A-3424, JULY 5, 1924, 4 COMP. GEN. 19

A-3424: Jul 5, 1924

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IS APPLICABLE TO TELEPHONES IN THE RESIDENCES OF OFFICIALS OF THE ALASKA RAILROAD. 1924: I HAVE YOUR LETTER OF JUNE 10. REQUESTING DECISION WHETHER PAYMENT FOR SUCH SERVICE IS AUTHORIZED. IT IS REPORTED THAT THE OFFICIALS IN QUESTION ARE DIRECTLY IN CHARGE OF THE OPERATION OF THE ALASKA RAILROAD. THAT THE TELEPHONES IN THEIR PRIVATE RESIDENCES ARE DEEMED ESSENTIAL IN ORDER THAT THE OFFICIALS MAY BE REACHED PROMPTLY IN CASE OF NECESSITY. THAT IT IS USUAL TO PROVIDE SUCH FACILITIES FOR THE PROPER AND EFFICIENT OPERATION OF A RAILROAD. THE LANGUAGE OF THE SECTION QUOTED IS PLAIN AND COMPREHENSIVE AND HAS BEEN UNIFORMLY CONSTRUED IN A LONG LINE OF DECISIONS TO PROHIBIT THE FURNISHING AT PUBLIC EXPENSE OF PERSONAL TELEPHONE SERVICE TO A GOVERNMENT OFFICER OR EMPLOYEE IN HIS PRIVATE HOME OR QUARTERS.

A-3424, JULY 5, 1924, 4 COMP. GEN. 19

TELEPHONES IN PRIVATE RESIDENCES - ALASKA RAILROAD OFFICIALS THE PROHIBITION IN SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, AGAINST THE USE OF APPROPRIATED MONEYS FOR TELEPHONE SERVICE INSTALLED IN PRIVATE RESIDENCES, IS APPLICABLE TO TELEPHONES IN THE RESIDENCES OF OFFICIALS OF THE ALASKA RAILROAD; SUCH TELEPHONES CAN NOT BE CLASSED AS OPERATING EXPENSES OF THE ROAD AND PAID FOR FROM THE EARNINGS OF THE ROAD IN ORDER TO OVERCOME THE STATUTORY PROHIBITION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 5, 1924:

I HAVE YOUR LETTER OF JUNE 10, 1924, INCLOSING VOUCHERS FOR RENTAL OF TELEPHONES INSTALLED IN HOUSES OCCUPIED BY OFFICIALS OF THE ALASKA RAILROAD, AND REQUESTING DECISION WHETHER PAYMENT FOR SUCH SERVICE IS AUTHORIZED.

IT IS REPORTED THAT THE OFFICIALS IN QUESTION ARE DIRECTLY IN CHARGE OF THE OPERATION OF THE ALASKA RAILROAD; THAT THE TELEPHONES IN THEIR PRIVATE RESIDENCES ARE DEEMED ESSENTIAL IN ORDER THAT THE OFFICIALS MAY BE REACHED PROMPTLY IN CASE OF NECESSITY; AND THAT IT IS USUAL TO PROVIDE SUCH FACILITIES FOR THE PROPER AND EFFICIENT OPERATION OF A RAILROAD.

SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, PROVIDES AS FOLLOWS:

THAT NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OF FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG DISTANCE TELEPHONE TOLLS REQUIRED STRICTLY FOR PUBLIC BUSINESS, AND SO SHOWN BY VOUCHERS DULY SWORN TO AND APPROVED BY THE HEAD OF THE DEPARTMENT, DIVISION, BUREAU, OR OFFICE IN WHICH THE OFFICIAL USING SUCH TELEPHONE OR INCURRING THE EXPENSE OF SUCH TOLLS SHALL BE EMPLOYED.

THE LANGUAGE OF THE SECTION QUOTED IS PLAIN AND COMPREHENSIVE AND HAS BEEN UNIFORMLY CONSTRUED IN A LONG LINE OF DECISIONS TO PROHIBIT THE FURNISHING AT PUBLIC EXPENSE OF PERSONAL TELEPHONE SERVICE TO A GOVERNMENT OFFICER OR EMPLOYEE IN HIS PRIVATE HOME OR QUARTERS. SEE 19 COMP. DEC. 198, 202, 212, AND 350; 21 ID. 248; 22 ID. 602.

THE ACT OF MARCH 12, 1914, 38 STAT. 305, WAS AN ACT AUTHORIZING THE PRESIDENT TO LOCATE, CONSTRUCT, AND OPERATE RAILROADS IN THE TERRITORY OF ALASKA. IT IS PROVIDED IN SAID ACT, PAGE 07:

THE AUTHORITY HEREIN GRANTED SHALL INCLUDE THE POWER TO CONSTRUCT, MAINTAIN, AND OPERATE TELEGRAPH AND TELEPHONE LINES SO FAR AS THEY MAY BE NECESSARY OR CONVENIENT IN THE CONSTRUCTION AND OPERATION OF THE RAILROAD OR RAILROADS AS HEREIN AUTHORIZED AND THEY SHALL PERFORM GENERALLY ALL THE USUAL DUTIES OF TELEGRAPH AND TELEPHONE LINES FOR HIRE.

THAT IT IS THE INTENT AND PURPOSE OF CONGRESS THROUGH THIS ACT TO AUTHORIZE AND EMPOWER THE PRESIDENT OF THE UNITED STATES, AND HE IS HEREBY FULLY AUTHORIZED AND EMPOWERED THROUGH SUCH OFFICERS, AGENTS, OR AGENCIES AS HE MAY APPOINT OR EMPLOY, TO DO ALL NECESSARY ACTS AND THINGS IN ADDITION TO THOSE SPECIALLY AUTHORIZED IN THIS ACT TO ENABLE HIM TO ACCOMPLISH THE PURPOSES AND OBJECTS OF THIS ACT.

THE PARAGRAPH LAST QUOTED HAS BEEN CONSTRUED IN A NUMBER OF DECISIONS OF THE COMPTROLLER OF THE TREASURY AND HAS BEEN HELD TO CONFER BROAD POWERS UPON THE PRESIDENT. SEE 22 COMP. DEC. 463; 23 ID. 269; 70 MS. COMP. DEC. 154; 74 ID. 189. THE BROAD POWERS CONFERRED BY THE ACT OF MARCH 12, 1914, ARE, HOWEVER, SUBJECT TO STATUTORY LIMITATIONS IN THE SAME MANNER AS IN OTHER INSTANCES IN WHICH ADMINISTRATIVE OR EXECUTIVE DISCRETION IS VESTED. THE DISCRETION IS A LEGAL DISCRETION AND NOT AN UNLIMITED DISCRETION. YOU ARE ADVISED, THEREFORE, THAT THE APPROPRIATION, "MAINTENANCE AND OPERATION OF THE ALASKA RAILROADS" IS NOT AVAILABLE TO PAY FOR THE SERVICE IN QUESTION.

SECTION 3 OF THE ACT OF MARCH 12, 1914, 38 STAT. 307, PROVIDES:

THAT ALL MONEY DERIVED FROM * * * THE EARNINGS OF SAID RAILROAD OR RAILROADS * * * ABOVE MAINTENANCE CHARGES AND OPERATING EXPENSES, SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES AS OTHER MISCELLANEOUS RECEIPTS ARE PAID, * * *.

THE STATUTORY PROHIBITION UPON THE USE OF APPROPRIATED MONEYS FOR TELEPHONES IN PRIVATE RESIDENCES APPLIES LIKEWISE TO THE USE OF THE REVENUES FROM OPERATION OF THE RAILROAD--- SUCH TELEPHONES CAN NOT BE CLASSED AS OPERATING EXPENSES TO OVERCOME THE STATUTORY PROHIBITION UPON PRIVATE RESIDENCE TELEPHONES AT GOVERNMENT EXPENSE.