, OF WHICH A RELATIVELY SMALL PORTION IS QUOTED IN RE A.D. 8087, AS TO THE DIRECTORY, AS DISTINGUISHED FROM MANDATORY, CHARACTER OF THE PROVISION FOR CERTIFICATION ON OR BEFORE JULY 1. I SUGGEST THIS BECAUSE YOUR COMMENTS ON THIS DISCUSSION SEEM TO INDICATE THAT YOUR GROUND FOR REJECTING OUR ARGUMENT WAS YOUR FEELING THAT THE TRANSCENDENT CONSIDERATION WAS THE PROTECTION AFFORDED TO THE STATE BY AN AUTOMATIC CUT-OFF, OF THE CERTIFYING POWER ON JULY 1. IF WE HAVE BEEN AT ALL SUCCESSFUL IN SHOWING THAT PRACTICALLY THE EXISTING CONSTRUCTION MEANS NOT PROTECTION OF THE STATE BUT HARDSHIP AND SERIOUS ABRIDGEMENT OF THE BENEFITS WHICH THE FEDERAL FUNDS WERE MEANT TO CONFER, A WAY WILL BE OPEN FOR RESUMPTION OF THE PRACTICE ADOPTED CONTEMPORANEOUSLY WITH THE LEGISLATION AND IN EFFECT FOR MANY YEARS.

SECTION 4 OF THE ACT OF MARCH 16, 1906, 34 STAT. 64, ENTITLED "AN ACT TO PROVIDE FOR AN INCREASED ANNUAL APPROPRIATION FOR AGRICULTURAL EXPERIMENT STATIONS AND REGULATING THE EXPENDITURE THEREOF," PROVIDES:

THAT ON OR BEFORE THE FIRST DAY OF JULY IN EACH YEAR AFTER THE PASSAGE OF THIS ACT THE SECRETARY OF AGRICULTURE SHALL ASCERTAIN AND CERTIFY TO THE SECRETARY OF THE TREASURY AS TO EACH STATE AND TERRITORY WHETHER IT IS COMPLYING WITH THE PROVISIONS OF THIS ACT AND IS ENTITLED TO RECEIVE ITS SHARE OF THE ANNUAL APPROPRIATION FOR AGRICULTURAL EXPERIMENT STATIONS UNDER THIS ACT AND THE AMOUNT WHICH THEREUPON EACH IS ENTITLED, RESPECTIVELY, TO RECEIVE. IF THE SECRETARY OF AGRICULTURE SHALL WITHHOLD A CERTIFICATE FROM ANY STATE OR TERRITORY OF ITS APPROPRIATION, THE FACTS AND REASONS THEREFOR SHALL BE REPORTED TO THE PRESIDENT AND THE AMOUNT INVOLVED SHALL BE KEPT SEPARATE IN THE TREASURY UNTIL THE CLOSE OF THE NEXT CONGRESS IN ORDER THAT THE STATE OR TERRITORY MAY, IF IT SHALL SO DESIRE, APPEAL TO CONGRESS FROM THE DETERMINATION OF THE SECRETARY OF AGRICULTURE. IF THE NEXT CONGRESS SHALL NOT DIRECT SUCH SUM TO BE PAID, IT SHALL BE COVERED INTO THE TREASURY; AND THE SECRETARY OF AGRICULTURE IS HEREBY CHARGED WITH THE PROPER ADMINISTRATION OF THIS LAW.

SEE ALSO THE IDENTICAL PROVISIONS CONTAINED IN SECTION 4 OF THE ACT OF FEBRUARY 24, 1925, 43 STAT. 971.

IN THE DECISIONS OF WHICH RECONSIDERATION IS REQUESTED IT WAS HELD THAT THE TERM "ON OR BEFORE THE FIRST DAY OF JULY IN EACH YEAR" FIXED A TIME LIMITATION WITHIN WHICH THE SECRETARY WAS REQUIRED TO MAKE THE CERTIFICATE. IT WAS ALSO POINTED OUT THAT IN ORDER THAT THE RIGHTS OF THE STATES TO SHARE THE APPROPRIATION MIGHT NOT BE DEFEATED BY INACTION THERE WAS RESERVED TO THE AFFECTED STATES A RIGHT OF APPEAL TO THE CONGRESS WHERE CERTIFICATION WAS WITHHELD. THIS WAS IN ANSWER TO THE PROPOSITION THEN ADVANCED THAT THE STATUTE WAS MERELY DIRECTORY AND NOT MANDATORY AND WAS NOT INTENDED TO REQUIRE APPEAL TO THE CONGRESS WHERE ADMINISTRATIVE INABILITY TO MAKE THE CURRENT SURVEY NECESSARY TO THE CERTIFICATION MADE IT IMPRACTICABLE TO ISSUE THE CERTIFICATE ON OR BEFORE JULY 1 EACH YEAR, THE PRIOR PRACTICE IN THIS RESPECT HAVING BEEN TO CERTIFY AS OF JULY 1, IF AND WHEN IT WAS LATER DETERMINED THAT THE STATE ON OR BEFORE JULY 1 WAS COMPLYING WITH THE PROVISIONS OF THE ACT.

THERE WAS CONSIDERABLE BASIS FOR ACCEDING TO THE EXPRESSED VIEWS AS TO THE PRACTICABILITY OF SUCH PROCEDURE, WHERE THE FAILURE TO CERTIFY BY JULY 1 WAS DUE TO THE INABILITY OF THE DEPARTMENT TO SECURE THE NECESSARY DATA TO MAKE THE DETERMINATION PRIOR TO THAT TIME AND THE CERTIFICATE MADE SHORTLY THEREAFTER SHOWED THAT THE DETERMINATION RELATED TO CONDITIONS EXISTING ON OR BEFORE JULY 1, BUT IN THE FINAL ANALYSIS IT WAS DECIDED OTHERWISE, IN VIEW OF THE PLAIN AND UNAMBIGUOUS PROVISION OF THE STATUTE-- - "THAT ON OR BEFORE THE FIRST DAY OF JULY IN EACH YEAR AFTER THE PASSAGE OF THIS ACT THE SECRETARY OF AGRICULTURE SHALL ASCERTAIN AND CERTIFY" ETC., AND IT WAS SUGGESTED THAT IF IT WAS IMPRACTICABLE TO COMPLY WITH THE TERMS OF THE STATUTE IN THIS RESPECT, THE MATTER SHOULD BE BROUGHT TO THE ATTENTION OF THE CONGRESS FOR ITS CONSIDERATION WHETHER REMEDIAL LEGISLATION SHOULD BE ENACTED.

YOUR PRESENT SUBMISSION APPEARS TO BE OCCASIONED BY AN ENTIRELY DIFFERENT SITUATION. THAT IS, THERE APPEARS TO HAVE BEEN IN THE CASE NOW PRESENTED NO QUESTION OF THE IMPRACTICABILITY OF DETERMINING ON OR BEFORE THE FIRST OF JULY LAST WHETHER THE STATE OF OKLAHOMA HAD COMPLIED WITH THE PROVISIONS OF THE ACT. EVIDENTLY IT HAD NOT, AS YOU STATE THAT THE FAILURE TO CERTIFY WAS BECAUSE OF UNSATISFACTORY CONDITIONS OF ORGANIZATION AND OPERATION AT THE STATION IN QUESTION, WHICH NOW HAVE BEEN SO FAR CORRECTED THAT THE DEPARTMENT IS PREPARED TO ISSUE THE CERTIFICATE. IN OTHER WORDS, IT IS PROPOSED NOW TO CERTIFY THAT THE STATE IS ENTITLED TO RECEIVE ITS SHARE OF THE APPROPRIATION FOR THE CURRENT FISCAL YEAR ALTHOUGH IT HAD NOT COMPLIED WITH THE PROVISIONS OF THE ACT ON OR BEFORE JULY 1, 1928, BUT HAS JUST RECENTLY, APPARENTLY, MADE SUCH COMPLIANCE. I THINK IT IS CLEAR THAT THE ACT DOES NOT CONTEMPLATE SUCH PROCEDURE. THE RIGHT OF THE STATE TO SHARE IN THE APPROPRIATION IS CONDITIONED ON THE CERTIFICATE OF THE SECRETARY OF AGRICULTURE MADE ON OR BEFORE JULY 1 EACH YEAR THAT "IT IS COMPLYING WITH THE PROVISIONS OF THIS ACT," THAT IS, IT IS THE SITUATION WITH REFERENCE TO CONDITIONS EXISTING ON OR BEFORE JULY 1 EACH YEAR WHICH GOVERNS THE RIGHT OF THE STATE TO SHARE THE APPROPRIATION FOR THE FISCAL YEAR BEGINNING THAT DATE. THE ACT DOES NOT AUTHORIZE THE SECRETARY TO WAIVE A FAILURE TO COMPLY ON OR BEFORE JULY 1 BECAUSE OF THE SUBSEQUENT CORRECTION OF THE CONDITIONS WHICH PRECLUDED CERTIFICATION ON OR BEFORE THAT DATE. TO SO HOLD WOULD BE TO NULLIFY THE CONDITION PRECEDENT FIXED BY THE PLAIN TERMS OF THE ACT TO DETERMINE THE RIGHT OF A STATE TO PARTICIPATE IN THE BENEFITS OF THE APPROPRIATION, AND TO SUBSTITUTE THEREFOR A WIDE ADMINISTRATIVE POWER TO SUSPEND PARTICIPATION SUBJECT TO A FUTURE CORRECTION OF THE CONDITION WHICH UNDER THE PLAIN TERMS OF THE STATUTE, PRECLUDED CERTIFICATION AT THE BEGINNING OF THE YEAR. THIS THE ACT DOES NOT AUTHORIZE OR CONTEMPLATE.

THE RIGHT OF A STATE TO SHARE OF THE APPROPRIATION FOR A GIVEN YEAR IS CONDITIONED ON ITS BEING IN A STATUS OF COMPLYING WITH THE CONDITIONS OF THE ACT ON OR BEFORE THE 1ST DAY OF JULY OF THAT YEAR. WHETHER OR NOT IT IS IN SUCH STATUS AT THAT TIME IS A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE SECRETARY OF AGRICULTURE. IF THE CERTIFICATE THAT IT IS SO COMPLYING IS WITHHELD, THE ACT PROVIDES FOR AN APPEAL TO THE CONGRESS. THE ISSUE ON SUCH APPEAL SUPPOSEDLY WOULD BE WHETHER THE STATE WAS, IN FACT, COMPLYING WITH THE CONDITIONS OF THE ACT ON OR BEFORE THE 1ST OF JULY OF THE YEAR CONCERNED AND NOT WHETHER THERE HAD BEEN A SUBSEQUENT COMPLIANCE. IN THE PRESENT CASE YOU STATE THAT UNDER THE DECISIONS CITED THE STATE OF OKLAHOMA WILL PROBABLY LOSE ITS PROPORTION OF THE APPROPRIATION FOR 1929 AND THAT ITS RIGHT OF APPEAL TO CONGRESS DOES NOT GIVE MUCH PROSPECT OF RELIEF IN VIEW OF THE CROWDED PROGRAM OF THE PRESENT SESSION. YOU SUGGEST ALSO THAT APPEALS TO THE CONGRESS IN SUCH CASES ARE NOT WARRANTED BECAUSE THE DIFFERENCES EXISTING BETWEEN THE DEPARTMENT AND THE STATE HAVE BEEN REMOVED AND THERE REMAINS NO CONTROVERSY TO SETTLE. I FAIL TO SEE THE BASIS IN THE STATUTES FOR URGING THESE VIEWS. IF OKLAHOMA DID NOT COMPLY WITH THE CONDITIONS OF THE ACT SO THAT YOU COULD SO CERTIFY ON OR BEFORE JULY 1, 1928, THE STATUTES GIVE SAID STATE NO RIGHT TO SHARE IN THE APPROPRIATION FOR 1929. SUPPOSEDLY THE WITHHOLDING OF CERTIFICATION WAS DUE TO THE DETERMINATION THAT THERE HAD BEEN A FAILURE ON THE PART OF THE STATE TO COMPLY WITH THE ACT. THE STATE IS NOT SATISFIED WITH SUCH DETERMINATION IT MAY APPEAL TO THE CONGRESS, NOT, UNDER THE TERMS OF THE ACT, ON THE QUESTION OF WHETHER IT IS NOW OR WAS IN DECEMBER, 1928, COMPLYING WITH THE CONDITIONS OF THE ACT, BUT WHETHER ON OR BEFORE JULY 1, 1928, IT WAS SO COMPLYING AND THAT, THEREFORE, THE WITHHOLDING OF CERTIFICATION WAS UNWARRANTED. SUCH APPEAL IS NOT LIMITED TO THE PRESENT CONGRESS. THE ACT PROVIDES THAT THE FUNDS SHALL BE KEPT SEPARATE IN THE TREASURY UNTIL "THE CLOSE OF THE NEXT CONGRESS" IN ORDER THAT THE STATE MAY, IF IT SO DESIRES, APPEAL TO CONGRESS FROM THE DETERMINATION OF THE SECRETARY. THE NEXT CONGRESS AFTER JULY 1, 1928, IS NOT THE SEVENTIETH CONGRESS NOW CONVENED IN ITS SECOND SESSION, BUT THE SEVENTY-FIRST CONGRESS NOT YET CONVENED. IF SUCH APPEAL IS MADE BY THE STATE, THE ISSUE WOULD BE, SUPPOSEDLY, WHETHER THE WITHHOLDING OF THE CERTIFICATE ON JULY 1, 1928, WAS WARRANTED, AND NOT WHETHER THERE HAD BEEN A SUBSEQUENT COMPLIANCE BY THE STATE WITH THE CONDITIONS OF THE ACT AND AN ACCORD REACHED WITH THE DEPARTMENT ON CONTROVERTED MATTERS IN THAT RESPECT. AT LEAST THE CONGRESS HAS RESERVED TO ITSELF THE RIGHT TO DETERMINE WHETHER A STATE SHALL SHARE THE APPROPRIATION WHERE IT HAS FAILED TO COMPLY ON OR BEFORE JULY 1 EACH YEAR WITH THE CONDITIONS OF THE ACT, AND HAS NOT GIVEN THE SECRETARY OF AGRICULTURE THE AUTHORITY TO WAIVE SUCH FAILURE.

ACCORDINGLY, YOU ARE ADVISED THAT IT APPEARS FROM YOUR SUBMISSION THAT THE PRESENT MATTER HAS TAKEN AND MAY TAKE ITS NORMAL COURSE UNDER THE TERMS OF THE STATUTE; THAT ANY APPARENT HARDSHIP CAUSED THE STATE IS DUE TO ITS FAILURE TO COMPLY WITH THE TERMS OF THE ACT, OR IF OTHERWISE, THAT IT HAS ITS RIGHT OF APPEAL TO THE CONGRESS FOR RELIEF, AS EXPRESSLY PROVIDED IN THE ACT, AND, FINALLY, THAT THE AUTHORITY SOUGHT NOW TO BE EXERCISED IN WAIVING THE PRIOR FAILURE OF A STATE TO COMPLY WITH THE STATUTE IS SO MUCH AT VARIANCE WITH THE EVIDENT INTENT OF THE ACT, THAT IT CAN NOT BE EXERCISED UNDER EXISTING LAW.