A-69661, JANUARY 17, 1936, 15 COMP. GEN. 628

A-69661: Jan 17, 1936

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UNITED STATES SUPREME COURT REPORTS - SALE PRICE - INAPPLICABILITY OF ECONOMY ACT PROVISION THE SPECIAL STATUTORY PROVISIONS RELATIVE TO THE PRICE AT WHICH REPORTS OF THE SUPREME COURT OF THE UNITED STATES MIGHT BE SOLD TO THE PUBLIC ARE NOT AFFECTED BY SECTION 307 OF THE ECONOMY ACT OF JUNE 30. 1936: THERE WAS RECEIVED YOUR LETTER OF JANUARY 4. AS FOLLOWS: THE FOLLOWING IS AN EXTRACT FROM A LETTER. THE PRINTING AND SALE OF THE REPORTS WERE IN THE HANDS OF A PRIVATE PUBLISHING COMPANY. WAS A SPECIAL ACT WHICH DEALT EXHAUSTIVELY WITH THE WHOLE SUBJECT OF THE REPORTER'S DUTIES. THE PRICE WAS FIXED BY THE REPORTER WITH THE APPROVAL OF THE ATTORNEY GENERAL AND MUST EQUAL THE COST OF COMPOSITION.

A-69661, JANUARY 17, 1936, 15 COMP. GEN. 628

UNITED STATES SUPREME COURT REPORTS - SALE PRICE - INAPPLICABILITY OF ECONOMY ACT PROVISION THE SPECIAL STATUTORY PROVISIONS RELATIVE TO THE PRICE AT WHICH REPORTS OF THE SUPREME COURT OF THE UNITED STATES MIGHT BE SOLD TO THE PUBLIC ARE NOT AFFECTED BY SECTION 307 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 409, FIXING THE PRICE OF GOVERNMENT PUBLICATIONS FOR SALE TO THE PUBLIC.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, JANUARY 17, 1936:

THERE WAS RECEIVED YOUR LETTER OF JANUARY 4, 1936, AS FOLLOWS:

THE FOLLOWING IS AN EXTRACT FROM A LETTER, DATED NOVEMBER 27, 1935, RECEIVED BY THE PUBLIC PRINTER FROM THE REPORTER OF THE SUPREME COURT OF THE UNITED STATES:

"* * * IF THE PROVISION OF THE ECONOMY ACT TO WHICH YOU REFER (ACT OF JUNE 30, 1932, C. 314, SEC. 307, 47 STAT. 409; 44 U.S.C., SEC. 72A) SHOULD BE HELD INAPPLICABLE TO THE SUPREME COURT REPORTS, THE $1.50 PRICE COULD BE RESTORED. THIS WOULD HELP TO KEEP THEM WITHIN THE REACH OF LAWYERS, PUBLIC OFFICIALS, AND LIBRARIES THROUGHOUT THE COUNTRY.

"PRIOR TO THE ACT OF JULY 1, 1922, C. 267, 42 STAT. 816, THE PRINTING AND SALE OF THE REPORTS WERE IN THE HANDS OF A PRIVATE PUBLISHING COMPANY, THROUGH A CONTRACT WITH THE REPORTER. AN OVER-THE COUNTER PRICE TO THE PUBLIC HAD BEEN FIXED BY LAW, AND PROVISION MADE FOR DELIVERY OF COPIES TO THE GOVERNMENT. THE ACT OF JULY 1, 1922, WAS A SPECIAL ACT WHICH DEALT EXHAUSTIVELY WITH THE WHOLE SUBJECT OF THE REPORTER'S DUTIES, HIS COMPENSATION AND ALLOWANCES, THE PRINTING OF THE BOOKS IN THE GOVERNMENT PRINTING OFFICE, DISTRIBUTION OF VOLUMES FOR GOVERNMENT USE, AND THE FIXING OF THE PRICE AT WHICH THEY MIGHT BE SOLD TO THE PUBLIC. UNDER THAT ACT, THE PRICE WAS FIXED BY THE REPORTER WITH THE APPROVAL OF THE ATTORNEY GENERAL AND MUST EQUAL THE COST OF COMPOSITION, PLATING, PRINTING AND BINDING, WITH AN ADDITION DESIGNED TO RECOUP PART OF THE OUTLAY FOR THE REPORTER'S SALARY AND EXPENSES. BY AN AMENDMENT (ACT OF MAY 29, 1926, C. 425, 44 STAT. 677), THE PLAN WAS CHANGED TO SALE "AT THE COST OF PRINTING AND BINDING, PLUS 10 PERCENTUM, WITHOUT LIMIT AS TO THE USE, NUMBER OF COPIES TO ANY ONE APPLICANT, OR RESALE AT A REASONABLE PROFIT.' SEC. 2.

"THIS AMENDED LEGISLATION, DEALING SPECIALLY AND EXCLUSIVELY WITH THESE REPORTS, WAS IN FORCE AND CONTROLLED THEIR PRICE WHEN THE ECONOMY ACT WAS ADOPTED. IN CONTRAST, THE PROVISION OF THE ECONOMY ACT IS GENERAL; IT REFERS TO "GOVERNMENT PUBLICATIONS; " AND PROVIDES THAT THE PRICE AT WHICH THEY MAY BE OFFERED FOR SALE SHALL BE BASED ON COST PLUS 50 PERCENTUM.

"IT WOULD SEEM THAT WE HAVE HERE THE FAMILIAR CASE OF A STATUTE EXTENDING ITS GENERAL LANGUAGE OVER A SPECIAL FIELD PREOCCUPIED BY AN EARLIER ONE, AND YET NOT PROFESSING TO REPEAL THE EARLIER ONE. IN SUCH CASES THE RULE IS PLAIN THAT THE SUBJECT COVERED BY THE SPECIAL STATUTE MUST BE REGARDED AS EXCEPTED OUT OF THE FIELD OF THE GENERAL ONE; AN IMPLIED REPEAL IS TO BE AVOIDED IF POSSIBLE. THIS RULE HAS BEEN APPLIED IN COUNTLESS INSTANCES. THERE ARE, OF COURSE, CASES WHERE, FOR SOME REASON INDEPENDENT OF THE MERE GENERALITY OF WORDS, IT IS MANIFEST THAT PRESERVATION OF THE EARLIER ENACTMENT WOULD BE INCONSISTENT WITH THE PURPOSE OF THE LATER ONE. TO SUCH CASES THE RULE IS NOT APPLIED, AND AN IMPLIED REPEAL IS UNAVOIDABLE. BUT A PURPOSE TO INCREASE THE PRICE OF GOVERNMENT PUBLICATIONS IN GENERAL DOES NOT NECESSARILY IMPLY A PURPOSE TO INCREASE THE PRICE OF THE SUPREME COURT REPORTS.

"THERE IS ALSO A SPECIAL FEATURE OF SEC. 307 OF THE ECONOMY ACT WHICH SHEDS LIGHT ON ITS INTENTION. THE CONCLUDING SENTENCE IS THAT "THE SELLING PRICE OF PUBLICATIONS AS PROVIDED FOR HEREIN SHALL BE IN LIEU OF THAT PRESCRIBED IN THE PUBLIC RESOLUTION APPROVED MAY 11, 1922 (U.S.C., TITLE 44, SEC. 72 AND 220), AND SECTION 42 OF THE ACT OF JANUARY 12, 1895 (U.S.C., TITLE 44, SEC. 114).' THE ACTS CITED IN THAT SENTENCE ARE THOSE WHICH PREVIOUSLY HAD FIXED THE PRICE OF GOVERNMENT PUBLICATIONS OTHER THAN THE SUPREME COURT REPORTS. THE SECTION ITSELF THUS APPEARS QUITE CLEARLY TO LIMIT ITS APPLICATION TO PUBLICATIONS OF THAT CHARACTER. IT SEEMS REASONABLE TO INFER THAT IF THERE HAD BEEN ANY INTENTION TO SUBSTITUTE A NEW PRICE "IN LIEU OF" THAT PRESCRIBED IN THE STATUTE REGULATING THE SUPREME COURT REPORTS, THAT STATUTE WOULD HAVE BEEN INCLUDED IN THE ENUMERATION.'

PUBLICATIONS, INCLUDING COPIES OF THE SUPREME COURT REPORTS, SOLD TO THE PUBLIC BY THE SUPERINTENDENT OF DOCUMENTS HAVE BEEN PRICED AT 50 PERCENT ABOVE THE COST AS DETERMINED BY THE PUBLIC PRINTER. THIS, IT IS BELIEVED, IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 72A OF TITLE 44, U.S.C., WHICH READS AS FOLLOWS:

"AFTER JUNE 30, 1932, THE PRICE AT WHICH ADDITIONAL COPIES OF GOVERNMENT PUBLICATIONS ARE OFFERED FOR SALE TO THE PUBLIC BY THE SUPERINTENDENT OF DOCUMENTS SHALL BE BASED ON THE COST THEREOF AS DETERMINED BY THE PUBLIC PRINTER PLUS 50 PERCENTUM: PROVIDED, THAT A DISCOUNT OF NOT TO EXCEED 25 PERCENTUM MAY BE ALLOWED TO AUTHORIZED BOOK DEALERS AND QUANTITY PURCHASERS, BUT SUCH PRINTING SHALL NOT INTERFERE WITH THE PROMPT EXECUTION OF WORK FOR THE GOVERNMENT. THE SURPLUS RECEIPTS FROM SUCH SALES SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF MISCELLANEOUS RECEIPTS. THE SUPERINTENDENT OF DOCUMENTS SHALL PRESCRIBE THE TERMS AND CONDITIONS UNDER WHICH HE MAY AUTHORIZE THE RESALE OF GOVERNMENT PUBLICATIONS BY BOOK DEALERS, AND HE MAY DESIGNATE ANY GOVERNMENT OFFICER HIS AGENT FOR THE SALE OF GOVERNMENT PUBLICATIONS UNDER SUCH REGULATIONS AS SHALL BE AGREED UPON BY THE SUPERINTENDENT OF DOCUMENTS AND THE HEAD OF THE RESPECTIVE DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT. THE SELLING PRICE OF PUBLICATIONS AS PROVIDED FOR HEREIN SHALL BE IN LIEU OF THAT PRESCRIBED IN SECTIONS 72, 114, AND 220 OF THIS LE.'

IT IS TRUE THAT SECTION 72A DOES NOT REFER TO SECTION 335, TITLE 28, U.S.C., WHICH READS:

"* * * THE PUBLIC PRINTER SHALL PRINT SUCH ADDITIONAL BOUND VOLUMES AND PAMPHLET COPIES OF THE UNITED STATES SUPREME COURT REPORTS AS MAY BE REQUIRED FOR SALE TO THE PUBLIC BY THE SUPERINTENDENT OF DOCUMENTS AT THE COST OF PRINTING AND BINDING, PLUS 10 PERCENTUM, WITHOUT LIMIT AS TO THE USE, NUMBER OF COPIES TO ANY ONE APPLICANT, OR RESALE AT A REASONABLE PROFIT. * * *" HOWEVER, THERE IS ALSO FOR CONSIDERATION IN THIS CONNECTION THE PROVISIONS OF SECTION 802 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, WHICH IT IS BELIEVED ARE BROAD ENOUGH TO ABROGATE THE PROVISIONS OF SECTION 335, SUPRA. SECTION 802 READS AS FOLLOWS:

" "ALL ACTS AND PARTS OF ACTS INCONSISTENT OR IN CONFLICT WITH THOSE PROVISIONS OF THIS ACT WHICH ARE OF TEMPORARY DURATION ARE HEREBY SUSPENDED DURING THE PERIOD IN WHICH SUCH PROVISIONS OF THIS ACT ARE IN EFFECT. ALL ACTS OR PARTS OF ACTS INCONSISTENT OR IN CONFLICT WITH THOSE PROVISIONS OF THIS ACT WHICH ARE OF PERMANENT NATURE ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'"

IN VIEW OF ABOVE CONFLICTING PROVISIONS OF THE LAW, YOUR DECISION, AT THE EARLIEST PRACTICABLE DATE, AS TO THE STATUTES TO BE FOLLOWED IN PRICING THE SUPREME COURT REPORTS IS RESPECTFULLY REQUESTED.

THE LAST SENTENCE OF SECTION 307 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 410, QUOTED IN YOUR LETTER AS SECTION 72A OF TITLE 44 U.S. CODE, INDICATES THAT THE SECTION WAS INTENDED AS "IN LIEU OF," THAT IS, AS SUPERSEDING ONLY THOSE STATUTES THEREIN MENTIONED GOVERNING GENERALLY THE PRICE AND SALE OF GOVERNMENT PUBLICATIONS SOLD BY OR THROUGH THE SUPERINTENDENT OF DOCUMENTS, GOVERNMENT PRINTING OFFICE, AND NOT AS SUPERSEDING OR RENDERING INOPERATIVE THE SPECIAL PROVISIONS GOVERNING THE PRICE AND SALE OF THE REPORTS OF THE SUPREME COURT OF THE UNITED STATES, CONTAINED IN THE JUDICIAL CODE, AS AMENDED. THE PREPARATION AND SALE OF THE REPORTS OF THE SUPREME COURT OF THE UNITED STATES HAVING BEEN PROVIDED FOR BY SPECIAL STATUTE, IT IS ONLY REASONABLE TO CONCLUDE THAT THE REPEAL OF SUCH SPECIAL STATUTE MAY NOT BE INFERRED BUT MUST SPECIFICALLY APPEAR.

SECTION 802 OF THE ECONOMY ACT, 47 STAT. 419, CITED BY YOU, CONTAINING THE GENERAL REPEAL CLAUSE, CANNOT OPERATE TO EXPAND THE SCOPE OF SECTION 307 BEYOND THE LIMITATIONS FIXED WITHIN ITS OWN TERMS.

A FURTHER INDICATION THAT SECTION 307 OF THE ECONOMY ACT WAS NOT INTENDED TO AFFECT THE PRICE OR SALE OF THE REPORTS OF THE SUPREME COURT OF THE UNITED STATES IS SHOWN BY THE TERMS OF THE RESPECTIVE STATUTES IN FORCE PRIOR TO THE ECONOMY ACT. WHILE ALL OF THE STATUTES, INCLUDING THE JUDICIAL CODE, FIXED THE PRICE AT 10 PERCENT ABOVE THE COST OF PRINTING, THE ACT OF MAY 29, 1926, 44 STAT. 678, AMENDED SECTION 228 OF THE JUDICIAL CODE SO AS TO REMOVE ALL RESTRICTION ON THE RESALE OF SUPREME COURT REPORTS FOR A PROFIT BY PRIVATE PARTIES, WHEREAS, REGARDING OTHER GOVERNMENT PUBLICATIONS SOLD BY OR THROUGH THE SUPERINTENDENT OF DOCUMENTS, PRIVATE PARTIES WERE REQUIRED TO AGREE "NOT TO RESELL OR DISTRIBUTE THE SAME FOR PROFIT.' SECTION 307 OF THE ECONOMY ACT AUTHORIZES A DISCOUNT OF 25 PERCENT TO AUTHORIZED BOOK DEALERS AND QUANTITY PURCHASERS AND AUTHORIZES THE SUPERINTENDENT OF DOCUMENTS TO REGULATE RESALE BY THEM. THIS CONCESSION TO PRIVATE DEALERS WOULD SEEM TO RELATE ONLY TO THOSE GOVERNMENT PUBLICATIONS, THE RESALE OF WHICH FOR A PROFIT HAD NOT BEEN PREVIOUSLY AUTHORIZED.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE SPECIAL PROVISIONS IN THE JUDICIAL CODE, AS AMENDED, SHOULD BE FOLLOWED IN PRICING THE SUPREME COURT REPORTS RATHER THAN THE PROVISIONS OF SECTION 307 OF THE ECONOMY ACT.