B-41137, APRIL 18, 1944, 23 COMP. GEN. 803

B-41137, APRIL 18, 1944, 23 COMP. GEN. 803

DEPARTMENTS AND ESTABLISHMENTS - TRANSFER OF ACTIVITIES - EFFECT UPON SPECIAL APPROPRIATION PROVISIONS THE GENERAL PROVISIONS IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, GRANTING SPECIAL AUTHORITY TO THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT--- INCLUDING THE WAR RELOCATION AUTHORITY- -- FOR THE CONDUCT OF THE WAR PROGRAM OF SAID AGENCIES, CONSTITUTE, IN EFFECT--- EVEN THOUGH CONTAINED IN AN APPROPRIATION ACT- - SUBSTANTIVE PROVISIONS OF LAW WHICH VEST IN THE WAR RELOCATION AUTHORITY WHATEVER AUTHORITY WAS ENCOMPASSED IN SUCH PROVISIONS AT THE TIME THEY WERE ENACTED INTO LAW, SO THAT, UPON SUBSEQUENT TRANSFER BY EXECUTIVE ORDER OF THE AUTHORITY TO THE DEPARTMENT OF INTERIOR, THE POWERS THERETOFORE VESTED IN THE DIRECTOR OF THE WAR RELOCATION AUTHORITY BECAME VESTED IN THE SECRETARY OF INTERIOR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 18, 1944:

I HAVE YOUR LETTER OF MARCH 30, 1944, AS FOLLOWS:

ON FEBRUARY 16, 1944, THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 9423, TRANSFERRING THE WAR RELOCATION AUTHORITY FROM THE OFFICE FOR EMERGENCY MANAGEMENT OF THE EXECUTIVE OFFICE OF THE PRESIDENT TO THE DEPARTMENT OF THE INTERIOR. THE APPROPRIATION FOR THE WAR RELOCATION AUTHORITY FOR THE FISCAL YEAR 1944 IS CONTAINED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944. TITLE I OF THE ACT, IN PARAGRAPH (E) UNDER THE HEADING " GENERAL PROVISIONS," PROVIDES AS FOLLOWS:

"THE HEAD OF ANY CONSTITUENT AGENCY MAY DELEGATE TO ANY OFFICIAL OF SUCH AGENCY OR IN THE FIELD OFFICES OF THE DIVISION OF CENTRAL ADMINISTRATIVE SERVICES THE AUTHORITY TO MAKE APPOINTMENTS OF PERSONNEL AND HE MAY ALSO DELEGATE TO ANY OFFICIAL IN THE AGENCY OF WHICH HE IS THE HEAD THE AUTHORITY TO MAKE OTHER DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT WITHIN SUCH AGENCY.'

THE PHRASE "ANY CONSTITUENT AGENCY" IN THIS PROVISION REFERS TO THE SEVERAL AGENCIES WITHIN THE OFFICE FOR EMERGENCY MANAGEMENT (SEE THE OPENING SENTENCE OF SUBSECTION (A) UNDER THE HEADING " GENERAL PROVISIONS)," AND, THEREFORE, AT THE TIME OF PASSAGE OF THE ACT INCLUDING THE WAR RELOCATION AUTHORITY, WHICH WAS THEN ONE OF THE CONSTITUENT AGENCIES.

YOUR OFFICE HAS HELD THAT THE QUOTED PROVISION, IN ADDITION TO AUTHORIZING DELEGATION BY THE HEAD OF A CONSTITUENT AGENCY OF THE AUTHORITY TO MAKE APPOINTMENTS OF PERSONNEL, PERMITS DELEGATION OF AUTHORITY TO AUTHORIZE TRANSFERS OF OFFICIAL STATION, AND THE PAYMENT OF TRAVEL EXPENSES IN CONNECTION THEREWITH, AND TO AUTHORIZE OR APPROVE THE MOVING OF HOUSEHOLD EFFECTS OF GOVERNMENT EMPLOYEES IN CONNECTION WITH A CHANGE OF OFFICIAL STATION AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE ACT OF OCTOBER 10, 1941. (SEE YOUR DECISION TO THE LIAISON OFFICER FOR EMERGENCY MANAGEMENT, DATED MAY 18, 1943 (B-34392) ).

EXECUTIVE ORDER NO. 9423 SPECIFICALLY PROVIDES THAT "THE FUNCTIONS OF THE DIRECTOR OF THE WAR RELOCATION AUTHORITY ARE TRANSFERRED TO THE SECRETARY OF THE INTERIOR.' THE QUESTION ARISES WHETHER BY VIRTUE OF SUCH TRANSFER THE SECRETARY OF THE INTERIOR IS NOW AUTHORIZED TO MAKE SUCH DELEGATIONS OF AUTHORITY AS THE DIRECTOR OF THE WAR RELOCATION AUTHORITY WAS AUTHORIZED TO MAKE UNDER THE STATUTORY LANGUAGE QUOTED ABOVE. I SUBMIT, FOR THE REASONS STATED BELOW, THAT SUCH DELEGATIONS OF AUTHORITY MAY BE MADE BY THE SECRETARY OF THE INTERIOR.

1. THE TERM,"CONSTITUENT AGENCY" WAS A CONVENIENT WAY OF REFERRING TO THE SEVERAL AGENCIES WITHIN THE OFFICE FOR EMERGENCY MANAGEMENT TO WHICH FUNDS WERE APPROPRIATED BY THE ACT. ITS USE MADE IT UNNECESSARY TO LIST THE NAMES OF ALL THE AGENCIES WHEN IT WAS NECESSARY TO REFER TO ALL OF THEM. THEREFORE, FOR PRESENT PURPOSES, PARAGRAPH (E) MAY BE REGARDED AS READING," THE HEAD OF THE WAR RELOCATION AUTHORITY MAY DELEGATE," ETC. SINCE THE ISSUANCE OF EXECUTIVE ORDER NO. 9423, THE HEAD OF THE WAR RELOCATION AUTHORITY IS THE SECRETARY OF THE INTERIOR, WHO, THEREFORE, MAY MAKE SUCH DELEGATIONS OF AUTHORITY AS ARE AUTHORIZED BY PARAGRAPH (E).

2. THE AUTHORITY CONTAINED IN PARAGRAPH (E) WAS GRANTED BY THE CONGRESS FOR THE PURPOSE OF EXPEDITING THE WAR PROGRAMS OF THE AGENCIES INVOLVED. (SEE THE LEGISLATIVE HISTORY STATED IN YOUR DECISION OF MAY 18, 1943, TO THE LIAISON OFFICER FOR EMERGENCY MANAGEMENT). THE TRANSFER OF ANY SUCH AGENCY FROM THE OFFICE FOR EMERGENCY MANAGEMENT TO ONE OF THE REGULAR DEPARTMENTS OF THE GOVERNMENT DOES NOT LESSEN THE NEED FOR EXPEDITION IN CARRYING OUT THE PROGRAM INVOLVED.

3. THE ADMINISTRATION OF A WAR PROGRAM IS LIKELY TO INVOLVE A RELATIVELY LARGE NUMBER OF TRANSFERS OF OFFICIAL STATION, AND CERTAINLY REQUIRES THE MAKING OF A LARGE NUMBER OF "OTHER DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT" OF THE AGENCY. IF SUCH MATTERS CANNOT BE DELEGATED TO APPROPRIATE OFFICERS, THEY WILL IMPOSE AN UNDUE BURDEN ON THE HEAD OF THE PROGRAM AND REQUIRE HIM TO DIVERT TIME TO THEM WHICH CAN MORE PROFITABLY BE SPENT ON OTHER MATTERS. THIS WOULD SEEM TO BE ONE OF THE REASONS WHY PARAGRAPH (E) WAS INSERTED IN THE ACT. THIS BURDEN IS NOT LESSENED BY A TRANSFER OF A WAR PROGRAM FROM THE OFFICE FOR EMERGENCY MANAGEMENT TO A REGULAR DEPARTMENT OF THE GOVERNMENT; NOR IS IT LESS IMPORTANT THAT THE HEAD OF SUCH DEPARTMENT BE NOT UNDULY BURDENED BY SUCH DELEGABLE DETERMINATIONS.

4. WHEN RESPONSIBILITY FOR THE EXPENDITURE OF AN APPROPRIATION IS TRANSFERRED FROM ONE GOVERNMENT AGENCY TO ANOTHER, LIMITATIONS APPLICABLE TO THE EXPENDITURE OF SUCH APPROPRIATION USUALLY CONTINUE TO APPLY. IT IS SUBMITTED THAT ADMINISTRATIVE AUTHORITY ATTACHING ORIGINALLY TO THE EXPENDITURE OF ANY SUCH APPROPRIATION ALSO CONTINUES IN EFFECT AFTER THE TRANSFER IN THE ABSENCE OF A CLEAR INDICATION TO THE CONTRARY. IN EITHER CASE, THE RESULT IS EXPENDITURE OF THE APPROPRIATION IN ACCORDANCE WITH THE INTENT EXPRESSED BY THE CONGRESS WHEN THE APPROPRIATION WAS MADE AVAILABLE.

WILL YOU ADVISE WHETHER YOU CONCUR IN THE VIEWS HEREIN EXPRESSED? EARLY REPLY WILL BE APPRECIATED.

IT IS NOTED THAT PARAGRAPH (E) QUOTED IN YOUR LETTER IS BUT ONE OF SEVERAL GENERAL PROVISIONS CONTAINED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, APPROVED JULY 12, 1943, 57 STAT. 535, 536, APPLICABLE TO THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT. ALTHOUGH CONTAINED IN AN APPROPRIATION ACT SUCH GENERAL PROVISIONS CONSTITUTE, IN EFFECT, SUBSTANTIVE PROVISIONS OF LAW GRANTING CERTAIN SPECIFIC AUTHORITY TO SUCH CONSTITUENT AGENCIES. AND SINCE THE WAR RELOCATION AUTHORITY WAS ESTABLISHED AS ONE OF THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT BY EXECUTIVE ORDER 9102, DATED MARCH 18, 1942--- AND WAS SO CONSTITUTED AT THE TIME THE PROVISIONS IN QUESTION WERE ENACTED--- IT FOLLOWS THAT WHATEVER AUTHORITY WAS ENCOMPASSED IN SUCH PROVISIONS VESTED IN THE WAR RELOCATION AUTHORITY AT THE TIME SAID PROVISIONS WERE ENACTED INTO LAW. HENCE, THE ONLY QUESTION FOR DETERMINATION IS WHETHER THE TRANSFER OF THE AUTHORITY TO THE DEPARTMENT OF THE INTERIOR BY EXECUTIVE ORDER 9423, DATED FEBRUARY 16, 1944, OPERATES TO DIVEST SAID AGENCY OF SUCH AUTHORITY.

AS STATED IN YOUR LETTER, THE AUTHORITY CONTAINED IN THE QUOTED GENERAL PROVISION APPEARS TO HAVE BEEN GRANTED BY THE CONGRESS TO THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT--- INCLUDING THE WAR RELOCATION AUTHORITY--- FOR THE PURPOSE OF EXPEDITING THE WAR PROGRAMS OF THE AGENCIES INVOLVED. THAT IS TO SAY, SUCH AUTHORITY ATTACHED TO SUCH AGENCIES AND WAS DESIGNED TO FACILITATE PERFORMANCE OF THE FUNCTIONS OF SUCH AGENCIES IN CONNECTION WITH THE WAR PROGRAM. SUCH BEING THE CASE, IT WOULD NOT BE REASONABLE TO ATTRIBUTE TO THE CONGRESS AN INTENT TO IMPOSE UPON THE SPECIAL AUTHORITY THUS VESTED IN THE SEVERAL AGENCIES A CONDITION TO THE EFFECT THAT THE SAID AUTHORITY COULD BE EXERCISED ONLY SO LONG AS THE AGENCIES REMAINED AS CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT.

SINCE THE TRANSFER OF THE WAR RELOCATION AUTHORITY APPEARS TO HAVE BEEN ACCOMPLISHED IN A MANNER AUTHORIZED BY LAW--- NAMELY, PURSUANT TO THE FIRST WAR POWERS ACT, 1941--- I HAVE TO ADVISE THAT THIS OFFICE CONCURS IN THE VIEWS EXPRESSED IN YOUR LETTER, SUPRA, IN RESPECT OF THE CONTINUANCE IN THE AUTHORITY OF THE POWER VESTED THEREIN UNDER THE " GENERAL PROVISIONS" CONTAINED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, AND THAT THE POWERS HERETOFORE VESTED IN THE DIRECTOR OF THE WAR RELOCATION AUTHORITY, IN THE MATTER OF THE CARRYING OUT OF ITS FUNCTIONS, NOW ARE VESTED IN THE SECRETARY OF THE INTERIOR.