B-5921, SEPTEMBER 25, 1939, 19 COMP. GEN. 397

B-5921: Sep 25, 1939

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UNLESS THE BUILDING IS ONE FOR WHICH AN ISSUE OF BONDS "HAS BEEN APPROVED AT AN ELECTION HELD. IS NOT MET BY THE APPROVAL OF A STATE BOND ISSUE PRIOR TO JULY 1. THE GENERAL RULE BEING THAT AN EXCEPTION TO A GENERAL INHIBITION IN A STATUTE IS TO BE CONSTRUED STRICTLY. 1939: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. UNLESS THE BUILDING IS ONE (A) FOR WHICH THE PROJECT HAS BEEN APPROVED BY THE PRESIDENT ON OR PRIOR TO JULY 1. OR (B) FOR THE COMPLETION OF WHICH FUNDS HAVE BEEN ALLOCATED AND IRREVOCABLY SET ASIDE UNDER PRIOR RELIEF APPROPRIATION ACTS.'. 243 AND THE SPONSOR'S CONTRIBUTION IS $45. THAT COMMISSION IS AUTHORIZED TO ISSUE BONDS OF THE STATE FOR THE CONSTRUCTION OF ARMORIES AND NO APPROVAL OF THE QUALIFIED ELECTORS IN AN ELECTION IS REQUIRED AS A CONDITION PRECEDENT TO THE ISSUANCE OF THE BONDS.

B-5921, SEPTEMBER 25, 1939, 19 COMP. GEN. 397

WORDS AND PHRASES - "ELECTION" - BOND ISSUE APPROVAL BY A STATE COMMISSION IN LIEU OF "AT AN ELECTION HELD" - EMERGENCY RELIEF APPROPRIATION ACT, 1939 THE SPECIFIC CONDITION OF SECTION 12 OF THE EMERGENCY RELIEF APPROPRIATION ACT, 1939, 53 STAT. 932, THAT NONE OF THE FUNDS APPROPRIATED BY THE ACT SHALL BE EXPENDED IN THE CONSTRUCTION OF A NON FEDERAL BUILDING, WHERE THE PORTION OF THE TOTAL ESTIMATED COST PAYABLE FROM FEDERAL FUNDS EXCEEDS $52,000, UNLESS THE BUILDING IS ONE FOR WHICH AN ISSUE OF BONDS "HAS BEEN APPROVED AT AN ELECTION HELD, ON OR PRIOR TO" JULY 1, 1939, IS NOT MET BY THE APPROVAL OF A STATE BOND ISSUE PRIOR TO JULY 1, 1939, BY A STATE ARMORY BUILDING COMMISSION, THE TERM "ELECTION" BEING MOST COMMONLY USED TO SIGNIFY A CHOICE OR SELECTION MADE BY A QUALIFIED ELECTORAL BODY AT THE TIME AND SUBSTANTIALLY IN THE MANNER AND WITH THE SAFEGUARDS PROVIDED BY LAW, AND THE GENERAL RULE BEING THAT AN EXCEPTION TO A GENERAL INHIBITION IN A STATUTE IS TO BE CONSTRUED STRICTLY.

COMPTROLLER GENERAL BROWN TO THE FEDERAL WORKS ADMINISTRATOR, SEPTEMBER 25, 1939:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1939, AS FOLLOWS:

SECTION 12 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 READS AS FOLLOWS:

"NONE OF THE FUNDS MADE AVAILABLE BY THIS JOINT RESOLUTION SHALL BE EXPENDED ON THE CONSTRUCTION OF ANY BUILDING (1) THE TOTAL ESTIMATED COST OF WHICH, IN THE CASE OF A FEDERAL BUILDING, EXCEEDS $50,000, OR (2) THE PORTION OF THE TOTAL ESTIMATED COST OF WHICH PAYABLE FROM FEDERAL FUNDS, IN THE CASE OF A NON-FEDERAL BUILDING, EXCEEDS $52,000, UNLESS THE BUILDING IS ONE (A) FOR WHICH THE PROJECT HAS BEEN APPROVED BY THE PRESIDENT ON OR PRIOR TO JULY 1, 1939, OR FOR WHICH AN ISSUE OF BONDS HAS BEEN APPROVED AT AN ELECTION HELD, ON OR PRIOR TO SUCH DATE, OR (B) FOR THE COMPLETION OF WHICH FUNDS HAVE BEEN ALLOCATED AND IRREVOCABLY SET ASIDE UNDER PRIOR RELIEF APPROPRIATION ACTS.'

A PROJECT HAS BEEN SUBMITTED TO THE WORK PROJECTS ADMINISTRATION BY THE MINNESOTA STATE ARMORY BUILDING COMMISSION FOR THE ERECTION OF AN ARMORY IN THE CITY OF ALBERT LEA, FREEBORN COUNTY, MINNESOTA.

THE FEDERAL FUNDS REQUESTED IN THE PROJECT AMOUNT TO $81,243 AND THE SPONSOR'S CONTRIBUTION IS $45,080. UNDER THE STATUTE OF THE STATE OF MINNESOTA WHICH CREATED THE MINNESOTA STATE ARMORY BUILDING COMMISSION, THAT COMMISSION IS AUTHORIZED TO ISSUE BONDS OF THE STATE FOR THE CONSTRUCTION OF ARMORIES AND NO APPROVAL OF THE QUALIFIED ELECTORS IN AN ELECTION IS REQUIRED AS A CONDITION PRECEDENT TO THE ISSUANCE OF THE BONDS.

THE COMMISSION BY RESOLUTION OF MAY 15, 1939, AUTHORIZED THE ISSUANCE OF BONDS FOR THIS PURPOSE.

SINCE THE EXCEPTION IN THE SECTION OF THE RELIEF ACT QUOTED RELATES ONLY TO THE ISSUANCE OF BONDS PURSUANT TO AN ELECTION, MAY MORE THAN $52,000 OF FEDERAL FUNDS BE EXPENDED IN THE CONSTRUCTION OF THIS BUILDING WHERE COMPETENT STATE AUTHORITY HAD TAKEN ACTION WITH RESPECT TO BONDS PRIOR TO THE FIRST OF JULY, WHICH ACTION IS AS BINDING UPON THE TAXPAYERS AS THOUGH IT HAD BEEN APPROVED AT AN ELECTION?

YOUR OPINION ON THIS QUESTION WOULD BE APPRECIATED.

THE STATUTE IN QUESTION SPECIFICALLY PROVIDES THAT NOT MORE THAN $52,000 OF THE FUNDS MADE AVAILABLE THEREBY SHALL BE USED TO DEFRAY THE COST OF CONSTRUCTING ANY NON-FEDERAL BUILDING UNLESS (1) THE PROJECT WAS APPROVED BY THE PRESIDENT ON OR BEFORE JULY 1, 1939, OR (2) AN ISSUE OF BONDS ,HAD BEEN APPROVED AT AN ELECTION" HELD ON OR BEFORE THAT DATE, OR (3) THE BUILDING IS ONE FOR THE COMPLETION OF WHICH FUNDS HAVE BEEN SET ASIDE UNDER PRIOR RELIEF APPROPRIATION ACTS. IT IS NOT CONTENDED THAT THE PROJECT TO WHICH YOUR LETTER RELATES COMES WITHIN EXCEPTIONS (1) OR (3), AND, THEREFORE, THE ONLY QUESTION FOR CONSIDERATION IS WHETHER THE ACTION OF THE MINNESOTA STATE ARMORY BUILDING COMMISSION IN APPROVING THE ISSUANCE OF STATE BONDS PRIOR TO JULY 1, 1939, IS TANTAMOUNT TO AN APPROVAL "AT AN ELECTION" WITHIN THE MEANING OF THE SECOND EXCEPTION CITED ABOVE.

THE TERM "ELECTION" IS MOST COMMONLY USED TO SIGNIFY A CHOICE OR SELECTION MADE BY A QUALIFIED ELECTORAL BODY AT THE TIME AND SUBSTANTIALLY IN THE MANNER AND WITH THE SAFEGUARDS PROVIDED BY LAW. SEE GENERALLY FOSTER V. SCARFF, 15 OHIO ST. 532, 534, AND SEAMAN V. BAUGHMAN, 11 L.R.A. 354, 355. PARTICULARLY IS THE TERM TO BE UNDERSTOOD AS SO LIMITED WHEN, AS IN THIS INSTANCE, IT IS FOLLOWED BY THE WORD "HELD.'

THE JOINT RESOLUTION AS ORIGINALLY INTRODUCED DID NOT CONTAIN SECTION 12 IN ITS PRESENT FORM; THIS ENTIRE PROVISION WAS INSERTED AS PART OF A COMMITTEE AMENDMENT OFFERED ON THE FLOOR AT THE TIME THE RESOLUTION WAS BEING DEBATED IN THE HOUSE OF REPRESENTATIVES. CONG. REC., 76TH CONG., ST SESS., P. 10331. THE SPECIFIC PROVISION HERE UNDER CONSIDERATION WAS SPONSORED BY CONGRESSMAN GARRETT, WHO EXPLAINED ITS PURPOSE AS FOLLOWS:

* * * MY AMENDMENT WOULD HAVE PROVIDED THAT THIS LIMIT WOULD NOT APPLY IN THE EVENT THE SPONSOR IS A MUNICIPALITY, SCHOOL DISTRICT, OR COUNTY, AND THE PROJECTS ARE FOR A COURTHOUSE, JAIL, CITY HALL, PUBLIC BUILDING, OR SIMILAR PROJECT WHERE THE GOVERNING AUTHORITY HAD ALREADY ISSUED BONDS FOR THE PURPOSE OF TAKING CARE OF THE SPONSORS' PART AND THE APPLICATION HAD NOT BEEN APPROVED BUT MAY NOW BE IN THE PROCESS OF BEING MADE OR APPROVED. * * *

IT IS OFTEN THE CASE THAT BONDS ARE ACTUALLY VOTED BEFORE SPONSORS FILE THEIR APPLICATIONS. THERE ARE A NUMBER OF CASES, MR. CHAIRMAN, IN TEXAS AND OTHER STATES WHERE THE MUNICIPALITY, SCHOOL DISTRICT, OR THE COUNTY, BEING DESIROUS OF AIDING IN PROVIDING WORK FOR THE UNEMPLOYED, HAD NO FUNDS WITH WHICH THEY COULD SPONSOR THESE WORTHWHILE PROJECTS UNTIL THEY VOTED BONDS. W.P.A. IN MANY CASES HAD GONE TO THESE SPONSORS AND ENCOURAGED THE FILING OF APPLICATIONS AND HAVE COOPERATED WITH THESE SPONSORS IN ORDER TO RELIEVE THE UNEMPLOYMENT SITUATION AND AT THE SAME TIME CONSTRUCT MUCH-NEEDED AND PERMANENT STRUCTURES. APPLICATIONS ARE NOW BEING MADE OR ARE PENDING, BUT NOT YET APPROVED. THESE PEOPLE IN GOOD FAITH HAVE VOTED THESE BONDS AND IN SOME INSTANCES COULD NOT QUALIFY UNDER P.W.A. EVEN THOUGH AMPLE FUNDS WERE PROVIDED BY CONGRESS. IT SEEMS TO ME, THEREFORE, THAT THESE SPONSORS WHO IN GOOD FAITH HAVE ISSUED THESE BONDS FOR THESE PURPOSES SHOULD NOT BE EXCLUDED BY THIS LEGISLATION; AND MY AMENDMENT, WHICH I PROPOSE TO OFFER AT THE PROPER TIME IS INTENDED TO PROTECT THESE SPONSORS. ( CONG. REC., SUPRA, P. 10276.)

IT SEEMS CLEAR FROM THESE QUOTED STATEMENTS THAT THE AUTHOR OF THE PROVISION HAD IN MIND MUNICIPALITIES, SCHOOL DISTRICTS AND COUNTIES WHERE BONDS ARE NORMALLY AUTHORIZED BY A POPULAR VOTE OF THE ELECTORATE. AND THAT ACCORDS WITH THE COMMONLY ACCEPTED MEANING OF THE TERM "ELECTION LD.' HENCE, IT CANNOT BE PRESUMED THAT THE CONGRESS INTENDED THE EXCEPTION TO INCLUDE A SITUATION WHERE BONDS ARE ISSUED BY A BOARD OR COMMISSION WITHOUT AN ELECTION BEING HELD. FURTHERMORE, IT IS WELL- RECOGNIZED RULE OF STATUTORY CONSTRUCTION THAT AN EXCEPTION TO A GENERAL INHIBITION IN A STATUTE IS TO BE CONSTRUED STRICTLY; THAT IS, THAT ANY DOUBT IS TO BE RESOLVED IN FAVOR OF THE GENERAL PROVISION AND AGAINST THE EXCEPTION. BUT SINCE THE PROVISION APPARENTLY IS LIMITED TO CASES IN WHICH THE VOTERS HAVE EXPRESSED THEIR WILL AT AN ELECTION IT IS NOT WITHIN THE PROVINCE OF INTERPRETERS OF THE STATUTE TO SUPPLY AN OMISSION WHICH, WHATEVER THE REASON, MAY OR MAY NOT HAVE BEEN INTENDED.

IT MAY BE ASSUMED THAT IF THE CONGRESS HAD INTENDED TO INCLUDE CASES SUCH AS INVOLVED IN THE PRESENT INSTANCE WITHIN THE TERMS OF THE EXCEPTION IN QUESTION, THE RESTRICTIVE WORDS "AT AN ELECTION HELD" WOULD HAVE BEEN OMITTED ENTIRELY FROM SECTION 12. SINCE THESE WORDS ARE INCLUDED THEY MUST BE GIVEN EFFECT.

NO PROVISION HAVING BEEN MADE FOR EXCEPTING FROM THE LIMITATIONS CONTAINED IN SECTION 12, BUILDINGS FOR WHICH AN ISSUE OF BONDS HAD BEEN APPROVED, WITHOUT AN ELECTION BEING HELD, ON OR PRIOR TO JULY 1, 1939, BY AN ORGANIZATION SUCH AS THE MINNESOTA STATE ARMORY BUILDING COMMISSION THE QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.