A-79092, SEPTEMBER 16, 1936, 16 COMP. GEN. 252

A-79092: Sep 16, 1936

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IS UNAUTHORIZED. THE TRAVEL WAS PERFORMED IN PURSUANCE OF AUTHORIZATION CONTAINED IN LETTER DATED OCTOBER 29. AS FOLLOWS: YOU ARE HEREBY AUTHORIZED TO PROCEED ON OR ABOUT OCTOBER 29. IT IS ESTIMATED THAT THIS TRIP WILL REQUIRE NOT TO EXCEED SIX (6) DAYS AT $5.00 PER DIEM. IT IS STATED: AT THAT TIME (OCTOBER 1934) THE SECOND EXPORT-IMPORT BANK OF WASHINGTON. WAS ACTIVELY ENGAGED IN THE BUSINESS OF GRANTING FINANCIAL ASSISTANCE TO OUR NATIONALS ENGAGED IN FOREIGN TRADE. OUR SMALL STAFF WAS LITERALLY SWAMPED WITH INQUIRIES AS TO THE FACILITIES AVAILABLE. THE NATIONAL FOREIGN TRADE COUNCIL (A TRADE ASSOCIATION FOR THOSE ENGAGED IN THE EXPORT AND IMPORT TRADE) WAS INDICATING TO THE BANK OFFICIALS THE OPPORTUNITIES THE BANK WOULD HAVE IF IT OPENED TEMPORARY OFFICES IN NEW YORK AT THE TIME THE FOREIGN TRADE COMMUNITY WOULD BE IN CONVENTION AT THE HOTEL COMMODORE.

A-79092, SEPTEMBER 16, 1936, 16 COMP. GEN. 252

TRAVELING EXPENSES - CONVENTIONS - EMPLOYEES OF SECOND EXPORT-IMPORT BANK OF WASHINGTON THE ESTABLISHMENT OF TEMPORARY OFFICES BY THE SECOND EXPORT-IMPORT BANK OF WASHINGTON IN QUARTERS PROVIDED BY THE NATIONAL FOREIGN TRADE COUNCIL, ASSEMBLED IN CONVENTION, AND THEIR OCCUPATION BY OFFICERS AND EMPLOYEES PRIMARILY FOR CONSULTATION WITH MEMBERS OF THE COUNCIL IN THE ADVANCEMENT OF ITS WORK, CONSTITUTES ATTENDANCE AT THE CONVENTION WITHIN THE MEANING OF THE STATUTORY PROHIBITION OF THE ACT OF JUNE 26, 1912, 37 STAT. 184, AND NO SPECIFIC AUTHORIZATION FOR ATTENDANCE AT MEETINGS OR CONVENTIONS HAVING BEEN GIVEN AS TO FUNDS ALLOTTED TO THE BANK, PAYMENT OF TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE, IS UNAUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, EXPORT-IMPORT BANK OF WASHINGTON, SEPTEMBER 16, 1936:

THERE HAS BEEN RECEIVED, BY YOUR ENDORSEMENT, LETTER DATED JULY 24, 1936, OF E. W. BURGESS, EXAMINER, REQUESTING RECONSIDERATION OF THE DISALLOWANCE OF CREDIT ON VOUCHER NO. 44 OF THE NOVEMBER 1934 ACCOUNT OF D. B. GRIFFIN, DISBURSING OFFICER, SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C., FOR AN ITEM OF $27.60 PAID TO HIM AS PER DIEM IN LIEU OF SUBSISTENCE AND TRAVELING EXPENSES IN CONNECTION WITH A TRIP FROM WASHINGTON, D.C., TO NEW YORK CITY AND RETURN, DURING THE PERIOD OCTOBER 30 TO NOVEMBER 3, 1934.

THE TRAVEL WAS PERFORMED IN PURSUANCE OF AUTHORIZATION CONTAINED IN LETTER DATED OCTOBER 29, 1934, OF THE PRESIDENT, SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C., AS FOLLOWS:

YOU ARE HEREBY AUTHORIZED TO PROCEED ON OR ABOUT OCTOBER 29, 1934 FROM WASHINGTON, D.C., TO NEW YORK, N.Y., ON OFFICIAL BUSINESS IN CONNECTION WITH THE SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C., AND IN ATTENDANCE AT THE CONVENTION OF THE NATIONAL FOREIGN TRADE COUNCIL, BY THE SHORTEST AND MOST USUALLY TRAVELLED ROUTE AND VIA PULLMAN, AND ON COMPLETION OF SUCH BUSINESS TO RETURN TO YOUR OFFICIAL STATION IN WASHINGTON.

IT IS ESTIMATED THAT THIS TRIP WILL REQUIRE NOT TO EXCEED SIX (6) DAYS AT $5.00 PER DIEM, PLUS TRANSPORTATION REQUESTS IN THE AMOUNT OF $23.78 THE TOTAL ESTIMATED EXPENSES BEING $60.00.

IN SUPPORT OF THE REQUEST FOR REVIEW, IT IS STATED:

AT THAT TIME (OCTOBER 1934) THE SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C. (NOW THE EXPORT-IMPORT BANK OF WASHINGTON), WAS ACTIVELY ENGAGED IN THE BUSINESS OF GRANTING FINANCIAL ASSISTANCE TO OUR NATIONALS ENGAGED IN FOREIGN TRADE. THE BANK AT THAT TIME HAD ONLY BEEN IN ACTIVE OPERATION FOR ABOUT THREE MONTHS, AND OUR SMALL STAFF WAS LITERALLY SWAMPED WITH INQUIRIES AS TO THE FACILITIES AVAILABLE, AND ALSO WITH NUMEROUS APPLICATIONS ASKING FOR ACTUAL CREDIT ASSISTANCE. IN ADDITION, THE NATIONAL FOREIGN TRADE COUNCIL (A TRADE ASSOCIATION FOR THOSE ENGAGED IN THE EXPORT AND IMPORT TRADE) WAS INDICATING TO THE BANK OFFICIALS THE OPPORTUNITIES THE BANK WOULD HAVE IF IT OPENED TEMPORARY OFFICES IN NEW YORK AT THE TIME THE FOREIGN TRADE COMMUNITY WOULD BE IN CONVENTION AT THE HOTEL COMMODORE. IN THIS MANNER A GREAT MANY OF THE INQUIRIES COULD BE ANSWERED IN PERSON, AND PRACTICALLY ALL OF THE APPLICATIONS FOR CREDIT COULD BE HANDLED DIRECTLY WITH THE APPLICANTS AND A CONSULTATION WITH NEW YORK BANKERS DURING THE CONVENTION PERIOD. THIS IDEA WAS ENCOURAGED BY LEADING BANKERS AND MANUFACTURERS INTERESTED IN A REVIVAL OF OUR FOREIGN TRADE. THE RESULT WAS THAT THE TRUSTEES OF THE BANK AUTHORIZED THE OPENING OF TEMPORARY OFFICES IN NEW YORK CONVENIENT TO THOSE IN ATTENDANCE AT THE CONVENTION.

ACCORDINGLY, CERTAIN OFFICERS AND EMPLOYEES OF THE BANK WERE ORDERED TO NEW YORK TO STAFF THE TEMPORARY OFFICES PROVIDED FOR THE BANK BY THE NATIONAL FOREIGN TRADE COUNCIL IN THE HOTEL COMMODORE. I WAS ONE OF THOSE SO ORDERED TO NEW YORK FOR A PERIOD NOT TO EXCEED SIX DAYS. I DID NOT ATTEND ANY SESSIONS OF THE CONVENTION. MY ENTIRE TIME, BETWEEN 9:00 A.M. AND 6:00 P.M., WAS SPENT IN THE TEMPORARY OFFICES OF THE BANK AND ON OFFICIAL GOVERNMENT BUSINESS.

THE TRAVEL AUTHORIZATION DATED OCTOBER 29, 1934, DIRECTED ME TO PROCEED TO NEW YORK ON OFFICIAL GOVERNMENT BUSINESS FOR THE BANK. IN MENTIONING THE CONVENTION OF THE NATIONAL FOREIGN TRADE COUNCIL IN SUCH AUTHORIZATION IT WAS INTENDED ONLY TO DESIGNATE THAT THE BANK'S TEMPORARY OFFICES WOULD BE LOCATED THERE. IT WAS NOT INTENDED TO GIVE ANY AUTHORIZATION TO ATTEND ANY OF THE SESSIONS OF THE CONVENTION; NOR WAS THE AUTHORIZATION APPLIED IN THAT MANNER. DESPITE WHAT MIGHT BE TERMED A POORLY WORDED TRAVEL AUTHORIZATION, THE ENTIRE TIME WAS SPENT ON OFFICIAL GOVERNMENT BUSINESS.

I AM INFORMED THAT THE TRUSTEES AND OFFICIALS OF THE BANK ACTED FULLY WITHIN THEIR POWERS IN OPENING TEMPORARY OFFICES IN NEW YORK AND IN DIRECTING ME, AMONG OTHERS, TO CARRY ON THE BANK'S BUSINESS FOR SUCH TEMPORARY PERIOD.

I RESPECTFULLY SUBMIT THAT THE SUBJECT VOUCHER SHOULD NOT BE DISALLOWED.

THE ACTION OF THIS OFFICE WAS BASED UPON SECTION 8 OF THE ACT OF JUNE 26, 1912, 37 STAT. 184, WHICH PROVIDES:

NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED * * * FOR EXPENSES OF ATTENDANCE OF ANY PERSON AT ANY MEETING OR CONVENTION OF MEMBERS OF ANY SOCIETY OR ASSOCIATION, UNLESS SUCH * * * EXPENSES ARE AUTHORIZED TO BE PAID BY SPECIFIC APPROPRIATIONS FOR SUCH PURPOSES OR ARE PROVIDED FOR IN EXPRESS TERMS IN SOME GENERAL APPROPRIATION.

EXECUTIVE ORDER NO. 6638, DATED MARCH 9, 1934, UNDER WHICH THE SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C., WAS CREATED, DESIGNATED SUCH CORPORATION A GOVERNMENT AGENCY WITHIN THE PURVIEW OF THE NATIONAL INDUSTRIAL RECOVERY ACT, AND SET ASIDE FOR THE PURPOSE OF SUBSCRIBING FOR THE COMMON CAPITAL STOCK OF THE CORPORATION THE SUM OF $250,000 OUT OF THE APPROPRIATION AUTHORIZED BY SECTION 220 OF SAID ACT. ALL MONEYS OF THE CORPORATION ARE GOVERNMENT MONEYS, AND THEREFORE, DISBURSEMENTS THEREFROM ARE SUBJECT TO THE SAME STATUTORY RESTRICTIONS AND THE SAME ACCOUNTABILITY AS ATTEND EXPENDITURES OF PUBLIC MONEYS BY OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT.

IN DECISION OF FEBRUARY 12, 1934, A-51876, THE ADMINISTRATOR, NATIONAL RECOVERY ADMINISTRATION, WAS ADVISED AS FOLLOWS:

WHILE THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, SEE SECTION 201 (B), SPECIFICALLY AUTHORIZES CERTAIN EXPENDITURES OTHERWISE PROHIBITED BY LAW--- SUCH AS FOR EMPLOYMENTS WITHOUT REGARD TO THE CIVIL SERVICE LAWS OR THE CLASSIFICATION ACT, FOR LAW BOOKS AND BOOKS OF REFERENCE, AND FOR RENT IN THE DISTRICT OF COLUMBIA, THIS OFFICE HAS BEEN UNABLE TO FIND IN THE SAID ACT, OR THE ACT OF THE SAME DATE MAKING APPROPRIATION TO CARRY INTO EFFECT ITS PROVISIONS, ANYTHING WHICH COULD BE CONSTRUED AS REPEALING, SUPERSEDING, OR OTHERWISE RENDERING INOPERATIVE THE PROVISIONS OF SAID SECTION 8 OF THE ACT OF JUNE 26, 1912. SEE, IN THIS CONNECTION, WASHINGTON V. MILLER, 235 U.S. 422; RODGERS V. UNITED STATES, 185 U.S. 83, AND EX PARTE CROWE DOG, 109 U.S. 556.

WHILE THE APPROPRIATION WAS MADE IN BROAD TERMS FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND FOR EACH AND EVERY OBJECT THEREOF, TO BE EXPENDED IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT, IT IS NOT TO BE PRESUMED IT WAS INTENDED TO BE USED FOR EXPENDITURES SPECIFICALLY PROHIBITED BY LAW.

THE ACT OF JUNE 26, 1912, SUPRA, VESTS NO DISCRETION IN EITHER ADMINISTRATIVE OR ACCOUNTING OFFICERS AND, NECESSARILY, MUST BE GIVEN EFFECT EVEN THOUGH IT MAY NOT BE CONSIDERED CONDUCIVE OF THE BEST RESULTS.

THE TEMPORARY OFFICES OCCUPIED BY THE SECOND EXPORT-IMPORT BANK OF WASHINGTON, D.C., IN NEW YORK, WERE PROVIDED BY THE NATIONAL FOREIGN TRADE COUNCIL IN THE HOTEL COMMODORE WHERE ITS CONVENTION WAS BEING HELD, AND IT IS APPARENT FROM THE EXPLANATION SUBMITTED BY EXAMINER BURGESS THAT THEY WERE ESTABLISHED FOR THE BENEFIT AND CONVENIENCE OF THE ASSOCIATION AND THAT THE ATTENDANCE THERE OF OFFICERS AND EMPLOYEES OF THE BANK WAS PRIMARILY FOR THE PURPOSE OF CONSULTATION WITH MEMBERS OF THE COUNCIL IN THE ADVANCEMENT OF ITS WORK. THIS IN EFFECT CONSTITUTED ATTENDANCE OF SUCH OFFICERS AND EMPLOYEES AT THE CONVENTION. THE FACT THAT INCIDENTALLY THE WORK OF THE BANK MAY HAVE BEEN PROMOTED DOES NOT OVERCOME SUCH STATUTORY INHIBITION. SEE 5 COMP. GEN. 599, ID. 746, A-58887, JANUARY 3, 1935, AND DECISIONS THEREIN CITED.

SINCE THERE APPEARS IN THE NATIONAL INDUSTRIAL RECOVERY ACT, SUPRA, AND THE ACT OF THE SAME DATE MAKING APPROPRIATION TO CARRY INTO EFFECT ITS PROVISIONS, SPECIFIC AUTHORIZATION FOR ATTENDANCE AT MEETINGS OR CONVENTIONS, THE USE OF THE FUNDS ALLOTTED TO THE BANK TO PAY EXPENSES INCIDENT TO THE TRAVEL IN QUESTION WAS IN CONTRAVENTION OF THE ACT OF JUNE 26, 1912, SUPRA. ACCORDINGLY, DISALLOWANCE OF CREDIT FOR THE ITEM OF $27.60 MUST BE, AND IS, SUSTAINED.

WHAT HAS BEEN SAID WITH RESPECT TO THE IRREGULARITY OF REIMBURSEMENT OF EXPENSES APPLIES AS WELL TO THE COST OF TRANSPORTATION AND PULLMAN ACCOMMODATIONS FURNISHED ON TRANSPORTATION REQUESTS, AND THERE SHOULD BE REFUNDED, ALSO, FOR DEPOSIT IN THE TREASURY OF THE UNITED STATES THE SUM OF $16.49 FOR WHICH PAYMENT HAS BEEN MADE TO THE CARRIERS BY THE GOVERNMENT.