A-39866, APRIL 6, 1932, 11 COMP. GEN. 380

A-39866: Apr 6, 1932

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WHERE THE WORDS OF A STATUTE ARE NOT AMBIGUOUS OR UNCERTAIN. IT IS NOT PERMISSIBLE TO REFER TO COMMITTEE HEARINGS. IT WAS HELD THAT THE REIMBURSEMENT OF SUCH EXPENSES WAS NOT AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21. STATING AS FOLLOWS: YOU WILL NOTE THAT THE ACT PROVIDES CONCERNING THE EXPENSES OF THE TRANSFER OF THE HOUSEHOLD GOODS AND EFFECTS OF THE TRANSFERRED EMPLOYEE THAT THEY ARE TO BE ALLOWED "WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF LABOR. " SO YOU WILL PERCEIVE THAT CONGRESS HAS GUARDED CAREFULLY AGAINST ANY ABUSE OF THE PRIVILEGE ACCORDED TO SUCH EMPLOYEES. WHILE IT IS TRUE THAT THE STATUTE DOES NOT IN WORDS PROVIDE FOR THE EXPENSE OF UNCRATING AND UNPACKING.

A-39866, APRIL 6, 1932, 11 COMP. GEN. 380

TRANSPORTATION - HOUSEHOLD EFFECTS - PACKING AND CRATING - STATUTORY CONSTRUCTION THE DISCRETION VESTED IN THE SECRETARY OF LABOR BY SECTION 24 OF THE ACT OF FEBRUARY 21, 1931, 46 STAT. 1205, TO ALLOW OFFICERS AND EMPLOYEES OF THE IMMIGRATION SERVICE TO TRANSPORT THEIR HOUSEHOLD EFFECTS UPON CHANGE OF STATION AT GOVERNMENT EXPENSE," INCLUDING THE EXPENSES FOR PACKING, CRATING, FREIGHT, AND DRAYAGE THEREOF," DOES NOT EXTEND TO EXPENSES OF UNPACKING AND UNCRATING. WHERE THE WORDS OF A STATUTE ARE NOT AMBIGUOUS OR UNCERTAIN, IT IS NOT PERMISSIBLE TO REFER TO COMMITTEE HEARINGS, REPORTS, ETC., PRECEDING THE ENACTMENT OF THE STATUTE, TO AID IN ITS CONSTRUCTION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, APRIL 6, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 23, 1932, AGAIN REQUESTING APPROVAL BY THIS OFFICE OF REGULATIONS WHICH YOU HAD PROPOSED TO ISSUE TO AUTHORIZE REIMBURSEMENT TO OFFICERS AND EMPLOYEES OF THE IMMIGRATION SERVICE FOR THE COST OF UNPACKING, UNCRATING, AND DRAYAGE OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY UPON ARRIVAL AT THE NEW STATION TO WHICH TRANSFERRED.

BY DECISION TO YOU OF DECEMBER 17, 1931, IT WAS HELD THAT THE REIMBURSEMENT OF SUCH EXPENSES WAS NOT AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1931, 46 STAT. 1205. YOU NOW URGE RECONSIDERATION OF THAT DECISION, STATING AS FOLLOWS:

YOU WILL NOTE THAT THE ACT PROVIDES CONCERNING THE EXPENSES OF THE TRANSFER OF THE HOUSEHOLD GOODS AND EFFECTS OF THE TRANSFERRED EMPLOYEE THAT THEY ARE TO BE ALLOWED "WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF LABOR," SO YOU WILL PERCEIVE THAT CONGRESS HAS GUARDED CAREFULLY AGAINST ANY ABUSE OF THE PRIVILEGE ACCORDED TO SUCH EMPLOYEES. WHILE IT IS TRUE THAT THE STATUTE DOES NOT IN WORDS PROVIDE FOR THE EXPENSE OF UNCRATING AND UNPACKING, THE DEPARTMENT IS OF THE VIEW THAT, BEING A STATUTE DESIGNED TO REMEDY AN UNFAIR EXISTING CONDITION, THE RULE THAT WHERE WARRANTED A LIBERAL CONSTRUCTION TO EFFECT THE REMEDY AIMED AT SHOULD BE APPLIED. (SEE, FOR EXAMPLE, ENDLICH, SECTIONS 103-107, AND SECTION 329, PAGE 455.) AS AN INDICATION OF JUST WHAT WAS THE REMEDY AIMED AT IN THE ACT IN QUESTION, YOUR ATTENTION IS RESPECTFULLY INVITED TO HOUSE COMMITTEE REPORT NO. 1237, 71ST CONGRESS, 2D SESSION, AND SENATE REPORT NO. 924, 71ST CONGRESS, 2D SESSION, WHEREIN THE COMMITTEES CITE AT LENGTH FROM THE ANNUAL REPORTS OF THE SECRETARY OF LABOR AND THE COMMISSIONER GENERAL OF IMMIGRATION OVER A PERIOD OF SEVERAL YEARS URGING LEGISLATION WHICH WOULD ALLOW ALL NECESSARY EXPENSES CONNECTED WITH THE TRANSFER OF AN EMPLOYEE AND HIS FAMILY AND HOUSEHOLD EFFECTS FROM HIS ORIGINAL HOME TO HIS NEW HOME. THE VIEWS EXPRESSED BY THIS DEPARTMENT IN THOSE REPORTS HAVE THEREBY BECOME THE VIEWS OF THE COMMITTEES IN CHARGE OF THE BILL WHICH BECAME THE ACT OF FEBRUARY 21, 1931, AND FOR THAT REASON, NOTWITHSTANDING YOUR OPINION IN 9 COMP. GEN. 434, WOULD APPEAR TO INDICATE THAT CONGRESS INTENDED THAT BY THIS PARTICULAR STATUTE THERE SHOULD BE ALLOWED EVERY ITEM OF EXPENSE INCURRED BY THE TRANSFERRED EMPLOYEE IN GIVING UP HIS OLD HOME AND TAKING UP A NEW ONE IN THE PLACE TO WHICH HE IS TRANSFERRED, ALWAYS STRICTLY WITHIN THE DISCRETION AND UNDER THE WRITTEN ORDERS OF THE SECRETARY OF LABOR.

SECTION 24 OF THE IMMIGRATION ACT OF 1924, AS AMENDED BY THE ACT OF FEBRUARY 21, 1931, 46 STAT. 1205, PROVIDES, IN PART:

PROVIDED FURTHER, THAT WHEN INSPECTORS OR OTHER EMPLOYEES OF THE IMMIGRATION SERVICE AND OFFICERS AND EMPLOYEES OF THE NATURALIZATION BUREAU AND NATURALIZATION SERVICE ARE ORDERED TO PERFORM DUTY IN A FOREIGN COUNTRY, OR TRANSFERRED FROM ONE STATION TO ANOTHER, IN THE UNITED STATES OR IN A FOREIGN COUNTRY, THEY SHALL BE ALLOWED THEIR TRAVELING EXPENSES IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY OF LABOR MAY DEEM ADVISABLE, AND THEY MAY ALSO BE ALLOWED, WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF LABOR, THE EXPENSES INCURRED FOR THE TRANSFER OF THEIR WIVES AND DEPENDENT MINOR CHILDREN; THEIR HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY, NOT EXCEEDING IN ALL FIVE THOUSAND POUNDS, INCLUDING THE EXPENSES FOR PACKING, CRATING, FREIGHT, AND DRAYAGE THEREOF. * * *

THE DISCRETION CONFERRED UPON THE SECRETARY OF LABOR BY THE FOREGOING STATUTE IS A LEGAL DISCRETION AND CAN BE EXERCISED ONLY WITHIN THE BOUNDS PRESCRIBED BY STATUTE. SEE 5 COMP. DEC. 151; 7 ID 31; 25 ID. 928; 26 ID. 452; HINES V. WELCH, 23 FED./2D) 979. FURTHERMORE, IT IS TO BE NOTED THAT WHILE THE STATUTE PROVIDES THAT THE EMPLOYEES "SHALL BE ALLOWED" THEIR TRAVELING EXPENSES, IT PROVIDES, WITH RESPECT TO EXPENSES FOR THE TRANSFER OF THEIR WIVES HOUSEHOLD EFFECTS, ETC., ONLY THAT SUCH EXPENSES "MAY" BE ALLOWED "WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF LABOR.' IT IS CLEAR, THEREFORE, THAT THE DISCRETION IS NOT AS TO THE ITEMS OR AMOUNTS WHICH MAY BE ALLOWED BY AS TO WHETHER AND IN WHICH CASES COMING WITHIN THE PROVISIONS OF THE STATUTE THE EXPENSES MENTIONED IN THE STATUTE MAY BE ALLOWED. THE STATUTE AUTHORIZES REIMBURSEMENT FOR PACKING AND CRATING AND NOT FOR UNPACKING AND UNCRATING. IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT IT IS NOT PERMISSIBLE TO REFER TO COMMITTEE REPORTS, ETC., PRECEDING THE ENACTMENT OF A STATUTE IN ORDER TO ASCERTAIN ITS MEANING EXCEPT WHERE AN AMBIGUITY OR UNCERTAINTY EXISTS AS TO THE MEANING OF THE WORDS USED. THE WORDS "PACKING" AND ,CRATING" ARE NOT AMBIGUOUS, AND BY NO RULE OF STATUTORY CONSTRUCTION COULD THEY BE CONSTRUED TO INCLUDE ENTIRELY DIFFERENT OPERATIONS. PACKING AND CRATING FOR SHIPMENT BY RAIL OR STEAMSHIP REQUIRES THE SERVICES OF A PERSON OR PERSONS HAVING SOME SKILL OR EXPERIENCE ALONG THAT LINE IN ORDER THAT THE GOODS MAY NOT BE DAMAGED IN TRANSIT. ON THE OTHER HAND, UNPACKING AND UNCRATING AT DESTINATION MAY BE DONE ORDINARILY BY ANY ONE--- THE OWNER HIMSELF, MEMBERS OF HIS FAMILY, HIS SERVANTS, OR BY AN ORDINARY LABORER. THE CONGRESS HAVING NAMED SPECIFICALLY THE SERVICES WHICH MAY BE REIMBURSED, THERE IS NO AUTHORITY OR JURISDICTION IN THE ADMINISTRATIVE OFFICE TO EXTEND THE AUTHORIZATION SO GRANTED TO INCLUDE SERVICES NOT WITHIN THE PURVIEW OF THE LANGUAGE USED. SIMILAR LANGUAGE IN STATUTES REFERRING TO OTHER DEPARTMENTS OR SERVICES HAS BEEN CONSTRUED FOR YEARS BY THE ACCOUNTING OFFICERS AS NOT INCLUDING UNPACKING OR UNCRATING. SEE 27 COMP. DEC. 261; 2 COMP. GEN. 598; 9 ID. 434.

REIMBURSEMENT TO OFFICERS AND EMPLOYEES FOR THE COST OF UNPACKING AND UNCRATING THEIR HOUSEHOLD EFFECTS IS NOT AUTHORIZED UNDER THE STATUTE HERE IN QUESTION.