B-6069, OCTOBER 4, 1939, 19 COMP. GEN. 418

B-6069: Oct 4, 1939

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IS TO BE CONSIDERED SEPARATELY IN APPLYING THE EMPLOYMENT LIMITATION. THERE IS NO AUTHORITY TO VARY THE LEGISLATIVE INTENT. BY ANY CONSIDERATIONS FOUND OUTSIDE THE STATUTE EVEN THOUGH DEFICIENCIES IN LANGUAGE ARE SUPPOSED TO EXIST BY REASON OF CLERICAL ERROR OR INADVERTENCE. 1939: I HAVE YOUR LETTER OF SEPTEMBER 15. MAINTAINING SUCH RECLAMATION PROJECTS AS HAVE BEEN AUTHORIZED BY THE CONGRESS. CONSULTANTS ARE EMPLOYED PURSUANT TO THE AUTHORITY OF THE ACT OF FEBRUARY 28. THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED. AUTHORIZING THE SECRETARY OF THE INTERIOR TO EMPLOY ENGINEERS FOR CONSULTATION IN CONNECTION WITH THE CONSTRUCTION OF DAMS FOR IRRIGATION PURPOSES IS HEREBY REPEALED. THE NUMBER OF CONSULTANTS THAT MAY BE EMPLOYED PURSUANT TO THE ACT IS NOT CERTAIN.

B-6069, OCTOBER 4, 1939, 19 COMP. GEN. 418

RECLAMATION WORK CONSULTANTS - INTERPRETATION OF STATUTORY AUTHORITY FOR EMPLOYMENT - INADVERTENT OMISSIONS, ETC. SINCE THE ACT OF FEBRUARY 28, 1929, 45 STAT. 1406, PROVIDING FOR THE EMPLOYING "ON IMPORTANT RECLAMATION WORK FIVE CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS," CLEARLY RELATES TO RECLAMATION WORK IN GENERAL AND DOES NOT INDICATE THAT EACH DAM, ETC., IS TO BE CONSIDERED SEPARATELY IN APPLYING THE EMPLOYMENT LIMITATION, THERE IS NO AUTHORITY TO VARY THE LEGISLATIVE INTENT, AS SO EXPRESSED, BY ANY CONSIDERATIONS FOUND OUTSIDE THE STATUTE EVEN THOUGH DEFICIENCIES IN LANGUAGE ARE SUPPOSED TO EXIST BY REASON OF CLERICAL ERROR OR INADVERTENCE, BUT AS THE STATUTE EXPRESSLY ENUMERATES ENGINEERS, GEOLOGISTS, AND ECONOMISTS PRECEDED BY THE WORD "FIVE," IT REASONABLY MAY BE CONCLUDED THAT FIVE OF EACH OF THE THREE CLASSES, OR A TOTAL OF 15, MAY BE EMPLOYED AT ANY ONE TIME.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, OCTOBER 4, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 15, 1939, AS FOLLOWS:

THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR HAS NEED TO EMPLOY THE SERVICES OF CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS, IN CONNECTION WITH ITS WORK OF LOCATING, CONSTRUCTING, OPERATING, AND MAINTAINING SUCH RECLAMATION PROJECTS AS HAVE BEEN AUTHORIZED BY THE CONGRESS. CONSULTANTS ARE EMPLOYED PURSUANT TO THE AUTHORITY OF THE ACT OF FEBRUARY 28, 1929 (45 STAT. 1406), WHICH READS AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED, IN HIS JUDGMENT AND DISCRETION, TO EMPLOY FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK FIVE CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS, AT RATES OF COMPENSATION TO BE FIXED BY HIM, BUT NOT TO EXCEED $50 PER DAY FOR ANY ENGINEER, GEOLOGIST, OR ECONOMIST SO EMPLOYED: PROVIDED, THAT THE TOTAL COMPENSATION PAID TO ANY ENGINEER, GEOLOGIST, OR ECONOMIST DURING ANY FISCAL YEAR SHALL NOT EXCEED $5,000: PROVIDED FURTHER, THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER ACT, RETIRED OFFICERS OF THE ARMY OR NAVY MAY BE EMPLOYED BY THE SECRETARY OF THE INTERIOR AS CONSULTING ENGINEERS IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT.

"SEC. 2. THE JOINT RESOLUTION APPROVED JUNE 28, 1926, AUTHORIZING THE SECRETARY OF THE INTERIOR TO EMPLOY ENGINEERS FOR CONSULTATION IN CONNECTION WITH THE CONSTRUCTION OF DAMS FOR IRRIGATION PURPOSES IS HEREBY REPEALED.

"APPROVED, FEBRUARY 28, 1929.'

WITHIN THE PAST YEAR OCCASION HAS ARISEN FOR THE FIRST TIME TO CONSIDER THE TOTAL NUMBER OF CONSULTANTS THAT CAN BE EMPLOYED UNDER THE AUTHORITY OF THE ACT ABOVE QUOTED. THE NUMBER OF CONSULTANTS THAT MAY BE EMPLOYED PURSUANT TO THE ACT IS NOT CERTAIN; PARTICULARLY IN VIEW OF ITS LEGISLATIVE HISTORY. SECTION 1 MIGHT BE CONSTRUED, WITH SOME PLAUSIBILITY EITHER (1) TO AUTHORIZE THE EMPLOYMENT OF FIVE ENGINEERS, FIVE GEOLOGISTS, AND FIVE ECONOMISTS, FOR CONSULTATION ON ALL IMPORTANT RECLAMATION WORK OR PROJECTS, OR (2) TO AUTHORIZE THE EMPLOYMENT OF FIVE ENGINEERS, FIVE GEOLOGISTS, AND FIVE ECONOMISTS, FOR CONSULTATION ON EACH IMPORTANT RECLAMATION WORK OR PROJECT. THE UNCERTAINTY IS NOT CLEARLY RESOLVED BY REFERENCE TO THE LEGISLATIVE HISTORY.

THE JOINT RESOLUTION OF JUNE 28, 1926 (44 STAT. 776), PREDECESSOR OF THE ACT OF FEBRUARY 28, 1929, AND WHICH WAS REPEALED BY SECTION 2 THEREOF, PROVIDED:

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED, IN HIS JUDGMENT AND DISCRETION, TO EMPLOY FOR CONSULTATION ON THE PLANS AND SPECIFICATIONS FOR ANY DAM PROPOSED TO BE CONSTRUCTED BY THE DEPARTMENT OF THE INTERIOR, THE SERVICES OF NOT MORE THAN THREE EXPERIENCED ENGINEERS, DETERMINED BY HIM TO HAVE THE NECESSARY QUALIFICATIONS, WITHOUT REGARD TO CIVIL-SERVICE REQUIREMENTS, AND AT RATES OF COMPENSATION TO BE FIXED BY HIM FOR EACH, RESPECTIVELY, BUT NOT TO EXCEED $50 PER DAY AND NECESSARY TRAVELING EXPENSES, INCLUDING A PER DIEM OF NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE FOR EACH ENGINEER RESPECTIVELY, NOT EXCEEDING IN THE AGGREGATE MORE THAN $3,500 FOR ANY ENGINEER SO EMPLOYED FOR THE TIME EMPLOYED AND ACTUALLY ENGAGED UPON SUCH WORK: PROVIDED, THAT RETIRED OFFICERS OF THE ARMY MAY BE EMPLOYED BY THE SECRETARY OF THE INTERIOR AS CONSULTING ENGINEERS IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT.

"APPROVED, JUNE 28, 1926.'

UNDER THE AUTHORITY OF THIS RESOLUTION THREE ENGINEERS COULD BE EMPLOYED FOR CONSULTATION ON THE PLANS AND SPECIFICATIONS FOR ANY DAM PROPOSED TO BE CONSTRUCTED BY THE DEPARTMENT.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE PRESENT ACT CLEARLY SHOWS AN INTENTION TO ENLARGE THE NUMBER, COMPENSATION, AND TYPE OF EXPERTS FOR CONSULTATION PURPOSES. THE ACT ORIGINATED AS BILL S. 4528, INTRODUCED IN THE SENATE BY SENATOR PHIPPS, ON MAY 21, 1928, FIRST SESSION OF THE 70TH CONGRESS (SEE CONG. REC. VOL. 69, P. 9321). A COPY OF THE BILL IS ATTACHED FOR YOUR CONVENIENCE. IT IS TO BE NOTED THAT THE LANGUAGE OF THE BILL AUTHORIZES THE EMPLOYMENT ,FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK NOT TO EXCEED THREE CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS, ON ANY ONE PROJECT * * *.' THE SENATE PASSED THE BILL WITHOUT AMENDMENT ON MAY 26, 1928 ( CONG. REC. VOL. 69, P. 10102). ON JANUARY 16, 1929, MR. SMITH OF THE HOUSE COMMITTEE ON IRRIGATION AND RECLAMATION REPORTED THE BILL TO THE HOUSE WITH COMMITTEE AMENDMENTS RECOMMENDING THAT THE NUMBER OF ENGINEERS, GEOLOGISTS, AND ECONOMISTS BE ENLARGED BY CHANGING THE NUMBER "THREE" TO "FIVE" AND BY CHANGING THE TOTAL ANNUAL COMPENSATION FOR EACH FROM "$3,500" TO "$5,000" (SEE CONG. REC. VOL. 70, P. 1946). THE BILL AS AMENDED BY THE COMMITTEE AUTHORIZED THE EMPLOYMENT "FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK NOT TO EXCEED FIVE ENGINEERS, ECONOMISTS, AND GEOLOGISTS, ON ANY ONE PROJECT * * *.' ON FEBRUARY 25, IN ORDER TO REMOVE ALL LIMITATION UPON THE GOVERNMENT'S REQUIREMENT FOR CONSULTANTS, MR. CRAMTON PROPOSED ON THE FLOOR OF THE HOUSE AN AMENDMENT TO THE COMMITTEE AMENDMENT WHEREBY THE WORDS "NOT TO EXCEED THREE" AND "ON ANY ONE PROJECT" WOULD HAVE BEEN STRICKEN. MR. CRAMTON'S PROPOSAL WOULD HAVE AUTHORIZED WITHOUT RESTRICTION AS TO NUMBER THE EMPLOYMENT "FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS * * *" (SEE CONG. REC. VOL. 70, P. 4266, 7, 8). THIS AMENDMENT TO THE COMMITTEE AMENDMENT WAS REJECTED, THE COMMITTEE AMENDMENTS WERE ADOPTED, AND THE BILL WITH THE COMMITTEE AMENDMENTS WAS PASSED BY THE HOUSE. AS PASSED BY THE HOUSE, IT AUTHORIZED THE EMPLOYMENT "FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK NOT TO EXCEED FIVE ENGINEERS, GEOLOGISTS, AND ECONOMISTS, ON ANY ONE PROJECT * * *.'

BY REASON OF CLERICAL ERROR OR INADVERTENCE THE BILL AS RETURNED TO THE SENATE FOR CONCURRENCE EMBODIED NOT ONLY THE HOUSE COMMITTEE AMENDMENTS, BUT ALSO A PART OF MR. CRAMTON'S REJECTED AMENDMENT, NAMELY A DELETION OF THE WORDS "NOT TO EXCEED" AND "ON ANY ONE PROJECT" (SEE CONG. REC. VOL. 70, P. 4404). WITHOUT ANY DISCUSSION OR FURTHER CONSIDERATION OF THE BILL, THE SENATE CONCURRED IN THE AMENDED BILL AS RETURNED TO THE SENATE, RESULTING IN THE ACT OF FEBRUARY 28, 1929, WHICH AS A MATTER OF FACT, IN ITS ENROLLED FORM, WAS NOT PASSED BY THE HOUSE.

IT IS THE VIEW OF THIS DEPARTMENT THAT CONSTRUCTION NUMBER 2, SUPRA, CLEARLY ACCORDS WITH THE LEGISLATIVE INTENT. HOWEVER, BY REASON OF THE CLERICAL ERROR RESPONSIBLE FOR DELETION OF THE WORDS "ON ANY ONE PROJECT," SOME UNCERTAINTY EXISTS AS TO THE PROPRIETY OF THIS CONSTRUCTION.

FOR THE PURPOSE OF CLARIFYING THE MATTER BEFORE EMPLOYING ADDITIONAL CONSULTANTS IN CONNECTION WITH THE ENLARGED NUMBER OF AUTHORIZED PROJECTS FOR IMPORTANT RECLAMATION WORK, YOUR OPINION IS REQUESTED ON THE MATTER OF HOW MANY CONSULTANTS MAY BE EMPLOYED UNDER THE AUTHORITY OF THE ACT OF FEBRUARY 28, 1929.

THE ENLARGED CONSTRUCTION PROGRAM OF THE BUREAU OF RECLAMATION HAS RECENTLY REACHED A POINT WHERE THE EMPLOYMENT OF ADDITIONAL CONSULTANTS IS URGENTLY NEEDED. I WILL APPRECIATE, THEREFORE, RECEIVING YOUR EARLY REPLY.

IT IS A CARDINAL RULE OF STATUTORY CONSTRUCTION THAT THE MEANING AND INTENTION OF THE LEGISLATIVE BODY ARE TO BE SOUGHT FOR; THAT SUCH MEANING AND INTENTION ARE TO BE SOUGHT FIRST OF ALL IN THE STATUTE ITSELF--- IN THE WORDS WHICH THE LEGISLATIVE BODY HAS CHOSEN TO EXPRESS ITS PURPOSE; AND THAT IF THE WORDS OF THE STATUTE CONVEY A DEFINITE, CLEAR, AND SENSIBLE MEANING, THAT MUST BE ACCEPTED AS THE MEANING OF THE STATUTE, AND IT IS NOT PERMISSIBLE TO VARY IT OR DEPART FROM IT BY REASON OF ANY CONSIDERATIONS FOUND OUTSIDE THE STATUTE OR BASED ON MERE CONJECTURE. BLACK ON INTERPRETATION OF LAWS. IN THE LEADING CASE OF MARSHALL FIELD AND COMPANY V. JOHN M. CLARK, COLLECTOR OF THE PORT OF CHICAGO, 143 U.S. 649 L.1ED. 294, IT WAS HELD, QUOTING THE SYLLABUS:

THE SIGNING BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND BY THE PRESIDENT OF THE SENATE, IN OPEN SESSION, OF AN ENROLLED BILL, IS AN OFFICIAL ATTESTATION BY THE TWO HOUSES OF SUCH BILL AS ONE THAT HAS PASSED CONGRESS; AND WHEN THE BILL THUS ATTESTED RECEIVES THE APPROVAL OF THE PRESIDENT, AND IS DEPOSITED IN THE DEPARTMENT OF STATE ACCORDING TO LAW, ITS AUTHENTICATION AS A BILL THAT HAS PASSED CONGRESS IS COMPLETE AND UNIMPEACHABLE.

IT IS NOT COMPETENT TO SHOW FROM THE JOURNALS OF EITHER HOUSE OF CONGRESS, THAT AN ACT SO AUTHENTICATED, APPROVED, AND DEPOSITED, DID NOT PASS IN THE PRECISE FORM IN WHICH IT WAS SIGNED BY THE PRESIDING OFFICERS OF THE TWO HOUSES AND APPROVED BY THE PRESIDENT.

THE EMPLOYMENT FOR CONSULTATION PURPOSES AUTHORIZED BY THE 1929 STATUTE IS EXPRESSLY DIRECTED OR CONFINED TO "IMPORTANT RECLAMATION WORK.' THERE CAN BE NO QUESTION BUT THAT THE WORDS,"IMPORTANT RECLAMATION WORK," RELATE TO THE WORK OF THE RECLAMATION SERVICE IN GENERAL AND NOT WITH REFERENCE TO ANY ONE PROJECT. IF THERE BE ANY DOUBT AS TO THE CONSTRUCTION SUCH DOUBT IS IMMEDIATELY DISPELLED WHEN REFERENCE IS MADE TO REPORT NO. 2143, HOUSE OF REPRESENTATIVES, SEVENTIETH CONGRESS, SECOND SESSION, RELATIVE TO S. 4528, WHICH BECAME THE ACT OF FEBRUARY 28, 1929, QUOTED IN YOUR LETTER, PARTICULARLY THAT PART OF THE REPORT WHICH QUOTES THE LETTER DATED MAY 12, 1928, FROM THE THEN SECRETARY OF THE INTERIOR TO THE CHAIRMAN, COMMITTEE ON IRRIGATION AND RECLAMATION, AS OLLOWS:

TRANSMITTED HEREWITH IS DRAFT OF PROPOSED BILL THE ENACTMENT OF WHICH IS HIGHLY IMPORTANT IN CONNECTION WITH THE OPERATIONS OF THE BUREAU OF RECLAMATION AND OTHER BUREAUS OF THIS DEPARTMENT. THE BILL AUTHORIZES THE EMPLOYMENT OF CONSULTING ENGINEERS, GEOLOGISTS, AND ECONOMISTS AT RATES OF COMPENSATION TO BE FIXED BY THE SECRETARY OF THE INTERIOR NOT EXCEEDING $50 PER DIEM. UNDER THE PRESENT LAW THERE IS NO AUTHORITY FOR EMPLOYING SUCH EXPERTS AT A DAILY RATE IN EXCESS OF $20.83 1/3, WHICH IS INSUFFICIENT TO SECURE THE SERVICES OF EXPERTS PROPERLY QUALIFIED FOR THE WORK REQUIRED.

THE JOINT RESOLUTION OF JUNE 28, 1926 (44 STAT. 776), AUTHORIZES THE EMPLOYMENT OF CONSULTING ENGINEERS AT NOT TO EXCEED $50 PER DIEM, BUT SUCH SERVICES MUST BE LIMITED TO CONSULTING WORK IN CONNECTION WITH PROPOSED DAMS. NO ENGINEERS MAY BE EMPLOYED FOR CONSULTATION PURPOSES IN CONNECTION WITH DAMS ALREADY CONSTRUCTED AT RATES NECESSARY TO SECURE ENGINEERS OF THE DESIRED QUALIFICATIONS AND EXPERIENCE. THERE ARE OTHER LIMITATIONS IN THE RESOLUTION OF JUNE 28, 1926, WHICH MAKE IT DIFFICULT TO EMPLOY THE NECESSARY EXPERTS. THIS JOINT RESOLUTION WAS DESIGNED TO AUTHORIZE THE EMPLOYMENT OF CONSULTING ENGINEERS TO EXAMINE PLANS AND SPECIFICATIONS FOR THE PROPOSED SAN CARLOS DAM, ARIZ. THIS RESOLUTION IS INADEQUATE BECAUSE LIMITED TO CONSULTATION IN CONNECTION WITH PROPOSED DAMS. THIS WAS FORCIBLY EMPHASIZED RECENTLY WHEN THE DEPARTMENT OF THE INTERIOR DESIRED TO SECURE THE SERVICES OF QUALIFIED ENGINEERS TO EXAMINE THE VARIOUS CONSTRUCTED DAMS OF THE BUREAU OF RECLAMATION AND THE BUREAU OF INDIAN AFFAIRS BECAUSE OF THE FAILURE OF THE SAN FRANCISQUITO DAM IN CALIFORNIA. IT IS ALSO IMPORTANT TO EMPLOY GEOLOGISTS TO MAKE EXAMINATIONS OF SITES FOR RESERVOIRS AND DAMS. THE SERVICES OF ECONOMISTS ARE NECESSARY IN DETERMINING THE FEASIBILITY OF PROPOSED PROJECTS AND IN MAKING A STUDY OF ECONOMIC CONDITIONS WITH A VIEW TO DEVISING PLANS FOR REHABILITATING AND MAKING SUCCESSFUL CONSTRUCTED PROJECTS. ( ITALICS SUPPLIED.)

THE ABOVE-QUOTED LETTER DISCLOSES AN OBVIOUS INTENTION THAT THE ADDITIONAL CONSULTANTS PROVIDED FOR BY THE ACT WERE NEEDED IN CONNECTION WITH RECLAMATION WORK IN GENERAL; THAT IS, NEEDED IN CONNECTION WITH CONSTRUCTED DAMS, ETC., AS WELL AS THOSE TO BE CONSTRUCTED, AND NOT IN CONNECTION WITH ANY PARTICULAR DAM OR PROJECT.

IN VIEW OF THE AUTHORITIES ABOVE CITED, THIS OFFICE HAS NO AUTHORITY TO SUPPLY SUPPOSED DEFICIENCIES IN LANGUAGE OF THE CITED ACT SO AS TO HAVE THE ACT AUTHORIZE THE EMPLOYMENT OF 5 ENGINEERS, 5 GEOLOGISTS, AND 5 ECONOMISTS FOR CONSULTATION ON ANY ONE PROJECT. 16 COMP. GEN. 870. ALSO COMPARE 16 ID. 512. THE STATUTE PROVIDES FOR EMPLOYMENT OF CONSULTANTS "ON IMPORTANT RECLAMATION WORK" TO THE EXTENT OF NOT TO EXCEED "FIVE ENGINEERS, GEOLOGISTS, AND ECONOMISTS.' THE WORDS "IMPORTANT RECLAMATION WORK" IS USED IN A COLLECTIVE SENSE AND REFERS TO ALL OF THE IMPORTANT RECLAMATION WORK UNDER THE DEPARTMENT OF THE INTERIOR. THERE IS NOTHING IN THE STATUTE TO INDICATE THAT EACH DAM OR OTHER IMPORTANT RECLAMATION WORK IS TO BE CONSIDERED SEPARATELY IN APPLYING THE LIMITATION ON THE EMPLOYMENT OF CONSULTANTS FIXED IN THE STATUTE. AS THE STATUTE EXPRESSLY ENUMERATES ENGINEERS, GEOLOGISTS, AND ECONOMISTS, PRECEDED BY THE WORD "FIVE," IT IS REASONABLE TO CONCLUDE THAT 5 OF EACH OF THE 3 CLASSES OF CONSULTANTS, OR A TOTAL OF 15, MAY BE EMPLOYED AT ANY ONE TIME; AND I AM CONSTRAINED TO HOLD THAT SUCH LIMITATION APPLIES TO ALL IMPORTANT RECLAMATION WORK OF THE DEPARTMENT AS A WHOLE AND IS NOT RESTRICTED TO EACH OR ANY ONE PROJECT. IN OTHER WORDS, NOT MORE THAN A TOTAL OF 5 ENGINEERS, 5 GEOLOGISTS, AND 5 ECONOMISTS (15 IN ALL) MAY BE EMPLOYED UNDER THE ACT AT ANY ONE TIME.