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doubtful implication. The Home Owners' Loan Act of 1933, approved June 13, 1933 (48 Stat. 128), was enacted contemporaneously with the Tennessee Valley Authority Act. Section 4 (a) authorized the creation of the Home Owners' Loan Corporation and section 4 (j) not only exempted such corporation from compliance with the civil-service laws but expressly provided that it *shall determine its necessary expenditures under this Act and the manner in which they shall be incurred, allowed, and paid, without regard to the provisions of any other law governing the expenditure of public funds." This indicates that when the Congress intends such exemptions they are expressly stated, and the omission of any such provisions in the Tennessee Valley Authority Actenacted at almost the same time, and similar in various respects—cannot but be taken as most persuasive that the Congress did not intend in that act to confer any such exemptions. It was said in Wheeling and Belmont Bridge Company v. Wheeling Bridge Company (138 U, S. 287, 292), that “An alleged surrender or suspension of a power of government respecting any matter of public concern must be shown by clear and unequivocal language” and in Brown v. Duchesne (19 How. 183, 195), that "Neither will the court, in expounding a statute, give to it a construction which would in any degree disarm the Government of a power which has been confided to it to be used for the general good-or which would enable individuals to embarrass it, in the discharge of the high duties it owes to the community-unless plain and express words indicated that such was the intention of the legislature." The will of the legislature is to be discovered as well by what the legislature has not declared as by what they have expressed, Houston v. Moore (5 Wheat. 1), and it is difficult to conclude that the Congress without express mention intended to leave to the directors of the Tennessee Valley Authority the expenditure of hundreds of millions of public money free of the restraints of general law governing spending and accountability.
The position of the Authority, nevertheless, that the Congress impliedly intended to exempt it from accountability under the Budget and Accounting Act is founded on the proposition that the Congress created it a corporation and, therefore, that there is for application the principles of Skinner & Eddy Cors poration v. McCarl (275 U. S. 1), where it was held that the Comptroller General could not be compelled to settle a claim against the Emergency Fleet Corporation. _In its opinion the Court said, interalia :
For the Fleet Corporation is an entity distinct from the United States and from any of its departments or boards; and the audit and control of its financial transactions is, under the general rules of law and the administrative practice, committed to its own corporate officers except so far as control may be exerted by the Shipping Board
The Court said respecting the Fleet Corporation and various other "Government-owned private corporations” that
Indeed, an important if not the chief reason for employing these incorporated agencies was to enable them to employ commercial methods and to conduct their operations with a freedom supposed to be inconsistent with accountability to the Treasury under its established procedure of audit and control over the financial transactions of the United States.
But a careful reading of that case shows clearly enough that it does not go to the extent of fixing a rule that an act of Congress giving a Government agency a corporate status ipso facto establishes such agency as an entity só entirely separate and distinct from the United States as to divorce it from accountability under general statutes governing Government establishments. On the contrary, the Court quoted section 305 of the Budget and Accounting Act amending section 236 of the Revised Statutes to provide that “All claims and demands whatever by the Government of the United States or against it, and all accounts whatever in which the Government of the United States is concerned, either as debtor or creditor, shall be settled and adjusted in the General Accounting Office” and, with respect thereto, said :
“The language of this grant, if standing alone, might possibly be broad enough to include authority to audit accounts and to pass upon claims arising out of contracts made by a Government-owned corporation 'representing the United States.' But here it must be construed in the light of the statutes dealing specifically with the Shipping Board and the Fleet Corporation, of the latter's origin and character and of the administrative practice prevailing with regard to it and other similar corporations.” (Italics supplied.]
The Court then proceeded to point out that the Emergency Fleet Corporation was organized by the United States Shipping Board pursuant to specific au
thority conferred on it by the original Shipping Board Act of September 7, 1916, in contemplation of war, to form one or more corporations, to be dissolved at the expiration of 5 years from the conclusion of “the present European war"; that all of its stock was subscribed and paid for by the Shipping Board on behalf of the United States and that it was thus an instrumentality of the United States. The Court then said:
But it was organized under the general laws of the District of Columbia, as a private corporation, with power to purchase, construct, and operate merchant vessels. The act authorized the Board 'to sell with the approval of the President, any or all of the stock of the United States in such corporation, but at no time shall it be a minority stockholder therein." Being a private corporation, the Fleet Corporation may be sued in the State or Federal courts like other private corporations; it does not enjoy the priority of the United States in bankruptcy proceedings, Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation (258 U. S. 549); and its employees are not agents of the United States, subject to the provisions of section 41 of the Criminal Code. United States v. Strang (254 U. S. 491). (Compare 34 Op. Atty. Gen. 241.)” [Italics supplied.]
The Court then referred to various other “Government-owned private corporations” employed by the United States as its instrumentalities in several other fields during the World War and in the conduct of activities essentially commercial in character, pointed out that at no time had the financial transactions of the Fleet Corporation passed through the hands of the general accounting officers of the Government or been passed upon as accounts of the United States either by the Comptroller of the Treasury or the Comptroller General, but that the accounts of the Fleet Corporation, "like those of each of the other corporations named,” had been audited and the control over their financial transactions had been exercised, “in accordance with commercial practice,” by the Board or the officer charged with the responsibilities of administration. It was with reference to such “Government-owned private corporation" formed or utilized for such purposes that the Court remarked that “Indeed, an important if not the chief reason for employing these incorporated agencies was to enable them to employ commercial methods and to conduct their operations with a freedom supposed to be inconsistent with accountability to the Treasury under its established procedure of audit and control over the financial transactions of the United States.” It was these circumstances relating specifically to the origin and character of the Fleet Corporation as a private corporation and the administrative practice prevailing with regard to it and “other similar corporations” employed as instrumentalities of the United States that were stated by the Court in sustaining the contention of the Comptroller General in that case that "he was without jurisdiction to consider claims against the Fleet Corporation, notwithstanding the broad language of section 305 of the Budget and Accounting Act, supra, which the Court indicated might otherwise be applicable. Thus the decision is limited to the Fleet Corporation and the principle of the decision to other similar Government-owned private corporations, and cannot be viewed as establishing or intending to establish any rule that the corporate status of any governmental agency ipso facto exempts it from accountability under the Budget and Accounting Act.
Now, unquestionably, there are wide and material differences in such respects between the origin, status, and purposes of the Tennessee Valley Authority and the Fleet Corporation and such differences have been recognized by the courts. While the formation by the Shipping Board of the Fleet Corporation was authorized by statute, it actually was organized under the laws of the District of Columbia as a private corporation to engage commercially in purchasing, constructing, and operating merchant vessels, and it was held to have the attributes of other private corporations. The Court said in Sloan Shipyards v. United States Fleet Corporation (258 U. S. 549, 565), that
“The Shipping Act contemplated a corporation in which private persons might be stockholders and which was to be formed like any business corporation under the laws of the district, with capacity to sue and be sued. The United States took all the stock but that did not affect the legal position of the company.
The Tennessee Valley Authority was not so formed. It finds its origin in the language of section 1 of the Tennessee Valley Authority Act of 1933 (48 Stat. 59), as follows:
“That for the purpose of maintaining and operating the properties now owned by the United States in the vicinity of Muscle Shoals, Ala., in the interest of the
national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive floodwaters in the Tennessee River and Mississippi River Basins, there is hereby created a body corporate by the name of the 'Tennessee Valley Authority (hereinafter referred to as the 'Corporation'). The board of directors first appointed shall be deemed the incorporators, and the incorporation shall be held to have been effected from the date of the first meeting of the Board.
Thus the Authority was not incorporated “like any business corporation" under general incorporation statutes, but was by express declaration of Congress "created a body corporate” for the purpose of performing functions primarily governmental in character, its organization, duties, powers, authority, and character being expressly delineated in the act, as for any other governmental establishment or agency, without reference to general incorporation statutes or without respect to attributes which might inhere under such statutes or general corporation law. In such Government agency, by virtue of thus being "created a body corporate” for the purpose of performing specified Government functions, necessarily to be regarded as a “Government-owned private corporation” within the principles of Skinner & Eddy Corporation v. McCarl? In Osborn v. Bank of the United States (9 Wheaton 738, 823, 827, 860), the Court, by Mr. Chief Justice Marshall, said:
"The case of the bank is, we think, a very strong case of this description. The charter of incorporation not only creates it, but gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being, thus constituted, have a case which does not arise literally, as well as substantially, under the law?
“This distinction is not denied; and, if the act of Congress was a sample act of incorporation, and contained nothing more, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being it has made, all the faculties and capacities which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the constitution, every act of the bank arises out of this law.
The bank is not considered as a private corporation, whose principal object is individual trade and individual profit; but as a public corporation, created for public and national purposes.
It is not an instrument which the Government found ready made, and has supposed to be adapted to its pur. poses; but one which was created in the form in which it now appears, for na, tional purposes only.
[Italics supplied.] In United States v. Strang (254 U. S. 491), after referring to the organization of the Emergency Fleet Corporation by the Shipping Board under laws of the District of Columbia, the Court said:
The Corporation was controlled and managed by its own officers and appointed its own servants and agents who became directly responsible to it. Notwithstanding all its stock was owned by the United States, it must be regarded as a separate entity. Its inspectors were not appointed by the President, nor by any officer designated by Congress; they were subject to removal by the Corporation only and could contract only for it. In such circumstances we think they were not agents of the United States within the true intendment of section 41 [of the Criminal Code].”
But in Posey v. Tennessee Valley Authority (93 F. (20) 726), the Court said :
“The Tennessee Valley Authority is a corporation created by act of Congress (48 Stat. 58, section 1, 16 U. S. C. A. section 831), for the purpose of managing certain properties of the United States developed in consequence of the World War at Muscle Shoals, Ala., and of building further dams on the Tennessee River and its tributaries to improve navigation and control floods, and to dispose of surplus electricity generated thereby. There is no capital stock. The operations are paid for by appropriations from the Treasury of the United States. The lands acquired belong to the United States. The great functions of the Authority are governmental in nature and might have been performed directly by the officers of Gov
ernment. But a corporation consisting of three publicly appointed officials was created, and by section 4 (b) of the act, 16 U. S. C. A., section 831 c (b), it was given power to sue and be sued in its corporate name. Notwithstanding the corporate entity and its subjection to suit, the Authority is plainly a governmental agency of the United States, and except as Congress may otherwise consent, is free from State regulation or control. McCulloch y. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Johnson v. Maryland, 254 U. S. 51, 41 $. Ct. 16, 65 L. Ed. 126. It may be emphasized that it is not a corporation created under the general laws of some State or Territory whose stock the United States happens to own, as was true of the Emergency Fleet Corporation and the Panama Railroad Co. [Italics supplied.]
“That section [sec. 3 of the Tennessee Valley Authority Act] deals comprehensively with employees of the Authority. Evidently Congress rewarded the employees as being substantially employed by the United States, and therefore takes off the fetters of the civil-service regulations which otherwise might apply.
it is a case in which a new sort of corporation is directly created by the Legislature as an instrumentality of government; and it the same act the corporation is authorized to employ persons, and their injuries are considered and provided for, and then suit allowed where there is no otherwise provision.
"The true intent of the whole act is to be sought, in the light of its novel subject matter and the intimate relation to the Government of the employments under it.
[Italics supplied.] The United States Circuit Court of Appeals for the Sixth Circuit, on December 6, 1940 (No. 8427), affirmed the lower court's dismissal of Dr. A. E. Morgan's suit for salary as a director of the Tennessee Valley Authority after his removal from office by the President and, in the course of its opinion, stated in part as follows:
It required little to demonstrate that the Tennessee Valley Authority exercises predominantly an executive or administrative function.
It is not to be alined with the Federal Trade Commission, the Interstate Commerce Commission, or other administrative bodies mainly exercising clearly quasilegislative or quasi-judicial functions—it is predominantly an administrative arm of the executive department." [Italics supplied.]
Thus the concept drawn from the statute is that the Tennessee Valley Authority, though denominated a “body corporate,” is in reality an arm-an integral part -of the Government, as distinguished from "an instrument which the Government found ready made" (Osborne v. U. S. Bank), supra or has formed or has had formed to facilitate its work, as exemplified by the Fleet Corporation and other corporations referred to in the Skinner & Eddy case, a distinction between the arm and the instrument its uses, and as the arm may be viewed as a member apart in the performance of its functions although inherently an integral part of the body, so the Authority is to be viewed as administratively an integral part of the Government although functioning as a corporate entity.
For these reasons the conclusion appears required that the Tennessee Valley Authority has a governmental status materially different from that of the Emergency Fleet Corporation and other similar Government-owned private corporations," and, therefore, that neither the reasoning nor the result in the Skinner & Eddy case applies to the Tennessee Valley Authority or would justify holding that the Authority was intended to be exempt from accountability under section 305 of the Budget and Accounting Act.
In the conference report on the bill which became the Tennessee Valley Authority Act, House Report No. 130, Seventy-third Congress, first session, the managers on the part of the House stated, at page 19:
“We are fully rsuaded that the full success of the Tennessee Valley de. velopment project will depend more upon the ability, vision, and executive capacity of the members of the Board than upon legislative provisions. We have sought to set up a legislative framework, but not to encase it in a legislative strait jacket. We intend that the Corporation shall have much of the essential freedom and elasticity of a private business corporation. We have indicated the course it shall take, but have not directed the particular steps it shall make. We have given it ample power, and tried to prevent the perversion and abuse of that power. We have set Bounds to prevent its liberty from becoming license.
This statement of the managers for the House that the Tennessee Valley Authority was intended to have "much of the freedom and elasticity of a private business corporation,” taken in its context, shows that it was not regarded as actually being constituted a private corporation, but in its functioning was to have "much" of the freedom and elasticity of such a corporation. However, "freedom and elasticity” in operation does not connote freedom from accountability. From the first the yearly appropriations for the Tennessee Valley Authority have been made in extended detail as to the purposes for which such appropriations might be used, the same as for other Government departments and establishments. See the act of June 16, 1933 (48 Stat. 295) for the first such appropriation and the act of April 18, 1940 (Pub., No. 459, p. 30), for the last, to date. Under all such appropriations funds have been requisitioned and advanced to fiscal officers of the Authority on accountable warrants, the same as for other Government departments and establishments. Beginning with the appropriation made by the act of August 12, 1935 (49 Stat. 596), for the Tennessee Valley Authority for the fiscal year ending June 30, 1936, each yearly appropriation act has expressly provided that the sum appropriated, together with the unexpended balances of prior appropriations and the receipts of the Authority from all sources, with one exception, "shall be covered into and accounted for as one fund,” to be availaple until the end of the particular fiscal year.
A former Comptroller General construed this new language, incorporated in the appropriation acts, that the Authority's appropriation and receipts should "be covered into and accounted for” as one fund, as removing any doubt that the fiscal officers of the Authority were required by law to render their accounts to this Office pursuant to the Budget and Accounting Act for the disposition of advances and collections, the same as in other departments and establishments.
It has been said that such new language was included in the appropriation acts at the instance of the Tennessee Valley Authority and, therefore, should not be viewed as intended to affect its status with respect to accountability under the Budget and Accounting Act. But the effect of the language is to be interpreted in the usual sense of the words as they were employed and adopted and apparently intended by the Congress, and not by what may have been intended or not intended by the Tennessee Valley Authority, and, on that basis, such provisions must be given substantial weight as showing that the Congress did not consider the Authority to be exempt from accountability under the Budget and Accounting Act. It has been urged that such effect should not be given such provisions because contemporaneously with the first of such provisions and in connection with the amendment of the Tennessee Valley Authority Act in various particulars by the act of August 31, 1935 (49 Stat. 1080), there was a failure to adopt two different proposed amendments, one in the Senate and ore in the House, expressly requiring, among other matters, that funds of the Tennessee Valley Authority be covered into the Treasury to be withdrawn only on accountable warrants. However, a reading of the debate on the two amendments (79 Congressional Record 7465, et seq., May 14, 1935; id. 10972, et seq., July 10, 1935) show's that the opposition was directed primarily to other provisions of the amendments, particularly those restricting the power of the Authority to make contracts and purchases without advertising pursuant to section 3709, Revised Statutes. In the House it was said by Representative Hill, page 10973, that the language of the amendment as first proposed “gave the Comptroller General more power over the Tennessee Valley Authority than the Comptroller General had over any department or any division of the Government," and that even as modified “it means that the Tennessee Valley Authority cannot even purchase a lead pencil without first coming to Washington and getting the permission of some auditor or other accountant in the Comptroller General's Office.” In the Senate it was said by Senator McKellar, page 7466, that when he examined the amendment he found that it had a very different purpose from the one he thought was behind it, and that “I find also that the Comptroller General does have jurisdiction over the accounting of the Tennessee Valley Authority, and for that reason I have changed my mind entirely with reference to the amendment." Under these circumstances the rejection of the amendments may not be viewed as detracting from the effect of the specific language later incorporated in the appropriation acts requiring the funds of the Authority to be covered into and “accounted for” as one fund, even though such procedure was involved as a part of the amendments theretoforé rejected.