A-77888, JULY 9, 1936, 16 COMP. GEN. 15

A-77888: Jul 9, 1936

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ARE NOT AVAILABLE FOR EXPENDITURE BEYOND SAID PERIOD UNLESS PROPERLY OBLIGATED PRIOR THERETO. 1936: REFERENCE IS HAD TO YOUR LETTER OF JULY 3. AS FOLLOWS: THE PURPOSE OF THIS LETTER IS TO ASK FOR A RULING WITH REFERENCE TO THE AVAILABILITY OF CERTAIN FUNDS NOW IN THE GOVERNMENT TREASURY TO PAY THE COSTS OF WINDING UP THE OFFICE OF THE FEDERAL COORDINATOR OF TRANSPORTATION WHICH LAPSED ON JUNE 16. IT WAS PROVIDED THAT THE EXPENSES OF THE FEDERAL COORDINATOR OF TRANSPORTATION. EXCEPT SO FAR AS THEY WERE BORNE BY THE INTERSTATE COMMERCE COMMISSION. THE TERM "CARRIER" WAS DEFINED AS "ANY COMMON CARRIER BY RAILROAD SUBJECT TO THE PROVISIONS OF THE INTERSTATE COMMERCE ACT. SECTION 14 FURTHER PROVIDED THAT "ANY AMOUNT REMAINING IN THE FUND WHEN THIS TITLE CEASES TO HAVE EFFECT SHALL BE RETURNED BY THE SECRETARY OF THE TREASURY TO THE CARRIERS IN PROPORTION TO THEIR CONTRIBUTIONS.'.

A-77888, JULY 9, 1936, 16 COMP. GEN. 15

FEDERAL COORDINATOR OF TRANSPORTATION - FUNDS COLLECTED FROM CARRIERS - AVAILABILITY BEYOND STATUTORY PERIOD FUNDS OBTAINED BY ASSESSMENTS ON CARRIERS, SPECIFICALLY APPROPRIATED BY SECTION 14 OF THE EMERGENCY RAILROAD TRANSPORTATION ACT, 1933, 48 STAT. 216, FOR EXPENDITURE BY THE FEDERAL COORDINATOR OF TRANSPORTATION, ANY UNEXPENDED BALANCE TO BE RETURNED TO THE CARRIERS UPON EXPIRATION OF THE STATUTORY PERIOD PROVIDED, ARE NOT AVAILABLE FOR EXPENDITURE BEYOND SAID PERIOD UNLESS PROPERLY OBLIGATED PRIOR THERETO, NOTWITHSTANDING THE CONSENT OF THE CARRIERS TO THE CONTINUED USE OF THE FUNDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL COORDINATOR OF TRANSPORTATION, JULY 9, 1936:

REFERENCE IS HAD TO YOUR LETTER OF JULY 3, 1936, AS FOLLOWS:

THE PURPOSE OF THIS LETTER IS TO ASK FOR A RULING WITH REFERENCE TO THE AVAILABILITY OF CERTAIN FUNDS NOW IN THE GOVERNMENT TREASURY TO PAY THE COSTS OF WINDING UP THE OFFICE OF THE FEDERAL COORDINATOR OF TRANSPORTATION WHICH LAPSED ON JUNE 16.

BY SECTION 12 (14) OF TITLE I OF THE EMERGENCY RAILROAD TRANSPORTATION ACT, 1933 (48 STAT. L. 211, 215 (216) (, IT WAS PROVIDED THAT THE EXPENSES OF THE FEDERAL COORDINATOR OF TRANSPORTATION, EXCEPT SO FAR AS THEY WERE BORNE BY THE INTERSTATE COMMERCE COMMISSION, SHOULD BE "ALLOWED AND PAID, ON THE PRESENTATION OF ITEMIZED VOUCHERS THEREFOR APPROVED BY THE COORDINATOR, OUT OF A FUND OBTAINED FROM ASSESSMENTS ON THE CARRIERS.' THE TERM "CARRIER" WAS DEFINED AS "ANY COMMON CARRIER BY RAILROAD SUBJECT TO THE PROVISIONS OF THE INTERSTATE COMMERCE ACT, AS AMENDED, INCLUDING ANY RECEIVER OR TRUSTEE THEREOF.' SECTION 14 FURTHER PROVIDED THAT "ANY AMOUNT REMAINING IN THE FUND WHEN THIS TITLE CEASES TO HAVE EFFECT SHALL BE RETURNED BY THE SECRETARY OF THE TREASURY TO THE CARRIERS IN PROPORTION TO THEIR CONTRIBUTIONS.'

SUBJECT TO THE CONSIDERATIONS HEREINAFTER DISCUSSED, TITLE I CEASED TO HAVE EFFECT MIDNIGHT JUNE 16, 1936. AT THAT TIME AN AMOUNT NOT EXCEEDING $12,000 HAD BEEN DEFINITELY OBLIGATED WITH THE GOVERNMENT PRINTING OFFICE FOR THE PRINTING OF CERTAIN REPORTS OF THE COORDINATOR, AND PART OF THE COPY FOR SUCH REPORTS WAS IN THE HANDS OF THE GOVERNMENT PRINTING OFFICE. THE ACTUAL COST OF PRINTING IS LIKELY TO FALL CONSIDERABLY SHORT OF THIS $12,000. ASSUMING THAT IT IS ALL SO USED, HOWEVER, THE UNEXPENDED BALANCE RETURNABLE TO THE CARRIERS IS ESTIMATED AS AT LEAST $20,000, AND PROBABLY SOMEWHAT MORE. CERTAIN UNAUDITED ITEMS MAKE IT IMPOSSIBLE TO STATE THE EXACT AMOUNT.

UNTIL A SHORT TIME BEFORE THE ADJOURNMENT OF CONGRESS, IT SEEMED POSSIBLE THAT TITLE I OF THE EMERGENCY ACT WOULD BE EXTENDED FOR ANOTHER YEAR. WHEN IT BECAME CLEAR THAT THIS WOULD NOT BE DONE, A JOINT RESOLUTION WAS PROPOSED ENABLING THE COORDINATOR TO CONTINUE FOR 90 DAYS WITH THE FUNDS AT HAND FOR THE PURPOSE OF COMPLETING AND PUBLISHING REPORTS WHICH ON JUNE 16 WERE IN PROCESS OF COMPLETION. IT PROVED IMPOSSIBLE, HOWEVER, IN EITHER THE HOUSE OR THE SENATE, TO BRING THIS JOINT RESOLUTION UP FOR VOTE, SO NO ACTION WAS TAKEN.

ON JUNE 16 CERTAIN IMPORTANT REPORTS UNDERTAKEN BY THE COORDINATOR IN ACCORDANCE WITH THE DUTY IMPOSED UPON HIM BY THE ACT WERE PENDING AND INCOMPLETE. THE REPORTS IN QUESTION HAVE TO DO PRINCIPALLY WITH THE PUBLIC AID GIVEN TO THE VARIOUS FORMS OF TRANSPORTATION--- RAILROADS, WATER LINES, HIGHWAY CARRIERS, AND AIR CARRIERS, AND WITH LABOR STANDARDS OF THESE TRANSPORTATION AGENCIES OTHER THAN THE RAILROADS. THE INVESTIGATIONS INTO THESE MATTERS WERE INSTITUTED BECAUSE OF THE CLAIM, SO OFTEN MADE BY THE RAILROADS, THAT THEY ARE SUBJECTED TO UNFAIR COMPETITION BECAUSE OF THE PUBLIC AID GIVEN, DIRECTLY OR INDIRECTLY, TO THEIR COMPETITORS AND BECAUSE OF THE LOW LABOR STANDARDS MAINTAINED BY THESE COMPETITORS. THERE HAS BEEN SO MUCH CONTROVERSY OVER THE FACT THAT IT SEEMED DESIRABLE TO GO TO THE BOTTOM OF THEM, IF POSSIBLE. THREE YEARS HAVE BEEN SPENT ON THESE STUDIES, WHICH PROVED TO BE OF GREAT MAGNITUDE AND DIFFICULTY. AS A CHECK, THE PLAN HAS BEEN FOLLOWED OF SENDING OUT COPIES OF THE REPORTS IN TENTATIVE FORM TO THOSE KNOWN TO HAVE GIVEN ATTENTION TO THESE MATTERS ON ONE SIDE OR ANOTHER, FOR COMMENT AND CRITICISM. THIS ENDEAVOR TO LEAVE NO STONE UNTURNED IN THE PURSUIT OF ACCURACY HAS BEEN ONE MAIN REASON FOR THE DELAY IN COMPLETING THE REPORTS. AN ENORMOUS AMOUNT OF DATA HAS BEEN ACCUMULATED AND THE REPORTS ARE NOW NEAR TO FINAL FORM. IT WOULD BE A CALAMITY IF THEY COULD NOT BE PUBLISHED. EVERY EFFORT WAS MADE TO COMPLETE THE WORK IN HAND BY JUNE 16, AND THE GREATER PART OF IT WAS COMPLETED BY CONTINUAL AND UNCOMPENSATED OVERTIME WORK ON THE PART OF THE COORDINATOR AND HIS STAFF FOR A LONG PERIOD OF TIME. IT PROVED IMPOSSIBLE, HOWEVER, TO COMPLETE ALL OF THE WORK, BECAUSE OF ITS MAGNITUDE. SINCE JUNE 16, HOWEVER, WORK ON THE INCOMPLETED REPORTS HAS GONE ON, THANKS TO THE LOYALTY OF A STAFF WHICH IS WILLING TO TAKE THE CHANCE THAT IT MAY RECEIVE NO PAY.

THERE IS INVOLVED IN ADDITION TO THE COST OF THE WORK REQUIRED IN COMPLETING AND PRINTING THE REPORTS WHICH WERE IN PROCESS OF COMPLETION ON JUNE 16, THE COST OF CLOSING UP BRANCH OFFICES MAINTAINED BY THE COORDINATOR IN NEW YORK, N.Y., CHICAGO, ILL., AND ATLANTA, GA., THE LEASES OF THE OFFICE SPACE FOR WHICH WERE CANCELLED ON JUNE 16. THEY CONTAIN VALUABLE FURNITURE AND RECORDS WHICH MUST BE MOVED TO WASHINGTON. THE FUNDS UNEXPENDED WILL BE SUFFICIENT TO TAKE CARE OF THIS EXPENSE AND ALSO OF THE EXPENSE OF COMPLETING AND PRINTING THE REPORTS WHICH WERE IN PROCESS OF COMPLETION ON JUNE 16, 1936.

ON JUNE 26, 1936, THE BOARD OF DIRECTORS OF THE ASSOCIATION OF AMERICAN RAILROADS UNANIMOUSLY ADOPTED A RESOLUTION, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT A. IT STATES THAT IT IS THE SENSE OF THE BOARD OF DIRECTORS THAT THE UNEXPENDED FUNDS "CAN WITH BENEFIT TO THE PUBLIC INTEREST BE USED TO DEFRAY THE EXPENSES OF COMPLETING" THE STUDIES IN QUESTION. IT RECOMMENDS TO ALL MEMBERS OF THE ASSOCIATION THAT EACH "WAIVE ITS RIGHT TO ANY REFUND OF ITS PROPORTION OF THE SAID UNEXPENDED FUNDS" IN THE TREASURY OF THE UNITED STATES, ASSESSED TO PAY THE EXPENSES OF THE COORDINATOR, AND TAKE SUCH FURTHER STEPS "AS MAY BE NECESSARY TO PERMIT THE FORMER COORDINATOR TO USE SUCH MEMBER'S PROPORTION OF THE SAID UNEXPENDED FUND FOR THE PURPOSE OF COMPLETING HIS UNFINISHED STUDIES AND MAKING REPORTS THEREON.' THE COORDINATOR HAS BEEN GIVEN ASSURANCE THAT WHATEVER MAY BE NECESSARY IN THIS RESPECT WILL BE DONE, AND HE HAS BEEN GIVEN ASSURANCE ALSO BY THE PRESIDENT OF THE AMERICAN SHORT LINE RAILROAD ASSOCIATION, WHOSE MEMBERS ARE NOT GENERALLY MEMBERS OF THE ASSOCIATION OF AMERICAN RAILROADS, THAT THERE IS EVERY PROBABILITY THAT SIMILAR ACTION WILL BE TAKEN BY THE MEMBERS OF HIS ASSOCIATION. THE SHORT LINES CONTRIBUTED ABOUT 5 PERCENT OF THE TOTAL. WHILE THE MATTER HAS NOT BEEN TAKEN UP WITH THE AMERICAN TRANSIT ASSOCIATION, SOME OF WHOSE MEMBERS (ELECTRIC RAILWAYS) WERE ASSESSED IN VERY MINOR AMOUNTS, NO DIFFICULTY IS ANTICIPATED IN SECURING SIMILAR ACTION FROM THEM.

THIS ACTION, OR CONTEMPLATED ACTION, ON THE PART OF THE RAILROADS IS IMPORTANT AS INDICATING THAT NO ONE CAN POSSIBLY BE HURT IF THE UNEXPENDED FUNDS ARE USED TO FINISH THIS WORK. THOSE WHO MIGHT OTHERWISE HAVE A CLAIM TO THE FUNDS DO NOT WANT THEM, BUT ON THE CONTRARY WISH THEM USED TO FINISH THE WORK. THEY AGREE, AND ALL MUST AGREE, THAT THE PUBLIC INTEREST WILL BE SERVED IF THEY CAN BE USED IN THIS WAY. THE CASE IS PLAINLY ONE WHICH CALLS FOR THE EXERCISE OF SOUND JUDGMENT AND COMMON SENSE, WITH MINIMUM REGARD FOR TECHNICALITIES.

MOREOVER, THERE IS NO DANGER OF AN UNDESIRABLE PRECEDENT. THE SITUATION IS, I UNDERSTAND, WHOLLY NOVEL. NOTHING LIKE IT HAS ARISEN BEFORE, OR IS AT ALL LIKELY TO ARISE AGAIN. PRINCIPLES SHOULD BE FOLLOWED LIKE THOSE IN EQUITY, AS DISTINGUISHED FROM LAW, IN ORDER THAT THERE MAY BE DONE WHAT CLEARLY OUGHT TO BE DONE.

THE ACT DID NOT INTEND THAT MONEYS WHICH WERE NECESSARY TO CARRY OUT ITS PURPOSES SHOULD BE RETURNED TO THE CARRIERS. WHILE THE ACT CEASED TO HAVE EFFECT ON JUNE 16, 1936, IT IS IMPOSSIBLE TO BRING TO AN ABRUPT CLOSE WORK OF THE EXTENT AND MAGNITUDE WHICH HAD BEEN UNDERTAKEN. CLEARLY NO NEW WORK COULD BE BEGUN AFTER JUNE 16, NOR ANY WORK BEYOND WHAT WAS NECESSARY TO WIND UP THE AFFAIRS AND BUSINESS OF THE COORDINATOR IN SHORT ORDER. BUT IT WAS WITHIN THE REASONABLE CONTEMPLATION OF THE ACT THAT WHAT WAS NECESSARY FOR THE LATTER PURPOSE SHOULD BE EXPENDED.

IT IS A SOUND CONSTRUCTION OF THE ACT THAT THE FUNDS ON HAND ON JUNE 16 WERE OBLIGATED FOR THE PURPOSE OF PROTECTING THE RECORDS AND OTHER PROPERTY OF THE COORDINATOR'S OFFICE AND TO COMPLETE WORK WHICH HAD ALREADY GONE SO FAR THAT WASTE, IMPROVIDENCE, AND SACRIFICE OF THE PUBLIC INTEREST WOULD PLAINLY RESULT, IF IT WERE NOT COMPLETED. IT IS SUBMITTED THAT NO OTHER CONCLUSION CAN REASONABLY BE REACHED, NOT ONLY WITH RESPECT TO THE RECORDS AND OTHER PROPERTY, BUT ALSO WITH RESPECT TO IMPORTANT REPORTS WHICH HAD FOR A LONG PERIOD OF TIME BEEN IN PROCESS OF PREPARATION AND WHICH, ON JUNE 16, WERE AT THE VERY STAGE OF COMPLETION AND FINAL PUBLICATION.

I WOULD APPRECIATE YOUR ADVICE WITH REFERENCE TO THIS MATTER AS SOON AS POSSIBLE, AS EARLY ACTION IS DESIRABLE IN ORDER TO PREVENT THE COMPLETE DISINTEGRATION OF MY STAFF, AND BECAUSE ACTION IS NECESSARY FOR THE PROPER PROTECTION AND PRESERVATION OF THE VALUABLE RECORDS AND OTHER PROPERTY WHICH ARE IN THE BRANCH OFFICES OCCUPYING SPACE NOT NOW UNDER LEASE.

SECTION 17 OF THE ACT OF JUNE 16, 1933, 48 STAT. 217, PROVIDES:

THIS TITLE SHALL CEASE TO HAVE EFFECT AT THE END OF ONE YEAR AFTER THE EFFECTIVE DATE, UNLESS EXTENDED BY A PROCLAMATION OF THE PRESIDENT FOR ONE YEAR OR ANY PART THEREOF, BUT ORDERS OF THE COORDINATOR OR OF THE COMMISSION MADE THEREUNDER SHALL CONTINUE IN EFFECT UNTIL VACATED BY THE COMMISSION OR SET ASIDE BY OTHER LAWFUL AUTHORITY, BUT NOTWITHSTANDING THE PROVISIONS OF SECTION 10 NO SUCH ORDER SHALL OPERATE TO RELIEVE ANY CARRIER FROM THE EFFECT OF ANY STATE LAW OR OF ANY ORDER OF A STATE COMMISSION ENACTED OR MADE AFTER THIS TITLE CEASES TO HAVE EFFECT.

TITLE 1 OF THE ACT WAS CONTINUED FOR AN ADDITIONAL YEAR BY EXECUTIVE ORDER 2081 OF MAY 2, 1934, AND "UNTIL JUNE 17, 1936," BY JOINT RESOLUTION OF JUNE 14, 1935, 49 STAT. 376. THE FUND OBTAINED FROM ASSESSMENTS ON THE CARRIERS IS SPECIFICALLY APPROPRIATED BY SECTION 14 OF THE EMERGENCY TRANSPORTATION ACT FOR THE PURPOSE OF TITLE 1 OF THAT ACT AND SAID SECTION ALSO DIRECTS THAT ANY SUM REMAINING IN THE FUND WHEN THE TITLE CEASES TO HAVE EFFECT BE RETURNED TO THE CARRIER.

TO THE EXTENT THAT ORDERS WERE PLACED WITH THE PUBLIC PRINTER BEFORE THE EXPIRATION OF TITLE 1 OF THE ACT THE FUND MAY BE HELD TO HAVE BEEN OBLIGATED THEREBY, BUT IT CANNOT BE HELD THAT THE UNEXPENDED BALANCE IN THIS FUND IN EXCESS OF THAT OBLIGATED TO THE PUBLIC PRINTER OR OTHERWISE BY PROPER ACTION PRIOR TO JUNE 17, 1936, HAS BEEN OR MAY BE OBLIGATED FOR PAYMENT FOR SUCH REPORTS AS ARE NOT YET IN THE HANDS OF THE PRINTER OR FOR ANY OTHER EXPENSES OF THE OFFICE OF THE COORDINATOR OF TRANSPORTATION ON AND AFTER JUNE 17, 1936. THE STATUTE DIRECTS THE DISPOSITION OF THE UNEXPENDED FUNDS SO COLLECTED AND THIS OFFICE IS WITHOUT AUTHORITY OF LAW TO WAIVE THE STATUTORY REQUIREMENT OR TO AUTHORIZE ANY OTHER DISPOSITION OF THE FUNDS. IT IS TO BE REGRETTED THAT PROPER STEPS WERE NOT TAKEN, IN ANTICIPATION OF THE EXPIRATION OF YOUR OFFICE, TO MAKE PROPER DISPOSITION OF THE RECORDS, FURNITURE, ETC., AS THERE ARE NOW NO FUNDS AVAILABLE FOR THE EXPENSES INCIDENT TO SUCH DISPOSITION. THE CONSENT OF ALL OF THE CARRIERS TO THE CONTINUED USE OF THE FUNDS COLLECTED IS INEFFECTIVE TO AUTHORIZE THE CONTINUANCE OF YOUR OFFICE AS A FEDERAL AGENCY. 14 COMP. GEN. 490.

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