A-60009, MARCH 1, 1935, 14 COMP. GEN. 674

A-60009: Mar 1, 1935

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WHEN AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR REGULARLY ENGAGED IN THE ENFORCEMENT OF THE CODES IS AUTHORIZED AND DIRECTED TO APPEAR AND TESTIFY AT A CODE VIOLATION TRIAL IN NEW YORK STATE. THE APPROPRIATION FOR THE WORK UPON WHICH HE IS REGULARLY ENGAGED WOULD BE AVAILABLE FOR HIS TRAVELING EXPENSES. ASKED TO BE ADVISED IF A SPECIAL AGENT TRANSFERRED TO ANOTHER DISTRICT MAY APPEAR AT GOVERNMENTAL EXPENSE AS A WITNESS IN AND FOR THE STATE OF NEW YORK WHERE THE LOCAL AUTHORITIES ARE DESIROUS OF PROSECUTING A CASE INVOLVING A STATE OIL CODE VIOLATION WHICH THE SPECIAL AGENT INVESTIGATED IN THE COURSE OF HIS OFFICIAL DUTIES. THERE IS ATTACHED HERETO A COPY OF A MEMORANDUM DATED DECEMBER 24.

A-60009, MARCH 1, 1935, 14 COMP. GEN. 674

TRAVELING EXPENSES - WITNESSES - CODE VIOLATIONS AS THE STATE OF NEW YORK HAS AUTHORIZED THE USE OF STATE COURTS FOR THE ENFORCEMENT OF CODES ADOPTED BY THE NATIONAL RECOVERY ADMINISTRATION THUS GIVING THE STATE AND FEDERAL COURTS CONCURRENT JURISDICTION, WHEN AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR REGULARLY ENGAGED IN THE ENFORCEMENT OF THE CODES IS AUTHORIZED AND DIRECTED TO APPEAR AND TESTIFY AT A CODE VIOLATION TRIAL IN NEW YORK STATE, THE APPROPRIATION FOR THE WORK UPON WHICH HE IS REGULARLY ENGAGED WOULD BE AVAILABLE FOR HIS TRAVELING EXPENSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MARCH 1, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 26, 1935, AS FOLLOWS:

MR. JOHN W. JACKSON, SPECIAL AGENT IN CHARGE OF THE NEW YORK OFFICE FOR OIL ENFORCEMENT, DIVISION OF INVESTIGATIONS, OF THIS DEPARTMENT, ASKED TO BE ADVISED IF A SPECIAL AGENT TRANSFERRED TO ANOTHER DISTRICT MAY APPEAR AT GOVERNMENTAL EXPENSE AS A WITNESS IN AND FOR THE STATE OF NEW YORK WHERE THE LOCAL AUTHORITIES ARE DESIROUS OF PROSECUTING A CASE INVOLVING A STATE OIL CODE VIOLATION WHICH THE SPECIAL AGENT INVESTIGATED IN THE COURSE OF HIS OFFICIAL DUTIES.

THERE IS ATTACHED HERETO A COPY OF A MEMORANDUM DATED DECEMBER 24, 1934, WHEREIN THE ADMINISTRATIVE ASSISTANT CITES YOUR DECISION, VOLUME 2, PAGE 534, RELATING TO THE ATTENDANCE AT A MURDER TRIAL OF INTERNAL REVENUE EMPLOYEES CALLED AS WITNESSES AND THAT THEY WERE NOT ENTITLED TO SALARY OR EXPENSES WHILE ABSENT FROM DUTY. THE CHAIRMAN OF THE PETROLEUM ADMINISTRATIVE BOARD IN A MEMORANDUM OF JANUARY 14, COPY ATTACHED, EXPRESSES THE BELIEF THAT YOU WILL ALLOW REASONABLE EXPENSES INCURRED IN THE FULFILLMENT OF THOSE DUTIES, SINCE THE PETROLEUM CODE CASES ARE BROUGHT IN STATE COURTS UNDER STATE LAWS WHICH AFFORD SUPPLEMENTAL ENFORCEMENT PROCEEDINGS TO THE FEDERAL LAW AND EMPLOYEES OF THE OIL ADMINISTRATION ACT IN THEIR OFFICIAL CAPACITY IN TESTIFYING IN THESE CASES WHERE THE GOVERNMENT HAS A DIRECT INTEREST.

AS IT WOULD BE A HARDSHIP ON THE EMPLOYEES OF THE DIVISION OF INVESTIGATIONS TO ATTEND AT THEIR OWN EXPENSE STATE COURTS AT THE CALL OF A PROSECUTING ATTORNEY, INSTRUCTIONS ARE RESPECTFULLY REQUESTED AS TO WHETHER SPECIAL AGENTS OR OTHER EMPLOYEES REQUIRED TO ATTEND ON THESE CASES WOULD BE ALLOWED REIMBURSEMENTS OF SALARIES, PER DIEM, AND OTHER EXPENSES WHILE SO ENGAGED.

PETROLEUM CODES ARE ESTABLISHED UNDER SECTIONS 3 TO 7, TITLE I, OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 105-109. SECTION 3 (C) VESTS THE SEVERAL DISTRICT COURTS OF THE UNITED STATES WITH JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF ANY CODE OF FAIR COMPETITION APPROVED UNDER THAT TITLE. IN MEMORANDUM DATED JANUARY 14, 1935, FROM THE CHAIRMAN OF THE PETROLEUM ADMINISTRATIVE BOARD, IT IS STATED THAT PROVISION HAS BEEN MADE ALSO IN THE LAWS OF THE STATE OF NEW YORK FOR THE ENFORCEMENT BY THE STATE OF CODES ADOPTED BY THE NATIONAL RECOVERY ADMINISTRATION UPON THE FILING OF SUCH CODES WITH THE SECRETARY OF STATE OF NEW YORK. IT THUS APPEARS THAT THE STATE AND FEDERAL COURTS HAVE CONCURRENT JURISDICTION IN THE ENFORCEMENT OF THE OIL CODE IN THAT STATE. IT IS NOT UNDERSTOOD THAT YOUR SUBMISSION HAS ANY REFERENCE TO PROCEEDINGS UNDER SECTION 9 (C) OF THE NATIONAL RECOVERY ACT WHICH HAS BEEN DECLARED UNCONSTITUTIONAL BY THE UNITED STATES SUPREME COURT IN THE CASE OF PANAMA REFINING COMPANY V. RYAN, DECIDED JANUARY 7, 1935.

IN 2 COMP. GEN. 801, IT WAS HELD:

THE STATE AND FEDERAL COURTS HAVING CONCURRENT JURISDICTION IN THE ENFORCEMENT OF THE NATIONAL PROHIBITION ACT, FEDERAL PROHIBITION AGENTS ATTENDING PROCEEDINGS UNDER THAT ACT IN A STATE COURT ARE ACTING IN THEIR OFFICIAL CAPACITY AND THEIR EXPENSES MAY BE PAID FROM THE APPROPRIATION UNDER WHICH THEY ARE OFFICIALLY OPERATING.

ACCORDINGLY, SHOULD AN EMPLOYEE OF YOUR DEPARTMENT ENGAGED IN THE ENFORCEMENT OF PETROLEUM CODES BE REGULARLY ORDERED TO APPEAR AND TESTIFY AT A CODE VIOLATION TRIAL IN A STATE COURT IN THE STATE OF NEW YORK, THE APPROPRIATION FOR THE WORK ON WHICH HE IS ENGAGED WOULD BE AVAILABLE FOR PAYMENT OF HIS AUTHORIZED TRAVEL EXPENSES IN COMPLIANCE WITH SAID ORDER.