B-17854, JUNE 27, 1941, 20 COMP. GEN. 924

B-17854, JUNE 27, 1941, 20 COMP. GEN. 924

AFFIDAVITS - NONADVOCATION OF THE OVERTHROW OF THE GOVERNMENT THE AFFIDAVIT REQUIREMENT IN SECTION 305 OF THE TREASURY AND POST OFFICE DEPARTMENTS APPROPRIATION ACT, 1942, AS TO THE NONADVOCATION OF THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, IS PRIMARILY FOR ADMINISTRATIVE CONSIDERATION, AND THIS OFFICE WILL REQUIRE A CERTIFICATE OF COMPLIANCE TO BE MADE A PART OF THE PAY ROLLS ON WHICH EMPLOYEES OF THE GOVERNMENT SUBJECT TO SUCH OR SIMILAR PROVISION ARE PAID THEIR COMPENSATION. AN AFFIDAVIT EXECUTED BEFORE AN OFFICER OR EMPLOYEE OF THE POSTAL SERVICE WHO IS AUTHORIZED TO ADMINISTER OATHS FOR CERTAIN SPECIFIC PURPOSES ONLY-- - SUCH AS OATHS OF OFFICE, ETC., AS DISTINGUISHED FROM OATHS GENERALLY--- DOES NOT MEET THE AFFIDAVIT REQUIREMENTS OF SECTION 305 OF THE TREASURY AND POST OFFICE DEPARTMENTS APPROPRIATION ACT, 1942, AS TO THE NONADVOCATION OF THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, BUT SUCH AFFIDAVIT MAY BE EXECUTED BEFORE POSTMASTERS IN ALASKA, THEY BEING AUTHORIZED TO ADMINISTER ANY OATH REQUIRED BY CONGRESS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 27, 1941:

I HAVE YOUR LETTER OF JUNE 13, 1941, AS FOLLOWS:

PUBLIC 88, APPROVED MAY 31, 1941, CONTAINS THE FOLLOWING PROVISION:

"SEC. 305. NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: * * *.'

VARIOUS LAWS INCORPORATED IN THE POSTAL LAWS AND REGULATIONS, 1940, EMPOWER POSTMASTERS AND OTHER POSTAL OFFICERS AND EMPLOYEES TO ADMINISTER OATHS FOR CERTAIN PURPOSES, PARTICULAR ATTENTION BEING INVITED TO SECTION 33. IT WOULD GREATLY FACILITATE COMPLIANCE WITH THE REQUIREMENT CITED ABOVE IN THE ACT OF MAY 31, 1941, IF THE AFFIDAVIT REQUIRED COULD BE ADMINISTERED BY POSTMASTERS AND OTHERS, AND IN ADDITION IT WOULD SAVE THE PAYMENT OF NOTARIAL FEES BY POSTAL EMPLOYEES.

IT WILL BE APPRECIATED IF YOU WOULD ADVISE ME AT YOUR EARLIEST CONVENIENCE WHETHER YOUR OFFICE WOULD REGARD AS COMPLYING WITH THE LAW, AFFIDAVITS ADMINISTERED AS HEREIN PROPOSED.

THE AFFIDAVIT REQUIREMENT IN SECTION 305 OF THE ACT OF MAY 31, 1941, 55 STAT. 235 QUOTED IN YOUR LETTER, IS PRIMARILY FOR ADMINISTRATIVE CONSIDERATION, AND THIS OFFICE WILL REQUIRE A CERTIFICATE OF COMPLIANCE TO BE MADE A PART OF THE PAY ROLLS ON WHICH EMPLOYEES OF THE GOVERNMENT SUBJECT TO SUCH OR SIMILAR PROVISION ARE PAID THEIR COMPENSATION.

THE USUAL AND ACCEPTED DEFINITION OF THE WORD "AFFIDAVIT" IS THAT IT IS A STATEMENT OR DECLARATION REDUCED TO WRITING AND SWORN TO OR AFFIRMED BEFORE SOME OFFICER WHO HAS AUTHORITY TO ADMINISTER AN OATH OR AFFIRMATIION. SUCH STATEMENT OR DECLARATION DENOTES SOMETHING MORE THAN IS INVOLVED IN TAKING AN OATH FOR THE FAITHFUL PERFORMANCE OF THE DUTIES OF A POSITION AND TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES--- THE USUAL REQUIREMENTS OF THE OATH OF OFFICE OF GOVERNMENT OFFICERS AND EMPLOYEES. WITH RESPECT TO EMPLOYEES OF THE POSTAL SERVICE, SECTION 31 OF THE POSTAL LAWS AND REGULATIONS, 1940, BASED ON THE PROVISIONS OF THE ACT OF MARCH 5, 1874, 18 STAT. 19, PROVIDES THAT THE OATH OF OFFICE MAY BE TAKEN BEFORE ANY OFFICER, CIVIL OR MILITARY, HOLDING A COMMISSION UNDER THE UNITED STATES. THE NOTE UNDER SAID SECTION 31 SPECIFIES IN DETAIL THAT SUCH OATH MAY BE ADMINISTERED BY POSTMASTERS, POST-OFFICE INSPECTORS, UNITED STATES JUDGES AND DISTRICT ATTORNEYS, UNITED STATES COMMISSIONERS, UNITED STATES MARSHALS, COLLECTORS OF CUSTOMS AND INTERNAL REVENUE AND ALL OTHER OFFICERS, CIVIL OR MILITARY, HOLDING COMMISSIONS UNDER THE UNITED STATES. HOWEVER, A SPECIFIC AUTHORIZATION TO ADMINISTER THAT OATH DOES NOT VEST IN THE OFFICER AUTHORITY TO ADMINISTER ANY OTHER OATH OR TO TAKE ACKNOWLEDGMENTS TO AFFIDAVITS SUCH AS ARE HERE INVOLVED.

SECTION 305 OF THE ACT OF MAY 31, 1941, SUPRA, EVIDENTLY CONTEMPLATES THAT THE AFFIDAVIT REQUIRED THEREUNDER SHOULD CONTAIN A STATEMENT OF FACTS, THAT IS, THAT THE PERSON MAKING SUCH AFFIDAVIT "DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE," AND THAT SUCH AFFIDAVIT SHOULD BE SWORN TO BEFORE SOME OFFICER WHO HAS AUTHORITY GENERALLY TO ADMINISTER OATHS AND AFFIRMATIONS.

SECTION 33 OF THE POSTAL LAWS AND REGULATIONS, 1940, REFERRED TO IN YOUR SUBMISSION, LISTS VARIOUS OFFICERS AND EMPLOYEES WHO MAY ADMINISTER OATHS FOR CERTAIN PURPOSES AS FOLLOWS:

(1) POSTMASTERS, ASSISTANT POSTMASTERS, CHIEF CLERKS OF THE VARIOUS GOVERNMENT DEPARTMENTS, AND OTHERS, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 6, 1939, 53 STAT. 810, ARE REQUIRED, EMPOWERED AND AUTHORIZED, WHEN REQUESTED, TO ADMINISTER OATHS, REQUIRED BY LAW OR OTHERWISE,"TO ACCOUNTS FOR TRAVEL OR OTHER EXPENSES AGAINST THE UNITED STATES.'

(2) POSTMASTERS WITHIN THE TERRITORY OF ALASKA ARE AUTHORIZED AND DIRECTED, AS PROVIDED BY THE ACT OF AUGUST 5, 1939, 53 STAT. 1219, TO ADMINISTER OATHS AND AFFIRMATIONS AND TO PERFORM ALL OTHER FUNCTIONS OF A NOTARY PUBLIC WITHIN SAID TERRITORY, WHENEVER AN OATH, AFFIRMATION OR ACKNOWLEDGMENT OR A CERTIFICATE THEREOF IS AUTHORIZED, PERMITTED OR REQUIRED BY ANY ACT OR ACTS OF CONGRESS.

(3) UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1934, 48 STAT. 963, POST OFFICE INSPECTORS ARE EMPOWERED AND AUTHORIZED WITH LIKE FORCE AND EFFECT AS OFFICERS HAVING A SEAL TO ADMINISTER OATHS ,REQUIRED OR AUTHORIZED BY LAW OR REGULATION PROMULGATED THEREUNDER IN RESPECT OF ANY MATTER COMING BEFORE THEM IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES" AND, ALSO, TO ACCOUNTS FOR TRAVEL OR OTHER EXPENSES AGAINST THE UNITED STATES; AND CHIEF CLERKS AND ASSISTANT CHIEF CLERKS IN THE RAILWAY MAIL SERVICE ARE REQUIRED, EMPOWERED AND AUTHORIZED, WHEN REQUESTED "TO ADMINISTER OATHS TO EMPLOYEES ON APPOINTMENT OR PROMOTION AND TO ACCOUNTS FOR TRAVEL OR OTHER EXPENSES AGAINST THE UNITED STATES WITH LIKE FORCE AND EFFECT AS OFFICERS HAVING A SEAL.'

WHILE THE OFFICERS AND EMPLOYEES LISTED ABOVE ARE AUTHORIZED TO ADMINISTER OATHS FOR CERTAIN SPECIFIC PURPOSES THEY ARE NOT AUTHORIZED TO ADMINISTER OATHS OR AFFIRMATIONS GENERALLY, EXCEPT POSTMASTERS WITHIN THE TERRITORY OF ALASKA. THE SPECIAL PURPOSES FOR WHICH SUCH OFFICERS AND EMPLOYEES ARE AUTHORIZED TO ADMINISTER OATHS OR AFFIRMATIONS WOULD APPEAR TO CONSTITUTE THE LIMIT OF THEIR AUTHORITY IN THAT RESPECT AND SINCE THEY ARE NOT AUTHORIZED TO ADMINISTER OATHS AND AFFIRMATIONS GENERALLY, AND WERE NOT SPECIFICALLY AUTHORIZED TO ADMINISTER THE OATH TO THE AFFIDAVIT HERE IN QUESTION, I HAVE TO ADVISE THAT AN AFFIDAVIT EXECUTED BEFORE AN OFFICER OR EMPLOYEE LISTED UNDER SECTION 33 OF THE POSTAL LAWS AND REGULATIONS, 1940, OTHER THAN A POSTMASTER IN ALASKA, WOULD NOT MEET THE REQUIREMENTS OF SECTION 305 OF THE ACT OF MAY 31, 1941.