A-23463, JULY 31, 1928, 8 COMP. GEN. 43

A-23463: Jul 31, 1928

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QUARTERS - RENTAL ALLOWANCE - SEA DUTY - DEPENDENTS OF COAST GUARD OFFICER A WARRANT OFFICER OF THE COAST GUARD WHO ABANDONED THE SUPPORT OF HIS WIFE AND CHILD DOES NOT HAVE A DEPENDENT WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 10. DURING THE PERIOD OF ABANDONMENT AND IS NOT ENTITLED TO INCREASED ALLOWANCES AS AN OFFICER WITH DEPENDENTS WHEN ON SEA DUTY. 1928: THERE IS FOR CONSIDERATION THE CLAIM OF L. THE FACTS OF THE CASE ARE REPORTED BY THE COAST GUARD AUTHORITIES AS FOLLOWS: 2. IT APPEARS THAT DOUGH WAS MARRIED SEPTEMBER 20. THAT HIS CHILD WAS BORN 1 JULY. HE WAS GIVEN A TEMPORARY APPOINTMENT AS WARRANT OFFICER AND STILL CONCEALED THE FACT THAT HE HAD A WIFE AND A CHILD. HE CONTINUED TO CONCEAL THESE FACTS UNTIL THE MATTER WAS REVEALED TO THE COMMANDING OFFICER OF THE GRESHAM BY THE PROBATION OFFICER OF THE JUVENILE AND DOMESTIC RELATIONS COURT.

A-23463, JULY 31, 1928, 8 COMP. GEN. 43

QUARTERS - RENTAL ALLOWANCE - SEA DUTY - DEPENDENTS OF COAST GUARD OFFICER A WARRANT OFFICER OF THE COAST GUARD WHO ABANDONED THE SUPPORT OF HIS WIFE AND CHILD DOES NOT HAVE A DEPENDENT WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, DURING THE PERIOD OF ABANDONMENT AND IS NOT ENTITLED TO INCREASED ALLOWANCES AS AN OFFICER WITH DEPENDENTS WHEN ON SEA DUTY.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 31, 1928:

THERE IS FOR CONSIDERATION THE CLAIM OF L. L. DOUGH, CARPENTER (TEMPORARY), UNITED STATES COAST GUARD, FOR RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS (MINOR CHILD) FOR THE PERIOD AUGUST 27, 1926 (DATE APPOINTED CARPENTER, TEMPORARY), TO JANUARY 31, 1928. THE FACTS OF THE CASE ARE REPORTED BY THE COAST GUARD AUTHORITIES AS FOLLOWS:

2. IT APPEARS THAT DOUGH WAS MARRIED SEPTEMBER 20, 1919, AND THAT HIS CHILD WAS BORN 1 JULY, 1922, AND THAT HE DESERTED HIS WIFE AND CHILD AT NORFOLK IN 1923, AND THAT HE REMAINED AWAY FROM NORFOLK FOR A PERIOD OF ABOUT A YEAR, THEREBY AVOIDING SUIT FOR SUPPORT OF HIS CHILD BROUGHT BY HIS WIFE.

3. ON JANUARY 20, 1925, HE ENLISTED IN THE COAST GUARD AND CONCEALED FROM THE ENLISTING OFFICER THE FACT THAT HE HAD A WIFE AND CHILD. IN AUGUST, 1928, HE WAS GIVEN A TEMPORARY APPOINTMENT AS WARRANT OFFICER AND STILL CONCEALED THE FACT THAT HE HAD A WIFE AND A CHILD. HE CONTINUED TO CONCEAL THESE FACTS UNTIL THE MATTER WAS REVEALED TO THE COMMANDING OFFICER OF THE GRESHAM BY THE PROBATION OFFICER OF THE JUVENILE AND DOMESTIC RELATIONS COURT, OF NORFOLK, VIRGINIA, IN CORRESPONDENCE UNDER DATE OF FEBRUARY 3, 1928, ATTEMPTING TO COMPEL DOUGH TO CONTRIBUTE TO THE SUPPORT OF HIS DEPENDENT CHILD. AS A RESULT OF THIS ACTION BY THE NORFOLK COURT OFFICER, DOUGH, ON MARCH 15, 1928, ALLOTTED FROM HIS PAY THE SUM OF $20.00 MONTHLY FOR THIS PURPOSE.

4. ON THE SAME DATE THAT DOUGH MADE THE MONTHLY ALLOTMENT OF $20.00 AS AS A RESULT OF THE PRESSURE BEING BROUGHT TO BEAR ON HIM BY THE COURT AT NORFOLK, HE SUBMITTED INCLOSURES (1) AND (2), VOUCHERS IN A SUM AGGREGATING $685.33, WHICH HE CLAIMS HAS ACCRUED DURING THE PERIOD SINCE HE RECEIVED HIS WARRANT, AUGUST 27, 1926, UP TO JANUARY 31, 1928, FOR RENTAL OR QUARTERS ALLOWANCE BECAUSE OF HIS DEPENDENT CHILD, WHOSE EXISTENCE HE HAD CONCEALED THROUGHOUT THAT PERIOD AND TO WHOSE SUPPORT OR SHELTER HE HAD APPARENTLY CONTRIBUTED NOTHING WHATEVER.

THIS STATEMENT OF FACTS IS CONFIRMED BY DOUGH'S STATEMENT "RELATIVE TO CLAIM FOR DEPENDENCY," AS FOLLOWS:

ON SEPTEMBER 20, 1919, I MARRIED ELSIE LOUISE WILLIAMSON AT NORFOLK, VIRGINIA, AND LIVED WITH HER IN NORFOLK, VIRGINIA, UNTIL ON OR ABOUT AUGUST 1, 1923. ABOUT THIS TIME WE SEPARATED, FOR THE REASON THAT WE COULD NOT GET ALONG. MY CHILD WAS BORN JULY 1, 1922. ABOUT TWO MONTHS AFTER THE SEPARATION SHE STARTED SUIT AGAINST ME FOR DEPENDENCY FOR OUR CHILD, BUT THIS DID NOT COME TO COURT FOR THE REASON THAT ON OR ABOUT JANUARY 1, 1924, I LEFT NORFOLK, VIRGINIA, AND RESIDED IN OHIO, INFORMING MY WIFE THAT THIS GAVE HER AN OPPORTUNITY TO OBTAIN HER DIVORCE. REMAINED AWAY FROM NORFOLK, VIRGINIA, APPROXIMATELY ONE YEAR, RETURNING THERE ABOUT JANUARY 1, 1925, AND ON JANUARY 20, 1925, I ENLISTED IN THE COAST GUARD AS A CARPENTER'S MATE, FIRST CLASS, AT THE OFFICE OF THE COMMANDER NORFOLK DIVISION, AND WAS SUBSEQUENTLY TRANSFERRED TO GREENPORT, LONG ISLAND. AT THE TIME OF MY ENLISTMENT I WAS UNDER THE IMPRESSION THAT MY WIFE HAD SECURED HER DIVORCE AND DID NOT INQUIRE OF THE COURTS FOR THE REASON THAT I DID NOT WISH TO ESTABLISH THE FACT OF MY BEING IN NORFOLK, VIRGINIA. UPON ENLISTMENT I STATED THAT I WAS NOT MARRIED AND DID NOT HAVE A CHILD, AS I THOUGHT MY FORMER WIFE HAD SECURED HER DIVORCE AND THAT THIS WOULD RELIEVE ME OF ALL RESPONSIBILITY.

ABOUT A YEAR AGO I WROTE MY WIFE'S BROTHER-IN-LAW ASKING IF THE FAMILY WOULD ACCEPT A MONTHLY CONTRIBUTION FROM ME TOWARD THE SUPPORT OF MY CHILD, AND WAS ADVISED THAT THEY DID NOT WISH ANY AND COULD GET ALONG WITHOUT ANY ASSISTANCE FROM ME. I HEARD NO MORE OF THE CASE UNTIL CALLED IN THE CABIN OF THE GRESHAM AND QUESTIONED BY THE COMMANDING OFFICER IN REGARD TO THIS AFFAIR, WHICH WAS AFTER HE HAD RECEIVED A LETTER FROM THE CHIEF PROBATION OFFICER, JUVENILE AND DOMESTIC RELATIONS COURT, NORFOLK, VIRGINIA. I TOLD HIM THE FACTS OF MY CASE AS STATED ABOVE AND FURTHER TOLD HIM THAT IT WAS MY DESIRE TO DO WHAT WAS MY DUTY TOWARD THE SUPPORT OF MY CHILD, AND ON MARCH 15, 1928, I REGISTERED AN ALLOTMENTIN FAVOR OF MY FORMER WIFE'S FATHER IN CARE OF CHIEF PROBATION OFFICER, JUVENILE AND DOMESTIC RELATIONS COURT, NORFOLK, VIRGINIA.

IT IS SUFFICIENT TO REMARK AS TO THE STATEMENTS OF CLAIMANT MADE UPON ENLISTMENT OF NOT BEING MARRIED AND NOT HAVING A CHILD, BECAUSE HE THOUGHT HE WAS DIVORCED, THAT SUCH STATEMENTS ARE SHOWN BY THE FACTS TO BE UNTRUE.

THIS "CLAIM FOR DEPENDENCY" RESULTED FROM A LETTER ADDRESSED TO THE COMMANDING OFFICER OF THE U.S.S. GRESHAM BY THE ADULT PROBATION OFFICER, JUVENILE AND DOMESTIC RELATIONS COURT, NORFOLK, A., FEBRUARY 3, 1928, COPY CERTIFIED AS TRUE OVER THE SIGNATURE OF LLOYD L. DOUGH, FURNISHED THIS OFFICE IN CONNECTION WITH CLAIMS, IS AS FOLLOWS:

THIS IS TO ADVISE THAT A DESERTION AND NONSUPPORT PETITION HAS BEEN FILED IN THIS OFFICE AND WARRANT ISSUED FOR ONE LLOYD LEE DOWE, CHARGED WITH DESERTION AND NONSUPPORT OF HIS INFANT CHILD ON THE 2D DAY OF AUGUST, 1923, AND SINCE THEN HE HAS FAILED AND REFUSED TO CONTRIBUTE ANYTHING TOWARDS THE SUPPORT AND MAINTENANCE OF HIS INFANT CHILD.

I UNDERSTAND THAT IN ORDER TO HAVE THIS WARRANT EXECUTED THE MATTER WILL HAVE TO BE TAKEN UP WITH THE SECRETARY OF THE NAVY, BUT BEFORE DOING THAT I THOUGHT THAT IF THE MATTER WAS BROUGHT TO YOUR ATTENTION YOU COULD, IN ALL PROBABILITY, INTERVIEW MR. DOWE AND ASCERTAIN WHETHER OR NOT HE WOULD BE WILLING TO CONTRIBUTE SOMETHING EACH MONTH TOWARDS THE SUPPORT AND MAINTENANCE OF HIS CHILD. IN THE EVENT HE IS WILLING TO DO HIS PART, IF YOU WILL ADVISE WHAT HIS EARNINGS AMOUNT TO, THE COURT WILL SET AN AMOUNT WHICH, I AM SURE, WILL BE SATISFACTORY TO ALL CONCERNED. WE DO NOT WISH TO CAUSE MR. DOWE ANY EMBARRASSMENT, BUT WE DO FEEL THAT IT IS HIS RESPONSIBILITY, BOTH LEGALLY AND MORALLY, TO PROVIDE FOR HIS INFANT CHILD, AND I HOPE THAT AN AMICABLE ADJUSTMENT CAN BE EFFECTED AS THE RESULT OF YOUR INTERVIEW WITH HIM.

THERE HAS ALSO BEEN FILED BY THE CLAIMANT WITH HIS CERTIFICATE AS TO THE GENUINENESS OF THE COPY, A COPY OF A DECREE ENTERED BY THE COURT OF LAW AND CHANCERY, OF THE CITY OF NORFOLK, MAY 11, 1927, IN THE CASE OF ELSIE LOUISE DOWE V. LLOYD LEE DOWE, SOMETIMES KNOWN AS LLOYD DOUGH, GRANTING TO THE COMPLAINANT A DIVORCE FROM THE BONDS OF MATRIMONY, THE DECREE RECITING THAT IT APPEARED TO THE COURT INDEPENDENTLY OF THE ADMISSIONS OF EITHER PARTIES IN THE PLEADINGS OR OTHERWISE "THAT THE SAID DEFENDANT DID, WITHOUT CAUSE OR JUSTIFICATION, ABANDON AND DESERT THE SAID COMPLAINANT ON THE 2D DAY OF AUGUST, 1923, WHICH ABANDONMENT AND DESERTION HAS CONTINUED EVER SINCE.'

THE CLAIMANT HEREIN ADMITS, AND THE COURT HAS FOUND AS A FACT, THAT HE ABANDONED HIS WIFE AND CHILD. ON THE ASCERTAINMENT OF HIS WHEREABOUTS IT APPEARS CRIMINAL PROCEEDINGS WERE INSTITUTED TO COMPEL HIM TO SUPPORT HIS CHILD; TO SECURE DISCONTINUANCE OF THOSE PROCEEDINGS WHEN CONFRONTED WITH THE INQUIRY OF THE ADULT PROBATION OFFICER OF THE JUVENILE AND DOMESTIC RELATIONS COURT OF NORFOLK, CLAIMANT ADMITTED HIS IDENTITY AND THE EXISTENCE OF THE FACTS ON WHICH THE PROCEEDINGS WERE PREDICATED, AND OFFERED TO MAKE AN ALLOTMENT FOR THE BENEFIT OF HIS CHILD EFFECTIVE APRIL 1, 1928, TO HIS FATHER-IN-LAW IN THE CARE OF THE CHIEF PROBATION OFFICER, JUVENILE AND DOMESTIC RELATIONS COURT, NORFOLK, VA., THAT IS, THE ALLOTMENT WAS TO COMMENCE OVER FOUR YEARS AFTER HIS ABANDONMENT OF HIS WIFE AND CHILD.

THE CLAIM IS BASED ON SECTIONS 4 AND 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, 628. THE LATTER PROVIDES FOR THE PAYMENT OF A RENTAL ALLOWANCE TO, AMONG OTHERS, WARRANT OFFICERS WHO HAVE DEPENDENTS WHILE THE WARRANT OFFICER IS ON SEA DUTY, FOR TWO ROOMS WHICH AT THE EXISTING RATE OF $20 PER MONTH PER ROOM AMOUNTS TO $40 PER MONTH; AND THE FORMER PROVIDES:

THAT THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. * * *

UNDER THE BROAD AND ALL-INCLUSIVE LANGUAGE OF THIS SECTION, THIS OFFICE HAS AUTHORIZED THE PAYMENT OF THE ALLOWANCES TO A WIDOWED OFFICER WHOSE 3 1/2-YEAR-OLD CHILD RESIDED WITH AND WAS IN THE CARE OF THE OFFICER'S OR HIS DEAD WIFE'S RELATIVES; IT HAS AUTHORIZED THE PAYMENT OF THE ALLOWANCE TO AN OFFICER WHO HAD INSTITUTED DIVORCE PROCEEDINGS AGAINST HIS WIFE AND WHO HAD STATED THAT HE WAS NOT PROVIDING AND DID NOT INTEND TO PROVIDE FOR HIS WIFE PENDING THE TRIAL OF HIS SUIT FOR DIVORCE. BUT IS THE LANGUAGE OF THE LAW SO ALL INCLUSIVE THAT INCREASED PAYMENTS ARE REQUIRED TO BE MADE TO A DESERTER OF WIFE AND CHILD DURING A PERIOD WHEN HE MADE NO PROVISION FOR HIS CHILD, AND WHO THEREAFTER, WHEN REQUIRED TO DO SO TO SECURE DISCONTINUANCE OF A CRIMINAL PROSECUTION FOR FAILURE TO SUPPORT THE CHILD, MADE PROVISION ONLY TO THE EXTENT OF ONE-HALF OF THE ADDITIONAL AMOUNT THAT WILL ACCRUE TO HIM? THE SUPREME COURT HAS SAID, CHURCH OF THE HOLY TRINITY V. UNITED STATES, 143 U.S. 457, 459:

* * * IT IS A FAMILIAR RULE, THAT A THING MAY BE WITHIN THE LETTER OF THE STATUTE AND YET NOT WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS SPIRIT, NOR WITHIN THE INTENTION OF ITS MAKERS. THIS HAS BEEN OFTEN ASSERTED, AND THE REPORTS ARE FULL OF CASES ILLUSTRATING ITS APPLICATION. THIS IS NOT THE SUBSTITUTION OF THE WILL OF THE JUDGE FOR THAT OF THE LEGISLATOR, FOR FREQUENTLY WORDS OF GENERAL MEANING ARE USED IN A STATUTE, WORDS BROAD ENOUGH TO INCLUDE AN ACT IN QUESTION; AND YET A CONSIDERATION OF THE WHOLE LEGISLATION, OR OF THE CIRCUMSTANCES SURROUNDING ITS ENACTMENT, OR OF THE ABSURD RESULTS WHICH FOLLOW FROM GIVING SUCH BROAD MEANING TO THE WORDS, MAKES IT UNREASONABLE TO BELIEVE THAT THE LEGISLATOR INTENDED TO INCLUDE THE PARTICULAR ACT. AS SAID IN PLOWDEN, 205: "FROM WHICH CASES, IT APPEARS THAT THE SAGES OF THE LAW HERETOFORE HAVE CONSTRUED STATUTES QUITE CONTRARY TO THE LETTER IN SOME APPEARANCE, AND THOSE STATUTES WHICH COMPREHEND ALL THINGS IN THE LETTER THEY HAVE EXPOUNDED TO EXTEND TO BUT SOME THINGS, AND THOSE WHICH GENERALLY PROHIBIT ALL PEOPLE FROM DOING SUCH AN ACT THEY HAVE INTERPRETED TO PERMIT SOME PEOPLE TO DO IT, AND THOSE WHICH INCLUDE EVERY PERSON IN THE LETTER, THEY HAVE ADJUDGED TO REACH TO SOME PERSONS ONLY, WHICH EXPOSITIONS HAVE ALWAYS BEEN FOUNDED UPON THE INTENT OF THE LEGISLATURE, WHICH THEY HAVE COLLECTED SOMETIMES BY CONSIDERING THE CAUSE AND NECESSITY OF MAKING THE ACT, SOMETIMES BY COMPARING ONE PART OF THE ACT WITH ANOTHER, AND SOMETIMES BY FOREIGN CIRCUMSTANCES.

IN THE SAME CASE THE COURT CITED AND QUOTED FROM AN EARLIER OPINION OF THAT COURT IN UNITED STATES V. KIRBY, 7 WALL. 482, 486, AS FOLLOWS:

* * * ALL LAWS SHOULD RECEIVE A SENSIBLE CONSTRUCTION. GENERAL TERMS SHOULD BE SO LIMITED IN THEIR APPLICATION AS NOT TO LEAD TO INJUSTICE, OPPRESSION, OR AN ABSURD CONSEQUENCE. IT WILL ALWAYS, THEREFORE, BE PRESUMED THAT THE LEGISLATURE INTENDED EXCEPTIONS TO ITS LANGUAGE, WHICH WOULD AVOID RESULTS OF THIS CHARACTER. THE REASON OF THE LAW IN SUCH CASES SHOULD PREVAIL OVER ITS LETTER.

IT HAS BEEN HERETOFORE POINTED OUT THE PROVISION FOR INCREASED ALLOWANCES TO OFFICERS HAVING A WIFE AND/OR MINOR CHILD OR CHILDREN CONTEMPLATED NORMAL FAMILY LIFE, AND THE REPORTS OF THE COMMITTEES HAVING THE LEGISLATION IN CHARGE HAVE BEEN CITED AND QUOTED TO DEMONSTRATE THAT SUCH WAS THE PURPOSE OF THE PROVISION. CERTAINLY, IN PROVIDING FOR NORMAL FAMILY LIFE IT WAS NOT THE INTENT TO REWARD WITH INCREASED ALLOWANCES A CONFESSED DESERTER OF WIFE AND CHILD. SUCH FAMILY DESERTERS HAVE NEVER BEEN FAVORED BY THE LAW. ON THE CONTRARY, THE DESERTION OF WIFE, CHILD, OR CHILDREN, IS A CRIMINAL OFFENSE IN MOST JURISDICTIONS. TO CONSTRUE THE STATUTE AS AUTHORIZING INCREASED ALLOWANCES TO SUCH A DESERTER DURING THE PERIOD OF HIS DESERTION WHEN HE MADE NO PROVISION FOR HIS DEPENDENTS, AND WHO THEREAFTER MADE NO PROVISION FOR THEM UNTIL THE INSTITUTION OF CRIMINAL PROCEEDINGS AGAINST HIM FOR FAILURE TO SUPPORT HIS CHILD, WOULD INDEED BE AN ABSURDITY, A RESULT NEVER INTENDED BY ANY MEMBER OF THE COMMITTEES HAVING THE MATTER IN CHARGE, NOR OF THE MEMBERS OF THE RESPECTIVE HOUSES WHO VOTED FOR THE PASSAGE OF THE BILL. IT WOULD OPERATE TO PERMIT THIS CLAIMANT TO RECEIVE AN ADVANTAGE ON HIS OWN WRONG, AND A WRONG WHICH THE LAW HAS PROVIDED FOR CRIMINALLY REDRESSING. IF THE ADMITTED FACTS MEAN ANYTHING, THEY MEAN THIS CARPENTER WAS IN A CRIMINAL STATUS AND NOT THAT HE WAS IN A STATUS TO CLAIM DEPENDENCY ALLOWANCES FROM THE GOVERNMENT. THE FACTS OF THE CASE REQUIRE A CONSTRUCTION THAT DURING THE PERIOD COVERED BY THE CLAIM CLAIMANT DID NOT HAVE A DEPENDENT WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 10, 1922. THE CLAIM IS DISALLOWED IN ITS ENTIRETY.