Brief for the United States — United States v. Dickerson

Supreme Court brief1940

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No. 700

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' + Qnihe Supreme Gourt of the Winted States |

OctToBE, x TERM, 1939

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hee : se eer

: | THe UNrrep STATES, PETIFIONER

a . EMMETT F. DICKERSON.

\ QN WRIT OF CERTIORARI hoe WE COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

INDEX

; Page’

Opinion below — ‘ Reta van Ghee ines 1

Jurisdiction. =_*- ; re eee tira oe inate arere 1

Question presented — ; - 1

Statutes involved — —- : 2

Statement __- 2

Specification of errors to be urged - 3

Summary of argument. 4

Argumeng : : 5

Conclusion _. eee? ia a * Lecce 90

Appendix. A — enn , ; 20

Appendix BL _ ao a ae

Appendix C_- as aa ; 28

CITATIONS ©

Cases: : a

Archbald v. United States, 218 Fed. 270..-....+-...----. 18

Belknap v. United States, 150 U.S. S88... _- _....- 6,7, 18

Bell v.. United States, 35: Fed. sso <4e ‘ ni 19

' Brooks v. United States (KE. DLN. Edy decided November

2, 1939, not officially reported _____- Se Re ee os 6

Dunwoody v. United States, 143 U.S 578 ae re Fe ete 6

Erwin v. United States, 37 Fed. eg 5 fe : 18

Helvering v. Hallock, No. 110, this Ter ‘rm, decided January

“29, 1940. _. b tepte ds! 17

. Mathews v. l ‘nited States, ) 2 2 ee Stent 7

United States ex rel. Gillett v. Dorm, on 20 6... 6. 6G.

United States v. Aldrich, 58 Fed. 688_.-— _- ae 19

United States v. Langston, 118 U. ng ae a a ee 7,18

United States v. Mitchell, 109 U.S. 146__ ~~ - 7" 6, 7,8

‘United States v. Perry, 50 Fed. 743. Boe _. 6,16

United States v. Vulte, 233 U.S. . are ee

Wallace v. United States, 133 U8. 180. I See Rey ee 6

Statutes: ! oe

Act of June fo, 1922, c. 212, 42 Stat. 625, 629-630 (U.S. C.,

Title 10, Sec. 633, Title 37, Sees. 13, “—6): . .-

S % oe esrconntese Se.

See. 10____- fos Ant yk me ore oe st Oe

Act of June 30, 1932, Pt. iT, ¢. 314, « Stat. Btinsccccae = oO

1 Other statutes are cited in Appendix. B, but are not referred to in

the’fext of this brief, and are, therefore, not included in this index.

221190 —-40——1 (I) ;

Statutes—Cortinued. ; Page

Act of March 3, 1933, ¢. 212, 47 Stat. 1489, 1513-1519:

® Sees. 2-18... ._-_-. eres 5 Fe

Act of March 20, 1933, c. 3, “48 Stat. 8. - iio -.. 8,17

Act of March 28, 1934, Title I], Economy Provisions, :

c. 102, Sec. 24, 48 Stat. 509, 522-523. 8,:17, 22

Act of May 28, 1937, c. 277, 50 St&t. 213, 232.______. . 17,21

Act of May 14, 1935, c. 110, 49 Stat. 218, 2267. ______ 17,22

Act of June 23, 1936, c. 725, 49 Stat. 1827, 1837, ....___ 17, 22

Publie Resolution No. 122, June 21, 1988, ¢. 554, 52 Stat.

809, S18: :

Sec. 403._..... Se Siam _, 13,4,5,21

Miscellaneous: ; ? '

81 Cong. Ree. 4426, 5083 5084, 5088. 5091 - ; 10.11

83 ong. Ree.:

8553 8554 > ae Sawees aie plaws 14

‘(f/f $556-8557__.- , ‘ Tats pause 14

R565 S568... ; Fa ete ae EN 14

S56F—.. 2... . ek Yao ay air ee 12

Otay... . ° 3S 16

eee ee : ; ane soou See

Sen ae ee SEL. ae er 15

9512... cage ane Fees cana eae sae

9667-9669. __ © © Oy Pen 15

9671.... iS een panben ss ate rath aces 17

9677 9679.) tos ES eT

9678-9679. ___ tees ME pie: sepa 13

S. Rept. 2161, 75th Cong., 3d Sess, a? ee , 16

H. R. 10851, 75th Cong., sd Sess. 7, 12, 13, 14, 15

H. J. Res. 679, 75th C ONK., 3d Sess. oe 12,15, 17

Senafe Rute XVI 2 oF = : 12

-House Rule XXI, See. 2. - ah oke <a

nice, Legislative Problems: (1935), pp. 421 et seq m 16_

TEP

Inthe Supreme dan of the inited sine

OcTOBER ‘TERM, 1939

Fibs | ‘No. 705

T HE: Uneven Str ATES, PETITIONER

A |

EMMETT F. DICKERSON

7 : Q ;

ON WRIT OF CERTIORARI TO THE COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion i of the Court of Claims. (R. 3-9) is

not yet officially reported.

JURISDICTION

The judgment of. the Court of Claims was en-

- tered November 6, 1939 (R. 9). The petition for |

a writ of certiorari was filed February 6; 1940 (R.

9), and granted March 25, 1940. The jurisdiction

of this Court.rests upon Section 3 ( b) of the Act

of February 13, 1925, as amendéd. 7

QUESTION PRESENTED

‘Whether Section 402 of Public Resolution No.

* 122 of June 21, 1938, tfra, p. 21, suspends the én-

(1)

“are set

listment allawance otherwise payable. under See-°

tion 9 of the Aew of June 10,1922, infra, p. 20, to

men reenlisting inthe military forces of the United

States during the fiscal year ending June 30, 1939,

‘ STATUTES INVOLVED

The applicable portions of the statutes’ involved

rth in Appendix A, caffra, pp. 20-22,

STATEMENT — Mi

The respondent has served in the United States.

Army as a priyate or a noncommissioned officer

With substantial‘continuity since August, 1917 (R.

3). He was honorably discharged upon the ex-

ae : Lew): b ; .:

piration of eaeh Of his enlistments, his last dis-

charge being from.an enlistment tesminating on

-Jnty 21, T1938 R. 3). On July 22, 1938, he re-

entisted for another gar vear term, and iss now

serving in the Army (R.

Section. 9 of the Act of an 10, 1922, sinlniibad

that after July 1, 1922, an enlistment allowance -

should be paid to every honor ably discharged en-

listed man who reent, sts within a period of three

months from the date of his discharge. The Act

of March 3, 1933, “suspended” for the fiscal year

ending June 30, 1934, so much of Sections 9 and

lof the Act of June 10, 1922, as provided for the

payment of enlistment allowances. ‘This suspen-

sion was continued in identical language for the

fiscal vears 1935, 1936, and 1937. - However, ‘differ-

«nt statutor Vv mangMage Was is employed for was vears

SE RTIIC S?

Ri ah sesh Bein

ey ne One ee

1938-and 1939. Thus, Section 402 of Public Reso-

lution No. 122, approved June 21, 1938, provided |

in substance that no part of any appropriation con-

tained in that or any other Act for the fiscal year

ending June 30, 1939, should be available for the

payment of enlistment allowances for’ reenlist-

ments, ne! withstanding the provisions of Sections

y and 10 of the Act of June 10, 1922. Similar pro-

visions had been made for the fiseal year 1938.

- When respondent reenlisted.on July 22, 1938, he

Was hot paid an enlistment allowance, although le

had reenlisted within three months from the date’

upon which Hé'‘had been honorably discharged

from his’ preceding term (R. 3). If respondent

were entitled to an enlistment aliowance for his

‘reenlistment of July 22, 1938, there is due him the

sum of $75.00 (R. 3).

Respondent brought suit in the Court of Claims,

to recover the sum of $75.00, alleged to be owing

to him under the provisions of Section 9 of the

Act of. June 10, 1922. The United States opposed

the claim on the ground that Section 402 of Pubhe

Resolution No, 122 of Jame 21, 1938, suspended the

allowance for reenlistment during the fiseal year

ending June 30, 1939. The Court of Clainis en-

~ tered judgment for the respondent.

SPECIFICATION OF ERKORS TO BE URGED

The Court of ¢ hai erred:

1. In holding th: it an enlisted man ree sisting in

the Army during the fiseal vear ending June. 30,

~-C P - . ‘ ° 7

. es ee |

ine, ana complying with the terms’ of. Section 9

* thie Act of June, 10, 1922, is entitled to recover

an n en iognent allowanve, : dk

: In failing, to hold that Section 402 of Publie

Re acieition No. 122 of June 21, 1938, suspends the

ogpayment of any. enlistment allowance which. might

he. otherwise pay dible under ‘Sections 5 and 10 of.

* the Act of June 10, 1922, toa man reenlisting i mn) ‘the

military or oter unifortned forces of the United

"Sta ates during the fiscal year ¢ “ending June 30, 1939.

. In holding that the purpese Lae effect of Sec-

ten 402 of. Publie Redolution ¥ ». 122 oF June 21,

193s, and the Act of May 28. A fn differed fromthe

hob pnean rate

pUTpose andl effect of Section 18° of: the Act of™~ ;

March 3,:1933, and-i*entiéal, provisions. in subse-

quent.” Nets which Suspension: payment .of the -.

enlistment allowance } provided in Sections 9 and 10

of the set of June 10, 1922. |

1. In holding that the only purpose and effwt of

Section 402 of Public Resolution No. 122 was to

prohibit the. payment of enlistment allowances’

from the funds appropriated for the fiscal year

e nGng dune 30, 1 939. .

. In entering judgment for the respondent.

SUMMARY OF ARGUMENT

The queStion whethera restriction gn the expend-

itive wf appropriated funds suspends an allowance ’

authorized by prior legislation depends solely’ on-

thé mtention of Congress, The proviso-of Section

We of Pub. Res. No. 122 was intended to suspend |

Ma ah, Sa tae

the right to an enlistment allowance for the fiscal

yer 1939 and not merely to prohibit the use of ap;

_ propriated funds for such purpose. , That such Was

the intention is clear from the face of the statute

and the Aegislative histor y. The difference be-

tween the form of language employed i in the fiseal

years 1938 and 1939 and that used in the appropria-

tion Acts in the four preceding years was due ‘not

to a difference in Congressional intention but was

probably attributable to ‘considerations of parlia-

mentary tacties and st rategy.’’ an |

a ' ARGUMENT

I nt roductory. —Seetion 402 of Public. Resolistion

No, 122, infra, p. 2%, provided that “no part of any

‘appropriation contained in this or any other Act

for the fiseal year ending June 30, 1939, shall be.

available for the payment’ of any enlistment al-

lowances for ** reenlistments made during the fisegl

- vear ending. June 30, 1939, notwithstanding the ap- ©

plicable portions of sections 9 and 10°’ of the Act

of June 10, 1922. The eourt below. held that the:

limitation expressed in this proviso had for its sole

purpose the placing of an inhibition upon the ae-

counting officers of the Government against the |

payment of such allowances, and that it left unim-

paired the right of men reenlisting in the uni-

formed services of the’United States to receive such

enlistment allowances.” If ‘concluded that the

obligation of the United States to pay. such allow-

ances remained in full force and effect atid that the

tye

o -

United States was legally laple therefor, notwith-

standing the prohibition of the statute against

parRnent. , . a ; *

Wa&submit that-the decision of the court” below

Was incorrect. In cases of this character the law is

well settled that the intent of Congress is control.

ling. The language of the Act itself, its legislative

history, the ordinary rules of statutory construc-

tion, and the manner in which the Congress ¢om-

monly employs provisos to. appropriation Acts to

achieve similar results clearly disclose that Con-

gress intended to suspend the payment te en-°

listment allowances for the fiscal year 1939, The

U nited States Distritt ‘Court for the ete Dis-

trict of New York so held in Brooks v. United

States (decided Nov ember : 2, 13 9, not vet officially

T his © ourt bas consistently held that the eis “et

on prior degislation of a en the

use of appropriated funds fer a pur thereto-

fore authorized is to ‘be dete rmined by the intent

of: Congress: it may SUSpe nd, supersede, or modity

the prior authorizing legislation if Conguess sO TN

tends, United States ve Mitchell, 109 UL S. 146,

150; Dunwoody v. United States, 3 U.S. 998;

Balhuapyv. United States, V ih S.OSS8, 503: United

States Vv. Vulte, 233 U.S. 509, 515; United States V.

Perry, 50 Fed. 743, 748 (C. C. . Sth): cf. Wallace

v. United States, 133 U.S. 180; 0 nited. States’ or

rel. Gillett v. Dern, 74 F. (2d) 485 (App: D. C.).

sive oot nba

ail

As this Court. observed in United States v. Mitchell

(i09 U. S. 146, at 150): **'The whole question de-

pends on the intention of Congress as expressed in

the statutes. * See Belknap v. United States, 150

U.S. 588, 595, . ;

9 A deliberate limitation in an appropriation

Act on the use of appropriated funds evidences on

its face an intention to modify or suspend pro tanto -

a prior authorization. This Court has consistently

so held whrever such ‘suspension or modification

would serve a reasonable or rational-end.: United

States v. Mitchell, 109 U.S. 146; Mathews Vv.

United States, 123-U. S. 182: Belknap V: United

States, 150 U.S. 588; U nited States v. Vulte, 233

U.S. 509; ef. United States V. ais ante 118 U.S.

389. '

The purpose of the restriction in question, quite

obviously, was to reduee the ordinary expenditures

of the Government during a period of eéonomie |

crisis. A provision expressly suspending the en-

listment ‘aliowance was first adopted in the 'Preas-

ury-Post Office Appropriation Act. of 1934 (see. 18

of the Act of March. 3, 1933, 6, 212, 47 Stat. 1489,

1519). The suspension was contemporaneous with

other economy measures reducing salaries and other

ordinary expenditures of theeGovernment (see Act

of June 30, 1932, Pt. 1], ¢. 314, 47 Stat. 399), was.

but one of several economy provisions in the Treas:

ury-Post Office Appropriation Jct of 1934 (see see-

tions 2-18 of the Act of Marcel, 1933, 47 Stat. 1489,

221190,—40———2 ,

8 »®

1513-1519), and was continued in effect for the

fiscal year. 1935 as an amendment to the Economy

‘Act of March 20, 1933, e. 3, 48 Stat. 8 (see Act of

March 28, 1934, Title LI, Econemy Provisions, 48

Stat. .509, 523). The restriction on the use of all

appropriated funds in the statute here’ in question ~

merely continued the policy first established in

19333. : : ea.

+, ‘The purpose of. Congress would obviously be

defeated if Judgments for enlistment allowances’

could be obtained in the Court’of Claims to be paid

from appropriations for the payment of such judg-

ments. That Congress did not withhold payment:

out of funds appropriated by this statute merely to

permit payment out of another appropriation Act

is evident Igy the express provision that the re-

striction should extend to the use of funds appre-

priated by ‘this.or any. other Act.” It may be

true that a judgment in the Court of Claims for

enlistment allowancegmight net be presented for

payment until a subsequeht year, but the purpose

of Céngress in forbidding the payment of enlist-

nent allowances was to eliminate certain expendi-

tures, not merely to postpone them. Any con-

tention that Congress intended only to «postpone

payment for the period required to obtain a judg-_

ment in the Court ef Claims is sufficiently answered ¢

by the fact that the prohibition has been continued

n the appropri: ition Acts for six consecutive years.

4 “nitedsStates Vv. Mitchell, 09 UL S.. 146, 149.

Moreover, since the purpose of Congress was ad-

. ~ a ~ ah it

at siteiiaoamataal

eee

A pete Nee TS

mittedly to achieve some economy, it eculd uot have

-“been the intention to remit claimants of enlistment

allowances to a suit in the Court of Claims and thus _

not only to put the claimaut to an unreasonable eX-

pense but. to incur for the Government certain

unavoidable costs of litigation.’ ‘

‘The éourt below, it should be observed, did not

shold that the right to .an enlistment allowance

could not be. suspended by a provision in an appro-

priation Aet. The court acknowledged that the. ex-

press ‘“‘suspension’’ of the right in Section 18 of

‘the: Treasury-Post Office Appropriation Act of

1934, continued: in identical language in various

appropriation Acts through the fiscal year 1987,

extinguished the right to an allowance for those

yearsyand that recovery for that period could not

be obtained in the Court of Claims. The court ,

took the: view, however, that the change in_ the

language in the appropriation Acts for the fiscal

‘ais 1938 and 1939 and the omission in these stat-

utes of language expressly. ‘suspending”’ the al-

lowance evidenced a Congressional’ intention

'We are advised by the Comptroller General that there

‘are approximately «100.000 scheduled claims for estimated

nlowances for. the fiscal vears of 1938 alt 1939, each: of

which could be made the subject matter of an independent

suit. Even though the legal question involved were decided

adversely to the Government in. this proceeding, it- would .

be necessary to reduce each claim to judgment in the Court

of Claims.since.the allowance could not be paid save out of

an appropriation to pay’ judgnients against the United

States.

10 %

merely tw restrict the use of the 2 ppropriated

funds’ Without ‘suspending’ the right and that

suit to recovery the allowanee could therefore be.

maintained inthe Court ef Clainas. es

The court below, we suggest. failed te oive offeet

te the tanguage of the appropriation Sets for the.

fiscal vears 1938 and l989¢providing that enbist-

nient allowances should not be-paid *notwithstand-

hig the applicable provisions of sections 9 and 1"

of the Act of June 10, 1922, authorizing the pay-

nent oof enlistment allowances. The: conclusive

answer, however, as the legislative listoery demon:

strates, is that the change fa the formeof langnage

did not reflect a change of inteition but at most

a change of parliamentary prowdure,

3..The provisions With respeet to the vear 1938

originated as an amendment, introduced by Sena-

tor Byrnes, to the second deticieney appropriation

Act for the fiscal vear 1937. The amendment, in

language identical, with the statutary Provisions

applicable heres prohibited the use of appropriated

funds for the payment of enlistment allowanees ©

for the vear L938. Senator Byrnes stated (ST Cong,

Ree. 4426):

* *

— * the language of the amendment has .

heen carried ordinarily in the Treasury and

Post Office appropriation bill, but was not

Learried in that appropriation bill this vear,

and is therefore proposed to be ieluded in

the bill now before us,

* e * * - *

TOT ARIES 2 age ENE ateics :

a ae a

| &

” “The effect of it is simply to carry the same

limitation that has been carried on for years

in the appropriation’ bills. eee

. * * * A

Its purpose is to continue the appropria-

tion situation that has existed for vears, so

g, that no bounty shall be paid. for reenlistment

in the military and other uniformed services.

“This amendmert was adopted by the Senate 'with-

“out recorded opposition: (81 Cone: Ree. 4426). It

Was sent to conference, and in reporting the amend:

ment to the. House, the House managers described

the amendment as ‘cont wing during the re “al:

year 1938 the suspension of the reenlistmept gratu-

‘ity forentisted personnel of the Army, Navy, Ma-

rine Qorps, and Coast Guard.”” SL Cong. Ree.

SUS4. The House agreed to the amendment ane

the debate thereon demonstrates that all concerned,

inchiding the opponents of. the measure, ‘viewed

the proposal as differing: in no way from the provi-

sions in prior bills which suspended the payment

of the enlistment allowance. ST, Cone. Ree.

FORB—5ORF, SORK-5OOT. The conelusion is Inescapr

able that Congress” believed that in enacting this

amendment for the fiseal year LO38 ith: id effee-

tively: suspended the provisions of the Act relating

to enlistment allowances, as it had done in prior

ears, t ;

The legislative history also discloses that Con

cress, in adopting the ide ntic: al provisions, for the

fiseal year 1939, likewise did not intend to. change

f :

«&

the nature of its prohibition of enlistment allow-

iwes, 83 Cong. Ree. 9512, 9677-9679.

The provision Was first-introdaced as an aniend-

ment to the second deficiency appropriation bill for

the fiseal vear 93s Cy em 1O8oT, Joth Cone. 3d

sd 3 ’ bd : e . .

Sess.), then pending before the House. A point of .

order was made against. the amendment on thie

“round that it was legislation in an appropriation

bill, Representative Woodrum of Virginia, whe

had charge, of the amendment, admitted that the

point of order was good, and the Chair sustained it

(83 Cong. Ree. 8567). The same amendment was

then offered in the Senate, and the Presiding Of-

ficer also ruled that it would change existing: law,

and must be stricken (83 Cong. Ree. 9ES9). Tt

would seem clear that were the amendment merely

a limitation upon the power of accounting officers:

as the court below held. and not legislation sts-

pending prior legislation, a point oT arder against

its nelusion in an appropriation bill could net have

been sustained. “See House Rule XNI, see. 2;

Sengite Rule NVI. The provision was thereafter

included by the conference committee as a proviso

to Seetion 402 of Hi. J. Res. 679 (whieh later be-

came_Pub, Res. No. 122). appropriating funds for

> = . . a .

the Rural Electrification Administration, on which

a point of order was not, permitted by the rules,

No objection was made in the Senate (83> Cone.

Row, 9642): in the House complaint was voiced that

iu poitit of order could not then be made (S83 Cong.

Ree, 9678-9679). * ve, :

iliac ae

The 1939 proviso was regarded as having the

same purpose and effect as the provisions carried

in various appropriations for the five preceding

years, Representative W oodrum, chairman of the

subcommittee in charge of the measure, said in

presenting the amendment to the House (p. 9677) :

No reenlistment allowances have been paid

for the past 5 fiscal years in any of the serv-

ices, and in the absence qf permanent law

stopping it, the inhibition WAs been shuttled

about in économy bills and appropriation

hills at one time or another. + We have not

paid them for 5 years, and the latter part

of this amendment now before the House is

a Senate amendinent which discontinues for

another ¥ear the payment of the reenlist-

ce so ment allowances. ¢ og

The statements of the two chief opponents of fur-

ther suspension of the allowance (Representatives.

Seott and Izac) indicate their understanding that.

the act cove ring the fiscal vear 1939, like the acts

of previous years, prevented a reenlisting man

_from receiving the bounty (pp. 9678-9679). It is

clear that Congress deemed the payment of en-—

listment allowance as fuliy suspended for the fiscal

years 1938 and 1939 as if "the 1922. Act had been

tempo rarily repealed”,

* For cone chisive corroboration of this view, see the discus-

sion on the varjeus amendments offered to another tll

(H.R. 1OSD1, soth Cong., 3d Sess.) seeking to appropriate

sums for the Fig 08 of the allowances, Ph. om 16 and

especially note 4, afre,

- 14

4. The legislative history relied on by respond-.

ent in support.of his position does not relate to the

“prohibition embodied in, section 402 but to an‘en-

tirely different measure, the secénd deficiency

appropriation bill for 1938) CHL. R. 10851, 75th

Cong. 3d Seéss.). And the statements quoted (Bi

in Opp. 4)-are wholly consistent with the Govern-

ments view. ji

H.R. 10851, as it came to the floor, contained the

usual appropriation for support of the various

servic® corps, but did net melde any specific ap-

propriation for the payment of enlistment allow-

anees ; wer did it inelude any prohibition upon their

payment. Several attempts were mide. on the

Hoor of the douse of Representatives, to amend

the ‘bill so as to make express provision for the -

pavment of the bountyeto the various services (83 —

ong. Ree, S553-8)54: S550-S357, SHH5-8DO8), one

of which wes successful, and the others net. Dur-

ing the discussion on these amendments, Repre-

sentatives Bacon and) Wadsworth = stafed that

specitic provision, while glesirable, was really une.

heeessary since the general hump sum appropria-

tion to the Army. Navy, Marine Corps, and Coast

Guard covered the allowaneés, and if payment was

hot made, the ree wilisted may could sue im the Court

of Claims, (See By. if Opp. 4). These state-

For vears after the AYA of June 10, 1922, ‘appropriation

Acts listed no designated swim for payment of the entist-

ment allowance, but the luinp stun appropriation for pay in

“the ordinary appropriation Acts was held to be availab le.

See the opinion of the Court of Clatmes CR. i),

ments were made in connection with a bill which

«contained no prohibition of payment analogous to

section 402,4 and which left the. 1922 Act in full

“Immediately after his amendment to include the pro-

hibition in H.R. 10851 was stricken on point of order in the

- Senate, Senator Byrnes also suggested, on the same theory

as the two Representatives (and not, as respondent asserts |

(Br. in Opp. 4).‘in opposition to them) that reentisted men.

denied this allowance might sue in the Court of Claims,

‘It was his view that the prohibition might be necessary even

‘if no specific prevision was made for paynent of the

allowances. ° ’

The. following colloquy then occurred, clearly revealing

the purpose of the restrictive amendment (identical with |

_ section 402) (83 Cong. Ree. 9190):

“Mr. Warsi. What the Senator sought todo was to have

. Congréss declare as its policy that it did not intend in the

future to pay such feenlistinent bounties, so as to prevent

possible claims: is not that true

“Mr. Byrnes. Mr. President. the sole position of the com-

mittee is that no funds being provided, we should not leave

open the opportunity for numbers of persons to file claims

in the Court of Claims in behalf of men who reenlist, with

the result that a year:fromi, now, or 2 years from now, some —

men would receive the reenlistment bounty or some part of

it. after the attorneys réceive their fees.

*Mro Wasi. T think T understand.”

CTL Re lasok. the Second Deficiency Appropriation Bill,

and HL. J. Res. 679 Cater becoming Pub. Res. No. A122),

which embodied Section 402). were being considered by the

Congress contemporaneousiy at the end of a session.

After-the point of order to fhe proposed amendment to

H. R. 10841 had been sustained, Senator Byrnes itlso said -

(83 Cong. Rec. 9189-9190) :

“T will say to the Senator from Massachusetts, in the’

light of the ruling of the Chair, that before the Congress

adjourns [ shall certainly make au effort to do something

to bring ‘about a change, so that there will not be dissatis-

a aie

effect The specific enlistment allowance appro-

priation adopted hy he House did not survive the

passage of the Act (83 Cong. Ree. 9187, 9667-9669,

GO7TL ef. Sen. Rep. 161, Tth Cong., 3d Sess.), and

the suspension provision found place in another

act.” “er

faction, among the various services. If the bounties were

all restored, millions of dollars would-be involved.”

‘Accepted levishitive practice reinforces the conclusion

that) Congress sought to suspend the operation of the —

Act as to reentistients during the fiscal year ending 1 in 19535

Congress) has frequently utilized language subst: ca

similar to that here employed in various appropriation acts

for the pPirrpose of awe ‘hieving objectives whic h might ordi-

narily be classified as strictly legishiti

> in character, in-

ututory rights and

privilegés. AX number “ recent statfites are set forth in

Appendix By dafra, pp. 23-27, and the Tanguage of certain:

cluding the suspension of preexisting -

of sticly statutes is set forth in Appendix ‘Cy jnfra, pp. 28-30. 5

Reasons of strategy, time, and legislative convenience often.

impel the adoption of this method, even though it may con-

travene the strteter niceties of parliamentary procedure.

Cf. Lac e, Legislative Problems (1935), pp. 421 ef xeq., 482.

In view of this common practive anel of the decisions of this

Court. it obviously cannot) be successfully urged, .as_ re-

spoudent seeks to do (Br. in Opp. 5-6), that -cetion 402

clearly and unambiguously on its face “imposes a limitation

ipon the use of Appropriations and nothing more. As

Circuit udge Sanborn, in [S892, said of an identical “appro-

priation™ formula, in Cviited States vo Perry, 50 Fed. 745,

mis (CLC. AL Sth): °-

“For many years it thas been a common practice of. the

_ congress to-enact general previsions of daw in the acts mak-

ing Appropriations, until there is now little, if any, presump-

tion that such provisions are not ittended to be permanent

and general.” ‘

inp ae ae }

Splenic. 0s nid MARCA Ci Ae He

RE at

OVROM A:

6 WAN BR ct Pi

\ 17

5. In'view of the unequivocal character of the

( mere intention to continue the prohibition

on the payment. of) enlistment allowances un-

changed for the fiscal years 1938 and 1939, the ex-

‘planation, if any, for the difference between the

__ formof language employed for those years and that

used in the appropriation Acts*for the previous |

four wears is immaterial. Tt is probable, however,

that the change was due to ‘‘considerations of par-

liamentary tactics and strategy * .* "2? Cf.

Helvcring V. Hallock, No, 110, this Ter m, decided

January 29, 1940. It is pertinent to observe that

the prohibition onthe payment of enlistment allow-

ancesSfirst appeared in Title IL of the Treasury-

Post Office Appropriation Act of 1934, along with

numerous other economy provisions; was included

the next vear in Title 11, Economy Provisions of the

Independent Office Appropriation Act for the fiscal

_Vear 1935 as part of an amendment:to the Economy

Act of March 20, 1933; was inserted the two vears

following in the Treasury-Post Office Appropria-

tion Acts for the fiscal years 1936 and 1937; was

passed in its present fornvas an amendment to the

Second Deficiency Appropriation Bill of 1937 and

finally as a rider to Section 402 of H. J. Res, 679

(which became Pub, Res. ‘No. 122), appropriating

funds for the Rural Eleetrification Administration

for the fiseal vear 1939.

‘The particular statute in which the prohibition

was included from year to year was obviously dic-

tated by parliamentary exigencies and not by. con:

18° 2

‘siderations of form or logic, ~ A like explanation

probably accounts for the change in the form of\

words employed. for the fiscal years 1938 and 1939.

As set forth above, the ‘opponents of the prohibi-

tion for the fiseal year 1939 objected to the

provision as first introduced on the ground that

“it constituted legislation, the objection being sus-.

tained in both Houses of Congress. Ft-is reaSon- —

able toe assuuie that the Sponsors of the prohibition,

anticipating i like objection to the amendment for

the fiscal ye ay 1938, atte mpted to draft the prohi-

bition in the language of an appropriation measure,

But whatever the tac tical purpose.of the change in

form, it is clear, beyond doubt that no change in

purpose or effect was intended.”

«RespCalent’s aiken (Br. in Opp. 7-5) are pot even *

: matte iy pers <Nasive, lnited States Vv. Lunagston, lis -U.

B80, involved sole dy the failure to appropriate, in one year,

the fill amount of the compensation of a diplomatic salary:

there Were no other indications of any legislative intention.

toomedify the prior kiw, or any évidence of.a public pur-

pose whic h the Congress might have intended to accomplish

by such a change. “The Langston ease, this Court has ob-

served, “expresses the limit an boteegs direct ign” (Belknap

VM iited States, LAO US. ass. of) and applies only to cases

of a “hiere oniission to ay propriate a sufficient sum.” See

Vnited States vo Vulte, 233 U.S. 509, 515. The Vulte case

dae. not support respondent's pdsition, © bt merely held that:

A ese oem on the use of appropriation finds for two

successive Years did not constittde a permanent prohibition

of the expe diane of funds appyopriated in —— years

without stich restriction.

Are/ Lha i Wie United Ntheati i Zis Fed, 270 (M. D. P.).

libe the: Lotneston case, concerned merely a failure to appro-—

Priate, Pirin ve United: States, 30 Fed. 470. 478) (8. Dz

oS A

SARE ato ete

_ CONCLUSION

For the reasons above. stated, we “respectfully

submit that the judgment below is er roneous and

° 7

should be reversed. 2 | -

¥ Francis BIppie,

a oad ' * Solicitor General.

, Francis M/ SHEA,

Assistant Attorney General,

Y Metvin H. Sigecen,

_ € Pave A, SWEENEY,

Speoal. Assistants to the Attor ney General.

Oscar H. Davis, |

Aflorney.

Api 1940. 9 as A ig

—_——_ __. vy

Ga.). and United States v. Aldrich, 58 Fed! 688, 68H (CLC.

A, Ist), concern an appropriation Act which forbade ust of

the sum appropriated by that Ayt alone, and the court in

exch case expressly distinguished statutes which, like section

402, provide that “no part of any appropriation contained

in this dv any other Aect™ (italics suppHed) is to be used for

certain purposes. In Belly. United States, 35 Fed. 889 (M.

D. Ala.), the court merely rejec ted a contention that a gen-

eral statute fixing the amount of fees: w as repealed) perma-

nently and rendered inapplicable in 1SsT by a Statute which

limited the appropriation for ISS6, r

APPENDIX A ae %

Aet of Jrme 10, 1922, ©, 212. 42 Stat. , 629-

030 (U. &..C., Tithe 10, sec, O33 5 Title i sees, 13,

16): ,

Sse. 9 * * * On and after{ July 1,- §

1922, an enlistment allowance equd! to $50,

multiplied by the iumber of vears [served in

the enlistiwent period from which He has, last

heen discharged, shall be paid to every hén-

orably discharged enlisted man off the tirst

three grades whe reenlists within a period

of three months from the date of his dis-

vharge, and anmenlistment allowance of $25,

nultiplied by the number of vears served in

the enlistment pertod from which be has last — :

~ been discharged, shall he paid to every hon- 'F 4

.€ .orably discharged enlistéd man of the other

grades who creenlists within a. period .of ’

(three months from the date of his) dis- S

enhite. * =: ' |

: SEC. 10). - .

* * * . * * —

sepach mss

* * *

Existing laws ‘authorizing a

ee reenlistment’ eratuity. to enlisted men of

we the N; avy and Coast Guard are he rebv re-

pealed. and ag enlistment allowauee equal

to St) multiplied by the number of vears

served in the enlistment period from which

he las last been discharged but not to ex-

coed $200, shall be paid to every honorably ——

eee dischareed enlpted man oof the first three’

grades Who reenlists within a period of three :

- months from the date of his diseharge: and -

anenlistment allowance of $25 multiplied by

- « : cn XS

NX.

the manila rof years eal in the enlistmeut

period from which he has last been dis-

. . charged, but not te exceed $100, shall be paid

2 to every honorably discharged enlisted man:

of the ‘other erades who reenlists within a

period of three months from the date m his

discharge. * * *

Public Resolution No. 122. June 21, 1988, ©. 554,

A2 Stat. 809, S18;. a ,

Seco, 402. Por an additional amouat for

salaries and expensessof the Rural Mle trifi-

cation Administration. fiseal vears 1938 and

1959, ineludjne: thle same objects and unde

the same condition specified under this head

i the Tncependent Offices Atppropriation

Aet, 1909. ineliding printing and bindine,

there is apprapriated. out of any money in

the Treasury net otherwise appropriated,

the sume of S700,000: Provided, That ne part

of iy approprhition contained in this or

AAS oth er Act for the fiseal year ending June

30, 1939, shall be available for the pavnuent-

of enlisthient allowanee to eli: ted men, for

feenlistment withina period of three mouths

| |.

fram date of diséharge as to reenlistmerpts —

otnade during the fiseal verr ending June 30,

1939. notwithstanding the applieables pro-

Visions of sections 9 and LO of the Act en

titled "An. Aed te creajust the pay and

' allowanees of the Gonmisstoned and enlisted

personneboef the Army. Navy, Marine Corps,

aor

Coast Gard; Coast wand Geodetic Survey, ad

and | Public Ife og Ne se ice.” approved June

ae 1922 (37 U. 13. 16). 3

The Act of May 2s, L83t. ¢. 270. 4) Stat. 2b8. Zaz, con-

tains language identical with that of the provisa to section

402. with the substitution of “fiscal vear ending dune 50,

1838 for “fseal vear ending Hime so. 193.”

the fiscal ‘vears ending June 30, 1935. June 30, 1956, and

22 bd 3

zs:

Act of Marcéh 3, 1933, ¢. 212, 47 Stat. 1489, 1519: 4

Srv. 18. So much of sections 9 and 10 of a

the Act entitled ** An Act to readjust the pay :

and allowances of the ¢ommissioned and

. enlisted personnel of the Army, Navy, Wa- 3

-, rine Corps, Coast Guard, Coast and Geo- |

— detie Survey, and Publie Health Service,” E

approved June 10,.1922 (UL S: C., title 37 i

sees, 13 and 16), as provides for the tg oan

ment of ¢@ nlistrigerit Allowance to enlisted

men for reenlistment within a period of

three months from date of discharge is here-

by suspended as to reenlistments made dur-

ing the fiscal Vear ending. Fune 30, 1934.7

Si Sib Ue Coe oh aan

* This See Wus continued in full force and eifect for

Aine 30, 1957. by Section Ytof the Act of Mareh 2s, 1934,

* 102, 48 Stat. 509, 523, the Act of May 14. 1955, €, 110, 49

at. 2is, 220 F, and pee Act of June 23, 1936, ¢. 725.49 Stat:

{su7, IS37, respectively.

Lobe pratt acd ara Ree ABS. A FOILS

APPENDIX B

_ ‘Phe following statutes are illustrative of in-

stances where the. Congress has undertaken to legis-

late-through the medium of appropriation Acts:

Act of April 6, 1914, ¢. 52, 38 Stat. 312, 335, Sec. .

5 (U.S.C. Title 5, see, 55) (Payment of account-

ants). .

; Act of Mav 10, 1916, C. "117, = emp 66, 120, as_

amended by Act of August 29, 1916\e. 417, 39 Stat.

996, 582 UL S.C, Title 5, sees. 58.59) (Prohibi-

tion of payment of double salaries). |

Rev. Stat. See. 1761, as amended by Public Res.

of June 7, 1924, «. 377, 43 Stat. 669 (CL. S..C., Title

5, see, 56) (Prohibition of paymen: of salary to

unconfirmed officials appointed during session of

( ‘ongress:),

Act of Oct. 22. 1913. 39. 38 Stat. ‘ale ‘212

(U.S. C.. Title 5, see, 54)" “(Prohibitiontof employ-

ment of public ity experts). |

Rey. Stat. Sec, 1766, as amended by Act of June

10, 1921, «. 18. 42 Stat. 20, 23 (U0. S.°C., Title 5,

sec, 82) (Prohibition of salary payments to debtors —

ia of the United States).

Act“of Jtily 1, 1937, +. 423, 50 Stat, 442, 446;

Act of June 11, 1938, ¢. 347, 52 Stat. 642, 646, (imit-

ing employmeyt of-aliens in military activities).

Act of June 6, 19387, &, 359, 56. Stat. Je. “965,

Act of April 27, 1938, ¢. 180, 52 Stat. 248,251 (limit: |

ing employment of aliens in Americar Missions

abroad ).

(25)

Act of April 27, 193, «180, 52 Stat. 248, 289,

Act of May 23, 1938, ¢, 259, 52 Stat. 410, 435, Act of

June 2, 1938, ¢. G81, 52 Stat. 1114, 1162 (limiting

compensation of certain alien offic ersand employees

of the United States).

of June 16, 1988, ¢. 464, 52 Stat. 710, 711-712 (pro-

hibition of payment of salary to Department of

Agriculture officials and employees predicting fu-

ture prices of cotton), 30)

Act of April 27, 1988, 6° 180, 52 Stat. 248, 289,

; Act of Mareh 28, 19: 8. e; da, a2 Stat. 120, 148, aird

‘other acts (prohibition of salary pavinents to offi-

eials whose nomination the Senate bas rejected).

Act of June 16, 1937, ¢. 359, 50 Stat. 261, 268,

Act of April 27, 1988, ¢. 180, 52-Stat. 248, 250 (pro-

hibition of salary payments to foreign ser¥ice offiz

cials receiving another salary from the United

_ States). a

(prohibition of payments to naval reservists draw-

ing a pension fromethe United States). |

Act of July 1. 1927, ¢, 423050 Stat. 442, 462. ( pro-

hibition of payments, ete. to National Guard offi-

cers or men drawing a United States pension).

Act of July 1, 1987, ¢. 425, 50 Stat. $42. 464 (pro-

hiition of paviments, ete, to members of the Or-

camized Reserves drawing pensions).

. Act of April 27. 1937 ae. 140, 5O Stat. 96, 115,

Aet of July 1, 1987, &. 428, 50 Stat. 442, 467, and

many other acts (prohibition of paviments to: offi-

clals using time measuping dévices in emplovees’

WOT, ete.

¥ J a

i a ee

~h R e A

A AE SCI

| 25

_ Act of June 28, 1937, ¢. 396, 50 Stat. 329, 344

(Social Security Board experts or attorneys receiv-

ing more than $5, 000'annual salary to be confirmed.

by Senate). .

Act of April 27, 1938, ¢. “180, 52 Stat. 248,- 269

(Department of Justice Searle ‘to be admitted

to the bar). ale A ees

Act of April 27, 1938, ¢. 180, 52 Stat. 248, 264

(prohibition of salary- payments to probation offi-

cers Whose work falls be ‘low standards set by the

Attorney General, ete.).

~ Act of June 16, 1937, ¢. 359, 50 Stat. 261, 278

-(eoneihation commissioners to be: paid only one

fee per case, and only after final — of the

case), ° a

Act of a 16, 1937, ¢N359, 50 Stat. P61, 300,

Act of April 27, 1938, ¢. 180, 52 Stat. 248, 286-287

(Seeretary of Labor to expend less than authorized

by existing law for enforcement of contract labor- -

ers act). :

Act of June 29, 1937, ¢. 403, DO Stat. 359, 363

(Viet riet Of Columbia toe, insert legal. etic.

ments less extensively than required by existing

law), ' ,

Act of April 27, 1987, ¢. 140, 50 Stat. 96, 107.

(limiting the number of midshipmen at the Naval

Academy to x2 number less than required by exist-

ing law). ‘

Act of July 1, 1987.6. 423,50 Stat. 442, 464 (lim-

iting active duty of Army reserve officers).

Act of April 27, 1938, 6. 180, 52 Stat. 248, 269

(limiting a payment of witintion, juror, and bailiff

fees),

Act of April-27, 1938, ¢: 180, D2 Stat. 248,268

(only one witness fee to be paid). 7

Act of April 27, 1938, ¢. 180, 52 Stat. 248, 268

(bailiffs only to be paid for work performed Whe n

nrarshals unavailable).

of June 11, 1938, 6. 347, 52 Stat. 642, 646 (no

payinents to retived Avan officers -connected with

the sale of —pyeee to Army). :

Act of July 1, ey 423, 50 Stat. 442, 7. Act .

of Aine Th, 1938, 6, 347, 52 Stat. 642, 646- (no pay-

ments to Arn “offic ‘ers or men connected with mili-

tary journals accepting paid advertising of firms

dealing with War Department). . “3

Act of July 3, 1930, ¢. 848, 46 Stat. 949, 966, Act

of February 23, 1931, ¢. 282, 46 Stat. 1376, 1391-

1392 (ne payments to public school officials solicit-

Ing funds without authorization from pupils).

(ho payments to Tariff Commission members inter-

ested in proceedings in ag they participate).

Act of June 14, 1935, ¢ 241, 49 State 341. 3586 -

(Hho payments to, Distelet .of Columbia’ teachers

teaching or advocating communism),

Act of rhage 29, 1937, e. 1, oO Stat. 352,°355,

Actoof June : 21, 1938, & DOA, 2 Stat. 809, 813, See.

14 (ho payinie nts tor lief offic’ ‘als partic ipating- in

state or loe al clee tions).

Net of. April 4.1988, ¢, 62, 52 Stat. 156, 166, 171

(Ne payments on Distriet-of Columbia contracts

“not awarded to hong lowest bidder, ete.),

~ Coms., Ist Gina, }. @ (limiting number of instrue-

tors in the Naval Academy),

SMO oy

Cr ee a

ye ee

4 Ow,

| See RRA E eek Be mens ye fy

Act of June 16, 1939, &. 208, Publie No, 130, 76th

Cong., Ist Sess. p. 11 (requiring members of the

Capitol Police Force to meet. prescribed standards).

Act of June 29, 1939, ¢. 248, Public No. 156, 76th |

Cong. Ist Sess.. p. 20 (requiring probation officers

to meet certain prescribed standards ).

Cong., Ist Sess. p. 6 (limiting legal advertisements

of the District of Columbia “notwithstanding the

requirement , that such advertising provided by

existing law’’). ,

Revised Statutes, section 5266 (U.S. C., Title

47, see. 3) (no payments to any telegraph company

neglecting or refusing. to’ accord | protersnee 4 to

Government telegrams).

Act of February 24, 1899, _ 187, 30 Stat: 846,

864, see US. C., Title.5, see. oa ; (forbidding use of

recording clocks for recording time of Gov ernment

employees).

APPENDIX ©

Certain of the statutes listed in Appendix B

provide as follows : .

Act of October 22, 1913, ¢. 82; 38 Stat.208, 212.

(U.S. €., Title 5, see. 54): ny

‘No money appropriated by this or any

other Act shall be used for the compensation

of any publicity expert unless specifically °

. appropriated for that purpose.

Act of April 6, 1914, 6. 52, 38 Stat. 312, 335

(U.S. C.. Title 5, see. 55): :

Sec. 5. That no part of any money ap-

propriated: in this or any other Act shall be

used for compensation or payment of ‘ex-.

penses of accountants or other experts in in-

augurating new or changing old methods of

transacting the business of the United

States or the District of Columbia unless

authority for employment of such services

or payment of, such expenses ix stated in

specific terms in the Act making provision

therefor and the vate of compensation for

such services ar espenses Is specifically fixed -

therein, ar be used for compensation. of ar...

-expenses’ for persons, aiding or assisting

such acesuntants or other experts, unless the

yr rate of gompensation ‘of or expenses for |

such assistants Is fixed by officers or em- |

ployees of the United States or Distriet of |

Columbia having authority to do’ so, and

such rates of vonypetisation or expenses so

tixed shall be paid only to the person so.

employed. oe : 7

_ (28)

TaN Re tle RENT PL

Oe TT TN PT

Pee maint anaeee eer wee tree

29 »

Act of June 29, 1937, ¢. 403, 50 Stat. 359, 363:

“For general advertising, authorized and

required by law, and for tax and school

notices and notices of changes in .regula-

tions, $7,000:. Provided, That this appropri-

ation shall not be available for'the payment

of advertising in newspapers published out-

side’ of the District. of Columbia, notwith-

standing the requirement for such advertis-

ing provided by existing law. |

_ For advertising notice of taxes in arrears

July 1.1937, as required to be given by the:

Act of February 28, 1898, as amended, to be

reimbursed by a charge of 50 cents for each

lot or piece of property advertised, $5,500

Provided, That this appropriation shall not

be available for the payment of advertising

the delinquent tax list for more than once a

week for two weeks in the regular issue of

one morning or one evening newspaper pub-

lished in the District of Columbia, notwith-

standing the provisions of existing law.

Actof June 14, 1935, ¢. 241, 49 Stat. 341, 36 :

* * * Provided, That hereafter no part of

any appropriation for the public. schools

shail be available for the payment of the

salary of any person teaching or advocating

Communism. — '

Act of June 16,1938, ¢. 464, 52 Stat. 710, 7H:

iy ies ‘Provided farther, That no part of

the funds appropriated by this Act shal! be

-used for the payment of anv officer or em-

ployee of the, Department of? Agriculture

who, as such officer or, ¢mplovee, or on be-

half of the Department or any division, com-

‘mission, or bureau thereof, issues, or causes:

to be issued, any prediction, oral or written,

er forecast with respect to future prices of

cotton or the trend of samer * * *

30 - a

Act of July 1, 1937, ¢. 423, 50 Stat. 442, 46:

No payment shall be made from money

yas appropriated in this Act tg any officer on the

retired list-of the Army who, ‘for himself or

‘for others, is‘engaged in the selling of, con-

+ tracting for the sale of,*or negotiating for

_the sale of, to the Army or the War Depart-

“ment, any war ‘materials or supplies.

_Act of April 27, 1937, ¢. 140, 50 Stat. 96, 107:

~ *.* Provided further, Thatno part of

— fnis appropriation shall be available for the

pay of -any midshipmen whose admission

subsequent to January 30, 1937, would result

in‘exceeding at any time an allowance. of

four midshipmen for éach Senator,’ Repre-

»' sentative, and Delegat®in Congress; of one —

midshipman for Puerto Rico, a native of the

_ ,island, appointed on nomination of the Gov- °

krnor, and of four midshipmen from Puerto

Rico, appointed on nomination of the. Resi-

«dent Commissioner ; and of four midshipmen

from the District of Columbia; * * *

Act of May’23, 1938, ¢. 259, 52 Stat. 410, 427:

* * * Provided Aitics That no part of

this appropriation shall be used to pay the

salary of any member of the Tariff, Commis-

sion who, shall, hereafter participate in any

proceedings tinder sections 336, 337, and 338 .

of the Tariff Act of 1930, - wherein he or any

member of his family has any special, , dikect,

and pecuniary interest, or in which he has

acted as attorney or special i aaa

0.9. GOVERNMENT PRINTING OFFICE 1940 |

vr \

‘

es R

e 4 e .

*%,

e id ’ +.

2”

‘

. .

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‘ °

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.