A-40439, FEBRUARY 27, 1932, 11 COMP. GEN. 331

A-40439: Feb 27, 1932

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1932: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14. YOU STATED: I ASKED THE NATIONAL ASSOCIATION OF ECONOMISTS TO SEND A COMMITTEE OF THEIR OWN SELECTION TO WASHINGTON TO CONSULT WITH ME IN REFERENCE TO AN INVESTIGATION I WISHED THE ASSOCIATION TO CONDUCT AND THE FOUR ABOVE-NAMED GENTLEMEN WERE SELECTED AND SENT HERE AND HAVE CONCLUDED THE INVESTIGATION AND MADE THEIR REPORT. IT WAS MY INTENTION TO OFFER TO PAY THE EXPENSES OF THESE MEN FROM THEIR HOMES TO WASHINGTON. ARE NOT ABLE TO SUBMIT IN ALL CASES RECEIPTS SHOWING USE OF PULLMAN ACCOMMODATIONS. YOU STATED: * * * FORMAL REQUEST FOR THIS WORK WAS MADE BY ME UNDER DATE OF OCTOBER 1. IT IS ASSUMED THAT THIS COMMITTEE WAS ACTIVELY ENGAGED IN THE INVESTIGATION FROM THAT DATE.

A-40439, FEBRUARY 27, 1932, 11 COMP. GEN. 331

TRAVELING EXPENSES - PRIVATE PARTIES MEMBERS OF A COMMITTEE SELECTED BY THE NATIONAL ASSOCIATION OF ECONOMISTS, AT THE REQUEST OF THE SECRETARY OF COMMERCE, MAY NOT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, BE REIMBURSED EXPENSES INCURRED IN TRAVEL BETWEEN THEIR RESPECTIVE HOMES AND WASHINGTON IN CONNECTION WITH AN INVESTIGATION OR INQUIRY CONDUCTED BY THEM WITH RESPECT TO CERTAIN CHARGES THAT HAD BEEN MADE BY A FORMER EMPLOYEE RELATIVE TO THE ADMINISTRATION OF THE DEPARTMENT OF COMMERCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, FEBRUARY 27, 1932:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1932, TRANSMITTING FOUR VOUCHERS FOR PREAUDIT COVERING PROPOSED REIMBURSEMENT OF EXPENSES INCURRED BY MEMBERS OF A COMMITTEE SELECTED BY THE NATIONAL ASSOCIATION OF ECONOMISTS, AT YOUR REQUEST, IN COMING FROM THEIR RESPECTIVE HOMES TO WASHINGTON AND RETURN IN NOVEMBER, 1931. THE VOUCHERS, WHICH BEAR ADMINISTRATIVE APPROVAL, PROPOSE REIMBURSEMENT AS FOLLOWS: WILLFORD I. KING -------------------------- ------------- $40.88 ERNEST M. PATTERSON ----------------------------- ------- 26.46 JAMES W. ANGELL --------------------------------------- - 41.31 JOHN H. WILLIAMS -- -------------------------------------- 65.00

IN YOUR LETTER OF JANUARY 14, 1932, YOU STATED:

I ASKED THE NATIONAL ASSOCIATION OF ECONOMISTS TO SEND A COMMITTEE OF THEIR OWN SELECTION TO WASHINGTON TO CONSULT WITH ME IN REFERENCE TO AN INVESTIGATION I WISHED THE ASSOCIATION TO CONDUCT AND THE FOUR ABOVE-NAMED GENTLEMEN WERE SELECTED AND SENT HERE AND HAVE CONCLUDED THE INVESTIGATION AND MADE THEIR REPORT. IT WAS MY INTENTION TO OFFER TO PAY THE EXPENSES OF THESE MEN FROM THEIR HOMES TO WASHINGTON, BUT I DID NOT ADVISE THEM OF MY INTENTIONS IN THIS RESPECT IN ADVANCE OF THE INVESTIGATION, IN ORDER TO AVOID ANY APPEARANCE OF INFLUENCING THEIR ACTION IN FAVOR OF THIS DEPARTMENT. THESE GENTLEMEN, NOT BEING FAMILIAR WITH THE REQUIREMENTS OF THE GOVERNMENT IN SECURING PROPER RAIL AND PULLMAN RECEIPTS AND NOT BEING IN A POSITION TO USE TRANSPORTATION REQUESTS IN SECURING SUCH ACCOMMODATIONS, ARE NOT ABLE TO SUBMIT IN ALL CASES RECEIPTS SHOWING USE OF PULLMAN ACCOMMODATIONS, AND I WISH TO ASK THAT YOU BE GOOD ENOUGH TO WAIVE YOUR REQUIREMENTS IN THESE PARTICULAR CASES.

IN A LATER REPORT DATED FEBRUARY 18, 1932, YOU STATED:

* * * FORMAL REQUEST FOR THIS WORK WAS MADE BY ME UNDER DATE OF OCTOBER 1, 1931, AND IT IS ASSUMED THAT THIS COMMITTEE WAS ACTIVELY ENGAGED IN THE INVESTIGATION FROM THAT DATE. THE COMMITTEE VISITED WASHINGTON ON NOVEMBER 27 AND 28 FOR THE PURPOSE OF HOLDING AN INVESTIGATION AND WERE FURNISHED QUARTERS IN THE DEPARTMENT OF COMMERCE DURING THAT TIME. THE REPORT WAS SIGNED BY THE FOUR ABOVE NAMED GENTLEMEN AND WAS SUBMITTED IMMEDIATELY AFTER NOVEMBER 28.

IT APPEARS THAT DOCTOR KING AND THE OTHER ECONOMISTS SELECTED AT YOUR REQUEST, CONSTITUTED A ,COMMITTEE OF ECONOMISTS" FOR THE PURPOSE OF MAKING AN INVESTIGATION AND REPORT WITH RESPECT TO CERTAIN CHARGES RELATIVE TO THE ADMINISTRATION OF THE DEPARTMENT OF COMMERCE. DOCTOR KING WAS CHAIRMAN OF THE COMMITTEE, AND IT APPEARS THAT, IN MAKING THE INVESTIGATION, THE COMMITTEE FUNCTIONED AS A BODY, THAT IS, AS A BOARD OF INQUIRY.

SECTION 3681, REVISED STATUTES, PROVIDES:

NO ACCOUNTING OR DISBURSING OFFICER OF THE GOVERNMENT SHALL ALLOW OR PAY ANY ACCOUNT OR CHARGE WHATEVER, GROWING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY COMMISSION OR INQUIRY, EXCEPT COURTS-MARTIAL OR COURTS OF INQUIRY IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, UNTIL SPECIAL APPROPRIATIONS SHALL HAVE BEEN MADE BY LAW TO PAY SUCH ACCOUNTS AND CHARGES. * * *

SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, PROVIDES:

THAT HEREAFTER NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION HERETOFORE OR HEREAFTER MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

THE PURPOSE AND EFFECT OF THESE STATUTES IS TO PROHIBIT THE INCURRING OR PAYING OF EXPENSES INCIDENT TO CONDUCTING INQUIRIES OR THE CREATION OF COMMISSION, COUNCILS, BOARDS, OR SIMILAR BODIES BY THE EXECUTIVE BRANCH OF THE GOVERNMENT THROUGH ITS INHERENT POWER TO MAKE APPOINTMENTS AND INCUR EXPENSES, UNLESS SPECIFIC LEGISLATIVE AUTHORITY FOR SUCH INQUIRY, COMMISSION, COUNCIL, BOARD, OR SIMILAR BODY IS FIRST GRANTED BY APPROPRIATION OR OTHERWISE. 5 COMP. GEN. 417; ID. 53; 6 COMP. GEN. 140.

IN THE INSTANT CASE NO SPECIFIC APPROPRIATION WAS MADE FOR THE PAYMENT OF TRAVELING OR OTHER EXPENSES OF THE COMMITTEE CREATED AT YOUR REQUEST, NOR WAS SPECIFIC LEGISLATIVE AUTHORITY GIVEN FOR ITS CREATION SO AS POSSIBLY TO MAKE AVAILABLE FOR REIMBURSEMENT OF THESE EXPENSES A PART OF THE GENERAL APPROPRIATION FOR THE DEPARTMENT OF COMMERCE OR THE AGENCIES UNDER ITS CONTROL. THEREFORE, UNDER THE PLAIN PROVISIONS OF THE ABOVE QUOTED STATUTES, I HAVE NO CHOICE BUT TO HOLD THAT THE PROPOSED PAYMENTS ARE NOT AUTHORIZED UNDER ANY APPROPRIATION OF THE DEPARTMENT OF COMMERCE.

A CASE PRACTICALLY IDENTICAL WITH THE ONE HERE PRESENTED AROSE IN THE DEPARTMENT OF THE INTERIOR IN 1926, AND IN MY DECISION OF DECEMBER 8, 1926, A-16348, AFFIRMING A PREVIOUS DECISION IN THE MATTER, IT WAS SAID:

THE QUESTION WHICH THE MATTER PRESENTED WAS WHETHER THE INVESTIGATION BY THESE PHYSICIANS WAS WITHIN THE ACT OF MARCH 4, 1909, 35 STAT. 1027, AND SECTION 3681 OF THE REVISED STATUTES, PROHIBITING THE USE OF APPROPRIATIONS FOR COMPENSATION OR EXPENSES OF "ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF" UNLESS AUTHORIZED BY LAW. I CAREFULLY EXAMINED THE MATTER AND WAS ABLE TO REACH NO OTHER CONCLUSION THAN THAT THE TRAVEL EXPENSES OF THESE PHYSICIANS IN SUCH AN INVESTIGATION WOULD BE WITHIN THE PROHIBITION OF THE STATUTES CITED. CONCLUSION DID NOT REST PARTICULARLY UPON THE FACT THAT YOUR LETTER OF SEPTEMBER 7, 1926, ADDRESSED TO THE INDIVIDUAL PHYSICIANS PARTICULARLY REFERRED TO HAVING THE PHYSICIANS SERVE AS ONE OF A COMMITTEE, BUT I BELIEVED THE PURPOSE FOR WHICH THESE PHYSICIANS WERE APPOINTED WAS ONE WHICH CONSTITUTED A WORK OF INVESTIGATION BY A COMMITTEE OR COMMISSION SUCH AS THE APPLICABLE LAW SOUGHT TO PROHIBIT UNLESS DULY AUTHORIZED BY LEGISLATION. IT WAS IMMATERIAL WHAT BROAD DESIGNATION OR TITLE WAS MADE IN THAT CONNECTION. THE WORK UPON WHICH IT WAS ENGAGED WAS NECESSARILY CONTROLLING.

YOU FULLY APPRECIATE, I AM SURE, THAT THE MATTER IS NOT ONE I MAY PROPERLY CONSIDER FROM THE VIEW POINT OF THE WISDOM OF YOUR SECURING THE SERVICES OF THESE PHYSICIANS, OR THE VALUE OF THE SERVICE RENDERED BY THEM BUT IS STRICTLY ONE OF WHETHER, IN VIEW OF THE LAW ON THE SUBJECT, PAYMENT MAY BE MADE FROM APPROPRIATED FUNDS WITHOUT SPECIFIC AUTHORIZATION IN THE MATTER BY THE CONGRESS. I REGRET THERE SEEMS NO PROPER ANSWER BUT IN THE NEGATIVE.