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B-155582, JUN. 20, 1967

B-155582 Jun 20, 1967
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TO AMERICAN CIVIL LIBERTIES UNION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 31. STILL REPRESENTS THE POSITION OF OUR OFFICE AND YOU INQUIRE WHETHER WE HAVE ISSUED ANY OTHER OPINIONS DENYING BENEFITS TO INDIVIDUALS BECAUSE THEY WERE PARTIES TO INTERRACIAL MARRIAGES PURPORTEDLY INVALID UNDER STATE ANTI MISCEGENATION LAWS. AS TO YOUR SECOND INQUIRY WE HAVE FOUND NO CASE IN RECENT YEARS IN WHICH A SIMILAR QUESTION HAS BEEN CONSIDERED. DID NOT HAVE A DEPENDENT WIFE OR THAT UPON HIS DEATH HE DID NOT HAVE A SURVIVING SPOUSE. IN OUR DECISION IT WAS CONCLUDED. THE MATTER OF SUCH STATUS WAS HELD TO BE TOO DOUBTFUL TO WARRANT THE AUTHORIZATION OF SUCH PAYMENTS (THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE AND THE DEATH GRATUITY).

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B-155582, JUN. 20, 1967

TO AMERICAN CIVIL LIBERTIES UNION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1967, CONCERNING OUR DECISION OF JANUARY 6, 1965, B-155582, WITH REFERENCE TO THE PROPRIETY OF PAYMENT TO MRS. IDA NELL WATERS OF THE SIX MONTHS' DEATH GRATUITY, AND BASIC ALLOWANCE FOR QUARTERS, AS THE SURVIVING SPOUSE OF PRIVATE WARREN D. WATERS, U.S. ARMY, DECEASED.

YOU ASK WHETHER DECISION OF JANUARY 6, 1965, STILL REPRESENTS THE POSITION OF OUR OFFICE AND YOU INQUIRE WHETHER WE HAVE ISSUED ANY OTHER OPINIONS DENYING BENEFITS TO INDIVIDUALS BECAUSE THEY WERE PARTIES TO INTERRACIAL MARRIAGES PURPORTEDLY INVALID UNDER STATE ANTI MISCEGENATION LAWS.

AS TO YOUR SECOND INQUIRY WE HAVE FOUND NO CASE IN RECENT YEARS IN WHICH A SIMILAR QUESTION HAS BEEN CONSIDERED.

OUR DECISION OF JANUARY 6, 1965, DID NOT PURPORT TO MAKE A FINAL DETERMINATION THAT THE SERVICEMAN, PRIVATE WATERS, DID NOT HAVE A DEPENDENT WIFE OR THAT UPON HIS DEATH HE DID NOT HAVE A SURVIVING SPOUSE. IN OUR DECISION IT WAS CONCLUDED, IN EFFECT, THAT, IN THE ABSENCE OF A CONTROLLING JUDICIAL DECISION HOLDING THE STATE ANTI MISCEGENATION STATUTE TO BE INVALID, WE ,SHOULD MAKE NO DETERMINATION AS TO THE VALIDITY OF PRIVATE WATERS' MARRIAGE AT THE * * * TIME.' ACCORDINGLY, SINCE THE VALIDITY OF THE PAYMENTS INVOLVED DEPENDED ON HIS MARITAL STATUS, THE MATTER OF SUCH STATUS WAS HELD TO BE TOO DOUBTFUL TO WARRANT THE AUTHORIZATION OF SUCH PAYMENTS (THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE AND THE DEATH GRATUITY).

THE EFFECT OF OUR DECISION WAS TO WITHHOLD DETERMINATION OF THE VALIDITY OF THE MARRIAGE INVOLVED AND TO SUSPEND PAYMENT OF THE BENEFITS MENTIONED UNTIL THE QUESTION OF MARITAL STATUS WAS JUDICIALLY SETTLED. THE POSITION OF THIS OFFICE IN CASES WHERE ENTITLEMENT TO FEDERAL MONETARY BENEFITS IS DEPENDENT ON THE EXISTENCE OF A VALID MARRIAGE OR OTHER LEGAL STATUS, AND WHERE THE MATTER HAS NOT BEEN JUDICIALLY SETTLED, HAS NOT CHANGED. SUCH ACTION PROTECTS THE INTEREST OF ALL PARTIES CONCERNED, INCLUDING THAT OF THE GOVERNMENT.

IT HAS LONG BEEN THE RULE THAT THE GOVERNMENT ACCOUNTING OFFICERS SHOULD WITHHOLD PAYMENT OF ANY CLAIM AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT, AND SHOULD RESOLVE THE DOUBT IN FAVOR OF THAT CONCLUSION WHICH WILL RESULT IN THE CONSERVATION OF APPROPRIATED FUNDS AND THUS RESERVE FOR THE COURTS THE ULTIMATE DETERMINATION OF THE MATTER. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881); CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).

WE DO NOT CONSIDER IT A PROPER FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO DETERMINE THE CONSTITUTIONALITY OF EITHER STATE OR FEDERAL LAWS, BUT RATHER TO GIVE EFFECT TO ALL LAWS UNLESS AND UNTIL A FINAL DETERMINATION OF UNCONSTITUTIONALITY HAS BEEN MADE BY THE COURTS. SEE ARTICLE III AND SECTION 1 OF ARTICLE IV, CONSTITUTION OF THE UNITED STATES OF AMERICA; 28 U.S.C. 1738. UNDER OUR SYSTEM OF GOVERNMENT THE DETERMINATION OF THE CONSTITUTIONALITY OF STATUTES IS RESERVED TO THE COURTS AND PRECLUDES ANY INHERENT INDEPENDENT POWER IN THE ADMINISTRATIVE OR ACCOUNTING OFFICERS TO NULLIFY LEGISLATIVE ENACTMENTS BECAUSE OF PERSONAL BELIEFS THAT THEY CONTRAVENE THE CONSTITUTION. PANITZ V. DISTRICT OF COLUMBIA, 112 F.2D 39 (1940); 38 OP. ATTY. GEN. 252; 39 ID. 11.

THE DECISION OF THE SUPREME COURT OF THE UNITED STATES ON JUNE 12, 1967, IN LOVING V. VIRGINIA TO THE EFFECT THAT THE STATE ANTI MISCEGENATION STATUTES VIOLATE THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION APPEARS TO HAVE RESOLVED THE DOUBT CONCERNING THE VALIDITY OF THE MARRIAGE OF THE DECEASED SERVICEMAN, PRIVATE WARREN D. WATERS, AND IDA NELL RIVERS. ACCORDINGLY, THE APPROPRIATE ARMY OFFICIAL HAS BEEN ADVISED THAT THE DEATH GRATUITY AND THE BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT WIFE AND STEPCHILD, HERETOFORE WITHHELD PENDING RESOLUTION OF THE QUESTION OF THE VALIDITY OF THE MARRIAGE INVOLVED MAY NOW BE PAID, IF OTHERWISE CORRECT.

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