A-7070, FEBRUARY 21, 1925, 4 COMP. GEN. 706

A-7070, FEBRUARY 21, 1925, 4 COMP. GEN. 706

COAST GUARD PAY - OFFICER DETAILED TO DUTY WITH A STATE WHERE AN OFFICER OF THE COAST GUARD WAS DETAILED TO DUTY WITH A STATE AND THERE IS NO SHOWING THAT THE DUTY TO WHICH ASSIGNED WAS A PART OF THE AUTHORIZED WORK OF THE COAST GUARD, CREDIT MAY NOT BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR DISBURSEMENTS OF PAY AND ALLOWANCES TO THE OFFICER WHILE ON THE DETAIL, AS THE APPROPRIATION FOR THE COAST GUARD IS ONLY AVAILABLE FOR ITS AUTHORIZED WORK.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 21, 1925:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION PAYMENT MADE TO LIEUT. COMMANDER M. S. HAY, UNITED STATES COAST GUARD, DURING THE MONTHS OF FEBRUARY, MARCH, APRIL, AND MAY, 1924, AND APPEARING IN THE ACCOUNTS OF WILLIAM H. WEBB, SPECIAL DISBURSING OFFICER, UNITED STATES COAST GUARD. DURING THE PERIOD INVOLVED COMMANDER HAY WAS ON DUTY PURSUANT TO THE FOLLOWING ORDER DATED JUNE 19, 1923: FROM. COMMANDANT. TO: LIEUTENANT COMMANDER M. S. HAY, PEQUOT. SUBJECT: NEW ASSIGNMENT; MOVEMENT ORDERS; MILEAGE.

1. ON JUNE 26, 1923, PROCEED TO PHILADELPHIA, PA., AND REPORT IN PERSON TO MR. GEORGE F. SPROULE, PRESIDENT OF THE BOARD OF COMMISSIONERS OF NAVIGATION OF THE STATE OF PENNSYLVANIA, AT ROOM NO. 344, BOURSE BUILDING, FOR ASSIGNMENT TO DUTY AS COMMANDING OFFICER OF THE PENNSYLVANIA NAUTICAL SCHOOLSHIP ANNAPOLIS, AND SUCH OTHER DUTIES AS HE MAY DIRECT.

2. THESE ORDERS CONSTITUTE A PERMANENT CHANGE OF STATION FROM NEW LONDON, CONNECTICUT, TO PHILADELPHIA, PENNSYLVANIA.

W. V. E. JACOBS.

ACTING.

THE TRAVEL INCIDENT TO THE EXECUTION OF THE FOREGOING ORDERS IS HEREBY AUTHORIZED. MILEAGE IS ALLOWED.

(SIGNED) EDWARD CLIFFORD,

ASSISTANT SECRETARY.

IT IS STATED THAT IN REPLY TO INQUIRY COMMANDER HAY HAS INFORMED THE COMMANDANT OF THE COAST GUARD AS FOLLOWS:

THE STATE OF PENNSYLVANIA, THROUGH THE BOARD OF COMMISSIONERS OF NAVIGATION, PHILADEOLPHIA, A., PAYS ME A SALARY OF $250 PER MONTH FOR SERVICES AS SUPERINTENDENT OF THE STATE NAUTICAL SCHOOL, AND COMMANDER OF THE SCHOOLSHIP ANNAPOLIS.

IT IS STATED THAT THE DETAIL WAS MADE PURSUANT TO AN OPINION OF THE SOLICITOR OF THE TREASURY DEPARTMENT OF NOVEMBER 17, 1919, THAT:

THE NAVAL APPROPRIATION ACT OF AUGUST 29, 1916 (39 STATS. 601), CITED BY YOU PROVIDES:

"ANY COMMISSIONED OR WARRANT OFFICER, PETTY OFFICER, OR OTHER ENLISTED MAN IN THE COAST GUARD MAY BE ASSIGNED TO ANY DUTY WHICH MAY BE NECESSARY FOR THE PROPER CONDUCT OF THE COAST GUARD.'

THE AUTHORITY THEN TO MAKE THE ASSIGNMENT IN QUESTION DEPENDS UPON THE CONSTRUCTION OF THE WORDS "NECESSARY FOR THE PROPER CONDUCT OF THE COAST GUARD," OR RATHER THE WORDS "NECESSARY" AND ,CONDUCT.'

IN DEFINING THE WORD "NECESSARY" BOUVIER SAYS:

"REASONABLY CONVENIENT. 19 SO.REP. 202. THIS WORD HAS GREAT FLEXIBILITY OF MEANING. IT IS USED TO EXPRESS MERE CONVENIENCE, OR THAT WHICH IS INDISPENSABLE TO THE ACCOMPLISHMENT OF A PURPOSE. 43 ILL. 307. FREQUENTLY IMPORTS NO MORE THAN THAT ONE THING IS CONVENIENT, OR USEFUL, OR ESSENTIAL TO ANOTHER; 4 WHEAT. 414.'

IN THE SENSE USED IN THE STATUTE ABOVE REFERRED TO I THINK THE WORD MEANS "CONVENIENT" OR ,USEFUL.'

THE WORD "CONDUCT" IS GENERALLY DEFINED AS "THE ACT OR MANNER OF CARRYING ON, DIRECTING OR MANAGING, AS A BUSINESS; MANAGEMENT; DIRECTION.'

IT WOULD SEEM FROM THE STATEMENTS OF YOUR LETTER AND THOSE OF THE CAPTAIN COMMANDANT THAT THE INSTRUCTION TO BE GIVEN BY AN OFFICER OF THE COAST GUARD IN THE PERFORMANCE OF HIS DUTY AS SUPERINTENDENT OF THE NEW YORK STATE NAUTICAL SCHOOL WOULD BE USEFUL IN THE CARRYING ON OR MANAGEMENT OF THE COAST GUARD.

CONSIDERATION MAY ALSO BE GIVEN TO THE FACT THAT THE GOVERNMENT HAS EVIDENCED MUCH INTEREST IN THESE SCHOOLS AND THE BUILDING UP OF OUR MERCHANT MARINE BY APPROPRIATIONS AND OTHERWISE.

IT IS MY OPINION, THEREFORE, THAT THE ASSIGNMENT IN QUESTION MAY BE MADE.

THE OPINION OF THE SOLICITOR OF THE TREASURY IS ENTITLED TO DUE AND PROPER CONSIDERATION, BUT IS NOT CONTROLLING IN THE MATTER NOW BEFORE THIS OFFICE. IN VIEW OF THAT OPINION, THE MATTER HAS BEEN CAREFULLY AND EXHAUSTIVELY EXAMINED. THIS IS NOW SET FORTH AND THE NECESSITY FOR REACHING A DECISION CONTRARY TO THE OPINION QUOTED WILL FULLY APPEAR.

THE COAST GUARD WAS CREATED BY THE ACT OF JANUARY 28, 1915, 38 STAT. 800, AND CONSISTS OF WHAT THERETOFORE WAS THE REVENUE CUTTER SERVICE AND THE LIFE SAVING SERVICE. THE PRIMARY DUTIES OF THE REVENUE CUTTER SERVICE WERE IN CONNECTION WITH THE CUSTOMS, REVENUE, AND SHIPPING LAWS. SEE SECTIONS 2747, 2758, 2760, AND 2762, REVISED STATUTES, AND BY THE ACT OF JULY 7, 1884, 23 STAT. 199, IT WAS PROVIDED THAT:

* * * HEREAFTER REVENUE CUTTERS SHALL BE USED EXCLUSIVELY FOR THE PUBLIC SERVICE, AND IN NO WAY FOR PRIVATE PURPOSES.

THE LIFE SAVING SERVICE WAS OF GRADUAL GROWTH AS RESULT OF AUTHORIZATION AT VARIOUS PLACES OF LIFE SAVING STATIONS; BY THE ACT OF JUNE 18, 1878, 20 STAT. 164, A GENERAL SUPERINTENDENT WAS AUTHORIZED TO BE APPOINTED AND HIS DUTIES DEFINED; ADDITIONAL STATIONS HAVE BEEN FROM TIME TO TIME AUTHORIZED BY STATUTE, AND PROVISION ALSO HAS BEEN MADE FOR THE AUTHORITY, DUTIES, PAY, ETC., OF OFFICERS AND MEN OF THE SERVICE. THE COMPLETE PROVISION CONTAINED IN THE ACT OF AUGUST 29, 1916, 39 STAT. 601, A PART OF WHICH ONLY WAS QUOTED IN THE OPINION OF THE SOLICITOR OF THE TREASURY, IS:

ANY COMMISSIONED OR WARRANT OFFICER, PETTY OFFICER, OR OTHER ENLISTED MAN IN THE COAST GUARD MAY BE ASSIGNED TO ANY DUTY WHICH MAY BE NECESSARY FOR THE PROPER CONDUCT OF THE COAST GUARD; AND THE SECRETARY OF THE TREASURY IN TIME OF PEACE AND THE SECRETARY OF THE NAVY IN TIME OF WAR MAY, IN HIS DISCRETION, MAN ANY COAST GUARD STATION DURING THE ENTIRE YEAR, OR ANY PORTION THEREOF, MAINTAIN ANY HOUSE OF REFUGE AS A COAST GUARD STATION, AND CHANGE, ESTABLISH, AND FIX THE LIMITS OF COAST GUARD DISTRICTS AND DIVISIONS.

THAT THE INTENT AND PURPOSE OF THE PROVISION WAS ANY OTHER THAN TO SECURE THE COMPLETE AMALGAMATION OF THE TWO SERVICES INTO A SINGLE EFFECTIVE ORGANIZATION CREATED LESS THAN TWO YEARS BEFORE BY THE CONSOLIDATION OF TWO SEPARATE, DISTINCT, AND SOMEWHAT UNRELATED SERVICES IS NOT APPARENT; THAT IT WAS NOT AUTHORITY TO DETAIL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN TO DUTY WITH A STATE, MUNICIPALITY, CORPORATION, OR INSTITUTION MAINTAINING AN ACTIVITY EITHER PROXIMATELY OR REMOTELY RELATED TO THE WORK OF THE COAST GUARD SEEMS OBVIOUS. THE FURNISHING OF PERSONNEL FROM THE MILITARY OR CIVIL ESTABLISHMENTS OF THE FEDERAL GOVERNMENT TO AID A STATE IN THE DEVELOPMENT OF FEDERAL PLANS OR PURPOSES, WHEN AUTHORIZED, IS PROVIDED FOR IN LANGUAGE THE MEANING OF WHICH IS CLEAR. FOR EXAMPLE, SEE ACT OF MARCH 4, 1911, 36 STAT. 1353, AUTHORIZING THE DETAIL OF OFFICERS OF THE NAVY FOR THE VERY DUTY WHICH COMMANDER HAY APPEARS TO BE PERFORMING FOR THE STATE OF PENNSYLVANIA. SEE ALSO SECTIONS 40B AND 55C OF THE ACT OF JUNE 4, 1920, 41 STAT. 777 AND 780; AND SECTION 100 OF THE ACT OF JUNE 3, 1916, 39 STAT. 208.

THE COAST GUARD, BY THE TERMS OF THE ACT OF JANUARY 28, 1915, IS CONSTITUTED A PART OF THE MILITARY FORCES OF THE UNITED STATES TO OPERATE WITH THE TREASURY DEPARTMENT IN TIME OF PEACE AND AS A PART OF THE NAVY DEPARTMENT IN TIME OF WAR, AND IT WAS HELD IN LOUISVILLE AND NASHVILLE RAILROAD CO. V. THE UNITED STATES, 258 U.S. 374, THAT WHEN THE COAST GUARD OPERATES AS A PART OF AND AT THE EXPENSE OF THE TREASURY DEPARTMENT, ITS MEMBERS ARE NOT TROOPS OF THE UNITED STATES.

ARTICLE 1, SECTION 9, OF THE CONSTITUTION, PROVIDES:

NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW; * * *.

HAVING REFERENCE TO THIS PROVISION, THE COURT OF CLAIMS, IN COLLINS V. THE UNITED STATES, 15 CT.CLS. 35 ET SEQ., SAID:

THAT PROVISION OF THE CONSTITUTION IS EXCLUSIVELY A DIRECTION TO THE OFFICERS OF THE TREASURY, WHO ARE INTRUSTED WITH THE SAFEKEEPING AND PAYMENT OUT OF THE PUBLIC MONEY, AND NOT TO THE COURTS OF LAW; THE COURTS AND THEIR OFFICERS CAN MAKE NO PAYMENT FROM THE TREASURY UNDER ANY CIRCUMSTANCES.

WHEN THIS COURT GIVES JUDGMENT AGAINST THE UNITED STATES, THE CONSTITUTIONAL PROHIBITION REFERRED TO APPLIES TO THE JUDGMENT AS IT DID TO THE CLAIM UPON WHICH IT IS FOUNDED. THE OFFICERS OF THE TREASURY CANNOT PAY THE JUDGMENT UNLESS THERE IS AN APPROPRIATION THEREFOR, EITHER IN THE GENERAL FORM FOR THE PAYMENT OF JUDGMENTS OF THIS COURT OR SPECIALLY FOR THE PARTICULAR CASE. * *

SECTION 3678, REVISED STATUTES, PROVIDES:

ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

THE APPROPRIATION FOR THE FISCAL YEAR 1924 FOR THE TREASURY DEPARTMENT, ACT OF JANUARY 3, 1923, 42 STAT. 1087, UNDER "COAST GUARD," 1098, APPROPRIATES FUNDS---

FOR EVERY EXPENDITURE REQUISITE FOR AND INCIDENT TO THE AUTHORIZED WORK OF THE COAST GUARD, AS FOLLOWS * * *

FOR PAY AND ALLOWANCES PRESCRIBED BY LAW FOR COMMISSIONED OFFICERS, CADETS AND CADET ENGINEERS, WARRANT OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED MEN, ACTIVE AND RETIRED, TEMPORARY COOKS AND SURFMEN, SUBSTITUTE SURFMEN, AND ONE CIVILIAN INSTRUCTOR, $8,300,000, * * *.

THE DEFICIENCY APPROPRIATION ACT OF APRIL 2, 1924, FOR THE FISCAL YEAR 1924 AND PRIOR YEARS, AND MAKING SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR 1924, 43 STAT. 50, UNDER "COAST GUARD" APPROPRIATES IN EXCESS OF $12,000,000 FOR ADDITIONAL MOTOR BOATS AND THEIR EQUIPMENT AND FOR REPAIRS AND ALTERATIONS TO VESSELS TRANSFERRED FROM THE NAVY DEPARTMENT "FOR THE USE OF THE COAST GUARD IN ENFORCING THE LAWS OF THE UNITED STATES AND IN PERFORMING THE DUTIES WITH WHICH THE COAST GUARD IS CHARGED," AND CONTAINS A DEFICIENCY APPROPRIATION UNDER PAY AND ALLOWANCES OF NEARLY A MILLION DOLLARS.

IT HAS NOT BEEN SUGGESTED THAT THE DETAIL OF COMMANDER HAY TO DUTY WITH THE STATE OF PENNSYLVANIA AS COMMANDING OFFICER OF THE PENNSYLVANIA NAUTICAL SCHOOL SHIP ANNAPOLIS, OR THAT HIS PERFORMANCE OF THE DUTIES OF SUPERINTENDENT OF THE STATE NAUTICAL SCHOOL, WAS A PART OF THE AUTHORIZED WORK OF THE "COAST GUARD," OR THAT HE WAS PERFORMING DUTIES "WITH WHICH THE COAST GUARD IS CHARGED.'

BY REFERENCE TO THE NAVY DIRECTORY FOR JANUARY, 1925, IT IS NOTED THAT THE ANNAPOLIS IS LISTED AS,"OUT OF COMMISSION (LOANED TO STATE OF PENNSYLVANIA).' IT IS ASSUMED THAT THE LOAN OF THE VESSEL WAS MADE UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1911, WHICH AUTHORIZED THE SECRETARY OF THE NAVY TO LOAN VESSELS TO STATES "TO PROMOTE NAUTICAL EDUCATION," AND BY SECTION 3 AUTHORIZED THE PRESIDENT "WHEN IN HIS OPINION THE SAME CAN BE DONE WITHOUT DETRIMENT TO THE PUBLIC SERVICE, TO DETAIL PROPER OFFICERS OF THE NAVY AS SUPERINTENDENTS OF OR INSTRUCTORS IN SUCH SCHOOLS," WITH A PROVISO:

* * * THAT IF ANY SUCH SCHOOL SHALL BE DISCONTINUED, OR THE GOOD OF THE NAVAL SERVICE SHALL REQUIRE, SUCH VESSEL SHALL BE IMMEDIATELY RESTORED TO THE SECRETARY OF THE NAVY AND THE OFFICERS SO DETAILED RECALLED: AND PROVIDED FURTHER, THAT NO PERSON SHALL BE SENTENCED TO OR RECEIVED AT SUCH SCHOOLS AS A PUNISHMENT OR COMMUTATION OF PUNISHMENT FOR CRIME.

THIS STATUTE SEEMS TO HAVE PROVIDED A COMPLETE SCHEME FOR FEDERAL AID FOR STATE NAUTICAL SCHOOLS; ONLY OFFICERS OF THE NAVY WERE AUTHORIZED TO BE DETAILED AS SUPERINTENDENTS OR INSTRUCTORS AND SUCH DETAIL WAS REQUIRED TO BE MADE BY THE PRESIDENT AND ONLY WHEN IN HIS OPINION IT COULD BE DONE WITHOUT DETRIMENT TO THE PUBLIC SERVICE. THE DETAIL OF OFFICERS OF THE COAST GUARD IN LIEU OF NAVAL OFFICERS, AND BY ANY OTHER THAN THE PRESIDENT, SEEMS TO BE AN INFRINGEMENT UPON AND MODIFICATION OF THE STATUTORY SCHEME FOR FEDERAL AID. IF SUCH DETAIL IS AUTHORIZED INDEPENDENT OF AND CONTRARY TO THE TERMS OF THE STATUTE, THE STATUTE IS USELESS. IT SHOULD BE OBSERVED ALSO THAT THE DETAIL WAS MADE AT A TIME WHEN THE COAST GUARD WAS RECEIVING GREATLY INCREASED APPROPRIATIONS AND GREATLY INCREASED PERSONNEL IN CONNECTION WITH THE ENFORCEMENT OF THE LAWS OF THE UNITED STATES; SEE DEFICIENCY APPROPRIATION ACT OF APRIL 2, 1924, 43 STAT. 50, THE ACT OF JANUARY 12, 1923, 41 STAT. 1130, PROVIDING FOR ADVANCEMENT IN GRADE OF VARIOUS OFFICERS OF THE COAST GUARD, AND ACT OF APRIL 21, 1924, 43 STAT. 105, AUTHORIZING A TEMPORARY INCREASE OF THE COAST GUARD FOR LAW ENFORCEMENT.

THE DUTY TO WHICH COMMANDER HAY WAS ASSIGNED SO FAR AS THE FACTS PRESENTED INDICATE WAS NOT CONNECTED WITH THE AUTHORIZED WORK OF THE COAST GUARD, AND THE APPROPRIATION FOR PAY AND ALLOWANCES OF OFFICERS OF THE COAST GUARD BEING AVAILABLE ONLY FOR ITS AUTHORIZED WORK IS NOT AVAILABLE FOR THE PAY AND ALLOWANCES HERE IN QUESTION.

THE ITEMS WILL BE DISALLOWED IN THE NEXT SETTLEMENT OF THE DISBURSING OFFICER'S ACCOUNTS.