B-5234, AUGUST 7, 1939, 19 COMP. GEN. 167

B-5234, AUGUST 7, 1939, 19 COMP. GEN. 167

APPROPRIATION AVAILABILITY - PURCHASE, MAINTENANCE, AND OPERATION OF PASSENGER-CARRYING VEHICLES - CIVIL AERONAUTICS AUTHORITY WERE THE APPROPRIATION "1ESTABLISHMENT OF AIR NAVIGATION FACILITIES 1940" AS MADE BY THE ACT OF MARCH 16, 1939, PUBLIC, NO. 8, 53 STAT. 527, THE ONLY APPROPRIATION FOR THE CIVIL AERONAUTICS AUTHORITY TO CARRY OUT THE PROVISIONS OF THE CIVIL AERONAUTICS ACT OF 1938, THE ABSENCE THEREIN OF SPECIFIC AUTHORITY OF LAW FOR THE PURCHASE, OPERATION, OR MAINTENANCE OF PASSENGER-CARRYING VEHICLES AS REQUIRED BY SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, AND AIRCRAFT WOULD NOT NECESSARILY PROHIBIT EXPENDITURES FOR SUCH PURPOSES IN VIEW OF THE GENERAL AUTHORITY FOR SUCH EXPENDITURES GRANTED IN SECTION 204 (A) OF THE CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 983, BUT, AS THE SAME APPROPRIATION ACT, UNDER THE TITLE "1SALARIES AND EXPENSES, CIVIL AERONAUTICS AUTHORITY, 1940" MAKES SPECIFIC PROVISION OF SUCH EXPENDITURES THEREFROM, THE APPROPRIATION "1ESTABLISHMENT OF AIR NAVIGATION FACILITIES 1940" IS NOT AVAILABLE FOR SUCH PURPOSES. 16 COMP. GEN. 773, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, CIVIL AERONAUTICS AUTHORITY, AUGUST 7, 1939:

I HAVE YOUR LETTER OF JULY 26, 1939, AS FOLLOWS:

THE CIVIL AERONAUTICS ACT OF 1938 ( PUB. NO. 706, 75TH CONGRESS, 3RD SESSION) IN SECTION 204-A ,1GENERAL AUTHORITY" PROVIDES THAT "1THE AUTHORITY IS EMPOWERED TO MAKE SUCH EXPENDITURES AT THE SEAT OF GOVERNMENT AND ELSEWHERE AS MAY BE NECESSARY FOR THE EXERCISE AND PERFORMANCE OF THE POWERS AND DUTIES VESTED IN AND IMPOSED UPON THE AUTHORITY, THE ADMINISTRATOR AND AIR SAFETY BOARD BY LAW * * *INCLUDING EXPENDITURES FOR * * * (8) ACQUISITION (INCLUDING EXCHANGE), OPERATION, AND MAINTENANCE OF PASSENGER-CARRYING AUTOMOBILES AND AIRCRAFT * * *.' SECTION 302-A OF THE ABOVE ACT,"1POWER AND DUTIES OF ADMINISTRATOR," PROVIDES THAT " THE ADMINISTRATOR IS EMPOWERED TO DESIGNATE AND ESTABLISH CIVIL AIRWAYS AND * * * TO ACQUIRE, ESTABLISH, OPERATE, AND MAINTAIN ALONG SUCH AIRWAYS ALL NECESSARY AIR NAVIGATION FACILITIES * * *.'

THE LANGUAGE OF THE APPROPRIATION FOR ESTABLISHMENT OF AIR NAVIGATION FACILITIES FOR THE FISCAL YEAR 1940 ( PUBLIC, NO. 8, 76TH CONGRESS, CHAPTER. 11, ST SESSION) DOES NOT SPECIFICALLY PROVIDE FOR THE PURCHASE, OPERATION, AND MAINTENANCE OF PASSENGER-CARRYING AUTOMOBILES AND AIRCRAFT, BUT IT IS BELIEVED THAT EXPENDITURES FROM THIS APPROPRIATION FOR SUCH PURCHASE, OPERATION, AND MAINTENANCE IS "AUTHORIZED BY LAW" WITHIN THE MEANING OF THAT PHRASE AS APPEARING IN SEC. 5 OF THE ACT OF JULY 16, 1914 (38 STAT. 508), SUCH AUTHORIZATION BEING FOUND IN THE ABOVE-QUOTED PROVISIONS OF THE CIVIL AERONAUTICS ACT OF JUNE 23, 1938. THIS VIEW IS BASED ON YOUR DECISION OF FEBRUARY 18, 1937 (16-CG-773), THERE BEING IN THE LANGUAGE OF THE APPROPRIATION OF FUNDS FOR THE ESTABLISHMENT OF AIR NAVIGATION FACILITIES, FISCAL YEAR 1940, NO SPECIFIC MENTION OF CLASSES OF EXPENDITURES OTHER THAN THE PURCHASE, OPERATION, AND MAINTENANCE OF PASSENGER-CARRYING AUTOMOBILES AND AIRCRAFT, SO THAT THERE IS NOT FOR APPLICATION THE RULE OF CONSTRUCTION--- EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

YOUR ADVICE AS TO WHETHER THE APPROPRIATION "1ESTABLISHMENT OF AIR NAVIGATION FACILITIES 1940" IS AVAILABLE FOR THE PURCHASE, OPERATION, AND MAINTENANCE OF PASSENGER-CARRYING AUTOMOBILES AND AIRCRAFT IS REQUESTED.

WERE THE APPROPRIATION "1ESTABLISHMENT OF AIR NAVIGATION FACILITIES 1940" AS MADE BY THE ACT OF MARCH 16, 1939, PUBLIC, NO. 8, 53 STAT. 527, THE ONLY APPROPRIATION FOR THE CIVIL AERONAUTICS AUTHORITY TO CARRY OUT THE PROVISIONS OF THE CIVIL AERONAUTICS ACT OF 1938, THERE MIGHT BE SOME BASIS FOR APPLYING THE RULE SET FORTH IN THE DECISION 16 COMP. GEN. 773, BUT IT IS NOTED THE SAME ACT OF MARCH 16, 1939, CONTAINED ANOTHER APPROPRIATION UNDER THE TITLE "1SALARIES AND EXPENSES, CIVIL AERONAUTICS AUTHORITY, 1940" WHICH PROVIDES IN PART:

* * * FOR SALARIES AND EXPENSES OF THE CIVIL AERONAUTICS AUTHORITY, INCLUDING THE EXPENSES OF OPERATION, MAINTENANCE, AND UPKEEP OF AIR NAVIGATION FACILITIES, IN CARRYING OUT THE DUTIES, POWERS, AND FUNCTIONS DEVOLVING UPON IT PURSUANT TO THE AUTHORITY CONTAINED IN THE CIVIL AERONAUTICS ACT OF 1938 (52 STAT. 973), INCLUDING * * * PURCHASE AND EXCHANGE (NOT TO EXCEED $400,000), OPERATION, MAINTENANCE, REPAIR, AND OVERHAUL OF AIRCRAFT, AIRCRAFT POWER PLANTS, PROPELLERS AND EQUIPMENT, AND SPARE PARTS THEREFOR; PURCHASE AND EXCHANGE (NOT TO EXCEED $45,000), HIRE, MAINTENANCE, REPAIR, AND OPERATION OF PASSENGER CARRYING AUTOMOBILES, INCLUDING TWO AUTOMOBILES FOR USE IN THE DISTRICT OF COLUMBIA; * * *

IN VIEW OF THE SPECIFIC PROVISIONS IN SUCH APPROPRIATION RELATING TO THE PURCHASE, EXCHANGE, HIRE, MAINTENANCE AND OPERATION OF PASSENGER CARRYING AUTOMOBILES AND AIRCRAFT FOR THE CARRYING OUT THE PROVISIONS OF THE SAID CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 973, IT MUST BE HELD THAT THE APPROPRIATION "1ESTABLISHMENT OF AIR NAVIGATION FACILITIES 1940" NOT CONTAINING SPECIFIC PROVISIONS THEREFOR IS NOT AVAILABLE FOR SUCH PURPOSES. YOUR QUESTION IS ANSWERED IN THE NEGATIVE.