A-86801, JULY 24, 1937, 17 COMP. GEN. 58

A-86801, JULY 24, 1937, 17 COMP. GEN. 58

ATTORNEY SERVICES - GENERAL STATUTORY REQUIREMENTS - APPLICABILITY TO ELECTRIC HOME AND FARM AUTHORITY SECTIONS 306, 314, AND 315, TITLE 5, U.S. CODE, PROVIDING THAT THE ATTORNEY GENERAL SHALL RENDER NECESSARY LEGAL OPINIONS; THAT COMPENSATION FOR ATTORNEY SERVICES SHALL NOT BE ALLOWED WITHOUT SPECIFIC AUTHORITY OF LAW AND UPON CERTIFICATE OF NECESSITY THEREFOR BY THE ATTORNEY GENERAL, ETC., ARE APPLICABLE NOT ONLY TO THE EXECUTIVE DEPARTMENTS, BUT REFER, ALSO, TO THE PRESIDENT, AND EXECUTIVE AGENCIES WHICH ARE INDEPENDENT OF THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE PRESIDENT, AND THE ELECTRIC HOME AND FARM AUTHORITY MAY NOT DIRECTLY PROCURE PRIVATE LEGAL SERVICES IN THE ABSENCE OF SPECIFIC AUTHORITY OF LAW. 16 COMP. GEN. 1089, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, ELECTRIC HOME AND FARM AUTHORITY, JULY 24, 1937:

THERE HAS BEEN RECEIVED A LETTER OF JULY 2, 1937, FROM THE ELECTRIC HOME AND FARM AUTHORITY, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JUNE 18, 1937, IN WHICH YOU ADVISE THAT "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 $250.00 AS A FEE FOR RENDERING OPINIONS AND $1.51 AS REIMBURSEMENT OF THE COST OF A TELEGRAM INQUIRING WITH RESPECT TO SUCH SERVICE.'

THE LAW REFERRED TO ARE CERTAIN SECTIONS OF TITLE 5 OF THE UNITED STATES CODE.

ATTENTION IS RESPECTFULLY CALLED TO SECTIONS 1 AND 2 OF CHAPTER 1, TITLE 5 OF THE UNITED STATES CODE, WHICH ARE AS FOLLOWS:

"SECTION 1. APPLICATION OF PROVISIONS OF CHAPTER.--- THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE FOLLOWING EXECUTIVE DEPARTMENTS:

"FIRST, THE DEPARTMENT OF STATE; SECOND, THE DEPARTMENT OF WAR; THIRD, THE DEPARTMENT OF THE TREASURY; FOURTH, THE DEPARTMENT OF JUSTICE; FIFTH, THE POST OFFICE DEPARTMENT; SIXTH, THE DEPARTMENT OF THE NAVY; SEVENTH, THE DEPARTMENT OF THE INTERIOR; EIGHTH, THE DEPARTMENT OF AGRICULTURE; NINTH, THE DEPARTMENT OF COMMERCE; TENTH, THE DEPARTMENT OF LABOR. (R.S.S. 158; FEB. 9, 1889, C. 122, S. 1, 25 STAT. 659; FEB. 14, 1903, C. 552, S. 1, 32 STAT. 825; MAR. 4, 1913, C. 141, S. 1, 37 STAT. 736.)

"2. WORD "DEPARTMENT.'--- THE WORD "DEPARTMENT" WHEN USED ALONE IN THIS CHAPTER, AND CHAPTERS 2, 3, 4, 5, 6, 7, 8, 9, 10, AND 11 OF THIS TITLE, MEANS ONE OF THE EXECUTIVE DEPARTMENTS ENUMERATED IN THE PRECEDING SECTION. (R.S.S. 159; FEB. 9, 1889, C. 122, S. 1, 25 STAT. 659; FEB. 14. 1903, C. 552, S. 1, 32 STAT. 825; MAR. 4, 1913, C. 141, S. 1, 37 STAT. 736.)"

SECTION 306 OF CHAPTER 5 WHICH YOU QUOTE REFERS TO THE "HEADS OF DEPARTMENTS, AND THE HEADS OF BUREAUS AND OTHER OFFICERS IN THE DEPARTMENTS.'

IN VIEW OF THE FACT THAT THE WORD "DEPARTMENT" AS USED IN CHAPTER 5 IS DEFINED BY SECTION 2 OF CHAPTER 1 TO MEAN ONE OF THE TEN EXECUTIVE DEPARTMENTS OF THE GOVERNMENT ENUMERATED IN SECTION 1 OF CHAPTER 1, IT WOULD APPEAR THAT THE PROVISIONS OF CHAPTER 5 AND THE SECTIONS THEREOF TO WHICH YOU REFER ARE NOT APPLICABLE TO ELECTRIC HOME AND FARM AUTHORITY, WHICH, WHILE AN AGENCY OF THE UNITED STATES, IS NOT INCLUDED IN ANY OF THE DEPARTMENTS, BUT IS A CORPORATION ORGANIZED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA.

IN ADDITION, IT MAY BE POINTED OUT THAT THE ATTORNEY GENERAL HAS CONSISTENTLY TAKEN THE VIEW IN 1 OP.ATTY.GEN. 211, 253; 10 OP.ATTY.GEN. 458; 14 OP.ATTY.GEN. 21; 18 OP.ATTY.GEN. 59; 20 OP.ATTY.GEN. 251, 272, 279, 608, AND AS RECENTLY AS 1934, 37 OP.ATTY.GEN. 446, THAT HE IS NOT AUTHORIZED TO GIVE AN OFFICIAL OPINION IN ANY CASE EXCEPT ON THE CALL OF THE PRESIDENT OR SOME ONE OF THE HEADS OF THE EXECUTIVE DEPARTMENTS.

THE BOARD OF TRUSTEES WILL APPRECIATE YOUR FURTHER CONSIDERATION OF THE QUESTION, IN THE HOPE THAT YOU WILL BE ABLE TO SEE YOUR WAY CLEAR TO CERTIFY THE VOUCHER FOR PAYMENT.

SECTION 306, TITLE 5, U.S.C. IS NOT, AS MIGHT BE INFERRED FROM YOUR LETTER, SUPRA, LIMITED TO THE EXECUTIVE DEPARTMENTS, BUT REFERS, ALSO, TO THE PRESIDENT, AND EXECUTIVE AGENCIES WHICH ARE INDEPENDENT OF THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE PRESIDENT.

THE ACCEPTED PROCEDURE FOR HEADS OF INDEPENDENT AGENCIES, ETC., NOT UNDER AN EXECUTIVE DEPARTMENT, IN SECURING OPINIONS OF THE ATTORNEY GENERAL IS TO SUBMIT THE MATTER TO THE PRESIDENT WITH REQUEST THAT HE OBTAIN THE OPINION OF THE ATTORNEY GENERAL THEREON EXCEPT IN THOSE INSTANCES WHERE THE HEADS OF INDEPENDENT AGENCIES HAVE AUTHORITY TO APPLY DIRECT FOR SUCH OPINIONS. SEE TITLE 38, SECTION 433, UNITED STATES CODE. ALSO IT WILL BE NOTED THAT UNDER TITLE 5, SECTIONS 314 AND 315, U.S.C. THE APPOINTMENT OR EMPLOYMENT OF ATTORNEYS "EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW" MAY BE MADE ONLY ON CERTIFICATE OF THE ATTORNEY GENERAL THAT SUCH SERVICES WERE ACTUALLY RENDERED AND THAT THE SAME COULD NOT BE PERFORMED BY THE ATTORNEY GENERAL, OR THE SOLICITOR GENERAL, OR THE OFFICERS OF THE DEPARTMENT OF JUSTICE, OR BY THE DISTRICT ATTORNEYS, AND THE APPLICATIONS OF SAID SECTIONS ARE NOT RESTRICTED TO THE "DEPARTMENTS" OF THE GOVERNMENT AS DEFINED IN TITLE 5, SECTIONS 1 AND 2, UNITED STATES CODE. IT IS NOTED IN THIS CONNECTION THAT THE APPROPRIATION FOR THE ELECTRIC HOME AND FARM AUTHORITY FOR THE FISCAL YEAR 1938 DOES NOT PROVIDE SPECIFICALLY FOR THE SERVICES OF ATTORNEYS.

DUE TO THE APPARENT MISUNDERSTANDING OF THE ELECTRIC HOME AND FARM AUTHORITY AS TO THE SCOPE OF ITS AUTHORITY IN THIS RESPECT AND THE FACT THAT BROBECK, PHLEGER AND HARRISON HAVE ACTUALLY RENDERED SERVICES AND INCURRED EXPENSES TO THE EXTENT OF $251.51, THIS OFFICE WILL NOT OBJECT THERETO IN THE AUDIT OF THE ACCOUNT IF THE AMOUNT BE PAID TO THEM, BUT IT MUST AND WILL OBJECT TO ANY FUTURE SIMILAR EXPENDITURE UNLESS THE ELECTRIC HOME AND FARM AUTHORITY SECURE SPECIFIC LEGISLATIVE AUTHORITY TO EMPLOY PRIVATE ATTORNEYS TO RENDER OPINIONS, ETC. ..END :