B-9633, MAY 6, 1940, 19 COMP. GEN. 906

B-9633: May 6, 1940

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HAVE REFERENCE TO THE PASSENGER- OR PROPERTY-CARRYING USE TO BE MADE OF THE VEHICLES AND NOT TO THE ACTIVITY ON WHICH THEY ARE TO BE USED. 1940: I HAVE YOUR LETTER OF APRIL 11. A LETTER WAS ADDRESSED TO THE SUPERINTENDENT OF THE UNITED PUEBLOS INDIAN AGENCY. INDICATING THAT THE $150 TRADE-IN ALLOWANCE WAS PROPERLY FOR WITHDRAWAL FROM THE APPROPRIATION INVOLVED AND DEPOSIT AS A MISCELLANEOUS RECEIPT. ARE UNABLE TO FIND ANY DECISION FROM YOUR OFFICE PLACING A DEFINITE INTERPRETATION UPON THE PHRASE. THE FOUR PICK-UP TRUCKS INVOLVED IN THE TRANSACTION UNDER DISCUSSION WERE FOR INTENDED USE OF THE IRRIGATION ACTIVITY OF THE INDIAN SERVICE. THE TWO STATION WAGONS OFFERED AND ACCEPTED FOR TRADE IN WERE ORIGINALLY PURCHASED FROM FUNDS ALLOTTED TO THE INDIAN SERVICE BY THE PUBLIC WORKS ADMINISTRATION FOR IRRIGATION WORK AND HAD BEEN IN USE BY THAT ACTIVITY.

B-9633, MAY 6, 1940, 19 COMP. GEN. 906

CONTRACTS - EXCHANGES - MOTOR VEHICLES THE WORDS "USED FOR THE SAME PURPOSE" IN THE ACT OF MARCH 2, 1917, 39 STAT. 973, AUTHORIZING THE SECRETARY OF THE INTERIOR TO EXCHANGE AUTOMOBILES IN PART PAYMENT FOR NEW MACHINES USED FOR THE SAME PURPOSE AS THOSE PROPOSED TO BE EXCHANGED, HAVE REFERENCE TO THE PASSENGER- OR PROPERTY-CARRYING USE TO BE MADE OF THE VEHICLES AND NOT TO THE ACTIVITY ON WHICH THEY ARE TO BE USED, AND THE TRADE-IN ALLOWANCE FOR A PASSENGER- CARRYING VEHICLE EXCHANGED IN CONNECTION WITH THE PURCHASE OF A TRUCK SHOULD BE DEPOSITED AS A MISCELLANEOUS RECEIPT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MAY 6, 1940:

I HAVE YOUR LETTER OF APRIL 11, 1940, AS FOLLOWS:

ON MARCH 13, 1939, A LETTER WAS ADDRESSED TO THE SUPERINTENDENT OF THE UNITED PUEBLOS INDIAN AGENCY, ALBUQUERQUE, NEW MEXICO, BY THE CONTRACT EXAMINING SECTION, AUDIT DIVISION, GENERAL ACCOUNTING OFFICE ( REFERENCE A -HWM-CE), CALLING ATTENTION TO CONTRACT I-150-IND 1022, ENTERED INTO SEPTEMBER 23, 1938, WITH THE ODEN MOTOR COMPANY, ALBUQUERQUE, NEW MEXICO, COVERING THE PURCHASE, AMONG OTHER ITEMS, OF FOUR CLOSED CAB PICK-UP BODY TRUCKS FOR $2,591.40, LESS A TRADE-IN ALLOWANCE OF $150 ON TWO STATION WAGONS, AND INDICATING THAT THE $150 TRADE-IN ALLOWANCE WAS PROPERLY FOR WITHDRAWAL FROM THE APPROPRIATION INVOLVED AND DEPOSIT AS A MISCELLANEOUS RECEIPT.

THE ACT OF MARCH 2, 1917 (39 STAT. 973), PROVIDES,"THAT THE SECRETARY OF THE INTERIOR MAY HEREAFTER EXCHANGE AUTOMOBILES IN PART PAYMENT FOR NEW MACHINES USED FOR THE SAME PURPOSE AS THOSE PROPOSED TO BE EXCHANGED.' ARE UNABLE TO FIND ANY DECISION FROM YOUR OFFICE PLACING A DEFINITE INTERPRETATION UPON THE PHRASE,"FOR THE SAME PURPOSE.' THE FOUR PICK-UP TRUCKS INVOLVED IN THE TRANSACTION UNDER DISCUSSION WERE FOR INTENDED USE OF THE IRRIGATION ACTIVITY OF THE INDIAN SERVICE. THE TWO STATION WAGONS OFFERED AND ACCEPTED FOR TRADE IN WERE ORIGINALLY PURCHASED FROM FUNDS ALLOTTED TO THE INDIAN SERVICE BY THE PUBLIC WORKS ADMINISTRATION FOR IRRIGATION WORK AND HAD BEEN IN USE BY THAT ACTIVITY. ACCORDINGLY, IT IS OUR BELIEF THAT THE NEW VEHICLES AND THOSE EXCHANGED WERE "USED FOR THE SAME PURPOSE" WITHIN THE MEANING OF THE TERMS OF THE ACT OF MARCH 2, 1917, SUPRA, AND THAT THE AMOUNT INVOLVED IN THE TRADE-IN MAY PROPERLY REMAIN TO THE CREDIT OF THE APPROPRIATION INVOLVED.

YOUR DECISION IS REQUESTED.

THE ACT OF MARCH 2, 1917, 39 STAT. 973, CONFERRED UPON THE SECRETARY OF THE INTERIOR AUTHORITY TO EXCHANGE USED AUTOMOBILES IN PART PAYMENT FOR NEW MACHINES AND AT THE SAME TIME LIMITED SUCH AUTHORITY TO EXCHANGES FOR NEW MACHINES USED FOR THE SAME PURPOSE AS THOSE PROPOSED TO BE EXCHANGED. THERE ARE, OF COURSE, VARIOUS TYPES, KINDS, AND CAPACITIES OF MOTOR- PROPELLED VEHICLES, BUT A SOMEWHAT GENERAL CLASSIFICATION DIVIDES THEM, SO FAR AS HERE IMPORTANT, INTO TWO DISTINCT CLASSES, TO WIT, PASSENGER- CARRYING AUTOMOBILES, WHICH ARE DESIGNED, PURCHASED, AND USED PRIMARILY FOR THE PURPOSE OF TRANSPORTING PERSONS, 8 COMP. GEN. 636, AND TRUCKS, WHICH ARE USED PRIMARILY FOR THE PURPOSE OF TRANSPORTING PROPERTY. THE DIFFERENCES IN CHARACTER OF THE TWO CLASSES OF VEHICLES AND THEIR DISTINCT UTILITIES ARE TOO GENERALLY AND WELL RECOGNIZED TO REQUIRE DISCUSSION. WHILE A PASSENGER-CARRYING AUTOMOBILE UPON OCCASION MAY BE USED FOR TRANSPORTING PROPERTY, AND A TRUCK MAY BE USED OCCASIONALLY FOR TRANSPORTING PERSONS, NEITHER TYPE OF VEHICLE ORDINARILY IS PURCHASED OR USED FOR A PURPOSE OTHER THAN THAT FOR WHICH EACH IS PRIMARILY DESIGNED AND INTENDED. THE CONGRESS, BY ITS OWN ENACTMENTS, HAS RECOGNIZED STATION WAGONS AS PROPERLY WITHIN THE CATEGORY OF PASSENGER-CARRYING AUTOMOBILES, WITNESS NUMEROUS PRICE FIXING STATUTES, AND THE FACT THAT SUCH VEHICLES SOMETIMES ARE USED FOR THE PURPOSE OF TRANSPORTING PROPERTY DOES NOT ALTER THEIR GENERAL AND STATUTORY CLASSIFICATION. WHILE THE ACT OF JULY 16, 1914, 38 STAT. 508, WHICH PROHIBITS THE PURCHASE OF PASSENGER-CARRYING VEHICLES UNDER APPROPRIATIONS NOT SPECIFICALLY PROVIDING THEREFOR MAKES NO MENTION OF STATION WAGONS, THE VARIOUS STATUTES ENACTED SINCE THE YEAR 1932 LIMITING THE PRICE WHICH MAY BE PAID FOR ANY MOTOR-PROPELLED PASSENGER CARRYING VEHICLE HAVE SPECIFICALLY DESIGNATED STATION WAGONS, TOGETHER WITH BUSES AND AMBULANCES, AS PASSENGER-CARRYING AUTOMOBILES, THOUGH THEY ARE EXCLUDED FROM THE PRICE LIMITATIONS FIXED IN SAID STATUTES. 14 COMP. GEN. 367; 17 ID. 909. ALSO, IT WOULD APPEAR THAT THE CONGRESS HAS CONSISTENTLY RECOGNIZED THE ESSENTIAL DISTINCTION BETWEEN PASSENGER CARRYING AUTOMOBILES AND TRUCKS, AND THAT THE TWO TYPES OF VEHICLES ARE NOT "USED FOR THE SAME PURPOSE," AND IT HAS BEEN GENERALLY RECOGNIZED AND HAS BEEN HELD BY THIS OFFICE THAT TRUCKS, AS DISTINGUISHED FROM PASSENGER-CARRYING VEHICLES, MAY BE PURCHASED WITHOUT SPECIFIC AUTHORIZATION IN THE APPROPRIATION ACT, IF REASONABLY NECESSARY TO CARRY OUT THE OBJECT FOR WHICH THE APPROPRIATION IS MADE. 18 COMP. GEN. 226.

IN VIEW OF THE RECOGNIZED DIFFERENCE BETWEEN THE PURPOSES FOR WHICH PASSENGER-CARRYING AUTOMOBILES AND TRUCKS ORDINARILY ARE ACQUIRED AND USED, THE SUGGESTION IN THE LETTER, SUPRA, THAT MERELY BECAUSE THE STATION WAGONS EXCHANGED IN PART PAYMENT FOR TRUCKS IN THE TRANSACTION IN QUESTION WERE USED IN THE IRRIGATION ACTIVITY OF THE INDIAN SERVICE AND THE NEW TRUCKS PURCHASED ALSO WERE FOR USE IN THE IRRIGATION ACTIVITY OF THE INDIAN SERVICE THE VEHICLES WERE "USED FOR THE SAME PURPOSE" WITHIN THE MEANING OF THE ACT OF MARCH 2, 1917, WOULD NOT APPEAR TO BE TENABLE. TO HOLD WOULD HAVE THE PRACTICAL EFFECT OF RENDERING THE LEGISLATIVE LIMITATION UPON THE AUTHORITY OF THE SECRETARY TO MAKE SUCH EXCHANGES VIRTUALLY MEANINGLESS AND NUGATORY, SO LONG AS THE USED VEHICLES EXCHANGED AND THE NEW VEHICLES ACQUIRED WERE USED BY THE SAME BUREAU OR ACTIVITY OF THE INTERIOR DEPARTMENT, NO MATTER HOW DIVERSE THE ACTUAL PURPOSES TO WHICH THE RESPECTIVE VEHICLES WERE PUT. HAD THE CONGRESS INTENDED TO AUTHORIZE THE EXCHANGE OF AUTOMOBILES IN PART PAYMENT FOR NEW MACHINES "USED IN THE SAME ACTIVITY" OF YOUR DEPARTMENT, NO DOUBT THE LANGUAGE USED IN THE STATUTE WOULD HAVE BEEN TO THAT EFFECT. MERELY BECAUSE VEHICLES ARE PURCHASED OR USED BY A PARTICULAR BUREAU OR IN SOME "ACTIVITY" OF THE INTERIOR DEPARTMENT IS NOT SUFFICIENT UNDER THE STATUTE TO AUTHORIZE EXCHANGE OF USED AUTOMOBILES OF ANY DESCRIPTION IN PART PAYMENT FOR NEW VEHICLES OF AN ENTIRELY DIFFERENT KIND OR TYPE, THUS RENDERING POSSIBLE INDISCRIMINATE EXCHANGE OF TRUCKS AND PASSENGER-CARRYING AUTOMOBILES MERELY BECAUSE THE VEHICLES PURCHASED ARE USED IN THE SAME GENERAL CLASS OF WORK TO WHICH THE ACTIVITY IS DEVOTED. NEITHER THE INDIAN SERVICE NOR THE IRRIGATION ACTIVITY THEREOF IS A "PURPOSE" WITHIN ITSELF, ALTHOUGH THE NUMEROUS PURPOSES FOR WHICH EACH IS CREATED ARE WELL UNDERSTOOD.

THE REASONABLE INTERPRETATION OF THE STATUTORY LIMITATION UPON AUTHORITY OF THE SECRETARY OF THE INTERIOR WOULD APPEAR TO BE THAT THE SECRETARY IS AUTHORIZED TO EXCHANGE AUTOMOBILES THAT HAVE BEEN USED FOR PASSENGER- CARRYING PURPOSES IN PART PAYMENT FOR NEW MACHINES TO BE USED FOR TRANSPORTATION OF PERSONS, AND TO EXCHANGE FREIGHT OR PROPERTY CARRYING AUTOMOBILES OR TRUCKS IN PART PAYMENT FOR NEW MACHINES TO BE USED FOR THE SAME PURPOSE. THIS WOULD APPEAR TO BE THE PLAIN, OBVIOUS, AND RATIONAL MEANING OF THE LANGUAGE USED IN THE STATUTE, AND IT IS A WELL-SETTLED RULE OF STATUTORY CONSTRUCTION THAT CONGRESS WILL BE PRESUMED TO HAVE USED LANGUAGE IN ITS USUAL SIGNIFICANCE AND IN ACCORDANCE WITH COMMON UNDERSTANDING. THE PHRASE "FOR THE SAME PURPOSE" IS ONE IN ORDINARY AND EVERYDAY USE AND ITS USUAL SIGNIFICANCE AND COMMON UNDERSTANDING IS SO GENERALLY RECOGNIZED AS TO RENDER IT DIFFICULT OF FURTHER SIMPLIFICATION. IN INTERPRETING A STATUTE THE COURT OF CLAIMS SAID ,THE WORD "SAME" MEANS IDENTICAL, NOT DIFFERENT OR OTHER, AND TO PUT A DIFFERENT CONSTRUCTION ON THE LANGUAGE USED WOULD BE A VIOLATION OF THE WELL-KNOWN RULE THAT WHERE THE LANGUAGE IS FREE FROM AMBIGUITY IT IS NOT ALLOWABLE TO INTERPRET IT.' THOMAS V. UNITED STATES, 38 CT. CLS. 113, 129. WHILE THE WORD "PURPOSE" IS USED IN VARIOUS SENSES WITH VARIOUS SIGNIFICATIONS, ONE DEFINITION OF ITS MEANING AS A NOUN, GIVEN BY FUNK AND WAGNALLS NEW STANDARD DICTIONARY, IS "USE," AND IT WOULD APPEAR THAT THE PHRASE "FOR THE SAME PURPOSE" APPEARING IN THE SUBJECT STATUTE PROPERLY MAY BE DEFINED, WITHIN REASONABLY NARROW LIMITATIONS, AS "THE IDENTICAL USE" AS THE VEHICLES PROPOSED TO BE EXCHANGED WERE USED.

IN THIS VIEW THE NEW MACHINES PURCHASED UNDER THE CONTRACT IN THIS CASE-- - TRUCKS--- ARE NOT MACHINES USED FOR THE SAME PURPOSE AS THOSE TRADED IN AND THE TRANSACTION WAS NOT IN CONFORMITY WITH THE STATUTE. HENCE, THE APPLICABLE APPROPRIATION PROPERLY IS CHARGEABLE WITH THE ENTIRE PURCHASE PRICE OF THE TRUCKS, AND THE $150 TRADE-IN ALLOWANCE ON THE TWO STATION WAGONS SHOULD BE WITHDRAWN FROM SAID APPROPRIATION AND DEPOSITED AS A MISCELLANEOUS RECEIPT. 17 COMP. GEN. 569; 18 ID. 471.