B-46566, JANUARY 20, 1945, 24 COMP. GEN. 544

B-46566, JANUARY 20, 1945, 24 COMP. GEN. 544

CERTIFICATION OF CONFIDENTIAL EXPENDITURES UNDER SECTION 291, R. S. - EFFECT OF CERTIFYING OFFICERS' STATUTE OF DECEMBER 29, 1941 A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT WITH THE LATER GENERAL STATUTE THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. THE SPECIAL PROVISION OF SECTION 291, REVISED STATUTES, THAT THE CERTIFICATE OF THE SECRETARY OF STATE AS TO THE AMOUNT OF CONFIDENTIAL EXPENDITURE SHALL BE DEEMED A SUFFICIENT VOUCHER, IS NOT AFFECTED BY THE SUBSEQUENT GENERAL STATUTE OF DECEMBER 29, 1941, PROVIDING A PROCEDURE FOR THE DISBURSEMENT OF MONEYS UPON VOUCHERS DULY CERTIFIED BY BONDED CERTIFYING OFFICERS, AND, THEREFORE, A VOUCHER EXECUTED UNDER SECTION 291, REVISED STATUTES, NEED NOT BE FURTHER CERTIFIED, PRIOR TO PAYMENT BY A DISBURSING OFFICER, IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED BY THE 1941 STATUTE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JANUARY 20, 1945:

I HAVE YOUR LETTER OF DECEMBER 28, 1944, REFERENCE BF, AS FOLLOWS:

31 U.S.C. 107 PROVIDES THAT "WHENEVER ANY SUM OF MONEY HAS BEEN OR SHALL BE ISSUED, FROM THE TREASURY, FOR THE PURPOSES OF INTERCOURSE OR TREATY WITH FOREIGN NATIONS, IN PURSUANCE OF ANY LAW, THE PRESIDENT IS AUTHORIZED TO CAUSE THE SAME TO BE DULY SETTLED ANNUALLY WITH THE GENERAL ACCOUNTING OFFICE, BY CAUSING THE SAME TO BE ACCOUNTED FOR, SPECIFICALLY, IF THE EXPENDITURE MAY, IN HIS JUDGMENT, BE MADE PUBLIC; AND BY MAKING OR CAUSING THE SECRETARY OF STATE TO MAKE A CERTIFICATE OF THE AMOUNT OF SUCH EXPENDITURE, AS HE MAY THINK IT ADVISABLE NOT TO SPECIFY; AND EVERY SUCH CERTIFICATE SHALL BE DEEMED A SUFFICIENT VOUCHER FOR THE SUM THEREIN EXPRESSED TO HAVE BEEN EXPENDED.' (ITALICS SUPPLIED.)

31 U.S.C., SUPP. III, 82B PROVIDES THAT " NOTWITHSTANDING THE PROVISIONS OF SECTION 82 OF THIS TITLE, AND SECTION 4 OF EXECUTIVE ORDER NUMBERED 6166, DATED JUNE 10, 1933, DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL (1) DISBURSE MONEYS ONLY WHEN, AND IN STRICT ACCORDANCE WITH, VOUCHERS DULY CERTIFIED BY THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR BY AN OFFICER OR EMPLOYEE THEREOF DULY AUTHORIZED IN WRITING BY SUCH HEAD TO CERTIFY SUCH VOUCHERS; " (ITALICS SUPPLIED.)

31 U.S.C., SUPP. III, 82C PROVIDES THAT "THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL (1) BE HELD RESPONSIBLE FOR THE EXISTENCE AND CORRECTNESS OF THE FACTS RECITED IN THE CERTIFICATE OR OTHERWISE STATED ON THE VOUCHER OR ITS SUPPORTING PAPERS AND FOR THE LEGALITY OF THE PROPOSED PAYMENT UNDER THE APPROPRIATION OR FUND INVOLVED; (2) BE REQUIRED TO GIVE BOND TO THE UNITED STATES, WITH GOOD AND SUFFICIENT SURETY APPROVED BY THE SECRETARY OF THE TREASURY, IN SUCH AMOUNT AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT, AGENCY, OR ESTABLISHMENT CONCERNED, PURSUANT TO STANDARDS PRESCRIBED BY THE SECRETARY OF THE TREASURY, AND UNDER SUCH CONDITIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE TREASURY.' (ITALICS SUPPLIED.)

FORM NO. 6, DEPARTMENT OF STATE," VOUCHER FOR EXPENDITURES UNDER SECTION 291, REVISED STATUTES" (21 U.S.C. 107) APPROVED BY THE COMPTROLLER GENERAL OF THE UNITED STATES, JANUARY 30, 1930, IS USED BY THIS DEPARTMENT WHEN VOUCHERING EXPENDITURES FROM THE APPROPRIATION " EMERGENCIES ARISING IN THE DIPLOMATIC AND CONSULAR SERVICE" UNDER THE PROVISIONS OF SECTION 291, R.S. THE FORM PROVIDES FOR THE SIGNATURE OF THE SECRETARY OF STATE AND IN PRACTICE IS GENERALLY SIGNED BY AN ASSISTANT SECRETARY OF STATE BY DIRECTION OF THE SECRETARY. (20 C.G. 27.) AT THE PRESENT TIME NEITHER THE SECRETARY OF STATE NOR THE ASSISTANT SECRETARIES OF STATE, WITH ONE EXCEPTION, WHO MAY BE CALLED UPON TO EXECUTE VOUCHERS PURSUANT TO SECTION 291 OF THE REVISED STATUTES, ARE CERTIFYING OFFICERS WITHIN THE MEANING OF 31 U.S.C., SUPP. III, 82B, AND HAVE NOT, THEREFORE, GIVEN BOND TO THE UNITED STATES.

YOUR ADVICE IS REQUESTED AS TO WHETHER, IN VIEW OF THE SPECIAL PROVISIONS OF SECTION 291, R.S. (31 U.S.C. 107), THE EXECUTION OF A VOUCHER PURSUANT THERETO BY ONE OF THESE OFFICERS IS SUFFICIENT TO PERMIT ITS PROPER PAYMENT BY A DISBURSING OFFICER OF THE GOVERNMENT WITHOUT HAVING FIRST BEEN CERTIFIED BY A BONDED CERTIFYING OFFICER.

SECTION 107, TITLE 31, U.S. CODE, IS A RESTATEMENT OF SECTION 291 OF THE REVISED STATUTES WHILE SECTIONS 82B AND 82C OF TITLE 31, U.S. CODE, SUPPLEMENT III, ARE DERIVED FROM SECTIONS 1 AND 2 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875. IT IS A WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT WITH THE LATER GENERAL STATUTE THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. EX PARTE CROW DOG, 109 U.S. 556, 570; RODGERS V. UNITED STATES, 185 U.S. 83; UNITED STATES V. NIX, 189 U.S. 199; WASHINGTON V. MILLER, 235 U.S. 422. SEE, PARTICULARLY, BALTIMORE NATIONAL BANK V. TAX COMMISSION, 297 U.S. 209, 215, IN WHICH THE SUPREME COURT SAID:

* * * AN EARLIER ACT, SPECIFIC IN ITS COVERAGE, WILL BE READ AS AN EXCEPTION TO A LATER ONE DIRECTED TO INVESTMENTS GENERALLY. "IT IS A WELL -SETTLED PRINCIPLE OF CONSTRUCTION THAT SPECIFIC TERMS COVERING THE GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING.' KEPNER V. UNITED STATES, 195 U.S. 100, 125; CF. GINSBERG AND SONS V. POPKIN, 285 U.S. 204, 208; IN RE EAST RIVER CO., 266 U.S. 355, 367; WASHINGTON V. MILLER, 235 U.S. 422, 428; ROSENCRANS V. UNITED STATES, 165 U.S. 257, 262 * * *

ALSO, SEE 19 COMP. GEN. 492.

THE LATER ACT OF DECEMBER 29, 1941, CONTAINS NO SPECIAL PROVISION REPEALING PRIOR SPECIAL STATUTES AND ITS PROVISIONS ARE NOT SO INCONSISTENT WITH THE PROVISIONS OF SECTION 291, REVISED STATUTES, AS TO CAUSE ITS REPEAL BY IMPLICATION. ON THE CONTRARY, IT WELL MAY BE ASSUMED THAT SOME EXPENDITURES MAY BE AUTHORIZED BY THE SECRETARY OF STATE UNDER CONDITIONS SO CONFIDENTIAL THAT EVEN THE CERTIFYING OFFICER MAY NOT BE INFORMED THEREOF AND, OF COURSE, THAT OFFICER COULD NOT BE REQUIRED TO ACCEPT FINAL RESPONSIBILITY BY CERTIFYING A VOUCHER AS REPRESENTING A LAWFUL PAYMENT WHEN HE IS NOT INFORMED OF THE OBJECT OR PURPOSE OF THE EXPENDITURE. ACCORDINGLY, I HAVE TO ADVISE THAT THE SPECIAL STATUTE AS RESTATED IN 31 U.S.C. 107 IS NOT AFFECTED BY THE SUBSEQUENT GENERAL STATUTE OF DECEMBER 29, 1941. HENCE, THE QUESTION POSED IN THE CLOSING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.