A-24569, FEBRUARY 5, 1929, 8 COMP. GEN. 408

A-24569: Feb 5, 1929

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IS A LEGAL DISCRETION SUBJECT TO THE RESTRICTIONS OF SECTION 3648. 1929: REFERENCE IS MADE TO YOUR INDORSEMENT OF DECEMBER 21. "TO BE EXPENDED IN THE DISCRETION OF THE SECRETARY OF THE NAVY" IS SUBJECT TO THE RESTRICTIONS OF SECTION 3648. YOU URGE THAT AS THE ACT PROVIDES THAT THE AMOUNT APPROPRIATED IS TO BE EXPENDED "IN THE DISCRETION OF THE SECRETARY OF THE NAVY" THAT SUCH EXPENDITURE IS NOT SUBJECT TO THE PROHIBITIONS CONTAINED IN GENERAL STATUTES APPLYING TO THE EXPENDITURE OF PUBLIC FUNDS. IN SO FAR AS PAYMENT IN ADVANCE FOR SUBSCRIPTIONS TO NEWSPAPERS IS CONCERNED. THAT "HEREAFTER SUBSCRIPTIONS MAY BE PAID FOR IN ADVANCE" IS GENERAL LEGISLATION APPLICABLE TO ALL NAVY APPROPRIATIONS AVAILABLE FOR NEWSPAPER SUBSCRIPTIONS.

A-24569, FEBRUARY 5, 1929, 8 COMP. GEN. 408

PAYMENTS, ADVANCE - NEWSPAPER SUBSCRIPTIONS - DISCRETION OF SECRETARY OF THE NAVY THE DISCRETION AUTHORIZED TO BE EXERCISED BY THE SECRETARY OF THE NAVY IN THE EXPENDITURE OF THE APPROPRIATION "RECREATION FOR ENLISTED MEN, NAVY, 1928," AS MADE IN THE ACT OF MARCH 2, 1927, 44 STAT. 1278, IS A LEGAL DISCRETION SUBJECT TO THE RESTRICTIONS OF SECTION 3648, REVISED STATUTES, PROHIBITING PAYMENTS IN ADVANCE OF THE RENDERING OF SERVICES OR THE DELIVERY OF ARTICLES PURCHASED. THE PROVISION OF THE ACT OF MARCH 3, 1915, 38 STAT. 929, AUTHORIZING PAYMENTS IN ADVANCE FOR ,NEWSPAPERS AND PERIODICALS FOR THE NAVAL SERVICE" FROM THE APPROPRIATION "PAY, MISCELLANEOUS, Y," DOES NOT AUTHORIZE SUCH PAYMENTS FROM THE APPROPRIATION "RECREATION FOR ENLISTED MEN, NAVY.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 5, 1929:

REFERENCE IS MADE TO YOUR INDORSEMENT OF DECEMBER 21, 1928, ON A LETTER OF NOVEMBER 3, 1928, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING RECONSIDERATION OF DECISION OF OCTOBER 18, 1928, A-24569, HOLDING THAT PAYMENT FOR SUBSCRIPTIONS FOR NEWSPAPERS FROM THE APPROPRIATION ,RECREATION FOR ENLISTED MEN, NAVY, 1928," AS MADE IN THE ACT OF MARCH 2, 1927, 44 STAT. 1278,"TO BE EXPENDED IN THE DISCRETION OF THE SECRETARY OF THE NAVY" IS SUBJECT TO THE RESTRICTIONS OF SECTION 3648, REVISED STATUTES, PROHIBITING PAYMENTS IN ADVANCE OF THE RENDERING OF SERVICES OR THE DELIVERY OF THE ARTICLES PURCHASED.

YOU URGE THAT AS THE ACT PROVIDES THAT THE AMOUNT APPROPRIATED IS TO BE EXPENDED "IN THE DISCRETION OF THE SECRETARY OF THE NAVY" THAT SUCH EXPENDITURE IS NOT SUBJECT TO THE PROHIBITIONS CONTAINED IN GENERAL STATUTES APPLYING TO THE EXPENDITURE OF PUBLIC FUNDS, CITING AS AUTHORITY THE CASE OF HAYDEN V. UNITED STATES, 38 CT.CLS. 39, AND, ALSO, IN SO FAR AS PAYMENT IN ADVANCE FOR SUBSCRIPTIONS TO NEWSPAPERS IS CONCERNED, THAT THE PROVISION IN THE NAVY APPROPRIATION ACT OF MARCH 3, 1915, 38 STAT. 929, THAT "HEREAFTER SUBSCRIPTIONS MAY BE PAID FOR IN ADVANCE" IS GENERAL LEGISLATION APPLICABLE TO ALL NAVY APPROPRIATIONS AVAILABLE FOR NEWSPAPER SUBSCRIPTIONS, STATING IN THIS CONNECTION THAT SUCH PROVISION HAS BEEN INCORPORATED IN SECTION 530, TITLE 31, OF THE UNITED STATES CODE.

AS WAS POINTED OUT IN DECISION OF OCTOBER 18, 1928, SUPRA, THE OBJECTS OF THE APPROPRIATION ,RECREATION FOR ENLISTED MEN, NAVY, 1928," AS MADE IN THE ACT OF MARCH 2, 1927, 44 STAT. 1278,"FOR THE RECREATION, AMUSEMENT, COMFORT, CONTENTMENT, AND HEALTH OF THE NAVY, TO BE EXPENDED IN THE DISCRETION OF THE SECRETARY OF THE NAVY," ARE STATED IN GENERAL AND COMPREHENSIVE TERMS. THE DISCRETION GIVEN IS WITH REFERENCE TO THE WIDE LATITUDE OF CHOICE OF THE SPECIFIC OBJECTS, NOT CONTRARY TO LAW, FOR WHICH THE APPROPRIATION MAY BE EXPENDED TO ACCOMPLISH THE GENERAL PURPOSES FOR WHICH MADE. THE GRANTING OF SUCH DISCRETION CAN NOT BE CONSTRUED, HOWEVER, AS REMOVING ALL RESTRICTIONS GOVERNING THE EXPENDITURE OF PUBLIC FUNDS GENERALLY, OR AS AUTHORIZING THE EXPENDITURE OF FUNDS FOR OBJECTS OBVIOUSLY NOT IN PURSUANCE OF THE THE GENERAL PURPOSES OF THE APPROPRIATION, OR AS AUTHORIZING EXPENDITURES IN DIRECT CONTRAVENTION OF LAW. IN OTHER WORDS, THE DISCRETION GIVEN IS NOT ENTIRELY UNLIMITED BUT IS A LEGAL DISCRETION. THE RULE HAS BEEN STATED WITH RESPECT TO THE TERM "DISCRETION," AS APPLIED TO PUBLIC OFFICERS AND FIDUCIARIES, THAT WHEN ANYTHING IS LEFT TO A PERSON TO BE DONE ACCORDING TO HIS DISCRETION, THE LAW INTENDS IT TO BE DONE WITH SOUND DISCRETION AND ACCORDING TO LAW. CORPUS JURIS, 1135.

IN THE CASE OF HAYDEN V. UNITED STATES, 38 CT.CLS. 39, WHICH YOU CITE AND FROM WHICH YOU QUOTE, THERE WAS INVOLVED THE QUESTION OF THE LEGALITY OF AN AGREEMENT TO PAY ADDITIONAL COMPENSATION TO A RETIRED NAVY OFFICER FROM THE EMERGENCY FUND CREATED BY THE ACT OF MARCH 9, 1898, 30 STAT. 273, 274,"FOR THE NATIONAL DEFENSE, AND FOR EACH AND EVERY PURPOSE CONNECTED THEREWITH, TO BE EXPENDED AT THE DISCRETION OF THE PRESIDENT," IT BEING OBJECTED ON BEHALF OF THE GOVERNMENT THAT SUCH PAYMENT WAS PROHIBITED BY SECTION 1765, REVISED STATUTES. THE COURT STATED THAT IT WAS NOT NECESSARY TO DETERMINE WHETHER THE DISCRETION CONTEMPLATED BY THE STATUTE WAS ABSOLUTE OR QUALIFIED, BUT POINTED OUT THAT THE APPROPRIATION ("MOST PECULIAR IN THE HISTORY OF AMERICAN LEGISLATION") WAS TO MEET THE EXIGENCIES OF THE DANGER WHICH THEN THREATENED THE UNITED STATES IN ITS RELATIONS WITH SPAIN; THAT THE POWER GRANTED BY THE LAW WAS INTENDED TO BE THE MOST ADEQUATE AND COMPREHENSIVE, COVERING, AS IT DID,"THE NATIONAL DEFENSE AND FOR EACH AND EVERY PURPOSE CONNECTED THEREWITH; " THAT THIS LARGE POWER GRANTED TO THE PRESIDENT RECOGNIZED THE ALMOST ENDLESS TASK OF PROVIDING IN DETAIL AS TO THE MODE AND MANNER OF THE EXPENDITURE OF THE MONEY APPROPRIATED, AND DISCLOSED THE MULTIFARIOUS NECESSITIES WHICH EXISTED ON THE PART OF THE UNITED STATES FROM A MILITARY POINT OF VIEW. IN CONCLUSION THE COURT STATED:

TAKING INTO CONSIDERATION THE GENERAL PURPOSE FOR WHICH THE LAW WAS ENACTED, THE TERMS OF THE STATUTE IN THE GRANT OF POWER TO THE PRESIDENT, AND THE NECESSITY OF THE EXERCISE OF THE LARGEST DISCRETION BY THE PRESIDENT, THE COURT DECIDES THAT THE EMPLOYMENT OF THE CLAIMANT, WITH A SALARY AT THE RATE OF $2,000 PER ANNUM, CAME WITHIN THE PURVIEW OF THE LAW AND THE DISCRETION OF THE PRESIDENT, AND THEREFORE THE PLAINTIFF IS ENTITLED TO RECOVER, SUBJECT TO THE DEDUCTION HEREAFTER STATED.

THUS THE COURT DID NOT DECIDE THAT THE DISCRETION OF THE PRESIDENT UNDER THE TERMS OF THE STATUTE WAS ABSOLUTE, BUT THAT THE PARTICULAR TRANSACTION WAS WITHIN THE PRESIDENT'S DISCRETION, BASING ITS DECISION AS TO THIS ON CONSIDERATIONS OF THE INTENT OF CONGRESS AS TO THE EXTENT OF SUCH DISCRETION IN VIEW OF THE EXIGENCIES OF THE DANGER WHICH THEN THREATENED THE UNITED STATES AND THE MILITARY NECESSITIES THEREBY OCCASIONED. CERTAINLY THE PRINCIPLE OF THIS DECISION CAN NOT BE EXTENDED TO SUSTAIN THE CONTENTION THAT A GRANT OF DISCRETION IN THE EXPENDITURE OF AN ANNUAL PEACE-TIME APPROPRIATION BY THE SECRETARY OF THE NAVY FOR THE RECREATION, AMUSEMENT, COMFORT, CONTENTMENT, AND HEALTH OF THE NAVY WAS INTENDED TO GRANT SUCH AN ABSOLUTE UNCONTROLLED DISCRETION AS TO REMOVE ALL GENERAL STATUTORY RESTRICTIONS ON THE METHOD OR TIME OF EXPENDITURE OR THE PURPOSES FOR WHICH THE MONEY MIGHT BE SPENT. AT LEAST, THE ACCOUNTING OFFICERS OF THE GOVERNMENT WOULD NOT BE WARRANTED IN ACCEPTING THE DECISION AS AUTHORITY FOR A CONCLUSION SO FAR-REACHING IN EFFECT. THE PROVISIONS OF SECTION 3648, REVISED STATUTES, PROHIBITING PAYMENTS IN ADVANCE, ARE GENERAL IN THEIR APPLICATION AND UNLESS IT CAN BE SHOWN THAT THE CONGRESS HAS MADE AN EXCEPTION TO THEIR APPLICATION TO THE APPROPRIATION HERE IN QUESTION, IT MUST BE HELD THAT SUCH APPROPRIATION IS SUBJECT TO SUCH GENERAL RESTRICTION.

AS TO YOUR SECOND CONTENTION--- THAT IS, THAT THE PROVISION OF THE ACT OF MARCH 3, 1915, 38 STAT. 929, THAT "HEREAFTER SUBSCRIPTIONS MAY BE PAID FOR IN ADVANCE" WAS INTENDED TO APPLY TO ALL NAVY APPROPRIATIONS AVAILABLE FOR THE PURCHASE OF NEWSPAPERS, AND THEREFORE IS APPLICABLE TO THE APPROPRIATION HERE INVOLVED, I THINK IT NEED ONLY BE AGAIN POINTED OUT, AS WAS DONE IN THE DECISION OF OCTOBER 18, 1928, THAT SUCH PROVISION WAS INCLUDED PARENTHETICALLY IMMEDIATELY AFTER AN APPROPRIATION PROVISION FOR "NEWSPAPERS AND PERIODICALS FOR THE NAVAL SERVICE" UNDER THE APPROPRIATION HEADING "PAY, MISCELLANEOUS," AND CLEARLY RELATED ONLY TO SUCH NEWSPAPERS AND PERIODICALS. IN THE 1928 APPROPRIATION ACT, ACT OF MARCH 2, 1927, 44 STAT. 1276, THERE IS A LIKE PROVISION UNDER "PAY, MISCELLANEOUS," FOR "NEWSPAPERS AND PERIODICALS FOR THE NAVAL SERVICE," AND PAYMENTS IN ADVANCE FOR SUBSCRIPTIONS FROM SUCH APPROPRIATION ARE AUTHORIZED BY VIRTUE OF THE QUOTED PROVISION OF THE ACT OF MARCH 3, 1915, SUPRA. THE 1928 APPROPRIATION UNDER "RECREATION OF ENLISTED MEN," 44 STAT. 1278,"FOR THE RECREATION, AMUSEMENT, COMFORT, CONTENTMENT, AND HEALTH OF THE NAVY," DOES NOT SPECIFICALLY PROVIDE FOR THE PURCHASE OF NEWSPAPERS, ALTHOUGH, IN VIEW OF THE COMPREHENSIVE TERMS OF THE APPROPRIATION AND THE DISCRETION GIVEN RELATIVE THERETO, IT IS NOT QUESTIONED THAT THE APPROPRIATION WAS LEGALLY AVAILABLE FOR THAT PURPOSE. HOWEVER, IT SHOULD BE DISCERNED THAT IN APPROPRIATION PARLANCE NEWSPAPERS PURCHASED UNDER THE LATTER APPROPRIATION WERE NOT "NEWSPAPERS * * * FOR THE NAVAL SERVICE" WITHIN THE MEANING OF THE FORMER APPROPRIATION (AND THE RELATING PROVISION FOR PAYING FOR SUBSCRIPTIONS IN ADVANCE). IF THEY WERE THEY SHOULD HAVE BEEN CHARGED TO THE FORMER APPROPRIATION. RATHER, THEY WERE NEWSPAPERS PURCHASED "FOR THE RECREATION," ETC., OF THE NAVY PERSONNEL, AND WHILE THEY MAY GENERALLY BE THOUGHT OF AS "FOR THE NAVAL SERVICE," IT IS APPARENT THAT, SO FAR AS APPROPRIATIONS ARE CONCERNED, SUCH PURCHASES CONSTITUTED A SEPARATE AND DISTINCT CLASS TO WHICH THE PROVISION OF THE ACT OF MARCH 3, 1915, DID NOT APPLY.

THE FACT THAT THE PROVISION IN THE ACT OF MARCH 3, 1915, HAS BEEN INCORPORATED IN THE UNITED STATES CODE, AS APPARENTLY APPLICABLE IN A BROADER SENSE, DOES NOT CHANGE THE EFFECT OF THE ORIGINAL ENACTMENT. SEE IN THIS CONNECTION, SECTION 2 (A), PAGE 1, OF THE CODE.

FOR THESE REASONS THERE ARE AFFIRMED THE CONCLUSIONS STATED IN THE DECISION OF OCTOBER 18, 1928. HOWEVER, IN VIEW OF THE STATEMENT IN THE LETTER OF THE PAYMASTER GENERAL, ACCOMPANYING YOUR SUBMISSION, RELATIVE TO THE LONG-CONTINUED PRACTICE OF PAYING IN ADVANCE FOR SUBSCRIPTIONS FOR THE APPROPRIATION "RECREATION FOR ENLISTED MEN" AND IT BEING UNDERSTOOD THAT A REQUEST FOR LEGISLATION SANCTIONING SUCH PRACTICE HAS BEEN OR WILL BE SUBMITTED TO THE PRESENT CONGRESS, THE FURTHER CONTINUANCE OF SUCH PROCEDURE DURING THE CURRENT FISCAL YEAR WILL NOT BE QUESTIONED, THE APPROPRIATIONS FOR THE CURRENT YEAR BEING TO THE SAME EFFECT IN THIS RESPECT AS THOSE FOR FISCAL YEAR 1928. SEE 45 STAT. 624, 626.