B-57413, JULY 28, 1960, 40 COMP. GEN. 58

B-57413: Jul 28, 1960

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IS APPLICABLE TO THE NEW MODERN FEDERAL PRACTICE DIGEST WHICH IS ESSENTIALLY A NEW EDITION AND RECOMPILATION UNDER A NEW NAME OF THE FEDERAL DIGEST COMMONLY REFERRED TO AS THE " LIFETIME FEDERAL DIGEST" AND. WHICH IS APPLICABLE TO THE LIFETIME FEDERAL DIGEST IS ALSO APPLICABLE TO THE NEW MODERN FEDERAL PRACTICE DIGEST. IT WAS TO BE COMPOSED OF APPROXIMATELY 60 VOLUMES AND HAD BEEN OFFERED TO THE GOVERNMENT FOR APPROXIMATELY $5 PER VOLUME. THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS APPARENTLY BELIEVED THE PRICE ASKED FOR THE DIGEST WAS TOO HIGH AND. THIS LIMITATION IS FURTHER EXPLAINED ON PAGE 2 AND 3 OF HOUSE REPORT NO. 360. THE DESIGN OF THE PROVISION IS TO LIMIT THE COST OF THE NEW LIFETIME FEDERAL DIGEST WHICH IS BEING PUBLISHED BY THE WEST PUBLISHING CO.

B-57413, JULY 28, 1960, 40 COMP. GEN. 58

APPROPRIATIONS - LIMITATIONS - LIFETIME FEDERAL DIGEST THE PRICE LIMITATION OF $4.25 PER VOLUME ON THE PURCHASE OF THE LIFETIME FEDERAL DIGEST IN SECTION 205 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1961, 74 STAT. 477, AND IN PRIOR APPROPRIATION ACTS SINCE 1941, IS APPLICABLE TO THE NEW MODERN FEDERAL PRACTICE DIGEST WHICH IS ESSENTIALLY A NEW EDITION AND RECOMPILATION UNDER A NEW NAME OF THE FEDERAL DIGEST COMMONLY REFERRED TO AS THE " LIFETIME FEDERAL DIGEST" AND, THEREFORE, APPROPRIATED FUNDS FOR THE CURRENT FISCAL YEAR MAY NOT BE USED TO PAY IN EXCESS OF $4.25 PER VOLUME FOR THE NEW MODERN FEDERAL PRACTICE DIGEST.

TO THE ATTORNEY GENERAL, JULY 28, 1960:

BY LETTER OF JULY 11, 1960, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL ASKED WHETHER THE PRICE LIMITATION CONTAINED IN SECTION 205 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1961, 74 STAT. 477, WHICH IS APPLICABLE TO THE LIFETIME FEDERAL DIGEST IS ALSO APPLICABLE TO THE NEW MODERN FEDERAL PRACTICE DIGEST.

SECTION 205 PROVIDES IN PART THAT--- "1NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR ANY OTHER ACT FOR THE CURRENT FISCAL YEAR SHALL BE USED TO PAY * * * IN EXCESS OF $4.25 PER VOLUME FOR THE CURRENT OR FUTURE VOLUMES OF THE LIFETIME FEDERAL DIGEST.'

THE LEGISLATIVE HISTORY OF THIS LIMITATION SHOWS THAT A SIMILAR LIMITATION FIRST APPEARED IN THE LAW AS SECTION 501 OF THE ACT OF JUNE 28, 1941, 55 STAT. 302. AT THAT TIME, THE WEST PUBLISHING COMPANY HAD ANNOUNCED THE DISCONTINUANCE OF A PRIOR DIGEST AND THE INTRODUCTION OF THE NEW FEDERAL DIGEST COMMONLY REFERRED TO AS THE "1LIFETIME FEDERAL DIGEST.' IT WAS TO BE COMPOSED OF APPROXIMATELY 60 VOLUMES AND HAD BEEN OFFERED TO THE GOVERNMENT FOR APPROXIMATELY $5 PER VOLUME, THE AMOUNT OF THE LIMITATION ON FEDERAL DIGESTS CONTAINED IN THE ACT OF MARCH 3, 1911, 36 STAT. 1155, THEN 28 U.S.C. 337.

WHEN THE DEPARTMENT OF JUSTICE AND THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SOUGHT FUNDS TO PURCHASE THE NEW DIGEST, THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS APPARENTLY BELIEVED THE PRICE ASKED FOR THE DIGEST WAS TOO HIGH AND, CONSEQUENTLY, THE CONGRESS LIMITED THE AMOUNT THAT THOSE AGENCIES COULD PAY TO $3.25 PER VOLUME. SEE THE HOUSE HEARINGS ON THE DEPARTMENT OF JUSTICE APPROPRIATION BILL FOR 1942, PAGES 142-144, 673, 706-709.

THIS LIMITATION IS FURTHER EXPLAINED ON PAGE 2 AND 3 OF HOUSE REPORT NO. 360, 77TH CONGRESS, ST SESSION, AS FOLLOWS:

A LIMITATION APPEARS AT THE END OF THE BILL APPLYING TO ALL OF THE MONEYS APPROPRIATED IN THE BILL BUT DIRECTED PRIMARILY AT APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE AND THE OFFICE OF ADMINISTRATOR OF UNITED STATES COURTS. THE DESIGN OF THE PROVISION IS TO LIMIT THE COST OF THE NEW LIFETIME FEDERAL DIGEST WHICH IS BEING PUBLISHED BY THE WEST PUBLISHING CO. TO REPLACE ALL FORMER FEDERAL DIGESTS TO A COST OF NOT TO EXCEED $3.25 PER VOLUME. FUNDS WERE CARRIED IN THE ESTIMATES OF THE BUDGET TO PURCHASE OVER 300 SETS OF THIS DIGEST (IT WILL COMPRISE SOMETHING OVER 60 VOLUMES) AT A COST OF $300 PER SET FOR THE USE OF THE COURTS, DISTRICT ATTORNEYS, AND ATTORNEYS IN THE DEPARTMENT OF JUSTICE. THE COMMITTEE REGARDS THIS PRICE AS EXCESSIVE IN TERMS OF A GOVERNMENT PRICE AND ACCORDINGLY HAVE LIMITED THE EXPENDITURES FOR THIS PURPOSE AS EXPLAINED. THE COST PER SET, UNDER THE LIMITATION, WILL RUN APPROXIMATELY $200, AND FUNDS ARE PROVIDED IN THE BILL ON THIS BASIS.

LANGUAGE SIMILAR TO THAT CONTAINED IN THE 1941 ACT HAS APPEARED IN VARIOUS ANNUAL APPROPRIATION ACTS TO THE PRESENT TIME. HOWEVER, THE PERMANENT LIMITATION OF $5 FOR FEDERAL DIGESTS CONTAINED IN 28 U.S.C. 337, 1940 EDITION, WAS OMITTED WHEN THAT TITLE WAS REVISED AND CODIFIED BY THE ACT OF JUNE 25, 1948, 62 STAT. 869. THE LEGISLATIVE HISTORY REGARDING SUCH OMISSION DISCLOSES THAT THE LIMITATION WAS NO LONGER CONSIDERED NECESSARY BECAUSE OF THE LIMITATION APPEARING ANNUALLY IN APPROPRIATION ACTS. SEE THE FOURTH PARAGRAPH OF REVISER'S NOTE FOLLOWING 28 U.S.C. 413. THIS ACTION, IN OUR VIEW, INDICATES THAT THE CONGRESS RECOGNIZED THAT THE LIMITATION CONTAINED IN THE ANNUAL ACTS WAS NOT ONLY APPLICABLE TO THE LIFETIME FEDERAL DIGEST BUT ALSO TO ANY FEDERAL DIGEST THAT MIGHT TAKE ITS PLACE. IN FACT, THE OFFICIAL TITLE OF THE PUBLICATION HAS NEVER CONTAINED THE WORD "LIFETIME.'

THE SITUATION NOW PREVAILING IS ESSENTIALLY THE SAME AS THAT WHICH EXISTED IN 1941 WHEN THE LIMITATION WAS EXPRESSLY MADE APPLICABLE TO THE LIFETIME FEDERAL DIGEST. WHETHER SUCH LIMITATION IS APPLICABLE TO THE NEW DIGEST THEREFORE DEPENDS ON WHETHER THE NEW DIGEST IS A DIFFERENT PUBLICATION WITHIN THE MEANING OF THIS LIMITATION OR WHETHER IT IS A CONTINUATION OF THE OLD PUBLICATION, IT BEING EVIDENT THAT MERELY CHANGING THE NAME OF THE PUBLICATION CANNOT SERVE TO NULLIFY THE LIMITATION IMPOSED BY LAW.

IN LITERATURE DESCRIBING THE NEW PUBLICATION THE WEST PUBLISHING COMPANY STATES THAT THIS NEW DIGEST WILL INDEX ALL FEDERAL CASE LAW FROM 1939 ON AND WILL BE KEPT UP TO DATE WITH CUMULATIVE POCKET PARTS AND INTERIM PAMPHLET SERVICE. IT ALSO IS STATED THAT THE NEW PUBLICATION CONTAINS A NUMBER OF NEW TOPICS AND REFERENCES AS WELL AS SUBSTANTIAL EXPANSION AND REDEVELOPMENT OF MANY LARGE GROUPS OF KEY NUMBER CLASSIFICATIONS.

DOUBTLESS SUCH NEW TOPICS, REFERENCES, ETC., MAY BE DESIRABLE IN VIEW OF THE MANY CHANGES IN THE LAW AND THE NEW DEVELOPMENTS IN FEDERAL PRACTICE WHICH HAVE TAKEN PLACE SINCE THE DIGEST WAS PUBLISHED. HOWEVER, IT IS NOTED THAT THE NEW PUBLICATION WILL BE KEPT UP TO DATE WITH CUMULATIVE POCKET PARTS AND INTERIM PAMPHLET SERVICE. ALSO, THE NEW PUBLICATION IS SET UP IN SUBSTANTIALLY THE SAME ORDER AS THE OLD DIGEST AND THE SAME SERVICE WILL BE FURNISHED.

IT IS OUR VIEW THEREFORE THAT THE NEW DIGEST IS ESSENTIALLY A NEW EDITION OR RECOMPILATION AND CONTINUATION OF THE OLD PUBLICATION UNDER A NEW NAME. IN ANY EVENT, WE BELIEVE THAT THE LONG-ESTABLISHED CONGRESSIONAL POLICY OF CONTROLLING THE PRICE OF PUBLICATIONS OF FEDERAL DIGESTS REQUIRES THAT THE CONGRESS BE GIVEN AN OPPORTUNITY TO REVIEW THIS MATTER, IF IT IS NECESSARY OR DESIRED TO PAY MORE THAN $4.25 PER VOLUME FOR THE MODERN FEDERAL PRACTICE DIGEST. CONSEQUENTLY, FUNDS APPROPRIATED IN THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1961, OR IN ANY OTHER ACT FOR THE CURRENT FISCAL YEAR MAY NOT BE USED TO PAY IN EXCESS OF $4.25 PER VOLUME FOR THE DIGEST IN QUESTION.