B-1500, FEBRUARY 16, 1939, 18 COMP. GEN. 668

B-1500: Feb 16, 1939

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1939 - AMENDMENT INHIBITIONS INTERPRETATION A LEGISLATIVE PROVISO IS TO BE CONSTRUED AS RESTRAINING OR MODIFYING THAT WHICH IMMEDIATELY PRECEDES IT UNLESS IT CLEARLY APPEARS THE LEGISLATIVE BODY INTENDED IT TO HAVE A WIDER SCOPE. " IS TO BE CONSTRUED IN ACCORDANCE WITH THE EVIDENT LEGISLATIVE INTENT AND THE RULE OF STATUTORY CONSTRUCTION THAT A PROVISO IS. ACCORDINGLY IS FOR APPLICATION ONLY TO PERSONS EMPLOYED ON PROJECTS AND NOT TO ADMINISTRATIVE EMPLOYEES. AMENDMENTS TO STATUTES ARE PROSPECTIVE ONLY UNLESS RETROACTIVE EFFECT IS REQUIRED BY EXPLICIT LANGUAGE OR BY NECESSARY IMPLICATION. WHICH IS ALSO A JOINT RESOLUTION. AS THE SENTENCE TO WHICH THE CITIZENSHIP AFFIDAVIT PROVISO IS APPENDED IS SPECIFICALLY MADE APPLICABLE TO APPROPRIATIONS MADE BY BOTH RESOLUTIONS.

B-1500, FEBRUARY 16, 1939, 18 COMP. GEN. 668

ALIEN EMPLOYMENT AND CONTINUANCE IN EMPLOYMENT - WORK RELIEF AND RELIEF APPROPRIATION RESOLUTION OF FEBRUARY 4, 1939 - AMENDMENT INHIBITIONS INTERPRETATION A LEGISLATIVE PROVISO IS TO BE CONSTRUED AS RESTRAINING OR MODIFYING THAT WHICH IMMEDIATELY PRECEDES IT UNLESS IT CLEARLY APPEARS THE LEGISLATIVE BODY INTENDED IT TO HAVE A WIDER SCOPE. THE PROVISO IN SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. "THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE AVAILABLE TO PAY ANY PERSON 30 DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP," IS TO BE CONSTRUED IN ACCORDANCE WITH THE EVIDENT LEGISLATIVE INTENT AND THE RULE OF STATUTORY CONSTRUCTION THAT A PROVISO IS, UNLESS OTHERWISE CLEARLY SHOWN, TO BE GIVEN NO WIDER APPLICATION THAN THE ENACTING CLAUSE TO WHICH APPENDED, AND ACCORDINGLY IS FOR APPLICATION ONLY TO PERSONS EMPLOYED ON PROJECTS AND NOT TO ADMINISTRATIVE EMPLOYEES. AMENDMENTS TO STATUTES ARE PROSPECTIVE ONLY UNLESS RETROACTIVE EFFECT IS REQUIRED BY EXPLICIT LANGUAGE OR BY NECESSARY IMPLICATION. THE REQUIREMENT OF SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. 1, AMENDING SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, WHICH IS ALSO A JOINT RESOLUTION, THAT AFFIDAVITS OF CITIZENSHIP SHALL BE FILED WITHIN 30 DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION, HAS REFERENCE TO THE JOINT RESOLUTION OF FEBRUARY 4, 1939, BUT AS THE SENTENCE TO WHICH THE CITIZENSHIP AFFIDAVIT PROVISO IS APPENDED IS SPECIFICALLY MADE APPLICABLE TO APPROPRIATIONS MADE BY BOTH RESOLUTIONS, THE INHIBITION AGAINST EMPLOYING ALIENS OR CONTINUING ALIENS IN EMPLOYMENT IS APPLICABLE TO ALL PROJECTS PROSECUTED UNDER EITHER OF THE APPROPRIATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, FEBRUARY 16, 1939:

YOUR LETTER OF FEBRUARY 14, 1939, IS AS FOLLOWS:

PUBLIC RESOLUTION NO. 1, 76TH CONGRESS, APPROVED FEBRUARY 4, 1939, "MAKING AN ADDITIONAL APPROPRIATION FOR WORK RELIEF AND RELIEF FOR THE FISCAL YEAR ENDING JUNE 30, 1939," AMENDS, BY SECTION 2, SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 809.

THE LANGUAGE OF SECTION 11, AS AMENDED, APPEARS TO BE SOMEWHAT AMBIGUOUS. IT IS NOT CLEAR FROM THE PROVISO "THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE AVAILABLE TO PAY ANY PERSON * * *"WHETHER THIS PROVISION IS APPLICABLE TO ADMINISTRATIVE EMPLOYEES OR MERELY TO WORKERS EMPLOYED ON PROJECTS. THE PROVISION WITH REFERENCE TO THE FURNISHING OF AFFIDAVITS AS TO UNITED STATES CITIZENSHIP IS A PROVISO TO THE FIRST PORTION OF THE SECTION WHICH DEALS WITH THE NONEMPLOYMENT OF ALIENS ON PROJECTS. IT IS TO BE NOTED, FURTHERMORE, THAT THE FURTHER PROVISO IN THE SECTION WITH REGARD TO PREFERENCE IN EMPLOYMENT ALSO REFERS TO "SUCH PROJECTS.' IT WOULD APPEAR, THEREFORE, THAT THE PROVISO AS TO SUCH AFFIDAVITS IS APPLICABLE ONLY TO PROJECT EMPLOYEES AND NOT TO ADMINISTRATIVE EMPLOYEES. YOUR OPINION ON THIS MATTER IS REQUESTED.

THE PROVISO OF THE SECTION WITH REFERENCE TO THE FURNISHING OF AFFIDAVITS AS TO CITIZENSHIP REFERS TO A DATE "THIRTY DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION.' IT WOULD NOT APPEAR TO HAVE BEEN THE INTENT OF THE CONGRESS RETROACTIVELY TO REQUIRE AFFIDAVITS FROM A DATE THIRTY DAYS AFTER THE PASSAGE OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, AND IT WOULD SEEM, THEREFORE, THAT SUCH PROVISION WAS INTENDED TO BE APPLICABLE ONLY TO FUNDS APPROPRIATED BY THE DEFICIENCY ACT. YOUR OPINION IS FURTHER REQUESTED, THEREFORE, AS TO WHETHER THE PROVISION "THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE AVAILABLE TO PAY ANY PERSON THIRTY DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP, SUCH AFFIDAVIT TO BE CONSIDERED PRIMA FACIE EVIDENCE OF SUCH CITIZENSHIP," IS APPLICABLE ONLY TO FUNDS APPROPRIATED BY THE DEFICIENCY ACT OR TO SUCH FUNDS AND FUNDS APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938.

IN VIEW OF THE TIME NEEDED TO HAVE AFFIDAVITS PRINTED FOR EXECUTION BY THE EMPLOYEES OF THIS DEPARTMENT WHO ARE CONCERNED IN THE EVENT THAT YOUR OPINION RENDERS SUCH ACTION NECESSARY, AND THE THIRTY-DAY REQUIREMENT OF THE STATUTE, AN EARLY REPLY WILL BE GREATLY APPRECIATED.

SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. 1, 53 STAT. 508, PROVIDES:

SEC. 2. SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 11. NO ALIEN SHALL BE GIVEN EMPLOYMENT OR CONTINUED IN EMPLOYMENT ON ANY PROJECT PROSECUTED UNDER THE APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR THIS JOINT RESOLUTION: PROVIDED, THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE AVAILABLE TO PAY ANY PERSON THIRTY DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP, SUCH AFFIDAVIT TO BE CONSIDERED PRIMA FACIE EVIDENCE OF SUCH CITIZENSHIP: * *

IT IS A WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT THE OFFICE OF A PROVISO IS TO RESTRAIN OR MODIFY THAT WHICH IMMEDIATELY PRECEDES IT UNLESS IT CLEARLY APPEARS THAT THE LEGISLATIVE BODY INTENDED IT TO HAVE A WIDER SCOPE. WHEN THE HOUSE JOINT RESOLUTION 83 -- WHICH BECAME PUBLIC RESOLUTION NO. 1--- FIRST PASSED THE HOUSE IT CONTAINED A PROVISO "THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE PAID TO ANYONE WHO IS NOT A CITIZEN OF THE UNITED STATES OF AMERICA.' THE SENATE COMMITTEE AMENDED THE RESOLUTION BY STRIKING OUT SAID PROVISO AND SUBSTITUTING IN LIEU THEREOF AS SECTION 2 SUBSTANTIALLY THE SAME LANGUAGE AS FORMERLY CONTAINED IN SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938. EXPLANATION OF THE AMENDMENT THE FOLLOWING STATEMENT WAS MADE (SENATE REPORT NO. 4) WITH REFERENCE TO THE HOUSE PROVISO:

THE EFFECT OF SUCH A REQUIREMENT WOULD BE THAT EACH OF THE APPROXIMATELY 3,000,000 W.P.A. WORKERS WOULD BE REQUIRED TO SUBMIT A BIRTH CERTIFICATE OR NATURALIZATION PAPERS OR OTHER COMPETENT DOCUMENTARY EVIDENCE TO THE W.P.A. BEFORE PAYMENTS COULD BE EFFECTED FROM THE FUNDS APPROPRIATED IN HOUSE JOINT RESOLUTION 83. IT WOULD REQUIRE MONTHS TO VERIFY THE CITIZENSHIP STATUS OF ALL WORKERS EMPLOYED ON W.P.A., AS IN MANY PLACES NO BIRTH RECORDS OR OTHER EVIDENCE TO ESTABLISH CITIZENSHIP ARE MAINTAINED.

THESE SENATE COMMITTEE AMENDMENTS WERE ADOPTED BY THE SENATE, THE ONE STRIKING OUT THE HOUSE PROVISO BEING NO. 10 AND THE ONE SUBSTITUTING SECTION 2 IN LIEU THEREOF BEING NO. 13.

IN CONFERENCE SENATE AMENDMENT NO. 10 WAS AGREED TO AND SENATE AMENDMENT NO. 13 WAS AGREED TO AFTER BEING AMENDED TO READ AS IT NOW APPEARS IN PUBLIC RESOLUTION NO. 1. IN EXPLANATION OF THIS ACTION THE FOLLOWING STATEMENT WAS MADE BY THE MANAGERS ON THE PART OF THE HOUSE:

AMENDMENTS NOS. 10 AND 13: STRIKES OUT, AS PROPOSED BY THE SENATE, THE HOUSE PROVISION DIRECTED AGAINST ALIENS PARTICIPATING IN THE APPROPRIATION CONTAINED IN THE INSTANT JOINT RESOLUTION, AND IN LIEU THEREOF, INSTEAD OF REENACTING SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, AS PROPOSED BY THE SENATE, REENACTS SUCH SECTION AMENDED TO EXCLUDE ALIENS, AND REQUIRING ALL PERSONS EMPLOYED ON RELIEF PROJECTS TO MAKE AFFIDAVIT AS TO THEIR UNITED STATES CITIZENSHIP AS A CONDITION PRECEDENT TO THE PAYMENT OF COMPENSATION. (HOUSE REPORT NO. 15, PAGE 5).

THE LEGISLATIVE INTENT AS THUS EXPRESSED IS IN ACCORD WITH THE INTENT AS DISCLOSED BY THE APPLICATION OF THE GENERAL RULE OF CONSTRUCTION TO THE PROVISO AS IT APPEARS IN THE JOINT RESOLUTION OF FEBRUARY 4, 1939. I AM CONSTRAINED TO HOLD THAT THE EFFECT OF THE PROVISION AS ENACTED IS THAT ONLY PERSONS EMPLOYED ON PROJECTS ARE REQUIRED TO MAKE AFFIDAVITS AS TO THEIR CITIZENSHIP.

THE REQUIREMENT THAT THE AFFIDAVITS OF CITIZENSHIP SHALL BE FILED WITHIN "30 DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION," EVEN THOUGH CONTAINED IN AN AMENDMENT OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, WHICH, ALSO, IS A JOINT RESOLUTION, UNDOUBTEDLY RELATES TO THE JOINT RESOLUTION OF FEBRUARY 4, 1939, THUS CONFORMING TO THE GENERAL RULE OF STATUTORY CONSTRUCTION THAT AMENDMENTS TO STATUTES ARE PROSPECTIVE, ONLY, UNLESS RETROACTIVE EFFECT IS REQUIRED BY EXPLICIT LANGUAGE OR BY NECESSARY IMPLICATION. UNITED STATES V. ST. LOUIS, ETC. RAILWAY COMPANY, 270 U.S. 1; 16 COMP. GEN. 1051; 17 ID. 690.

WITH RESPECT TO YOUR QUESTION WHETHER THE AFFIDAVITS OF CITIZENSHIP ARE TO BE RESTRICTED TO EMPLOYEES PAID FROM THE FUNDS APPROPRIATED BY "THE DEFICIENCY ACT," THAT IS, THE JOINT RESOLUTION OF FEBRUARY 4, 1939, IT WILL BE NOTED THAT THE SENTENCE TO WHICH THE PROVISO IS APPENDED IS SPECIFICALLY MADE APPLICABLE TO APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 AND THOSE IN THE PRESENT JOINT RESOLUTION. HENCE, SINCE THE INHIBITION AGAINST EMPLOYING ALIENS OR CONTINUING ALIENS IN EMPLOYMENT IS APPLICABLE TO ALL PROJECTS PROSECUTED UNDER EITHER OF THE TWO APPROPRIATIONS REFERRED TO, AND THE ONLY PURPOSE OF THE AFFIDAVITS IS TO SERVE AS PRIMA FACIE EVIDENCE THAT THE EMPLOYEES ARE NOT ALIENS, I HAVE TO ADVISE THAT THE CITIZENSHIP AFFIDAVITS SHOULD BE REQUIRED OF ALL PROJECT EMPLOYEES WHOSE AMERICAN CITIZENSHIP IS NOT OTHERWISE SHOWN BY CONCLUSIVE PROOF REGARDLESS OF WHETHER THEY ARE PAID FROM FUNDS APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR BY THE JOINT RESOLUTION OF FEBRUARY 4, 1939.