A-60070, FEBRUARY 27, 1935, 14 COMP. GEN. 648

A-60070: Feb 27, 1935

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ARE ALL GIVEN MOST SERIOUS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH QUESTIONS BEFORE IT FOR DECISION INVOLVING THE LEGAL AVAILABILITY AND ACTUAL USE OF AN EXISTING APPROPRIATION. IS VESTED BY THE BUDGET AND ACCOUNTING ACT OF JUNE 10. SUCH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. IS TO APPLY TO THE CONGRESS FOR CLARIFICATION OF THE LAW. IT IS NO DIFFICULT MATTER FOR IT TO SO EXPRESS ITS WILL AND THEREBY THE MATTER IS SETTLED. THE GENERAL ACCOUNTING OFFICE MUST DETERMINE FOR ITSELF WHETHER A DECISION OF THE COURT OF CLAIMS OR OTHER INFERIOR COURT WILL SERVE AS A GUIDE IN THE CONSIDERATION OF A SIMILAR QUESTION COMING BEFORE IT FOR DECISION INVOLVING THE ACTUAL USE OF AN EXISTING APPROPRIATION.

A-60070, FEBRUARY 27, 1935, 14 COMP. GEN. 648

JURISDICTION OF THE GENERAL ACCOUNTING OFFICE WHILE JUDGMENTS RENDERED BY THE COURT OF CLAIMS AND OTHER COURTS, VIEWS OF THE ATTORNEY GENERAL AND OTHER EMINENT LAWYERS, AND THE VIEWS AND ARGUMENTS OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, ARE ALL GIVEN MOST SERIOUS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH QUESTIONS BEFORE IT FOR DECISION INVOLVING THE LEGAL AVAILABILITY AND ACTUAL USE OF AN EXISTING APPROPRIATION, THE FINAL RESPONSIBILITY FOR DETERMINING THE LEGAL AVAILABILITY OF A PARTICULAR APPROPRIATION FOR A USE AS MADE, OR FOR A CONTEMPLATED USE, IS VESTED BY THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, IN THE GENERAL ACCOUNTING OFFICE, AND SUCH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. IF, IN DECIDING QUESTIONS INVOLVING THE LEGAL AVAILABILITY OF AN APPROPRIATION FOR A PROPOSED USE, THE GENERAL ACCOUNTING OFFICE SHOULD BECOME TOO LIBERAL AND PERMIT USES OF AN APPROPRIATION BEYOND THE INTENT OF THE CONGRESS, THE DAMAGE WOULD LIKELY BE IMMEDIATE AND IRREPARABLE. WHEN THE INTERESTED DEPARTMENT OR ESTABLISHMENT BELIEVES THE GENERAL ACCOUNTING OFFICE HAS THROUGH ITS DECISIONS UNDULY RESTRICTED THE USE OF APPROPRIATIONS, THE PROPER AND ORDERLY PROCEDURE, AND THE ONLY PROCEDURE SHOWING A PROPER DEGREE OF RESPECT FOR THE AUTHORITY OF THE CONGRESS, IS TO APPLY TO THE CONGRESS FOR CLARIFICATION OF THE LAW. IF THE CONGRESS WISHES DONE WHAT THE DEPARTMENT OR ESTABLISHMENT DESIRES TO DO, IT IS NO DIFFICULT MATTER FOR IT TO SO EXPRESS ITS WILL AND THEREBY THE MATTER IS SETTLED. THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, WHERE APPLICABLE TO THE QUESTIONS FOR CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE, RESOLVE ALL DOUBTS, THE DIFFICULTIES HAVING BEEN TO GET THE PROBLEMS OF THE GENERAL ACCOUNTING OFFICE SUBMITTED TO THE SUPREME COURT, BUT THE GENERAL ACCOUNTING OFFICE MUST DETERMINE FOR ITSELF WHETHER A DECISION OF THE COURT OF CLAIMS OR OTHER INFERIOR COURT WILL SERVE AS A GUIDE IN THE CONSIDERATION OF A SIMILAR QUESTION COMING BEFORE IT FOR DECISION INVOLVING THE ACTUAL USE OF AN EXISTING APPROPRIATION, THERE BEING FOR CONSIDERATION WHETHER THE COURT IS GIVEN OPPORTUNITY TO CONSIDER ALL PHASES OF THE MATTER, WHETHER THE CASE HAS BEEN PROPERLY PRESENTED AND PROSECUTED ON BEHALF OF THE GOVERNMENT, AND WHETHER THE DEPARTMENT OF JUSTICE HAS PREJUDGED THE MATTER INVOLVED BY ISSUING AND PUBLISHING AN OPINION ADVERSE TO THE GOVERNMENT. IN VIEW OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF THE UNITED STATES V. PHISTERER, 94 U.S. 219, HOLDING THAT THE HOME OF AN ARMY OFFICER TO WHICH HE IS ORDERED IS NOT A MILITARY STATION, THE GENERAL ACCOUNTING OFFICE MAY NOT ACCEPT AS CONTROLLING EXPENDITURES OF APPROPRIATED MONEYS, THE SUBSEQUENT DECISION OF THE COURT OF CLAIMS IN THE CASE OF BULLARD V. UNITED STATES, 66 CT.CLS. 264, NOR THE OPINION OF THE ATTORNEY GENERAL PRE-JUDGING THE CASE, NOR ADMINISTRATIVE VIEWS OF THE SECRETARY OF THE NAVY IN AGREEMENT THEREWITH, HOLDING THAT WHEN AN OFFICER OF THE NAVY IS DETACHED FROM DUTY AND ORDERED TO HIS HOME TO AWAIT FURTHER ORDERS FOR RETIREMENT THERE IS INVOLVED A "PERMANENT CHANGE OF STATION" ENTITLING SUCH OFFICER TO BE REIMBURSED FOR TRANSPORTATION OF DEPENDENTS UNDER THE ACT OF MAY 18, 1920, 41 STAT. 604, AS SUPPLEMENTED BY THE ACT OF JUNE 10, 1922, 42 STAT. 631. ALL SUCH PAYMENTS HEREAFTER MADE WILL BE DISALLOWED IN THE ACCOUNTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 27, 1935:

THERE WAS RECEIVED YOUR LETTER OF JANUARY 30, 1935, ADVISING THAT NOTWITHSTANDING THE DECISIONS OF THIS OFFICE DETERMINING A PARTICULAR APPROPRIATION NOT LEGALLY AVAILABLE FOR A PROPOSED ADMINISTRATIVE USE, YOU HAVE DIRECTED THAT "ATTORNEY GENERAL'S OPINIONS AND THE DECISIONS OF THE COURT OF CLAIMS BE HEREAFTER FOLLOWED"--- AND THAT CHANGES IN EXISTING NAVAL INSTRUCTIONS BE MADE ACCORDINGLY.

AS YOU APPARENTLY CONTEMPLATE ORDERING ACCOUNTABLE OFFICERS UNDER YOUR MILITARY CONTROL TO MAKE PAYMENTS FROM PUBLIC MONEYS ENTRUSTED TO THEM AS ADVANCES FROM APPROPRIATIONS, FOR PURPOSES DETERMINED BY THIS OFFICE TO BE NOT WITHIN THE LAW AND THUS FOR WHICH THE APPROPRIATION IS NOT LEGALLY AVAILABLE, IT IS ASSUMED YOU FULLY APPRECIATE THE SERIOUSNESS OF YOUR PROPOSED ACTION. YOU ARE AWARE, OF COURSE, THAT SUCH ACCOUNTABLE OFFICERS AND THEIR SURETIES MUST BE HELD STRICTLY RESPONSIBLE FOR ALL PAYMENTS MADE AND FOR WHICH CREDIT MAY NOT BE ALLOWED IN THEIR ACCOUNTS RENDERED TO THIS OFFICE--- WHERE UNDER THE LAW ALL SUCH ACCOUNTS ARE FINALLY SETTLED AND ADJUSTED. ALSO, THAT BALANCES AS CERTIFIED BY THIS OFFICE ARE "FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT.' IT IS ASSUMED YOU HAVE CONSIDERED, ALSO, SECTION 285, REVISED STATUTES.

APPARENTLY YOU INTEND HEREAFTER TO BE THE JUDGE OF QUESTIONS AS TO THE APPLICABILITY OF COURT DECISIONS TO THE FACTS IN PARTICULAR CASES AS THEY ARISE IN THE NAVY, DISTINGUISH BETWEEN CONFLICTING DECISIONS, DETERMINE WHETHER EXISTING APPROPRIATIONS ARE LEGALLY AVAILABLE TO SETTLE AND ADJUST SUCH CASES, AND TO REQUIRE PAYMENTS FROM APPROPRIATED MONEYS ACCORDINGLY, BUT THE MATTER OF SUCH DETERMINATIONS IS NOT MADE WHOLLY CLEAR BY YOUR LETTER AND IT SEEMS POSSIBLE FROM STATEMENTS APPEARING THEREIN THAT YOU MAY INTEND EMPOWERING THE ATTORNEY GENERAL TO DETERMINE SUCH MATTERS FOR YOU. WHATEVER YOUR PROCEDURE MAY BE THE PAYMENTS AS MADE WILL STILL BE, OF COURSE, MATTERS OF NAVY RESPONSIBILITY.

THE ONLY STATUTORY PROVISION PERMITTING THE ATTORNEY GENERAL TO EXPRESS OPINION ON MATTERS OF LAW ARISING IN THE DEPARTMENTS OF THE EXECUTIVE BRANCH IS SECTION 356, REVISED STATUTES, AS FOLLOWS:

THE HEAD OF ANY EXECUTIVE DEPARTMENT MAY REQUIRE THE OPINION OF THE ATTORNEY GENERAL ON ANY QUESTION OF LAW ARISING IN THE ADMINISTRATION OF HIS DEPARTMENT.

THERE EXISTS NO LAW GIVING SUCH OPINIONS DETERMINATIVE EFFECT OR PROVIDING PROTECTION FOR PUBLIC OFFICIALS WHO ADOPT SUCH OPINIONS IN THE DISCHARGE OF THEIR PUBLIC DUTIES. THEY ARE MERELY ADVISORY AND NECESSARILY SO ELSE AN ATTORNEY GENERAL COULD BECOME EFFECTIVELY DOMINANT IN THE AFFAIRS OF ALL DEPARTMENTS. THE DANGER SEEMS TO BE UNDERSTOOD BECAUSE THE TENDENCY IN THE DEPARTMENTS IS TO ADOPT AND UTILIZE ONLY SUCH OPINIONS, AT LEAST IN CONNECTION WITH MATTERS BEFORE THIS OFFICE FOR DECISION, AS THEY BELIEVE WILL ARGUE TO THEIR ADVANTAGE IN THEIR EFFORT TO SECURING A LIBERAL INTERPRETATION OF THE LAW WITH RESPECT TO USES OF A PARTICULAR APPROPRIATION. AS WAS STATED BY ATTORNEY GENERAL BLACK IN 9 OP.ATTY.GEN. 36:

* * * THE DUTY OF THE ATTORNEY GENERAL IS TO ADVISE, NOT TO DECIDE. THING IS NOT TO BE CONSIDERED AS DONE BY THE HEAD OF A DEPARTMENT MERELY BECAUSE THE ATTORNEY GENERAL HAS ADVISED HIM TO DO IT. YOU MAY DISREGARD HIS OPINION IF YOU ARE SURE IT IS WRONG. HE AIDS YOU IN FORMING A JUDGMENT ON QUESTIONS OF LAW; BUT STILL THE JUDGMENT IS YOURS, NOT HIS. YOU ARE NOT BOUND TO SEE WITH HIS EYES, BUT ONLY TO USE THE LIGHT WHICH HE FURNISHES, IN ORDER TO SEE THE BETTER WITH YOUR OWN.

INASMUCH AS OPINIONS OF THE ATTORNEY GENERAL ARE BY FORCE OF STATUTE ADVISORY ONLY AND THUS HAVE NO FINALITY AND BIND NO ONE--- NOT EVEN THE ATTORNEY GENERAL--- I ASSUME WHAT YOU REALLY HAVE IN MIND ARE THOSE INSTANCES WHERE THE COURT OF CLAIMS HAS CONSIDERED IT PROPER TO RENDER A JUDGMENT ADVERSE TO THE GOVERNMENT IN A CASE BEFORE IT, FOR REPORTING TO THE CONGRESS FOR ITS CONSIDERATION, AND THIS OFFICE HAS FOUND ITSELF UNABLE IN THE CIRCUMSTANCES APPEARING, TO ACCEDE TO NAVY DEMANDS TO SO ADOPT THE VIEW THAT SEEMED TO HAVE INFLUENCED THE COURT IN THE MATTER, AS TO JUSTIFY IT (THIS OFFICE) IN OPENING UP AN EXISTING APPROPRIATION FOR PAYMENT OF ALL DEMANDS CONSIDERED SIMILAR IN NATURE TO THAT IN THE PARTICULAR CASE BEFORE THE COURT, WITHOUT FURTHER EXPRESSION OR DIRECTION BY THE CONGRESS IN THE MATTER. JUDGMENTS RENDERED BY THE COURT OF CLAIMS- -- ALL COURTS IN FACT--- THE VIEWS OF THE ATTORNEY GENERAL AND OTHER EMINENT LAWYERS, AND THE VIEWS AND ARGUMENTS OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, ARE ALL GIVEN MOST SERIOUS CONSIDERATION BY THIS OFFICE IN CONNECTION WITH QUESTIONS BEFORE IT FOR DECISION INVOLVING THE LEGAL AVAILABILITY OF AN APPROPRIATION FOR A USE AS MADE OR A PROPOSED USE, BUT IT IS TO BE REMEMBERED THAT THE RESPONSIBILITY OF THIS OFFICE IN SUCH MATTERS INVOLVES AN ACTUAL USE OF AN EXISTING APPROPRIATION, NOT A MATTER FOR REPORTING FOR THE FURTHER CONSIDERATION OF THE CONGRESS, OR FOR DISPOSITION BY OPINION WITH NO ACTUAL RESPONSIBILITY ATTACHED. THE RESPONSIBILITY OF THIS OFFICE IN SUCH MATTERS HAS TO DO WITH ACTUAL MONEY- -- PUBLIC MONEY APPROPRIATED BY THE CONGRESS AND THEREBY GIVEN A STATUS FOR ACTUAL USE IN MAKING PAYMENTS--- BUT LEGALLY AVAILABLE FOR NONE BUT THE PARTICULAR USES FOR WHICH SO APPROPRIATED. QUESTIONS CONSTANTLY ARISE, AND NECESSARILY SO, AS TO THE LEGAL AVAILABILITY OF A PARTICULAR APPROPRIATION FOR A CONTEMPLATED USE AND SUCH QUESTIONS MUST BE AUTHORITATIVELY DECIDED ELSE THERE WOULD BE CONFUSION. DESIRABLE ADMINISTRATIVE ACTION MIGHT BE WITHHELD DUE TO DOUBT AS TO THE LEGAL AVAILABILITY OF AN APPROPRIATION FOR SUCH USE, OR AN APPROPRIATION MADE FOR A PARTICULAR USE MIGHT BE UNDULY DEPLETED OR EVEN EXHAUSTED IN OTHER AND THUS UNLAWFUL USE THEREOF IF THERE EXISTED NO AGENCY WITH AUTHORITY AND RESPONSIBILITY TO SO AUTHORITATIVELY DETERMINE SUCH QUESTIONS AND TO GIVE EFFECT TO ITS DECISIONS.

IF SUCH QUESTIONS WERE LEFT FOR DECISION BY EACH PARTICULAR SPENDING AGENCY AS TO APPROPRIATIONS MADE FOR ITS LAWFUL USES THERE WOULD BE EVER PRESENT THE ELEMENT OF SELF-INTEREST AND THE AMBITION ALWAYS IN EVIDENCE TO GO BEYOND OR TO OTHERWISE CIRCUMVENT OR OVERCOME THE LIMITS CONSIDERED PROPER AND FIXED ACCORDINGLY BY THE CONGRESS IN THE LAW. AND IF THE CONGRESS HAD NO OTHER ASSURANCE THAN WOULD BE AFFORDED BY SUCH PROCEDURE, THAT ITS LAWS WITH RESPECT TO THE USES OF APPROPRIATIONS WOULD BE FAITHFULLY ABIDED, IT COULD SAFELY EMPLOY NO SUCH CONVENIENT SYSTEM OF MAKING PUBLIC MONEYS AVAILABLE FOR USES AS NOW EXISTS. IT WOULD BE NECESSARY FOR IT TO FIND SOME OTHER EFFECTIVE MEANS OF EXACTING LAW OBSERVANCE BY PUBLIC OFFICERS IN THEIR USES OF APPROPRIATIONS--- OR POSSIBLY TO SHARPLY CURTAIL APPROPRIATIONS AND THE PERIOD OF THEIR AVAILABILITY FOR USE.

OR, IF SUCH QUESTIONS WERE LEFT FOR DETERMINATION BY ANY AGENCY IN THE EXECUTIVE BRANCH--- THE SPENDING BRANCH--- THE DIFFICULTY WOULD BE, AT BEST, BUT ONE DEGREE REMOVED FROM SUCH SELF-DETERMINATION, AND THERE WOULD BE RETURN TO THE EVILS SOUGHT TO BE CURED BY THE ESTABLISHMENT OF THE GENERAL ACCOUNTING OFFICE, AN AGENCY INDEPENDENT OF THE EXECUTIVE BRANCH AND THUS FREED FROM THE INFLUENCE OF ITS PARTISAN POLITICAL PROBLEMS, THE CONTROVERSIES AND COMBINATIONS FREQUENTLY FOUND THEREIN, AND THE AMBITIONS THAT SOMETIMES BESET ITS HIGHER OFFICIALS, WITH AUTHORITY AND RESPONSIBILITY TO DECIDE SUCH QUESTIONS WITH FINALITY. THE ACCOUNTING OFFICERS OF THE GOVERNMENT WERE IN THE EXECUTIVE BRANCH PRIOR TO 1921, AND IT WAS TO TOTALLY REMOVE THE ACCOUNTING SYSTEM FROM SUCH INFLUENCES THAT THE GENERAL ACCOUNTING OFFICE WAS ESTABLISHED BY THE ACT OF JUNE 10, 1921, AND FOR THIS OFFICE TO ACCEPT AS CONCLUSIVE UPON IT IN DECIDING QUESTIONS RESPECTING THE LEGAL AVAILABILITY OF APPROPRIATIONS FOR PROPOSED USES OR USES MADE, OPINIONS OF THE ATTORNEY GENERAL OR ANY OTHER OFFICIAL IN THE EXECUTIVE BRANCH, WOULD BE TO UNDO ALL THAT THE CONGRESS DID IN SEPARATING THE ACCOUNTING OFFICERS FROM THE INFLUENCE AND DOMINATION OF THE EXECUTIVE BRANCH AND TO ACCEPT SUCH OFFICIAL AS THE HEAD OF THE ACCOUNTING SYSTEM, AND THIS NOTWITHSTANDING THE SPECIFIC PROVISIONS OF THE BUDGET AND ACCOUNTING ACT OF 1921, THAT THE GENERAL ACCOUNTING OFFICE "SHALL BE INDEPENDENT OF THE EXECUTIVE DEPARTMENTS AND UNDER THE CONTROL AND DIRECTION OF THE COMPTROLLER GENERAL OF THE UNITED STATES," AND THAT THE DUTIES OF THE GENERAL ACCOUNTING OFFICE SHALL BE EXERCISED "WITHOUT DIRECTION FROM ANY OTHER OFFICER.' ALSO,"THE BALANCES CERTIFIED BY THE COMPTROLLER GENERAL SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT.'

WHILE THE LAW DOES NOT PERMIT OF ANY SUCH SHIRKING OF DUTY BY THE HEAD OF THIS OFFICE AS YOU APPEAR TO SUGGEST--- AND AS SEEMS SUGGESTED ALSO BY THE ATTORNEY GENERAL IN HIS LETTER TO YOU--- EVEN IF THE LAW WERE OTHERWISE THESE WOULD SEEM MATTERS WORTHY OF MOST SERIOUS CONSIDERATION BEFORE TURNING CONTROL OF THE ACCOUNTING SYSTEM OVER TO THE ATTORNEY GENERAL. HIS DEPARTMENT DURING RECENT YEARS HAS BECOME ONE OF THE LARGE SPENDING AGENCIES IN THE EXECUTIVE BRANCH AND IN THIS REGARD APPEARS TO BE GROWING BY LEAPS AND BOUNDS. IF HE WERE, IN ADDITION TO BEING THE GOVERNMENT'S CHIEF ADVOCATE BEFORE THE COURTS AND THE PRESIDENT'S LEGAL ADVISER IN ADMINISTRATIVE MATTERS, ALSO IN CONTROL OF THE ACCOUNTING SYSTEM, THERE WOULD BE NO INDEPENDENT AUDIT OF THE USES OF THE LARGE APPROPRIATIONS OVER WHICH HE IS PERMITTED ADMINISTRATIVE CONTROL; IT WOULD NOT ONLY THROW THE ACCOUNTING SYSTEM BACK INTO THE TURMOIL OF THE EXECUTIVE BRANCH AND SUBJECT TO ITS INFLUENCES AND DOMINATION, BUT WOULD, BY REASON OF SUCH ADDED AUTHORITY WITH RESPECT TO THE USES OF APPROPRIATIONS, OPERATE TO ELEVATE A SUBORDINATE CABINET OFFICER TO A PLACE OF "HIGH COMMAND" IN THE EXECUTIVE FAMILY; IT WOULD TAKE FROM THE CONGRESS THE SECURITY IT HAS FELT IN MAKING APPROPRIATIONS CONVENIENTLY AVAILABLE FOR LAWFUL USE ON THE THEORY AN INDEPENDENT AUDITING SYSTEM COULD AND WOULD EXACT LAW OBSERVANCE IN THE USES THEREOF; AND IT WOULD HEAD THE SYSTEM BY A POLITICAL OFFICIAL WITH OFFICE OF UNCERTAIN TENURE, WHEREAS A VERY DEFINITE PURPOSE OF THE BUDGET AND ACCOUNTING ACT OF 1921 WAS TO REMOVE THE ACCOUNTING SYSTEM FROM PARTISAN POLITICAL CONSIDERATION AND INFLUENCES.

IF IN DECIDING QUESTIONS INVOLVING THE LEGAL AVAILABILITY OF AN APPROPRIATION FOR A PROPOSED USE THIS OFFICE SHOULD BECOME TOO LIBERAL AND PERMIT USES OF AN APPROPRIATION BEYOND THE INTENT OF THE CONGRESS IN MAKING THE MONEYS AVAILABLE THE DAMAGE WOULD LIKELY BE IMMEDIATE AND IRREPARABLE; AND THUS, WHEN THE INTERESTED DEPARTMENT OR ESTABLISHMENT BELIEVES THIS OFFICE HAS THROUGH ITS DECISIONS UNDULY RESTRICTED THE USE OF AN APPROPRIATION (AND SUCH DECISIONS ARE ALWAYS IN WRITING AND STATE THE REASON FOR THE CONCLUSION REACHED) THE PROPER AND ORDERLY PROCEDURE, AND THE ONLY PROCEDURE SHOWING A PROPER DEGREE OF RESPECT FOR THE AUTHORITY OF THE CONGRESS, IS TO APPLY TO THE CONGRESS FOR CLARIFICATION OF THE LAW. IF THE CONGRESS WISHES DONE WHAT THE DEPARTMENT OR ESTABLISHMENT DESIRES TO DO, IT IS NO DIFFICULT MATTER FOR IT TO SO EXPRESS ITS WILL, AND THEREBY THE MATTER IS SETTLED.

AS HEREINBEFORE STATED, DECISIONS OF THE COURTS ARE ALWAYS EXAMINED AND CONSIDERED BY THIS OFFICE IN CONNECTION WITH QUESTIONS PENDING HERE FOR DECISION, AND EVEN THOUGH THE COURTS HAVE NOT BEEN GRANTED AUTHORITY TO ACTUALLY WITHDRAW MONEYS FROM THE TREASURY, AND THEIR QUESTIONS INVOLVING LIABILITY OF THE GOVERNMENT USUALLY GROW FROM MALADMINISTRATION AND THUS ARE INFREQUENTLY IDENTICAL WITH THOSE FOR DECISION HERE, YET THE LEGAL PRINCIPLES AS APPLIED BY THE COURTS TO THEIR QUESTIONS ARE ALWAYS HELPFUL AND FREQUENTLY AID GREATLY IN SOLVING OUR PROBLEMS. DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, WHERE APPLICABLE TO OUR QUESTIONS, RESOLVE ALL DOUBTS. OUR TROUBLE HAS BEEN IN GETTING OUR PROBLEMS SUBMITTED TO THAT COURT. WHILE THE COURT OF CLAIMS DOES NOT HAVE THE RESPONSIBILITY THAT RESTS UPON THIS OFFICE OF DETERMINING THE LEGAL AVAILABILITY OF AN EXISTING APPROPRIATION FOR A PROPOSED USE, ITS JUDGMENTS BEING FOR REPORT TO THE CONGRESS WHERE AN APPROPRIATION USUALLY FOLLOWS FOR PAYMENT, BUT NOT NECESSARILY SO, OCCASIONALLY IT HAS A PROBLEM SO SIMILAR TO QUESTIONS FOR DECISION BY THIS OFFICE ARISING UNDER EXPENDABLE APPROPRIATIONS THAT ITS ACTION THEREON IS MOST HELPFUL TO THIS OFFICE. THIS IS ESPECIALLY TRUE WHERE THE PROBLEM HAS BEEN FULLY AND FAITHFULLY PRESENTED, AND THE COURT IS THUS GIVEN OPPORTUNITY TO CONSIDER ALL PHASES OF THE MATTER AND APPLY THERETO LEGAL PRINCIPLES ACCORDINGLY. IT IS NOT ALWAYS, HOWEVER, THAT CASES ARE SO PRESENTED AS TO GIVE THE COURT SUCH OPPORTUNITY. UNDER THE RULES OF PLEADING AND PROCEDURE, AND IN THE MATTER OF PROOF AND BRIEFS, MUCH IS DEPENDENT UPON THE MANNER AND SUBSTANCE OF THE PRESENTATION ON BEHALF OF THE GOVERNMENT, AND IN THE STUDY OF ACTIONS BY THE COURT URGED HERE AS HAVING A BEARING ON QUESTIONS FOR DECISION BY THIS OFFICE--- AND SOMETIMES SUGGESTED AS CONTROLLING, AS APPARENTLY IS NOW URGED BY YOU--- IT HAS BEEN FOUND THE COURT WAS NOT SO FULLY AND FAITHFULLY INFORMED AND THAT, AS A MATTER OF FACT, THERE WERE NOT PRESENTED TO THE COURT FOR CONSIDERATION IN CONNECTION WITH ITS PROBLEM CERTAIN MATERIAL MATTERS ACTUALLY INVOLVED IN THE QUESTION FOR DECISION BY THIS OFFICE AND WITH RESPECT TO WHICH THE COURT'S ACTION IS CITED. A FURTHER DIFFICULTY IN CONNECTION WITH CASES IN WHICH THE COURT HAS NOT BEEN GIVEN FULL ASSISTANCE THROUGH SUCH PRESENTATION IS THAT OF INDUCING THE DEPARTMENT OF JUSTICE TO PROSECUTE AN ATTEMPT FOR REHEARING OR REVIEW BY THE SUPREME COURT, AND THAT DEPARTMENT IS ESPECIALLY HANDICAPPED IN MAKING A FULL PRESENTATION OF THE GOVERNMENT'S SIDE OF CASES, NOT ONLY IN THE COURT OF CLAIMS BUT UPON REVIEW, WHERE IT HAS PREJUDGED THE MATTERS AND ISSUED AND PUBLISHED AN OPINION ADVERSE TO THE GOVERNMENT.

TAKE, FOR INSTANCE, THE BASIC CASE RELIED UPON BY YOU IN THE PRESENT MATTER AND WHICH YOU APPARENTLY CONTEND IS CONTROLLING UPON THE USES OF AN EXPENDABLE APPROPRIATION, BULLARD V. UNITED STATES, 66 CT.CLS. 264. IN THAT CASE THE THEN ATTORNEY GENERAL HAD PREJUDGED THE ISSUE AND PUBLISHED HIS VIEWS ADVERSE TO THE GOVERNMENT. IT WAS PRESENTED TO THE COURT OF CLAIMS PRACTICALLY AS CONFESSED AND THE RECORD WAS SUCH THERE SEEMED DOUBT WHETHER THE MERITS COULD BE PROPERLY PLACED BEFORE A REVIEWING TRIBUNAL. IN SUBSEQUENT CASES A STRENUOUS EFFORT WAS MADE BY THIS OFFICE TO INDUCE THE DEPARTMENT OF JUSTICE TO FULLY PRESENT TO THE COURT OF CLAIMS THE WHOLE CASE AND IT WAS URGED THAT IF A REVERSAL OF THE VIEW TAKEN IN THE BULLARD CASE COULD NOT BE SECURED THAT A RECORD BE MADE ON WHICH A REVIEW OF THE MERITS COULD BE SECURED. THESE EFFORTS WERE NOT SUCCESSFUL AND THE BULLARD CASE HAS BEEN PERMITTED TO STAND, ALTHOUGH THE MATTERS ACTUALLY INVOLVED HAVE NEVER BEEN FAIRLY SUBMITTED TO THE COURT.

NOW, WHAT WAS INVOLVED IN THE BULLARD CASE? SIMPLY THIS: WHETHER, WHEN AN OFFICER OF THE NAVY IS DETACHED FROM DUTY AND ORDERED TO HIS HOME TO AWAIT FURTHER ORDERS FOR RETIREMENT THERE IS INVOLVED A "PERMANENT CHANGE OF STATION" SO AS TO ENTITLE SUCH OFFICER TO THE BENEFITS PROVIDED FOR BY SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AS SUPPLEMENTED BY THE ACT OF JUNE 10, 1922, 42 STAT. 631. THE STATUTES, SO FAR AS MATERIAL, ARE AS FOLLOWS:

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

THAT HEREAFTER WHEN ANY COMMISSIONED OFFICER, NONCOMMISSIONED OFFICER OF THE GRADE OF COLOR SERGEANT AND ABOVE, INCLUDING ANY NONCOMMISSIONED OFFICER OF THE MARINE CORPS OF CORRESPONDING GRADE, WARRANT OFFICER, CHIEF PETTY OFFICER, OR PETTY OFFICER (FIRST CLASS), HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: PROVIDED, THAT FOR PERSONS IN THE NAVAL SERVICE THE TERM "PERMANENT STATION," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN A SHORE STATION OR THE HOME YARD OF THE VESSEL TO WHICH THE PERSON CONCERNED MAY BE ORDERED; AND A DULY AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF SUCH VESSEL SHALL BE DEEMED A CHANGE OF STATION: PROVIDED FURTHER, THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER CONCERNED: PROVIDED FURTHER, THAT TRANSPORTATION SUPPLIED THE WIFE OR DEPENDENT CHILD OR CHILDREN OF SUCH OFFICER, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT, IF SUCH TRANSPORTATION IS AVAILABLE: AND PROVIDED FURTHER, THAT THE PERSONNEL OF THE NAVY SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS.

THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES:

IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY SECTION 12 OF ANACT ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED MAY 18, 1920, TO BE FURNISHED BY THE UNITED STATES FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. DEPENDENT CHILDREN SHALL BE SUCH AS ARE DEFINED IN SECTION 4 OF THIS ACT.

IT IS TO BE NOTED THAT FOR PERSONS IN THE NAVY THE TERM "PERMANENT STATION," AS USED IN THE LAW, IS REQUIRED TO BE INTERPRETED TO MEAN ". . A SHORE STATION FOR THE HOME YARD OF THE VESSEL TO WHICH THE PERSON CONCERNED MAY BE ORDERED . . .' BULLARD WAS ORDERED TO NO NAVAL STATION, BUT RATHER TO HIS HOME FOR RETIREMENT--- AND THE QUESTION WAS WHETHER UNDER THE LAW THERE WAS AUTHORIZED PAYMENT OF THE TRANSPORTATION EXPENSES OF HIS WIFE TO THEIR HOME. IT WAS NOT A QUESTION OF WHETHER THE GOVERNMENT SHOULD, IN ALL FAIRNESS, PAY THE EXPENSES OF THE OFFICER'S WIFE IN TRAVELING TO THEIR HOME, BUT WHETHER THE LAW AUTHORIZED PAYMENT OF SUCH EXPENSES. TO MAKE SUCH A PAYMENT LAWFUL WOULD REQUIRE DETERMINATION THAT THE OFFICER IN BEING RELIEVED FROM DUTY AND ORDERED TO HIS HOME TO THERE AWAIT FURTHER ORDERS FOR RETIREMENT WAS REQUIRED THEREBY TO MAKE A PERMANENT CHANGE OF STATION WITHIN THE MEANING OF THE LAW SUPRA, AND THUS, WHETHER IN CHANGING, PURSUANT TO ORDERS, FROM HIS NAVAL STATION TO HIS HOME, AFTER RELIEF FROM OFFICIAL DUTY, HIS HOME WAS A "STATION" WITHIN THE MEANING OF THE LAW AND SO AS TO CONSTITUTE THE MOVEMENT A CHANGE FROM ONE NAVAL STATION TO ANOTHER. WHEN THE CLAIM OF BULLARD FOR THE EXPENSES OF HIS WIFE IN TRAVELING TO THEIR HOME WAS PRESENTED TO THIS OFFICE FOR PAYMENT FROM APPROPRIATED MONEYS IT WAS DISALLOWED ON THE GROUND THAT THE HOME OF THE OFFICER AND HIS WIFE WAS NOT A NAVAL STATION, AND THAT THE OFFICER'S CHANGE FROM HIS NAVAL STATION, AFTER BEING RELIEVED FROM DUTY, TO HIS HOME, WAS NOT A "PERMANENT CHANGE OF STATION" WITHIN THE PROVISIONS OF THE LAW AND SO AS TO RENDER LAWFUL PAYMENT OF THE EXPENSES OF HIS WIFE IN TRAVELING TO THEIR HOME. IT HAPPENED THAT THE SUPREME COURT OF THE UNITED STATES HAD HAD FOR CONSIDERATION A SIMILAR QUESTION AND IN UNITED STATES V. PHISTERER, 94 U.S. 219, HAD DETERMINED THAT (QUOTING FROM THE SYLLABUS):

THE HOME OF AN OFFICER TO WHICH HE IS ORDERED IS NOT A MILITARY STATION. A MILITARY "STATION" IS MERELY SYNONYMOUS WITH MILITARY "POST.' IN EACH CASE IT MEANS NOT AN ORDINARY RESIDENCE, HAVING NOTHING MILITARY ABOUT IT, EXCEPT THAT ONE OF ITS OCCUPANTS HOLDS A MILITARY COMMISSION, BUT A PLACE WHERE MILITARY DUTY IS PERFORMED, OR STORES ARE KEPT OR DISTRIBUTED, OR SOMETHING CONNECTED WITH WAR OR ARMS IS KEPT OR DONE.

BULLARD BROUGHT SUIT IN THE COURT OF CLAIMS SEEKING A JUDGMENT FOR THE TRAVEL EXPENSES OF HIS WIFE TO THEIR HOME AND THE CASE WAS PRESENTED AS HEREINBEFORE MENTIONED AND RESULTED IN A JUDGMENT AGAINST THE GOVERNMENT. BUT IN SUCH CONNECTION APPARENTLY THE PHISTERER CASE WAS OVERLOOKED. HAD IT BEEN BROUGHT TO THE COURT'S ATTENTION UNDOUBTEDLY THE REASONING AND CONCLUSION OF THE SUPREME COURT OF THE UNITED STATES WOULD HAVE BEEN FOLLOWED REGARDLESS OF WHAT THE EQUITIES IN BULLARD'S FAVOR MIGHT HAVE SEEMED.

THE MATTER OF ENTRUSTING THE GOVERNMENT'S DEFENSE IN SUCH CASES AS THE BULLARD CASE TO THE EXECUTIVE BRANCH MAY BE ONE OF THE WEAKNESSES STILL REMAINING IN THE SYSTEM DESIGNED TO ENABLE THE LEGISLATIVE BRANCH TO MAINTAIN THROUGH ITS ENACTMENTS AND BY ENACTING OBSERVANCE THEREOF BY PUBLIC OFFICIALS, THE EFFECTIVE CONTROL OVER GOVERNMENTAL ACTIVITIES AND RESULTING DRAINS ON THE PUBLIC MONEYS, ESSENTIAL TO OUR FORM OF GOVERNMENT AND AS CONTEMPLATED BY THE CONSTITUTION.

IT IS SUCH THINGS THAT SOMETIMES RENDER JUDGMENTS GIVEN BY THE COURT OF CLAIMS OF LITTLE ASSISTANCE IN THE SOLVING OF QUESTIONS FOR DECISION BY THIS OFFICE AND RELATING NOT TO MATTERS STILL TO BE CONSIDERED BY THE CONGRESS BUT TO ACTUAL USE OF AN EXISTING APPROPRIATION, AND IN VIEW OF ITS RESPONSIBILITY TO CHECK UNLAWFUL USES OF APPROPRIATIONS THIS OFFICE MUST, OF COURSE, DETERMINE FOR ITSELF WHEN DECISIONS OF INFERIOR COURTS ARE SAFE AS GUIDES IN DETERMINING SIMILAR QUESTIONS COMING BEFORE THIS OFFICE FOR DECISION.

IT WAS NEARLY 10 YEARS AGO THAT THE NAVY DEPARTMENT STARTED ITS EFFORT TO SECURE SUCH INTERPRETATION OF THE LAW SUPRA AS TO PERMIT PAYMENT OF TRANSPORTATION EXPENSES OF DEPENDENTS TO THEIR HOMES WHEN OFFICERS WERE DETACHED FROM DUTY AND ORDERED HOME TO AWAIT RETIREMENT ORDERS. DURING ALL OF THAT TIME THE LAW HAS REMAINED UNCHANGED. IN VIEW OF THE FACT THAT THE ACCOUNTING OFFICERS WERE UNABLE TO ADOPT SUCH VIEW WITH RESPECT TO USES OF APPROPRIATED MONEYS, AND THAT THE SUPREME COURT OF THE UNITED STATES HAD NEGATIVED SUCH VIEW IN SIMILAR CIRCUMSTANCES, IT IS BEYOND UNDERSTANDING WHY, IF THE NAVY DEPARTMENT BELIEVES SUCH TRAVEL EXPENSES SHOULD BE PAID BY THE GOVERNMENT, AND FEELS THE CONGRESS CAN BE SO CONVINCED, THE MATTER WAS NOT PROMPTLY SUBMITTED TO THE CONGRESS BY THE DEPARTMENT WITH A VIEW TO SECURING SUCH AMENDMENT OF THE LAW AS WOULD CLEARLY LEGALIZE SUCH PAYMENTS.

THE PURPOSES FOR WHICH APPROPRIATED MONEYS MAY BE USED ARE FOR STIPULATING BY THE CONGRESS AND NOT BY THE COURTS. THE CONGRESS IS IN SESSION EACH YEAR AND USUALLY A SUBSTANTIAL PORTION OF EACH YEAR, AND IT IS FAR MORE ACCESSIBLE TO THE NAVY DEPARTMENT THAN ARE THE COURTS. IF ANY EFFORT HAS BEEN MADE BY THE DEPARTMENT DURING THE LAST 10 OR 12 YEARS TO INDUCE THE CONGRESS TO AMEND THE LAW SO AS TO LEGALIZE SUCH PAYMENTS THE EFFORT MUST HAVE FAILED TO CONVINCE BECAUSE, AS STATED ABOVE, THE LAW HAS REMAINED UNCHANGED SINCE THE AMENDMENT OF JUNE 10, 1922, AND THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE PHISTERER CASE REFLECTED THE LAW ON THE SUBJECT WHEN THERE WERE ENACTED THE STATUTES HERE INVOLVED AND IT IS THUS TO BE ASSUMED THE STATUTES WERE PHRASED IN THE LIGHT OF SUCH DECISION.

THE FACT THAT SIMILAR PAYMENTS MAY HAVE BEEN PASSED IN THE ACCOUNTS IS NOT, OF COURSE, CONTROLLING WITH RESPECT TO THE FUTURE, AND IN VIEW OF YOUR ANNOUNCED CONCLUSION TO IGNORE THE DECISIONS OF THIS OFFICE WITH RESPECT TO THE LEGAL AVAILABILITY OF EXISTING APPROPRIATIONS FOR SUCH PAYMENTS AND TO REQUIRE SUCH PAYMENTS BY ACCOUNTABLE OFFICERS UNDER YOUR MILITARY CONTROL, YOU ARE ADVISED THAT THERE IS ENDED THE EFFORT THIS OFFICE HAS MADE TO ASSIST YOUR DEPARTMENT IN ITS SEEMING DIFFICULTIES, BY REACHING THOSE CASES WHERE THE OFFICER'S LAST STATION WAS ABROAD, AND THAT HEREAFTER AND WHILE THE LAW, SUPRA, REMAINS UNCHANGED, APPROPRIATIONS WILL NOT BE AVAILABLE FOR PAYMENT OF TRAVEL EXPENSES OF DEPENDENTS OF OFFICERS OF THE NAVY TO THEIR HOMES WHEN SUCH OFFICERS ARE ORDERED HOME TO AWAIT ORDERS FOR RETIREMENT. ALL SUCH PAYMENTS HEREAFTER MADE WILL BE DISALLOWED IN THE ACCOUNTS.

IN RESPONSE TO YOUR LETTER OF JANUARY 30, 1935, YOU ARE ADVISED ACCORDINGLY.