A-8336, MARCH 18, 1925, 4 COMP. GEN. 781

A-8336: Mar 18, 1925

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PURCHASE OF MANUSCRIPTS MANUSCRIPTS ALREADY PREPARED AND IN EXISTENCE WHEN THE AGREEMENT TO PURCHASE IS MADE. WHICH HAVE NOT BEEN PREPARED WITH ANY UNDERSTANDING. SAID APPROPRIATION IS NOT AVAILABLE FOR THE HIRE OF A PERSON NOT OTHERWISE IN THE GOVERNMENT SERVICE TO PREPARE A MANUSCRIPT. 1925: I HAVE YOUR REQUEST OF MARCH 3. FOR DECISION OF A QUESTION PRESENTED AS FOLLOWS: MAY THE APPROPRIATIONS OF THE FEDERAL BOARD FOR VOCATIONAL EDUCATION BE EXPENDED FOR THE PURCHASE OF MANUSCRIPTS ON VOCATIONAL EDUCATION SUBJECTS WHICH HAVE BEEN PREPARED AND SUBMITTED BY PERSONS NOT IN THE EMPLOY OF THE GOVERNMENT WITHOUT CONTRACT HAVING BEEN MADE THEREFOR? FROM TIME TO TIME EXPERTS IN THE VARIOUS FIELDS OF VOCATIONAL EDUCATION THROUGHOUT THE COUNTRY PREPARE MATERIAL WHICH ON SUBMISSION TO THE BOARD IS FOUND TO BE OF A TYPE WORTHY OF PUBLICATION AND DISTRIBUTION BY THE GOVERNMENT IN THE PROMOTION OF VOCATIONAL EDUCATION.

A-8336, MARCH 18, 1925, 4 COMP. GEN. 781

PURCHASE OF MANUSCRIPTS MANUSCRIPTS ALREADY PREPARED AND IN EXISTENCE WHEN THE AGREEMENT TO PURCHASE IS MADE, AND WHICH HAVE NOT BEEN PREPARED WITH ANY UNDERSTANDING, PROMISE, OR SUGGESTION THAT SUCH PURCHASE WOULD BE MADE, MAY BE PURCHASED BY THE FEDERAL BOARD FOR VOCATIONAL EDUCATION FROM ITS APPROPRIATION FOR SALARIES AND EXPENSES, BUT SAID APPROPRIATION IS NOT AVAILABLE FOR THE HIRE OF A PERSON NOT OTHERWISE IN THE GOVERNMENT SERVICE TO PREPARE A MANUSCRIPT.

COMPTROLLER GENERAL MCCARL TO THE FEDERAL BOARD FOR VOCATIONAL EDUCATION, MARCH 18, 1925:

I HAVE YOUR REQUEST OF MARCH 3, 1925, FOR DECISION OF A QUESTION PRESENTED AS FOLLOWS:

MAY THE APPROPRIATIONS OF THE FEDERAL BOARD FOR VOCATIONAL EDUCATION BE EXPENDED FOR THE PURCHASE OF MANUSCRIPTS ON VOCATIONAL EDUCATION SUBJECTS WHICH HAVE BEEN PREPARED AND SUBMITTED BY PERSONS NOT IN THE EMPLOY OF THE GOVERNMENT WITHOUT CONTRACT HAVING BEEN MADE THEREFOR?

FROM TIME TO TIME EXPERTS IN THE VARIOUS FIELDS OF VOCATIONAL EDUCATION THROUGHOUT THE COUNTRY PREPARE MATERIAL WHICH ON SUBMISSION TO THE BOARD IS FOUND TO BE OF A TYPE WORTHY OF PUBLICATION AND DISTRIBUTION BY THE GOVERNMENT IN THE PROMOTION OF VOCATIONAL EDUCATION, UNDER THE ACT OF FEBRUARY 23, 1917. SINCE THE INCEPTION OF THE BOARD NO MANUSCRIPT HAS BEEN PURCHASED OR CONTRACTED FOR AT A PRICE GREATER THAN THE NOMINAL AMOUNT NECESSARY TO REIMBURSE THE AUTHOR FOR EXPENDITURES FOR CLERICAL AND EDITORIAL HELP. THE BOARD HAS PURCHASED SUCH MANUSCRIPT IN THE PAST AND HAS ALSO CONTRACTED FOR THE PREPARATION OF SUCH MANUSCRIPT.

SINCE YOUR RECENT DECISION, HOWEVER, AFFECTING CONTRACTS FOR PERSONAL SERVICES IN THE PREPARATION OF MANUSCRIPT, THE BOARD DOES NOT WISH TO ATTEMPT TO MAKE A PURCHASE WHICH IN ANY WAY WOULD APPEAR TO BE AN EVASION OF YOUR RECENT DECISION. INASMUCH AS WE ARE DESIROUS AT THE PRESENT TIME OF PURCHASING TWO MANUSCRIPTS THAT HAVE BEEN SUBMITTED--- ONE ON VOCATIONAL AGRICULTURAL EDUCATION AND ONE ON VOCATIONAL TRADE AND INDUSTRIAL EDUCATION--- THE QUESTION IS SUBMITTED FOR YOUR DECISION, WITH THE REQUEST THAT WE BE ADVISED AS EARLY AS POSSIBLE.

THE OBJECTIONS TO THE PURCHASE OF MANUSCRIPTS ARISE FROM THE PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, WHICH PROVIDES:

THAT NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL AFTER THE FIRST DAY OF OCTOBER NEXT BE EMPLOYED IN ANY OF THE EXECUTIVE DEPARTMENTS, OR SUBORDINATE BUREAUS OR OFFICES THEREOF AT THE SEAT OF GOVERNMENT, EXCEPT ONLY AT SUCH RATES AND IN SUCH NUMBERS, RESPECTIVELY, AS MAY BE SPECIFICALLY APPROPRIATED FOR BY CONGRESS FOR SUCH CLERICAL AND OTHER PERSONAL SERVICES FOR EACH FISCAL YEAR; AND NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL HEREAFTER BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR SPECIFICALLY PROVIDED IN THE LAW GRANTING THE APPROPRIATION, AND THEN ONLY FOR SERVICES ACTUALLY RENDERED IN CONNECTION WITH AND FOR THE PURPOSES OF THE APPROPRIATION FROM WHICH PAYMENT IS MADE, AND AT THE RATE OF COMPENSATION USUAL AND PROPER FOR SUCH SERVICES * * *.

IN APPLYING THE PROVISIONS OF THIS ACT IT HAS BEEN FOUND NECESSARY TO DISTINGUISH BETWEEN MANUSCRIPTS WHICH WERE IN EXISTENCE WHEN THE AGREEMENT TO PURCHASE WAS ENTERED INTO AND MANUSCRIPTS PRODUCED OR PREPARED AFTER THE AGREEMENT TO PURCHASE OR WITH THE UNDERSTANDING THAT SUCH AN AGREEMENT OR PURCHASE WOULD BE MADE WHEN COMPLETED. THE FIRST, CONSTITUTING A PURCHASE OF A COMMODITY, IS NOT OPEN TO OBJECTION BY REASON OF THE ACT OF AUGUST 5, 1882, SUPRA, BUT THE SECOND CONSTITUTES THE HIRE OF PERSONAL SERVICES AND IS PROHIBITED BY THE ACT OF AUGUST 5, 1882, UNLESS SPECIFICALLY APPROPRIATED FOR.

THE ONLY APPROPRIATION FOR THE ADMINISTRATIVE EXPENSES OF YOUR BOARD IS THE PERMANENT ANNUAL APPROPRIATION MADE BY THE ACT OF FEBRUARY 23, 1917, 39 STAT. 929, 933, AS FOLLOWS:

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

* * * THE FEDERAL BOARD FOR VOCATIONAL EDUCATION SHALL HAVE POWER TO EMPLOY SUCH ASSISTANTS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT.

SEC. 7. THAT THERE IS HEREBY APPROPRIATED TO THE FEDERAL BOARD FOR VOCATIONAL EDUCATION THE SUM OF $200,000 ANNUALLY, TO BE AVAILABLE FROM AND AFTER THE PASSAGE OF THIS ACT, FOR THE PURPOSE OF MAKING OR COOPERATING IN MAKING THE STUDIES, INVESTIGATIONS, AND REPORTS PROVIDED FOR IN SECTION SIX OF THIS ACT, AND FOR THE PURPOSE OF PAYING THE SALARIES OF THE OFFICERS, THE ASSISTANTS, AND SUCH OFFICE AND OTHER EXPENSES AS THE BOARD MAY DEEM NECESSARY TO THE EXECUTION AND ADMINISTRATION OF THIS ACT.

THE PURCHASE OF MANUSCRIPTS ALREADY IN EXISTENCE WHEN THE AGREEMENT TO PURCHASE IS MADE, AND WHICH HAD BEEN PREPARED WITHOUT ANY UNDERSTANDING, PROMISE, OR SUGGESTION THAT SUCH A PURCHASE WOULD BE MADE, WOULD APPEAR TO BE A PROPER CHARGE UNDER THE APPROPRIATION FOR SALARIES AND EXPENSES OF YOUR BOARD MADE BY SECTION 7 OF THE ACT OF FEBRUARY 23, 1917, SUPRA, PROVIDED, OF COURSE, THEY PERTAIN TO AND TEND TO PROMOTE THE AUTHORIZED ACTIVITIES OF YOUR BOARD. 19 COMP. DEC. 416.

ANY AGREEMENT OR ARRANGEMENT IN ADVANCE BY CONTRACT OR OTHERWISE TO PREPARE A MANUSCRIPT IS A HIRE OF PERSONAL SERVICES, AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR IS PROHIBITED BY THE ACT OF AUGUST 5, 1882, SUPRA. THE ONLY PORTION OF THE APPROPRIATION FOR THE SALARIES AND EXPENSES OF YOUR BOARD WHICH AUTHORIZES PERSONAL SERVICES IS THAT WORDED AS FOLLOWS: "AND FOR THE PURPOSE OF PAYING THE SALARIES OF THE OFFICERS, THE ASSISTANTS.' THIS EVIDENTLY CONTEMPLATES THE PAYMENT OF SALARIES TO REGULAR OFFICERS AND EMPLOYEES AND DOES NOT AUTHORIZE THE EMPLOYMENT OF PERSONAL SERVICES BY CONTRACT OR OTHERWISE FOR INDEFINITE PERIODS WITHOUT SUPERVISION, SUCH AS WOULD BE INVOLVED IN THE PREPARATION OF A MANUSCRIPT. 26 COMP. DEC. 635; 3 COMP. GEN. 709. I HAVE TO ADVISE, THEREFORE, THAT YOU ARE NOT AUTHORIZED TO AGREE OR CONTRACT IN ADVANCE FOR THE PREPARATION OR PURCHASE OF MANUSCRIPTS NOT IN EXISTENCE WHEN THE AGREEMENT IS ENTERED INTO.