A-65949, DECEMBER 17, 1935, 15 COMP. GEN. 521

A-65949: Dec 17, 1935

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ARE AVAILABLE FOR THE EXPENSES OF HOLDING REFERENDUMS AUTHORIZED PRIOR TO DESIGNATION OF AUCTION TOBACCO MARKETS UNDER THE TOBACCO INSPECTION ACT OF AUGUST 23. 1935: THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 30. AMONG OTHER THINGS PROVIDES: "THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED OUT OF ANY MONEYS IN THE TREASURY NOT OTHERWISE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY FOR THE ADMINISTERING OF THIS ACT.'. ARE HEREBY MADE AVAILABLE FOR THE FISCAL YEAR 1936 AND. INCLUDING PAYMENT OF SUCH FEES AS WILL BE REASONABLE AND AS NEARLY AS MAY BE TO COVER THE COST FOR THE SERVICE RENDERED:PROVIDED. IT IS. IS AVAILABLE TO HOLD REFERENDUMS UNDER THE TOBACCO INSPECTION ACT WITHOUT DESIGNATING MARKETS OR UNDERTAKING GRADING UNDER THAT ACT UNTIL FUNDS FOR THE ADMINISTRATION OF THE TOBACCO INSPECTION ACT ARE PROVIDED.

A-65949, DECEMBER 17, 1935, 15 COMP. GEN. 521

AGRICULTURE DEPARTMENT - TOBACCO INSPECTION ACT - REFERENDUM EXPENSES NEITHER THE CURRENT APPROPRIATION FOR THE DEPARTMENT OF AGRICULTURE UNDER THE HEADING "BUREAU OF AGRICULTURAL ECONOMICS" NOR ANY OTHER APPROPRIATION ITEMS FOR SAID BUREAU OR FOR THE PURPOSES OF THE AGRICULTURAL ADJUSTMENT ACT, AS AMENDED, ARE AVAILABLE FOR THE EXPENSES OF HOLDING REFERENDUMS AUTHORIZED PRIOR TO DESIGNATION OF AUCTION TOBACCO MARKETS UNDER THE TOBACCO INSPECTION ACT OF AUGUST 23, 1935, 49 STAT. 731.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, DECEMBER 17, 1935:

THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 30, 1935, AS FOLLOWS:

THE TOBACCO INSPECTION ACT (PUB., NO. 314, 74TH CONG., APPROVED AUGUST 23, 1935), AMONG OTHER THINGS PROVIDES:

"THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED OUT OF ANY MONEYS IN THE TREASURY NOT OTHERWISE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY FOR THE ADMINISTERING OF THIS ACT.'

THE SO-CALLED THIRD DEFICIENCY BILL WHICH FAILED OF PASSAGE CARRIED AN ITEM OF THE BUREAU OF AGRICULTURAL ECONOMICS WHICH PROVIDED:

"FOR CARRYING INTO EFFECT THE PROVISIONS OF THE TOBACCO INSPECTION ACT APPROVED AUGUST 23, 1935, $153,065.00 OF THE FUNDS AVAILABLE FOR CARRYING INTO EFFECT THE AGRICULTURAL ADJUSTMENT ACT, AS AMENDED, ARE HEREBY MADE AVAILABLE FOR THE FISCAL YEAR 1936 AND, IN ADDITION THERETO, $52,670.00 OF THE FUNDS APPROPRIATED FOR MARKET INSPECTION OF FARM PRODUCTS UNDER THE BUREAU OF AGRICULTURAL ECONOMICS, IN THE AGRICULTURAL APPROPRIATION ACT FOR THE FISCAL YEAR 1936 MAY BE USED FOR THE PURPOSES OF SAID TOBACCO INSPECTION ACT.'

IN THE CURRENT APPROPRIATION ACT FOR THE DEPARTMENT OF AGRICULTURE UNDER THE BUREAU OF AGRICULTURAL ECONOMICS, APPEARS THE FOLLOWING ITEM:

"MARKET INSPECTION OF FARM PRODUCTS: FOR ENABLING THE SECRETARY OF AGRICULTURE, INDEPENDENTLY AND IN COOPERATION WITH OTHER BRANCHES OF THE GOVERNMENT, STATE AGENCIES, PURCHASING AND CONSUMING ORGANIZATIONS, BOARDS OF TRADE, CHAMBERS OF COMMERCE, OR OTHER ASSOCIATIONS OF BUSINESS MEN OR TRADE ORGANIZATIONS, AND PERSONS OR CORPORATIONS ENGAGED IN THE PRODUCTION, TRANSPORTATION, MARKETING, AND DISTRIBUTION OF FARM AND FOOD PRODUCTS, WHETHER OPERATING IN ONE OR MORE JURISDICTIONS, TO INVESTIGATE AND CERTIFY TO SHIPPERS AND OTHER INTERESTED PARTIES THE CLASS, QUALITY, AND CONDITION OF COTTON, TOBACCO, FRUITS, AND VEGETABLES, WHETHER RAW, DRIED, OR CANNED, POULTRY, BUTTER, HAY, AND OTHER PERISHABLE FARM PRODUCTS WHEN OFFERED FOR INTERSTATE SHIPMENT OR WHEN RECEIVED AT SUCH IMPORTANT CENTRAL MARKETS AS THE SECRETARY OF AGRICULTURE MAY FROM TIME TO TIME DESIGNATE, OR AT POINTS WHICH MAY BE CONVENIENTLY REACHED THEREFROM, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, INCLUDING PAYMENT OF SUCH FEES AS WILL BE REASONABLE AND AS NEARLY AS MAY BE TO COVER THE COST FOR THE SERVICE RENDERED:PROVIDED, THAT CERTIFICATES ISSUED BY THE AUTHORIZED AGENTS OF THE DEPARTMENT SHALL BE RECEIVED IN ALL COURTS OF THE UNITED STATES AS PRIMA FACIE EVIDENCE OF THE TRUTH OF THE STATEMENTS THEREIN CONTAINED, $431,203.'

IT IS, THEREFORE, REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER THE FUNDS APPROPRIATED TO THE BUREAU OF AGRICULTURAL ECONOMICS UNDER THE ITEM MARKET INSPECTION OF FARM PRODUCTS, OR ANY OTHER ITEM OF THE APPROPRIATION FOR THE BUREAU OF AGRICULTURAL ECONOMICS, IS AVAILABLE TO HOLD REFERENDUMS UNDER THE TOBACCO INSPECTION ACT WITHOUT DESIGNATING MARKETS OR UNDERTAKING GRADING UNDER THAT ACT UNTIL FUNDS FOR THE ADMINISTRATION OF THE TOBACCO INSPECTION ACT ARE PROVIDED. YOU ARE ALSO REQUESTED TO ADVISE THIS DEPARTMENT WHETHER THE ADMINISTRATIVE APPROPRIATION UNDER SECTION 12 (C) OF THE AGRICULTURAL ADJUSTMENT ACT WOULD BE AVAILABLE FOR CARRYING OUT THE ADMINISTRATION OF THE TOBACCO INSPECTION ACT.

SECTION 5 OF THE TOBACCO INSPECTION ACT OF AUGUST 23, 1935, 49 STAT. 731, PROVIDES AS FOLLOWS:

THAT THE SECRETARY IS AUTHORIZED TO DESIGNATE THOSE AUCTION MARKETS WHERE TOBACCO BOUGHT AND SOLD THEREON AT AUCTION, OR THE PRODUCTS CUSTOMARILY MANUFACTURED THEREFROM, MOVES IN COMMERCE. BEFORE ANY MARKET IS DESIGNATED BY THE SECRETARY UNDER THIS SECTION HE SHALL DETERMINE BY REFERENDUM THE DESIRE OF TOBACCO GROWERS WHO SOLD TOBACCO AT AUCTION ON SUCH MARKET DURING THE PRECEDING MARKETING SEASON. THE SECRETARY MAY AT HIS DISCRETION HOLD ONE REFERENDUM FOR TWO OR MORE MARKETS OR FOR ALL MARKETS IN A TYPE AREA. NO MARKET OR GROUP OF MARKETS SHALL BE DESIGNATED BY THE SECRETARY UNLESS TWO-THIRDS OF THE GROWERS VOTING FAVOR IT. THE SECRETARY SHALL HAVE ACCESS TO THE TOBACCO RECORDS OF THE COLLECTOR OF INTERNAL REVENUE AND OF THE SEVERAL COLLECTORS OF INTERNAL REVENUE FOR THE PURPOSE OF OBTAINING THE NAMES AND ADDRESSES OF GROWERS WHO SOLD TOBACCO ON ANY AUCTION MARKET, AND THE SECRETARY SHALL DETERMINE FROM SAID RECORDS THE ELIGIBILITY OF SUCH GROWER TO VOTE IN SUCH REFERENDUM, AND NO GROWER SHALL BE ELIGIBLE TO VOTE IN MORE THAN ONE REFERENDUM. AFTER PUBLIC NOTICE OF NOT LESS THAN THIRTY DAYS THAT ANY AUCTION MARKET HAS BEEN SO DESIGNATED BY THE SECRETARY, NO TOBACCO SHALL BE OFFERED FOR SALE AT AUCTION ON SUCH MARKET UNTIL IT SHALL HAVE BEEN INSPECTED AND CERTIFIED BY AN AUTHORIZED REPRESENTATIVE OF THE SECRETARY ACCORDING TO THE STANDARDS ESTABLISHED UNDER THIS ACT, EXCEPT THAT THE SECRETARY MAY TEMPORARILY SUSPEND THE REQUIREMENT OF INSPECTION AND CERTIFICATION AT ANY DESIGNATED MARKET WHENEVER HE FINDS IT IMPRACTICABLE TO PROVIDE FOR SUCH INSPECTION AND CERTIFICATION BECAUSE COMPETENT INSPECTORS ARE NOT OBTAINABLE OR BECAUSE THE QUANTITY OF TOBACCO AVAILABLE FOR INSPECTION IS INSUFFICIENT TO JUSTIFY THE COST OF SUCH SERVICE: PROVIDED, THAT, IN THE EVENT COMPETENT INSPECTORS ARE NOT AVAILABLE, OR FOR OTHER REASONS, THE SECRETARY IS UNABLE TO PROVIDE FOR SUCH INSPECTION AND CERTIFICATION AT ALL AUCTION MARKETS WITHIN A TYPE AREA, HE SHALL FIRST DESIGNATE THOSE AUCTION MARKETS WHERE THE GREATEST NUMBER OF GROWERS MAY BE SERVED WITH THE FACILITIES AVAILABLE TO HIM. NO FEE OR CHARGE SHALL BE IMPOSED OR COLLECTED FOR INSPECTION OR CERTIFICATION UNDER THIS SECTION AT ANY DESIGNATED AUCTION MARKET. NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO PREVENT TRANSACTIONS IN TOBACCO AT MARKETS NOT DESIGNATED BY THE SECRETARY OR AT DESIGNATED MARKETS WHERE THE SECRETARY HAS SUSPENDED THE REQUIREMENT OF INSPECTION OR TO AUTHORIZE THE SECRETARY TO CLOSE ANY MARKET.

THE DESIGNATION OF AUCTION TOBACCO MARKETS AFTER REFERENDUM UNDER THIS SECTION IS TO BE WITHOUT COST TO THE TOBACCO GROWERS. THIS IS A NEW FEDERAL FUNCTION FOR THE EXPENSES OF WHICH NO EXISTING APPROPRIATION HAS BEEN MADE AVAILABLE. THE CURRENT APPROPRIATION ITEM UNDER THE HEADING "BUREAU OF AGRICULTURAL ECONOMICS," QUOTED IN YOUR LETTER, AUTHORIZES FEDERAL DESIGNATION OF MARKETS BUT WITHOUT A REFERENDUM, AND THE COLLECTION OF FEES FOR THE SERVICE RENDERED BY THE GOVERNMENT IS SPECIFICALLY REQUIRED.

NOTHING APPEARS IN THE WORDING OF THE OTHER APPROPRIATION ITEMS FOR THE BUREAU OF AGRICULTURAL ECONOMICS OR UNDER THE AGRICULTURAL ADJUSTMENT ACT TO JUSTIFY THE USE OF SUCH APPROPRIATED FUNDS FOR THE EXPENSE OF CONDUCTING THE REFERENDUMS IN QUESTION.

FURTHERMORE, SECTION 14 OF THE ACT PROVIDES IN PART, AS FOLLOWS:

* * * AND THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, SUCH SUMS AS MAY BE NECESSARY FOR ADMINISTERING THIS ACT.

THE FACT THAT THE SPECIFIC APPROPRIATION FOR CARRYING OUT THE PURPOSES OF THE STATUTE WAS NOT ENACTED INTO LAW DOES NOT OPERATE TO AUTHORIZE CHARGING ANY OTHER APPROPRIATION WITH THE EXPENSES OF ADMINISTERING THE ACT, PARTICULARLY IN VIEW OF THE QUOTED PROVISION FROM SECTION 14, AUTHORIZING APPROPRIATIONS TO BE MADE OF SUCH SUMS AS MAY BE NECESSARY FOR ADMINISTERING THE ACT.

ACCORDINGLY, YOU ARE ADVISED THAT NO APPROPRIATED FUNDS ARE NOW AVAILABLE FOR THE EXPENSE OF HOLDING THE REFERENDUM AUTHORIZED PRIOR TO DESIGNATION OF AUCTION TOBACCO MARKETS UNDER THE TOBACCO INSPECTION ACT, SUPRA. ..END