B-52792, OCTOBER 23, 1945, 25 COMP. GEN. 356

B-52792: Oct 23, 1945

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1945: I HAVE YOUR LETTER OF SEPTEMBER 29. X WHICH WAS AMENDED BY AMENDMENT NO. 2 THEREOF. THE WAR MANPOWER COMMISSION WAS TERMINATED AND ALL FUNCTIONS. PROPERTIES AND FUNDS OF THE WAR MANPOWER COMMISSION WERE TRANSFERRED TO THE DEPARTMENT OF LABOR FOR ADMINISTRATION UNDER MY SUPERVISION. THE COMMISSION WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE OR OF THE DEPARTMENT OR AGENCY IN WHICH HE IS EMPLOYED OR TO WHICH HE IS TRANSFERRED. THAT WHENEVER SUCH TRANSFER IS DIRECTED TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED. THE DEPARTMENT OR AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF. UNLESS SUCH TERMINATION IS FOR CAUSE.

B-52792, OCTOBER 23, 1945, 25 COMP. GEN. 356

TRAVELING EXPENSES; TRANSPORTATION OF HOUSEHOLD EFFECTS - RETRANSFER AFTER WAR SERVICE TRANSFER IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, AN EMPLOYEE PREVIOUSLY TRANSFERRED FROM ONE AGENCY TO ANOTHER FOR THE BETTER PROSECUTION OF THE WAR EFFORT, PURSUANT TO WAR MANPOWER COMMISSION DIRECTIVE NO. X AND WAR SERVICE REGULATION NO. IX, AS AMENDED, MAY NOT BE REIMBURSED FOR THE EXPENSES OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD GOODS INCIDENT TO HIS RETURN TO OR REEMPLOYMENT IN HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY IN FURTHERANCE OF HIS REEMPLOYMENT RIGHTS CONFERRED BY SECTION IV OF SAID DIRECTIVE NO. X.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, OCTOBER 23, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1945, AS FOLLOWS:

UNDER THE AUTHORITY VESTED IN HIM BY THE PROVISIONS OF EXECUTIVE ORDERS 9139 AND 9243 (7 F.R. 2919, 7213) THE CHAIRMAN OF THE WAR MANPOWER COMMISSION ISSUED, ON SEPTEMBER 14, 1942, WAR MANPOWER COMMISSION DIRECTIVE NO. X WHICH WAS AMENDED BY AMENDMENT NO. 2 THEREOF, ON MARCH 27, 1944. BY EXECUTIVE ORDER 9617, DATED SEPTEMBER 19, 1945, THE WAR MANPOWER COMMISSION WAS TERMINATED AND ALL FUNCTIONS, AGENCIES, OFFICERS, EMPLOYEES, RECORDS, PROPERTIES AND FUNDS OF THE WAR MANPOWER COMMISSION WERE TRANSFERRED TO THE DEPARTMENT OF LABOR FOR ADMINISTRATION UNDER MY SUPERVISION, DIRECTION AND CONTROL.

DIRECTIVE NO. X AS AMENDED PROVIDES IN PERTINENT PART AS FOLLOWS:

" SECTION 1. WHENEVER THE CIVIL SERVICE COMMISSION SHALL FIND THAT A CIVILIAN EMPLOYEE OF ANY DEPARTMENT OR AGENCY OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT CAN MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR EFFORT, IN A POSITION IN SOME OTHER SUCH DEPARTMENT OR AGENCY, THE COMMISSION WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE OR OF THE DEPARTMENT OR AGENCY IN WHICH HE IS EMPLOYED OR TO WHICH HE IS TRANSFERRED, SHALL DIRECT THE TRANSFER OF SUCH EMPLOYEE TO SUCH POSITION, PROVIDED, THAT WHENEVER SUCH TRANSFER IS DIRECTED TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED, THE DEPARTMENT OR AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, AND HIS HOUSEHOLD GOODS, OUT OF FUNDS AVAILABLE TO THE AGENCY FOR EXPENSES OF TRAVEL OR TRANSPORTATION, IN ACCORDANCE WITH GOVERNMENT REGULATIONS.

" SECTION IV. ANY EMPLOYEE OF A DEPARTMENT OR AGENCY OF THE EXECUTIVE BRANCH OF THE THE FEDERAL GOVERNMENT (OTHER THAN AN EMPLOYEE HOLDING A TEMPORARY POSITION) WHO HAS BEEN TRANSFERRED PURSUANT TO PARAGRAPH I OF THIS DIRECTIVE SHALL BE ENTITLED TO THIRTY DAYS' NOTICE FROM THE DEPARTMENT OR AGENCY TO WHICH HE HAS BEEN TRANSFERRED, PRIOR TO THE TERMINATION OF HIS SERVICES WITH SUCH DEPARTMENT OR AGENCY, UNLESS SUCH TERMINATION IS FOR CAUSE. UPON THE TERMINATION, WITHOUT PREJUDICE, OF

THE SERVICES OF AN EMPLOYEE (OTHER THAN AN EMPLOYEE TRANSFERRED OR RELEASED FROM A TEMPORARY POSITION) IN THE POSITION TO WHICH HIS TRANSFER OR RELEASE HAS BEEN AUTHORIZED OR DIRECTED PURSUANT TO PARAGRAPHS I OR II OF THIS DIRECTIVE (OR IN A POSITION WHICH, FOR THE PURPOSES OF THIS DIRECTIVE, IS SUBSTANTIALLY SIMILAR THERETO) SUCH EMPLOYEE SHALL BE ENTITLED TO THE REEMPLOYMENT BENEFITS HEREINBELOW SET FORTH, PROVIDED HE MAKES APPLICATION FOR REINSTATEMENT THEREIN WITHIN FORTY DAYS AFTER THE TERMINATION OF HIS SERVICES WITH A DEPARTMENT OR AGENCY OF THE FEDERAL GOVERNMENT AND, WITH RESPECT TO AN EMPLOYEE RELEASED TO A PRIVATE ENTERPRISE, WITHIN FORTY DAYS AFTER THE TERMINATION OF HIS SERVICES WITH SUCH AN ENTERPRISE BUT IN NO EVENT LATER THAN SIX MONTHS AFTER THE END OF THE WAR:

"/A) REINSTATEMENT, WITHIN THIRTY DAYS OF HIS APPLICATION, IN THE SAME DEPARTMENT OR AGENCY AND TO THE MAXIMUM EXTENT PRACTICABLE, IN THE SAME LOCALITY, IN HIS FORMER POSITION, OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IN SUCH MANNER, TO THE MAXIMUM CONSISTENT WITH LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED; "

IN COMMENTING UPON THE VALIDITY OF WAR MANPOWER COMMISSION DIRECTIVE NO. X, WITH RESPECT TO THE REQUIREMENT THAT GOVERNMENT AGENCIES PAY THE COST OF TRANSPORTING AN EMPLOYEE AND HIS HOUSEHOLD EFFECTS IN CONNECTION WITH THE TRANSFER OF SUCH AN EMPLOYEE FROM ONE FEDERAL AGENCY TO ANOTHER EFFECTED UNDER AUTHORITY OF DIRECTIVE NO. X, IT WAS STATED IN 22 COMP. GEN. 873 AS FOLLOWS:

"WHILE THE RULE HAS BEEN STATED IN THE DECISIONS CITED IN YOUR LETTER (21 COMP. GEN. 613; 17 ID. 874; 13 ID. 390) THAT GENERALLY THERE IS NO AUTHORITY OF LAW OR REGULATION TO REIMBURSE AN EMPLOYEE THE COST OF TRAVEL TO ACCEPT A NEW POSITION UPON A REGULAR TRANSFER FROM ONE FEDERAL AGENCY TO ANOTHER, IT MUST BE CONCLUDED THAT THE AUTHORITY VESTED IN THE PRESIDENT BY THE FIRST WAR POWERS ACT, 1941, 55 STAT. 838 (QUOTED IN YOUR LETTER) "TO MAKE SUCH REGULATIONS AND TO ISSUE SUCH ORDERS AS HE MAY DEEM NECESSARY" IN CONNECTION WITH TRANSFER OF PERSONNEL BETWEEN FEDERAL AGENCIES FOR THE BETTER PROSECUTION OF THE WAR, IS BROAD ENOUGH TO AUTHORIZE HIM OR THE WAR MANPOWER COMMISSION AND/OR THE UNITED STATES CIVIL SERVICE COMMISSION TO WHICH THE PRESIDENT'S AUTHORITY HAS BEEN DELEGATED, TO OBLIGATE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE IS INVOLUNTARILY TRANSFERRED (WITHOUT HIS CONSENT) FOR THE COST OF "TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS, IN ACCORDANCE WITH GOVERNMENT REGULATION.' IN SUCH CASES, THE GOVERNMENT REGULATIONS APPLICABLE TO INTRA-AGENCY TRANSFERS ARE GENERALLY FOR APPLICATION IN THE ABSENCE OF SPECIAL REGULATIONS RELATIVE THERETO.'

IN 24 COMP. GEN. 269, IN DISCUSSING THE QUESTION OF WHETHER THE PAYMENT OF SUCH EXPENSES BY THE AGENCY TO WHICH THE TRANSFER IS BEING EFFECTED IS MANDATORY, IT WAS HELD THAT "THE SAME BASIC AUTHORITY OF LAW--- THE FIRST WAR POWERS ACT, 1941--- WHICH WAS HELD IN SAID DECISION OF MARCH 6, 1943 (22 COMP. GEN. 873) TO BE SUFFICIENT TO AUTHORIZE THE PRESIDENT OF THE WAR MANPOWER COMMISSION AND THE CIVIL SERVICE COMMISSION, TO WHICH HIS AUTHORITY HAS BEEN DELEGATED, TO OBLIGATE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE WAS INVOLUNTARILY TRANSFERRED FOR THE COST OF TRANSPORTING THE EMPLOYEE AND HIS HOUSEHOLD GOODS IN CONNECTION WITH SUCH TRANSFER, IS SUFFICIENT, ALSO, TO OBLIGATE THE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE VOLUNTARILY IS TRANSFERRED UNDER THE TERMS AND CONDITIONS OF THE AMENDED WAR MANPOWER COMMISSION DIRECTIVE AND THE CIVIL SERVICE COMMISSION REGULATION, SUPRA.

" * * * IF AN AGENCY USES THE COMMISSION'S AUTHORIZATION ISSUED PURSUANT TO SAID WAR MANPOWER COMMISSION DIRECTIVE AND CIVIL SERVICE REGULATION TO TRANSFER AN EMPLOYEE FROM SOME OTHER AGENCY TO SUCH AGENCY, EITHER WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE, IT BECOMES MANDATORY UPON SUCH AGENCY TO WHICH THE EMPLOYEE WAS TRANSFERRED TO REIMBURSE THE EMPLOYEE UPON PRESENTATION OF CLAIM FOR EXPENSES OF HIS LAST TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD EFFECTS WITHIN THE LIMITS OF APPLICABLE REGULATIONS, FROM HIS OFFICIAL STATION IN HIS NEW POSITION IN THE AGENCY TO WHICH TRANSFERRED.'

QUESTION HAS NOW ARISEN WITH RESPECT TO THE PAYMENT OF AN EMPLOYEE'S EXPENSES OF TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD EFFECTS, IN EFFECTING A RE-TRANSFER TO HIS FORMER AGENCY WHEN THE EMPLOYEE IS EXERCISING HIS REEMPLOYMENT RIGHTS ACQUIRED UNDER SECTION IV (A) OF DIRECTIVE NO. X.

DIRECTIVE NO. X AS AMENDED WAS A WARTIME MEASURE IMPLEMENTING EXECUTIVE ORDERS 9139 AND 9243 AND WAS PROMULGATED FOR THE PURPOSE OF FACILITATING THE MOBILIZATION AND EFFECTUATING THE MAXIMUM UTILIZATION OF EMPLOYEES OF THE FEDERAL GOVERNMENT IN THE WAR EFFORT. THE PROVISO CLAUSE CONTAINED IN THE AMENDED SECTION OF THE DIRECTIVE WAS INTENDED TO MAKE THE EMPLOYEE WHOLE FOR THE SPECIFIED EXPENSES FOR TRAVEL AND TRANSPORTATION WHICH HE INCURRED INCIDENT TO A TRANSFER OF OFFICIAL STATION DIRECTED UNDER DIRECTIVE NO. X, WITHIN THE LIMITATIONS PRESCRIBED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND EXECUTIVE ORDER NO. 8588 AS AMENDED. PAYMENT OF SUCH EXPENSES ARE NECESSARILY LIMITED TO TRANSPORTATION OF THE EMPLOYEE AND HIS HOUSEHOLD EFFECTS, INCIDENT TO AN INTER-AGENCY TRANSFER DIRECTED UNDER DIRECTIVE NO. X WHEN SUCH TRANSFER INVOLVES A CHANGE OF OFFICIAL STATION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE.

THE LANGUAGE IN THE PROVISO CLAUSE CONTAINED IN SECTION I OF DIRECTIVE NO. X, WHILE REQUIRING REIMBURSEMENT TO THE EMPLOYEE FOR EXPENSES INCURRED BY HIM IN CONNECTION WITH A TRANSFER EFFECTED UNDER THIS DIRECTIVE, DOES NOT LIMIT REIMBURSEMENT TO THE EMPLOYEE SOLELY FOR EXPENSES INCURRED FOR TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS INCIDENT TO REPORTING TO THE NEW OFFICIAL STATION. IN CONNECTION WITH A DIRECTED TRANSFER, SECTION I OF DIRECTIVE NO. X REQUIRES REIMBURSEMENT TO THE EMPLOYEE FOR "THE COST OF TRANSPORTING HIMSELF AND HIS HOUSEHOLD GOODS.' IT WOULD SEEM THAT SIMILAR EXPENSES INCURRED IN EFFECTING THE EMPLOYEE'S RETURN TO THE AGENCY WITH WHICH THE EMPLOYEE HAS REEMPLOYMENT RIGHTS SHOULD EQUALLY BE CONSIDERED PART OF THE "COST OF TRANSPORTING HIMSELF AND HIS HOUSEHOLD EFFECTS" INCURRED AS A RESULT OF A TRANSFER EFFECTED UNDER DIRECTIVE NO. X. IF THE EMPLOYEE WERE REQUIRED TO BEAR THE COST OF RETURNING HIMSELF AND HIS HOUSEHOLD EFFECTS, THE INTENT OF THE WAR MANPOWER COMMISSION, IN PROMULGATING THE DIRECTIVE, AND THE AMENDMENTS THERETO, I.E., TO MAKE SUCH AN EMPLOYEE WHOLE FOR THE SPECIFIED EXPENSES INCURRED BY HIM--- WHICH OTHERWISE WOULD NOT HAVE BEEN INCURRED EXCEPT FOR THE DIRECTED TRANSFER--- WOULD BE DEFEATED.

ACCORDINGLY, I WOULD APPRECIATE YOUR ADVISING ME (1) WHETHER AN EMPLOYEE IN THE EXERCISE OF HIS REEMPLOYMENT RIGHTS ACQUIRED UNDER SECTION IV (A) OF THE WAR MANPOWER COMMISSION DIRECTIVE NO. X MAY BE REIMBURSED FOR THE COST OF TRANSPORTING HIMSELF AND HIS HOUSEHOLD GOODS INCURRED INCIDENT TO A CHANGE OF OFFICIAL STATION IN RETURNING TO THE AGENCY FROM WHICH HE WAS ORIGINALLY TRANSFERRED UNDER DIRECTIVE NO. X,(2) IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, I WOULD APPRECIATE YOUR ADVISING ME WHETHER SUCH EXPENSES SHOULD BE PAID FROM THE FUNDS APPROPRIATED FOR THE AGENCY TO WHICH HE WAS ORIGINALLY TRANSFERRED OR BY THE AGENCY TO WHICH HE IS RETURNING.

AS STATED IN 22 COMP. GEN. 873, AND THE DECISIONS THEREIN CITED, GENERALLY THERE IS NO AUTHORITY TO REIMBURSE AN EMPLOYEE FOR THE COST OF TRAVEL TO ACCEPT A NEW POSITION UPON A REGULAR TRANSFER FROM ONE FEDERAL AGENCY TO ANOTHER. HOWEVER, THE AUTHORITY VESTED IN THE PRESIDENT OF THE UNITED STATES BY THE FIRST WAR POWERS ACT OF 1941, 55 STAT. 838, TO MAKE SUCH REGULATIONS AND TO ISSUE SUCH ORDERS AS HE MAY DEEM NECESSARY IN CONNECTION WITH THE TRANSFER OF PERSONNEL BETWEEN FEDERAL AGENCIES FOR THE BETTER PROSECUTION OF THE WAR, WAS BROAD ENOUGH TO OBLIGATE APPROPRIATED FUNDS FOR THE TRANSFER OF AN EMPLOYEE AND HIS HOUSEHOLD GOODS WHEN TRANSFERRED IN ACCORDANCE WITH THE REGULATIONS SO PROVIDING.

SECTION 2 (A) (3) OF THE WAR SERVICE REGULATION IX WAS AMENDED BY THE CIVIL SERVICE COMMISSION CIRCULAR 493, SUPPLEMENT NO. 2, SEPTEMBER 7, 1944, WHICH CIRCULAR PROVIDED, IN PERTINENT PART, AS FOLLOWS:

IN ACCORDANCE WITH THE AMENDMENT OF MARCH 27, 1944, TO DIRECTIVE NO. 10 OF THE WAR MANPOWER COMMISSION, RELATING TO THE TRANSFER AND RELEASE OF GOVERNMENT EMPLOYEES, PARAGRAPH (3) OF SECTION 2 (A) OF WAR SERVICE REGULATION IX WAS AMENDED BY DEPARTMENTAL CIRCULAR 493, EFFECTIVE AS OF MARCH 29, 1944, TO READ AS FOLLOWS:

"/3) WHENEVER A TRANSFER IS AUTHORIZED UNDER THIS SUBSECTION TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED, THE DEPARTMENT OR AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, AND HIS HOUSEHOLD GOODS, OUT OF FUNDS AVAILABLE TO THE AGENCY FOR EXPENSES OF TRAVEL OR TRANSPORTATION, IN ACCORDANCE WITH GOVERNMENT REGULATIONS. EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION AT A LOWER SALARY THAN HE IS RECEIVING AT THE TIME TRANSFER IS INITIATED.

IT SHOULD BE SPECIFICALLY NOTED THAT THERE IS NO PROVISION FOR THE PAYMENT OF THE TRANSPORTATION EXPENSES OF THE EMPLOYEE'S FAMILY.

THE EMPLOYEE IS ENTITLED TO THE EXPENSES SPECIFIED IN CONNECTION WITH A TRANSFER BEYOND A REASONABLE COMMUTING DISTANCE FROM HIS HOME WHEN IT IS DETERMINED BY THE COMMISSION THAT THE EMPLOYEE WILL BY SUCH TRANSFER MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR PROGRAM IN THE POSITION TO WHICH TRANSFERRED. THE BASIS FOR THIS FINDING IS IDENTICAL WITH THE BASIS USED IN DETERMINING WHETHER THE EMPLOYEE IS ENTITLED TO REEMPLOYMENT RIGHTS. THE EMPLOYEE WILL, THEREFORE, BE ENTITLED TO PAYMENT OF THE TRANSPORTATION EXPENSES SPECIFIED WHENEVER THE COMMISSION AUTHORIZES HIS TRANSFER TO A POSITION BEYOND A REASONABLE COMMUTING DISTANCE FROM HIS HOME UNDER THE PROVISIONS OF SECTION 2 (A) OF WAR SERVICE REGULATION IX. REGULATION IX WILL NOT SERVE AS AUTHORITY FOR PAYMENT OF TRANSPORTATION EXPENSES IN ANY OTHER CASE. (ITALICS SUPPLIED.)

ALSO, IT IS TO BE NOTED THAT SECTION IV OF WAR MANPOWER COMMISSION DIRECTIVE X, QUOTED IN YOUR SUBMISSION, PRESCRIBES HOW THE SERVICES OF THE EMPLOYEE SO TRANSFERRED MAY BE TERMINATED IN THE AGENCY TO WHICH TRANSFERRED AND PROVIDES FOR HIS REEMPLOYMENT IN HIS FORMER POSITION OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY IN SUCH MANNER "THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED," BUT NEITHER DIRECTIVE X NOR THE U.S. CIVIL SERVICE COMMISSION CIRCULAR 493, SUPPLEMENT 2, SUPRA, PURPORTS TO AUTHORIZE REIMBURSEMENT FOR THE TRANSPORTATION OF THE EMPLOYEE'S HOUSEHOLD EFFECTS UPON RETURN TO, OR REEMPLOYMENT IN, HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY. HAD THE EMPLOYEE REMAINED IN HIS FORMER POSITION AND NOT BEEN TRANSFERRED, NO RIGHTS TO TRANSPORTATION OF HOUSEHOLD EFFECTS WOULD HAVE RISEN. THEREFORE, IT MUST BE HELD THAT UPON THE REEMPLOYMENT OF AN EMPLOYEE IN FURTHERANCE OF THE RIGHTS CONFERRED UPON HIM BY SECTION IV OF WAR MANPOWER COMMISSION DIRECTIVE X, HE MAY NOT BE REIMBURSED FOR THE COST OF TRANSPORTING HIMSELF OR HIS HOUSEHOLD GOODS INCIDENT TO HIS RETURN TO HIS FORMER POSITION. COMPARE B-50876, DATED JULY 26, 1945. SPECIFICALLY, THEREFORE, QUESTION (1) IS ANSWERED IN THE NEGATIVE, RENDERING IT UNNECESSARY TO ANSWER QUESTION (2).