A-58081, SEPTEMBER 9, 1935, 15 COMP. GEN. 180

A-58081: Sep 9, 1935

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ARE NOT AVAILABLE FOR PAYING THE SALARIES OF EMPLOYEES APPOINTED OR TO BE APPOINTED IN PURSUANCE OF SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26. 1935: THERE WAS RECEIVED YOUR LETTER OF AUGUST 21. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF JULY 9. IT WAS STATED: "IF THE "APPROPRIATIONS" REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER REFER TO FUNDS ALLOTTED OR TO BE ALLOTTED BY PROPER AUTHORITY FROM APPROPRIATIONS MADE TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.'. WAS THE REGULAR APPROPRIATION OF THE FEDERAL TRADE COMMISSION FOR THE FISCAL YEAR BEGINNING JULY 1. THE COMMISSION IS CONDUCTING AN INVESTIGATION OF THE TEXTILE INDUSTRY.

A-58081, SEPTEMBER 9, 1935, 15 COMP. GEN. 180

FEDERAL TRADE COMMISSION - AVAILABILITY OF APPROPRIATION - TEXTILE INDUSTRY INVESTIGATION THE REGULAR APPROPRIATIONS OF THE FEDERAL TRADE COMMISSION AS MADE IN THE ACTS OF FEBRUARY 2, 1935, 49 STAT. 6, AND AUGUST 12, 1935, 49 STAT. 571, ARE NOT AVAILABLE FOR PAYING THE SALARIES OF EMPLOYEES APPOINTED OR TO BE APPOINTED IN PURSUANCE OF SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26, 1934, AS EXTENDED, WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, SEPTEMBER 9, 1935:

THERE WAS RECEIVED YOUR LETTER OF AUGUST 21, 1935, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JULY 9, 1935 (A-58081), RELATIVE TO THE AVAILABILITY OF THE APPROPRIATIONS OF THE FEDERAL TRADE COMMISSION FOR THE FISCAL YEAR 1936 FOR THE PAYMENT OF SALARIES OF PERSONS APPOINTED EXECUTIVE ORDER DATED SEPTEMBER 26, 1934, WHICH DIRECTS THE FEDERAL TRADE COMMISSION TO MAKE AN INVESTIGATION OF THE TEXTILE INDUSTRY.

IN THE CONCLUDING PARAGRAPH OF THE DECISION REFERRED TO, IT WAS STATED:

"IF THE "APPROPRIATIONS" REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER REFER TO FUNDS ALLOTTED OR TO BE ALLOTTED BY PROPER AUTHORITY FROM APPROPRIATIONS MADE TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, AND THE APPOINTMENTS IN QUESTION PROVIDE FOR THEIR TERMINATION NOT LATER THAN APRIL 1, 1936, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.'

THE "APPROPRIATION" REFERRED TO IN THE COMMISSION LETTER OF JULY 1, 1935, WAS THE REGULAR APPROPRIATION OF THE FEDERAL TRADE COMMISSION FOR THE FISCAL YEAR BEGINNING JULY 1, 1935, AND NOT AN ALLOTMENT OF FUNDS FROM APPROPRIATIONS MADE TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT.

IN PURSUANCE OF EXECUTIVE ORDER OF SEPTEMBER 26, 1934, COPY ENCLOSED, AND THROUGH THE USE OF FUNDS, $60,000, ALLOTTED BY THE PRESIDENT FROM THE APPROPRIATION OF THE EMERGENCY RELIEF AND PUBLIC WORKS, 1934-1935 (SYMBOL 04/5512), THE COMMISSION IS CONDUCTING AN INVESTIGATION OF THE TEXTILE INDUSTRY. UPON RECEIPT OF THE EXECUTIVE ORDER IN QUESTION ON SEPTEMBER 27, 1934, THE COMMISSION ADOPTED A RESOLUTION PROVIDING FOR THE MAKING OF THE INVESTIGATION OF THE TEXTILE INDUSTRY IN COMPLIANCE WITH THE SAID EXECUTIVE ORDER AND UPON ITS OWN MOTION IN PURSUANCE OF AUTHORITY GRANTED IT BY SECTION 6 (A) OF THE ACT OF SEPTEMBER 26, 1914, CREATING THE FEDERAL TRADE COMMISSION. A COPY OF THIS RESOLUTION IS ENCLOSED.

IN PURSUANCE OF THE PROVISIONS OF SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26, 1934, THE COMMISSION APPOINTED CERTAIN PERSONNEL WITHOUT REFERENCE TO THE CIVIL-SERVICE LAWS, THE CLASSIFICATION ACT OF 1923 AS AMENDED, OR EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934. EXCEPT FOR THE PROVISIONS IN QUESTION, CERTAIN OF THIS PERSONNEL WOULD HAVE BEEN APPOINTED IN PURSUANCE OF THE CIVIL-SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923 AS AMENDED, AS REQUIRED BY SECTION 2 OF THE ACT CREATING THE FEDERAL TRADE COMMISSION REFERRED TO ABOVE.

THE WORK UNDER EXECUTIVE ORDER CALLED FOR INVESTIGATION AND REPORT ON THE TEXTILE INDUSTRY COVERING THE PERIOD JANUARY 1, 1933, TO AUGUST 31, 1934. HOWEVER, UNDER DATE OF JANUARY 25, 1935, THE PRESIDENT REQUESTED THE COMMISSION TO EXTEND ITS INVESTIGATION TO COVER THE PERIOD FROM AUGUST 31, 1934, TO JUNE 30, 1936. UPON RECEIPT OF THE PRESIDENT'S LETTER OF JANUARY 25TH, THE COMMISSION ON JANUARY 26, 1935, ADOPTED A RESOLUTION PROVIDING FOR THE CONTINUANCE OF THE INVESTIGATION. A COPY OF THIS RESOLUTION IS ENCLOSED.

AT THE CLOSE OF THE FISCAL YEAR 1935 THE FUNDS ALLOTTED BY THE PRESIDENT FOR THE TEXTILE INVESTIGATION WERE PRACTICALLY EXHAUSTED, AND BEGINNING JULY 1, 1935, THE WORK WAS CONTINUED AND SALARIES PAID FROM THE REGULAR APPROPRIATION OF THE FEDERAL TRADE COMMISSION FOR THE FISCAL YEAR 1936. FOR THE PURPOSE OF THE TEXTILE INVESTIGATION FOR THE FISCAL YEAR BEGINNING JULY 1, 1935, THE PRESIDENT APPROVED AND CONGRESS APPROPRIATED AN AMOUNT OF $100,000, SECOND DEFICIENCY APPROPRIATION ACT, APPROVED AUGUST 12, 1935, WHICH IS AVAILABLE TO THE COMMISSION IN LIKE MANNER AS ITS REGULAR 1936 APPROPRIATION. A COPY OF THE COMMUNICATION FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE APPROPRIATION ESTIMATE COVERING THIS ADDITIONAL APPROPRIATION IS ENCLOSED FOR YOUR INFORMATION.

IT IS THE VIEW OF THIS COMMISSION THAT THE PROVISIONS OF SECTION 10 (B) OF EXECUTIVE ORDER OF SEPTEMBER 26, 1934, REMAIN EFFECTIVE UNTIL THE COMPLETION OF THE TEXTILE INVESTIGATION, AND THE PROVISIONS OF SECTION 2OF THE ACT CREATING THE FEDERAL TRADE COMMISSION DO NOT APPLY EVEN THOUGH THE SALARIES OF THE PERSONS ENGAGED UPON THE INVESTIGATION ARE PAID FROM THE REGULAR APPROPRIATION OF THE FEDERAL TRADE COMMISSION RATHER THAN AN ALLOTMENT OF FUNDS BY THE PRESIDENT.

HOWEVER, A QUESTION IN THIS CONNECTION HAS ARISEN, AND YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE PERSONNEL, HERETOFORE APPOINTED AND WHICH MAY BE APPOINTED, WHICH ORDINARILY WOULD HAVE BEEN APPOINTED IN ACCORDANCE WITH THE CIVIL-SERVICE LAWS AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923 AS AMENDED, AND WHICH WAS APPOINTED IN PURSUANCE OF SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26, 1934, AND ORIGINALLY PAID FROM ALLOTTED FUNDS MAY BE PAID FROM THE REGULAR APPROPRIATION OF THE COMMISSION FOR THE FISCAL YEAR 1936.

SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26, 1934, PROVIDED:

THE BOARD (WITH THE APPROVAL OF THE SECRETARY OF LABOR), THE BUREAU OF LABOR STATISTICS, AND THE FEDERAL TRADE COMMISSION SHALL HAVE AUTHORITY TO INCUR SUCH FINANCIAL OBLIGATIONS AND (WITHOUT REGARD TO THE CIVIL SERVICE LAWS, THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934) TO APPOINT OR ASSIGN SUCH EMPLOYEES AS THEY DEEM NECESSARY FOR THEIR FUNCTIONS AND THE FUNCTIONS OF SUCH AGENCIES AS THE BOARD MAY CREATE OR UTILIZE IN ACCORDANCE WITH THIS ORDER.

THE PROVISIONS OF THIS SECTION MUST BE READ IN CONNECTION WITH THE ORDER AS A WHOLE. THE PREAMBLE TO THE ORDER SHOWS THAT IT WAS ISSUED--

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME (THE PRESIDENT) UNDER TITLE I OF THE NATIONAL INDUSTRIAL RECOVERY ACT (CH. 90, 48 STAT. 195, TIT. 15, U.S.C., SEC. 701) AND UNDER JOINT RESOLUTION APPROVED JUNE 19, 1934 (PUBLIC RES. 44, 73D CONG.), AND IN ORDER TO EFFECTUATE THE POLICY OF SAID TITLE AND THE PURPOSES OF THE SAID JOINT RESOLUTION, * * *

SECTION 8 AUTHORIZED THE TEXTILE INVESTIGATION IN THE FOLLOWING TERMS:

* * * IN ACCORDANCE WITH SECTION 6 (C) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, AND IN ORDER TO FURNISH A BASIS FOR DETERMINING WHETHER WAGE INCREASES BASED UPON REDUCTION IN HOURS OR OTHERWISE CAN, UNDER PREVAILING ECONOMIC CONDITIONS, BE SUSTAINED, THE FEDERAL TRADE COMMISSION SHALL UNDERTAKE AN INVESTIGATION OF, AND REPORT ON, THE LABOR COSTS, PROFITS, AND INVESTMENTS OF COMPANIES AND ESTABLISHMENTS IN THE TEXTILE INDUSTRIES, AND MAKE PERTINENT COMPARISONS BETWEEN THE FACTS SO ASCERTAINED AND THE CHANGES IN WAGES, HOURS, AND EXTENT OF EMPLOYMENT OF WORKERS IN SUCH INDUSTRIES. * * *

SECTION 10 (A) PROVIDED:

IN ORDER TO CARRY OUT THIS ORDER, THERE IS HEREBY ALLOTTED FROM THE FUNDS APPROPRIATED FOR THE PURPOSES OF THE NATIONAL RECOVERY ACT BY TITLE II OF THE "EMERGENCY APPROPRIATION ACT, FISCAL YEAR 1935," APPROVED JUNE 19, 1934 (PUBLIC, NO. 412, SEVENTY-THIRD CONGRESS) $50,000 TO THE TEXTILE LABOR RELATIONS BOARD, TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF LABOR. AFTER ESTIMATES HAVE BEEN SUBMITTED TO ME, FURTHER ALLOTMENTS FROM THE SAME FUNDS SHALL BE MADE TO THE TEXTILE LABOR RELATIONS BOARD TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF LABOR; TO THE FEDERAL TRADE COMMISSION; AND TO THE BUREAU OF LABOR STATISTICS.

IT WILL BE SEEN THAT THE EXECUTIVE ORDER CONTEMPLATED THE UNDERTAKING OF THE TEXTILE INVESTIGATION BY THE COMMISSION UNDER THE PROVISIONS OF, AND THE FURNISHING OF FUNDS THEREFOR BY ALLOTMENT FROM FUNDS APPROPRIATED FOR THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195. THE AUTHORITY GRANTED THE COMMISSION IN SECTION 10 (B) OF THE ORDER TO APPOINT OR ASSIGN EMPLOYEES TO THE INVESTIGATIONS WITHOUT REGARD TO THE CIVIL SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, WAS DERIVED FROM SECTION 2 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, WHICH PROVIDES, IN PART, AS FOLLOWS:

TO EFFECTUATE THE POLICY OF THIS TITLE, THE PRESIDENT IS HEREBY AUTHORIZED * * * TO APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES * * * AS HE MAY FIND NECESSARY, TO PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE, AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO FIX THE COMPENSATION OF ANY OFFICERS AND EMPLOYEES SO APPOINTED. SUCH AUTHORITY COULD NOT EXTEND AND DID NOT PURPORT TO EXTEND TO THE REGULAR APPROPRIATIONS OF THE COMMISSION.

THERE IS NOTHING IN PUBLIC RESOLUTION NO. 26 (S.J.RES. 113) APPROVED JUNE 14, 1935, 49 STAT. 375, OR EXECUTIVE ORDER NO. 7076, DATED JUNE 15, 1935, ISSUED PURSUANT THERETO, IN ANY WAY AFFECTING THE TEXTILE INVESTIGATION OTHER THAN BY EXTENDING TO APRIL 1, 1936, THE PERIOD DURING WHICH ANY BOARD OR AGENCY CREATED UNDER THE SAID ACT OF JUNE 16, 1933, MIGHT CONTINUE TO EXIST AND FUNCTION.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1936, APPROVED FEBRUARY 2, 1935, 49 STAT. 6, MAKES THE FOLLOWING PROVISION FOR THE ACTIVITIES OF THE COMMISSION FOR THE FISCAL YEAR 1936:

FOR FIVE COMMISSIONERS, AND FOR ALL OTHER AUTHORIZED EXPENDITURES OF THE FEDERAL TRADE COMMISSION IN PERFORMING THE DUTIES IMPOSED BY LAW OR IN PURSUANCE OF LAW, INCLUDING SECRETARY TO THE COMMISSION AND OTHER PERSONAL SERVICES, CONTRACT STENOGRAPHIC REPORTING SERVICES; SUPPLIES AND EQUIPMENT, LAW BOOKS, BOOKS OF REFERENCE, PERIODICALS, GARAGE RENTALS, TRAVELING EXPENSES, INCLUDING NOT TO EXCEED $900 FOR EXPENSES OF ATTENDANCE, WHEN SPECIFICALLY AUTHORIZED BY THE COMMISSION, AT MEETINGS CONCERNED WITH THE WORK OF THE FEDERAL TRADE COMMISSION, FOR NEWSPAPERS AND PRESS CLIPPINGS NOT TO EXCEED $400, FOREIGN POSTAGE, AND WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT; $1,373,309: * * *

THE COPY OF SENATE DOCUMENT NO. 96, 74TH CONGRESS, 1ST SESSION, INCLOSED WITH YOUR SUBMISSION, SHOWS THAT THE AMOUNT OF $100,000, TO REMAIN AVAILABLE UNTIL DECEMBER 31, 1936, FOR THE PURPOSE OF CONTINUING THE TEXTILE INVESTIGATION, WAS INCLUDED IN A TOTAL ESTIMATE OF $300,000 SUBMITTED TO THE CONGRESS FOR A SUPPLEMENTAL APPROPRIATION FOR THE FISCAL YEAR 1936; AND, ON THE BASIS OF THAT ESTIMATE, THERE WAS INCLUDED IN THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1935, APPROVED AUGUST 12, 1935, 49 STAT. 573, AN APPROPRIATION AS FOLLOWS:

SALARIES AND EXPENSES: FOR AN ADDITIONAL AMOUNT FOR THE FEDERAL TRADE COMMISSION, INCLUDING THE SAME OBJECTS SPECIFIED UNDER THIS HEAD IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1936, INCLUDING $4,000 FOR PRINTING AND BINDING, $200,000 TO REMAIN AVAILABLE UNTIL DECEMBER 31, 1936.

IN THE ABSENCE OF AN EXPRESS EXEMPTION, EMPLOYMENT AND COMPENSATION OF FEDERAL PERSONNEL AND THE AVAILABILITY OF APPROPRIATIONS THEREFOR ARE SUBJECT TO THE TERMS, CONDITIONS, AND LIMITATIONS OF GENERAL STATUTES APPLICABLE THERETO. SECTION 2 OF THE FEDERAL TRADE COMMISSION ACT OF SEPTEMBER 26, 1914, 38 STAT. 718, CONTAINS THE FOLLOWING PROVISION:

WITH THE EXCEPTION OF THE SECRETARY, A CLERK TO EACH COMMISSIONER, THE ATTORNEYS, AND SUCH SPECIAL EXPERTS AND EXAMINERS AS THE COMMISSION MAY FROM TIME TO TIME FIND NECESSARY FOR THE CONDUCT OF ITS WORK, ALL EMPLOYEES OF THE COMMISSION SHALL BE A PART OF THE CLASSIFIED CIVIL SERVICE, AND SHALL ENTER THE SERVICE UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE COMMISSION AND BY THE CIVIL SERVICE COMMISSION.

IT IS NOTED THAT THE ESTIMATE ON WHICH THE ABOVE SUPPLEMENTAL APPROPRIATION WAS BASED COMPRISED TWO ITEMS--- ONE OF $200,000 FOR A MILK INVESTIGATION AND THE OTHER OF $100,000 FOR THE TEXTILE INVESTIGATION--- AND THAT THE AMOUNT APPROPRIATED, $200,000, IS THE EXACT AMOUNT REQUESTED FOR THE MILK INVESTIGATION. HOWEVER, THE TERMS IN WHICH THE SAID SUPPLEMENTAL APPROPRIATION WAS MADE MAKE IT AVAILABLE FOR ANY INVESTIGATION FOR WHICH THE REGULAR APPROPRIATION OF $1,373,309, SUPRA, IS AUTHORIZED TO BE USED, AND SUBJECT TO THE SAME RESTRICTIONS AND LIMITATIONS WITH RESPECT TO THE EMPLOYMENT OF PERSONAL SERVICES.

ANSWERING YOUR QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT THE REGULAR APPROPRIATIONS OF THE COMMISSION FOR THE FISCAL YEAR 1936, AS MADE IN THE ACTS OF FEBRUARY 2, 1935, AND AUGUST 12, 1935, ARE NOT AVAILABLE FOR PAYING THE SALARIES OF EMPLOYEES APPOINTED OR TO BE APPOINTED IN PURSUANCE OF SECTION 10 (B) OF THE EXECUTIVE ORDER OF SEPTEMBER 26, 1934, AS EXTENDED, WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED.