B-31909, MARCH 15, 1943, 22 COMP. GEN. 895

B-31909, MARCH 15, 1943, 22 COMP. GEN. 895

TRANSPORTATION - HOUSEHOLD EFFECTS OF CIVILIAN EMPLOYEES - ADVANCE AUTHORIZATION REQUIREMENTS FOR SHIPMENT BY EXPRESS THE PROVISIONS OF VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN THE PROVISIONS OF THE STATUTES THEMSELVES, AND, THEREFORE, THE HEAD OF A DEPARTMENT OR AGENCY IS WITHOUT AUTHORITY TO PROVIDE FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS, ETC., OF CIVILIAN EMPLOYEES UPON CHANGE OF STATION UNDER CONDITIONS CONTRARY TO THOSE PRESCRIBED BY THE EXECUTIVE REGULATIONS ISSUED PURSUANT TO THE UNIFORM TRANSPORTATION OF HOUSEHOLD EFFECTS STATUTE OF OCTOBER 10, 1940. WHERE A STATUTE OR REGULATION PROVIDES THAT THE HEAD OF A DEPARTMENT OR ESTABLISHMENT MAY AUTHORIZE AN ACT OR THE INCURRING OF AN EXPENDITURE, THE AUTHORIZATION MUST BE GIVEN IN ADVANCE, BUT WHERE THE STATUTE OR REGULATION PROVIDES THAT AN ACT OR AN EXPENDITURE MAY BE EITHER AUTHORIZED OR APPROVED, THE AUTHORIZATION MAY EITHER BE GIVEN IN ADVANCE OR APPROVED AFTER THE FACT. UNDER THE PROVISIONS OF SECTION 5 OF EXECUTIVE ORDER NO. 8588, AS AMENDED, ISSUED PURSUANT TO THE ACT OF OCTOBER 10, 1940, THAT TRANSPORTATION OF HOUSEHOLD EFFECTS, ETC., OF CIVILIAN EMPLOYEES UPON CHANGE OF STATION SHALL BE BY THE MOST ECONOMICAL MEANS, EXCEPT THAT WHEN THE HEAD OF THE DEPARTMENT OR AGENCY DETERMINES IT TO BE IN THE INTEREST OF THE GOVERNMENT, HE MAY "SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS," WITHIN THE LIMITATIONS THEREIN SPECIFIED, THE ADDITIONAL EXPENSE OF SHIPMENT BY EXPRESS IS REIMBURSABLE BY THE GOVERNMENT ONLY WHEN SHIPMENT BY THAT MEANS IS AUTHORIZED BY PROPER AUTHORITY IN ADVANCE OF THE SHIPMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 15, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 22, 1943, AS FOLLOWS:

REFERENCE IS MADE TO DISBURSING OFFICE VOUCHER NO. 1406427, PAID ON JANUARY 27, 1942, BY G. F. ALLEN, SYMBOL 11-559, IN THE AMOUNT OF $12.00, IN FAVOR OF DR. HAROLD KLEIN, WHICH WAS SUBMITTED TO THE AUDIT DIVISION OF YOUR OFFICE FOR PREAUDIT. ALTHOUGH I APPROVED THE COST OF THE SHIPMENT OF PERSONAL EFFECTS BY EXPRESS THE CLAIM WAS DISALLOWED BY THE AUDIT DIVISION OF YOUR OFFICE IN THE ABSENCE OF PRIOR AUTHORIZATION BY THE HEAD OF THIS ADMINISTRATION FOR SUCH SHIPMENT, AS REQUIRED BY VETERANS ADMINISTRATION REGULATIONS, PARAGRAPH 920 (E), AMENDED MARCH 31, 1941.

REFERENCE IS FURTHER MADE TO VOUCHER IN FAVOR OF DR. BENJAMIN A. WEINBERG IN THE AMOUNT OF $27.48 COVERING CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR SHIPPING HOUSEHOLD EFFECTS BY EXPRESS ON NOVEMBER 21, 1941 AND JANUARY 20, 1942, WHICH WAS FORWARDED TO YOUR OFFICE FOR DIRECT SETTLEMENT ON JULY 4, 1942. NOTICE OF CERTIFICATE OF SETTLEMENT NO. 10694226 HAS BEEN RECEIVED IN THIS ADMINISTRATION AND IT IS NOTED THAT THE VOUCHER, WHICH WAS ASSIGNED DISBURSING OFFICE VOUCHER NO. 602085, WAS PAID ON SEPTEMBER 25, 1942 IN THE AMOUNT OF $19.72. THE AMOUNT ALLOWED COVERED THE COST OF SHIPPING FIVE HUNDRED POUNDS BY EXPRESS AND ONE HUNDRED FIFTY- FOUR POUNDS BY RAIL.

REFERENCE IS ALSO MADE TO VOUCHER IN FAVOR OF DR. NORMAN PAUL IN THE AMOUNT OF $30.03 COVERING CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR SHIPPING HOUSEHOLD GOODS AND PERSONAL EFFECTS, WHICH INCLUDED A CHARGE OF $4.55 FOR SHIPPING ONE TRUNK BY EXPRESS ON FEBRUARY 7, 1942. THIS CLAIM WHICH WAS FORWARDED FOR DIRECT SETTLEMENT ON JUNE 10, 1942 WAS ASSIGNED DISBURSING OFFICE VOUCHER NO. 602084 AND PAID ON SEPTEMBER 25, 1942 UNDER CERTIFICATE OF SETTLEMENT NO. 10694205 IN THE AMOUNT OF $26.17. IT IS NOTED THAT OF THE SUM OF $4.55 CLAIMED FOR EXPRESS CHARGED ON ONE TRUNK, $3.35 WAS DISALLOWED IN THE ABSENCE OF PRIOR AUTHORIZATION FOR SUCH SHIPMENT AS REQUIRED BY SECTION 5, EXECUTIVE ORDER 8588, DATED NOVEMBER 7, 1940, IT BEING CONTEMPLATED BY SAID ORDER THAT THE DETERMINATION OF THE INTEREST OF THE GOVERNMENT BE MADE IN ADVANCE OF SHIPMENT.

THE SHIPMENT OF PERSONAL EFFECTS AND HOUSEHOLD GOODS IN ALL OF THE CASES CITED ABOVE WAS MADE UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8588, NOVEMBER 7, 1940, AND THE SAME PROVISIONS OF VETERANS ADMINISTRATION REGULATIONS AND PROCEDURE WERE IN EFFECT DURING EACH OF THE PERIODS WHEN THE SHIPMENTS WERE MADE.

SECTION 5 OF EXECUTIVE ORDER 8588, AMENDED BY EXECUTIVE ORDER 9122, PROVIDES IN PART,"THAT, WHEN THE HEAD OF THE DEPARTMENT OR AGENCY DETERMINES IT TO BE IN THE INTEREST OF THE GOVERNMENT, HE MAY SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS OF ARTICLES REQUIRED FOR IMMEDIATE USE AT THE NEW OFFICIAL STATION.' THE CURRENT REGULATIONS AND PROCEDURE OF THIS ADMINISTRATION, PARAGRAPH 920 (E), EFFECTIVE JUNE 1, 1942, CONTAINS A PROVISION, THAT WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT, SHIPMENT BY EXPRESS MAY BE MADE OF CERTAIN ARTICLES REQUIRED FOR IMMEDIATE USE AT THE NEW OFFICIAL STATION. IT WAS NOT INTENDED IN THE PROMULGATION OF THIS INSTRUCTION THAT DETERMINATION BY THE HEAD OF THIS ADMINISTRATION WOULD NECESSARILY BE AN ADVANCE DETERMINATION, BUT THE SPECIFIC AUTHORITY WOULD BE COVERED BY MY APPROVAL PRIOR TO FORWARDING AN ACCOUNT COVERING EXPENSES FOR SHIPMENT OF PERSONAL EFFECTS FOR PAYMENT.

IN THE CONDUCT OF VETERANS ADMINISTRATION ACTIVITIES THERE ARE MANY CASES WHERE SHIPMENT OF A PORTION OF AN EMPLOYEE'S HOUSEHOLD EFFECTS BY EXPRESS IS NECESSARY IN ORDER THAT HE MAY FUNCTION PROPERLY AT THE NEW STATION, IMMEDIATELY UPON ARRIVAL, BUT DUE TO THE LARGE NUMBER OF TRANSFERS BEING EFFECTED AND THE NECESSITY FOR PROMPT ACTION, DETRIMENT TO THE SERVICE WOULD RESULT IF THE MATTER OF SHIPMENT BY EXPRESS WERE REQUIRED TO BE DEVELOPED PRIOR TO THE ISSUANCE OF THE TRANSFER ORDER.

IT HAS BEEN CONSIDERED, THEREFORE, THAT THE REQUIREMENTS OF THE PRESIDENT'S ORDERS WERE MET WHEN SUCH EXPENSES, AFTER CAREFUL CONSIDERATION AS TO THE NECESSITY AND PROPRIETY OF SHIPMENT BY EXPRESS, WERE PERSONALLY APPROVED BY ME SUBSEQUENT TO SHIPMENT AND IN NO CASE IS APPROVAL OF SUCH MODE OF SHIPMENT GIVEN SUBSEQUENT TO RENDITION OF THE SERVICE WHICH WOULD NOT HAVE BEEN GIVEN PRIOR APPROVAL.

IN VIEW OF THE ACTIONS TAKEN IN CONNECTION WITH THE CLAIMS CITED ABOVE, YOUR DECISION IS REQUESTED FOR GUIDANCE IN FUTURE CASES, AS TO THE INTERPRETATION WHICH IS REQUIRED TO BE PLACED UPON THE EXPRESSION "SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS," (ITALICS SUPPLIED), APPEARING SECTION 5 OF THE EXECUTIVE ORDER.

YOUR EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

THE VOUCHER ( D.O. NO. 1406427) REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, WHICH WAS PREAUDIT APPROVED BY THE AUDIT DIVISION OF THIS OFFICE, AND PAID JANUARY 27, 1942, BY G. F. ALLEN TO DR. HAROLD KLEIN, INCLUDED A CLAIM FOR $16.26 SUPPORTED BY A RECEIPT SHOWING PAYMENT IN SAID AMOUNT WAS MADE JULY 12, 1941, BY DR. KLEIN, FOR EXPRESS SHIPMENT OF 271 POUNDS OF HOUSEHOLD GOODS FROM NEW YORK, NEW YORK, TO LITTLE ROCK, ARKANSAS, AND A CLAIM FOR EXCESS BAGGAGE CHARGE OF $2.60 ON 40 POUNDS WHICH INCLUDED HOUSEHOLD ARTICLES SHIPPED FROM NEW YORK TO LITTLE ROCK, UNDER AUTHORITY OF TRANSFER ORDER DATED JUNE 12, 1941, AUTHORIZING SHIPMENT OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY FROM WACO, TEXAS, TO NORTH LITTLE ROCK, ARKANSAS, IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 8588 OF NOVEMBER 7, 1940. THE TRANSFER OF STATION ORDER WAS APPROVED BY YOU JUNE 4, 1941, AND IS ATTACHED TO VOUCHER D.O., NO. 182083. YOUR APPROVAL OF A RECOMMENDATION DATED OCTOBER 13, 1941, FOR ALLOWANCE OF THE CLAIMS FOR SHIPMENT BY EXPRESS OF THE EFFECTS OF DR. KLEIN, AND OF FIVE OTHER EMPLOYEES, IS ATTACHED TO THE VOUCHER ( NO. 1406427).

THE ACTION TAKEN BY PREAUDIT DIFFERENCE STATEMENT, DATED DECEMBER 5, 1941, IN DEDUCTING $13.36 (THE DIFFERENCE BETWEEN THE AMOUNT CLAIMED FOR TWO ITEMS, $18.86, AND $5.50, THE COST OF SHIPPING THE TOTAL OF 311 POUNDS AT $1.77 PER CWT. BY RAIL FREIGHT FROM WACO TO LITTLE ROCK) WAS BASED ON THE FACT THAT REIMBURSEMENT FOR THE COST OF TRANSPORTING THE EFFECTS BY EXPRESS DID NOT APPEAR TO BE PROPER IN THE ABSENCE OF PRIOR AUTHORIZATION AS CONTEMPLATED BY SECTION 5 OF EXECUTIVE ORDER 8588; HENCE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5, AN AMOUNT WAS ALLOWED NOT TO EXCEED THE COST BY THE MOST ECONOMICAL MEANS BETWEEN THE AUTHORIZED DUTY STATIONS--- DETERMINED, IN THIS CASE, TO BE RAIL FREIGHT.

THE CLAIM OF DR. PAUL REFERRED TO IN THE THIRD PARAGRAPH OF YOUR LETTER, COVERED TRANSPORTATION BY FREIGHT OF CERTAIN HOUSEHOLD GOODS AND THE SHIPMENT BY EXPRESS OF ONE TRUNK AND ONE TIRE FROM HAYTI, MISSOURI, TO DANVILLE, ILLINOIS. THE CLAIM WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION AND DIRECT SETTLEMENT--- THE ADMINISTRATIVE REASON STATED FOR SUCH ACTION BEING THE ABSENCE OF PRIOR SPECIFIC AUTHORITY FOR THE EXPRESS SHIPMENT AND THE ACTION TAKEN BY THE AUDIT DIVISION OF THIS OFFICE IN DISAPPROVING THE EXPRESS ITEM CLAIMED IN THE KLEIN CASE, SUPRA. IT WAS STATED IN THE " BRIEF OF FACTS" WHICH ACCOMPANIED THE CLAIM THAT THE SHIPMENT OF THE TRUNK BY EXPRESS WAS APPROVED BY YOU AFTER THE SHIPMENT HAD BEEN MADE BECAUSE IT WAS NOT THE GENERAL PRACTICE OF THE ADMINISTRATION TO INCLUDE AUTHORITY IN THE TRAVEL ORDER FOR SHIPMENT BY A MORE EXPENSIVE MODE OF TRANSPORTATION. IT WAS STATED, ALSO, THAT THE CURRENT REGULATIONS OF THE VETERANS' ADMINISTRATION CONTAINED A PROVISION THAT SHIPMENT BY EXPRESS MIGHT BE MADE WHEN IT WAS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT AND THAT IT WAS CONTEMPLATED THAT SPECIFIC AUTHORITY FOR SUCH EXPRESS SHIPMENT WOULD BE GRANTED AFTER THE SHIPMENT HAD BEEN EFFECTED. UPON CONSIDERATION OF THE CLAIM THE AMOUNT ALLOWED FOR THE EXPRESS SHIPMENT OF THE TRUNK WAS REDUCED TO THE COST OF SHIPPING IT BY FREIGHT FROM HINES TO DANVILLE, ILLINOIS--- HINES BEING THE LAST OFFICIAL STATION OF DR. PAUL--- AND THE COST OF SHIPPING THE TIRE WAS DISALLOWED IN ITS ENTIRETY. THE REDUCTION OF THE AMOUNT ALLOWED FOR SHIPPING THE TRUNK WAS MADE FOR THE REASON, IN SUBSTANCE, THAT SECTION 5 OF THE EXECUTIVE ORDER 8588, DATED NOVEMBER 7, 1940, CONTEMPLATED THAT SHIPMENT BY EXPRESS SHOULD BE AUTHORIZED IN ADVANCE OF SHIPMENT.

THE CLAIM OF DR. BENJAMIN A. WEINBERG, REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER, COVERED THE TRANSPORTATION BY EXPRESS OF FIVE PACKAGES OF HOUSEHOLD EFFECTS FROM CHICAGO, ILLINOIS, TO WASHINGTON, D.C. THIS CLAIM, ALSO, WAS FORWARDED BY THE VETERANS' ADMINISTRATION FOR REASONS SIMILAR TO THOSE GIVEN IN THE CLAIM OF DR. PAUL, SUPRA. THE SHIPMENT WEIGHED IN EXCESS OF 500 POUNDS, THE MAXIMUM ALLOWANCE FOR EXPRESS SHIPMENTS AS SET FORTH IN EXECUTIVE ORDER 8588, SUPRA; AND, IN CONSIDERING THE CLAIM, ALLOWANCE WAS MADE OF THE COST OF TRANSPORTATION BY EXPRESS OF 500 POUNDS OF HOUSEHOLD EFFECTS FROM AUGUSTA, GEORGIA--- DR. WEINBERG'S LAST OFFICIAL STATION--- TO WASHINGTON, D.C., AND THE EXCESS, OR 154 POUNDS, BY FREIGHT AT THE RATE OF $1.54 PER CWT. FROM CHICAGO TO WASHINGTON SINCE THE SHIPMENT WAS ACTUALLY MADE FROM CHICAGO AND THE FREIGHT RATE FROM THAT POINT WAS LESS THAN FROM AUGUSTA, GEORGIA.

THE APPROPRIATION FOR " SALARIES AND EXPENSES, VETERANS' ADMINISTRATION, 1942," AS MADE IN THE ACT APPROVED APRIL 5, 1941, 55 STAT. 120, UNDER WHICH THE INVOLVED PAYMENTS WERE MADE, PROVIDES OR:

* * * TRANSFER OF HOUSEHOLD GOODS AND EFFECTS AS PROVIDED BY THE ACT OF OCTOBER 10, 1940 ( PUBLIC, NUMBERED 839), AND REGULATIONS PROMULGATED THEREUNDER; * * *

THE ACT OF OCTOBER 10, 1940, 54 STAT. 1105, WHICH AUTHORIZES THE PRESIDENT TO PROMULGATE UNIFORM REGULATIONS CONTROLLING EXPENDITURES FOR THE TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF ANY OF THE EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS OF THE UNITED STATES, PROVIDES THAT SUCH EXPENDITURES "SHALL HEREAFTER BE ALLOWED AND PAID, WHEN SPECIFICALLY AUTHORIZED OR APPROVED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED.' THE WORDING OF THE ACT REQUIRING SPECIFIC AUTHORITY OR APPROVAL OF THE DEPARTMENT OR ESTABLISHMENT WAS FOLLOWED IN SECTION 1 OF THE EXECUTIVE ORDER NO. 8588, ISSUED BY THE PRESIDENT NOVEMBER 7, 1940. SECTION 5 OF SAID EXECUTIVE ORDER PROVIDES THAT SHIPMENT SHALL BE BY THE MOST ECONOMICAL MEANS EXCEPT THAT:

* * * WHEN THE HEAD OF THE DEPARTMENT OR AGENCY DETERMINES IT TO BE IN THE INTEREST OF THE GOVERNMENT, HE MAY SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS OF ARTICLES REQUIRED FOR IMMEDIATE USE AT THE NEW OFFICIAL STATION (FOR EXAMPLE, PROFESSIONAL BOOKS, WEARING APPAREL, BEDDING, OR KITCHEN UTENSILS, BUT NOT FURNITURE OR JEWELRY), WHICH SHALL IN NO CASE EXCEED A WEIGHT OF 500 POUNDS FOR EMPLOYEES HAVING DEPENDENTS LIVING WITH THEM OR 250 POUNDS FOR EMPLOYEES HAVING NO DEPENDENTS LIVING WITH THEM.

PARAGRAPH 920, REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION, AMENDED MARCH 31, 1941, WHICH WAS EFFECTIVE AT THE TIME OF THE SHIPMENTS HERE INVOLVED, PROVIDES, UNDER SECTION (A), THAT EMPLOYEES OF THE VETERANS ADMINISTRATION SHALL BE ALLOWED AND PAID EXPENSES INCIDENT TO TRANSPORTATION OF EFFECTS IN ACCORDANCE WITH THE REGULATIONS SET FORTH WHICH, IT WAS STATED, WERE BASED ON EXECUTIVE ORDER NO. 8588. UNDER SECTION (E), IT WAS STATED THAT:

* * * WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT, SHIPMENT BY EXPRESS MAY BE MADE WHEN AUTHORIZED AND INCLUDED IN TRAVEL ORDER OF ARTICLES REQUIRED FOR IMMEDIATE USE AT THE NEW OFFICIAL STATION (FOR EXAMPLE: PROFESSIONAL BOOKS, WEARING APPAREL, BEDDING, OR KITCHEN UTENSILS, BUT NOT FURNITURE OR JEWELRY), WHICH SHALL IN NO CASE EXCEED A WEIGHT OF 500 POUNDS FOR EMPLOYEES HAVING DEPENDENTS LIVING WITH THEM OR 250 POUNDS FOR EMPLOYEES HAVING NO DEPENDENTS LIVING WITH THEM.

AN UNDATED AMENDMENT WAS MADE TO THE ABOVE PARAGRAPH (RECEIVED IN THIS OFFICE FEBRUARY 24, 1942) WHICH APPEARS TO BE THE ONE TO WHICH YOU REFER IN YOUR LETTER AS BEING EFFECTIVE JUNE 1, 1942, AND SAID AMENDMENT IS IDENTICAL WITH THE PROVISION LAST ABOVE QUOTED EXCEPT FOR THE OMISSION OF THE WORDS,"WHEN AUTHORIZED AND INCLUDED IN TRAVEL ORDER.'

IT IS CLEAR THAT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 10, 1940, AND THE 1942 APPROPRIATION ACT CITED ABOVE, REIMBURSEMENT OF EXPENSES INCURRED BY EMPLOYEES OF THE VETERANS' ADMINISTRATION INCIDENT TO TRANSPORTATION OF THEIR PERSONAL EFFECTS IS GOVERNED BY THE PROVISIONS OF THE UNIFORM REGULATIONS PRESCRIBED BY THE PRESIDENT AND THIS APPEARS TO BE THE UNDERSTANDING OF THE VETERANS' ADMINISTRATION AS EVIDENCED BY THE CORRESPONDENCE, THE ADMINISTRATIVE REGULATIONS, AND THE TRANSFER ORDER.

IT HAS BEEN HELD THAT PROVISIONS OF VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN THE PROVISIONS OF THE STATUTES THEMSELVES. 2 COMP. GEN. 342; 5 ID. 177; 15 ID. 869, 870; 18 ID. 907. COMPARE 21 COMP. DEC. 482. IT APPEARS, THEREFORE, THAT YOU WERE WITHOUT AUTHORITY TO AMEND THE REGULATIONS OF THE VETERANS' ADMINISTRATION TO PROVIDE FOR SHIPMENT OF EFFECTS BY EXPRESS UNDER CONDITIONS CONTRARY TO THOSE PRESCRIBED BY THE UNIFORM REGULATIONS ISSUED BY THE PRESIDENT PURSUANT TO THE ACT OF OCTOBER 10, 1940. IN 21 COMP. GEN. 921, 923, WITH REGARD TO THE SHIPMENT OF HOUSEHOLD GOODS, IT WAS STATED:

HOWEVER, UNDER THE ACT OF OCTOBER 10, 1940, SUPRA, THE AUTHORIZATION FOR PAYMENT OF TRANSPORTATION EXPENSES OF AN EMPLOYEE'S HOUSEHOLD GOODS AND PERSONAL EFFECTS IS NOT REQUIRED TO BE CONTAINED IN THE ORDER DIRECTING HIS TRANSFER. UNDER SAID ACT, THE HEAD OF THE DEPARTMENT CONCERNED MAY "AUTHORIZE" THE PAYMENT OF SUCH EXPENSES BEFORE THE EMPLOYEE'S HOUSEHOLD GOODS AND PERSONAL EFFECTS ARE TRANSPORTED, OR HE MAY "APPROVE" THE PAYMENT OF SUCH EXPENSES AFTER SUCH GOODS AND EFFECTS HAVE BEEN TRANSPORTED. * * *

IT WAS HELD IN DECISION OF MARCH 18, 1935, 14 COMP. GEN. 698, 700, AS FOLLOWS:

* * * WHEN A STATUTE VESTS IN A BOARD OR OTHER FEDERAL AGENCY DISCRETION IN THE USE OF APPROPRIATED FUNDS, SUCH DISCRETION PROPERLY MAY BE EXERCISED ONLY IN ADVANCE OF THE INCURRING OF THE OBLIGATION, AS APPROVAL AFTER AN EXPENDITURE HAS BEEN INCURRED DOES NOT CONSTITUTE THE EXERCISE OF DISCRETION IN THE USE BUT A CONDONING OF WHAT HAS ALREADY BEEN DONE. THIS DOES NOT MEET THE REQUIREMENTS OF THE LAW AND TENDS TO ENCOURAGE SUBORDINATES IN INCURRING OBLIGATIONS WHICH, PERHAPS, THE OFFICIALS VESTED BY LAW WITH AUTHORITY TO EXERCISE DISCRETION IN THE MATTER WOULD NOT HAVE SANCTIONED HAD THE MATTER BEEN BROUGHT TO THEIR ATTENTION IN ADVANCE. WHEN AUTHORITY TO EXERCISE DISCRETION IS VESTED BY LAW IN A BOARD OR HEAD OF AN ESTABLISHMENT, SUCH AUTHORITY MAY NOT BE DELEGATED TO A SUBORDINATE UNLESS SUCH DELEGATION IS SPECIFICALLY AUTHORIZED BY STATUTE. FURTHERMORE, WHEN DISCRETION IN THE USE OF PUBLIC MONEY IS VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT, IT IS NOTAN UNLIMITED BUT A LEGAL DISCRETION TO BE EXERCISED WITHIN THE LIMITATIONS AND FOR THE PURPOSES OF THE STATUTES PROVIDING THE FUNDS AND PRESCRIBING THE ACTIVITIES OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED.

IN THE AUDIT OF VOUCHERS, IN THE SETTLEMENT OF CLAIMS, AND IN FORMAL DECISIONS, THIS OFFICE HAS RECOGNIZED A DISTINCTION BETWEEN PROVISIONS OF LAW, OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, (1) WHICH AUTHORIZE AN ACT OR AN EXPENDITURE BY THE HEAD OF A DEPARTMENT OR ESTABLISHMENT AND (2) WHICH PROVIDE THAT AN ACT OR EXPENDITURE MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF A DEPARTMENT OR ESTABLISHMENT. IF A STATUTE OR REGULATION MERELY AUTHORIZES AN ACT OR THE INCURRING OF AN EXPENDITURE, IT IS CONTEMPLATED THAT THE AUTHORIZATION MUST BE GIVEN IN ADVANCE. HOWEVER, IF THE STATUTE OR REGULATION PROVIDES THAT AN ACT OR AN EXPENDITURE MAY BE EITHER AUTHORIZED OR APPROVED IT IS RECOGNIZED THAT THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT MAY EITHER AUTHORIZE IN ADVANCE OR APPROVE AFTER THE FACT. SEE 21 COMP. GEN. 921, AND DECISION OF FEBRUARY 4, 1943, B-31948, 22 COMP. GEN. 745, TO THE SECRETARY OF THE INTERIOR. THIS DISTINCTION IS CLEARLY REFLECTED IN THE UNIFORM REGULATIONS APPROVED BY THE PRESIDENT TO CONTROL THE SHIPMENT OF HOUSEHOLD GOODS. SEE SECTION 1 OF THE REGULATIONS, EXECUTIVE ORDER NO. 8588 DATED NOVEMBER 7, 1940, FOR AN EXAMPLE OF (2), AND SECTION 5 OF THE SAME REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 9122 DATED APRIL 6, 1942, HERE INVOLVED, FOR AN EXAMPLE OF (1) CONTROLLING THE SHIPMENT OF HOUSEHOLD GOODS BY EXPRESS. ORDINARILY, SHIPMENT BY EXPRESS INVOLVING AN ADDITIONAL EXPENDITURE IS NOT AUTHORIZED--- SAID MEANS OF SHIPMENT NOT CONSTITUTING "THE MOST ECONOMICAL MEANS," QUOTING FROM SECTION 5 OF THE PRESIDENT'S REGULATIONS. HOWEVER, SAID SECTION 5 OF THE REGULATIONS RECOGNIZES THAT THERE MAY BE INSTANCES WHERE "IN THE INTEREST OF THE GOVERNMENT," AN EMPLOYEE MAY NEED CERTAIN ARTICLES PRIOR TO THE TIME HE RECEIVES THE REMAINDER OF HIS HOUSEHOLD GOODS AT HIS NEW STATION BY SLOWER MEANS OF TRANSPORTATION; BUT IN SUCH SITUATION REIMBURSEMENT ON THE BASIS OF THE EXPRESS SHIPMENT IS ALLOWABLE ONLY WHEN THE HEAD OF THE DEPARTMENT OR AGENCY SPECIFICALLY AUTHORIZED SUCH MEANS OF SHIPMENT--- AND AS ABOVE SHOWN AN APPROVAL IS NOT EQUIVALENT TO AN AUTHORIZATION. CERTAINLY, IT COULD NOT BE PRESUMED THROUGH ANY RULE OF STATUTORY CONSTRUCTION THAT THE ABSENCE OF THE WORDS,"OR APPROVE" IN CONNECTION WITH EXPRESS SHIPMENTS COVERED BY SECTION 5 OF THE REGULATION WERE WITHOUT MEANING.

ACCORDINGLY, AUDIT ACTION IN THE CASE OF DR. KLEIN, AND SETTLEMENT BY THIS OFFICE IN THE CASE OF DR. PAUL WERE CORRECT. SETTLEMENT AS MADE BY THIS OFFICE IN THE CASE OF DR. WEINBERG WAS NOT CORRECT AND APPROPRIATE ACTION WILL BE TAKEN TO REVISE SAID SETTLEMENT.

REFERRING SPECIFICALLY TO THE QUESTION POSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT THE EXPRESSION SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS APPEARING IN SECTION 5 OF THE EXECUTIVE ORDER MEANS THAT SHIPMENT OF HOUSEHOLD GOODS BY EXPRESS MAY BE AT GOVERNMENT EXPENSE ONLY WHEN SHIPMENT BY THAT MEANS IS AUTHORIZED BY PROPER AUTHORITY IN ADVANCE OF THE SHIPMENT.