A-2598, AUGUST 11, 1924, 4 COMP. GEN. 169

A-2598: Aug 11, 1924

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ARE NOT AVAILABLE FOR THAT PURPOSE. THE SECRETARY OF WAR SHALL HAVE THE POWER AT ALL TIMES TO SUSPEND. IT IS UNNECESSARY TO DECIDE WHETHER MUSICAL TRAINING IS TRAINING FOR INDUSTRIAL. THE SECRETARY OF WAR IS AUTHORIZED TO PRESCRIBE RULES AND REGULATIONS FOR CONDUCTING THE INSTRUCTIONS OF ENLISTED MEN IN THE INDUSTRIAL. HE IS NOT AUTHORIZED TO ISSUE REGULATIONS PROVIDING THAT SUCH INSTRUCTION MAY BE GIVEN BY OTHER THAN ARMY OFFICERS OR CIVILIAN TEACHERS EMPLOYED FOR THAT PURPOSE. THE FACT THAT THEY MAY BE ATTENDING THE ARMY MUSIC SCHOOL IS IMMATERIAL. WHEN THE MATTER WAS BEFORE THIS OFFICE. IT WAS. SINCE THE REGULATIONS HAVE NOW BEEN AMENDED TO SPECIFICALLY PROVIDE FOR SUCH PURCHASES. IT IS NECESSARY TO DETERMINE WHETHER THE LAW AUTHORIZES THE ISSUANCE OF SUCH REGULATIONS.

A-2598, AUGUST 11, 1924, 4 COMP. GEN. 169

OPERA AND CONCERT TICKETS - ARMY MUSIC SCHOOL SECTION 27 OF THE ACT OF JUNE 3, 1916, 39 STAT. 186, AUTHORIZING THE TRAINING OF ENLISTED MEN OF THE ARMY IN "INDUSTRIAL, COMMERCIAL, AND GENERAL BUSINESS OCCUPATIONS" BY ARMY OFFICERS ASSISTED BY CIVILIAN TEACHERS "EMPLOYED" FOR THAT PURPOSE, DOES NOT AUTHORIZE THE ISSUANCE OF REGULATIONS FOR THE PURCHASE AT PUBLIC EXPENSE OF GRAND OPERA AND SYMPHONY CONCERT TICKETS FOR THE USE OF MEMBERS OF THE FACULTY, BAND LEADERS, AND CERTAIN STUDENTS OF THE ARMY MUSIC SCHOOL. THE APPROPRIATIONS FOR "INCIDENTAL EXPENSES OF THE ARMY" AND "CONTINGENCIES OF THE ARMY," NOT SPECIFICALLY AUTHORIZING THE PURCHASE OF GRAND OPERA AND SYMPHONY CONCERT TICKETS FOR THE USE OF MEMBERS OF THE FACULTY, BAND LEADERS, AND CERTAIN STUDENTS OF THE ARMY MUSIC SCHOOL, ARE NOT AVAILABLE FOR THAT PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 11, 1924:

THERE HAS BEEN RECEIVED YOUR REQUEST DATED APRIL 29, 1924, FOR DECISION WHETHER UNDER SECTION 27 OF THE ACT OF JUNE 3, 1916, 39 STAT. 186, AND PARAGRAPH 16 (B), ARMY REGULATIONS 350-1400, GRAND OPERA AND SYMPHONY CONCERT TICKETS MAY BE PURCHASED IN THE IMMEDIATE VICINITY OF THE ARMY MUSIC SCHOOL FOR THE MEMBERS OF THE FACULTY AND ALL BAND LEADERS AND SOLOIST STUDENTS OF SAID SCHOOL AND CHARGED AGAINST THE APPROPRIATIONS FOR "INCIDENTAL EXPENSES OF THE ARMY" OR FOR ,CONTINGENCIES OF THE ARMY.'

SECTION 27 OF THE ACT OF JUNE 3, 1916, 39 STAT. 186, PROVIDES THAT IN ADDITION TO MILITARY TRAINING:

* * * SOLDIERS WHILE IN THE ACTIVE SERVICE SHALL HEREAFTER BE GIVEN THE OPPORTUNITY TO STUDY AND RECEIVE INSTRUCTION UPON EDUCATIONAL LINES OF SUCH CHARACTER AS TO INCREASE THEIR MILITARY EFFICIENCY AND ENABLE THEM TO RETURN TO CIVIL LIFE BETTER EQUIPPED FOR INDUSTRIAL, COMMERCIAL, AND GENERAL BUSINESS OCCUPATIONS. CIVILIAN TEACHERS MAY BE EMPLOYED TO AID THE ARMY OFFICERS IN GIVING SUCH INSTRUCTION, AND PART OF THIS INSTRUCTION MAY CONSIST OF VOCATIONAL EDUCATION EITHER IN AGRICULTURE OR THE MECHANIC ARTS. THE SECRETARY OF WAR WITH THE APPROVAL OF THE PRESIDENT, SHALL PRESCRIBE RULES AND REGULATIONS FOR CONDUCTING THE INSTRUCTION HEREIN PROVIDED FOR, AND THE SECRETARY OF WAR SHALL HAVE THE POWER AT ALL TIMES TO SUSPEND, INCREASE, OR DECREASE THE AMOUNT OF SUCH INSTRUCTION OFFERED AS MAY IN HIS JUDGMENT BE CONSISTENT WITH THE REQUIREMENTS OF MILITARY INSTRUCTION AND SERVICE OF THE SOLDIERS.

THIS STATUTE NOT ONLY DIRECTS THAT AN OPPORTUNITY BE AFFORDED SOLDIERS, ENLISTED MEN OF THE ARMY, TO STUDY IN ORDER THAT THEY MAY BE BETTER EQUIPPED AFTER THEIR DISCHARGE FOR "INDUSTRIAL, COMMERCIAL, AND GENERAL BUSINESS OCCUPATIONS," INCLUDING AGRICULTURE OR MECHANIC ARTS, BUT SPECIFICALLY PROVIDES THAT "CIVILIAN TEACHERS MAY BE EMPLOYED TO AID THE ARMY OFFICERS IN GIVING SUCH INSTRUCTION.' IT IS UNNECESSARY TO DECIDE WHETHER MUSICAL TRAINING IS TRAINING FOR INDUSTRIAL, COMMERCIAL, OR GENERAL BUSINESS OCCUPATIONS, FOR THE STATUTE PROVIDES THAT THE TRAINING SHALL BE BY ARMY OFFICERS, ASSISTED WHERE NECESSARY BY CIVILIAN TEACHERS EMPLOYED FOR THAT PURPOSE. THE SECRETARY OF WAR IS AUTHORIZED TO PRESCRIBE RULES AND REGULATIONS FOR CONDUCTING THE INSTRUCTIONS OF ENLISTED MEN IN THE INDUSTRIAL, COMMERCIAL, AND GENERAL BUSINESS OCCUPATIONS, BUT HE IS NOT AUTHORIZED TO ISSUE REGULATIONS PROVIDING THAT SUCH INSTRUCTION MAY BE GIVEN BY OTHER THAN ARMY OFFICERS OR CIVILIAN TEACHERS EMPLOYED FOR THAT PURPOSE. THE PURCHASE OF TICKETS TO A GRAND OPERA OR SYMPHONY CONCERT CAN NOT BE SAID TO BE AN EMPLOYMENT OF THE CAST FOR THE PURPOSE OF GIVING INSTRUCTION TO THE ENLISTED MEN, AND THE FACT THAT THEY MAY BE ATTENDING THE ARMY MUSIC SCHOOL IS IMMATERIAL.

WHEN THE MATTER WAS BEFORE THIS OFFICE, IN 2 COMP. GEN. 519, THE ARMY REGULATIONS DID NOT PURPORT TO PROVIDE THAT GRAND OPERA AND SYMPHONY CONCERT TICKETS COULD BE PURCHASED AT THE EXPENSE OF THE UNITED STATES AND ISSUED TO MEMBERS OF THE FACULTY, BAND LEADERS, AND SOLOIST STUDENTS AT THE ARMY MUSIC SCHOOL. IT WAS, THUS, UNNECESSARY TO DECIDE WHETHER THE LAW AUTHORIZED THE ISSUANCE OF SUCH REGULATIONS. SINCE THE REGULATIONS HAVE NOW BEEN AMENDED TO SPECIFICALLY PROVIDE FOR SUCH PURCHASES, IT IS NECESSARY TO DETERMINE WHETHER THE LAW AUTHORIZES THE ISSUANCE OF SUCH REGULATIONS, AND FOR THE REASONS HEREINBEFORE STATED IT MUST BE HELD THAT IT DOES NOT.

THE ATTENDANCE AT GRAND OPERA AND SYMPHONY CONCERT PERFORMANCES IS NOT SO ESSENTIALLY A PART OF THE AUTHORIZED TRAINING OR OPERATION OF THE ARMY AS TO JUSTIFY REGARDING THE EXPENSE THEREOF AS AN INCIDENTAL OR CONTINGENT EXPENSE OF THE ARMY; AND AS NEITHER THE APPROPRIATIONS FOR "INCIDENTAL EXPENSES OF THE ARMY" NOR FOR "CONTINGENCIES OF THE ARMY" SPECIFICALLY AUTHORIZE THE PURCHASE OF GRAND OPERA OR SYMPHONY CONCERT TICKETS FOR THE MEMBERS OF THE ARMY MUSIC SCHOOL, AND AS SUCH AUTHORIZATION IS NOT CONTAINED IN ANY PERMANENT LAW, IT MUST BE HELD THAT SUCH PURCHASE AT THE EXPENSE OF THE UNITED STATES HAS NOT BEEN AUTHORIZED BY LAW.