B-139040, AUG. 20, 1959

B-139040: Aug 20, 1959

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WELFARE: WE HAVE FOR CONSIDERATION THE QUESTION OF THE CORRECTNESS OF THE RATE OF SALARY PAID TO YOUR GENERAL COUNSEL DURING THE PERIOD AUGUST 18. WHICH WAS APPROVED AT 5:00 P.M. SECTION 2 (A) OF THAT ACT IS AS FOLLOWS: "THERE SHALL BE IN THE DEPARTMENT OF HEALTH. WELFARE STATES THAT THIS PROVISION IS DESIRABLE TO CONFORM THE STATUS OF THIS POSITION WITH THAT OF THE CHIEF LEGAL OFFICERS OF OTHER EXECUTIVE DEPARTMENTS HAVING COMPARABLE FUNCTIONS AND RESPONSIBILITIES.'. WELFARE STATES THAT THIS PROVISION IS DESIRABLE TO CONFORM THE STATUS OF THIS POSITION WITH THAT OF THE CHIEF LEGAL OFFICERS OF OTHER EXECUTIVE DEPARTMENTS HAVING COMPARABLE FUNCTIONS AND RESPONSIBILITIES.'. IT IS REASONABLY CLEAR FROM THE LEGISLATIVE HISTORY OF SECTION 2 (A) THAT THE INTENT OF THE SECTION IS TO CONFER UPON THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH.

B-139040, AUG. 20, 1959

TO THE SECRETARY HEALTH, EDUCATION, AND WELFARE:

WE HAVE FOR CONSIDERATION THE QUESTION OF THE CORRECTNESS OF THE RATE OF SALARY PAID TO YOUR GENERAL COUNSEL DURING THE PERIOD AUGUST 18, 1956, TO DATE. WE UNDERSTAND THAT SINCE AUGUST 18, 1956, HE HAS BEEN PAID AT THE RATE OF $20,000 PER ANNUM PURPORTEDLY UNDER THE AUTHORITY OF SECTION 2 (A) OF THE ACT OF JULY 31, 1956, PUBLIC LAW 852, WHICH WAS APPROVED AT 5:00 P.M. ON THAT DATE. SECTION 2 (A) OF THAT ACT IS AS FOLLOWS:

"THERE SHALL BE IN THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, A GENERAL COUNSEL WHO SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND SHALL RECEIVE COMPENSATION AT THE RATE NOW OR HEREAFTER PROVIDED BY LAW FOR ASSISTANT SECRETARIES OF EXECUTIVE DEPARTMENTS. THE GENERAL COUNSEL SHALL BE THE CHIEF LEGAL OFFICER OF THE DEPARTMENT AND SHALL PERFORM SUCH FUNCTIONS AS THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE MAY PRESCRIBE.'

THE FOLLOWING EXPLANATION OF SECTION 2 APPEARS ON PAGE 2 OF HOUSE REPORT NO. 2703 DATED JULY 12, 1956:

"SECTION 2 PROVIDES FOR THE APPOINTMENT BY THE PRESIDENT OF A GENERAL COUNSEL, WITH SENATE CONFIRMATION, WHO SHALL BE THE CHIEF LEGAL OFFICER OF THE DEPARTMENT, AND ACT AS SECRETARY DURING THE ABSENCE OR DISABILITY, OR IN THE EVENT OF A VACANCY IN THE OFFICE, OF THE SECRETARY AND OF THE UNDER SECRETARY AND THE ASSISTANT SECRETARIES. THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE STATES THAT THIS PROVISION IS DESIRABLE TO CONFORM THE STATUS OF THIS POSITION WITH THAT OF THE CHIEF LEGAL OFFICERS OF OTHER EXECUTIVE DEPARTMENTS HAVING COMPARABLE FUNCTIONS AND RESPONSIBILITIES.'

A SIMILAR EXPLANATION APPEARS IN SENATE REPORT NO. 2192 DATED JUNE 11, 1956. MR. BIBLE IN EXPLAINING SECTION 2 ON THE FLOOR OF THE SENATE, SEE PAGE 9368 OF THE CONGRESSIONAL RECORD FOR JUNE 14, 1956, SAID:

"* * * THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE STATES THAT THIS PROVISION IS DESIRABLE TO CONFORM THE STATUS OF THIS POSITION WITH THAT OF THE CHIEF LEGAL OFFICERS OF OTHER EXECUTIVE DEPARTMENTS HAVING COMPARABLE FUNCTIONS AND RESPONSIBILITIES.'

IT IS REASONABLY CLEAR FROM THE LEGISLATIVE HISTORY OF SECTION 2 (A) THAT THE INTENT OF THE SECTION IS TO CONFER UPON THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, A STATUS COMPARABLE WITH THAT OF THE CHIEF LEGAL OFFICERS OF THE OTHER EXECUTIVE DEPARTMENTS HAVING SIMILAR FUNCTIONS AND RESPONSIBILITIES.

WE DEEM IT PROPER HERE TO CONSIDER TWO SITUATIONS OUTSIDE YOUR DEPARTMENT IN PARA MATERIA: AT THE TIME OF ENACTMENT OF PUBLIC LAW 852 AND IMMEDIATELY PRIOR TO THE ENACTMENT OF PUBLIC LAW 854, THE ACT OF MARCH 18, 1904, AS AMENDED BY THE ACT OF AUGUST 20, 1954, 68 STAT. 753, PRESCRIBED THE MANNER OF APPOINTMENT AND THE RATE OF COMPENSATION OF THE GENERAL COUNSEL IN THE DEPARTMENT OF COMMERCE AS FOLLOWS:

"THERE SHALL BE IN THE DEPARTMENT OF COMMERCE A GENERAL COUNSEL, WHO SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO SHALL HAVE BASIC COMPENSATION AT THE RATE PER ANNUM PROVIDED FOR ASSISTANT SECRETARIES.'

SIMILARLY SECTION 4 OF REORGANIZATION PLAN NO. 6 OF 1953, 67 STAT. WAS IN EFFECT UNTIL THE DATE OF ENACTMENT OF PUBLIC LAW 854. SEC. 639, RELATING TO THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, 4 OF THE REORGANIZATION PLAN IS AS FOLLOWS:

"GENERAL COUNSEL.--- THE PRESIDENT MAY APPOINT FROM CIVILIAN LIFE, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, A GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE WHO SHALL BE THE CHIEF LEGAL OFFICER OF THE DEPARTMENT, AND WHO SHALL PERFORM SUCH FUNCTIONS AS THE SECRETARY OF DEFENSE MAY FROM TIME TO TIME PRESCRIBE. HE SHALL RECEIVE COMPENSATION AT THE RATE PRESCRIBED BY LAW FOR ASSISTANT SECRETARIES OF EXECUTIVE DEPARTMENTS.'

AS WE POINTED OUT ABOVE, THE COMPENSATION OF THE GENERAL COUNSEL OF YOUR DEPARTMENT IS AUTHORIZED BY LANGUAGE IN PUBLIC LAW 852, AS FOLLOWS:

"* * * AND SHALL RECEIVE COMPENSATION AT THE RATE NOW OR HEREAFTER PROVIDED BY LAW FOR ASSISTANT SECRETARIES OF EXECUTIVE DEPARTMENTS * *

THAT PROVISION IS SUBSTANTIALLY IDENTICAL WITH THAT CONTAINED IN THE ACT OF MARCH 18, 1904, AS AMENDED, PRESCRIBING THE COMPENSATION OF THE GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE, AND IN SECTION 4 OF REORGANIZATION PLAN NO. 6 OF 1953, PRESCRIBING THE COMPENSATION OF THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE. WHILE IT DOES INCLUDE THE WORDS "NOW OR HEREAFTER" WHICH DO NOT APPEAR IN THE LAWS PRESCRIBING THE COMPENSATION OF THE GENERAL COUNSELS OF THE DEPARTMENT OF COMMERCE AND THE DEPARTMENT OF DEFENSE, WE DO NOT REGARD THE INCLUSION OF SUCH WORDS TO BE MATERIAL. THE EFFECT OF THE OTHER LAWS--- THOUGH NOT INCLUDING SUCH WORDS--- WOULD BE THE SAME. IN OUR OPINION IT IS EVIDENT THAT THE PROVISIONS PRESCRIBING THE RATE OF COMPENSATION FOR THE GENERAL COUNSELS OF THE DEPARTMENT OF COMMERCE AND THE DEPARTMENT OF DEFENSE WERE JUST AS SPECIFIC AS THE PROVISION IN SECTION 2 (A) OF PUBLIC LAW 852 PRESCRIBING THE COMPENSATION OF THE GENERAL COUNSEL OF YOUR DEPARTMENT. YET WE HAVE NO DOUBT THAT THE EFFECT OF PUBLIC LAW 854 IS TO SUPERSEDE THE PROVISIONS PRESCRIBING THE COMPENSATION OF THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE AND THE GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE SINCE PUBLIC LAW 854 IS IRRECONCILABLY INCONSISTENT WITH THE EARLIER PROVISIONS. SUCH A CONSTRUCTION IS SUPPORTED STRONGLY BY THE FACT THAT SUBSEQUENTLY A SPECIFIC STATUTORY PROVISION WAS DEEMED NECESSARY AND WAS ENACTED TO RESTORE THE AUTHORITY TO COMPENSATE THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 OF REORGANIZATION PLAN NO. 6 OF 1953. SEE SECTION 314 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1958, 71 STAT. 430. IN FACT AT THE PRESENT TIME THERE ARE PENDING BEFORE THE SENATE A BILL (S. 1198) WHICH WOULD INCREASE THE SALARY OF THE GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE TO $20,000 A YEAR AND ANOTHER BILL (S. 1572) WHICH WOULD INCREASE THE COMPENSATION OF THE GENERAL COUNSELS OF THE EXECUTIVE DEPARTMENTS TO $20,000 PER ANNUM.

ALSO, IT IS SIGNIFICANT THAT PRIOR TO ENACTMENT OF PUBLIC LAW 854 THE CHIEF LEGAL OFFICERS OF ALL EXECUTIVE DEPARTMENTS, OTHER THAN COMMERCE AND DEFENSE, WERE ENTITLED ONLY TO LESSER RATES OF COMPENSATION THAN THOSE PRESCRIBED FOR ASSISTANT SECRETARIES. THE LEGISLATIVE HISTORY OF SECTION 2 (A) OF PUBLIC LAW 853 CLEARLY SHOWS THAT SUCH SECTION WAS INTENDED TO GIVE THE GENERAL COUNSEL OF YOUR DEPARTMENT A STATUS COMPARABLE WITH THAT OF THE CHIEF LEGAL OFFICERS OF OTHER EXECUTIVE DEPARTMENTS WHO HAVE SIMILAR DUTIES AND RESPONSIBILITIES. WE DO NOT BELIEVE THAT IT WAS INTENDED TO PLACE HIM IN A CATEGORY ENTITLING HIM TO COMPENSATION BENEFITS GREATER THAN THOSE APPLICABLE TO THE CHIEF LEGAL OFFICER OF ANY OTHER EXECUTIVE DEPARTMENT.

AT THE TIME THE CONGRESS WAS CONSIDERING S. 3768, WHICH BECAME PUBLIC LAW 852, IT ALSO WAS CONSIDERING H.R. 7619, ENACTED AS PUBLIC LAW 854, TITLE I OF WHICH IS OFFICIALLY ENTITLED THE FEDERAL EXECUTIVE PAY ACT OF 1956. H.R. 7619 ALSO WAS SIGNED BY THE PRESIDENT ON JULY 31 1956. ALTHOUGH THE PRESIDENT SIGNED THAT BILL ONLY 10MINUTES AFTER HE HAD SIGNED PUBLIC LAW 852, THE CONGRESS COMPLETED ITS ACTION UPON THE BILL ENACTED AS PUBLIC LAW 852, 3 OR 4 DAYS PRIOR TO THE COMPLETION OF ITS ACTION THE BILL ENACTED AS PUBLIC LAW 854. DURING THOSE 3 OR 4 DAYS THE CONGRESS SPECIFICALLY DETERMINED THE COMPENSATION WHICH WOULD BE PAYABLE TO THE CHIEF LEGAL OFFICERS OF ALL EXECUTIVE DEPARTMENTS. AT THE TIME THAT THE CONGRESS COMPLETED ITS ACTION UPON THE BILL ENACTED AS PUBLIC LAW 852, THERE STILL WAS DISAGREEMENT BETWEEN THE SENATE AND THE HOUSE OF REPRESENTATIVES CONCERNING THE COMPENSATION WHICH SHOULD BE PROVIDED FOR THE CHIEF LEGAL OFFICERS OF THE EXECUTIVE DEPARTMENTS. THE HOUSE BILL HAD PROVIDED THAT THEY SHOULD RECEIVE THE SAME PAY APPLICABLE TO ASSISTANT SECRETARIES OF THE EXECUTIVE DEPARTMENTS, NAMELY, COMPENSATION AT THE RATE OF $19,000 PER ANNUM. THE BILL AS IT PASSED THE SENATE ALSO PROVIDED THAT BOTH ASSISTANT SECRETARIES AND GENERAL COUNSELS SHOULD RECEIVE THE SAME PAY, BUT AT THE RATE OF $20,000 PER ANNUM. THE BILL THEN WAS REFERRED TO A CONFERENCE COMMITTEE OF THE TWO HOUSES. THAT COMMITTEE AGREED THAT A DISTINCTION SHOULD BE MADE BETWEEN THE PAY APPLICABLE TO ASSISTANT SECRETARIES AND THAT APPLICABLE TO THE CHIEF LEGAL OFFICERS IN THE EXECUTIVE DEPARTMENTS. IT AGREED THAT THE ASSISTANT SECRETARIES SHOULD BE PAID AT THE RATE OF $20,000 PER ANNUM BUT THAT THE "LEGAL ADVISER, SOLICITOR OR GENERAL COUNSEL OF AN EXECUTIVE OR MILITARY DEPARTMENT (EXCLUDING THE DEPARTMENT OF JUSTICE)" SHOULD BE PAID AT THE RATE OF $19,000 PER ANNUM. THE STATEMENT BY THE MANAGERS ON THE PART OF THE HOUSE APPEARING IN THE CONFERENCE REPORT (HOUSE REPORT NO. 2935, JULY 26, 1956) CONTAINS THE FOLLOWING LANGUAGE AT PAGES 30 AND 31:

"THE CONFERENCE SUBSTITUTE ESTABLISHES A PROPER ALINEMENT BETWEEN SALARIES OF CABINET OFFICERS, SUB-CABINET OFFICERS, AND THE HEADS OF THE VARIOUS AGENCIES, INDEPENDENT ESTABLISHMENTS, AND BUREAUS IN ACCORDANCE WITH THE LEVEL OF THE DUTIES AND RESPONSIBILITIES OF SUCH POSITIONS.'

THE BILL FINALLY WAS ENACTED IN SUBSTANTIALLY THE FORM AGREED UPON BY THE CONFERENCE COMMITTEE. TITLE I IS, IN EFFECT, A REVISION OF THE VARIOUS STATUTES PRESCRIBING THE COMPENSATION OF TOP LEVEL OFFICIALS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT IN EXISTENCE IMMEDIATELY PRIOR TO ITS EFFECTIVE DATE. WE VIEW THE TITLE AS COMPRISING THE SOLE AND COMPLETE LAW UPON THE SUBJECT OF EXECUTIVE PAY WHICH SUPERSEDES ALL PRIOR LAWS RELATING TO THE PAY OF THE OFFICIALS INCLUDED WITHIN ITS PROVISIONS WHETHER SUCH LAWS BE SPECIAL OR GENERAL. SEE 50 AM.JR. STATUTES 558. CF. 12 COMP. GEN. 61. WE THINK IT FAIR TO SAY THAT IN ENACTING TITLE I OF PUBLIC LAW 854 IN THE FORM AGREED UPON IT WAS SPECIFICALLY INTENDED THAT THE CHIEF LEGAL OFFICER OF EVERY EXECUTIVE DEPARTMENT (EXCEPT JUSTICE) WOULD BE ENTITLED TO THE SAME PER ANNUM SALARY ($19,000).

RULES OF STATUTORY CONSTRUCTION ARE MERELY AIDS FOR DETERMINING THE INTENT OF THE LEGISLATURE. THE DOMINANT OBJECTIVE OF ANY RULE OF STATUTORY INTERPRETATION IS TO ASCERTAIN THE TRUE INTENT OF THE LEGISLATURE. EVERY TECHNICAL RULE OF CONSTRUCTION IS SUBSERVIENT TO THAT END. SEE 50 AM.JR. STATUTES, 220, 224. EVEN THOUGH PUBLIC LAW 852 AND PUBLIC LAW 854 BE REGARDED AS STATUTES IN PARI MATERIA THE LEGISLATIVE HISTORY OF EACH MUST BE CONSIDERED TOGETHER WITH THAT OF THE OTHER FOR THE PURPOSE OF DETERMINING THE INTENT OF CONGRESS. WHEN ACTS PASSED AT THE SAME SESSION OF THE LEGISLATURE CONTAIN CONFLICTING PROVISIONS OF THE WHOLE RECORD OF THE LEGISLATURE MUST BE EXAMINED TO ASCERTAIN THE LEGISLATIVE INTENT AND SUCH INTENT WHEN ASCERTAINED SHOULD BE GIVEN EFFECT. SEE 82 C.J.S. STATUTES, 367 AT PAGE 836. THE LEGISLATIVE HISTORY OF BOTH PUBLIC LAW 852 AND PUBLIC LAW 854 WHEN CONSIDERED TOGETHER LEADS US TO THE CONCLUSION THAT THE INTENT OF THE CONGRESS WAS THAT THE CHIEF LEGAL OFFICER OF EACH EXECUTIVE DEPARTMENT SHOULD RECEIVE THE SAME RATE OF COMPENSATION.

ON THE OTHER HAND, CONSIDERABLE AUTHORITY EXISTS FOR THE VIEW THAT WHEN STATUTES ARE IN IRRECONCILABLE CONFLICT THEY MAY NOT BE REGARDED AS STATUTES IN PARI MATERIA. IN RE CLARK'S ESTATE, 74 PAC.2D. 401, 114 ALR 496, 50 AM.JR. STATUTES 351. IN SUCH A CASE THE GENERAL RULE IS THAT WHEN STATUTES ARE PASSED AT THE SAME SESSION OF THE LEGISLATURE THE LATEST IN POINT OF TIME WILL PREVAIL. THIS IS SO EVEN THOUGH BOTH STATUTES MAY HAVE BEEN APPROVED ON THE SAME DAY. STATE V. MARCUS, 281 PAC. 454. IT ALSO HAS BEEN HELD THAT WHEN TWO STATUTES ARE IN CONFLICT THE STATUTE LAST PASSED BY THE LEGISLATURE WILL PREVAIL EVEN THOUGH IT WAS APPROVED BY THE EXECUTIVE BEFORE APPROVAL OF THE OTHER STATUTE. CENTRAL HANOVER BANK AND TRUST COMPANY V. BOCCIA, 278 N.Y.S. 737.

IF IT BE ARGUED THAT PUBLIC LAW 852 IS SPECIFIC IN ITS APPLICATION TO THE OFFICE OF GENERAL COUNSEL, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, IT MAY BE POINTED OUT THAT PUBLIC LAW 854 LIKEWISE SPECIFICALLY CONSIDERS THAT OFFICE AS INDICATED IN SECTION 301 AS FOLLOWS:

"THE PRESIDENT SHALL HEREAFTER APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, * * * A GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

"/B) THE EXISTING OFFICES OF GENERAL COUNSEL * * * THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SHALL BE ABOLISHED EFFECTIVE UPON THE APPOINTMENT AND QUALIFICATION OF THE GENERAL COUNSELS * * * PROVIDED FOR BY SUBSECTION (A) OR APRIL 1, 1957, WHICHEVER IS EARLIER.'

SINCE TITLE I OF PUBLIC LAW 854 IS REGARDED SOLE AND EXCLUSIVE LAW UPON THE SUBJECT OF EXECUTIVE PAY RATES, ITS PROVISIONS MUST BE GIVEN EFFECT ALTHOUGH INCONSISTENT WITH THE PAY RATE PROVISIONS APPEARING IN SECTION 2 OF PUBLIC LAW 852. MOREOVER IT IS IMMATERIAL WHETHER THE TWO STATUTES BE REGARDED AS BEING IN PARI MATERIA SINCE THE CONCLUSION WOULD BE THE SAME IN EITHER CASE. IF THE STATUTES ARE REGARDED AS IN PARI MATERIA THE LEGISLATIVE HISTORY OF EACH, WHEN CONSIDERED TOGETHER, PLAINLY SHOWS THAT THE TRUE INTENT OF CONGRESS, WHICH MUST BE EFFECTUATED, WAS TO PROVIDE A SINGLE RATE OF COMPENSATION, NAMELY $19,000 PER ANNUM, FOR THE CHIEF LEGAL OFFICERS OF THE RESPECTIVE EXECUTIVE DEPARTMENTS. ON THE OTHER HAND, IF THE TWO STATUTES ARE REGARDED AS IN IRRECONCILABLE CONFLICT PUBLIC LAW 854 WHICH WAS PASSED BY THE CONGRESS AND APPROVED BY THE PRESIDENT AFTER PASSAGE AND AFTER APPROVAL OF PUBLIC LAW 852 WOULD SUPERSEDE THE CONFLICTING PROVISIONS IN THE EARLIER LAW AND WOULD LIMIT THE RATE OF COMPENSATION PAYABLE TO YOUR GENERAL COUNSEL TO $19,000 PER ANNUM.

WE NOTE THAT THE SENATE COMMITTEE ON APPROPRIATIONS DURING ITS CONSIDERATION OF THE APPROPRIATION FOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE FOR THE FISCAL YEAR 1960 (H.R. 6769), AMENDED THE BILL AS PASSED BY THE HOUSE OF REPRESENTATIVES BY INSERTING A PROVISO TO THE LANGUAGE APPEARING UNDER THE CAPTION "SALARIES AND EXPENSES, OFFICE OF THE GENERAL COUNSEL.' THAT PROVISO READS AS FOLLOWS:

"* * * PROVIDED, THAT THE RATE OF COMPENSATION OF THE GENERAL COUNSEL SHALL BE THAT PRESCRIBED BY THE ACT OF JULY 31, 1956 (5 U.S.C. 623B (A) (, SO LONG AS THE POSITION IS HELD BY THE PRESENT INCUMBENT.'

THE COMMITTEE REPORT IN EXPLAINING THE PROVISO POINTS OUT THAT THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, HAS RECEIVED COMPENSATION AT THE RATE ($20,000 PER YEAR) PRESCRIBED FOR ASSISTANT SECRETARIES FOR THREE YEARS BUT THAT THERE MAY BE SOME QUESTION CONCERNING HIS ENTITLEMENT TO SUCH RATE OF COMPENSATION. IT, THEREFORE, RECOMMENDED THAT THE SALARY APPLICABLE TO ASSISTANT SECRETARIES BE AUTHORIZED FOR THE POSITION OF GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE FOR THE PERIOD THE PRESENT INCUMBENT OCCUPIES THAT POSITION. THIS PROVISO WAS RETAINED IN THE BILL AS FINALLY ENACTED BY THE CONGRESS AS PUBLIC LAW 86-158 AND APPROVED BY THE PRESIDENT ON AUGUST 14, 1959.

IN VIEW OF ITS HISTORY AND PURPOSE, WE REGARD THE PROVISO NOT ONLY AS CONSTITUTING AUTHORITY FOR MAKING PROSPECTIVE PAYMENTS TO THE PRESENT INCUMBENT OF THE POSITION OF GENERAL COUNSEL UNDER YOUR DEPARTMENT AT THE RATE APPLICABLE TO ASSISTANT SECRETARIES BUT, ALSO, AS VALIDATING PRIOR PAYMENTS MADE AT SUCH RATE. HOWEVER, SINCE THE PROVISO IS ONLY APPLICABLE "SO LONG AS THE POSITION IS HELD BY THE PRESENT INCUMBENT" THE COMPENSATION OF ANY FUTURE INCUMBENT OF SUCH OFFICE MUST BE IN ACCORDANCE WITH THAT PRESCRIBED IN TITLE I OF THE EXECUTIVE PAY ACT, PUBLIC LAW 854, OR SUCH OTHER CONTROLLING LEGISLATION AS MAY BE ENACTED HEREAFTER.