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buildings, or the pay of the Navy and Marine Corps; neither is it one coming within the definition of a "permanent specific appropriation." In an opinion of the Secretary of the Treasury dated April 20, 1877-only a comparatively short time after the act of June 20, 1874, supra, was enacted, it was stated that "the words 'permanent specific appropriation' should be confined to appropriations such as private bills, where nothing is left to executive officers for examination or inquiry except to identify the party, or to comply with some specific duty pointed out by the specific appropriation." Printed in appendix of 1 First Comptroller's Decisions (Lawrence) 585, 589. A few years later the First Comptroller of the Treasury, William Lawrence, had occasion to consider the meaning of the term as used in the surplus fund act of June 20, 1874, and in a decision dated May 7, 1881, 2 First Comptroller's Decisions 245, 246, stated:

A "permanent specific appropriation" is one which requires the money payable by virtue of it to be applied to an object specifically pointed out by law, and which may be so applied at any time in the future, and not merely for the service of the current fiscal year. It exists when the act of Congress which made it points out the purpose to which it applies, and shows that it was intended to be used in the future, without limit as to time. If the object to which it is to be applied has no reference to or connection with the service of any particular year, the appropriation may be construed as permanent, where such intention is apparent in the act making it. If it be for the discharge of an existing obligation having no connection with the service of the current year, and not in part discharge of a continuous service, it may reasonably be supposed that Congress intended the liability to be paid without reference to time.

Measured by the foregoing definitions it seems clear that the appropriation here in question, which provides funds for payment of increase of compensation to employees of the Government "during the fiscal year ending June 30, 1922," is not a permanent specific appropriation within the meaning of the surplus fund provisions. Said appropriation is made in an annual appropriation act, and although clearly made for the fiscal year 1922, only, it is indefinite as to amount, the appropriating language being that "so much as may be necessary" is appropriated. Thus it conforms to the requirements of an "indefinite appropriation" as defined by the Attorney General in an opinion dated July 27, 1870, 13 Op. 288, 292, it being stated in said opinion that indefinite appropriations are those "in which no amount is named." However, it will be observed that indefinite appropriations are not among the types which are specifically excluded from the operation of the terms of the surplus fund provisions of the act of June 20, 1874, as amended. Nor can they be regarded as excluded by inference. In this connection attention is invited to a decision rendered by the First Comptroller of the Treasury September 13, 1880, 1 First Comptroller's Decisions (Lawrence) 138, 139, wherein it is stated:

Sound policy, and the right of Congress to keep a constant vigilance over appropriations and their expenditure, require that an act should not be deemed

to carry a permanent specific appropriation, unless its language make it reasonably clear that such was its purpose. It cannot arise by construction from ambiguous or doubtful words.

In a decision of September 15, 1880, 1 First Comptroller's Decisions (Lawrence) 141, 144, it was further stated:

As to appropriations which remove from the annual scrutiny of Congress the use of public money, the rule of construction must necessarily be, that, if they can exist by inference at all, the language from which such inference is drawn inust be clear and conclusive. This is essential, to preserve the control of Congress over appropriations. Permanent indefinite appropriations, as a general rule, are against the spirit of the Constitution.

In a later decision dated January 14, 1884, 5 First Comptroller's Decisions (Lawrence) 7, 10, Comptroller Lawrence had occasion to consider further the matter of permanent specific appropriations and stated:

Congress may willingly appropriate money to be expended in a specified year for a work, in view of existing necessity and present values, when it would not make such appropriation to be expended in the indefinite and distant future with its changed necessities and values. It is not to be supposed that one Congress will make appropriations for the distant future with no present necessity for such action, when a later Congress could, with better means of judging, decide on the subsequent necessity and expediency of making such appropriations. A permanent specific appropriation places the money thereby appropriated indefinitely under the control of officers authorized to expend it, and permanently beyond the control of Congress, except by operation of a repealing act not always attainable. It organizes an interest to resist the will of Congress in attempting a repeal; and, when a contract, indefinite in its time of execution, is once made under such an appropriation rights become fixed, and, practically, Congress is powerless to effect a repeal. It should require clear language in an act to secure for it this force and effect. The construction of an appropriation act is to be made. not alone upon its own language, but in view of other controlling statutes and the policy thereby established. Congress has, by repeated acts, limited and controlled the use of appropriations.

Also, see 3 Comp. Dec. 623, 628, and the somewhat extensive discussion of the purpose and effect of the surplus fund provisions of the act of June 20, 1874, as contained in vol. 1 First Comptroller's Decisions (Lawrence) Appendix, chapter XIV, pages 579-592.

It should be apparent from the foregoing that an "indefinite appropriation"-that is to say, an appropriation made for a particular fiscal year but indefinite as to amount-is not exempt from the provisions of the surplus fund provisions of the act of 1874, either in specific terms or by necessary implication. Hence, there remains for consideration only the question as to how the provisions of said act are to be applied to such an appropriation. Apparently the only difficulty in the application of the act is that, ordinarily, under an indefinite appropriation there is no balance to be carried to the surplus fund for the reason that, unlike appropriations made in definite amounts, the setting up of amounts to the credit of the appropriation is governed by expenditures authorized to be made thereunder. In other words, the amount appropriated being indefinite, no amount is set up in the appropriation account, as is the practice

in connection with regular definite appropriations, with withdrawals therefrom reducing the amount so set up. Instead, authorized expenditures are charged against the appropriation thereby creating so-called "red balances" which are offset by crediting thereto from time to time amounts necessary to cover; or amounts are set up to cover particular payments, the procedure proposed to be followed in the present case. However, as the amounts credited to the appropriation are sufficient to cover only the red balances created by the payments already made thereunder, or to cover definite charges to be immediately made against the account, the appropriation, normally, never has to its credit any unexpended balance which could be for carrying to the surplus fund under the surplus fund provisions of the act. Such fact, however, does not affect the legal status of the appropriation under said act, and should not be taken as a determining factor in the applicability of the act. Conceivably appropriations in definite amounts may be fully expended during the period they are authorized to be carried on the books of the Government-in which event there would be no unexpended balances thereunder to be carried to the surplus fund when the surplus fund provisions become effective against such appropriations. I assume it would not be seriously contended, however, that in the event of repayments thereafter, they would not be for carrying to the surplus fund but could be used for the payment of other obligations properly incurred against the appropriations.

In discussing the purpose for which the surplus fund provisions of the act were enacted the Attorney General, in an opinion dated August 10, 1877, 15 Op. Atty. Gen. 357, 358, said

The mischief intended to be remedied by the surplus fund act of June 20, 1874, was that of permitting appropriations to continue available for the payment of the debts or claims for which they provided for a long period after such appropriations were made, and was intended to fix a definite period within which the appropriations should be used or the unexpended balances carried to the surplus fund. If the disbursing officers were permitted to retain the funds which are in their hands after the arrival of such period, the object of the law would be to a certain extent defeated, as the funds would continue available for a longer period than was intended.

It would not be competent, therefore, for the disbursing officers to continue to issue certificates payable from the balances in their hands after the date when they lapse into the Treasury.


In other words, as stated in that opinion, the principal purpose of the surplus fund provisions was to fix a definite period within which an appropriation not exempt should be used or could be expended; and the requirement therein that unexpended balances should be carried to the surplus fund of the Treasury was merely a means whereby that purpose was to be accomplished and the funds placed beyond reach for expenditure purposes. Hence, there would appear to be no reason why, either from a legal standpoint or otherwise, an indefinite annual appropriation such as here involved should not be viewed

as in the same status as any other appropriation made for a particular fiscal year. Consequently, payment of the claim here involved under the lapsed appropriation here involved, as proposed, without further action thereon by the Congress is not authorized.

The mandatory nature of the requirement that unexpended balances of appropriations must be carried to the surplus fund was recognized by the Comptroller of the Treasury in a decision dated January 26, 1902, 8 Comp. Dec. 881, 885 wherein he stated with reference to a 1900 appropriation act that "An unexpended balance of an appropriation for the fiscal year 1900 lapses into the Surplus Fund at the close of the fiscal year 1902 by operation of law, although by error it may be omitted from the Surplus Fund warrant issued June 30, 1902." Also see the discussion of this matter as contained in 1 First Comptroller's Decisions (Lawrence) at pages 582, 586, 587, 590, and


The records here show that the appropriation warrant under consideration was submitted at the request of the Chief, Accounting and Bookkeeping Division of this office, in letter of May 15, 1941, to the Chief, Division of Bookkeeping and Warrants, Treasury Department. However, for the reasons herein set forth, that action was erroneous and I find no authority of law for countersigning the warrant.

The usual action will be taken by this office, in due course, to process the certificate in question with a view to the reporting of the claim of Mr. Crumrine to the Congress as a certified claim.





SCOPE OF TERM "PERSONNEL OF THE NAVAL ESTABLISHMENT” The term "personnel of the Naval Establishment" appearing in the acts of April 5, 1941, and May 6, 1941, authorizing the transportation of dependents and household effects of such personnel, on duty outside the continental limits of the United States, prior to the issuance of orders relieving them from their stations, includes Navy civilian employees as well as officers and enlisted men of the Navy itself.

Comptroller General Warren to the Secretary of the Navy, July 21, 1941: I have your letter of June 23, 1941, reference LL/L20-4 (410614) K, as follows:

The "Fifth Supplemental National Defense Appropriation Act, 1941," approved April 5, 1941 (Pub. Law 29, 77th Cong.), provides in part:

"During the fiscal year 1941 the dependents and household effects of such personnel of the Naval Establishment on duty at stations outside the continental limits of the United States, and in Alaska, as may be determined upon by the Secretary of the Navy, may, prior to the issuance of orders for the relief of such personnel from their stations, be moved (including packing and unpacking of household effects) to such locations in continental United States as may be selected by the Secretary of the Navy, by the use of either Government or commercial means of transportation, and later from such locations to the duty stations to which such personnel may be ordered, and current appropriations of the Naval

Establishment available for travel and transportation may be used for this purpose:

In connection with the above-quoted provision, there is forwarded herewith for your consideration, a letter from the Bureau of Navigation, Navy Department. dated June 14, 1941, with accompanying Navy Department despatch, requesting your decision on the question therein presented, relative to whether the term "personnel of the Naval Establishment" as set forth in the above act, includes Navy civilian employees or whether such term is applicable only to all naval military personnel.

As the fiscal year mentioned in the statute quoted in your letter is now closed, it is assumed any question before the Department of incurring expenses of the character in question pertains primarily to the like provision in the Naval Appropriation Act, 1942, approved Mav 6. 1941, Public Law 48.

The term employed, "personnel of the Naval Establishment," was not defined in the statute, and, as your question itself indicates, there is reasonable doubt as to its intended meaning, such doubt as to justify reference to the legislative history of the enactment in order to ascertain the factual background presented to the Congress as a basis for the legislation, and the particular result which was sought to be achieved by the language used. 19 Comp. Gen. 227; 20 id. 81, 84; and cases there cited. In the published hearings on the bill, before the Subcommittee of the House Appropriations Committee, appears the following discussion of the new provision (p. 305):

Mr. WOODRUM. The following suggested change in language is made: [quoting the proposed section, as above].

Commander, will you tell us about that?

Commander LEFFLER. This change of language has been requested because of the necessity for evacuating dependents from overseas stations.

Mr. WOODRUM. The same thing has been requested for the Army?

Commander LEFFLER. Yes, sir.

Mr. TABER. This is for getting the families home?

Commander LEFFLER. That is correct. At present we can only bring them to the port of entry and the Government drops them. At present it is only a matter of dependents returning from Asia, and there is not a large number. Mr. WOODRUM. From what places are they being brought?

Commander LEFFLER. We now have brought them back or are in the process of bringing them back from the Asiatic station.

Mr. WOODRUM. This also provides for reimbursement for those who come back on their own expense?

Commander LEFFLER. Yes, sir. But this will not be a reimbursement; that is, in some cases it is a matter of an advance made the personnel.

May I take a case as an illustration, of a family that came back from Asia, whose relatives live in Chicago. Now, if the officer, when he finally returns to the United States for duty, came on to Washington, the Government would only pay from Chicago to Washington, but in the meantime this language permits the Government to reimburse him for travel as far as Chicago. It is a matter of the Government financing that part of the trip instead of asking the personnel to do it.

The like provision for the "personnel of the Military Establishment" was explained by the Chief of Staff as follows (pp. 11-12 of the same hearings):

There are certain restrictions in the language of current military appropriation acts which are hampering the development of the enlarged Army of the United States. Amended language is proposed which will correct the following:

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