A-33120, SEPTEMBER 12, 1930, 10 COMP. GEN. 120

A-33120: Sep 12, 1930

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THE FACT THAT SOME OF THE PROVISIONS FOUND IN THE ANNUAL APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA HAVE BEEN INCLUDED IN THE DISTRICT OF COLUMBIA CODE DOES NOT CONSTITUTE THEM PERMANENT LAW. THERE WAS PREPARED AND RECENTLY DISTRIBUTED "THE CODE OF THE DISTRICT OF COLUMBIA. " WHICH IS INTENDED TO CONTAIN "LAWS. AS THE RESULT OF AN EXAMINATION OF THIS CODE I HAVE INDICATED IN THE MARGIN OF THE INCLOSED COPY OF PUBLIC ACT NO. 521. WHICH IS THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30. THOSE PROVISIONS APPEARING THEREIN WHICH ARE ALSO CONTAINED IN THE CODE OF THE DISTRICT OF COLUMBIA. IN THIS CONNECTION I SHOULD LIKE ALSO TO INVITE YOUR ATTENTION TO THE FOLLOWING INSTANCES WHERE PROVISIONS ARE CONTAINED ANNUALLY IN THE DISTRICT OF COLUMBIA APPROPRIATION ACTS.

A-33120, SEPTEMBER 12, 1930, 10 COMP. GEN. 120

STATUTORY CONSTRUCTION - PERMANENT LEGISLATION - DISTRICT OF COLUMBIA CODE THE VARIOUS PROVISIONS REPEATED EACH YEAR IN THE APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA, CONTAINING NO WORDS OF FUTURITY OR LANGUAGE INDICATING AN INTENTION THAT THEY SHOULD BE PERMANENT LEGISLATION MAY NOT BE CONSIDERED OR CONSTRUED AS PERMANENT LAW. THE JOINT RESOLUTION OF MAY 29, 1928, 45 STAT. 1007, AS AMENDED BY JOINT RESOLUTION OF MARCH 2, 1929, 45 STAT. 1541, AUTHORIZED A CONSOLIDATION AND CODIFICATION OF THE EXISTING GENERAL AND PERMANENT LAWS APPLICABLE TO THE DISTRICT OF COLUMBIA, BUT DID NOT AUTHORIZE ANY REVISION OR CHANGE IN SUCH LAWS. ACCORDINGLY, THE FACT THAT SOME OF THE PROVISIONS FOUND IN THE ANNUAL APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA HAVE BEEN INCLUDED IN THE DISTRICT OF COLUMBIA CODE DOES NOT CONSTITUTE THEM PERMANENT LAW.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, BUREAU OF THE BUDGET, SEPTEMBER 12, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 21, 1930, AS FOLLOWS:

I WOULD APPRECIATE VERY MUCH THE BENEFIT OF YOUR ADVICE AND COUNSEL ON A MATTER WHICH RELATES TO THE PREPARATION OF THE BUDGET FOR THE FISCAL YEAR 1932.

UNDER AUTHORITY CONTAINED IN THE ACT APPROVED MAY 29, 1928 (45 STAT. 1007), AS AMENDED, THERE WAS PREPARED AND RECENTLY DISTRIBUTED "THE CODE OF THE DISTRICT OF COLUMBIA," WHICH IS INTENDED TO CONTAIN "LAWS, GENERAL AND PERMANENT IN THEIR NATURE, RELATING TO OR IN FORCE IN THE DISTRICT OF COLUMBIA," AS OF MARCH 4, 1929.

AS THE RESULT OF AN EXAMINATION OF THIS CODE I HAVE INDICATED IN THE MARGIN OF THE INCLOSED COPY OF PUBLIC ACT NO. 521, SEVENTY-FIRST CONGRESS, WHICH IS THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1931, THOSE PROVISIONS APPEARING THEREIN WHICH ARE ALSO CONTAINED IN THE CODE OF THE DISTRICT OF COLUMBIA.

IT WOULD SEEM THAT IF THESE PROVISIONS REPRESENT PERMANENT LAW THEY NEED NOT APPEAR ANNUALLY IN FUTURE APPROPRIATION ACTS, AND MAY BE BRACKETED IN THE 1932 BUDGET. HOWEVER, BEFORE TAKING ANY ACTION IN THIS MATTER, I FEEL THAT I SHOULD OBTAIN YOUR ADVICE AS TO WHETHER, FROM AN ACCOUNTING STANDPOINT, THESE PROVISIONS WOULD BE INVALIDATED IF OMITTED FROM FUTURE APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA.

IN THIS CONNECTION I SHOULD LIKE ALSO TO INVITE YOUR ATTENTION TO THE FOLLOWING INSTANCES WHERE PROVISIONS ARE CONTAINED ANNUALLY IN THE DISTRICT OF COLUMBIA APPROPRIATION ACTS, AND WHICH IN THE LIGHT OF OTHER MATTERS CONTAINED IN THE CODE OF THE DISTRICT OF COLUMBIA, MIGHT ALSO BE CONSIDERED PERMANENT IN NATURE:

(A) SECTIONS 640 TO 643, INCLUSIVE, OF THE CODE OF THE DISTRICT OF COLUMBIA RECOGNIZE AS PERMANENT THE AUTHORITY OF THE DISBURSING OFFICER OF THE DISTRICT OF COLUMBIA TO MAKE ADVANCES OF PUBLIC FUNDS TO THE OFFICIALS THEREIN NAMED, BUT THIS RECOGNITION APPARENTLY HAS NOT BEEN ACCORDED TO SIMILAR LANGUAGE APPEARING IN THE APPROPRIATION IN BEHALF OF THE LIBRARIAN OF THE FREE PUBLIC LIBRARY (PAGE 6) OR THE DIRECTOR OF PUBLIC WELFARE IN CONNECTION WITH THE DEPORTATION OF NONRESIDENT INSANE (PAGE 39).

(B) IT WOULD SEEM THAT THE FOLLOWING PART OF THE APPROPRIATIONS FOR THE FIRE DEPARTMENT AND FOR THE TEMPORARY HOME FOR UNION EX-SOLDIERS AND SAILORS MIGHT POSSIBLY ALSO BE CONSIDERED AS PERMANENT LEGISLATION:

"* * * THE COMMISSIONERS ARE AUTHORIZED, IN THEIR DISCRETION, TO BUILD OR CONSTRUCT, IN WHOLE OR IN PART, FIRE-FIGHTING APPARATUS IN THE FIRE DEPARTMENT REPAIR SHOP.' (PAGE 28)

"* * * UNION EX-SOLDIERS, SAILORS, OR MARINES OF THE SPANISH WAR, PHILIPPINE INSURRECTION, OR CHINA RELIEF EXPEDITION, AND SOLDIERS, SAILORS, OR MARINES OF THE WORLD WAR OR WHO SERVED PRIOR TO JULY 2, 192L, SHALL BE ADMITTED TO THE HOME; ALL UNDER THE SUPERVISION OF A BOARD OF MANAGEMENT.' (PAGE 38.)

(C) THE CODE OF THE DISTRICT OF COLUMBIA RECOGNIZES AS PERMANENT THE LANGUAGE APPEARING IN THE APPROPRIATION FOR MISCELLANEOUS AND CONTINGENT EXPENSES OF THE POLICE DEPARTMENT READING:

"* * * THE WAR DEPARTMENT MAY, IN ITS DISCRETION, FURNISH THE COMMISSIONERS, FOR USE OF THE POLICE, UPON REQUISITION, SUCH WORN MOUNTED EQUIPMENT AS MAY BE REQUIRED.' (PAGE 27 AND CODE CITATION.)

HOWEVER, THE CODE OF THE DISTRICT OF COLUMBIA DOES NOT SEEM TO GIVE PERMANENT RECOGNITION TO THE RATHER SIMILAR LANGUAGE APPEARING IN THE APPROPRIATION FOR CONTINGENT EXPENSES OF THE PUBLIC SCHOOLS:

"* * * A BOND SHALL NOT BE REQUIRED ON ACCOUNT OF MILITARY SUPPLIES OR EQUIPMENT ISSUED BY THE WAR DEPARTMENT FOR MILITARY INSTRUCTIONS AND PRACTICE BY THE STUDENTS OF HIGH SCHOOLS IN THE DISTRICT OF COLUMBIA.' (PAGE 22.)

(D) VARIOUS SECTIONS OF THE CODE OF THE DISTRICT OF COLUMBIA REFER TO AS PERMANENT LAW THE MATTER THEREIN SET FORTH AUTHORIZING THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO ACCEPT VOLUNTARY SERVICES. (SEE TITLE 7, SECTION 172; TITLE 8, SECTION 236; AND TITLE 20, SECTIONS 484 AND 1549.) IN VIEW OF THIS FACT, ATTENTION IS INVITED TO THE ABSENCE FROM THE CODE OF THE DISTRICT OF COLUMBIA OF SIMILAR PROVISIONS CONTAINED IN THE APPROPRIATIONS FOR THE MAINTENANCE OF DISPENSARIES (PAGE 29), AND THE MAINTENANCE OF A CHILD-HYGIENE SERVICE (PAGE 30), BY THE HEALTH DEPARTMENT.

WHILE I AM CONCERNED PRIMARILY ONLY WITH THOSE PROVISIONS WHICH APPEAR BOTH IN THE APPROPRIATION ACT AND IN THE CODE, I WOULD APPRECIATE ANY OBSERVATIONS WHICH YOU MAY CARE TO MAKE WITH REGARD TO THE OTHER PROVISIONS WHICH ARE MENTIONED ABOVE.

SECTION 2 OF THE JOINT RESOLUTION OF MAY 29, 1928, 45 STAT. 1007, AS AMENDED BY THE JOINT RESOLUTION OF MARCH 2, 1929, 45 STAT. 1541 (SEC. 1, TITLE 1, D.C. CODE), AUTHORIZES A CONSOLIDATION AND CODIFICATION OF THE LAWS,"GENERAL AND PERMANENT," RELATING TO AND IN FORCE IN THE DISTRICT OF COLUMBIA. SECTION 4 THEREOF AS AMENDED, 45 STAT. 1541, PROVIDES:

IN ALL COURTS, TRIBUNALS, AND PUBLIC OFFICES OF THE UNITED STATES, AT HOME OR ABROAD, OF THE DISTRICT OF COLUMBIA, AND OF EACH STATE, TERRITORY, OR INSULAR POSSESSION OF THE UNITED STATES---

(B) THE MATTER SET FORTH IN THE EDITION OF THE CODE OF THE DISTRICT OF COLUMBIA CURRENT AT ANY TIME SHALL, TOGETHER WITH THE THEN CURRENT SUPPLEMENT, IF ANY, ESTABLISH PRIMA FACIE THE LAWS, GENERAL AND PERMANENT IN THEIR NATURE, RELATING TO OR IN FORCE IN THE DISTRICT OF COLUMBIA ON THE DAY PRECEDING THE COMMENCEMENT OF THE SESSION FOLLOWING THE LAST SESSION THE LEGISLATION OF WHICH IS INCLUDED, EXCEPT SUCH LAWS AS ARE OF APPLICATION IN THE DISTRICT OF COLUMBIA BY REASON OF BEING LAWS OF THE UNITED STATES GENERAL AND PERMANENT IN THEIR NATURE.

THE AUTHORITY IN THE JOINT RESOLUTION IS TO CONSOLIDATE AND CODIFY THE EXISTING GENERAL AND PERMANENT LAWS AND NOT TO REVISE OR INJECT ANY NEW OR DIFFERENT PROVISIONS THEREIN. THE CODIFICATION HAS NOT BEEN ENACTED AS A LAW AFTER ITS COMPILATION, AS EVIDENTLY WAS CONTEMPLATED BY SECTIONS 3 AND 6 OF THE JOINT RESOLUTION OF MAY 29, 1928, SUPRA. THEREFORE, THE MERE FACT THAT SOME OF THE PROVISIONS FOUND IN THE APPROPRIATION ACTS FROM YEAR TO YEAR HAVE BEEN PLACED IN THE DISTRICT OF COLUMBIA CODE DOES NOT CHANGE THE CONSTRUCTION TO BE PLACED THEREON. IT IS A WELL-ESTABLISHED RULE THAT A PROVISION CONTAINED IN AN ANNUAL APPROPRIATIONS ACT MAY NOT BE CONSTRUED TO BE PERMANENT LEGISLATION UNLESS THE LANGUAGE USED THEREIN OR THE NATURE OF THE PROVISION RENDERS IT CLEAR THAT SUCH WAS THE INTENTION OF THE CONGRESS. USUALLY, WHERE THE WORD ,HEREAFTER" OR OTHER WORDS INDICATING FUTURITY ARE USED IN THE ENACTMENT, OR WHERE THE PROVISION IS OF A GENERAL CHARACTER BEARING NO RELATION TO THE OBJECT OF THE APPROPRIATION, THE PROVISION MAY BE CONSTRUED TO BE PERMANENT LEGISLATION. 5 COMP. GEN 810. IN NONE OF THE PROVISIONS MARKED IN THE COPY OF THE APPROPRIATION ACT SUBMITTED BY YOU ARE FOUND ANY WORDS OF FUTURITY. ALSO, THE FACT THAT THESE PROVISIONS HAVE BEEN REPEATED IN THE APPROPRIATION ACTS FROM YEAR TO YEAR WOULD INDICATE THAT THEY WERE NOT CONSIDERED OR INTENDED BY THE CONGRESS TO BE PERMANENT LEGISLATION.

UNDER THE CIRCUMSTANCES IF IT IS DESIRED TO CONTINUE OR HAVE PERMANENCY IN THESE PROVISIONS, IT MAY BE ACCOMPLISHED BY SUBMITTING IN THE BUDGET FOR 1932, EACH PROVISION PRECEDED BY THE WORD ,HEREAFTER," LEAVING IT TO THE CONGRESS TO DETERMINE WHETHER IT WILL MAKE THESE PROVISIONS PERMANENT LEGISLATION, CONTINUE TO REENACT THEM AS TEMPORARY PROVISIONS, OR ELIMINATE THEM ENTIRELY.