A-74024, JUNE 11, 1936, 15 COMP. GEN. 1081

A-74024: Jun 11, 1936

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AS FOLLOWS: YOUR OPINION IS REQUESTED ON THE PROPRIETY OF USING THE ATTACHED MODIFIED FORM 1-325 TO COVER TEMPORARY EMPLOYMENTS OF EMERGENCY PERSONNEL IN THE FIELD IN THE CAPACITY OF "DISTRICT ADVISERS" WHO RENDERED SERVICES TO THE GOVERNMENT IN AN ADVISORY CAPACITY PRIOR TO THEIR FORMAL APPOINTMENT BY THE SECRETARY OF THE INTERIOR UNDER THE ACT OF JUNE 28. UNDER THE PROVISIONS OF SECTION 2 OF THIS ACT IT IS STATED: "THE SECRETARY OF THE INTERIOR SHALL MAKE PROVISION FOR THE PROTECTION. UNDER THIS AUTHORIZATION A DIRECTOR OF GRAZING WAS APPOINTED AND BOARDS OF DISTRICT ADVISERS ELECTED BY LOCAL STOCKMEN FROM THEIR OWN NUMBERS IN THE VARIOUS DISTRICTS ESTABLISHED UNDER THE ACT. THE DISTRICT ADVISORY BOARDS ARE A FACT-FINDING BODY.

A-74024, JUNE 11, 1936, 15 COMP. GEN. 1081

DISTRICT ADVISERS - TAYLOR GRAZING ACT - APPOINTMENTS AND ALLOWANCES PERSONNEL ACTING IN THE CAPACITY OF DISTRICT ADVISERS UNDER THE TAYLOR GRAZING ACT OF JUNE 28, 1934 (48 STAT. 1269), IF NOT EMPLOYEES OF THE GOVERNMENT, MAY NOT BE PAID PER DIEM IN LIEU OF TRANSPORTATION AND SUBSISTENCE FOR ATTENDANCE AT ADVISORY BOARD MEETINGS IN VIEW OF THE JOINT RESOLUTION OF FEBRUARY 2, 1935 (49 STAT. 19), PROHIBITING PAYMENT OF SUCH EXPENSES FOR ANY FORM OF ASSEMBLAGE UNLESS SPECIFICALLY PROVIDED BY LAW. PERSONNEL ACTING IN THE CAPACITY OF DISTRICT ADVISERS UNDER THE TAYLOR GRAZING ACT OF JUNE 28, 1934 (48 STAT. 1269), IF APPOINTED GOVERNMENT EMPLOYEES FOR THE PURPOSE OF SERVING AS AND ATTENDING MEETINGS OF MEMBERS OF A FACT-FINDING BOARD, MAY NOT BE PAID A PER DIEM IN LIEU OF TRANSPORTATION AND SUBSISTENCE EITHER UNDER AN EMERGENCY FIELD OR FORMAL APPOINTMENT IN VIEW OF THE ACT OF MARCH 4, 1909 (35 STAT. 1027), PROHIBITING SUCH PAYMENTS FOR ANY BOARD OR SIMILAR BODY UNLESS CREATED BY LAW.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 11, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF APRIL 15, 1936, AS FOLLOWS:

YOUR OPINION IS REQUESTED ON THE PROPRIETY OF USING THE ATTACHED MODIFIED FORM 1-325 TO COVER TEMPORARY EMPLOYMENTS OF EMERGENCY PERSONNEL IN THE FIELD IN THE CAPACITY OF "DISTRICT ADVISERS" WHO RENDERED SERVICES TO THE GOVERNMENT IN AN ADVISORY CAPACITY PRIOR TO THEIR FORMAL APPOINTMENT BY THE SECRETARY OF THE INTERIOR UNDER THE ACT OF JUNE 28, 1934 (48 STAT. 1269), COMMONLY KNOWN AS THE TAYLOR GRAZING ACT.

UNDER THE PROVISIONS OF SECTION 2 OF THIS ACT IT IS STATED:

"THE SECRETARY OF THE INTERIOR SHALL MAKE PROVISION FOR THE PROTECTION, ADMINISTRATION, REGULATION, AND IMPROVEMENT OF SUCH GRAZING DISTRICTS AS MAY BE CREATED UNDER THE AUTHORITY OF THE FOREGOING SECTION, AND HE SHALL MAKE SUCH RULES AND REGULATIONS AND ESTABLISH SUCH SERVICE, ENTER INTO SUCH COOPERATIVE AGREEMENTS, AND DO ANY AND ALL THINGS NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ACT, AND TO INSURE THE OBJECTS OF SUCH GRAZING DISTRICTS; NAMELY, TO REGULATE THEIR OCCUPANCY AND USE, TO PRESERVE THE LAND AND ITS RESOURCES FROM DESTRUCTION AND UNNECESSARY INJURY, TO PROVIDE FOR ITS ORDERLY USE, IMPROVEMENT, AND DEVELOPMENT OF THE RANGE * * *.'

UNDER THIS AUTHORIZATION A DIRECTOR OF GRAZING WAS APPOINTED AND BOARDS OF DISTRICT ADVISERS ELECTED BY LOCAL STOCKMEN FROM THEIR OWN NUMBERS IN THE VARIOUS DISTRICTS ESTABLISHED UNDER THE ACT. THESE DISTRICT ADVISERS, BY REASON OF THEIR INTIMATE KNOWLEDGE OF LOCAL RANGE CONDITIONS, RENDERED INVALUABLE ASSISTANCE IN THE ALLOCATION AND GRANTING OF GRAZING PRIVILEGES IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND SERVED WITHOUT COMPENSATION BUT WITH ALLOWANCE OF $5 PER DIEM WHILE ACTUALLY EMPLOYED, IN LIEU OF SUBSISTENCE, AND REIMBURSEMENT FOR ACTUAL NECESSARY TRANSPORTATION EXPENSES OR FIVE CENTS A MILE FOR NECESSARY TRAVEL BY PERSONALLY OWNED AUTOMOBILE.

THE DISTRICT ADVISORY BOARDS ARE A FACT-FINDING BODY, PERFORMING DUTIES SOMEWHAT ANALOGOUS TO THAT OF A SPECIAL JURY CALLED FOR SERVICE IN A QUASI -JUDICIAL ADJUDICATION OF GRAZING PRIVILEGES ON THE PUBLIC DOMAIN. THEY ARE ALL PRIVATE PROPERTY OWNERS GATHERED FROM AMONG STOCKMEN ALL OVER THE PUBLIC DOMAIN. THEY ARE ELECTED AT DULY PUBLICIZED MEETINGS HELD WITHIN 90 DAYS AFTER PROMULGATION OF THE ORDER ESTABLISHING A GRAZING DISTRICT.

IT IS TO THE ADVANTAGE OF BOTH THE STOCKMEN AND THE GOVERNMENT FOR DISTRICT ADVISERS TO BE ELECTED AND ADVISORY BOARDS CONVENED FOR THE PURPOSE OF CONSIDERING APPLICATIONS FOR GRAZING PRIVILEGES AT THE EARLIEST DATE PRACTICABLE AFTER THE ESTABLISHMENT OF A GRAZING DISTRICT. IN MANY CASES THESE ADVISERS, IN GOOD FAITH AND IN A SPIRIT OF COOPERATION FOR THE FURTHERANCE OF THE PURPOSES OF THE ACT, ENTERED UPON THEIR DUTIES IMMEDIATELY UPON ELECTION AND UPON ORAL AGREEMENT BETWEEN THE ADVISERS AND THE FIELD OFFICER, SUBJECT TO CONFIRMATION BY THE SECRETARY. TIME AND EXPENSES OF BOTH THE GOVERNMENT AND THE STOCKMEN WERE SAVED BY THIS ACTION. THE FORMAL APPOINTMENTS OF THESE ADVISERS WERE ISSUED SUBSEQUENT TO THE DATE OF THESE FIRST MEETINGS, THUS PRESENTING THE PROBLEM OF PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE PRIOR TO FORMAL APPOINTMENT.

THE VIEWPOINT OF THE DISTRICT ADVISERS IS THAT THEY ARE ENTITLED TO REIMBURSEMENT FOR SUCH SERVICE SINCE THEY ACTED IN GOOD FAITH AND IN A SPIRIT OF COOPERATION FOR THE BEST INTERESTS OF ALL CONCERNED AND THE FURTHERANCE OF THE PURPOSES OF THE ACT.

YOUR RULING IS THEREFORE REQUESTED ON THE PROPRIETY OF ISSUING TEMPORARY EMPLOYMENTS FOR EMERGENCY WORK IN THE FIELD, USING THE ATTACHED MODIFIED FORM 1-325, TO COVER THIS SERVICE PRIOR TO FORMAL APPOINTMENT, WHICH SERVICE WAS ENTERED INTO UPON ORAL AGREEMENT AND IS CONFIRMED BY THE SECRETARY OF THE INTERIOR.

SECTION 9 OF THE ACT OF MARCH 4, 1909 (35 STAT. 1027), PROVIDES AS FOLLOWS:

THAT HEREAFTER NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION HERETOFORE OR HEREAFTER MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

SEE, ALSO, SECTION 3681, REVISED STATUTES.

JOINT RESOLUTION OF FEBRUARY 2, 1935 (49 STAT. 19), PROVIDES AS FOLLOWS:

THAT, UNLESS SPECIFICALLY PROVIDED BY LAW, NO MONEYS FROM FUNDS APPROPRIATED FOR ANY PURPOSE SHALL BE USED FOR THE PURPOSE OF LODGING, FEEDING, CONVEYING, OR FURNISHING TRANSPORTATION TO, ANY CONVENTIONS OR OTHER FORM OF ASSEMBLAGE OR GATHERING TO BE HELD IN THE DISTRICT OF COLUMBIA OR ELSEWHERE. THIS SECTION SHALL NOT BE CONSTRUED TO PROHIBIT THE PAYMENT OF EXPENSES OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT IN THE DISCHARGE OF HIS OFFICIAL DUTIES.

IN DECISION OF MAY 23, 1935 (14 COMP. GEN. 851, 852), IT WAS HELD AS FOLLOWS:

IN DECISION OF FEBRUARY 25, 1935, A-60134, 14 COMP. GEN. 638, IT WAS HELD, WITH REFERENCE TO THE ABOVE-QUOTED PROVISION, AS FOLLOWS:

"THERE SEEMS VERY LITTLE IF ANY ROOM FOR DOUBT AS TO THE REASONABLE MEANING AND LEGAL EFFECT OF SUCH LANGUAGE. SIMPLY STATED, IT IS THAT NO CONVENTION OR OTHER FORM OF ASSEMBLAGE OR GATHERING MAY BE LODGED, FED, CONVEYED, OR FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE UNLESS AUTHORITY THEREFOR IS SPECIFICALLY GRANTED BY LAW.'

HENCE, TO AUTHORIZE AN EXPENDITURE FOR ITEMS OF "LODGING, FEEDING, CONVEYING, OR FURNISHING TRANSPORTATION TO ANY CONVENTIONS OR OTHER FORM OF ASSEMBLAGE OR GATHERING TO BE HELD IN THE DISTRICT OF COLUMBIA OR ELSEWHERE," THE APPROPRIATION INVOLVED MUST PROVIDE SPECIFICALLY FOR SUCH ITEMS. GENERAL TERMS, SUCH AS QUOTED BY YOU FROM THE APPROPRIATION FOR THE AMERICAN BATTLE MONUMENTS COMMISSION ARE NOT SUFFICIENT TO MAKE AN APPROPRIATION AVAILABLE FOR SUCH PURPOSES. IN THIS CONNECTION IT IS NOTED THAT, NOTWITHSTANDING SUCH GENERAL LANGUAGE, THE ANNUAL APPROPRIATIONS FOR THE AMERICAN BATTLE MONUMENTS COMMISSION (ACT OF JUNE 16, 1933, 48 STAT. 284, AND ACT OF FEBRUARY 2, 1935, 49 STAT. 6) SPECIFICALLY AUTHORIZE EXPENDITURES WHICH OTHERWISE WOULD BE PROHIBITED BY LAWS CONTROLLING OR LIMITING EXPENDITURE OF PUBLIC FUNDS; THUS INDICATING THE BROAD, GENERAL TERMS OF THE APPROPRIATION WERE NOT INTENDED TO RENDER INAPPLICABLE THERETO SPECIFIC STATUTORY PROHIBITIONS OR INHIBITIONS.

IT IS NOT CLEAR FROM YOUR LETTER AS TO JUST WHAT IS THE STATUS OF THESE DISTRICT ADVISERS. IF THEY ARE NOT EMPLOYEES OF THE GOVERNMENT BUT ARE ELECTED BY AND REPRESENT THE STOCKMEN, THE JOINT RESOLUTION OF FEBRUARY 2, 1935, PRECLUDES THE PROPOSED PAYMENT OF TRANSPORTATION AND SUBSISTENCE. IF IN ADDITION TO BEING REPRESENTATIVES OF THE STOCKMEN THEY ARE TO RECEIVE APPOINTMENTS AS GOVERNMENT EMPLOYEES FOR THE PURPOSE OF SERVING AS AND ATTENDING MEETINGS OF MEMBERS OF A FACT FINDING BOARD, THE PROPOSED PAYMENTS, EITHER UNDER AN EMERGENCY FIELD APPOINTMENT OR UNDER A FORMAL APPOINTMENT, WOULD BE PROHIBITED BY THE ACT OF MARCH 4, 1909, SUPRA. 5 COMP. GEN. 231; ID. 417; 6 ID. 140; 7 ID. 374; ID. 541.