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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. 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.
Representative VINSON. This is a sort of a new thought to me. I 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 ?
Representative Vixson. 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, recog. nized 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.
Representative Vinson. Did not a veto message in the Congress precede the discussion, when it passed upon it!
Senator BYRNES. That is correct. As the result of the veto of President Wilson there was a discussion.
The CHAIRMAN. And it was generally conceded in the Senate that the President's veto was sustained by the argument.
Senator O'MAHONEY. I should like to call attention to item 5, in column 3, on the list sent up by the witness in which it appears that the witness is recommending the approval of contracts by the Auditor General. I should like to obtain the opinion of the witness as to what sort of a function that is, executive, judicial, or legislative.
Mr. MERIAM. The question of the approval of a contract is whether the procedure laid down by Congress governing the making of that contract has been followed. The wisdom of making the contract is not passed upon by the Comptroller General. The illegality of it is passed upon by the Comptroller General. If the laws call for opeu competitive bidding the Comptroller General will see that open colupetitive bidding has taken place.
Senator O'MAHONEY. Is that not an executive function?
Senator BARKLEY. Is the function the same as that performed by the Attorney General if he is asked his legal opinion on a given state of facts, or the attorney or solicitor of any department who is asked an opinion on that? That does not make it legislative, does it?
Mr. MERIAM. Well, from our point of view that would be in the nature of a quasi-judicial act.
Senator BARKLEY. Every act performed by any legal adviser of any department as to the legality of a certain course of procedure may be called a quasi-judicial act, but it is, nevertheless, executive or administrative.
Representative Vinson. Did you make response to Senator O'Mahoney's question !
Mr. MERIAM. I think I did, Senator. If I haven't answered it sufficiently I would be glad to do so.
Representative VINSON. You haven't answered it to my satisfaction. I would like to know just what sort of an act that is, where you have the approval of a contract. Is that executive, judicial, or legislative?
Mr. MERIAM. The question in our judgment is that the law provides that certain procedure must be gone through in connection with the making of that contract. The Comptroller General passes on the question of whether that procedure has been observed. If that procedure has been observed the contract is entirely legal and binding. If that procedure has not been observed the executive officers have exceeded their authority, have gone beyond their power, and they have entered into a contract in a way that was never authorized by Congress and therefore the money was not used in the way in which the money was appropriated.
Representative Vinson. Was it an executive, judicial, or legislative act? It has got to be one of the three, certainly.
Mr. MERIAM. In the case of where they are passing on the legality in that respect it becomes in nature a quasi-judicial decision.
Senator O'MAHONEY. May I say in this connection, Mr. Vinson, I was satisfied before, from the witness's answer, that he has not
explained away the obvious executive character of the act, and it cannot be explained away, in my opinion.
The CHAIRMAN. You have no doubt that the item to which you have referred is an executive act rather than a legislative act?
Senator O’MAHONEY. None whatever. Of course, it is executive.
Mr. SELKO. Mr. Chairman, my statement was to take exception to the point of view which Senator O’Mahoney first raised. I feel, and the feeling of the Institution is, that when the Comptroller General disapproves a contract as being not in accordance with the provisions as set down in the Appropriation Act and the procedure as set down by law, he is not performing an executive action, because he has no authority to carry out his decision. He merely points out to the administrative officer that this contract does not have, in his opinion, the sanction of law.
Senator O’MAHONEY. Is that any less an executive act than the opinion of the Attorney General, let us say, given to the Commissioner of Indian Affairs with respect to the interpretation of a law of Congress defining the powers of the Commissioner of Indian Affairs?
Mr. SELKO. No, sir.
Senator BYRNES. How about the Treasury, which furnishes the furniture, and the Treasury determines, when the bids are filed, that the lowest bidder is not the responsible' bidder and awards the contract to the next lowest bidder, and it comes to the Comptroller and he acts on it; is that an executive action in disapproving the action of the Treasury in not giving it to the lowest bidder and giving it to the next lowest bidder?
Mr. SELKO. No, sir. In our opinion, it is not executive action.
Mr. SELKO. I would say, as Mr. Meriam has said, when that action partakes of a judicial character that it is, therefore, a quasi-judicial action. It is not an executive action, because it is not an act of an executive officer carrying out his particular authority as given him by Congress.
Senator BARKLEY. According to that theory, Congress has a lot of petty little agents scattered in all departments that are legislative representatives rather than executive Officers.
Mr. SELKO. No, sir. That brings up another point. The Solicitor of the Treasury, or the Attorney General, appointed by the President, are officers appointed by the Executive for the purpose of giving the executive officers legal advice on actions which the executive officers themselves intend to or contemplate carrying out. The Auditor General—the Comptroller General, as he is now called-is an officer who, while appointed by the President, is not eligible for reappointment and cannot be removed except by joint resolution of Congress. He is appointed and holds his Office for the purpose of advising the executive officers as to whether their action, contemplated or taken, is in accordance with the will of Congress.
Senator BARKLEY. The mere fact that he has to be removed by joint resolution of Congress does not make him a congressional agent.
Mr. SELKO. No, sir.
Senator BARKLEY. Congress can modify the provisions of law with respect to the removal of many officers, just as it did in the case of the Federal Trade Commission Act, so that they could only be re