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Mr. MERIAM. Yes; that is my statement. It is not proposed to be a statement of a constitutional lawyer, which I tried to make perfectly plain in the opening paragraph.

Representative VINSON. I thought I heard you refer to some practice when the Articles of Confederation were the basis of power for our Colonial Government.

Mr. MERIAM. I was just going back into our early history. In the early history, up to the time the present Government was established, the Congress did control it by its own committees.

Representative VINSON. In other words, Congress retained control upon the expenditures of the Executive.

Mr. MERIAM. Yes, sir.

Representative VINSON. That is correct, is it not?
Mr. MERIAM. Yes, sir.

Representative VINSON. Now, was that matter gone into by the constitutional fathers when the Constitution was adopted, in the constitutional debate?

Mr. MERIAM. Mr. Selko is more familiar with the constitutional debates than I am.

Representative VINSON. Is there any question in your mind about that matter being before the Constitutional Convention?

Mr. SELKO. I do not think there is any reason to believe it was not. Representative VINSON. Well, it was a practice that grew up based upon the Articles of Confederation?

Mr. SELKO. Yes.

Representative VINSON. And it was debated, as a matter of fact, in the constitutional committee?

Mr. SELKO. That is my understanding.

Representative VINSON. And it was rejected; is that not correct? Mr. SELKO. Yes.

Representative VINSON. Do you recall the connection in which that debate occurred in the constitutional convention?

Mr. SELKO. I do not.

Representative VINSON. You do not recall whether it grew around the Treasury of the United States?

Mr. SELKO. No, sir; I do not.

Representative VINSON. And the question of Congress being in control of the Treasury?

Mr. SELKO. No, sir; I do not.

Representative VINSON. But when the Constitution was written and the United States Treasurer started functioning, Congress had no control over the expenditures through the Treasurer or anyone else?

Mr. SELKO. I would not exactly agree with that, sir. Congress, under the Constitution and the act of September 2, 1789, established a system which was designed to provide independent control of the expenditures of the executive branch.

Representative VINSON. In what way?

Mr. SELKO. They established, in the first place, a Secretary of the Treasury who was responsible for the issuance of all orders on the Treasury of the United States.

Representative VINSON. And he is purely an executive officer?

Mr. SELKO. Yes, sir; but the actual issuance of that money was delayed, pending the countersignature of the warrant, or order issuing the money, by the Comptroller of the Treasury.

Representative VINSON. And he was purely an executive officer? Mr. SELKO. Yes, sir.

Senator BARKLEY. And made no reports to Congress-was not subject to congressional appointment?

Mr. SELKO. No, sir; he made no report to Congress.

Senator BARKLEY. Or appointed by the President, with the consent of the Senate, like all others?

Mr. SELKO. No, sir.

Representative VINSON. Let us get this straight. I think we can save some time.

Mr. SELKO. All right.

Representative VINSON. Up until 1921, 132 years after the Constitution was ratified, even though the Articles of Confederation had apparently justified the control by the legislative branch of the expenditures by the executive branch, for 132 years Congress never attempted to control, through a legislative office, the expenditures by the Executive?

Mr. SELKO. That is right.

Representative VINSON. Now, some place in the remarks of the gentleman I caught it that he said Congress could do one of two things-that Congress could retain control either to itself in regard to audits, or place it in the Executive.

Mr. SELKO. That is our understanding.

Representative VINSON. Now, do you know of any reason that could be given to invalidate an act of Congress placing the control of the expenditures in the executive branch of the Government?

Mr. SELKO. No, sir; I think that is entirely up to Congress.

Representative VINSON. Yes, sir. Now, then, I want you to tell me upon what power you suggest that Congress may set up a legislative office or agency and retain control over executive expenditures. Wherein lies the power for Congress to do that?

Mr. SELKO. I would like to preface my remarks, too, by the statement that I am not a constitutional lawyer.

Representative VINSON. Are you a lawyer?

Mr. SELKO. No, sir; I have had no law courses at all, but it appears to me that in that article of the Constitution which makes the grant of powers to Congress, article I, the existence of the distinct prohibition that no money shall be expended from the Treasury except in consequence of an appropriation made by law makes clear the relation between the expenditure of money from the Treasury and the appropriation of money by Congress.

Representative VINSON. I get your viewpoint. Now, what opinion of any court would substantiate your theory of the law?

Mr. SELKO. I am unable to say, sir, because, to my knowledge, we have had no court decision on this question.

Representative VINSON. Don't you rely, in this report no. 5, Investigation of Executive Agencies of the Government, presented by your institution-don't you rely on the Humphreys' case?

Mr. SELKO. I believe Mr. Meriam made clear the position we take in regard to the Humphreys' case.

Representative VINSON. That is one of the things upon which you rely, is it not?

Mr. MERIAM. No, sir.

Mr. SELKO. I think Mr. Meriam's statement was that we did not feel that the Humphreys' case bore squarely on the issue.

Representative VINSON. Of course it does not, but as I read that report it occurred to me that that was the only Supreme Court decision to which you referred that even hinted at their being a power in the Congress to control Executive expenditures.

Mr. SELKO. I believe Mr. Meriam also referred to the Myers case. Representative VINSON. Let us take one case at a time. Let us take the Humphreys' case. Now, there you did not have an executive officer, did you?

Mr. MERIAM. We had a quasi-judicial officer.

Representative VINSON. And quasi-legislative?

Mr. MERIAM. Yes, sir.

Representative VINSON. There was no question, as far as the opinion was concerned, of the Federal Trade Commission being an executive?

Mr. MERIAM. Yes, sir.

Representative VINSON. What do you classify the present Comptroller General?

Mr. MERIAM. I should say that the present Comptroller General, insofar as he is interpreting the acts of Congress, is more in the nature of a quasi-judicial officer than anything else.

Senator BARKLEY. Is he more so than the Comptroller of the Treasury was?

Mr. MERIAM. No, sir. Both the Comptroller of the Treasury and the Comptroller General were given the power to make a final decision from which there was no appeal by any administrative officer. Senator BARKLEY. We did not make either of those officers legislative officers.

Mr. MERIAM. As far as we can find out, there has been no decision whatsoever in the courts as to what the powers of the Congress are in this respect.

I

Representative VINSON. This is a sort of a new thought to me. have heard the Comptroller General referred to as a legislative officer, I have heard him referred to as an executive officer, but I do not just recall having him classified as a quasi-judicial officer. Now, as a matter of fact, what he does is to determine matters that are within the control and power of the executive branch of the Government, is it not?

Mr. MERIAM. No, sir.

Representative VINSON. Let us see if our minds are together on that. Is that correct?

Mr. MERIAM. If you will restate it, sir, I will try to answer. Representative VINSON. That his actions have to do with the transactions in executive branches of the Government.

Mr. MERIAM. Yes, sir. Hs is passing on the legality of those transactions; yes, sir.

Representative VINSON. And he is making preaudits?

Mr. MERIAM. Yes, sir; on the legality.

Representative VINSON. Preaudits in matters that are within the Executive power.

Mr. MERIAM. They all rise from the executive departments, everyone of them.

Representative VINSON. About the only reason that I could figure out under the act that would make him legislative was the provision that nobody could decapitate him, he could only be removed by joint action, I believe, of the House and Senate, is that not correct? Mr. MERIAM. That was the provision in the act.

Representative VINSON. Now, let us get to your Myers case. That was an act, as I recall it, that was passed in 1867 that had to do with. postmasters.

Mr. MERIAM. Yes.

Representative VINSON. And they said that the President could not fire the postmasters unless it was by and with the advice and consent of the Senate, is that not correct?

Mr. MERIAM. Yes.

Representative VINSON. That stayed on the books from 1867 until 1920 or 1930, but when the court passed on that case they said Congress did not have any power to follow an appointment of a man in the executive branch of the Government and then say, "Mr. President, you do not have control of the executive branch, we retain the veto power."

Mr. MERIAM. If you recall that case, sir, you will find in that case that Mr. Justice Taft, in delivering the opinion of the Court, recognized very clearly in the decision that there are certain positions with which, by virtue of their quasi-judicial character, it is entirely improper for the Executive to interfere.

Representative VINSON. You do not have to rely on the Myers case for that; you can take the Humphreys case for that.

Mr. MERIAM. Yes, sir. The Humphreys case goes further.

Representative VINSON. The Supreme Court goes further and said that a member of the Federal Trade Commission, which was quasijudicial and quasi-legislative, could not be summarily dismissed.

Senator BARKLEY. In addition to that, the Federal Trade Commission Act had conditions under which the members might be removed, and those conditions the Court held had not been met.

The CHAIRMAN. The basis of the decision is that the member of the legislative committee is acting in a quasi-legislative and quasijudicial capacity. Then we naturally come back to the question of whether, in law, an auditor general is a legislative or an executive officer.

Representative VINSON. This witness says he is a quasi-judicial

officer.

Senator BYRNES. Mr. Chairman, the language of the court in the Humphreys case was that that agency was wholly disconnected from the executive branch of the Government.

May I ask you one question? What was the language of the Constitution upon which you base your opinion? I did not get it. Mr. SELKO. I do not know, sir, that I can quote it verbatim, but in substance, it is this: No expenditure shall be made from the Treasury except in consequence of an appropriation under the law.

Senator BYRNES. Are you familiar with the Collins case in the Court of Claims construing that language?

Mr. SELKO. No, sir.

Senator BYRNES. The Court of Claims in the Collins case, reported in 15 Court of Claims 22, at page 35, in construing that language, said this [reading]:

That provision of the Constitution is exclusively a direction to the officers of the Treasury who are entrusted with the safekeeping and payment of the public money.

Senator BARKLEY. That simply means unless Congress appropriates money to carry on a bureau or an activity, the executive agency has no right to carry it on. That does not mean everybody who is connected with that expenditure in that department is thereby made an agent of Congress in the carrying out of the appropriation

act.

Mr. SELKO. No, sir. Our position on that matter is simply this: We feel an officer, in carrying out the terms of an appropriation act, is himself responsible for complying with the terms of that act.

Senator BARKLEY. And he may be dealt with according to the manner in which he has translated the act.

Mr. SELKO. And that Congress, in making that act, has authority, if it wants to assume that authority, for seeing that the terms of the act are complied with.

The CHAIRMAN. That is the very question. Once an act is passed by the Congress what power has the legislature to pursue it and see that it is carried out? Whose duty is it to enforce the law? The Constitution expressly vests that duty in the Executive. So, after Congress passes an act, it may obtain all the information that it desires or can secure, it may impose conditions to an appropriation, but when the appropriation has been made the legislative authority has been exhausted, according to the well-established theory of the law applicable to the subject. The fact that nobody has tested the power of the executive to remove the Comptroller General is responsible for the want of a decision by the Supreme Court, and if a case went up under that statute the first question the Supreme Court or any other court would answer would be whether that officer is primarily a legislative or an executive officer, and if they hold that he is concerned with the enforcement of the law, with the carrying out of the will of Congress, no matter what you call him, he is an executive or administrative officer and not a legislative officer. If he is not primarily concerned with the enactment of law, or with the application of principles clearly defined by the Congress, he is an executive officer. There is no doubt in my mind that if a test is ever made of the provision that we enacted in 1921 that the Supreme Court, not only this Court but any court, would hold that that power of removal is in the executive and not in the legislative branch, and that you cannot, by merely calling him a legislative officer, retain the power to remove him.

If he is a legislative officer, as under the Humphreys case, you can attach conditions to his removal. If he is not a legislative officer the sole power of removal is in the Executive.

Senator BYRD. Was that discussed, do you recall, in the debate when the General Accounting Act was passed in 1921?

The CHAIRMAN. I think it was. I think the question of the power of Congress was gone into, particularly in the House of Representatives. There was also some discussion of it in the Senate.

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