Representative VINSON. Yes; and the Indian was married by civil ceremony, as I understand it.

Mr. GULICK. In the opinion of the Department the Indian was not married. The Department is given the enforcement, by Congress, of the statutes dealing with Indian affairs. It has got to be turned over to somebody.

Representative VINSON. I misunderstood it, then. I thought the Department was ruling that having married by civil ceremony the Department would not recognize divorce in accordance with tribal customs. That was the way I followed it.

Mr. GULICK. It is a question of whether that person is single or married.

Representative VINSON. That is right; and the Department, as I got it, required a civil divorce. Now assume that you have an independent unit that is not subject to the criticism of being part of the legislative branch of the Government, don't you think that any unit that would make a preaudit would render decisions and reach conclusions that would not suit the administrative branch on jurisdictional matters? If they did not render opinions and conclusions that were not in conflict with their views, it would be of no use to have them.

Mr. GULICK. The control department would inevitably come into conflict, time and time again, as they did up to 1921. It is inevitable, it is their job. But there is an appeal within the administration itself on these questions, and there is a tendency on the part of the officer who is a part of the administration, who is exercising that power, to restrain himself. Whereas, if you make that individual totally independent then he is a law unto himself, and he gradually expands his activities because of the natural tendency of any bureaucracy to build on and on. That is the basis of the danger in the situation, in this set-up, by having this power of control, which is inescapably a function of administration, in an agency which is not part of the administration but is supposedly a part of the legislative division of the three divisions of the Government.

Senator BYRD. Your main purpose, Mr. Gulick, is to avoid any conflict between the precontrol and administrative officer. You prefer to let the administrative officer apparently do as he pleases. Mr. GULICK. No. In the administration you are concerned with the problem not only of getting the work done but of getting it done economically and effectively. Therefore in any big governmental enterprise, or private enterprise, the management not only has to have departments that are busy doing the work but it has to have managerial agencies attached close to the general director of the enterprise who are going to keep these things in control, who are going to keep the financial records on these things, and who are going, in a governmental system, to take the budget appropriations and break them down into allotments so that they cannot be spent too fast, who are going to exercise control over these people so as to see that the methods of purchase are sound and that the lowest bidders are selected.

Senator BYRD. These conflicts that you mentioned, are they due to the lack of a proper decision on the part of the Comptroller General? Has he been arbitrary in making these decisions?

Mr. GULICK. Some of the decisions are arbitrary; some of the decisions represent a substitution of judgment in administration and

execution.

Senator BYRD. If another Comptroller General was appointed that did not take that arbitrary position would not many of these conflicts that you mentioned be avoided?

Mr. GULICK. They would be avoided during the first few years, but a man who is appointed for 15 years, with these powers, and with no boss, will come out the same way.

Senator BYRD. Do you think that the evils of bureaucracy apply only to the Comptroller General and they do not apply to the Secretary of the Treasury?

Mr. GULICK. They apply to any irresponsible officer.

Senator BYRD. Any irresponsible officer?

Mr. GULICK. Yes; they apply to any irresponsible officer. Senator BYRD. In other words, you contend the Comptroller General is an irresponsible officer?

Mr. GULICK. Certainly. He is appointed for 15 years, not subject to review, refuses to accept the opinions of the Attorney General, refuses to accept the opinions of the courts in cases that are so analogous that the courts themselves have said things about the action of the Comptroller General that represent more of a criticism than anything that we have said.

Senator BYRD. What would you think of giving the right of appeal to the Court of Claims from the decisions of the Comptroller General?

Mr. GULICK. You cannot run administration on the basis of appeals to courts. That is the difference.

Senator BYRD. Do you think the appeals should be made to a political agent of the Government?

Mr. GULICK. We think it should be made to a responsible agent that is subject to the controls of law and subject to the controls of the democratic process.

Senator BYRD. The Comptroller General is subject to removal by Congress, isn't he?

Mr. GULICK. Yes.

Senator BYRD. So he is not totally irresponsible.

Representative COCHRAN. Mr. Gulick, just a moment ago you stated that under your set-up the control function in the executive department would be constantly in conflict with the spending authority, just as it was prior to 1921. Can you, for the benefit of the committee, cite the differences of control of the Comptroller of the Treasury, as provided for by the Dockery Act, and the present control under the General Accounting Act?

Mr. GULICK. Do you want just a general, brief statement or do you want a detailed statement?

Representative COCHRAN. Did the Comptroller of the Treasury assume the same power as the Comptroller General did?

Mr. GULICK. The Comptroller General has no powers which were not entrusted to some officer under the old system. They were powers that were divided between various officers of the Treasury and various divisions, and they are mentioned in the act. These powers were transferred by the Budget and Accounting Act to this new division

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which was set up in order to produce certain special results. Now, those powers as they existed in these several auditors, and as they existed in the Comptroller in the Treasury, were exercised with great restraint because these officials were more or less responsible and were within a responsible structure. When these powers came into an organization in which there was not this responsibility then they were expanded in this fashion. The legal powers were there, but the nature of their exercise is completely changed, and that nature of their exercise is inevitable in a situation where there is no responsibility.

Representative COCHRAN. Do not the Comptroller of the Treasury's decisions show that there are constant conflicts between his office. and the spending authorities?

Mr. GULICK. Yes; but there was a great effort on his part to refrain from giving opinions on matters which were within the sphere of the activities of the departments. In many cases he refused to give opinions on questions that were submitted to him. He said, "That is not my job, that is in your field of responsibility", whereas the Comptroller General now, as far as I can learn, does not refrain to give opinions. He urges them to come in, he wants them to come in. That is just the difference between an organization that is set up as a free agency and one which is set up within a rigid frame of control.

Representative COCHRAN. Judge Warwick did not go over to the General Accounting Office, but Judge Ginn did, who was his assistant.

Mr. GULICK. Yes.

Representative COCHRAN. And I understand that many decisions of the present General Accounting Office came in conflict with the executive branch of the Government. Judge Ginn was responsible for those decisions.

Mr. GULICK. It may be.

Representative COCHRAN. Do you think Judge Ginn assumed more of an attitude of control when he was in the General Accounting set-up than he did when he was in the old Comptroller of the Treasury's office?

Mr. GULICK. I did not know him personally and I cannot say, but I do know that the decisions of the Department are of a different character than those that were made under the Dockery Act, under the old provisions of law.

Senator BYRNES. Mr. Gulick, with reference to your statement as to the removal of the Comptroller, is it not a fact that the Comptroller is subject to removal by a joint resolution of the Congress, which must be approved by the President?

Mr. GULICK. Approved by the President.

Senator BYRNES. The only other way that he can be removed is by impeachment, which requires a two-thirds vote.

Mr. GULICK. That is correct.

Senator BYRNES. I just wanted to state that for the record.

Senator BYRD. Mr. Chairman, I just wanted to ask Mr. Gulick a question in reference to that. He says that the Comptroller General is an irresponsible official. Is the Auditor General a responsible official under your plan?

Mr. GULICK. No.

Senator BYRD. Both of them are irresponsible? Why do you recommend an irresponsible official then?

Mr. GULICK. In order to get complete independence in the audit, and we feel that is entirely safe because he cannot hold up a decision. The CHAIRMAN. Will you explain what you mean by "responsible" and "irresponsible"?

Mr. GULICK. It is a term which is susceptible of various interpretations. A man who has got to stand before the electorate on his record is responsible in the democratic process. A man whose actions are subject to control by appeal to a superior, who is able to take action with reference to many individual activities, that man is responsible. A man who can be removed because of the dissatisfaction of his superior over the general operation of his work is responsible. A man who, however, is hedged about with protections and with a system of removal which is virtually unworkable is irresponsible. The members of the Supreme Court of the United States are irresponsible.

Senator BYRD. Irresponsible to whom? Would you abolish the Supreme Court because they are irresponsible?

Mr. GULICK. I am saying that men who do not stand for election

Senator BYRD (interrupting). Would you elect the Supreme Court? Would that be your theory of government?

Mr. GULICK. I'am not discussing the question of the Supreme Court.

Senator BYRD. I am asking the question. You are a student of reorganization of the Government. Would you favor the election of the Supreme Court.

Mr. GULICK. My field of specialty is not the judicial administration, my field of specialty is in financial administration and general organization.

Senator BYRD. They are responsible to their own consciences, are they not?

Mr. GULICK. And God; yes, sir.

The CHAIRMAN. You used the term of "responsible" and "irresponsible" with respect to the question of the final authority. If the officer's authority is final and cannot be revoked by any superior, or cannot be modified upon appeal, you designate that officer as irresponsible?

Mr. GULICK. I would go a little further than that, Senator. I would say that if the method of appeal or the method of revoking is cumbersome and unworkable, then it does not, in fact, exist.

Senator BYRD. As a matter of fact, the Comptroller General is responsible to the Congress. That is what was intended when the office was created. Will you explain exactly the responsibility of this new official that you set up? In what way is he responsible? Mr. GULICK. His responsibility is precisely the same as that of the Comptroller General today, under the program which we suggest. If it is your interpretation that he has a responsibility to the Congress then it would be your interpretation that the auditor, whom we suggest, would be only responsible to the Congress.

Senator BYRD. I am not speaking of the Auditor General, I am speaking of the new unit which you set up, which is a preaudit or precontrol. What responsibility would that official have?

Mr. GULICK. That would be a division under the administration and his responsibility will be to the President.

Senator BYRD. Directly to the President?

Mr. GULICK. It will be either directly to the President or through the Secretary to the President.

Senator BYRD. In other words, the President can directly control, through the Secretary of the Treasury, all questions of precontrol and preaudit?

Mr. GULICK. On questions of policy his decision would be final. Senator BYRD. And the President, himself, would have the final decision as to whether or not certain appropriations are made in accordance with the law?

Mr. GULICK. It would be his responsibility to execute the provisions of the law, to administer the provisions of the law.

Senator BYRD. That is an admission that I have been trying to get for some time.

Representative COCHRAN. Through a representative?
Mr. GULICK. Through the agency established.

Senator BYRD. The President, himself, would have the final voice as to the legality of the expenditures that were made by the departments under his control?

Mr. GULICK. For the execution of law adopted by Congress. In accordance with the provisions of the Constitution, administration of the law as passed by Congress is vested in the Executive.

Senator BYRD. And prior to the expenditure, the Executive will be the sole authority as to whether the expenditure is spent legally or not?

Mr. GULICK. The Executive will be responsible for the interpretation and the enforcement of the law.

Senator BYRD. I mean, he will have the sole authority to make the expenditure prior to the time it is made; is that correct?

Mr. GULICK. That is correct.

Representative VINSON. It is your position that no one other than the Executive has that power, under the Constitution? Mr. GULICK. That is correct.

Representative BEAM. That responsibility of the Executive would just be interpreting the Constitution as it now exists? Mr. GULICK. And the law.

Representative BEAM. As it now prevails?

Mr. GULICK. Yes.

Senator BYRD. Is the President to interpret the Constitution? Is that your theory of government?

Mr. GULICK. No. Under the Constitution the President enforces the laws as passed by the Congress, and if exception is taken to that enforcement by individuals who are aggrieved it can be carried to the courts and settled there. If the public feels dissatisfied with the thing it can be corrected by subsequent act of Congress relative to future activities.

Representative TABER. That does not apply to operations of the departments, to expenditures of the Government, because no one can take anything to the courts along that line except an officer who is charged as the Comptroller General is. No individual can get an injunction restraining a department from spending money, or anything of that character.