A-51743, APRIL 28, 1934, 13 COMP. GEN. 305

A-51743: Apr 28, 1934

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WHICH IS APPLICABLE TO PUBLIC WORKS FUNDS. 1934: REFERENCE IS HAD TO YOUR LETTER OF APRIL 11. AS FOLLOWS: I HAVE RECEIVED YOUR LETTER OF APRIL 10. CONCERNING THE SUSPENSIONS MADE OF SALARY PAYMENTS TO A NUMBER OF EMPLOYEES OF THE PUBLIC WORKS ADMINISTRATION WHERE INCREASES WERE INVOLVED. IS NOT AFFECTED BY THE AUTHORITY IN THE NATIONAL RECOVERY ACT TO APPOINT AND FIX THE COMPENSATION OF EMPLOYEES. AS THEY MAY DEEM NECESSARY TO EFFECTUATE THE PURPOSES FOR WHICH THE FUNDS ARE ALLOCATED. WILL YOU PLEASE ADVISE WHETHER THE SUSPENSIONS MENTIONED ABOVE. WILL BE RELIEVED. WILL BE APPROVED. THERE IS NOTHING IN THE RECOVERY ACT OR ELSEWHERE PROVIDING SPECIFICALLY THAT SECTION 7 OF THE ACT OF MARCH 3.

A-51743, APRIL 28, 1934, 13 COMP. GEN. 305

COMPENSATION - ADMINISTRATIVE PROMOTIONS - PUBLIC WORKS ADMINISTRATION THE EXECUTIVE ORDER NO. 6660 OF MARCH 27, 1934, WHILE AUTHORIZING THE USE OF FUNDS OF THE PUBLIC WORKS ADMINISTRATION FOR PERSONAL SERVICES, DOES NOT SPECIFICALLY AUTHORIZE DISREGARD OF SECTION 7 OF THE ACT OF MARCH 3, 1933, PROHIBITING ADMINISTRATIVE PROMOTIONS, WHICH IS APPLICABLE TO PUBLIC WORKS FUNDS, AND EVEN IF THERE EXISTED NO DOUBT AS TO THE PRESIDENT'S AUTHORITY SO TO DO, THE PRESIDENT MAY NOT BE PLACED IN AN ATTITUDE OF SANCTIONING DISREGARD OF STATUTORY LAW WITHOUT HIS PURPOSE TO DO SO APPEARS CLEAR BEYOND ANY ROOM FOR DOUBT.

COMPTROLLER GENERAL MCCARL TO THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS, APRIL 28, 1934:

REFERENCE IS HAD TO YOUR LETTER OF APRIL 11, 1934, AS FOLLOWS:

I HAVE RECEIVED YOUR LETTER OF APRIL 10, A-51743, CONCERNING THE SUSPENSIONS MADE OF SALARY PAYMENTS TO A NUMBER OF EMPLOYEES OF THE PUBLIC WORKS ADMINISTRATION WHERE INCREASES WERE INVOLVED, AND I NOTE THAT CREDIT HAS BEEN DISALLOWED IN ALL BUT THREE CASES, SUBJECT TO FURTHER CONSIDERATION OF AVAILABLE FACTS. I ALSO NOTE YOUR STATEMENT THAT SECTION 7 OF THE ACT OF MARCH 3, 1933, PROHIBITING ADMINISTRATIVE PROMOTIONS, IS NOT AFFECTED BY THE AUTHORITY IN THE NATIONAL RECOVERY ACT TO APPOINT AND FIX THE COMPENSATION OF EMPLOYEES.

IN THIS CONNECTION I INVITE YOUR ATTENTION TO THE EXECUTIVE ORDER OF MARCH 27, 1934, ISSUED SUBSEQUENT TO MY LETTER OF MARCH 19, AUTHORIZING THE HEADS OF EMERGENCY AGENCIES TO MAKE SUCH EXPENDITURES, INCLUDING THOSE FOR PERSONAL SERVICES, PURCHASE OF AUTOMOBILES, ETC., AS THEY MAY DEEM NECESSARY TO EFFECTUATE THE PURPOSES FOR WHICH THE FUNDS ARE ALLOCATED. IN VIEW OF THIS ORDER AND THE ATTORNEY GENERAL'S OPINION OF APRIL 4, 1934, COPY ATTACHED, AUTHORIZING ADJUSTMENTS UNDER EXECUTIVE ORDER NO. 6440, WHICH MAY RESULT IN INCREASES IN COMPENSATION, WILL YOU PLEASE ADVISE WHETHER THE SUSPENSIONS MENTIONED ABOVE, AS WELL AS OTHER SIMILAR SUSPENSIONS IN THE ACCOUNTS OF THE DISBURSING OFFICER OF THE DEPARTMENT OF THE INTERIOR, WILL BE RELIEVED; ALSO, WHETHER FUTURE EXPENDITURES UNDER THE EXECUTIVE ORDERS OF NOVEMBER 18, 1933, AND MARCH 27, 1934, WILL BE APPROVED.

THERE IS NOTHING IN THE RECOVERY ACT OR ELSEWHERE PROVIDING SPECIFICALLY THAT SECTION 7 OF THE ACT OF MARCH 3, 1933, SHALL NOT BE AS FULLY APPLICABLE TO THE PUBLIC MONEYS APPROPRIATED TO CARRY OUT THE RECOVERY ACT AS TO APPROPRIATIONS MADE FOR CARRYING ON THE MANY OTHER ACTIVITIES OF THE GOVERNMENT--- NO INTIMATION OF AN INTENT THAT WHILE THERE SHOULD BE DENIED ADMINISTRATIVE PROMOTIONS TO EMPLOYEES IN THE DEPARTMENTS AND ESTABLISHMENTS MAINTAINED BY REGULAR APPROPRIATIONS A MORE LIBERAL RULE SHOULD BE AVAILABLE TO EMPLOYEES PAID FROM THE APPROPRIATION MADE TO CARRY OUT THE RECOVERY ACT. SECTION 7 OF THE ACT OF MARCH 3, 1933, BEING THUS APPLICABLE TO THE USES OF ALL APPROPRIATIONS FOR PERSONAL SERVICES IN THE CIVIL BRANCH OF THE GOVERNMENT AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA DURING THE FISCAL YEAR ENDING JUNE 30, 1934, YOUR SUBMISSION REQUIRES CONSIDERATION OF THE EFFECT OF THE EXECUTIVE ORDER NO. 6660, OF MARCH 27, 1934, AUTHORIZING HEADS OF EMERGENCY AGENCIES OPERATING UNDER FUNDS ALLOCATED BY THE PRESIDENT FROM THE APPROPRIATION MADE TO CARRY OUT THE RECOVERY ACT,"TO MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES * * *) AS THEY MAY DEEM NECESSARY TO EFFECTUATE THE PURPOSES FOR WHICH THE SAID FUNDS ARE ALLOCATED," ON THE SPECIFIC DENIAL OF PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT DURING THE FISCAL YEAR ENDING JUNE 30, 1934, APPEARING IN SECTION 7 OF THE ACT OF MARCH 3, 1933 (47 STAT. 1515), AND, ALSO, THE EFFECT UPON THE ADMINISTRATIVE PROMOTIONS MADE IN CONTRAVENTION OF SAID SECTION 7 DURING SAID FISCAL YEAR AND PRIOR TO MARCH 27, 1934, OF THE PROVISION OF SAID EXECUTIVE ORDER, AS FOLLOWS:

ALL SUCH EXPENDITURES MADE OR INCURRED PRIOR TO THE DATE OF THIS ORDER ARE HEREBY CONFIRMED AND RATIFIED.

WHILE THE LANGUAGE EMPLOYED IN THE FOURTH DEFICIENCY ACT, JUNE 16, 1933, MAKING THE APPROPRIATION TO CARRY OUT THE RECOVERY ACT VESTS WIDE DISCRETION IN THE PRESIDENT, WHETHER THE DISCRETION SO VESTED INCLUDES AUTHORITY TO USE THE APPROPRIATION IN CONTRAVENTION OF SPECIFIC STATUTORY LAW NEED NOT HERE BE CONSIDERED, AS THE EXECUTIVE ORDER OF MARCH 27, 1934, DOES NOT PURPORT TO SANCTION EXPENDITURES IN CONTRAVENTION OF SECTION 7 OF THE ACT OF MARCH 3, 1933. IN FACT, IT GOES NO FURTHER, WITH RESPECT TO THE MATTER HERE INVOLVED, THAN DOES SUBSECTION (B) OF SECTION 201 OF THE RECOVERY ACT. BUT EVEN IF THERE EXISTED NO DOUBT AS TO AUTHORITY, THE PRESIDENT MAY NOT BE PLACED IN AN ATTITUDE OF SANCTIONING DISREGARD OF STATUTORY LAW WITHOUT HIS PURPOSE SO TO DO APPEARS CLEAR BEYOND ALL ROOM FOR DOUBT.

WITH RESPECT TO THE PROVISION OF THE EXECUTIVE ORDER OF MARCH 27, 1934, HEREINBEFORE QUOTED AND SUGGESTED AS HAVING RETROACTIVE EFFECT ON THE MATTERS HERE UNDER CONSIDERATION, IT MAY BE SAID THAT TO EXERCISE A DISCRETION IN EXPENDING PUBLIC MONEYS, ESPECIALLY IF NOT OTHERWISE AUTHORIZED BY LAW, WOULD SEEM CLEARLY TO REQUIRE DETERMINATION IN ADVANCE OF ACTION, OTHERWISE THE MATTER WOULD HAVE AN ASPECT OF CONDONING AN UNAUTHORIZED OR UNLAWFUL USE RATHER THAN AN ASPECT OF ELECTION TO EXERCISE A DISCRETION. BUT HOWEVER THAT MAY BE, THE QUOTED PROVISION IS EXPRESSLY LIMITED TO "SUCH EXPENDITURES" AND THUS HAS NO WIDER EFFECT THAN THE PRECEDING TEXT, WHICH, AS HEREINBEFORE POINTED OUT, DOES NOT AND DOES NOT PURPORT TO AUTHORIZE DISREGARD OF SECTION 7 OF THE ACT OF MARCH 3, 1933.

IT MUST BE DECIDED THAT USES OF THE APPROPRIATION ARE LIMITED ACCORDINGLY.