A-86801, JUNE 18, 1937, 16 COMP. GEN. 1089

A-86801, JUNE 18, 1937, 16 COMP. GEN. 1089

ATTORNEY SERVICES - GENERAL STATUTORY PROCUREMENT REQUIREMENTS - APPLICABILITY TO ELECTRIC HOME AND FARM AUTHORITY THE ELECTRIC HOME AND FARM AUTHORITY, ALTHOUGH ORGANIZED AS A CORPORATION UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, HAVING BEEN CONTINUED BY STATUTE AS AN "AGENCY OF THE UNITED STATES," THE LAWS OF THE UNITED STATES APPLICABLE TO GOVERNMENT AGENCIES GENERALLY ARE FOR APPLICATION UNLESS INCONSISTENT WITH THE CORPORATE FORM, AND THE STATUTES REQUIRING THE PROCUREMENT OF ATTORNEY SERVICE BY GOVERNMENT AGENCIES FROM THE ATTORNEY GENERAL NOT BEING INCONSISTENT WITH THE CORPORATE FORM, PAYMENT TO A FIRM OF ATTORNEYS FOR LEGAL SERVICES RENDERED THE AUTHORITY, IS NOT AUTHORIZED, NOTWITHSTANDING THE SPECIAL TYPE OF SERVICE REQUIRED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, ELECTRIC HOME AND FARM AUTHORITY, JUNE 18, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 9, 1937, TRANSMITTING A VOUCHER STATED IN FAVOR OF BROBECK, PHLEGER, AND HARRISON, ATTORNEYS, IN THE SUM OF $251.50 FOR LEGAL SERVICES IN CONNECTION WITH THE RENDITION OF THREE OPINIONS IN OCTOBER 1936. WITH REFERENCE TO SAID VOUCHER YOU STATE-

THIS VOUCHER, WHICH WAS SUBMITTED FOR PREAUDIT, WAS RETURNED WITHOUT CERTIFICATION, WITH THE FOLLOWING NOTATION:

"IN VIEW OF THE PROVISION OF EXECUTIVE ORDER NO. 6514, OF DEC. 19, 1933, FOR THE USE OF THE SERVICES OF EMPLOYEES OF OTHER DEPARTMENTS AND THE FACILITIES THEREOF THERE APPEARS TO BE NO AUTHORITY FOR CONTRACTING WITH A FIRM OF ATTORNEYS FOR SERVICES IN CONNECTION WITH THE RENDITION OF OPINIONS.'

EXECUTIVE ORDER NO. 6514, OF DECEMBER 19, 1933, ORDERED THE CREATION OF ELECTRIC HOME AND FARM AUTHORITY, INC., UNDER THE LAWS OF THE STATE OF DELAWARE. SUCH ORDER INCLUDED THE FOLLOWING PROVISIONS, WHICH ARE REFERRED TO IN THE NOTATION ON THE VOUCHER UNDER CONSIDERATION:

"* * * THE BOARD OF DIRECTORS MAY ALSO, WITH THE CONSENT OF ANY BOARD, COMMISSION, INDEPENDENT ESTABLISHMENT, OR EXECUTIVE DEPARTMENT OF THE GOVERNMENT, INCLUDING ANY FIELD SERVICE THEREOF, AVAIL ITSELF OF THE SERVICES OF THE OFFICERS, EMPLOYEES, AND THE FACILITIES THEREOF AND, WITH THE CONSENT OF THE STATE OR MUNICIPALITY CONCERNED, MAY UTILIZE SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES AS IT MAY DEEM NECESSARY.'

IT WOULD SEEM CLEAR THAT THE AUTHORITY TO USE THE SERVICES OF FEDERAL, STATE AND MUNICIPAL OFFICERS AND EMPLOYEES WAS DISCRETIONARY AND PERMISSIVE, AND NOT MANDATORY. THE ORDER STATES THAT THE BOARD MAY USE THE SERVICES OF SUCH OFFICERS AND EMPLOYEES AS IT MAY DEEM NECESSARY.

ELECTRIC HOME AND FARM AUTHORITY, INC., A DELAWARE CORPORATION, HAS BEEN DISSOLVED AND HAS BEEN SUCCEEDED BY ELECTRIC HOME AND FARM AUTHORITY, A DISTRICT OF COLUMBIA CORPORATION.

THE DISTRICT OF COLUMBIA CORPORATION WAS CREATED ON AUGUST 1, 1935. EXECUTIVE ORDER NO. 7139, OF AUGUST 12, 1935, THE PRESIDENT DESIGNATED "ELECTRIC HOME AND FARM AUTHORITY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, AS AN AGENCY OF THE UNITED STATES, TO CONTINUE, INSOFAR AS PERMITTED BY ITS CERTIFICATE OF INCORPORATION, THE FUNCTIONS OF, AND TO CARRY ON THE BUSINESS HITHERTO ENGAGED IN BY, ELECTRIC HOME AND FARM AUTHORITY, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE.' THE ACT APPROVED MARCH 31, 1936, CONTINUED THE DISTRICT OF COLUMBIA CORPORATION AS AN AGENCY OF THE UNITED STATES AND AUTHORIZED THE CORPORATION TO USE ALL ITS ASSETS, INCLUDING CAPITAL AND NET EARNINGS THEREFROM, AND ALL MONEYS WHICH HAVE BEEN OR MAY HEREAFTER BE ALLOCATED TO OR BORROWED BY IT, IN THE EXERCISE OF ITS FUNCTIONS AS SUCH AGENCY.

THE CIRCUMSTANCES SURROUNDING THE EMPLOYMENT BY THE BOARD OF TRUSTEES OF THIS AUTHORITY OF BROBECK, PHLEGER, AND HARRISON, WHO SUBMITTED THE VOUCHER UNDER CONSIDERATION, WERE AS FOLLOWS:

THIS AUTHORITY WAS ENGAGED IN THE PURCHASING OF CONTRACTS SECURED BY VARIOUS TYPES OF ELECTRIC APPLIANCES IN THE STATE OF CALIFORNIA. ANTICIPATING A HEAVY OUTLAY IN THE PURCHASE OF SUCH CONTRACTS, THE BOARD OF TRUSTEES THOUGHT IT ADVISABLE TO OBTAIN THE OPINION OF A FIRM OF CALIFORNIA ATTORNEYS OF KNOWN ABILITY AS TO THE EFFECT OF CALIFORNIA REALTY AND PERSONALITY LAWS UPON THE AUTHORITY'S RIGHTS IN THE PROPERTY SECURING SUCH CONTRACTS. THEREFORE, THE BOARD ENGAGED THE SERVICES OF BROBECK, PHLEGER, AND HARRISON, WHO ARE COUNSEL FOR THE LOAN AGENCY OF THE RECONSTRUCTION FINANCE CORPORATION IN SAN FRANCISCO. THE FIRM IS PAID BY THE RECONSTRUCTION FINANCE CORPORATION ON A FEE BASIS AND ITS BILL TO THIS AUTHORITY WAS SUBMITTED ON THE SAME BASIS. IT IS BELIEVED THAT YOUR OFFICE DID NOT HAVE BEFORE IT A FULL AND CLEAR STATEMENT OF ALL THE FACTS IN REACHING ITS CONCLUSION WITH RESPECT TO THIS VOUCHER.

THEREFORE, THE BOARD OF TRUSTEES WILL GREATLY APPRECIATE A RECONSIDERATION OF THE MATTER, IN THE LIGHT OF THIS LETTER.

THE REFERRED TO ACT OF MARCH 31, 1936, 49 STAT. 1186, CONTINUED THE ELECTRIC HOME AND FARM AUTHORITY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, UNTIL FEBRUARY 1, 1937, OR SUCH EARLIER DATE AS MIGHT BE FIXED BY THE PRESIDENT BY EXECUTIVE ORDER "TO BE AN AGENCY OF THE UNITED STATES.' THE SAID STATUTE FURTHER PROVIDED THAT "DURING THE CONTINUANCE OF SUCH AGENCY" THERE SHOULD BE CONTINUED "THE PRESENT INVESTMENT IN THE CAPITAL STOCK OF SUCH CORPORATION, FOR THE USE AND BENEFIT OF THE UNITED STATES.' THAT IS TO SAY, EVEN THOUGH THE ELECTRIC HOME AND FARM AUTHORITY WAS ORGANIZED AS A CORPORATION UNDER THE LAWS OF THE DISTRICT OF COLUMBIA THE ACT OF MARCH 31, 1936, UNEQUIVOCALLY MADE IT "AN AGENCY OF THE UNITED STATES" AND IPSO FACTOR SUBJECTED SAID CORPORATION TO THE CONTROL OF THE LAWS OF THE UNITED STATES APPLICABLE TO THE ESTABLISHMENTS AND AGENCIES OF THE GOVERNMENT GENERALLY, INSOFAR AS SUCH LAWS ARE NOT INCONSISTENT WITH THE CORPORATE FORM.

THERE IS NOTHING INCONSISTENT BETWEEN THE CORPORATE FORM OF THE ELECTRIC HOME AND FARM AUTHORITY AND THE REQUIREMENTS OF TITLE 5, SECTIONS 303, 304 AND 306, U.S.C. WHICH NOT ONLY AUTHORIZE AND REQUIRE THE ATTORNEY GENERAL TO GIVE HIS ADVICE AND OPINION UPON QUESTIONS OF LAW, WHENEVER REQUIRED BY THE PRESIDENT OR BY THE HEADS OF ANY EXECUTIVE DEPARTMENTS ON ANY QUESTIONS OF LAW ARISING IN THE ADMINISTRATION THEREOF, BUT SPECIFICALLY PROVIDE, IN SECTION 306, THAT:

THE OFFICERS OF THE DEPARTMENT OF JUSTICE, UNDER THE DIRECTION OF THE ATTORNEY GENERAL, SHALL GIVE ALL OPINIONS AND RENDER ALL SERVICES REQUIRING THE SKILL OF PERSONS LEARNED IN THE LAW NECESSARY TO ENABLE THE PRESIDENT AND HEADS OF DEPARTMENTS, AND THE HEADS OF BUREAUS AND OTHER OFFICERS IN THE DEPARTMENTS, TO DISCHARGE THEIR RESPECTIVE DUTIES; AND SHALL, ON BEHALF OF THE UNITED STATES, PROCURE THE PROPER EVIDENCE FOR, AND CONDUCT, PROSECUTE, OR DEFEND ALL SUITS AND PROCEEDINGS IN THE SUPREME COURT AND IN THE COURT OF CLAIMS, IN WHICH THE UNITED STATES, OR ANY OFFICER THEREOF, AS SUCH OFFICER, IS A PARTY OR MAY BE INTERESTED; AND NO FEES SHALL BE ALLOWED OR PAID TO ANY OTHER ATTORNEY OR COUNSELOR AT LAW FOR ANY SERVICE HEREIN REQUIRED OF THE OFFICERS OF THE DEPARTMENT OF JUSTICE, EXCEPT IN THE CASES PROVIDED BY SECTION 312 OF THIS TITLE.

SEE, ALSO, SECTIONS 308 AND 314, TITLE 5, UNITED STATES CODE.

THE UNITED STATES HAS IN ITS SERVICE UNITED STATES ATTORNEYS AND THEIR ASSISTANTS LOCATED, RESPECTIVELY, AT LOS ANGELES, IN THE SOUTHERN DISTRICT OF CALIFORNIA, AND AT SAN FRANCISCO, IN THE NORTHERN DISTRICT THEREOF. THESE UNITED STATES ATTORNEYS AND THEIR ASSISTANTS WERE NOT AVAILABLE TO FURNISH LEGAL ADVICE RESPECTING THE STATUS AS FIXTURES TO REAL PROPERTY OF ELECTRIC HEATERS, ELECTRIC DISHWASHERS AND ELECTRIC GARBAGE-DISPOSAL UNITS --- SERVICES REQUIRED OF MESSRS. BROBECK, PHLEGER, AND HARRISON--- TITLE 5, SECTION 312, U.S.C. AUTHORIZES THE ATTORNEY GENERAL TO EMPLOY AND RETAIN IN THE SAME OF THE UNITED STATES SUCH ATTORNEYS AND COUNSELORS AT LAW AS HE MAY THINK NECESSARY TO ASSIST THE DISTRICT ATTORNEYS IN THE DISCHARGE OF THEIR DUTIES. AGENCIES OF THE UNITED STATES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT ARE NOT AUTHORIZED TO EMPLOY ATTORNEYS TO RENDER OPINIONS IN SPECIFIC CASES--- IN THE ABSENCE OF SPECIFIC PROVISION OF STATUTE THEREFOR--- THE OFFICERS OF THE DEPARTMENT OF JUSTICE, UNDER THE DIRECTION OF THE ATTORNEY GENERAL, BEING REQUIRED TO GIVE ALL OPINIONS AND RENDER ALL SERVICES REQUIRING THE SKILL OF PERSONS LEARNED IN THE LAW.

THEREFORE, ANY INFORMATION WHICH THE ELECTRIC HOME AND FARM AUTHORITY, INC., MAY HAVE REQUIRED AS TO THE STATUS OF CERTAIN FIXTURES TO THE REALTY IN CALIFORNIA WAS FOR OBTAINING, IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE, FROM THE ATTORNEY GENERAL OR, UNDER HIS DIRECTION, FROM EITHER OF THE TWO UNITED STATES ATTORNEYS AND THEIR RESPECTIVE ASSISTANTS IN CALIFORNIA.

IN VIEW OF THE TERMS OF THE LAW THIS OFFICE IS WITHOUT LEGAL AUTHORITY TO CERTIFY FOR PAYMENT THE VOUCHER, STATED IN FAVOR OF BROBECK, PHLEGER, AND HARRISON, ATTORNEYS, ON WHICH IS CLAIMED $250 AS A FEE FOR RENDERING OPINIONS AND $1.51 AS REIMBURSEMENT OF THE COST OF A TELEGRAM INQUIRING WITH RESPECT TO SUCH SERVICE.