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not to exceed the aggregate sum of $50,000, and that amount is available for such use for the fiscal year 1923, notwithstanding the Budget for 1923
exhibits the amount appropriated as $45,000. Comptroller General McCarl to the Secretary of the Treasury, February 23,
I have your letter of February 12, 1923, requesting decision of a question presented by you, as follows:
There is transmitted herewith for your consideration a copy of letter from the Chief of Finance of the War Department, dated February 5, 1923 (No. FEA-112.5–23-CE 4), inviting attention to the permanent annual appropriation of $50,000 provided for under the act of June 3, 1896 (29 Stat., p. 234, sec. 3, amending section 13 of the act of September 19, 1830 (26 Stat., p. 455), for Operating snag boats on the Ohio River.”
By reference to page 867 of the Budget for 1923, it will be noted that the sum exhibited as the amount of the appropriation required for the fiscal year 1923 is $45,000, and inasmuch as the amounts shown in the Budget as being required under the various permanent annual appropriations are treated by Congress as the amounts appropriated for the year in exhibiting the appropriations made by that body for the year, this amount accordingly was set up by this department under war appropriation warrant No. 4, dated July 1, 1922, as the appropriated amount for the permanent annual appropriation “ Operating snag boats on the Ohio River, 1923."
Your views are requested as to whether the acts above quoted authorize und appropriate the sum of $50,000 under the appropriation in question for the service of the fiscal year 1923, notwithstanding the exhibit of only $45,000 as the appropriation for this year in the Budget for 1923.
Section 13 of the act of September 19, 1890, 26 Stat., 455, provides : That for the purpose of securing the uninterrupted work of operating snag. boats on the Ohio River and removing snags, wrecks, and other obstructions in said river, the Secretary of War upon the application of the Chief of Engi. neers, is hereby authorized to draw his warrant or requisition from time to time upon the Secretary of the Treasury for such sums as may be necessary to do such work, not to exceed in the aggregate for each year the sum of twenty. five thousand dollars: Provided, however, That an itemized statement of said. expenses shall accompany the annual report of the Chief of Engineers.
Section 3 of the act of June 3, 1896, 29 Stat., 234, provides: That section thirteen of “ An Act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes," approved September nineteenth, eighteen hundred and ninety, is hereby amended by inserting the words "fifty thousand dollars" in lieu of the words “twenty-five thousand dollars ” therein contained.
Congress by these acts has made available a permanent annual indefinite appropriation for the specific purposes indicated in such acts, in an amount not to exceed in the aggregate the sum of $50,000 in any one year, and such amount has been available annually since the approval of the statute without any further formal procedure on the part of Congress. The clearly expressed intention is that such amount shall be available annually for the purpose of securing the uninterrupted work therein indicated, until changed by subsequent legislation. There appears no specific or expressed intention on the part of Congress to change the maximum amount of this appropriation from $50,000 to $45,000, and in the absence of such specific provision the appropriation as expressly made in the above-quoted acts is available upon application for same by the Chief of Engineers. The fact that the Budget contained a lesser amount than the amount specifically authorized does not justify concluding that Congress adopted the amount of the Budget. The specific law can not reasonably be viewed as being changed by that method.
You are accordingly advised that the sum of $50,000 is legally available for expenditure under the appropriation.“ Operating snag boats on the Ohio River, 1923.”
OPERA AND CONCERT TICKETS-ARMY MUSIC SCHOOL. The requirement in the Army Regulations governing the Army Music School
that the faculty, band leader, and students attend band, orchestra, and other performances, contemplates the attendance at performances of a public nature, or which can be attended without expense to the Government, and does not authorize the purchase of tickets or payment of admission
to theatrical musical performances. Decision by Comptroller General McCarl, February 24, 1923:
Maj. F. J. Torney, finance officer, Washington Barracks, D. C., applied December 20, 1922, for review of the action of this office in disallowing, by settlement No. W–72718, dated September 7, 1922, items in his account for December, 1921, amounting to $203.25, pay'ments for tickets to operas and concerts in Washington purchased for use of the faculty, band leader, and students of the Army Music School at Washington Barracks.
In support of the payments the disbursing office cites the procurement order under which the tickets were purchased and paragraph 18-c of the Army Regulations governing the Army Music School, which provides :
Organizations, general training: Students in this course will be organized as a company, for all military and other purposes. They will be required to attend band, orchestra, and other performances, and such general musical and military training and development will be given them as ceremonies and occasions within the school, post, and adjacent city afford.
This regulation does not authorize purchase of tickets to theatrical musical performances. The “ ceremonies and occasions” referred to are clearly those of a public character, or such as may be attended without expense to the Government.
Procurement orders do not protect an Army disbursing officer in making an unlawful or unauthorized payment. If protection in advance of payment is desired by such officers, it is their right to submit doubtful questions to this office for decision.
Upon a review of the matter no differences are found and the settlement is sustained.
TIME-RECORDING CLOCKS-PURCHASE OF, BY FEDERAL TRADE
COMMISSION. The general policy indicated by Congress in the acts of July 7, 1898, 30 Stat, Comptroller General McCarl to the Chairman, Federal Trade Commission,
655, and February 24, 1899, 30 Stat., 864, precludes the purchase by the Federal Trade Commission of time-recording clocks.
February 27, 1923:
I have your letter of February 15, 1923, requesting decision whether payment for time-recording clocks, purchase of such clocks being under consideration by the Federal Trade Commission, can be properly made from the current fiscal year appropriation for the commission in view of the provisions of the acts of July 7, 1898, 30 Stat., 655, and February 24, 1899, 30 Stat., 864, which are, respectively, as follows:
Provided, That no recording clocks used for recording time of clerks or other employees shall be purchased for use in any of the Executive Departments at Washington, District of Columbia, except from moneys specifically appropriated therefor.
No money appropriated by this Act shall be used for expense of repairing recording clocks used for recording time of clerks or other employees in any of the Executive Departments at Washington, nor shall there hereafter be used in any of the Executive Departments at Washington any such recording clocks.
The appropriation for the Federal Trade Commission for the current fiscal year is included in the act of June 12, 1922, 42 Stat., 635, making appropriations for the Executive and for sundry independent executive bureaus, boards, commissions, and offices for the fiscal year ending June 30, 1923, and for other purposes, and is in part as follows (42 Stat., 639):
For all othér, authorized expenditures of the Federal Trade Commission in performing the duties imposed by law or in pursuance of law, including personal and other services, supplies and equipment, law books, books of reference, periodicals, printing and binding, garage rental, traveling expenses, including actual expenses at not to exceed $5 per day or per diem in lieu of subsistence not to exceed $4, newspapers, foreign postage, and witness fees and mileage in accordance with section 9 of the Federal Trade Commission Act, $850,000.
The question presented is very similar to that which was the subject of the decision reported in 24 Comp. Dec., 709, and, with necessary changes chiefly by reason of the difference of the two independent establishments concerned, what was therein said and held has equal application here.
The act of 1898 prohibits the purchase of time-recording clocks for use in any of the executive departments except from money specifically provided therefor. The Federal Trade Commission is not an executive department, and therefore the prohibition does not apply specifically. The act of 1899 prohibiting the use of such clocks in any of the executive departments does not include the Federal Trade Commission, although the commission in having its principal office in the city of Washington, as required by the act creating the commission, is similar to an executive department. The classes and duties of clerks and other employees are the same in the Federal Trade Commission as in an executive department,
There is no specific law prohibiting the Federal Trade Commission from purchasing time-recording clocks, and no law specifically prohibiting the commission from using such clocks, and this might properly be considered as reasons for viewing the appropriation for the current fiscal year as available for the purchase of time-recording clocks for the use of the commission, see also 27 Comp. Dec., 546, but in view of the general policy of Congress as evidenced by the laws hereinbefore quoted this office believes such purchases are not authorized
LONGEVITY PAY-OFFICERS OF THE COAST AND GEODETIC
An appointment as junior engineer in the Coast and Geodetic Survey prior
to July 1, 1922, did not constitute the appointee an officer of that service on that date within the meaning of the longevity provision for officers in section 1 of the act of June 10, 1922, 42 Stat., 627, and on being commissioned after July 1, 1922, as aid with relative rank of ensign, he becomes an officer “appointed on and after July 1, 1922," for the purposes of such longevity provision, and accordingly can not receive credit for the time served as junior engineer in computing length of service for longevity pur.
poses as aid. Comptroller General McCarl to J. M. Griffin, disbursing officer, Coast and Geodetic Survey, March 1, 1923:
I have your letter of February 2, 1923, requesting decision whether you are authorized to make payment to Edward P. Morton, aid, United States Coast and Geodetic Survey, of an item of $0.42 incorporated in a voucher submitted by him for pay and allowances as aid for the period from December 29 to 31, 1922, the item of $0.42 representing 5 per cent increase in base pay for three years' longevity service.
It appears that Mr. Morton was given a probationary appointment as junior engineer, $2,000 per annum, plus bonus, by the Secretary of Commerce, by selection from certification of eligibles, issued by the United States Civil Service Commission, effective upon entrance on duty May 4, 1922, and that he served in this capacity until December 29, 1922, when he was commissioned by the President as aid with relative rank of ensign.
It is stated that Mr. Morton's record at date of commission as aid shows 2 years 6 months and 18 days' commissioned service in the Army, and the 7 months and 25 days' service as junior engineer in the survey. He states he also has had service of 1 month and 21 days as an enlisted man in the Army.
Section 1 of the act of June 10, 1922, 42 Stat., 627, provides:
For officers appointed on and after July 1, 1922, no service shall be counted for purposes of pay except active commissioned service under a Federal appointment and commissioned service in the National Guard when called out by. onder of the President For officers in the service on June 30, 1922, there shali be included in the computation all service which is now counted in compating longevity pay, and service as a contract surgeon serving full time; and also 75 per centum of all other periods of time during which they have held commissions as officers of the Organized Militia between January 21, 1903, and July 1, 1916, or of the National Guard, the Naval Militia, or the National Naval Volunteers since June 3, 1916, and service as a contract surgeon serving full time, shall be included in the computation.
Section 1, page 626 of the act of June 10, 1922, contains the following provision, which brings into account the element of prior service:
Every officer paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his period for each three years of service up to thirty years:
Mr. Morton contends that within the meaning of the first-quoted provision of the act of June 10, 1922, junior engineers were officers of the survey on June 30, 1922.
Section 16 of the act of May 22, 1917, 40 Stat., 87, which gave to officers of the Coast and Geodetic Survey, when serving with the Army or Navy, relative rank with officers of those services provides:
And provided further, That the President is authorized to appoint, by and with the advice and consent of the Senate, the field officers of the Coast and Geodetic Survey, who are now officially designated assistants and aids
Aids shall rank with and after second lieutenants in the Army and ensigns in the Navy.
Section 11 of the act of May 18, 1920, 41 Stato, 603, provides: That in lieu of compensation now prescribed by law, commissioned officers of the Coast and Geodetic Survey shall receive the same pay and allowances as now are or hereafter may be prescribed for officers of the Navy with whom they hold relative rank as prescribed in the Act of May 22, 1917, including longevity;
Provided, That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services.
The act of June 10, 1922, deals only with the pay of commissioned officers of the Coast and Geodetic Survey, and it is evident that the provisions thereof relating to the counting of service by officers of the Coast and Geodetic Survey refer only to appointments to the commissioned grades of that service authorized by the acts of May 22, 1917, 40 Stat., 88; and May 18, 1920,41 Stat., 603, the lowest grade of which is aid.
Junior engineers are not“ officers” within the contemplation of the act of June 10, 1922. While classed by regulation as “junior field officers ” they are appointed as others to the classified service of the Government, and paid from the annual lump sum appropriation for party expenses. Whether their duties are military or quasimilitary is immaterial to the question of their official status. The distinction in office is clearly set forth in the chapter on Personnel beginning with page 28 of the Regulations for the Government of the United States Coast and Geodetic Survey.