B-104398, SEPTEMBER 11, 1951, 31 COMP. GEN. 81

B-104398: Sep 11, 1951

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1951: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. MCNAIR IS ASSISTANT REGIONAL FORESTER IN CHARGE OF THE DIVISION OF INFORMATION AND EDUCATION OF THE UNITED STATES FOREST SERVICE. IT IS STATED IN YOUR LETTER THAT MR. MCNAIR'S DUTIES REQUIRE HIM (AS IS ALSO THE CASE WITH OTHER FOREST SERVICE OFFICERS AND EMPLOYEES). IT IS FURTHER STATED THAT PAYMENT OF THE AMOUNT IN QUESTION WAS MADE BY MR. YOU FURTHER STATE THAT THE FUNCTION OF THE DIVISION OF INFORMATION AND EDUCATION IS EXTREMELY IMPORTANT TO THE ACHIEVEMENT OF THE OBJECTIVES OF THE FOREST SERVICE AND THAT BECAUSE OF THE LIMITED STAFF WHICH CAN BE MADE AVAILABLE FOR THE WORK. ARE NOW PREVENTED FROM PERFORMING SUCH DUTIES LEGALLY UNLESS THEY FIRST QUALIFY AND ARE LICENSED UNDER THE PENNSYLVANIA LAW REFERRED TO AND THE REGULATIONS ISSUED PURSUANT THERETO.

B-104398, SEPTEMBER 11, 1951, 31 COMP. GEN. 81

STATE LICENSES - FEDERAL EMPLOYEES - APPROPRIATION AVAILABILITY A STATE STATUTE WHICH PROVIDES THAT NO PERSON SHALL BE PERMITTED TO PROJECT ANY MOTION PICTURE, EITHER THEATRICAL OR NON-THEATRICAL, WITHOUT FIRST OBTAINING A STATE LICENSE THEREFOR HAS NO APPLICATION TO THE UNITED STATES IN THE CONDUCT OF ITS ACTIVITIES AND THEREFORE, A FEDERAL EMPLOYEE WHO OBTAINED AT PERSONAL EXPENSE A STATE LICENSE TO OPERATE A MOTION PICTURE PROJECTOR IN CONNECTION WITH HIS OFFICIAL DUTIES MAY NOT BE REIMBURSED SUCH EXPENSE FROM APPROPRIATED FUNDS.

COMPTROLLER GENERAL WARREN TO L. E. BADING, DEPARTMENT OF AGRICULTURE, SEPTEMBER 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1951 (A DISBURSEMENT VOUCHERS) TRANSMITTING A VOUCHER, TOGETHER WITH RELATED PAPERS, STATED IN FAVOR OF JOHN W. MCNAIR IN THE AMOUNT OF $4, AND REQUESTING A DECISION AS TO WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT FROM FUNDS APPROPRIATED FOR THE PROTECTION AND MANAGEMENT OF NATIONAL FORESTS.

IT APPEARS FROM YOUR LETTER THAT MR. MCNAIR IS ASSISTANT REGIONAL FORESTER IN CHARGE OF THE DIVISION OF INFORMATION AND EDUCATION OF THE UNITED STATES FOREST SERVICE, AND THAT THE AMOUNT CLAIMED ON THE VOUCHER REPRESENTS PAYMENTS TO THE COMMONWEALTH OF PENNSYLVANIA OF $2 FOR EXAMINATION AS A PROJECTIONIST AND OF A LIKE AMOUNT FOR A LICENSE TO OPERATE A 16 MM. MOTION PICTURE PROJECTOR, ISSUANCE OF THE LICENSE BEING CONDITIONED UPON THE SUCCESS OF THE APPLICANT IN PASSING THE PROJECTIONIST EXAMINATION.

IT IS STATED IN YOUR LETTER THAT MR. MCNAIR'S DUTIES REQUIRE HIM (AS IS ALSO THE CASE WITH OTHER FOREST SERVICE OFFICERS AND EMPLOYEES), AMONG OTHER THINGS, TO ARRANGE FOR THE SHOWING OF MOTION PICTURES DEALING WITH THE CONSERVATION AND PROTECTION OF FORESTS AND TO DEVELOP NOT ONLY AN AWARENESS AMONG THE GENERAL PUBLIC OF THEIR COLLATERAL INTEREST IN AND RESPONSIBILITY FOR SUCH NATIONAL RESOURCES, BUT ALSO TO EDUCATE AND INFORM THE PUBLIC REGARDING SAFETY AND OTHER MEASURES WHICH SHOULD BE OBSERVED IN CONNECTION WITH THEIR USE. IT IS FURTHER STATED THAT PAYMENT OF THE AMOUNT IN QUESTION WAS MADE BY MR. MCNAIR SO THAT HE COULD CARRY OUT HIS OFFICIAL DUTIES WITHOUT BEING IN VIOLATION OF THE STATE LAW. THE STATE LAW REFERRED TO APPEARS TO BE TITLE 35, SECTION 1227, PURDON'S PENNSYLVANIA STATUTES--- REFERRED TO IN THE RECORD AS THE FIRE AND PANIC ACT--- WHICH PROVIDES, AMONG OTHER THINGS, THAT NO PERSON SHALL BE PERMITTED TO PROJECT ANY MOTION PICTURE, EITHER THEATRICAL OR NONTHEATRICAL, WITHOUT FIRST PASSING AN EXAMINATION AND OBTAINING A STATE LICENSE THEREFOR AT THE RATES PRESCRIBED THEREIN. SECTION 1233 PROVIDES PENALTIES FOR VIOLATIONS OF SECTION 1227.

YOU FURTHER STATE THAT THE FUNCTION OF THE DIVISION OF INFORMATION AND EDUCATION IS EXTREMELY IMPORTANT TO THE ACHIEVEMENT OF THE OBJECTIVES OF THE FOREST SERVICE AND THAT BECAUSE OF THE LIMITED STAFF WHICH CAN BE MADE AVAILABLE FOR THE WORK, VOLUNTARY PROJECTIONISTS--- CAPABLE FOREST SERVICE EMPLOYEES--- OFTEN PERFORM FILM PROJECTION DUTIES OUTSIDE THEIR REGULAR WORKING HOURS, IN ORDER THAT THAT IMPORTANT WORK CAN BE DONE, BUT THAT IN PENNSYLVANIA, PROJECTIONISTS OF THE FOREST SERVICE, INCLUDING THOSE WHOSE DUTIES REQUIRE THE SHOWING OF MOTION PICTURES, AS WELL AS THOSE WHO VOLUNTEER, ARE NOW PREVENTED FROM PERFORMING SUCH DUTIES LEGALLY UNLESS THEY FIRST QUALIFY AND ARE LICENSED UNDER THE PENNSYLVANIA LAW REFERRED TO AND THE REGULATIONS ISSUED PURSUANT THERETO. A COPY OF SAID REGULATIONS AND OF AN OPINION OF OCTOBER 17, 1950, OF THE DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA RELATIVE TO THE MATTER WERE SUBMITTED WITH YOUR LETTER. YOU EXPRESS THE VIEW THAT THE REGULATIONS AND THE OPINION OF THE DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA HAVE THE EFFECT OF DENYING TO THE UNITED STATES THE RIGHT TO PERFORM AN AUTHORIZED SERVICE.

IT IS WELL ESTABLISHED THAT THE STATES HAVE NO POWER BY TAXATION OR OTHERWISE TO RETARD, IMPEDE, BURDEN OR IN ANY MANNER CONTROL THE OPERATION OF THE CONSTITUTIONAL LAWS ENACTED BY THE CONGRESS TO CARRY INTO EFFECT THE POWERS VESTED IN THE FEDERAL GOVERNMENT. SEE MCCULLOCH V. MARYLAND, 4 WHEAT. 316; OHIO V. THOMAS, 173 U.S. 276; JOHNSON V. MARYLAND, 254 U.S. 51; MAYO V. UNITED STATES, 319 U.S. 441. THIS RULE HAS BEEN FOLLOWED IN MANY CASES BY THIS OFFICE. SEE, AMONG OTHERS, 3 COMP. GEN. 663; 21 ID. 769; 22 ID. 537; 27 ID. 232; ID. 273; 372, SOME OF WHICH ARE CITED IN YOUR LETTER. IN THE PRESENT CASE IT APPEARS THAT THE FOREST SERVICE IS CONDUCTING THE WORK INVOLVED AS ONE OF ITS OFFICIAL ACTIVITIES. ALSO, IT IS FOR THE FEDERAL GOVERNMENT TO DETERMINE THE COMPETENCY OF ITS EMPLOYEES FOR THE PERFORMANCE OF THE SERVICES FOR WHICH THEY ARE EMPLOYED. JOHNSON V. MARYLAND, SUPRA; 21 COMP. GEN. 507, 510. IT IS APPARENT, THEREFORE, THAT THE REQUIREMENT OF THE STATE STATUTE FOR AN EXAMINATION AND A LICENSE FOR A PROJECTIONIST TO PERFORM SUCH SERVICES HAVE NO APPLICATION TO THE UNITED STATES.

IN THE OPINION OF OCTOBER 17, 1950, OF THE DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA, THE POSITION APPEARS TO BE TAKEN THAT THE STATUTORY REQUIREMENT FOR AN EXAMINATION AND A LICENSE IN SUCH MATTERS IS A VALID EXERCISE OF THE POLICE POWER OF THE STATE AND SINCE CONGRESS HAS NOT FULLY OCCUPIED THE FIELD OF PROTECTION AGAINST FIRE AND PANIC, THE CASE OF JOHNSON V. MARYLAND AND SIMILAR CASES HAVE NO APPLICATION HERE. HOWEVER, EVEN THOUGH THE STATE STATUTE MAY BE BASED ON THE POLICE POWERS AND MAY BE A VALID EXERCISE OF SUCH POWER, THIS OFFICE FINDS NO JUDICIAL SUPPORT FOR THE VIEW THAT THE CITED CASES HAVE NO APPLICATION TO THE PRESENT MATTER. ON THE CONTRARY IT APPEARS THEREFROM AND FROM OTHER COURT DECISIONS THAT THE TEST IS WHETHER THE REQUIREMENTS OF THE STATE STATUTE, IF APPLIED TO THE CARRYING OUT OF A FUNCTION OF THE FEDERAL GOVERNMENT, WOULD LIMIT CONTROL OR REGULATE THE EXERCISE OF SUCH FUNCTION. IT IS OBVIOUS THAT THE REQUIREMENT OF THE STATUTE, INSOFAR AS THE EXERCISE OF THE ACTIVITIES OF THE FEDERAL GOVERNMENT IS CONCERNED, INFRINGES THE RIGHT OF THE GOVERNMENT TO CONDUCT SUCH ACTIVITIES FREE FROM STATE INTERFERENCE, CONTROL OR REGULATION. HENCE, THERE WOULD APPEAR TO BE NO BASIS UPON WHICH THE STATE MAY PROPERLY REQUIRE A LICENSE FOR AN OPERATOR TO PERFORM SUCH DUTIES IN A CASE SUCH AS HERE INVOLVED. FURTHERMORE, EVEN IF THE REQUIREMENT FOR A LICENSE WERE APPLICABLE HERE IN ORDER TO QUALIFY AN EMPLOYEE FOR THE DUTIES OF A PROJECTIONIST, THE COST THEREOF WOULD BE PERSONAL TO THE EMPLOYEE.

ACCORDINGLY, CERTIFICATION OF THE VOUCHER FOR PAYMENT IS NOT AUTHORIZED.