B-80573, OCTOBER 19, 1948, 28 COMP. GEN. 247

B-80573: Oct 19, 1948

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WILL BE REGARDED AS A LEGISLATIVE DECLARATION AS TO THE EFFECT THEREAFTER TO BE GIVEN SECTION 15 OF THE 1946 ACT. SO THAT FROM AND AFTER THE ENACTMENT DATE OF SUCH APPROPRIATION ACT THIS OFFICE WILL CONSIDER SECTION 5 OF THE 1914 STATUTE AS HAVING BEEN SUPERSEDED BY SAID SECTION 15. 27 COMP. 1948: I HAVE YOUR LETTER OF OCTOBER 4. IF IN HIS OPINION THE EXISTING FACILITIES OF THE DEPARTMENT OF THE ARMY ARE INADEQUATE. HE IS HEREBY AUTHORIZED TO PROCURE SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2. UNLESS AUTHORITY FOR EMPLOYMENT OF SUCH SERVICES OR PAYMENT OF SUCH EXPENSES IS STATED IN SPECIFIC TERMS IN THE ACT MAKING PROVISION THEREFOR AND THE RATE OF COMPENSATION FOR SUCH SERVICES OR EXPENSES IS SPECIFICALLY FIXED THEREIN.

B-80573, OCTOBER 19, 1948, 28 COMP. GEN. 247

PERSONAL SERVICES - ACCOUNTANTS - SECTION 15 OF THE ACT OF AUGUST 2, 1946, AS REMOVING RESTRICTION AGAINST EMPLOYMENT OF THE LANGUAGE IN SECTION 6 OF THE MILITARY FUNCTIONS APPROPRIATION ACT, 1949, TO THE EFFECT THAT SECTION 15 OF THE ACT OF AUGUST 2, 1946, AUTHORIZING THE PROCUREMENT OF EXPERT OR CONSULTANT SERVICES BY CONTRACT, SUPERSEDES THE PROHIBITION IN SECTION 5 OF THE ACT OF APRIL 6, 1914, AGAINST THE EMPLOYMENT OF ACCOUNTS, ETC., BY CONTRACT TO INAUGURATE NEW OR CHANGE OLD METHODS OF TRANSACTING GOVERNMENT BUSINESS, WILL BE REGARDED AS A LEGISLATIVE DECLARATION AS TO THE EFFECT THEREAFTER TO BE GIVEN SECTION 15 OF THE 1946 ACT, SO THAT FROM AND AFTER THE ENACTMENT DATE OF SUCH APPROPRIATION ACT THIS OFFICE WILL CONSIDER SECTION 5 OF THE 1914 STATUTE AS HAVING BEEN SUPERSEDED BY SAID SECTION 15. 27 COMP. GEN. 168, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, OCTOBER 19, 1948:

I HAVE YOUR LETTER OF OCTOBER 4, 1948, REQUESTING DECISION AS TO THE LEGAL EFFECT OF CERTAIN LANGUAGE APPEARING IN SECTION 6 OF THE MILITARY FUNCTIONS APPROPRIATION ACT, 1949, APPROVED JUNE 24, 1948, 62 STAT. 647, 668, WHICH READS, SO FAR AS HERE PERTINENT, AS FOLLOWS:

SEC. 6. WHENEVER, DURING THE FISCAL YEAR ENDING JUNE 30, 1949, THE SECRETARY OF THE ARMY SHOULD DEEM IT TO BE ADVANTAGEOUS TO THE NATIONAL DEFENSE, AND IF IN HIS OPINION THE EXISTING FACILITIES OF THE DEPARTMENT OF THE ARMY ARE INADEQUATE, HE IS HEREBY AUTHORIZED TO PROCURE SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), WHICH SUPERSEDES THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 6, 1914 (5 U.S.C. 55), AT RATES NOT IN EXCESS OF $50 PER DAY FOR INDIVIDUALS, AND TO PAY IN CONNECTION THEREWITH TRAVEL EXPENSES OF INDIVIDUALS, INCLUDING ACTUAL TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE WHILE TRAVELING FROM THEIR HOMES OR PLACES OF BUSINESS TO OFFICIAL DUTY STATION AND RETURN AS MAY BE AUTHORIZED IN TRAVEL ORDERS OR LETTERS OF APPOINTMENT. ITALICS SUPPLIED.)

YOUR DOUBT IN THE MATTER CONCERNS THE EFFECT TO BE GIVEN THE ITALICIZED PORTION OF THE ABOVE-QUOTED SECTION, ESPECIALLY IN VIEW OF THE HOLDING IN DECISIONS OF THIS OFFICE--- RENDERED BEFORE THE ENACTMENT OF THE SAID MILITARY FUNCTIONS APPROPRIATION ACT, 1949--- THAT THE GENERAL AUTHORITY CONTAINED IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 810, FOR THE PROCUREMENT OF EXPERT OR CONSULTANT SERVICES BY CONTRACT DOES NOT OVERCOME THE SPECIFIC PROHIBITION IN SECTION 5 OF THE ACT OF APRIL 6, 1914, 38 STAT. 335 (5 U.S.C. 55), AGAINST THE EMPLOYMENT OF ACCOUNTANTS, ETC., BY CONTRACT TO INAUGURATE NEW OR TO CHANGE OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES. 27 COMP. GEN. 168; B-76137, MAY 27, 1948.

SECTION 5 OF THE ACT OF APRIL 6, 1914, PROVIDES AS FOLLOWS:

EXCEPT AS OTHERWISE PROVIDED IN SECTION 53 OF TITLE 31, NO PART OF ANY MONEY APPROPRIATED IN ANY ACT SHALL BE USED FOR COMPENSATION OR PAYMENT OF EXPENSES OF ACCOUNTANTS OR OTHER EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, UNLESS AUTHORITY FOR EMPLOYMENT OF SUCH SERVICES OR PAYMENT OF SUCH EXPENSES IS STATED IN SPECIFIC TERMS IN THE ACT MAKING PROVISION THEREFOR AND THE RATE OF COMPENSATION FOR SUCH SERVICES OR EXPENSES IS SPECIFICALLY FIXED THEREIN, OR BE USED FOR COMPENSATION OF OR EXPENSES FOR PERSONS, AIDING OR ASSISTING SUCH ACCOUNTANTS OR OTHER EXPERTS, UNLESS THE RATE OF COMPENSATION OF OR EXPENSES FOR SUCH ASSISTANTS IS FIXED BY OFFICERS OR EMPLOYEES OF THE UNITED STATES OR DISTRICT OF COLUMBIA HAVING AUTHORITY TO DO SO, AND SUCH RATES OF COMPENSATION OR EXPENSES SO FIXED SHALL BE PAID ONLY TO THE PERSON SO EMPLOYED. AND SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, PROVIDES:

THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.

WHILE THE SAID ACT OF AUGUST 2, 1946, EXPRESSLY REPEALS VARIOUS STATUTES CONSIDERED TO HAVE BECOME OBSOLETE OR OUTMODED, IT DID NOT EXPRESSLY REPEAL SECTION 5 OF THE SAID 1914 STATUTE. HENCE, IF ANY PROVISION OF THE 1946 STATUTE IS TO BE CONSIDERED AS REPEALING OR SUPERSEDING THE 1914 STATUTE, SUCH REPEAL OR SUPERSESSION MUST BE BY IMPLICATION ONLY. CERTAINLY A READING OF THE TWO STATUTORY PROVISIONS QUOTED ABOVE DISCLOSES NONE OF THE ELEMENTS USUALLY REQUIRED BY THE COURTS TO BE PRESENT TO CONSTITUTE A REPEAL BY IMPLICATION. THERE IS NO IRRECONCILABLE CONFLICT OR ABSOLUTE REPUGNANCY BETWEEN THE TWO SO THAT THEY MAY NOT STAND TOGETHER; AND NEITHER DOES IT APPEAR THAT SECTION 15 OF THE 1946 ACT NECESSARILY COVERS THE SUBJECT MATTER ENCOMPASSED BY SECTION 5 OF THE 1914 STATUTE. ON THE CONTRARY, AS POINTED OUT IN THE REFERRED TO DECISIONS OF THIS OFFICE, THE GENERAL PROVISIONS OF SECTION 15 HAVE A BROAD FIELD OF OPERATION AND THERE IS NOTHING TO PREVENT THE FULL APPLICATION OF EACH STATUTORY PROVISION TO ITS OWN SPHERE.

HOWEVER, IT IS A SETTLED PRINCIPLE OF LAW THAT THE LEGISLATURE PROPERLY MAY DECLARE, BY STATUTE, THE CONSTRUCTION TO BE PLACED UPON PRIOR EXISTING STATUTES, OR IT MAY MERELY INDICATE ITS UNDERSTANDING AS TO THE OPERATION OF EXISTING LAW. BUT AN EXPRESSION OF OPINION ON THE PART OF THE CONGRESS, STANDING ALONE, IS NOT ABSOLUTELY DETERMINATIVE OF THE OPERATION OF THE LAW. AS SO OFTEN HAS BEEN SAID BY THE COURTS, SUCH AN EXPRESSION OF OPINION BY THE CONGRESS, WHILE ENTITLED TO THE HIGHEST RESPECT IN CONSTRUING THE PARTICULAR STATUTE, IS NOT CONTROLLING UPON THE COURTS. SEE, FOR EXAMPLE, UNITED STATES V. CLAFLIN, 97 U.S. 546; UNITED STATES V. MINKER, 19 F.1SUPP. 409. HOWEVER, IT HAS BEEN RECOGNIZED BY THE COURTS, FROM THE EARLIEST TIMES, THAT WHERE AN OPINION AS TO THE EXISTING STATE OF THE LAW IS EXPRESSED BY THE CONGRESS, SUCH OPINION--- EVEN THOUGH IT BE ERRONEOUS--- IF STATED IN A MANNER SUFFICIENT TO CONSTITUTE A DIRECTIVE OR COMMAND AS TO THE EFFECT TO BE GIVEN A PRIOR STATUTE, IS CONCLUSIVE UPON THE MATTER AND MUST BE GIVEN EFFECT PROSPECTIVELY. THE POSTMASTER GENERAL OF THE UNITED STATES V. EARLY, 12 WHEAT. ( U.S.) 136; UNITED STATES V. CLAFLIN, SUPRA; FIRE COMPANIES BLDG. CORPORATION V. COMMISSIONER OF INTERNAL REVENUE, 54 F.2D 488; 50 AM. JUR. STATUTES 337.

THE QUESTIONED LANGUAGE,"SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), WHICH SUPERSEDES THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 6, 1914 (5 U.S.C. 55)," STANDING ALONE, DOES NOT SEEM TO CONSTITUTE A COMMAND OR DIRECTIVE AS TO THE CONSTRUCTION THEREAFTER TO BE PLACED UPON SECTION 15 OF THE 1946 STATUTE. RATHER IT SEEMS MORE APPROPRIATELY TO EXPRESS THE OPINION OF THE CONGRESS AS THE OPERATION OF THAT STATUTE. THAT IMPRESSION IS BORNE OUT IN STATEMENTS MADE BY COLONEL R. S. MOORE, GENERAL STAFF CORPS, IN CONNECTION WITH VARIOUS PROPOSED LANGUAGE CHANGES IN THE 1949 MILITARY FUNCTIONS APPROPRIATION BILL, H.R. 6771, BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON APRIL 30, 1948 (REPORTED ON PAGE 1125 OF THE PRINTED HEARING OF THAT SUBCOMMITTEE), AS FOLLOWS.

COLONEL MOORE. ON PAGE 228, AFTER THE FOURTH LINE, IT IS SUGGESTED THAT THE WORDS:

"WHICH SHALL BE DEEMED TO SUPERSEDE THE PROVISIONS OF SECTION 5 OF THE ACT/OF APRIL 6, 1914 (5 U.S.C. 55).' BE INSERTED TO INDICATE CLEARLY THAT THE PROVISIONS OF 5 U.S.C. 55A, WHICH WAS ENACTED AUGUST 2, 1946, SUPERSEDE THE PROVISIONS OF 5 U.S.C. 55, WHICH WAS ENACTED IN AN APPROPRIATION BILL ON APRIL 6, 1914.

THE PRIOR MEASURE PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED, NO PART OF ANY MONEY APPROPRIATED IN ANY ACT SHALL BE USED FOR COMPENSATION OR PAYMENT OF EXPENSES FOR ACCOUNTANTS OR OTHER EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, UNLESS AUTHORITY FOR EMPLOYMENT OF SUCH SERVICES OR PAYMENT OF SUCH EXPENSES IS STATED IN SPECIFIC TERMS OF THE ACT MAKING PROVISION THEREFOR AND THE RATE OF COMPENSATION FOR SUCH SERVICES OR EXPENSES IS SPECIFICALLY FIXED THEREIN, OR BE USED FOR COMPENSATION OF OR EXPENSES FOR PERSONS, AIDING OR ASSISTING SUCH ACCOUNTANTS OR OTHER EXPERTS, UNLESS THE RATE OF COMPENSATION OF OR EXPENSES FOR SUCH ASSISTANTS IS FIXED BY OFFICERS OR EMPLOYEES OF THE UNITED STATES OR DISTRICT OF COLUMBIA HAVING AUTHORITY TO DO SO, AND SUCH RATES OF COMPENSATION OR EXPENSES SO FIXED SHALL BE PAID ONLY TO THE PERSON SO EMPLOYED.

IN THE ACT OF AUGUST 2, 1946, THE PROVISION AUTHORIZING ALL EXECUTIVE DEPARTMENTS TO HIRE EXPERTS OR CORPORATIONS OR FIRMS THEREOF, AT NOT TO EXCEED THE HIGHEST CIVIL SERVICE DAILY RATE, OR THE AMOUNT STATED IN THE VARIOUS BILLS, WAS IN THE OPINION OF THE MAJORITY OF THE PEOPLE WITH WHOM I HAVE DISCUSSED THE MATTER INTENDED DIRECTLY TO AUTHORIZE THE DEPARTMENTS TO GET THE PERSONNEL TO GIVE ADVICE WHICH WOULD PUT US IN A POSITION TO CARRY OUT OUR FUNCTIONS IN A MORE BUSINESSLIKE MANNER. IT HAS BEEN HELD THERE WAS NOTHING SPECIFIC IN THIS LATTER ACT TO INDICATE THAT THE FORMER ACT IS NOT STILL IN FULL FORCE AND EFFECT, AND WE WISH SOME INDICATION HERE WHICH WILL ASSURE THE INTERPRETATION WHICH WE BELIEVE WAS THE INTENT OF THE 1946 ACT.

MR. ENGEL. IN OTHER WORDS, YOU ARE INTERPRETING THE 1946 ACT?

COLONEL MOORE. IT SAYS,"BE DEEMED TO SUPERSEDE.' THIS WILL CERTAINLY HELP IN THE INTERPRETATION OF THE ACT. HOWEVER, IT WILL BE NOTED THAT H.R. 6771 AS PASSED BY THE HOUSE OF REPRESENTATIVES IN SECTION 6 THEREOF CONTAINED THE FOLLOWING LANGUAGE:

SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), WHICH SUPERSEDES THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 6, 1941 (5 U.S.C. 55) * * *. AND, IN THAT CONNECTION, IT WAS STATED ON PAGE 23 OF HOUSE REPORT NO. 2135, JUNE 2, 1948, AS FOLLOWS:

ON PAGE 57, IN SECTION 6 OF THE GENERAL PROVISIONS, RELATING TO EMPLOYMENT OF EXPERTS AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, THE FOLLOWING HAS BEEN INSERTED:

"WHICH SUPERSEDE THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 6, 1914 (5 U.S.C. 55).'

THE INSERTION OF THIS LANGUAGE WILL INDICATE CLEARLY THAT SECTION 15 OF THE ACT OF AUGUST 2, 1946, HAS THE EFFECT OF SUPERSEDING THE PROVISIONS OF SECTION 5 OF THE APPROPRIATION ACT APPROVED APRIL 6, 1914. A FORMAL AMENDMENT TO THE ABOVE-QUOTED LANGUAGE WAS MADE BY THE SENATE TO CORRECT THE DATE "1941" TO "1914," AND THAT LANGUAGE AS SO AMENDED WAS ENACTED INTO LAW.

AS STATED ABOVE, THE LANGUAGE USED IN SECTION 6 OF THE 1949 APPROPRIATION ACT HERE CONSIDERED APPEARS MORE NEARLY TO EXPRESS AN OPINION AS TO THE EFFECT OF SECTION 15 OF THE ACT OF AUGUST 2, 1946, RATHER THAN A DECLARATION AS TO THE EFFECT THEREAFTER TO BE GIVEN THAT SECTION. AND SUPPORT FOR THAT VIEW IS FOUND IN THE LANGUAGE PROPOSED AND THE STATEMENTS MADE BY COLONEL MOORE BEFORE THE HOUSE SUBCOMMITTEE. HOWEVER, IT IS NOTED THAT THE LANGUAGE USED IN THE BILL, H.R. 6771, AS PASSED BY THE HOUSE, IS MUCH STRONGER, AND WHEN CONSIDERED IN CONJUNCTION WITH THE ABOVE-QUOTED STATEMENT WITH RESPECT THERETO APPEARING IN THE HOUSE REPORT, REASONABLY SEEMS TO TRANSCEND THE REALM OF MERE LEGISLATIVE OPINION AS TO THE EFFECT OF SECTION 15 UPON THE 1914 STATUTORY PROVISION, AND TO CONNOTE AN INTENT THAT THE RECOGNIZED EFFECT OF THAT SECTION IS TO BE AS THEREIN STATED.

IN THE LIGHT OF THE FOREGOING, AND APPLYING THE LEGAL PRINCIPLES ABOVE DISCUSSED, YOU ARE ADVISED THAT THE REFERRED-TO LANGUAGE IN SECTION 6 OF THE MILITARY FUNCTIONS APPROPRIATION ACT, 1949, WILL BE REGARDED BY THIS OFFICE AS A LEGISLATIVE DECLARATION AS TO THE EFFECT THEREAFTER TO BE GIVEN SECTION 15 OF THE ACT OF AUGUST 2, 1946, UPON SECTION 5 OF THE ACT OF APRIL 6, 1914. ACCORDINGLY, FROM AND AFTER THE DATE OF ENACTMENT OF THE SAID 1949 MILITARY FUNCTIONS APPROPRIATION ACT, THIS OFFICE, IN THE AUDIT AND SETTLEMENT OF ACCOUNTS AND CLAIMS, WILL REGARD SECTION 5 OF THE 1914 STATUTE AS HAVING BEEN SUPERSEDED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946.