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Comptroller General Warren to the Secretary of State, December 2, 1941:
Reference is made to Section 321 (a) of the Transportation Act of 1940, Public, 785, 76th Congress, approved September 18, 1940 (54 Stat. 898), which contains the following proviso: "Provided further, That section 3709, Revised Statutes (U. S. C., 1934 edition, title 41, sec. 5), shall not hereafter be construed as requiring advertising for bids in connection with the procurement of transportation services when the services required can be procured from any common carrier lawfully operating in the territory where such services are to be performed."
To effect compliance with that statute it is necessary to amend Accounts Supplement E, section V-44 of the Foreign Service Regulations, particularly note 29 which now provides in part that "Bids must be obtained where shipment of effects is made by motor truck and the cost involved exceeds $100." Before promulgating an amendment to that note it is necessary to obtain a decision defining the meaning of the phrase "territory where such services are to be performed" as used in the proviso cited above.
It is understood that certain common carriers of the United States have filed through rate tariffs with the Interstate Commerce Commission from points in the United States to points in Canada and Mexico, and actually transport goods to those points. It is also understood that certain carriers operating principally in Canada and Mexico have filed through tariffs for shipments from points in those countries to points in the United States.
It appears that section 321 (a) of the Transportation Act of 1940 relates solely to transportation furnished by common carriers operating under the Interstate Commerce Act as amended, but the last proviso of that section amends section 3709 of the Revised Statutes (41 U. S. C. 5) which applies generally to all purchases and contracts wherever made, and it might be interpreted to apply to transportation by any agency anywhere which could be classed as a "common carrier." As "common carrier" transportation facilities are available in other countries it is believed that when a regulation is issued embodying the amended legislation the question will arise whether the facilities of other countries are included in the amendment. Your decision is therefore requested whether the phrase "territory where such services are to be performed" is limited to the territory of the United States or includes the territory of any country in which common carriers lawfully operate under the laws of such country.
I shall appreciate your early consideration of this question in order that the regulations may be amended as soon as possible to effect the changes necessitated by the amended legislation.
Section 321 (a) of the act, 54 Stat. 954, referred to in your letter provides:
Notwithstanding any other provision of law, but subject to the provisions of sections 1 (7) and 22 of the Interstate Commerce Act, as amended, the full applicable commercial rates, fares, or charges shall be paid for transportation by any common carrier subject to such Act of any persons or property for the United States, or on its behalf, except that the foregoing provision shall not apply to the transportation of military or naval property of the United States moving for military or naval and not for civil use or to the transportation of members of the military or naval forces of the United States (or of property of such members) when such members are traveling on official duty; and the rate determined by the Interstate Commerce Commission as reasonable therefor shall be paid for the transportation by railroad of the United States mail: Provided, however, That any carrier by railroad and the United States may enter into contracts for the transportation of the United States mail for less than such rate: Provided further, That section 3709, Revised Statutes (U. S. C., 1934 edition, title 41, sec. 5), shall not hereafter be construed as requiring advertising for bids in connection with the procurement of transportation services when the services required can be procured from any common carrier lawfully operating in the territory where such services are to be performed. The meaning of the last proviso quoted, if considered alone, would seem clearly to include common carriers lawfully operating in any
part of the world where transportation services are to be performed for the United States; and it is a rule of statutory construction that if the language of a statute is plain and free from ambiguity, and expresses a single, definite, and sensible meaning, that meaning is presumed to be the meaning which the legislative body intended to convey. Black on Interpretation of Laws, 2d edition, p. 45; 19 Comp. Gen. 636 and authorities there cited. However, it is likewise a rule of statutory construction that the intent of the legislative body as expressed in any part of a statute must be gathered from the reading of the statute as a whole, and the operation of a statute should be restricted within narrower limits than its words import where the literal meaning embraces cases not intended. Lewis' Sutherland Statutory Construction, 2d edition, sec. 370; 17 Comp. Gen. 736; 19 id. 640; 20 id. 46.
It is noted that in the portion of the said section 321 (a) preceding the proviso, specific reference is made to common carriers "subject to such [Interstate Commerce] Act." Moreover, in numerous instances throughout the said Transportation Act of 1940, the Congress specifically limited the application of various provisions to common carriers subject to the act or to specified parts thereof. The Congress having thus in the same act, and even in the same section, specifically restricted the application of certain provisions to common carriers subject to the act, it may be presumed that the broad term "any common carrier" in the proviso quoted in your letter is not so restricted. Black on Interpretation of Laws, 2d edition, p. 145; Hall's Safe Company v. Herring-Hall-Marvin Safe Company, 31 App. D. C. 498; see also 20 Comp. Gen. 242, 244. If the Congress had intended to limit the application of the said proviso to common carriers operating only in the United States, or operating in the United States and foreign countries under through rate tariffs filed with the Interstate Commerce Commission, such intention could-and presumably would have been made known by clear and unmistakable language similar to that found in the preceding part of the same section.
No difficulty arises from the fact that, as above interpreted, the said proviso is broader than the preceding part of the section and that paragraphs (1) and (2) of section 1 of the Interstate Commerce Act (which act the Transportation Act of 1940 amends and supplements) limit the application of the act to transportation or transmission within the United States. While the usual office of a proviso is to qualify, restrict or limit some matter in the section or part of the statute to which it is attached, yet if its terms are broader and more comprehensive than required for such purpose, it will operate as a general enactment and control matters not within the scope of such section or part. Interstate Commerce Commission v. Baird, 194 U. S. 25; National Bank of Commerce v. Cleveland, 156
Fed. 251; Prindle v. United States, 41 Ct. Cls. 8; Black on Interpretation of Laws, 2d edition, p. 432; 18 Comp. Gen. 655, 667; 9 id. 248. Such a result frequently occurs in Federal legislation.
Moreover, the involved proviso-so-called-does not appear to be a proviso in the strict technical sense. See Black on Interpretation of Laws, 2d edition, pages 427, 428. In any view of its meaning, it does not qualify, restrict or limit any portion of the Transportation Act of 1940, but rather is an addition to the preceding context and is in fact an amendment of section 3709, Revised Statutes. In Interstate Commerce Commission v. Baird, supra, the court said (pp. 36-37):
It is true that the office of a proviso, strictly considered, is to make exception from the enacting clause, to restrain generality and to prevent misinterpretation (Minis v. United States, 15 Pet. 423; Austin v. United States, 155 U. S. 417, 431; White v. United States, 191 U. S. 545, 551). It is apparent that this proviso was not inserted in any restrictive sense or to make clear that which might be doubtful from the general language used. It was inserted for the purpose of enlarging the operation of the statute so as to include a class of cases not otherwise within the operation of the section. It may be admitted that this use of a proviso is not in accord with the technical meaning of the term or the office of such part of a statute when properly used. But it is nevertheless a frequent use of the proviso in Federal legislation to introduce, as in the present case, new matter extending rather than limiting or explaining that which has gone before.
In view of the foregoing, it is thought that the meaning of the said proviso, considered in connection with the entire act, is sufficiently clear to negative the use of extrinsic aids in its interpretation. However, if of importance, it is noted that at page 126 of the hearings held before the Interstate Commerce Committee, United States Senate, April 3 to 14, 1939, on several bills, including S. 2009, Seventy-sixth Congress, which became the said Transportation Act of 1940, a witness suggested the inclusion of the following proviso:
Provided, That section 3709, Revised Statutes (U. S. C. title 41, sec. 5), shall not hereafter be regarded or construed as requiring advertising for bids in connection with the procurement of transportation services when the services required can be procured from any common carrier subject to the provisions of the Interstate Commerce Act, as amended. [Italics supplied.] See also page 145 of the said hearings (Point 8) where it is stated that a similar proviso was "drafted and approved by the office of the Comptroller General of the United States." In this connection, it may be stated that in a letter dated October 10, 1938, A96553, to the Executive Secretary, Household Goods Carriers' Bureau, Washington, D. C., Acting Comptroller General Elliott suggested that the enactment of a provision identical with that quoted above from the said hearings probably would accomplish the result desired by the common carriers by motor vehicle. Subsequent to the said hearings, the Senate Committee on Interstate Commerce inserted in the bill the proviso now in question, containing broader language than that quoted above from the hearings.
The fact that, during the course of the enactment of the said Transportation Act of 1940, the language of the suggested proviso was changed so as to apply to "any common carrier" instead of to "any common carrier subject to the provisions of the Interstate Commerce Act, as amended" would appear to indicate an intention on the part of the Congress to broaden the scope of the proviso so as to apply to transportation services by any common carrier whether operating in the United States or abroad.
Accordingly, in specific answer to your inquiry, you are advised that, as used in the proviso in question, the words "any common carrier lawfully operating in the territory where such services are to be performed" are applicable to any common carrier lawfully operating in the territory of any country under the laws of such country, or on the high seas, and are not limited to common carriers lawfully operating in the United States and contiguous territory.
LEAVES OF ABSENCE-MILITARY-CENSUS BUREAU EMPLOYEES APPOINTED FOR DURATION OF DECENNIAL CENSUS
Permanent employees of the Bureau of the Census transferred to temporary decennial census positions under section 3 of the act of June 18, 1929, for a period not to exceed three years, and employees originally appointed under the same authority for like periods, are not temporary employees for military leave purposes and, therefore, when ordered to military or naval duty for training, may be granted military leave of absence with pay subject to the terms and conditions of the several statutes authorizing such leave. 20 Comp. Gen. 163, distinguished.
Comptroller General Warren to the Secretary of Commerce, December 3, 1941:
I have your letter of November 14, 1941, as follows:
On numerous occasions it has been held by your office that temporary employees of the Federal government are not entitled to military leave of absence with pay when they are called to military or naval duty for training or for instruction.
Paragraph 2 of section 3 of the act of June 18, 1929 (46 Stat. 21), providing for the fifteenth and subsequent decennial censuses reads as follows:
"In addition to the force hereinbefore provided for, there may be appointed by the Director of the Census, without regard to the provisions of the Classification Act, for any period not extending beyond the decennial census period, at rates of compensation to be fixed by him, as many temporary employees in the District of Columbia as may be necessary to meet the requirements of the work: Provided, That census employees who may be transferred to any such temporary positions shall not lose their permanent civil-service status by reason of such transfer
The following statement is contained in a decision dated June 30, 1930 (MS Comp. Gen. A-32370), to the Secretary of Commerce:
"The Director of the Census is authorized by Section 3 of the act of June 18, 1929, 46 Stat. 21, cited, to establish a temporary force, for a period not extending beyond the decennial census period. Such period is defined by section 2 of the same act as 'the period of three years beginning the 1st day of January 1930, and every tenth year thereafter.' It is further provided that regularly appointed census employees may be transferred to such temporary forces without loss of permanent civil service status. This is a force organized
to perform a special duty indefinite of duration in so far as a particular employee is concerend, but relatively permanent in character by reason of the fact that it may extend over the maximum period of three years. The salaries of these employees are provided for in the annual appropriation act for the Bureau of the Census, 46 Stat. 198, wherein it is provided that 'such temporary employees in the District of Columbia may be allowed leave of absence with pay at the rate of two and one-half days per month.' This provision contemplates employment for a period of time during which ordinary leave might accrue and be availed of. Under these circumstances, if under the agreement or conditions of employment in a particular case, the employment is relatively permanent in character, as contemplated by the leave provisions of the cited act, as distinguished from employment from day to day or a definitely fixed time, purely temporary in character, it would seem that military leave with pay might be granted,
The appointment certificates of permanent employees transferred to tem porary positions pursuant to section 3 of the act of June 18, 1929, supra, contain the following statement:
"This appointment is made with the understanding that it is temporary, and that at the expiration of the Sixteenth Decennial Census period, December 31, 1942, or prior thereto if conditions make that action necessary, you will revert to the status occupied by you on the permanent roll at the time of said transfer, subject to such changes in said permanent roll as may have meanwhile occurred or may then be lawful or practicable."
Employees appointed solely for the performance of sixteenth decennial census work receive an appointment certificate which reads as follows: "You are hereby appointed subject to taking the oath of office,
in the Bureau of the Census, at a compensation of to take effect
per diem, every day,
"Your appointment cannot extend beyond December 31, 1942, and may be terminated at any time prior thereto by reason of unsatisfactory service, misconduct, or a necessary reduction of the force."
Permanent employees of the Bureau of the Census transferred to temporary positions and employees originally appointed for the performance of sixteenth census work are rated on efficiency annually and semiannually, respectively. All such employees are, of course, entitled to leave under the annual and sick leave acts of March 14, 1936 (49 Stat. 1161-1162), but neither group is regarded as "temporary" under the regulations issued by the President pursuant to those acts.
In view of your decision of September 18, 1940 (20 Comp. Gen. 163), to the Secretary of the Navy, in which it is held, inter alia, that "military leave of absence with pay may not be granted to any employee serving under an appointment designated as 'temporary' regardless of the length thereof," your decision is requested as to whether (a) permanent employees of the Bureau of the Census transferred to temporary decennial census positions under the terms of section 3 of the act of June 18, 1929, supra, for a period not to exceed December 31, 1942, and (b) employees originally appointed under the same authority and for like periods, may be granted military leave with pay.
In decision of September 18, 1940, 20 Comp. Gen. 163, 166, cited in your letter, it was stated:
In the decision of September 4, 1940, B-11963, 20 Comp. Gen. 123, there was restated and affirmed the general rule stated in a number of decisions rendered prior to January 1, 1936 (the effective date of the Annual Leave Act of March 14, 1936, 49 Stat. 1161, granting annual leave of absence with pay to temporary employees), that military leave of absence with pay may not be granted to temporary employees. Of course, these prior decisions did not define "temporary" employees, as that term has been defined in section 1 (c) of the annual leave regulations-"those appointed for definite periods of time not exceeding 6 months." See particularly 6 Comp. Gen. 178; id. 275; 9 id. 119. There is nothing in the Annual Leave Act of March 14, 1936 supra, or in the annual leave regulations, applicable to military leave of absence with pay. Referring to the fifth paragraph of your letter it is concluded, therefore, that military leave of absence with pay may not be granted to any employee serving under an appointment designated as "temporary," regardless of the length thereof.