B-45453, DECEMBER 7, 1944, 24 COMP. GEN. 436

B-45453, DECEMBER 7, 1944, 24 COMP. GEN. 436

PERMANENCY OF LEGISLATION; FURLOUGH TRAVEL OF WOUNDED AND DISABLED SOLDIERS, SAILORS, AND MARINES AT REDUCED RATES PURSUANT TO 1 U.S.C. 54 (A), THE CONTENTS OF THE U.S.C. HAVE ONLY A PRIMA FACIE EFFECT, AND THE QUESTION OF WHETHER A STATUTORY PROVISION IS STILL IN EFFECT IS FOR CONSIDERATION UNDER THE PRINCIPLES OF STATUTORY CONSTRUCTION WITHOUT REGARD TO THE FACT THAT IT HAS BEEN INCLUDED IN THE CODE. A PROVISION CONTAINED IN AN ANNUAL APPROPRIATION ACT MAY NOT BE CONSTRUED TO BE PERMANENT LEGISLATION UNLESS THE LANGUAGE USED THEREIN OR THE NATURE OF THE PROVISION RENDERS IT CLEAR THAT SUCH WAS THE INTENTION OF CONGRESS. USUALLY WHEN THE WORD "HEREAFTER" OR OTHER WORDS INDICATING FUTURITY ARE USED IN A PROVISION CONTAINED IN AN ANNUAL APPROPRIATION ACT, OR WHEN THE PROVISION IS OF A GENERAL CHARACTER BEARING NO RELATION TO THE OBJECT OF THE APPROPRIATION, THE PROVISION MAY BE CONSTRUED TO BE PERMANENT LEGISLATION. THE PROVISION IN THE MILITARY APPROPRIATION ACT FOR THE FISCAL YEAR OF 1921, AUTHORIZING A PROCEDURE FOR THE TRANSPORTATION, AT THE RATE OF 1 CENT PER MILE, OF WOUNDED AND OTHERWISE DISABLED SOLDIERS, SAILORS, AND MARINES WHEN TRAVELING TO AND FROM THEIR HOMES ON FURLOUGH, AND FOR REIMBURSING CARRIERS THE DIFFERENCE BETWEEN THE ONE-CENT RATE AND THE REGULAR SCHEDULED RATE, IS PERMANENT LEGISLATION; HOWEVER, NO CURRENT APPROPRIATION OF THE WAR DEPARTMENT IS AVAILABLE FOR DEFRAYING EXPENSES IN CONNECTION WITH SUCH TRANSPORTATION, IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 7, 1944:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1944, AS FOLLOWS:

THE WAR DEPARTMENT HAS RECEIVED AN INQUIRY CONCERNING THE PRESENT RIGHTS OF SERVICE MEN UNDER THE PROVISIONS OF THAT PORTION OF THE ACT OF JUNE 5, 1920, 41 STAT. 975; 10 U.S.C. 758, ENTITLED ,AN ACT MAKING APPROPRIATIONS FOR THE SUPPORT OF THE ARMY FOR THE FISCAL YEAR ENDING JUNE 30, 1921, AND FOR OTHER PURPOSES," READING AS FOLLOWS:

"THE SECRETARY OF WAR (AND THE SECRETARY OF THE NAVY,), UNDER SUCH REGULATIONS AND RESTRICTIONS AS (THEY) MAY PROVIDE, IS (ARE) AUTHORIZED TO ISSUE TO ALL WOUNDED AND OTHERWISE DISABLED SOLDIERS (SAILORS, OR MARINES) UNDER TREATMENT IN ANY ARMY ( NAVY) OR OTHER HOSPITAL, WHO ARE GIVEN FURLOUGHS AT ANY TIME, A FURLOUGH CERTIFICATE WHICH CERTIFICATE SHALL BE SIGNED BY THE COMMANDING OFFICER AT SUCH HOSPITAL. THIS FURLOUGH CERTIFICATE WHEN PRESENTED BY SUCH FURLOUGHED SOLDIER (SAILOR, OR MARINE) TO THE AGENT OF ANY RAILROAD OR STEAMSHIP COMPANY OVER WHOSE LINES SAID SOLDIER (SAILOR, OR MARINE) MAY TRAVEL TO AND FROM HIS HOME DURING THE FURLOUGH PERIOD SHALL ENTITLE SAID SOLDIER (SAILOR, OR MARINE) TO PURCHASE A TICKET FROM THE POINT OF DEPARTURE TO POINT OF DESTINATION AND RETURN AT THE RATE OF 1 CENT PER MILE, AND ON PRESENTATION OF SUCH CERTIFICATE ON WHICH SUCH TICKET HAS BEEN ISSUED THE RAILROAD OR STEAMSHIP COMPANY ISSUING SUCH TICKET SHALL BE ENTITLED TO RECEIVE FROM THE TREASURY OF THE UNITED STATES THE DIFFERENCE BETWEEN THE AMOUNT PAID FOR SUCH TICKET AT THE RATE OF 1 CENT PER MILE AND THE REGULAR SCHEDULED RATE FOR SUCH TICKET.'

THE ABOVE PROVISION OF LAW ORIGINALLY WAS INCLUDED AS A PART OF THE ANNUAL MILITARY APPROPRIATION ACT FOR THE FISCAL YEAR 1921, AND AN APPROPRIATION IN THE SUM OF $250,000 WAS PROVIDED TO CARRY IT INTO EXECUTION. IT WILL BE NOTED THAT FOR THE FISCAL YEAR 1922 THE SUM OF $35,000 WAS APPROPRIATED IN THE MILITARY APPROPRIATION ACT FOR THAT YEAR, 42 STAT. 94, BY A MERE REFERENCE TO THE BASIC AUTHORITY CONTAINED IN THE 1921 APPROPRIATION ACT, THAT IS TO SAY THE FUNDS SO APPROPRIATED BY THE LATTER ACT WERE MADE AVAILABLE FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THE ACT OF JUNE 5, 1920, 41 STAT. 975, 976.

ATTENTION IS ALSO INVITED TO THE FACT THAT THE PROVISION OF LAW ABOVE QUOTED, CONTAINED IN THE 1921 MILITARY APPROPRIATION ACT, HAS BEEN CONSOLIDATED AND CODIFIED IN THE U.S.C. AS ONE OF THE "GENERAL AND PERMANENT LAWS OF THE UNITED STATES," AND IS CURRENTLY BEING CARRIED AS ONE OF THE SEVERAL LAWS PROVIDING FOR PRIVILEGES, RIGHTS AND BENEFITS TO VETERANS IN SENATE DOCUMENT 152, 78TH CONGRESS, 2D SESSION, ON PAGE 39 THEREOF.

WHILE NO FUNDS WERE APPROPRIATED FOR THE FISCAL YEAR 1923 OR THEREAFTER, DOUBTLESS BECAUSE THE NEED FOR SUCH LEGISLATION HAD PASSED SINCE BY THAT DATE THE VETERANS ADMINISTRATION HAD ASSUMED JURISDICTION OF ALL DISABLED SOLDIERS, SAILORS AND MARINES, IT WOULD APPEAR BY REFERENCE TO THE ABOVE THAT THE PROVISION OF LAW IN QUESTION MIGHT BE VIEWED AS ONE OF PERMANENT LEGISLATION AND THEREFORE AVAILABLE TO SUPPORT THE ISSUANCE BY THE WAR DEPARTMENT OF ADMINISTRATIVE REGULATIONS TO IMPLEMENT ITS AUTHORITY TO COVER THE VETERANS IN THE PRESENT WAR UNDER THE CIRCUMSTANCES SPECIFIED. HOWEVER, THE QUESTION IS NOT ONE ENTIRELY FREE OF DOUBT, AND IN ORDER THAT IT MAY BE DEFINITELY SETTLED BEFORE REGULATIONS AND INSTRUCTIONS ARE PREPARED IN THE PREMISES, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) IS THE AUTHORITY OF LAW CONTAINED IN THE ACT OF JUNE 5, 1920, QUOTED IN THE FIRST PARAGRAPH HEREOF, PERMANENT LEGISLATION?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, IS THE APPROPRIATION " TRAVEL OF THE ARMY," CONTAINED IN THE CURRENT MILITARY APPROPRIATION ACT UNDER " FINANCE SERVICE, ARMY," PROPERLY CHARGEABLE WITH THE DIFFERENCE BETWEEN THE REGULAR SCHEDULED COST OF TRANSPORTATION AND THE RATE AUTHORIZED BY THE ACT IN QUESTION?

(3) IF YOUR ANSWER TO QUESTION TO (2) IS IN THE NEGATIVE, ARE ANY OF THE APPROPRIATIONS CURRENTLY AVAILABLE TO THE WAR DEPARTMENT AVAILABLE TO DEFRAY THE COST INVOLVED IN FURNISHING TRANSPORTATION UNDER THE CITED ACT, OR MAY A DEFICIENCY BE INCURRED UNDER ANY OF THE CURRENT APPROPRIATIONS AVAILABLE TO THE WAR DEPARTMENT FOR THIS PURPOSE?

SUBSECTION (A) OF SECTION 54, TITLE 1, U.S. CODE, PROVIDES, IN SUBSTANCE, THAT THE CONTENTS OF THE CODE SHALL HAVE ONLY A PRIMA FACIE EFFECT. ACCORDINGLY, THE QUESTION WHETHER THE STATUTORY PROVISION QUOTED IN YOUR LETTER IS STILL IN EFFECT IS FOR CONSIDERATION UNDER THE PRINCIPLES OF STATUTORY CONSTRUCTION WITHOUT REGARD TO THE FACT THAT IT HAS BEEN INCLUDED IN THE CODE (10 U.S. CODE 758 AND 34 U.S.C. 894A, ACT OF JUNE 5, 1920, 41 STAT. 975).

IT IS A WELL-ESTABLISHED RULE THAT A PROVISION CONTAINED IN AN ANNUAL APPROPRIATION ACT MAY NOT BE CONSTRUED TO BE PERMANENT LEGISLATION UNLESS THE LANGUAGE USED THEREIN OR THE NATURE OF THE PROVISION RENDERS IT CLEAR THAT SUCH WAS THE INTENTION OF THE CONGRESS. USUALLY WHEN THE WORD ,HEREAFTER" OR OTHER WORDS INDICATING FUTURITY ARE USED, OR WHEN PROVISION IS OF A GENERAL CHARACTER BEARING NO RELATION TO THE OBJECT OF THE APPROPRIATION, THE PROVISION MAY BE CONSTRUED TO BE PERMANENT LEGISLATION. 5 COMP. GEN. 810; 10 ID. 120. IT IS NOTED THAT THE PROVISION HERE INVOLVED CONTAINS LANGUAGE MAKING IT APPLICABLE TO OTHERWISE ELIGIBLE SOLDIERS, SAILORS AND MARINES "WHO ARE GIVEN FURLOUGHS AT ANY TIME," WHICH LANGUAGE TO SOME EXTENT WOULD SUPPORT A CONCLUSION THAT THE PROVISION IS PERMANENT LEGISLATION. ALSO, IT IS TO BE OBSERVED THAT THE LANGUAGE OF THE SAID PROVISION IS NOT, IN ITS PHRASEOLOGY, A RESTRICTION ON THE USE OF THE APPROPRIATION BUT IS A POSITIVE PROVISION AUTHORIZING THE SECRETARY OF WAR TO TAKE THE ACTION SPECIFIED THEREIN. FURTHERMORE, AS INDICATED IN THE ABOVE QUOTED LETTER, THE MILITARY APPROPRIATION ACT, 1922, CONTAINS THE FOLLOWING PROVISION (42 STAT. 94):

FOR PAYMENT TO RAILROAD AND STEAMSHIP COMPANIES OF THE AMOUNT REQUIRED TO PAY THE DIFFERENCE BETWEEN 1 CENT PER MILE AND THE SCHEDULED RATE FOR TICKETS FURNISHED TO WOUNDED OR OTHERWISE DISABLED SOLDIERS, SAILORS, OR MARINES UNDER TREATMENT AT ANY ARMY, NAVY, OR OTHER HOSPITAL, WHO ARE GIVEN FURLOUGHS IN ACCORDANCE WITH THE PROVISIONS OF THE ARMY APPROPRIATION ACT OF JUNE 5, 1920, $35,000.

THE FACT THAT THE CONGRESS ENACTED THE QUOTED PROVISION OF THE 1922 APPROPRIATION ACT INDICATES A CONGRESSIONAL BELIEF THAT THE INVOLVED PROVISION OF THE ACT OF JUNE 5, 1920, WAS PERMANENT LEGISLATION, AND THE USE OF THE WORDS "AT ANY TIME" IN THE ORIGINAL STATUTE IS INCONSISTENT WITH AN INTENTION TO CONFINE THE AUTHORITY TO THE FISCAL YEAR ENDING JUNE 30, 1921. IN THIS CONNECTION SEE 27 COMP. DEC. 351, WHEREIN IT WAS HELD THAT THE PROVISION IN QUESTION WAS EFFECTIVE AS OF THE DATE OF THE APPROVAL OF THE ACT, AND NOT AS OF THE BEGINNING OF THE FISCAL YEAR 1921. IN VIEW OF THE/FOREGOING, I AM INCLINED TO AGREE THAT THE PROVISION IS PERMANENT LEGISLATION AND, ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

HOWEVER, THERE APPEARS TO BE NO APPROPRIATION AVAILABLE FOR THE PURPOSE OF DEFRAYING THE EXPENSE WHICH WOULD BE INCURRED IN FURNISHING TRANSPORTATION UNDER THE PROVISION OF THE ACT OF JUNE 5, 1920, QUOTED IN YOUR LETTER. THE APPROPRIATION " TRAVEL OF THE ARMY" IN THE MILITARY APPROPRIATION ACT, 1945, PUBLIC LAW 374, 78TH CONGRESS, PAGE 4, DOES NOT APPEAR TO INCLUDE ANY PROVISION FOR PAYMENT OF SUCH EXPENSES GENERALLY, ALTHOUGH IT IS NOTED THAT THE SAID APPROPRIATION PROVIDES FOR PAYMENT OF "ALL NECESSARY EXPENSES OF TRAVEL TO ENABLE MILITARY PERSONNEL STATIONED ABROAD TO VISIT IN THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS FOR THE PURPOSE OF RECUPERATION, REHABILITATION AND RECOVERY.' UNDER THE PRINCIPLE OF "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS," THE EXISTENCE OF THE ABOVE-QUOTED PROVISION RELATIVE TO EXPENSES OF MILITARY PERSONNEL STATIONED ABROAD APPEARS TO NEGATIVE ANY CONGRESSIONAL INTENTION THAT FUNDS APPROPRIATED IN THE SAID MILITARY APPROPRIATION ACT, 1945, SHOULD BE AVAILABLE FOR THE PURPOSE OF DEFRAYING THE EXPENSE WHICH WOULD BE INCURRED IN FURNISHING TRANSPORTATION UNDER THE SUBJECT ACT OF JUNE 5, 1920. LIKEWISE, THERE IS NOT PERCEIVED ANY SOUND BASIS FOR INCURRING A DEFICIENCY UNDER ANY CURRENT APPROPRIATION AVAILABLE TO THE WAR DEPARTMENT. THE FACT THAT THE CONGRESS MADE SPECIFIC APPROPRIATIONS FOR THE YEARS 1921 AND 1922, AS ABOVE SET OUT, AND HAS MADE NO PERTINENT APPROPRIATION SINCE THAT TIME MUST BE HELD TO REFLECT A CONGRESSIONAL INTENTION THAT FUNDS SHALL NOT BE AVAILABLE FOR FURNISHING TRANSPORTATION UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1920, QUOTED IN YOUR LETTER, UNLESS SPECIFICALLY APPROPRIATED THEREFOR. ACCORDINGLY, YOUR SECOND AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE.