B-35238, MARCH 18, 1944, 23 COMP. GEN. 689

B-35238: Mar 18, 1944

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" DOES NOT OPERATE TO MAKE AVAILABLE FOR REPAYMENT OF SUCH LOANS THE UNOBLIGATED BALANCE OF AN APPROPRIATION WHICH HAS BEEN CARRIED TO THE SURPLUS FUND OF THE TREASURY IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. 713 AFTER HAVING REMAINED ON THE BOOKS OF THE TREASURY FOR TWO FULL FISCAL YEARS FOLLOWING THE CLOSE OF THE FISCAL YEAR FOR WHICH THE APPROPRIATION WAS MADE. AS FOLLOWS: REFERENCE IS MADE TO A CONFERENCE WITH REPRESENTATIVES OF YOUR OFFICE. AS A RESULT OF WHICH CONFERENCE IT WAS UNDERSTOOD THAT THE MATTER WOULD BE SUBMITTED TO YOU FORMALLY FOR FURTHER CONSIDERATION. THE FUND WAS SOUGHT FOR THE PURPOSE OF MAKING REPAYMENT OF LOANS MADE TO THE SECRETARY OF AGRICULTURE DURING THE FISCAL YEAR 1942 BY THE COMMODITY CREDIT CORPORATION PURSUANT TO THE SAID SECTION 391 (C).

B-35238, MARCH 18, 1944, 23 COMP. GEN. 689

APPROPRIATIONS - AGRICULTURE DEPARTMENT - AVAILABILITY OF LAPSED APPROPRIATIONS FOR REPAYMENT OF COMMODITY CREDIT CORPORATION LOANS THE PROVISION IN SECTION 391 (C) OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED, THAT FUNDS LOANED BY THE COMMODITY CREDIT CORPORATION TO THE SECRETARY OF AGRICULTURE FOR CERTAIN PURPOSES AS AUTHORIZED THEREIN SHALL BE REPAID "* * * FROM AN UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR," DOES NOT OPERATE TO MAKE AVAILABLE FOR REPAYMENT OF SUCH LOANS THE UNOBLIGATED BALANCE OF AN APPROPRIATION WHICH HAS BEEN CARRIED TO THE SURPLUS FUND OF THE TREASURY IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. 713 AFTER HAVING REMAINED ON THE BOOKS OF THE TREASURY FOR TWO FULL FISCAL YEARS FOLLOWING THE CLOSE OF THE FISCAL YEAR FOR WHICH THE APPROPRIATION WAS MADE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR FOOD ADMINISTRATION, MARCH 18, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 29, 1943, AS FOLLOWS:

REFERENCE IS MADE TO A CONFERENCE WITH REPRESENTATIVES OF YOUR OFFICE, CONCERNING THE USE OF FUNDS MADE AVAILABLE BY THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1939, IN MAKING REPAYMENT OF LOANS MADE TO THE SECRETARY OF AGRICULTURE DURING THE FISCAL YEAR 1942 BY COMMODITY CREDIT CORPORATION, PURSUANT TO SECTION 391 (C) OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED (54 STAT. 728, 729; 7 U.S.C. 1940, ED. 1391 (C) (, AS A RESULT OF WHICH CONFERENCE IT WAS UNDERSTOOD THAT THE MATTER WOULD BE SUBMITTED TO YOU FORMALLY FOR FURTHER CONSIDERATION.

ON JULY 7, 1943, THE CHIEF, ACCOUNTING AND BOOKKEEPING DIVISION OF YOUR OFFICE, ADVISED THE DIRECTOR OF FINANCE OF THIS OFFICE, OF THE DISAPPROVAL OF REQUISITION FOR DISBURSING FUNDS NO. 546, DATED JUNE 5, 1943, FOR $200,000 CHARGEABLE TO THE APPROPRIATION "1292215, CONSERVATION AND USE OF AGRICULTURAL LAND RESOURCES, DEPARTMENT OF AGRICULTURE, 1939.' THE FUND WAS SOUGHT FOR THE PURPOSE OF MAKING REPAYMENT OF LOANS MADE TO THE SECRETARY OF AGRICULTURE DURING THE FISCAL YEAR 1942 BY THE COMMODITY CREDIT CORPORATION PURSUANT TO THE SAID SECTION 391 (C), WHICH PROVIDES AS FOLLOWS:

"DURING EACH FISCAL YEAR BEGINNING WITH THE FISCAL YEAR ENDING JUNE 30, 1941, THE COMMODITY CREDIT CORPORATION IS AUTHORIZED AND DIRECTED TO LOAN TO THE SECRETARY SUCH SUMS, NOT TO EXCEED $50,000,000, AS HE ESTIMATES WILL BE REQUIRED DURING SUCH FISCAL YEAR, TO MAKE CROP INSURANCE PREMIUM ADVANCES AND TO MAKE ADVANCES PURSUANT TO THE APPLICABLE PROVISIONS OF SECTIONS 8 AND 12 OF THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT, AS AMENDED, IN CONNECTION WITH PROGRAMS APPLICABLE TO CROPS HARVESTED IN THE CALENDAR YEAR IN WHICH SUCH FISCAL YEAR ENDS, AND TO PAY THE ADMINISTRATIVE EXPENSES OF COUNTY AGRICULTURAL CONSERVATION ASSOCIATIONS FOR THE CALENDAR YEAR IN WHICH SUCH FISCAL YEAR ENDS. THE SUMS SO LOANED DURING ANY FISCAL YEAR SHALL BE TRANSFERRED TO THE CURRENT APPROPRIATION AVAILABLE FOR CARRYING OUT SECTIONS 7 TO 17 OF SUCH ACT, AND SHALL BE REPAID, WITH INTEREST AT A RATE TO BE DETERMINED BY THE SECRETARY BUT NOT LESS THAN THE COST OF MONEY TO THE COMMODITY CREDIT CORPORATION FOR A COMPARABLE PERIOD, DURING THE SUCCEEDING FISCAL YEAR FROM THE APPROPRIATION AVAILABLE FOR THAT YEAR OR FROM ANY UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR.'

YOUR OFFICE STATES ITS REASON FOR DISAPPROVING THE REQUISITION AS FOLLOWS:

"HOWEVER, SINCE, AT THE TIME THE LOANS HERE IN QUESTION WERE MADE, THE 1939 APPROPRIATION COULD NO LONGER BE CONSIDERED AS IN EXISTENCE, IT HAVING LAPSED BY OPERATION OF LAW (31 U.S.C. 713), THE PHRASE "ANY OTHER YEAR" CANNOT BE CONSTRUED AS APPLYING TO SAID APPROPRIATION.'

IT SHOULD BE POINTED OUT, IF WE UNDERSTAND THE NATURE OF THE OBJECTION OF YOUR OFFICE, THAT THE STATUTE CITED THEREIN, NAMELY 31 U.S.C., SEC. 713, MERELY PROVIDES THAT ALL UNEXPENDED BALANCES REMAINING UPON THE BOOKS OF THE TREASURY FOR TWO YEARS ARE TO BE CARRIED INTO THE SURPLUS FUND. ORDER FOR THIS STATUTE TO BE APPLICABLE, TECHNICALLY, THE FUNDS TO WHICH IT APPLIES MUST BE THOSE WHICH ARE PROPERLY OBLIGATED FOR SOME PURPOSE DURING THE PERIOD OF THEIR ORIGINAL LIFE AND THEY REMAIN UNEXPENDED ON THE BOOKS OF THE TREASURY SOLELY BECAUSE PROPERLY OBLIGATED DURING THEIR ORIGINAL LIFE. WE DO NOT FEEL, THEREFORE, THAT THIS STATUTE IS AT ALL APPLICABLE, SINCE THE FUNDS TO BE REACHED BY SECTION 391 (C) OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED, ARE "UNOBLIGATED BALANCES.' IT IS MORE PROPER TO APPLY 31 U.S.C. SEC. 712, WHICH PROVIDES THAT UNOBLIGATED BALANCES RETIRE INTO SURPLUS IMMEDIATELY UPON THE CLOSE OF THE ORIGINAL YEAR OF AVAILABILITY. THUS, ANY FUNDS FOR PRIOR YEARS TO WHICH SAID SECTION 391 (C) IS TO BE APPLIED ARE ALREADY IN THE SURPLUS FUND OF THE TREASURY AT THE TIME IT IS SOUGHT TO CHARGE THEM FOR THE PURPOSES OF SAID SECTION 391 (C).

IT APPEARS, THEREFORE, THAT IT IS OF LITTLE IMPORTANCE IN THE CONSTRUCTION OF SECTION 391 (C) THAT THE FUNDS WOULD, EXCEPT FOR ITS OPERATION, BE SURPLUS IN EVERY CASE. THIS WOULD NOT MATTER, HOWEVER, SINCE CONGRESS HAS PROVIDED FOR THE CHARGING OF SUCH FUNDS DESPITE THE FACT THAT THEY HAVE REVERTED TO SURPLUS, AND WOULD OTHERWISE NOT BE AVAILABLE FOR ANY PURPOSE WITHOUT A SPECIFIC APPROPRIATION.

IT APPEARS THAT IN FEBRUARY 1941, A LOAN IN THE AMOUNT OF $8,000,000 WAS MADE BY COMMODITY CREDIT CORPORATION AND WAS SUBSEQUENTLY REPAID FROM THE APPROPRIATIONS "1282215, CONSERVATION AND USE OF AGRICULTURAL LAND RESOURCES, DEPARTMENT OF AGRICULTURE, 1938" AND "1292215, CONSERVATION AND USE OF AGRICULTURAL LAND RESOURCES DEPARTMENT OF AGRICULTURE, 1939.' ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. SEC. 712, THE UNOBLIGATED BALANCES OF THESE APPROPRIATIONS WERE CARRIED TO THE SURPLUS FUND, BY OPERATION OF LAW, AT THE END OF THE FISCAL YEAR FOLLOWING THAT FOR WHICH THE APPROPRIATION WAS MADE (THE 1938 AND 1939 DEPARTMENT OF AGRICULTURE APPROPRIATION ACTS EACH CONTAIN A PROVISION EXTENDING THE AVAILABILITY OF THE ABOVE ITEMS UNTIL JUNE 30, 1939 AND JUNE 30, 1940, RESPECTIVELY, FOR COMPLIANCES UNDER THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT, APPROVED FEBRUARY 29, 1936 (16 U.S.C. 590G-590Q), AS AMENDED). ALTHOUGH THE LOAN WAS MADE SUBSEQUENT TO THE DATES ON WHICH THE UNOBLIGATED FUNDS OF THE ABOVE APPROPRIATIONS WERE CARRIED INTO THE SURPLUS FUND PURSUANT TO THE PROVISIONS OF 31 U.S.C., SEC. 712, I.E., JUNE 30, 1939 AND JUNE 30, 1940, RESPECTIVELY, NO OBJECTION WAS MADE BY YOUR OFFICE TO THE USE OF THESE FUNDS FOR REPAYMENT OF THE LOAN. IT IS CLEAR THAT THE APPROPRIATION NOW SOUGHT TO BE CHARGED HAS THE SAME STATUS AS THE APPROPRIATIONS AGAINST WHICH THE CHARGE OF $8,000,000 WAS MADE. IN OTHER WORDS, ALL SUCH APPROPRIATIONS HAD LAPSED INTO THE SURPLUS FUND PRIOR TO THE MAKING OF THE LOAN. THERE APPEARS TO BE NO REASON FOR A DISTINCTION TO BE MADE BETWEEN THE $8,000,000 ALLOTMENT AND THE ALLOTMENT NOW UNDER CONSIDERATION.

IT MIGHT BE ASSERTED THAT THE ONLY APPROPRIATION FOR THE REPAYMENT OF LOANS INTENDED TO BE MADE AVAILABLE BY SECTION 391 (C) OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED, IS THE APPROPRIATION FOR THE SUCCEEDING FISCAL YEAR, BUT AN EXAMINATION OF THE LANGUAGE USED IS NOT CONSISTENT WITH SUCH AN INTERPRETATION. SECTION 391 (C) SUPRA PROVIDES THAT THE LOAN "SHALL BE REPAID--- DURING THE SUCCEEDING FISCAL YEAR FROM THE APPROPRIATION AVAILABLE FOR THAT (CLEARLY THE SUCCEEDING) YEAR OR FROM AN UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR.' IF THE LOAN MUST BE REPAID DURING THE YEAR NEXT SUCCEEDING THE YEAR IN WHICH IT WAS MADE, THEN IT CANNOT BE CONTENDED THAT THE PHRASE "ANY OTHER YEAR" WAS INTENDED TO MEAN ANY OTHER SUCCEEDING YEAR, SINCE DURING THE YEAR WHEN THE LOAN IS TO BE REPAID (THE YEAR SUCCEEDING THE YEAR IN WHICH THE LOAN WAS MADE) THE ONLY SUCCEEDING APPROPRIATION IN EXISTENCE IS THE APPROPRIATION FOR THE THEN CURRENT YEAR. FOR EXAMPLE, A LOAN MADE IN THE FISCAL YEAR 1941 IS DIRECTED TO BE REPAID IN THE FISCAL YEAR 1942. IN THE LATTER YEAR, THE 1941 AND 1942 APPROPRIATIONS ARE AVAILABLE FOR EXPENDITURE, BUT THE 1943 APPROPRIATION, HAVING NOT YET BEEN MADE, IS NOT AVAILABLE FOR OBLIGATION AND IS OBVIOUSLY NOT AVAILABLE FOR EXPENDITURE.

IT MIGHT BE CLAIMED THAT THE WORDS "OR ANY OTHER YEAR" SHOULD BE LIMITED TO THE YEAR IN WHICH THE LOAN IS MADE. THIS INTERPRETATION WOULD, OF COURSE, HAVE ITS MAIN STRENGTH IN THE FACT THAT UNDER IT, THE NORMAL PROCEDURE UNDER 31 U.S.C., SECS. 712 AND 713 WOULD OBTAIN. THE ARGUMENT, HOWEVER, WOULD BE BASED ON THE PROPOSITION THAT THE LOAN CREATED AN OBLIGATION AGAINST THE APPROPRIATION AVAILABLE WHEN THE LOAN WAS MADE, WHICH APPROPRIATION BEING THUS OBLIGATED, WOULD REMAIN AVAILABLE FOR EXPENDITURE FOR THE TWO YEARS FOLLOWING THE PERIOD OF AVAILABILITY PROVIDED IN THE APPROPRIATION ACT. HOWEVER, IF ONE ACCEPTS THE PREMISE THAT THE LOAN DOES, IN FACT, CONSTITUTE AN OBLIGATION, THE APPROPRIATION FOR THE YEAR IN WHICH THE LOAN WAS MADE WOULD BE ,OBLIGATED" BY THE MAKING OF THE LOAN AND THE REPAYMENT WOULD BE FROM THE SUM THUS OBLIGATED, MAKING THE PHRASE "UNOBLIGATED BALANCE" AN INOPERATIVE PHRASE--- A RESULT TO BE AVOIDED, IF POSSIBLE (17 C.G. 176, 178). FURTHER, THE USE OF THE WORD "ANY" IN CONNECTION WITH THE WORDS ,OTHER YEAR," APPEARS TO INDICATE CLEARLY THAT REPAYMENT FROM THE APPROPRIATION FOR MORE THAN ONE OTHER YEAR WAS CONTEMPLATED. THE WORD "ANY" WOULD NOT BE GIVEN ITS NORMAL MEANING IF IT WERE HELD THAT IT REFERRED MERELY TO THE APPROPRIATION FOR THE YEAR IN WHICH THE LOAN WAS MADE. CERTAINLY, A MUCH SOUNDER INTERPRETATION WOULD APPEAR TO BE THAT IT WAS INTENDED THAT REPAYMENT COULD BE MADE FROM ANY APPROPRIATION WHICH HAD NOT BEEN OBLIGATED. THE FACT THAT THE BALANCE OF AN APPROPRIATION HAS BEEN COVERED INTO THE SURPLUS FUND UNDER 31 U.S.C., SEC. 712, MERELY MAKES IT AN UNOBLIGATED BALANCE WHICH HAS LAPSED. SECTION 391 (C) DOES NOT RESTRICT THE PAYMENT TO AN UNOBLIGATED BALANCE WHICH IS STILL AVAILABLE FOR EXPENDITURE UNDER ORDINARY PROCEDURE, BUT MERELY PROVIDES FOR REPAYMENT FROM "ANY UNOBLIGATED BALANCE.' UNDER THE RULE THAT THE LAST EXPRESSION OF CONGRESS IS CONTROLLING (19 C.G. 961, 963) IT WOULD APPEAR THAT SUFFICIENT AUTHORITY IS PROVIDED TO ENABLE THE LOAN REPAYMENTS TO BE MADE FROM THE BALANCES OF APPROPRIATIONS WHICH HAVE OTHERWISE LAPSED INTO SURPLUS, WITHOUT REGARD TO THE PROCEDURE USUALLY FOLLOWED.

YOUR CONSIDERATION OF, AND ADVICE ON THIS MATTER IS REQUESTED.

SECTION 712, TITLE 31, U.S.C. (SECTION 3690, REVISED STATUTES) PROVIDES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, ALL BALANCES OF APPROPRIATIONS CONTAINED IN THE ANNUAL APPROPRIATION BILLS AND MADE SPECIFICALLY FOR THE SERVICE OF ANY FISCAL YEAR, AND REMAINING UNEXPENDED AT THE EXPIRATION OF SUCH FISCAL YEAR, SHALL ONLY BE APPLIED TO THE PAYMENT OF EXPENSES PROPERLY INCURRED DURING THAT YEAR, OR TO THE FULFILLMENT OF CONTRACTS PROPERLY MADE WITHIN THAT YEAR; AND BALANCES NOT NEEDED FOR SUCH PURPOSES SHALL BE CARRIED TO THE SURPLUS FUND. THIS SECTION HOWEVER, SHALL NOT APPLY TO APPROPRIATIONS KNOWN AS PERMANENT OR INDEFINITE APPROPRIATIONS.

SECTION 713, TITLE 31, U.S.C. (TAKEN FROM SECTION 5 OF THE ACT OF JUNE 20, 1874, 18 STAT. 110, AS AMENDED) PROVIDES:

AFTER THE ST DAY OF JULY, IN EACH YEAR, THE SECRETARY OF THE TREASURY SHALL CAUSE ALL UNEXPENDED BALANCES OF APPROPRIATIONS WHICH SHALL HAVE REMAINED UPON THE BOOKS OF THE TREASURY FOR TWO FISCAL YEARS TO BE CARRIED TO THE SURPLUS FUND AND COVERED INTO THE TREASURY * * *.

THUS, WHILE SECTION 712, SUPRA, PROVIDES THAT BALANCES OF APPROPRIATIONS NOT NEEDED FOR THE PAYMENT OF EXPENSES PROPERLY INCURRED OR FOR THE FULFILLMENT OF CONTRACTS PROPERLY MADE WITHIN THE FISCAL YEAR FOR WHICH THE APPROPRIATIONS WERE MADE, SHALL BE CARRIED TO THE SURPLUS FUND, THERE IS FOR NOTING THAT NO TIME IS SPECIFIED THEREIN FOR THE ACCOMPLISHMENT THEREOF. HOWEVER, SECTION 713, SUPRA, DOES DESIGNATE THE TIME WHEN "UNEXPENDED BALANCES" OF APPROPRIATIONS SHALL BE CARRIED TO THE SURPLUS FUND, NAMELY, AFTER THEY "SHALL HAVE REMAINED UPON THE BOOKS OF THE TREASURY FOR TWO FISCAL YEARS.' AND THE TWO FISCAL YEAR PERIOD REFERRED TO IN SECTION 713 HAS BEEN CONSTRUED TO MEAN TWO FULL FISCAL YEARS AFTER THE CLOSE OF THE FISCAL YEAR FOR WHICH THE APPROPRIATION IS MADE. 8 COMP. GEN. 547, 548. ACCORDINGLY, THE SURPLUS FUND PROVISION OF SECTION 712 NECESSARILY MUST BE READ IN CONNECTION WITH THE PROVISIONS OF SECTION 713. SEE 1 MS. COMP. DEC. 45; 12 ID. 757; 19 ID. 667.

IT HAS BEEN HELD CONSISTENTLY THAT THE TERM,"UNEXPENDED BALANCES," AS USED IN SECTION 713 MEANS THE ENTIRE BALANCES OF APPROPRIATIONS, WHETHER OBLIGATED OR NOT (19 MS. COMP. DEC. 667, 673), OR, STATED IN OTHER WORDS THE BALANCES OF APPROPRIATIONS NOT PAID OUT. 22 COMP. GEN. 59. ACCORDINGLY, THERE MAY NOT BE ACCEPTED AS PROPER THE CONCLUSION STATED IN YOUR LETTER THAT UNDER SECTION 2,"UNOBLIGATED BALANCES RETIRE INTO SURPLUS IMMEDIATELY UPON THE CLOSE OF THE ORIGINAL YEAR OF AVAILABILITY.'

THERE REMAINS FOR CONSIDERATION THE FURTHER CONTENTION THAT THE PROVISION IN SECTION 391 (C) OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED, 54 STAT. 728, FOR THE REPAYMENT OF LOANS "FROM ANY UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR" APPEARS SUFFICIENT AUTHORITY "TO ENABLE THE LOAN REPAYMENTS TO BE MADE FROM THE BALANCES OF APPROPRIATIONS WHICH HAVE OTHERWISE LAPSED INTO SURPLUS.' SUCH CONTENTION APPARENTLY IS PREMISED UPON THE INTERPRETATION GIVEN SECTION 712, SUPRA, BY YOUR DEPARTMENT, THAT THE UNOBLIGATED BALANCES OF THE APPROPRIATIONS INVOLVED ARE CARRIED TO THE SURPLUS FUND OF THE TREASURY AT THE CLOSE OF THE ORIGINAL YEAR OF AVAILABILITY AND, THEREFORE,"ANY FUNDS FOR PRIOR YEARS TO WHICH SAID SECTION 391 (C) IS TO BE APPLIED ARE ALREADY IN THE SURPLUS FUND OF THE TREASURY AT THE TIME IT IS SOUGHT TO CHARGE THEM FOR THE PURPOSES OF SAID SECTION 391 (C).' IF THAT INTERPRETATION WERE CORRECT, IT WOULD LEND SUPPORT TO THE ARGUMENT THAT FUNDS WHICH HAD BEEN CARRIED TO THE SURPLUS FUND WERE CONTEMPLATED BY THE TERM "ANY UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR," ON THE THEORY THAT OTHERWISE THE PROVISION WOULD BE MEANINGLESS. HOWEVER, AS HEREINBEFORE STATED, THE UNEXPENDED BALANCES--- INCLUDING THE UNOBLIGATED BALANCES--- OF THE ANNUAL APPROPRIATIONS REMAIN ON THE BOOKS OF THE TREASURY FOR TWO FULL FISCAL YEARS AFTER THE CLOSE OF THE FISCAL YEAR FOR WHICH THE APPROPRIATIONS ARE MADE. HENCE, THE EFFECT OF THE PROVISION IS TO RENDER AVAILABLE FOR REPAYMENT OF THE INVOLVED LOANS THE UNOBLIGATED BALANCES OF ANNUAL APPROPRIATIONS DURING THIS TWO YEAR PERIOD, WHICH BALANCES OTHERWISE WOULD NOT BE AVAILABLE FOR ANY PURPOSE. AND, OF COURSE, SINCE THE PROVISION HAS THAT EFFECT THE ARGUMENT CONTAINED IN YOUR LETTER TO THE EFFECT THAT THE PROVISION OPERATES TO APPROPRIATE FUNDS WHICH HAVE BEEN CARRIED TO THE SURPLUS FUND BY OPERATION OF LAW LOSES ITS FORCE.

MOREOVER, IT IS PROVIDED IN THE ACT OF JULY 1, 1902, 32 STAT. 560, THAT:

HEREAFTER NO ACT OF CONGRESS SHALL BE CONSTRUED TO MAKE AN APPROPRIATION OUT OF THE TREASURY OF THE UNITED STATES UNLESS SUCH ACT SHALL, IN SPECIFIC TERMS, DECLARE AN APPROPRIATION TO BE MADE FOR THE PURPOSE OR PURPOSES SPECIFIED IN THE ACT.

ALSO, SECTION 9 OF THE ACT OF JUNE 30, 1906, 34 STAT. 764, PROVIDES THAT:

NO ACT OF CONGRESS HEREAFTER PASSED SHALL BE CONSTRUED TO MAKE AN APPROPRIATION OUT OF THE TREASURY OF THE UNITED STATES, OR TO AUTHORIZE THE EXECUTION OF A CONTRACT INVOLVING THE PAYMENT OF MONEY IN EXCESS OF APPROPRIATIONS MADE BY LAW, UNLESS SUCH ACT SHALL IN SPECIFIC TERMS DECLARE AN APPROPRIATION TO BE MADE OR THAT A CONTRACT MAY BE EXECUTED.

IN THE APPLICATION OF THOSE PROVISIONS OF LAW IT HAS BEEN HELD CONSISTENTLY THAT THERE MUST BE SPECIFIC LANGUAGE USED IN AN ACT TO MAKE AN APPROPRIATION BEFORE IT CAN BE CONSTRUED AS DOING SO. 13 COMP. GEN. 77. SECTION 391 (C), SUPRA, DOES NOT IN SPECIFIC TERMS REAPPROPRIATE FUNDS ALREADY CARRIED TO THE SURPLUS FUND BUT MERELY MAKES AVAILABLE UNOBLIGATED BALANCES OF APPROPRIATIONS WHICH OTHERWISE WOULD BE REQUIRED TO REMAIN ON THE BOOKS OF THE GOVERNMENT, UNAVAILABLE FOR ANY PURPOSE, UNTIL CARRIED TO THE SURPLUS FUND BY OPERATION OF LAW.

THE PARTICULAR LOAN ($200,000) REFERRED TO IN YOUR LETTER WAS MADE DURING THE FISCAL YEAR 1942, AT WHICH TIME THE FUNDS SOUGHT TO BE AVAILED OF--- UNOBLIGATED BALANCE OF THE 1939 FISCAL YEAR APPROPRIATION INVOLVED--- HAD LAPSED AND HAD BEEN CARRIED TO THE SURPLUS FUND OF THE TREASURY BY OPERATION OF LAW AS OF JUNE 30, 1941, AND, THEREFORE, COULD BE WITHDRAWN THEREFROM ONLY PURSUANT TO A SPECIFIC APPROPRIATION BY THE CONGRESS. HENCE, THERE WAS NO UNOBLIGATED BALANCE OF THE 1939 FISCAL YEAR APPROPRIATION THEN CARRIED ON THE BOOKS OF THE TREASURY AVAILABLE FOR THE REPAYMENT OF THIS OR SIMILAR LOANS.

IN THE ABSENCE OF A CLEAR EXPRESSION OF INTENT OF THE CONGRESS TO REAPPROPRIATE BALANCES OF APPROPRIATIONS THAT HAVE BEEN CARRIED TO THE SURPLUS FUND OF THE TREASURY, I AM CONSTRAINED TO HOLD THAT THE TERM "UNOBLIGATED BALANCE OF THE APPROPRIATION FOR ANY OTHER YEAR," AS CONTAINED IN SECTION 391 (C), REFERS TO, AND MAKES AVAILABLE FOR REPAYMENT OF LOANS, ONLY THE UNOBLIGATED BALANCE OF ANY OTHER APPLICABLE APPROPRIATION CARRIED ON THE BOOKS OF THE TREASURY DURING THE TWO YEAR FISCAL PERIOD AFTER THE CLOSE OF THE YEAR FOR WHICH THE APPROPRIATION WAS MADE AND NOT THE UNOBLIGATED BALANCES OF APPROPRIATIONS THAT HAD BEEN CARRIED TO THE SURPLUS FUND OF THE TREASURY.