B-5265, AUGUST 2, 1939, 19 COMP. GEN. 142

B-5265: Aug 2, 1939

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1939: I HAVE YOUR LETTER OF JULY 29. THE QUESTION INVOLVED IS THE SAME AS THAT WHICH R. " 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.'. ELLIOTT'S INTERPRETATION WAS GIVEN. THE ESSENTIAL DIFFERENCE IN THE PROVISION OF SECTION 16 (E) OF PUBLIC RESOLUTION NO. 24 IS THAT THE PROVISO. "NO PART OF THE MONEY APPROPRIATED IN THIS JOINT RESOLUTION SHALL BE AVAILABLE TO PAY ANY PERSON * * *" IS INTRODUCED BY THE WORD "AND. THE SIMILAR PROVISO WAS INTRODUCED BY THE WORD . IS BROADER IN SCOPE AND APPLICATION THAN WAS SECTION 11 AMENDED IN PUBLIC RESOLUTION NO. 1? WOULD THIS PERMIT THE USE OF ADMINISTRATIVE FUNDS MADE AVAILABLE UNDER PUBLIC RESOLUTION NO. 24 TO PAY PERSONS WHO ARE NOT BONA FIDE CITIZENS OF THE UNITED STATES?

B-5265, AUGUST 2, 1939, 19 COMP. GEN. 142

ALIEN EMPLOYMENT AND CONTINUANCE IN EMPLOYMENT - EMERGENCY RELIEF ACT OF 1939 PROHIBITION NO PART OF THE MONEY APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, PUBLIC RESOLUTION NO. 24, APPROVED JUNE 30, 1939, 53 STAT. 927, MAY BE USED TO PAY ANY PERSON--- WHETHER PROJECT WORKER OR ADMINISTRATIVE EMPLOYEE--- WHO HAS NOT OR WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP. 18 COMP. GEN. 668, AND ALIEN EMPLOYMENT PROHIBITIONS OF 1938 AND 1939 EMERGENCY RELIEF APPROPRIATION ACTS, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, AUGUST 2, 1939:

I HAVE YOUR LETTER OF JULY 29, 1939, AS FOLLOWS:

AN URGENT QUESTION CALLING FOR IMMEDIATE DECISION HAS ARISEN IN ONE OF THE UNITS OF THIS AGENCY WHICH INVOLVES THE USE OF ADMINISTRATIVE FUNDS MADE AVAILABLE IN PUBLIC RESOLUTION NO. 24, 76TH CONGRESS, APPROVED JUNE 30, 1939.

THE QUESTION INVOLVED IS THE SAME AS THAT WHICH R. N. ELLIOTT, ACTING COMPTROLLER GENERAL, ANSWERED ON FEBRUARY 16, 1939, B-1500, IN A LETTER TO THE SECRETARY OF AGRICULTURE INTERPRETING PUBLIC RESOLUTION NO. 1, 76TH CONGRESS APPROVED FEBRUARY 4, 1939, WHICH AMENDED BY SECTION 2, SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 809. ON THE THIRD PAGE OF MR. ELLIOTT'S LETTER THE LAST SENTENCE ON THE PAGE STATES," 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.'

SECTION 16 (E) OF PUBLIC RESOLUTION NO. 24 CONTAINS LANGUAGE WITH REGARD TO ALIENS ALMOST IDENTICAL WITH THE LANGUAGE OF SECTION 11, AS AMENDED IN PUBLIC RESOLUTION NO. 1, ON WHICH MR. ELLIOTT'S INTERPRETATION WAS GIVEN. THE ESSENTIAL DIFFERENCE IN THE PROVISION OF SECTION 16 (E) OF PUBLIC RESOLUTION NO. 24 IS THAT THE PROVISO, "NO PART OF THE MONEY APPROPRIATED IN THIS JOINT RESOLUTION SHALL BE AVAILABLE TO PAY ANY PERSON * * *" IS INTRODUCED BY THE WORD "AND," WHILE IN SECTION 11, AS AMENDED OF PUBLIC RESOLUTION NO. 1, THE SIMILAR PROVISO WAS INTRODUCED BY THE WORD ,PROVIDED.'

DOES THIS SLIGHT DIFFERENCE IN LANGUAGE CHANGE THE ESSENTIAL MEANING SO THAT SECTION 16 (E) OF PUBLIC RESOLUTION NO. 24, IS BROADER IN SCOPE AND APPLICATION THAN WAS SECTION 11 AMENDED IN PUBLIC RESOLUTION NO. 1? OTHER WORDS, WOULD MR. ELLIOTT'S DECISION OF FEBRUARY 16, RELATIVE TO THE EFFECT OF PUBLIC RESOLUTION NO. 1 BE OF EQUAL APPLICABILITY TO SECTION 16 (E) OF PUBLIC RESOLUTION NO. 24? SPECIFICALLY, WOULD THIS PERMIT THE USE OF ADMINISTRATIVE FUNDS MADE AVAILABLE UNDER PUBLIC RESOLUTION NO. 24 TO PAY PERSONS WHO ARE NOT BONA FIDE CITIZENS OF THE UNITED STATES?

I SHALL APPRECIATE YOUR PROMPT ANSWER TO THIS INQUIRY AS CERTAIN IMPORTANT DECISIONS MUST BE HELD IN ABEYANCE PENDING RECEIPT OF IT.

SECTION 16 (E) OF THE "1EMERGENCY RELIEF APPROPRIATION ACT OF 1939" APPROVED JUNE 30, 1939, PUBLIC RESOLUTION NO. 24, 53 STAT. 934, PROVIDES AS FOLLOWS:

NO ALIEN SHALL BE GIVEN EMPLOYMENT OR CONTINUED IN EMPLOYMENT ON ANY WORK PROJECT PROSECUTED UNDER THE APPROPRIATIONS CONTAINED IN THIS JOINT RESOLUTION AND NO PART OF THE MONEY APPROPRIATED IN THIS JOINT RESOLUTION SHALL BE AVAILABLE TO PAY ANY PERSON WHO HAS NOT MADE OR WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP, SUCH AFFIDAVIT TO BE CONSIDERED PRIMA FACIE EVIDENCE OF SUCH CITIZENSHIP.

THE CORRESPONDING PROVISION IN SECTION 2 OF 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: * *

IN DECISION OF FEBRUARY 16, 1939, 18 COMP. GEN. 668, THIS OFFICE HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

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 IZENSHIP," 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.

IT WAS SOLELY ON THE BASIS THAT THE LAST PORTION OF THE SECTION APPEARING IN THE EARLIER LAW PROHIBITING THE EMPLOYMENT OF ALIENS WAS IN THE FORM OF A PROVISO THAT THE STATUTORY PROVISION COULD BE LIMITED IN ITS APPLICATION TO PROJECT EMPLOYEES AND REGARDED AS HAVING NO APPLICATION TO ADMINISTRATIVE EMPLOYEES. SEE, ALSO, 18 COMP. GEN. 766.

IN THE CURRENT RELIEF STATUTE, THE CLAUSE PROHIBITING THE USE OF THE MONEY APPROPRIATED IN THE ACT FOR PAYMENT OF THE SALARY OF ANY PERSON WHO HAS NOT MADE THE AFFIDAVIT AS TO CITIZENSHIP IS NOT IN THE FORM OF A PROVISO BUT IS PRECEDED BY THE WORD "AND" INSTEAD OF THE WORD "PROVIDED.' HENCE, THE RULE OF STATUTORY CONSTRUCTION APPLIED IN THE INTERPRETATION OF THE EARLIER LAW IS NOT APPLICABLE IN THE INTERPRETATION OF THE CURRENT PROVISION. THERE HAS BEEN NOTED THE STATEMENT IN HOUSE REPORT NO. 833 ON H.J. RES. 326, WHICH BECAME THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, TO THE EFFECT THAT THE PROVISION PROHIBITING THE EMPLOYMENT OF ALIENS WAS CONTINUED SUBSTANTIALLY UNCHANGED. BUT THE TERMS OF THE CURRENT STATUTE ARE PLAIN AND UNAMBIGUOUS, THEREBY PRECLUDING ANY REFERENCE TO THE LEGISLATIVE HISTORY OF THE ENACTMENT IN DETERMINING ITS EFFECT OR PURPOSE.

WHILE IT APPEARS THAT THE LAST PART OF THE SECTION IS BROAD ENOUGH TO HAVE MADE THE FIRST PART UNNECESSARY, THERE IS NO REPUGNANCE OR INCONSISTENCY BETWEEN THE TWO PORTIONS OF THE SECTION. FURTHERMORE, IF THE PROVISION IN QUESTION BE GIVEN THE EFFECT WHICH ITS PLAIN LANGUAGE IMPLIES IT WILL BE MORE NEARLY IN ACCORD WITH THE LEGISLATIVE POLICY AS INDICATED BY SIMILAR INHIBITIONS AGAINST THE USE OF VARIOUS REGULAR APPROPRIATIONS TO PAY SALARIES OR COMPENSATION OF PERSONS WHO ARE NOT CITIZENS OF THE UNITED STATES.

AS THE STATUTE IS IN PLAIN TERMS I HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT NO PART OF THE MONEY APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 MAY BE USED TO PAY ANY PERSON--- WHETHER PROJECT WORKER OR ADMINISTRATIVE EMPLOYEE--- WHO HAS NOT OR WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP. THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.