B-132897, OCTOBER 15, 1957, 37 COMP. GEN. 243

B-132897, OCTOBER 15, 1957, 37 COMP. GEN. 243

ALASKA - EFFECT OF TERRITORIAL LEGISLATIVE ENACTMENTS ON FEDERAL FUND - SCHEDULE "C" - MENTAL HEALTH PROCEEDINGS ALTHOUGH THE TERRITORY OF ALASKA IN THE ENACTMENT OF ITS MENTAL HEALTH PROGRAM LEGISLATION PROVIDED FOR PAYMENT OF FEES AND EXPENSES FOR JUDICIAL PROCEEDINGS FROM THE SCHEDULE "C" FUND, SIMILAR TO 48 U.S.C. 47, WHICH WAS REPEALED PURSUANT TO SECTION 301 OF THE ALASKA MENTAL HEALTH ENABLING ACT OF 1956, 48 U.S.C. 46-1, ANY ACTION BY THE TERRITORY WITH RESPECT TO THE SCHEDULE "C" FUND, WHICH IS MADE UP OF RECEIPTS AUTHORIZED BY THE CONGRESS TO BE USED RATHER THAN TO BE DEPOSITED INTO THE TREASURY AND WHICH IS, THEREFORE, TO BE REGARDED AS APPROPRIATED FUNDS, WOULD BE INCONSISTENT WITH ARTICLE 1, SECTION 9, CLAUSE 7 OF THE CONSTITUTION, HENCE, THE SCHEDULE "C" FUND IS NOT SUBJECT TO EXPENDITURE BY THE TERRITORIAL LEGISLATURE. SECTION 102 OF THE ALASKA MENTAL HEALTH ENABLING ACT OF 1956, WHICH CONFERS RESPONSIBILITY FOR THE CARE OF COMMITTED MENTAL PATIENTS ON THE LEGISLATURE OF ALASKA DOES NOT CARRY WITH IT THE RESPONSIBILITY FOR PRIOR COMMITMENT EXPENSES NOR AUTHORIZE THE TERRITORY TO INCREASE FEES OF COMMISSIONERS, JURORS, AND WITNESSES OTHERWISE PAYABLE FROM SCHEDULE "C" FUNDS; THEREFORE, SCHEDULE "C" FUNDS WHICH WERE HERETOFORE AVAILABLE FOR INCIDENTAL EXPENSES OF THE COURT, INCLUDING COMMITMENT PROCEEDINGS, MAY CONTINUE TO BE USED FOR EXPENSES INCIDENT TO INSANITY PROCEEDINGS.

TO THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, OCTOBER 15, 1957:

YOUR LETTER OF AUGUST 9, 1957, SUBMITS FOR OUR DECISION QUESTIONS CONCERNING THE CONTROL OF MONEYS IN THE ALASKA SCHEDULE "C" FUND AND THE DISBURSEMENT THEREFROM IN CONNECTION WITH LEGISLATIVE CHANGES BY THE CONGRESS AND THE TERRITORY OF ALASKA RESPECTING THE MENTAL HEALTH PROGRAM IN THAT TERRITORY.

YOUR LETTER STATES THAT UNITED STATES COMMISSIONERS IN ALASKA CONDUCT INSANITY HEARINGS, AND THAT THE EXPENSES OF THESE HEARINGS HAVE BEEN PAID FROM THE SCHEDULE "C" FUND WHEN VOUCHERS FOR THE FEES OF COMMISSIONERS, JURORS, AND WITNESSES AND MILEAGE NECESSARILY TRAVELED BY THEM HAVE BEEN AUDITED AND APPROVED BY THE UNITED STATES JUDGES FOR THE RESPECTIVE DIVISIONS. PAYMENT FROM THE FUND AND IN THE MANNER STATED WAS AUTHORIZED BY SECTION 8 OF THE ACT OF JANUARY 27, 1905, 33 STAT. 619, 48 U.S.C. 47.

THE ALASKA MENTAL HEALTH ENABLING ACT, PUBLIC LAW 830, 84TH CONGRESS, APPROVED JULY 28, 1956, 70 STAT. 709, 48 U.S.C. 46-1 NOTE, TRANSFERRED THE AUTHORITY TO REGULATE MENTAL HEALTH TREATMENT IN ALASKA TO THE TERRITORIAL LEGISLATURE. SECTION 101 OF THE ACT, 48 U.S.C. 46 1, AUTHORIZES THE TERRITORIAL LEGISLATURE TO ENACT SUCH LAWS ON THE SUBJECT AS IT MAY DEEM APPROPRIATE AND PROVIDES THAT SUCH LEGISLATION MAY SUPERSEDE ANY OF THE ACTS CITED IN SECTION 301, 48 U.S.C. 46 NOTE. 48 U.S.C. 47 IS INCLUDED IN THE ACTS CITED IN SECTION 301 AND BY PROCLAMATION OF THE ACTING GOVERNOR OF ALASKA, EFFECTIVE JULY 1, 1957, ISSUED PURSUANT TO SECTION 301, HE DECLARED 48 U.S.C. 47 REPEALED. SECTION 102, 48 U.S.C. 46-2, AUTHORIZED THE TERRITORIAL LEGISLATURE, IN CARRYING OUT SECTION 101, TO "CONFER UPON UNITED STATES COMMISSIONERS, AS EX-OFFICIO PROBATE JUDGES, AND UPON THE UNITED STATES DISTRICT COURT FOR THE TERRITORY OF ALASKA, SUCH JURISDICTION, FUNCTIONS, AND DUTIES AS IT MAY DEEM APPROPRIATE FOR SUCH PURPOSE.'

PURSUANT TO THE AUTHORITY OF PUBLIC LAW 830, THE TERRITORY OF ALASKA ENACTED LEGISLATION, 87 S.L.A. 1957, TO INSTITUTE THE MENTAL HEALTH PROGRAM. SECTION 129 THEREOF PROVIDES FOR PAYMENT OF FEES AND EXPENSES FOR JUDICIAL PROCEEDINGS WHICH IS BASICALLY A REENACTMENT OF 48 U.S.C. 47 SO FAR AS THE FEDERAL CODE PROVISION PERTAINED TO PAYMENT OF EXPENSES FROM THE SCHEDULE "C" FUND.

THE QUESTIONS PRESENTED FOR OUR DECISION ARE:

1. WHETHER FUND "C" WAS MADE SUBJECT TO EXPENDITURE BY THE TERRITORIAL LEGISLATURE AND ITS AGENCIES.

2. THE FUND FROM WHICH THE EXPENSES OF INSANITY HEARINGS AND THE ASSOCIATED PROCEEDINGS SHALL BE PAID IF THE ANSWER TO THE FOREGOING IS IN THE NEGATIVE.

YOUR LETTER POINTS OUT THAT IF FUND "C" IS AVAILABLE TO THE TERRITORIAL LEGISLATURE THEN, PRESUMABLY, THE LEGISLATURE MAY CHANGE THE FEES NOW BEING PAID AND WHICH HAVE BEEN FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE UNDER THE AUTHORITY OF 48 U.S.C. 25; AND THAT, IN THIS EVENT, PRESUMABLY THE LEGISLATURE COULD ADD NEW FEES AND COULD ENCUMBER FUND "C" WHICH HAS BEEN CONSIDERED IN THE NATURE OF APPROPRIATED FUNDS.

SECTION 9 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 514, AS AMENDED, 48 U.S.C. 77, CREATING A LEGISLATIVE ASSEMBLY FOR THE TERRITORY OF ALASKA, PROVIDES THAT THE LEGISLATIVE POWER OF SAID TERRITORY SHALL EXTEND TO ALL RIGHTFUL SUBJECTS OF LEGISLATION NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES. SINCE THE SCHEDULE "C" FUND IS AN AUTHORIZATION TO USE RECEIPTS WHICH OTHERWISE WOULD BE FOR DEPOSITING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, IT IS IN THE NATURE OF AN APPROPRIATION (29 COMP. GEN. 318) AND, THEREFORE, SUCH FUND MAY NOT BE VIEWED AS SUBJECT TO EXPENDITURE BY THE TERRITORIAL LEGISLATURE. ANY ACTION BY THAT BODY IN REGARD THERETO WOULD BE INCONSISTENT WITH ARTICLE 1, SECTION 9, CLAUSE 7, OF THE CONSTITUTION. HENCE, QUESTION NO. 1 MUST BE ANSWERED IN THE NEGATIVE. HOWEVER, WE DO NOT VIEW THE USE OF THE SCHEDULE ,C" FUND FOR OTHERWISE PROPER JUDICIAL COMMITMENT PROCEEDING EXPENSES AS DEPENDENT UPON SECTION 129 OF 87 S.L.A. 1957.

SECTION 102 OF PUBLIC LAW 830, 84TH CONGRESS, PROVIDES:

IN CARRYING OUT SECTION 101, THE TERRITORIAL LEGISLATURE IS AUTHORIZED TO CONFER UPON UNITED STATES COMMISSIONERS, AS EX-OFFICIO PROBATE JUDGES, AND UPON THE UNITED STATES DISTRICT COURT FOR THE TERRITORY OF ALASKA, SUCH JURISDICTION, FUNCTIONS, AND DUTIES AS IT MAY DEEM APPROPRIATE FOR SUCH PURPOSE.

THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, IN REPORTING H.R. 6376 (ENACTED AS P.L. 830), SENATE REPORT NO. 2053, 84TH CONGRESS, MADE THE FOLLOWING STATEMENT IN THE SECTIONAL ANALYSIS OF THE REPORT ON THE BILL AS AMENDED:

* * * BECAUSE THE COURT WAS CREATED BY ACT OF CONGRESS, AND BECAUSE THE COMMISSIONERS ARE, TECHNICALLY, FEDERAL OFFICERS, SECTION 102 IS DESIGNED TO REMOVE ANY DOUBT THAT ALASKA'S AUTHORITY UNDER SECTION 101 WILL PERMIT THEIR UTILIZATION. SINCE THERE ARE ONLY 4 FEDERAL JUDGES IN THE 550,000- ODD SQUARE MILES OF THE TERRITORY, IT WILL BE NECESSARY FOR THE 15 COMMISSIONERS TO HAVE CERTAIN JUDICIAL POWERS IN THE ADMINISTRATION OF THE PROGRAM. UNDER PRESENT LAW, THE COMMISSIONERS NOW SERVE AS JUDGES IN THE COMPULSORY JURY/TRIAL COMMITMENT PROCEEDINGS.

UNDER THE REFERRED-TO "PRESENT LAW," NAMELY, 48 U.S.C. 47, ALL THE COMPENSATION, MILEAGE, FEES, AND ALL OTHER EXPENSES AND OUTLAYS INCIDENT TO THE PROCEEDINGS WERE PAID IN THE SAME MANNER AND FROM THE SAME FUND (SCHEDULE "C" FUND) AS THE INCIDENTAL EXPENSES OF THE COURT. H.R. 6376, AS IT PASSED THE HOUSE, SET FORTH COMMITMENT PROCEDURES AND INCLUDED THEREIN A SECTION 129 SUBSTANTIALLY SIMILAR TO SECTION 129 OF 87 S.L.A. 1957, AND TO 48 U.S.C. 47. THE BILL WAS AMENDED BY THE SENATE TO OMIT THEREFROM THE DETAILED COMMITMENT PROCEDURES AND SUBSTITUTE IN LIEU THEREOF THE PRESENT SECTIONS 101 AND 102 OF PUBLIC LAW 830. WHILE LEGISLATIVE HISTORY IS REPLETE WITH REASONS FOR PLACING THE RESPONSIBILITY UPON THE TERRITORY OF ALASKA FOR ENACTING ITS OWN COMMITMENT PROCEDURES THERE IS NO INDICATION THEREIN THAT ANY CHANGE WAS INTENDED TO BE MADE IN THE FINANCING OF JUDICIAL COMMITMENT PROCEEDINGS SO AS TO REQUIRE THE COSTS THEREOF TO BE BORNE BY THE TERRITORY OF ALASKA. THIS IS EMPHASIZED IN THE TITLE OF PUBLIC LAW 830 WHICH READS AS FOLLOWS:

TO CONFER UPON ALASKA AUTONOMY IN THE FIELD OF MENTAL HEALTH, TRANSFER FROM THE FEDERAL GOVERNMENT TO THE TERRITORY THE FISCAL AND FUNCTIONAL RESPONSIBILITY FOR THE HOSPITALIZATION OF COMMITTED MENTAL PATIENTS, AND FOR OTHER PURPOSES. ( ITALICS SUPPLIED.)

IT REASONABLY MAY BE CONCLUDED FROM THE FOREGOING COMMENTS THAT SECTION 102 OF PUBLIC LAW 830 VESTING AUTHORITY IN THE TERRITORY OF ALASKA TO CONFER SUCH JURISDICTION, FUNCTIONS, AND DUTIES AS IT MAY DEEM APPROPRIATE UPON THE UNITED STATES COMMISSIONERS AND THE UNITED STATES DISTRICT COURT, DOES NOT CARRY WITH IT THE REQUIREMENTS THAT THE TERRITORY BE RESPONSIBLE FOR THE EXPENSES PRIOR TO COMMITMENT NOR AUTHORIZE THE TERRITORY TO INCREASE, OR OTHERWISE ALTER, THE FEES OF COMMISSIONERS, JURORS AND WITNESSES, ETC., OTHERWISE FIXED PURSUANT TO FEDERAL LAW, POSSIBLY IN SUCH A WAY AS MIGHT DIMINISH THE SCHEDULE "C" FUND AND PRECLUDE THE PAYMENT THEREFROM OF OTHER EXPENSES PROPERLY CHARGEABLE TO THAT FUND. CF. 21 COMP. DEC. 445. SECTION 102 IS DISTINGUISHABLE IN THIS RESPECT FROM 48 U.S.C. 91 WHEREIN PERMISSIVE AUTHORITY IS GRANTED TO THE LEGISLATURE OF THE TERRITORY TO IMPOSE ADDITIONAL DUTIES UPON, AMONG OTHERS, UNITED STATES COMMISSIONERS AND "PROVIDING THE NECESSARY EXPENSES OF PERFORMING SUCH DUTIES.' SEE 21 COMP. DEC. 240.

CONSIDERING THE FOREGOING COMMENTS AND THE PAST HISTORY OF THE PAYMENT OF SUCH EXPENSES IN THE SAME MANNER AS INCIDENTAL EXPENSES OF THE COURT ARE AUTHORIZED TO BE PAID AS PROVIDED IN 48 U.S.C. 106, OUR VIEW IS THAT THE CONTINUED USE OF THE SCHEDULE "C" FUND FOR EXPENSES SUCH AS HERETOFORE AUTHORIZED BY 48 U.S.C. 47 FOR JUDICIAL COMMITMENT PROCEEDINGS IS AUTHORIZED AS A NECESSARY INCIDENT TO THE PROVISIONS OF SECTION 102 OF PUBLIC LAW 830, AND THEREFORE PROPER.

SINCE OUR VIEW IS THAT THE SCHEDULE "C" FUND IS AVAILABLE FOR THE EXPENSES OF INSANITY HEARINGS AND ASSOCIATED PROCEEDINGS, CONSIDERATION OF QUESTION NO. 2 IS NOT REQUIRED.