The CHAIRMAN. But the Secretary, having authority to direct his assistant to sign all papers and documents, would not need to sign the travel vouchers, as I see it.

Representative VINSON. Then it occurs to me, Mr. Chairman, that the use of this illustration does not come at the proper place.

Representative TABER. You would have to have that subsequent legislation in if you were going to arrive at an intelligent conclusion as to whether the Comptroller General was right in his position.

Representative VINSON. That is an appropriate illustration, if the Comptroller's opinion went off upon the language contained in the subsequent statute.

Mr. GULICK. Some question would then arise, would it not, as to whether that subsequent statute, by implication and intention, superseded the prior statute.

Representative VINSON. Undoubtedly it would, if it contains what Senator Byrnes indicates it contains.

Senator BYRNES. I think that was the question that the Comptroller had before him, and it will appear if we get the decision of the Comptroller.

Representative VINSON. This becomes moot then.

Mr. GULICK. Mr. Chairman, I think the committee will want to consider whether it wishes to extend all of this material in the record or not, in view of the fact that these documents are in the files of the committee and available, and in view of the fact that some similar discussion might arise in regard to some of these other illustrations. Colonel WREN. Is it the instruction of the committee that I get that Comptroller General's decision and incorporate it in the record? The CHAIRMAN. Yes; with a copy of the resolution, the assumption being that the Comptroller General's opinion cites the authority upon which he bases his conclusion.

Colonel WREN. I will furnish the Comptroller General's opinion then to the reporter.

The CHAIRMAN. And Joint Resolution No. 18.

(The documents referred to are as follows, the joint resolution reading exactly as was requested by Secretary Lane's letter of Sept. 12, 1917, which is quoted in the Comptroller General's decision :)

SEC. 2. Appropriations for the fiscal year 1934 available for expenses of travel of civilian officers and employees of the executive departments and establishments shall be available also for expenses of travel performed by them on transfer from one official station to another when authorized by the head of the department or establishment concerned in the order directing such transfer: Provided, That such expenses shall not be allowed for any transfer effected for the convenience of any officer or employee.

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TRAVELING EXPENSES-TRANSFERS BETWEEN DUTY STATIONS

The provision in the joint resolution of March 28, 1918 (40 Stat. 499), permitting the assistant to the Secretary of the Interior to sign such official papers and documents as the Secretary may direct, may not be considered as authorizing the Secretary of the Interior to delegate to said assistant the authority to sign orders entitling employees to reimbursement of travel and other expenses upon a transfer between official duty stations.

Comptroller General McCarl to the Secretary of the Interior, September 6, 1935

There has been received your letter of August 14, 1935, as follows:

"I have reviewed carefully your letter of July 10 holding that the orders signed by Mr. E. K. Burlew, as assistant to the Secretary of the Interior, by my direction, authorizing transfers of employees between duty stations at Government expense, do not entitle the employees to reimbursement because they do not conform to the requirements of the law.

"The Congress, in approving the joint resolution of March 28, 1918, authorizing the assistant to the Secretary of the Interior to sign such official papers and documents as the Secretary may direct, placed no limitation on the Secretary's discretion, and to my mind 'official papers and documents' cover any that in my office as Secretary of the Interior I may be required by law or otherwise to sign. You state in your letter that this was apparently intended merely to make provisions for the signing of routine papers and documents otherwise requiring the signatures of the Secretary and not as authority to delegate to the assistant to the Secretary the exercise of discretion otherwise vested in the head of the department. I have read the letter of former Secretary Lane, recommending the passage of this legislation, made to Senator Thomas S. Martin, then chairman of the Committee on Appropriations, United States Senate, and I attach a copy for your information. I am also attaching a copy of the administrative order issued by Secretary Lane immediately on the passage of the act. While some of the matters under the assignment made therein would necessarily be of a routine character, they were by no means limited to such matters, but included the execution of contracts, approval of vouchers, tariffs, regulations, etc. In fact, the only items excluded administratively were contracts involving more than $5,000 for the Alaska Railroad, changes in personnel at $1,800 per annum or over in the bureaus under the assignment, communications to the President, to the Congress, or a change or reversal of general policy. This contemporaneous record, including that in the Congressional Record of March 23, 1918, indicates that matters to be signed were those which he would ordinarily send to an assistant secretary if the volume of work permitted the Assistant Secretary to handle them. In the debate in the Senate, Senator Walsh indicated that the legislation would permit delegation of the power to sign documents of the gravest import. I call your attention also to the inclusion in the original order by Secretary Lane of the delegation of appointing power where the salary did not exceed $1,800, which appointing power was vested in the Secretary of Interior by section 169 of the Revised Statutes and at that time had not been delegated to subordinates by other law. No question was ever raised concerning the Secretary's delegation of such appointing power to the assistant to the Secretary. Your reference to 7 Comptroller General, 482, 832, 698, does not appear applicable to the present question, since the decisions involve delegation of power to officers where it had not been authorized by law.

"It seems anomalous that no question was raised then, nor is it raised now. as to the authority of the assistant to the Secretary to make appointments at the direction of the Secretary, which permits employees to be added to the pay roll, yet the authorization of traveling expenses of persons already on the roll is questioned.

"I cannot help but feel that you have placed upon the law a limitation which does not exist in the letter or intent, and I ask you to give further consideration to this question."

(The copy of the letter of Sept. 12, 1917, from former Secretary of the Interior, Franklin K. Lane, to the Honorable Thomas S. Martin, contains the following:)

I would very much appreciate it if Congress could see fit to authorize the Secretary of the Interior, in his discretion, to permit the assistant to the Secretary to sign official papers and documents. This would enable the Secretary to issue a formal order authorizing the assistant to the Secretary to sign certain papers which now go to him for consideration, relieving myself and the Assistant Secretaries from a large amount of routine business. I am therefore writing to ask you whether it would be possible to insert in the urgent deficiency bill (H. R. 5949) a clause which would permit this to be done. If this suggestion meets your approval, it seems to me that it might be carried out by inserting on page 54 of the bill the following clause:

"The assistant to the Secretary of the Interior is hereby authorized to sign such official papers and documents as the Secretary may direct."

A reference to the Congressional Record for March 26, 1918, shows that in the consideration of this bill on the floor of the House, it was defended as relating to "pro forma" matters and "routine" work requiring the signature of the Secretary of the Interior. In neither instance was any indication given that it was the intention to authorize the delegation of matters wih respect to which the law required he exercise of the discretion of the Secretary of the Interior.

In the absence of statutory provisions such as that found in section 2 of the act of March 3, 1933 (47 Stat. 1513), and which have been reenacted each year since the act of December 22, 1927 (45 Stat, 50), an employee is not entitled to reimbursement of expenses incurred in effecting a transfer from one official station to another (5 Comp. Gen. 804). In permitting each reimbursement by the statutes referred to, the Congress has seen fit to impose conditions vesting in the head of the department the responsibility and discretion in the matter of authorizing in advance the reimbursement of the expense of such transfers when in fact necessary from the Government's standpoint and not for the convenience of the employee. The authority thus conferred to exercise such discretion may not be delegated or treated as a routine matter.

This office is not required to object to transfer orders signed by the assistant to the Secretary when no reimbursement of expense is claimed, but to entitle the employee to reimbursement of travel and other expenses incurred upon a transfer between official duty stations, as distinguished from ordinary travel on official business, it is mandatory that the statutory requirements governing each reimbursement be complied with and that the orders authorizing such transfers and reimbursement of expenses be signed, as the Congress has directed, by the head of the department or establishment involved and not by a subordinate officer to whom the Congress has not authorized the delegation of other than routine matters.

Upon reconsideration the decision of July 10, 1935, must be and is affirmed. Representative TABER. NOW, Mr. Gulick, would the Comptroller's action, just discussed, be one of those defects in the method of procedure that would be due to a failure of administration, in your opinion, or would it be statutory?

Mr. GULICK. No; this would be a ruling by the control officer which complicated and made more cumbersome the administration arising from the powers granted to him under the statute.

Representative VINSON. Yes, Mr. Gulick; but certainly if the second statute

Mr. GULICK (interrupting). I am just answering this question as to whether it arises from the statute or whether it arises about administration.

Representative TABER. But if his decision is correct then it is not important.

Mr. GULICK. The only reason why I refer to it here is because it is in a list of things submitted by the Secretary of the Interior to your committee.

Now I call your attention to another one submitted by him with regard to the purchase of fire-extinguishing equipment for the Boulder Dam power plant.

On February 14, 1935-that is over 2 years ago-bids were opened under Specifications No. 656-D, covering fire extinguishing equipment for the Boulder power plant, Boulder Canyon project. The low bid was submitted by the CO-2 Fire Equipment Co. of New York City, and on July 25, 1935, award of contract to this bidder was approved by the Secretary. Protests were filed with the Comptroller General on September 17, 1935, and October 23, 1935, and in a letter dated September 21, 1935, the Comptroller General re

quested a report which was promptly supplied. Requests from the Comptroller General for additional information also were promptly supplied. Our last letter to the Comptroller General relative to this matter was transmitted on March 18, 1936. To date the Comptroller General has not advised us of a decision in the matter. I was so surprised to find that the purchase of fire-protection equipment had been held up over a period of 2 years that I took the trouble to find out whether it had been cleared to date. It has not been cleared to date.

Here is another one with reference to the Boulder Dam project. Bids were opened on May 27, 1935-that is almost 2 years agounder Specifications No. 687-D, covering insulated wire and cable for the Boulder power plant, Boulder Canyon project. The low bid was submitted by the General Cable Corporation of Chicago, Ill., and the Secretary approved award of contract to this bidder. On October 12, 1935, a protest was filed with the Comptroller General and on October 23, 1935, this Department was requested to submit to the Comptroller General a complete report of the matter. The report was furnished the Comptroller General on November 15, 1935, and on November 20, 1935, the bids of the General Cable Corporation and the protesting bidder were transmitted to the Comptroller General in accordance with his request. Then follows a long period of correspondence. Not having heard from the Comptroller General relative thereto, the Acting Secretary on June 22, 1936, requested the Comptroller General to return the bids "in order that the bid of the General Cable Corporation may be attached to the contract which now awaits completion and distribution." No reply was received and on September 22, 1936, the Acting Secretary again called the matter to the attention of the Comptroller General, stating as follows:

The contract with the General Cable Corporation has been held in the Denver office of the Bureau of Reclamation for approximately 1 year, pending the return of the bid in order that the same may be attached to the returns office copy of the contract and it is requested that you expedite the returning of the bid or advise why it is not being returned.

To date, no reply has been received. In December 1936 a representative of the Bureau of Reclamation personally called to see Colonel McGuire, counsel, General Accounting Office, who promised that the bids would be returned promptly. To date the bids have not been returned. As a result the contract with the General Cable Corporation has not been executed.

This was submitted to Colonel Wren and the committee some weeks ago, but I understand that since the submission of this statement to the committee the Comptroller General's office has returned it and has waived his objection. In other words, the whole proceeding was satisfactory way back in May, June, July, September, and October of 1935 and has been holding up the purchase of cable for the Boulder Canyon project.

Now, in the War Department, under general law, officers of the Army, including Reserve officers while on active duty are entitled at all times to adequate Government quarters, or in lieu thereof to an allowance, depending on rank, definitely stated in and provided for by law. The Secretary of War, under the authority of the act of March 4, 1915, which authorizes him to determine when and

where "there are no public quarters available", determined that shelter furnished the personnel of the commissioned and warrant officers in Civilian Conservation Corps work camps and consisting of tents or space in temporary buildings or shacks does not constitute adequate quarters as contemplated by law. The Comptroller General disallowed payments of rental allowance to Reserve officers occupying inadequate quarters as determined by the Secretary of War, and his position is set forth in his decision reported in 14 Č. G. 258. However, the determination of the Secretary of War under the act of March 4, 1913, which vests in him explicit jurisdiction to determine as a question of fact when and where quarters are available for military personnel, had the support of an opinion of the Attorney General, if indeed any support was needed therefor, to the effect that the statute vested in him explicit jurisdiction to settle this question. Notwithstanding the views of the Attorney General, however, the Comptroller General raised disallowances in disbursing officers' accounts, with the result that it became necessary to secure legislative relief at the hands of Congress.

The Secretary of the Interior: A ruling from the General Accounting Office of May 2, 1936, A-66242, was to the effect that a certain Indian allottee, citizen of South Dakota, was not entitled to commuted benefits as a single person. The allottee had been married under civil ceremony, and the ruling was made apparently on the basis that, pending divorce proceedings in a State court, divorce by Indian custom could not be recognized. The act of June 25, 1910, conferred upon the Secretary authority to determine the heirs of deceased Indians and made his decision final and conclusive. The policy of the Department over a long period of time has been to recognize marriage and divorce by Indian custom. The ruling of the General Accounting Office was therefore rendered in substitution for that administrative policy.

Another case from the War Department hinged on the question as to whether Marine Corps troops in China and Cuba, I think, and in Nicaragua were operating against an enemy, actual or potential. The Secretary of War held they were not; the Comptroller General held that they were, substituting his judgment for that of the administrative officer in whom that power was vested by statute, in the opinion of the War Department.

Representative VINSON. Coming back to your Indian case, what is your criticism of that opinion other than that it is in conflict with a policy adopted by an administrative officer? I thought that was what a preaudit was for.

Mr. GULICK. The effect of the decision by the Comptroller General is to enter an exception against the accounts of the disbursing officer in that Department, the settlement of those accounts, and to notify the disbursing officer that in the future the decision of the Department with reference to these Indian allottees must follow the Comptroller General's decision with respect to whether Indian law shall prevail or other law shall prevail in these divorce cases, and in these other things.

Representative VINSON. Well, is it a question of Indian law or a question of law? Is it a question as to just what the law is? Mr. GULICK. No; it is a question in this case of whether the individual is single or married.