A-6104, DECEMBER 22, 1924, 4 COMP. GEN. 557

A-6104: Dec 22, 1924

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ARE LIMITED BY A PROVISION IN THE ACT MAKING APPROPRIATION THEREFORE. WERE AUTHORIZED. THE VOUCHERS IN QUESTION ARE STATED AS BEING "FOR LEGAL SERVICES RENDERED" AND ALSO COVER RAILROAD AND PULLMAN TRANSPORTATION. TO CALL UPON THE DEPARTMENT OF JUSTICE WHOSE OFFICERS ARE REQUIRED TO ATTEND TO SAME. THE CONTRACT UNDER WHICH THE SERVICES WERE RENDERED. OF ILLINOIS AND OTHERS HAVE UNDERTAKEN TO ACQUIRE THE LIVESTOCK SLAUGHTERING AND MEAT PACKING PROPERTIES. NEGOTIATIONS HAVE BEEN ENTERED INTO BETWEEN MR. IT IS UNDERSTOOD AND AGREED BETWEEN MR. FISHER WILL PERSONALLY INVESTIGATE AND STUDY THE FACTS AND ISSUES AS FAR AS THEY HAVE BEEN DEVELOPED UP TO THIS TIME AND MAKE PLANS FOR THE FUTURE PROGRESS OF THE INVESTIGATION.

A-6104, DECEMBER 22, 1924, 4 COMP. GEN. 557

OFFICERS AND EMPLOYEES - LIMITATION ON COMPENSATION WHERE THE SALARIES THAT MAY BE PAID TO SCIENTIFIC INVESTIGATORS, OR OTHER EMPLOYEES ENGAGED IN SCIENTIFIC WORK FOR THE DEPARTMENT OF AGRICULTURE, ARE LIMITED BY A PROVISION IN THE ACT MAKING APPROPRIATION THEREFORE, THE MAXIMUM RATE PER ANNUM SO SPECIFIED MAY NOT BE LEGALLY INCREASED BY MEANS OF CONTRACTS FOR PERSONAL SERVICES PROVIDING FOR THE PAYMENT OF COMPENSATION AT A RATE IN EXCESS OF THAT PROVIDED IN THE APPROPRIATION.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 22, 1924:

THERE HAS BEEN PRESENTED FOR DECISION THE QUESTION WHETHER CERTAIN PAYMENTS MADE TO WALTER L. FISHER OF CHICAGO, ILL., BY A. ZAPPONE, DISBURSING CLERK, DEPARTMENT OF AGRICULTURE, ON VOUCHERS NO. 9569, JULY, 1923, NO. 29965, AUGUST, 1923, NO. 62947, OCTOBER, 1923, NO. 85023, NOVEMBER 1923, AND NO. 99032, DECEMBER, 1923, FOR SERVICES RENDERED UNDER A CONTRACTUAL AGREEMENT DATED JUNE 5, 1923, WERE AUTHORIZED. THE VOUCHERS IN QUESTION ARE STATED AS BEING "FOR LEGAL SERVICES RENDERED" AND ALSO COVER RAILROAD AND PULLMAN TRANSPORTATION, AND CREDIT THEREFOR HAS BEEN SUSPENDED IN THE DISBURSING CLERK'S ACCOUNTS FOR THE REASON THAT THE APPROPRIATION UNDER WHICH MADE DOES NOT SPECIFICALLY PROVIDE FOR THE EMPLOYMENT OF SPECIAL COUNSEL AND THAT SECTION 189, REVISED STATUTES, PROHIBITS HEADS OF DEPARTMENTS FROM EMPLOYING ATTORNEYS OR COUNSEL BUT REQUIRES THEM, WHEN IN NEED OF COUNSEL OR ADVICE, TO CALL UPON THE DEPARTMENT OF JUSTICE WHOSE OFFICERS ARE REQUIRED TO ATTEND TO SAME.

THE CONTRACT UNDER WHICH THE SERVICES WERE RENDERED, READS AS FOLLOWS:

AN INVESTIGATION HAS BEEN INSTITUTED BY THE SECRETARY OF AGRICULTURE TO ASCERTAIN THE FACTS AND DETERMINE AND PUBLISH THE PROBABLE EFFECT UPON THE LIVESTOCK AND MEAT PACKING INDUSTRY AND THE PUBLIC WELFARE OF A TRANSACTION BY WHICH ARMOUR AND CO., OF ILLINOIS AND OTHERS HAVE UNDERTAKEN TO ACQUIRE THE LIVESTOCK SLAUGHTERING AND MEAT PACKING PROPERTIES, BUSINESS, AND OTHER ASSETS OF MORRIS AND COMPANY, DURING THE COURSE OF WHICH THERE HAS DEVELOPED URGENT AND IMMEDIATE NECESSITY FOR SPECIAL EXPERT ASSISTANCE AND ADVICE TO ENABLE THE SECRETARY OF AGRICULTURE TO REACH PROPER CONCLUSIONS.

IN THESE CIRCUMSTANCES, UNDER THE AUTHORITY OF THE ANNUAL APPROPRIATION FOR THE DEPARTMENT OF AGRICULTURE HEREINAFTER MENTIONED, NEGOTIATIONS HAVE BEEN ENTERED INTO BETWEEN MR. CHESTER MORRILL, ASSISTANT TO THE SECRETARY OF AGRICULTURE, AND MR. WALTER L. FISHER, OF CHICAGO, ILL., FOR THE PURPOSE OF SECURING SUCH ASSISTANCE AND ADVICE FROM MR. FISHER WHO HAS ACQUIRED SPECIAL KNOWLEDGE OF AND FAMILIARITY WITH THE LIVESTOCK AND MEAT PACKING INDUSTRY, AND, PURSUANT THERETO, IT IS UNDERSTOOD AND AGREED BETWEEN MR. FISHER AND THE SECRETARY OF AGRICULTURE:

1. THAT MR. FISHER WILL PERSONALLY INVESTIGATE AND STUDY THE FACTS AND ISSUES AS FAR AS THEY HAVE BEEN DEVELOPED UP TO THIS TIME AND MAKE PLANS FOR THE FUTURE PROGRESS OF THE INVESTIGATION; HE WILL EXAMINE AND CONSULT WITH OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE AND OTHER PERSONS WHO MAY BE CONCERNED; HE WILL PARTICIPATE IN ANY HEARINGS THAT MAY BE HELD IN CONNECTION WITH THE MATTER, AND HE WILL ANALYZE, INTERPRET, AND SUMMARIZE THE FACTS AND QUESTIONS INVOLVED, TO THE END THAT THE SECRETARY OF AGRICULTURE MAY BE ASSISTED AND ADVISED PROPERLY IN REACHING ANY DETERMINATION THAT MAY BE JUSTIFIED IN THE MATTER.

2. THE SECRETARY OF AGRICULTURE WILL CAUSE TO BE PAID TO MR. FISHER, OUT OF THE APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE FOR THE FISCAL YEARS ENDING JUNE 30, 1923, AND JUNE 30, 1924, ENTITLED "MARKETING AND DISTRIBUTING FARM PRODUCTS," AND SUCH OTHER APPROPRIATIONS AS MAY BE AVAILABLE FOR THE PURPOSE, COMPENSATION AT THE RATE OF $150 PER DAY FOR TIME ACTUALLY EMPLOYED IN CHICAGO, ILL., AND AT THE RATE OF $175 PER DAY FOR TIME ACTUALLY EMPLOYED ELSEWHERE THAN IN CHICAGO, ILL., TOGETHER WITH THE ACTUAL COST OF RAILROAD AND PULLMAN FARES WHEN REQUIRED IN CONNECTION WITH TRAVEL AWAY FROM THE CITY OF CHICAGO UNDER THIS CONTRACT. THE RATE OF COMPENSATION HEREINABOVE PROVIDED SHALL APPLY TO THE CUSTOMARY OFFICE OR COURT DAY. IN ADDITION THERETO COMPENSATION SHALL BE PAID TO MR. FISHER FOR ALL SERVICES RENDERED OUTSIDE OF AND IN ADDITION TO SUCH CUSTOMARY OFFICE OR COURT DAYS AT THE RATE OF $30 PER HOUR.

3. THE SECRETARY OF AGRICULTURE WILL CAUSE TO BE MADE AVAILABLE TO MR. FISHER ADEQUATE ASSISTANCE OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE AND ANY STATISTICAL OR OTHER INFORMATION POSSESSED BY THE DEPARTMENT OF AGRICULTURE THAT MAY BE USEFUL FOR SUCH PURPOSES.

4. THIS AGREEMENT, UNLESS AMENDED OR SUPPLEMENTED, SHALL TERMINATE WHEN THE SECRETARY OF AGRICULTURE ISSUES HIS FINDINGS OF FACT OR ORDER TO CEASE AND DESIST OR OTHERWISE CONCLUDES THE INQUIRY TO WHICH THIS CONTRACT RELATES, AND IN ANY EVENT WHENEVER THE COMPENSATION PAID AGGREGATES $12,000.

IN EXPLANATION OF THE NATURE OF THE DUTIES THAT WERE PERFORMED BY MR. FISHER UNDER THIS CONTRACT THE ACTING SECRETARY OF AGRICULTURE, IN LETTER DATED OCTOBER 29, 1924, SAID:

* * * IN THIS CONTRACT, AMONG OTHER THINGS, IT WILL BE NOTED THAT MR. FISHER WILL PERSONALLY INVESTIGATE AND STUDY THE FACTS AND ISSUES INVOLVED IN THE TRANSACTION BY WHICH ARMOUR AND CO. OF ILLINOIS AND OTHER CORPORATIONS HAVE UNDERTAKEN TO ACQUIRE THE LIVESTOCK SLAUGHTERING AND MEAT PACKING PROPERTIES, BUSINESS AND OTHER ASSETS OF MORRIS AND CO., AS FAR AS SUCH FACTS AND ISSUES HAVE BEEN DEVELOPED; MAKE PLANS FOR THE FUTURE PROGRESS OF THE INVESTIGATION; EXAMINE AND CONSULT WITH OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE AND OTHER PERSONS WHO MAY BE CONCERNED; PARTICIPATE IN ANY HEARINGS THAT MAY BE HELD IN CONNECTION WITH THE MATTER; AND ANALYZE, INTERPRET, AND SUMMARIZE THE QUESTIONS AND FACTS INVOLVED, TO THE END THAT THE SECRETARY OF AGRICULTURE MAY BE ASSISTED AND ADVISED PROPERLY IN REACHING ANY DETERMINATION THAT MAY BE JUSTIFIED IN THE MATTER. MR. WALTER L. FISHER HAS, THROUGH YEARS OF ASSOCIATION WITH LIVESTOCK PRODUCERS' ORGANIZATIONS AND INVESTIGATIONS OF THE PACKING INDUSTRY, ACQUIRED A SPECIAL KNOWLEDGE AND FAMILIARITY WITH THAT INDUSTRY, AND PARTICULARLY WITH QUESTIONS CONNECTED WITH COSTS OF DOING BUSINESS AND OTHER CONTROVERSIAL MATTERS THAT HAVE BEEN A SUBJECT OF GOVERNMENT INVESTIGATION IN THE PAST. THE MATTERS UNDER INVESTIGATION INVOLVE MIXED ECONOMIC AND LEGAL QUESTIONS. THE CONCERNS NAMED ARE THE LARGEST BUYERS OF LIVESTOCK IN THE UNITED STATES AND THEIR OPERATIONS ARE HIGHLY INFLUENTIAL FACTORS IN DETERMINING PRICES PAID AT PUBLIC STOCKYARD MARKETS TO PRODUCERS.

THE ASSISTANT TO THE SECRETARY OF AGRICULTURE IN CHARGE OF THE PACKERS AND STOCKYARDS ADMINISTRATION AND THE GENERAL ATTORNEY FOR THE PACKERS AND STOCKYARDS ADMINISTRATION HAVE BEEN FROM THE BEGINNING IN PERSONAL CHARGE AND RESPONSIBLE FOR THE LEGAL ASPECTS OF THE INVESTIGATION AND HAVE PARTICIPATED IN IT THROUGHOUT. THE RESOURCES OF THAT ORGANIZATION HAVE BEEN USED TO THE FULLEST EXTENT.

IN ADDITION, ONE OF THE ASSISTANTS OF THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE WAS ASSIGNED TO REPRESENT HIS OFFICE IN THE LEGAL ASPECTS OF THE MATTER.

FINALLY, IN ORDER THAT NO ASPECT OF THE MATTER MIGHT BE OVERLOOKED A CONTRACT WAS MADE WITH WALTER L. FISHER FOR THE PURPOSE OF BRINGING TO BEAR HIS ADVICE, ASSISTANCE, AND VIEWPOINT ON THE MATTER.

A LARGE AMOUNT OF STATISTICAL AND OTHER INFORMATION CONTAINED IN THE RECORDS OF THE BUREAU OF AGRICULTURAL ECONOMICS AND OBTAINED BY ITS EMPLOYEES HAS BEEN USED IN THE INVESTIGATION OF THIS MATTER. THE UTILIZATION OF RESOURCES OF THE DEPARTMENT HAS NOT BEEN CONFINED TO THIS BUREAU BUT HAS INCLUDED ALSO A CONSIDERABLE MASS OF INFORMATION IN THE POSSESSION OF THE BUREAU OF ANIMAL INDUSTRY.

IN THE INVESTIGATION IN WHICH MR. FISHER IS PARTICIPATING ACCURATE INFORMATION IS BEING SOUGHT AND OBTAINED UNDER OATH WITH RESPECT TO THE MANY VARIED PROBLEMS INVOLVED IN THE MARKETING OF LIVESTOCK AND THE DISPOSITION THEREOF AS MEAT AND MEAT FOOD PRODUCTS. A MASS OF INFORMATION HAS BEEN SECURED WITH RESPECT TO THE VARIOUS FACTORS OF THE LIVESTOCK AND PACKING INDUSTRY AND THE RELATION OF THE VARIOUS FACTORS TO EACH OTHER HAS BEEN FULLY DEVELOPED. THIS INFORMATION THOROUGHLY COVERS THE ECONOMICS INVOLVED IN THE SUBJECT UNDER INVESTIGATION. THIS INFORMATION IS WHAT THE BUREAU OF AGRICULTURAL ECONOMICS OF THIS DEPARTMENT DESIRES AND SEEKS TO OBTAIN IN ITS LIVESTOCK MARKETING INVESTIGATIONS AND WILL BE OF GREAT VALUE TO THE DEPARTMENT. THE INFORMATION WHICH HAS BEEN AND IS BEING ACQUIRED DEALS FULLY WITH EVERY ASPECT CONCERNING THE MARKETING, HANDLING, UTILIZATION, TRANSPORTATION, AND DISTRIBUTION OF LIVESTOCK AND THE MEAT AND MEAT FOOD PRODUCTS DERIVED THEREFROM AND ALL OF THIS INFORMATION CONCERNING THESE MATTERS IS AVAILABLE TO THE BUREAU OF AGRICULTURAL ECONOMICS AND THE ENTIRE DEPARTMENT OF AGRICULTURE FOR DIFFUSION AMONG THE PEOPLE OF THE UNITED STATES.

OWING TO THE FACT THAT MR. FISHER HAS AN INTIMATE AND PERSONAL KNOWLEDGE OF THE LIVESTOCK AND MEAT PACKING INDUSTRY GAINED THROUGH EXTENDED PERSONAL EXPERIENCE WITH PROBLEMS INVOLVING THESE SUBJECTS, HE IS AN EXPERT IN REGARD TO MATTERS DEALING WITH THE MARKETING AND DISTRIBUTION OF LIVESTOCK AND THE PRODUCTS DERIVED THEREFROM, AND IS OF COURSE PECULIARLY WELL QUALIFIED FOR PARTICIPATION IN THE INVESTIGATION IN QUESTION. FOR THESE REASONS A SUBSTANTIAL PART OF THE WORK OF MR. FISHER IN THIS INVESTIGATION HAS BEEN THAT OF A SPECIALIST AND HE HAS ACTED AND WILL CONTINUE TO ACT AS AN ADVISER OF THE SECRETARY OF AGRICULTURE WITH RESPECT TO EVERY PHASE OF THE INVESTIGATION.

AFTER QUOTING THE ACT MAKING THE APPROPRIATIONS FROM WHICH PAYMENTS FOR MR. FISHER'S SERVICES WERE MADE, THE ACTING SECRETARY FURTHER SAID:

IT IS OBVIOUS FROM WHAT HAS BEEN SAID THAT THE VOUCHERS IN QUESTION DID NOT FULLY AND CORRECTLY STATE THE CHARACTER OF THE WORK AND DUTIES OF MR. FISHER AND THAT THESE SHOULD HAVE READ,"FOR SERVICES RENDERED IN ACCORDANCE WITH THE ATTACHED CONTRACT WITH HIM.'

UNDER SECTION 189, REVISED STATUTES, THE EMPLOYMENT OF ATTORNEYS OR COUNSEL BY THE HEAD OF A DEPARTMENT AND UNDER SECTION 365, REVISED STATUTES, THE PAYMENT OF COMPENSATION FOR SERVICES OF AN ATTORNEY OR COUNSELLOR, OTHER THAN TO DISTRICT ATTORNEYS AND ASSISTANT DISTRICT ATTORNEYS, ARE PROHIBITED, BUT IN VIEW OF THE ABOVE EXPLANATIONS OFFERED BY THE ACTING SECRETARY AS TO THE DUTIES THAT HAD BEEN PERFORMED UNDER THE CONTRACT, IT WOULD SEEM THAT THE SERVICES DESCRIBED ARE NOT OF THE NATURE OF SERVICES CONTEMPLATED TO BE PROHIBITED BY THE PROVISIONS OF THE CITED SECTIONS OF THE REVISED STATUTES, BUT RATHER SEEM TO BE ADVISORY SERVICES OF AN EXPERT CHARACTER.

THE APPROPRIATIONS FOR "GENERAL EXPENSES, BUREAU OF AGRICULTURAL ECONOMICS (MARKETING AND DISTRIBUTING FARM PRODUCTS)" FOR THE FISCAL YEARS 1923 AND 1924, MADE BY THE ACTS OF MAY 11, 1922, AND FEBRUARY 26, 1923, 42 STAT. 531, 1313, FROM WHICH PAYMENTS FOR THE SERVICES IN IN QUESTION WERE MADE, PROVIDE:

FOR SALARIES AND * * * TRAVELING EXPENSES * * * AND ALL OTHER EXPENSES NECESSARY IN CONDUCTING INVESTIGATIONS, EXPERIMENTS, AND DEMONSTRATIONS, AS FOLLOWS:

FOR ACQUIRING AND DIFFUSING AMONG THE PEOPLE OF THE UNITED STATES USEFUL INFORMATION ON SUBJECTS CONNECTED WITH THE MARKETING, HANDLING, UTILIZATION, GRADING, TRANSPORTATION, AND DISTRIBUTING OF FARM AND NONMANUFACTURED FOOD PRODUCTS AND THE PURCHASING OF FARM SUPPLIES, INCLUDING THE DEMONSTRATION AND PROMOTION OF THE USE OF UNIFORM STANDARDS OF CLASSIFICATION OF AMERICAN FARM PRODUCTS THROUGHOUT THE WORLD, INDEPENDENTLY AND IN COOPERATION WITH OTHER BRANCHES OF THE DEPARTMENT, STATE AGENCIES, PURCHASING AND CONSUMING ORGANIZATIONS, AND PERSONS ENGAGED IN THE MARKETING, HANDLING, UTILIZATION, GRADING, TRANSPORTATION, AND DISTRIBUTING OF FARM AND FOOD PRODUCTS * * *.

THE ACT OF MAY 11, 1922, SUPRA, ON PAGE 539, CONTAINS A PROVISION UNDER THE HEADING "MAXIMUM SALARIES" WHICH READS:

DURING THE FISCAL YEAR 1923 THE MAXIMUM SALARY OF ANY SCIENTIFIC INVESTIGATOR, OR OTHER EMPLOYEE ENGAGED IN SCIENTIFIC WORK AND PAID FROM THE GENERAL APPROPRIATION OF THE DEPARTMENT OF AGRICULTURE, SHALL NOT EXCEED AT THE RATE OF $6,500 PER ANNUM * * *.

AN IDENTICAL PROVISION, EXCEPT THAT THE FISCAL YEAR 1924 IS SPECIFIED, IS CONTAINED IN THE ACT OF FEBRUARY 26, 1923, SUPRA, ON PAGE 1320, MAKING APPROPRIATION FOR THE FISCAL YEAR 1924.

SECTION 523, REVISED STATUES, AUTHORIZES THE SECRETARY OF AGRICULTURE, AS CONGRESS MAY FROM TIME TO TIME PROVIDE, TO EMPLOY PERSONS OTHER THAN REGULAR EMPLOYEES FOR SUCH TIME AS THEIR SERVICES MAY BE NEEDED, INCLUDING CHEMISTS, BOTANISTS, ENTOMOLOGISTS, AND PERSONS SKILLED IN THE NATURAL SCIENCES PERTAINING TO AGRICULTURE, BUT THE COMPENSATION OF SUCH PERSONS, UNLESS ELSEWHERE SPECIFICALLY PROVIDED FOR, IS LIMITED BY THE APPROPRIATION UNDER WHICH EMPLOYED. EXCEPT IN THOSE CASES WHERE SPECIFICALLY PROVIDED FOR, IS LIMITED BY THE APPROPRIATION UNDER WHICH EMPLOYED. EXCEPT IN THOSE CASES WHERE SPECIFICALLY AUTHORIZED THERE IS NO AUTHORITY TO INCREASE BY CONTRACT OR OTHERWISE THE AMOUNT OF COMPENSATION TO BE PAID SUCH EMPLOYEES AND THE COMPENSATION OF EMPLOYEES WHOSE SERVICES ARE SECURED BY MEANS OF CONTRACTS, AS WELL AS THOSE SECURED IN THE REGULAR MANNER, IS SUBJECT TO THE LIMITATION IN THE APPROPRIATION. SEE 25 COMP. DEC. 655. THE LIMITATION AS TO THE AMOUNT OF COMPENSATION TO BE PAID EMPLOYEES, CONTAINED IN THE APPROPRIATION ACTS CITED ABOVE, COULD NOT LEGALLY BE EXCEEDED IN THE INSTANT CASE AND THE AMOUNT PAID AS COMPENSATION TO MR. FISHER IN EXCESS OF THE RATE OF $6,500 PER ANNUM OF 313 WORKING DAYS, 7 HOURS PER DAY, WAS CONTRARY TO LAW AND CREDIT FOR PAYMENTS MADE TO HIM IN EXCESS OF THAT RATE BY THE DAY OR HOUR WILL ACCORDINGLY BE DISALLOWED, FOR THE REASONS HEREIN STATED, IN THE NEXT SETTLEMENT OF THE DISBURSING CLERK'S ACCOUNTS.