A-97325, SEPTEMBER 2, 1938, 18 COMP. GEN. 217

A-97325: Sep 2, 1938

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IS NOT WITHIN THE JURISDICTION TO RENDER DECISIONS CONFERRED BY SECTION 8 OF THE DOCKERY ACT OF JULY 31. IS AS FOLLOWS: THE COMMISSION HAS THE HONOR TO SUBMIT FOR YOUR DECISION A QUESTION GROWING OUT OF THE FOLLOWING PROVISIONS OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 (PUBLIC RESOLUTION NO. 122. THE APPROPRIATIONS IN THIS TITLE FOR ADMINISTRATIVE EXPENSES AND SUCH PORTION OF OTHER APPROPRIATIONS IN THIS TITLE AS ARE AVAILABLE FOR ADMINISTRATIVE EXPENSES SHALL NOT BE OBLIGATED FOR SUCH ADMINISTRATIVE EXPENSES IN EXCESS OF THE AMOUNTS WHICH THE DEPARTMENT. SHALL HAVE CERTIFIED TO THE SECRETARY OF THE TREASURY AS NECESSARY FOR SUCH PURPOSES. THE QUESTION TO BE DECIDED IS WHETHER.

A-97325, SEPTEMBER 2, 1938, 18 COMP. GEN. 217

GENERAL ACCOUNTING OFFICE - JURISDICTION - QUESTIONS NOT INVOLVING PAYMENTS TO BE MADE BY, OR UNDER, THE PRESENTING AGENCY A QUESTION PRESENTED BY THE UNITED STATES CIVIL SERVICE COMMISSION INVOLVING THE AUTHORITY OF THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS IN THE MATTER OF MAKING APPOINTMENTS UNDER THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938, AND THE APPLICATION OR SCOPE OF THE PROVISIONS OF EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938, RELATING TO THE COVERING OF CERTAIN POSITIONS INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE, AND NOT INVOLVING A PAYMENT TO BE MADE BY, OR UNDER, THE COMMISSION, IS NOT WITHIN THE JURISDICTION TO RENDER DECISIONS CONFERRED BY SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 208, AND VESTED IN THE COMPTROLLER GENERAL BY SECTION 304 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 2, 1938:

YOUR LETTER OF AUGUST 15, 1938, IS AS FOLLOWS:

THE COMMISSION HAS THE HONOR TO SUBMIT FOR YOUR DECISION A QUESTION GROWING OUT OF THE FOLLOWING PROVISIONS OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 (PUBLIC RESOLUTION NO. 122, 75TH CONGRESS, APPROVED JUNE 21, 1938):

TITLE I--- WORK RELIEF AND RELIEF

"SEC. 8. THE APPROPRIATIONS IN THIS TITLE FOR ADMINISTRATIVE EXPENSES AND SUCH PORTION OF OTHER APPROPRIATIONS IN THIS TITLE AS ARE AVAILABLE FOR ADMINISTRATIVE EXPENSES SHALL NOT BE OBLIGATED FOR SUCH ADMINISTRATIVE EXPENSES IN EXCESS OF THE AMOUNTS WHICH THE DEPARTMENT, ESTABLISHMENT, OR AGENCY, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET, SHALL HAVE CERTIFIED TO THE SECRETARY OF THE TREASURY AS NECESSARY FOR SUCH PURPOSES. THE AMOUNTS SO CERTIFIED FOR ADMINISTRATIVE EXPENSES SHALL BE AVAILABLE FOR EXPENDITURE BY SUCH DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE AND FOR THE OBJECTS SET FORTH IN SUBSECTION (A) OF SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 AND WITH THE AUTHORITY SET FORTH IN SUBSECTION (B) OF SUCH SECTION OF SUCH ACT: PROVIDED, THAT NOT TO EXCEED 5 PERCENTUM OF THE AMOUNT MADE AVAILABLE IN SECTION 1 OF THIS TITLE TO THE WORKS PROGRESS ADMINISTRATION AND TO THE WORKS PROGRESS ADMINISTRATION FOR THE NATIONAL YOUTH ADMINISTRATION SHALL BE USED FOR ADMINISTRATION.'

THE PROVISIONS REFERRED TO FROM THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 (PUBLIC RESOLUTION NO. 11, 74TH CONGRESS, APPROVED APRIL 8, 1935) READ:

"SEC. 3. IN CARRYING OUT THE PROVISIONS OF THIS JOINT RESOLUTION THE PRESIDENT MAY (A) AUTHORIZE EXPENDITURES FOR CONTRACT STENOGRAPHIC REPORTING SERVICES; SUPPLIES AND EQUIPMENT; PURCHASE AND EXCHANGE OF LAW BOOKS, BOOKS OF REFERENCE, DIRECTORIES, PERIODICALS, NEWSPAPERS, AND PRESS CLIPPINGS; TRAVEL EXPENSES, INCLUDING THE EXPENSE OF ATTENDANCE AT MEETINGS WHEN SPECIFICALLY AUTHORIZED; RENTAL AT THE SEAT OF GOVERNMENT AND ELSEWHERE; PURCHASE, OPERATION, AND MAINTENANCE OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES; PRINTING AND BINDING; AND SUCH OTHER EXPENSES AS HE MAY DETERMINE NECESSARY TO THE ACCOMPLISHMENT OF THE OBJECTIVES OF THIS JOINT RESOLUTION; AND (B) ACCEPT AND UTILIZE SUCH VOLUNTARY AND UNCOMPENSATED SERVICES; APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES, AND UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES AS MAY BE NECESSARY; PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE, AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, FIX THE COMPENSATION OF ANY OFFICERS AND EMPLOYEES SO APPOINTED.'

THE QUESTION TO BE DECIDED IS WHETHER, UNDER THIS LANGUAGE, THE FINAL AUTHORITY OVER THE EXEMPTION OF THE POSITIONS CONCERNED FROM THE CIVIL SERVICE LAWS AND RULES AND THE CLASSIFICATION ACT OF 1923 REMAINS VESTED IN THE PRESIDENT, AS PROVIDED IN SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, REFERRED TO IN THE STATUTORY TEXT, OR HAS BEEN TRANSFERRED BY LAW TO THE HEADS OF THE RESPECTIVE DEPARTMENTS AND AGENCIES TO WHICH APPROPRIATIONS, AS SPECIFIED IN TITLE I, HAVE BEEN GRANTED.

IT IS TO BE NOTED THAT WITH CERTAIN SPECIFIC LIMITATIONS OR EXCEPTIONS THE CONGRESS, IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, PLACED ALLOTMENT OR APPORTIONMENT OF FUNDS IN THE PRESIDENT, AND IN SECTION 3 PARTICULARIZED AS TO THE POWERS OF THE PRESIDENT IN AUTHORIZING EXPENDITURES, WHETHER FOR PURCHASES OF EQUIPMENT AND SUPPLIES, TRAVEL EXPENSES, ETC., OR FOR PERSONAL SERVICES SPECIFIED IN SUBSECTION (B). THIS SUBSECTION, AMONG OTHER THINGS, AUTHORIZED THE PRESIDENT TO "APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES, * * * AS MAY BE NECESSARY, PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE, AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, FIX THE COMPENSATION OF ANY OFFICERS AND EMPLOYEES SO APPOINTED.' THIS, OF COURSE, IS AN AFFIRMATIVE OR EXPRESS EXEMPTION FROM THE REQUIREMENTS OF THE CIVIL SERVICE ACT OF 1883 AND THE CLASSIFICATION ACT OF 1923, AS REFERRED TO IN DECISIONS OF YOUR OFFICE (DEC.C.G., A 57221, AUGUST 29, 1934, TO THE RAILROAD RETIREMENT BOARD; A-95797, JUNE 25, 1938, TO THE SECRETARY OF THE NAVY; AND A-95797, JULY 20, 1938, TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS), THE EXEMPTING AUTHORITY BEING VESTED SPECIFICALLY IN THE PRESIDENT. IN THE EXERCISE OF THIS AUTHORITY, THE PRESIDENT, ON MAY 6, 1935, PROMULGATED SECTION V OF EXECUTIVE ORDER NO. 7034, AUTHORIZING THE AGENCIES ESTABLISHED OR DESIGNATED IN THAT ORDER "TO EXERCISE THE AUTHORITY WITH RESPECT TO PERSONNEL" CONFERRED UPON THE PRESIDENT BY SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935.

SECTION 8 OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 CONTAINS NO LANGUAGE AS PRECISE AND DEFINITE AS THIS. ON THE CONTRARY, IT DOES NOT CONTAIN ANY AFFIRMATIVE OR EXPRESS LANGUAGE TRANSFERRING FROM THE PRESIDENT TO THE VARIOUS APPOINTING OFFICERS TO WHOM FUNDS ARE ALLOTTED OR APPROPRIATED BY TITLE I OF THE ACT, THE POWER RESPECTIVELY AND INDIVIDUALLY TO IGNORE THE PROVISIONS OF THE CIVIL SERVICE ACT OF 1883 AND THE CLASSIFICATION ACT OF 1923 IN EMPLOYING AND PAYING PERSONNEL. ALTHOUGH TITLE I CONTAINS DIRECT APPROPRIATIONS TO THE VARIOUS AGENCIES NAMED THEREIN, THE PRESIDENT CONTINUES TO HAVE CERTAIN SPECIFIED POWERS, AMONG THEM BEING A CONTROLLING AUTHORITY IN SEVERAL ITEMS INCLUDING PART OF SECTION 1 AND SECTION 2; AND IN SECTION 21, THE PRESIDENT ALONE IS DIRECTED TO SUBMIT DETAILED REPORTS TO CONGRESS OF EXPENDITURES UNDER THE THREE RELIEF ACTS NAMED THEREIN. SIMILARLY, IT IS THE AUTHORITY OF THE PRESIDENT THAT IS REFERRED TO IN SECTION 8.

THE FIRST REQUIREMENT OF SECTION 8 IS THAT THE DIRECTOR OF THE BUREAU OF THE BUDGET SHALL CERTIFY TO THE SECRETARY OF THE TREASURY THE AMOUNTS REGARDED AS NECESSARY FOR THE ADMINISTRATIVE EXPENSES OF THE RESPECTIVE AGENCIES. THEN, SUCH AMOUNTS SO CERTIFIED SHALL BE AVAILABLE FOR EXPENDITURE BY THE RESPECTIVE AGENCIES FOR PERSONAL SERVICES AND "FOR THE OBJECTS SET FORTH IN SUBSECTION (A) OF SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, AND WITH THE AUTHORITY SET FORTH IN SUBSECTION (B) OF SUCH SECTION OF SUCH ACT; * * *.' THIS LANGUAGE, IT IS RESPECTFULLY SUBMITTED, IS NOT SUFFICIENTLY PRECISE TO CONSTITUTE BY ITSELF A GRANT OF DISCRETIONARY AUTHORITY TO EACH HEAD OF DEPARTMENT OR AGENCY, RECEIVING APPROPRIATIONS, OR ALLOTMENTS UNDER THE ACT, TO EMPLOY PERSONNEL WITHOUT REGARD TO THE USUAL LAWS GOVERNING EMPLOYMENT AND PAY. IT IS ESSENTIALLY A REFERENCE TO AND A CONFIRMATION OF THE AUTHORITY OF THE PRESIDENT. IT MEANS THAT THE AUTHORITY OF THE PRESIDENT MUST BE SOUGHT AND SECURED BEFORE THE RESPECTIVE AGENCIES CAN MAKE ANY NON-CIVIL SERVICE APPOINTMENTS OR COMPENSATE THEIR EMPLOYEES AT OTHER THAN THE RATES OF PAY FIXED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. SO FAR AS THE CIVIL SERVICE ACT AND RULES ARE CONCERNED, HE HAS ALREADY EXERCISED THIS AUTHORITY IN EXECUTIVE ORDER NO. 7916, JUNE 24, 1938, MAKING SUCH EMPLOYMENTS SUBJECT TO THE MERIT SYSTEM ON AND AFTER FEBRUARY 1, 1939. WHATEVER DECISION IS REACHED ON THE CONSTRUCTION OF SECTION 8 OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 WILL HAVE A VITAL BEARING ON THE SCOPE OF THIS EXECUTIVE ORDER. SECTIONS 1 AND 9 OF SUCH ORDER READ:

"SECTION 1. EFFECTIVE FEBRUARY 1, 1939, ALL POSITIONS IN THE EXECUTIVE CIVIL SERVICE, INCLUDING POSITIONS IN CORPORATIONS WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES, WHICH ARE NOT NOW IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND WHICH ARE NOT EXEMPTED THEREFROM BY STATUTE, EXCEPT (1) POLICY-DETERMINING POSITIONS AND (2) OTHER POSITIONS WHICH SPECIAL CIRCUMSTANCES REQUIRE SHOULD BE EXEMPTED, ARE COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE: PROVIDED, THAT THIS SECTION SHALL NOT BE DEEMED TO APPLY TO POSITIONS FILLED BY APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: AND PROVIDED FURTHER, THAT NO POSITIONS SHALL BE EXEMPTED FROM THE COMPETITIVE CLASSIFIED CIVIL SERVICE UNDER CLAUSES (1) AND (2) ABOVE EXCEPT SUCH AS SHALL BE DESIGNATED IN SUBSEQUENT EXECUTIVE ORDERS ISSUED AFTER INVESTIGATION SHOWING THE NECESSITY AND JUSTIFICATION FOR SUCH EXEMPTIONS. THIS SECTION SHALL ALSO APPLY TO POSITIONS AFFECTED BY STATUTES WHICH EXEMPT THEM FROM THE COMPETITIVE CLASSIFIED CIVIL SERVICE BUT AUTHORIZE THE PRESIDENT IN HIS DISCRETION TO COVER THEM INTO SUCH SERVICE.'

"SECTION 9. SCHEDULES A AND B OF THE CIVIL SERVICE RULES AS PRESENTLY EXISTING, RELATING TO POSITIONS EXCEPTED FROM EXAMINATION AND POSITIONS WHICH MAY BE FILLED UPON NONCOMPETITIVE EXAMINATION, WILL BE SUPERSEDED BY SCHEDULES DESIGNATING POLICY-DETERMINING POSITIONS AND OTHER POSITIONS WHICH SPECIAL CIRCUMSTANCES REQUIRE SHOULD BE EXEMPTED, WHICH SCHEDULES WILL BE SET FORTH IN SUBSEQUENT EXECUTIVE ORDERS AS PROVIDED IN SECTION 1 HEREOF.'

IT IS CLEAR THAT THE PRESIDENT BY THIS ORDER DESIRES TO EXTEND THE CLASSIFIED SERVICE TO EMBRACE AS MANY POSITIONS AS LEGALLY POSSIBLE; AND IT IS EQUALLY CLEAR, FROM A LONG LINE OF DECISIONS OF THE COMPTROLLER GENERAL AND OPINIONS OF ATTORNEYS GENERAL, THAT ANY DEPARTURES FROM THE APPLICATION OF THE MERIT SYSTEM ESTABLISHED BY THE CIVIL SERVICE ACT OF 1883 AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, MUST BE IN SPECIFIC, AFFIRMATIVE, AND UNMISTAKABLE TERMS. IT IS BELIEVED THAT SECTION 8 OF THE PUBLIC WORKS AND RELIEF APPROPRIATION ACT OF 1938 IS NOT SO PHRASED AS TO WARRANT THE HOLDING THAT THE POWER AND AUTHORITY TO MAKE NON-CIVIL SERVICE APPOINTMENTS, VESTED IN THE PRESIDENT BY SUBSECTION (B) OF SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 IS TRANSFERRED TO THE RESPECTIVE DEPARTMENTS AND ESTABLISHMENTS AND AGENCIES, AND BY SUCH HOLDING AUTOMATICALLY REMOVE THOUSANDS OF POSITIONS IN MANY BRANCHES OF THE GOVERNMENT FROM THE PURVIEW OF THE EXECUTIVE ORDER OF JUNE 24, 1938. THE PURPORT OF THE DECISIONS OF YOUR OFFICE HAS BEEN TO RESOLVE ALL DOUBTS IN FAVOR OF THE MERIT SYSTEM, AND TO REQUIRE THAT ANY EXEMPTION SHALL BE IN UNMISTAKABLY CLEAR PHRASEOLOGY. IN THIS CONNECTION THE COMMISSION SUGGESTS CONSIDERATION OF YOUR DECISION A 66476 OF JANUARY 6, 1936, TO THE CIVIL SERVICE COMMISSION.

IF YOUR OFFICE CONCURS IN THE VIEW THAT, UNDER SECTION 8 OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938, THE PRESIDENT, AND NOT THE HEADS OF THE DEPARTMENTS AND AGENCIES, HAS THE AUTHORITY OVER THE EXEMPTION OF THE POSITIONS CONCERNED FROM THE MERIT SYSTEM, MANY THOUSANDS OF POSITIONS AND THE INCUMBENTS THEREOF WHO RECEIVE COMPENSATION UNDER TITLE I OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 MAY BE BROUGHT WITHIN THE CLASSIFIED SERVICE ON FEBRUARY 1, 1939.

SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 208, PROVIDES, IN PART, AS FOLLOWS:

DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER OF THE TREASURY SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE AUDITOR AND THE COMPTROLLER OF THE TREASURY IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.

SEE SECTION 304 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, WHICH VESTS THE AUTHORITY TO RENDER DECISIONS CONTAINED IN THE ABOVE QUOTED STATUTE IN THE COMPTROLLER GENERAL OF THE UNITED STATES.

IN DECISION DATED DECEMBER 7, 1898, IN REPLY TO A REQUEST FROM THE PRESIDENT OF THE UNITED STATES CIVIL SERVICE COMMISSION THAT THE COMPTROLLER OF THE TREASURY RENDER A DECISION DIRECTING AUDITORS TO DISALLOW COMPENSATION PAYMENTS IN THE ACCOUNTS OF DISBURSING OFFICERS OF EMPLOYEES NOT APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS, A FORMER COMPTROLLER OF THE TREASURY, AFTER REFERRING TO THE ABOVE QUOTED PROVISION OF THE DOCKERY ACT, STATED:

YOUR LETTER DOES NOT REFER TO THE REVISION OF A SETTLED ACCOUNT, BUT RATHER REFERS TO HOW A CLASS OF UNSETTLED ACCOUNTS SHOULD BE SETTLED. IS NOT A REQUEST BY A DISBURSING OFFICER OR THE HEAD OF AN EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY EXECUTIVE DEPARTMENT, FOR A DECISION UPON A QUESTION INVOLVING A PAYMENT TO BE MADE BY OR UNDER THEM; NOR IS IT A DECISION BY AN AUDITOR MAKING A CONSTRUCTION OF A STATUTE; BUT AMOUNTS TO A REMINDER TO THE COMPTROLLER THAT HIS PREDECESSOR IN OFFICE MADE, BY INFERENCE FROM THE LANGUAGE USED, A HOLDING THAT THE ACCOUNTING OFFICERS WOULD NOT ALLOW CREDIT FOR COMPENSATION PAID TO A PERSON IN THE CLASSIFIED SERVICE WHEN IT WAS SHOWN TO THEM THAT THE HEAD OF THE DEPARTMENT HAD SO APPOINTED HIM IN VIOLATION OF THE CIVIL SERVICE LAW, ACCOMPANIED BY A STATEMENT OF THE CIVIL SERVICE LAWS AND EXECUTIVE ORDERS AND REGULATIONS MADE THEREUNDER, AND A STATEMENT SHOWING HOW THE HEAD OF THE DEPARTMENT OF JUSTICE HAD IGNORED THESE LAWS AND EXECUTIVE ORDERS, AND APPOINTED THE PERSONS NAMED IN THE EXHIBIT IN DISREGARD THEREOF. WHEN THE COMPTROLLER OF THE TREASURY HAS JURISDICTION, HIS DECISIONS ARE BINDING UPON THE EXECUTIVE BRANCHES OF THE GOVERNMENT, AND IN CASE OF ADVANCE DECISIONS HE IS AUTHORIZED TO RENDER UPON QUESTIONS INVOLVING A PAYMENT TO BE MADE BY A DISBURSING OFFICER OR THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, DECISIONS WHICH WHEN RENDERED GOVERN THE AUDITOR WHEN PASSING UPON THE ACCOUNT CONTAINING SUCH DISBURSEMENT ABOUT WHICH THE DECISION WAS GIVEN, AND THE COMPTROLLER AS WELL. IT IS NOT TO BE FORGOTTEN THAT HE CAN ONLY RENDER THESE ADVANCE DECISIONS TO DISBURSING OFFICERS, HEADS OF EXECUTIVE DEPARTMENTS, WHEN THE DECISION SOUGHT RELATES TO A PAYMENT TO BE MADE BY OR UNDER THEM. IF YOUR LETTER WERE ADDRESSED TO ME BY THE HEAD OF THE DEPARTMENT OF JUSTICE, A DIFFERENT QUESTION WOULD BE PRESENTED, AND IN ORDER TO DETERMINE MY JURISDICTION I WOULD ONLY HAVE TO BE SATISFIED THAT IT RAISED A QUESTION INVOLVING A PAYMENT TO BE MADE BY OR UNDER THAT DEPARTMENT. THE PAYMENT OF THE COMPENSATION OR SALARY OF NEITHER OF THE OFFICERS OR EMPLOYEES UNDER THE DEPARTMENT OF JUSTICE SET OUT IN YOUR EXHIBIT CAN POSSIBLY BE A PAYMENT TO BE MADE BY OR UNDER YOUR COMMISSION.

ANY DECISION I MIGHT ATTEMPT TO MAKE IN ANSWER TO YOUR COMMUNICATION WOULD BE OF AN ACADEMIC RATHER THAN OF A JUDICIAL NATURE. IT WOULD NEITHER INCLUDE THE AUDITOR, THE EXECUTIVE BRANCHES OF THE GOVERNMENT, NOR THE COMPTROLLER HIMSELF, BECAUSE OF MY ENTIRE WANT OF JURISDICTION TO RENDER ANY DECISION WHATEVER. IF THE QUESTION IS PRESENTED IN A WAY TO GIVE ME JURISDICTION, I SHALL, WHILE REALIZING THE IMPORTANCE OF THE DECISION, DETERMINE IN THE CASE SO PRESENTED ACCORDING TO THE LIGHT I THEN SHALL HAVE, REMEMBERING THAT I HAVE NO QUO WARRANT JURISDICTION TO DETERMINE THE CONFLICTING TITLES TO AN OFFICE.

I DEEM IT IMPRUDENT, IF NOT IMPROPER, AT THIS TIME AND UNDER THE FACTS OF YOUR LETTER, TO EXPRESS ANY OPINION UPON THE QUESTION I ASSUME YOU DESIRE AN EXPRESSION OF OPINION UPON, VIZ: WOULD AN OFFICER OR EMPLOYEE IN THE CLASSIFIED SERVICE, APPOINTED BY THE HEAD OF A DEPARTMENT WITHOUT EXAMINATION OR CERTIFICATION UNDER CIVIL SERVICE RULES, WHEN SUCH EXAMINATION AND CERTIFICATION ARE REQUIRED BY LAW, BE ENTITLED TO THE ALLOWANCE OF HIS SALARY OR COMPENSATION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT?

SEE, ALSO, 3 COMP. DEC. 52; 5 ID. 649; ID. 653; 6 ID. 205; 26 ID. 804.

THE QUESTION PRESENTED FOR DECISION IN THE THIRD PARAGRAPH OF YOUR LETTER, SUPRA, DOES NOT INVOLVE A PAYMENT TO BE MADE BY, OR UNDER, THE UNITED STATES CIVIL SERVICE COMMISSION. IN EACH OF THE DECISIONS OF THIS OFFICE CITED IN YOUR LETTER THERE WAS INVOLVED A QUESTION PRESENTED BY THE HEAD OF A DEPARTMENT OR ESTABLISHMENT INVOLVING EXPENDITURES OF APPROPRIATED FUNDS UNDER HIS ADMINISTRATIVE CONTROL. YOUR LETTER APPEARS TO INVOLVE THE AUTHORITY OF THE HEADS OF CERTAIN EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS IN THE MATTER OF MAKING APPOINTMENTS AND THE APPLICATION OR SCOPE OF CERTAIN PROVISIONS OF EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938. IT IS NOT WITHIN MY JURISDICTION TO DECIDE SUCH QUESTIONS ON THE BASIS OF YOUR PRESENT SUBMISSION. SEE MY DECISION OF JULY 1, 1938, TO YOU.