A-29818, DECEMBER 16, 1929, 9 COMP. GEN. 248

A-29818: Dec 16, 1929

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IS A CHANGE OF THE SUBSTANTIVE LAWS. WILL R. IS AS FOLLOWS: * * * PROVIDED. PRIOR YEARS WAS PRESCRIBED BY SECTION 8 OF THE ACT OF JUNE 18. EXTRA COMPENSATION AT THE RATE OF $150 PER ANNUM FOR ONE MOUNT AND $200 PER ANNUM FOR TWO MOUNTS IS AUTHORIZED BY THE ACT OF MAY 11. THE QUESTION IS WHETHER THE PROVISO QUOTED IS EFFECTIVE AS AN AMENDMENT TO THESE ACTS SO AS TO LIMIT THE AUTHORIZED PUBLIC EXPENSES TO THOSE OCCASIONED BY ONE PRIVATELY OWNED MOUNT. THE USUAL OFFICE OF A PROVISO IS TO RESTRAIN OR QUALIFY SOME MATTER IN THE PRECEDING SECTION OR PART OF THE STATUTE. WHEN IT IS APPARENT THAT THE LEGISLATION DESIGNED A MORE COMPREHENSIVE MEANING OR APPLICATION IT MAY ASSUME THE FUNCTIONS AND CHARACTER OF AN INDEPENDENT ENACTMENT.

A-29818, DECEMBER 16, 1929, 9 COMP. GEN. 248

PRIVATE MOUNTS OF OFFICERS OF THE ARMY THE PROVISO UNDER "PAY OF THE ARMY" IN THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1930, 45 STAT. 1353, THAT THE NUMBER OF HORSES OWNED BY AN OFFICER OF THE ARMY OCCASIONING ANY PUBLIC EXPENSE, INCLUDING EXTRA COMPENSATION, SHALL BE REDUCED TO ONE ON JUNE 30, 1930, IS A CHANGE OF THE SUBSTANTIVE LAWS, PERMANENTLY FIXING THE AUTHORIZED NUMBER OF PRIVATELY OWNED MOUNTS FOR WHICH FORAGE, BEDDING, SHOEING, SHELTER, MEDICINE, TRANSPORTATION, EXTRA COMPENSATION, ETC., MAY BE FURNISHED AT GOVERNMENT EXPENSE, AT ONE MOUNT FOR EACH OFFICER OF THE ARMY, EFFECTIVE ON AND AFTER JUNE 30, 1930.

COMPTROLLER GENERAL MCCARL TO HON. WILL R. WOOD, CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, DECEMBER 16, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 7, 1929, REQUESTING DECISION WHETHER, IN VIEW OF THE PROVISO UNDER "PAY OF THE ARMY" IN THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1930, IF THE 1931 APPROPRIATION BILL SHOULD BE SILENT ON THE MATTER, IT WOULD BE LAWFUL AFTER JUNE 30, 1930, FOR THE GOVERNMENT TO BEAR ANY EXPENSE ON ACCOUNT OF MORE THAN ONE PRIVATE MOUNT OWNED BY AN OFFICER OF THE ARMY.

THE PROVISO REFERRED TO, 45 STAT. 1353, IS AS FOLLOWS:

* * * PROVIDED, THAT THE NUMBER OF HORSES OWNED BY ANY OFFICER OF THE ARMY OCCASIONING ANY PUBLIC EXPENSE, INCLUDING EXTRA COMPENSATION, SHALL BE REDUCED TO ONE ON JUNE 30, 1930.

THE AUTHORIZED NUMBER OF PRIVATELY OWNED MOUNTS FOR WHICH BEDDING, FORAGE, SHOEING, SHELTER, MEDICINES, TRANSPORTATION, ETC., COULD BE FURNISHED DURING THE FISCAL YEAR ENDING JUNE 30, 1930, AND PRIOR YEARS WAS PRESCRIBED BY SECTION 8 OF THE ACT OF JUNE 18, 1878, 20 STAT. 150, RANGING FROM FIVE MOUNTS FOR A GENERAL TO TWO MOUNTS FOR A LIEUTENANT. EXTRA COMPENSATION AT THE RATE OF $150 PER ANNUM FOR ONE MOUNT AND $200 PER ANNUM FOR TWO MOUNTS IS AUTHORIZED BY THE ACT OF MAY 11, 1908, 35 STAT. 108, TO ANY OFFICER BELOW THE GRADE OF MAJOR REQUIRED TO BE MOUNTED, WHO PROVIDES HIMSELF WITH SUITABLE MOUNTS AT HIS OWN EXPENSE.

THE QUESTION IS WHETHER THE PROVISO QUOTED IS EFFECTIVE AS AN AMENDMENT TO THESE ACTS SO AS TO LIMIT THE AUTHORIZED PUBLIC EXPENSES TO THOSE OCCASIONED BY ONE PRIVATELY OWNED MOUNT, ONLY, AFTER JUNE 30, 1930.

THE USUAL OFFICE OF A PROVISO IS TO RESTRAIN OR QUALIFY SOME MATTER IN THE PRECEDING SECTION OR PART OF THE STATUTE; BUT WHEN IT IS APPARENT THAT THE LEGISLATION DESIGNED A MORE COMPREHENSIVE MEANING OR APPLICATION IT MAY ASSUME THE FUNCTIONS AND CHARACTER OF AN INDEPENDENT ENACTMENT, THUS CONSTITUTING A PERMANENT CHANGE IN THE SUBSTANTIVE LAW. PRINDLE V. UNITED STATES, 41 CT.CLS.

THE PROVISION OF THE LAW IS THAT THE NUMBER OF HORSES OWNED BY ANY OFFICER OF THE ARMY OCCASIONING ANY PUBLIC EXPENSE "SHALL BE REDUCED TO ONE ON JUNE 30, 1930.' THIS MAY NOT BE CONSTRUED AS A LIMITATION OF ANY RIGHTS COVERED BY THE SECTION OF THE STATUTE IN WHICH IT IS EMBODIED PROVIDING FUNDS FOR "PAY, AND SO FORTH, OF THE ARMY," FOR THE REASON THAT IT IS NOT EFFECTIVE UNTIL THE EXPIRATION OF THE PERIOD FOR WHICH SUCH FUNDS WERE APPROPRIATED. FURTHERMORE, THAT SECTION ONLY COVERED THE EXPENSE OF EXTRA COMPENSATION. OTHERWISE ALSO THE REDUCTION WOULD BE EFFECTIVE ONLY FOR THE ONE DAY JUNE 30, 1930, IF THE PROVISION IS NOT BE BE CONSTRUED AS EFFECTIVE ON AS WELL AS AFTER JUNE 30, 1930. THE PROVISION IS,"SHALL BE REDUCED TO ONE ON JUNE 30, 1930," AND THE MEANING IS JUNE 30, 1930, SHALL BE THE EFFECTIVE DATE FOR THE REDUCTION. IT WOULD REQUIRE SPECIFIC LEGISLATION TO THEREAFTER MAKE AN INCREASE OVER THE REDUCTION ACCOMPLISHED JUNE 30, 1930.

WHILE THE WORD "HEREAFTER" IS FREQUENTLY EMPLOYED TO INDICATE THAT A PROVISION IN AN ANNUAL APPROPRIATION ACT IS INTENDED AS PERMANENT LEGISLATION, ITS USE IS NOT ESSENTIAL IF THE PERMANENT CHARACTER OF THE LEGISLATION IS OTHERWISE CLEARLY INDICATED. THE LANGUAGE OF THE PROVISO IN QUESTION IS NOT IN ITS PHRASEOLOGY A RESTRICTION ON THE USE OF THE APPROPRIATION, BUT IS A SUBSTANTIVE PROVISION FIXING THE RIGHTS OF OFFICERS OF THE ARMY AFTER THE PERIOD COVERED BY THE APPROPRIATION, AND FROM ITS VERY CHARACTER OF REQUIRING A REDUCTION OF MOUNTS TO BE ACCOMPLISHED ON A CERTAIN DATE--- JUNE 30, 1930--- IT IS PROSPECTIVE IN ITS CHARACTER.

IN NATIONAL BANK OF COMMERCE V. CLEVELAND, 156 FED.REP. 251, THE COURT SAID:

* * * THE PRACTICE, HOWEVER, OF EMBODYING GENERAL LAWS IN APPROPRIATION BILLS HAS BECOME SO COMMON THAT TO ADOPT A NARROW AND RESTRICTIVE CONSTRUCTION CONFINING THEIR LANGUAGE TO THE SUBJECT MATTER GENERALLY DEALT WITH BY THE APPROPRIATION ACT WOULD GO FAR TO NULLIFY A GOOD DEAL OF THE LEGISLATION OF CONGRESS. THESE PROVISOS THAT ARE ATTACHED TO APPROPRIATION ACTS FOR THE PURPOSE OF PROCURING WHAT IS BELIEVED TO BE NEEDED LEGISLATION, BUT WHICH COULD NOT BE ACCOMPLISHED BY AN INDEPENDENT STATUTE BY REASON OF THE PRESS OF BUSINESS BEFORE CONGRESS, MUST BE TREATED THE SAME AS IF THEY WERE SEPARATE AND INDEPENDENT ENACTMENTS. * *

FROM THE LANGUAGE OF THE PROVISO, AND GIVING APPLICATION TO THE RULES OF CONSTRUCTION INDICATED, IT IS EVIDENT THAT THE PROVISO IN QUESTION IS, IN EFFECT, A CHANGE OF THE SUBSTANTIVE LAWS, LIMITING THE EXPENSES TO BE BORNE BY THE GOVERNMENT TO THOSE OCCASIONED BY ONLY ONE PRIVATELY OWNED MOUNT. YOU ARE ACCORDINGLY ADVISED THAT THE LEGISLATIVE INTENT CLEARLY WAS THAT THE PROVISION SHOULD OPERATE AS AN AMENDMENT TO THE SUBSTANTIVE LAWS, PERMANENTLY FIXING THE AUTHORIZED NUMBER OF PRIVATELY OWNED MOUNTS FOR WHICH FORAGE, BEDDING, SHOEING, SHELTER, MEDICINE, TRANSPORTATION, EXTRA COMPENSATION, ETC., MAY BE FURNISHED AT GOVERNMENT EXPENSE, AT ONE MOUNT FOR EACH OFFICER OF THE ARMY, EFFECTIVE JULY 1, 1930, AND THAT IT WILL NOT BE LAWFUL AFTER JUNE 30, 1930, TO USE PUBLIC MONEYS FOR EXPENSES ON ACCOUNT OF MORE THAN ONE PRIVATELY OWNED MOUNT, AND THIS WILL BE THE APPLICATION OF THE LAW IN THIS OFFICE IN THE SETTLEMENT OF ACCOUNTS AND CLAIMS.