A-50326, AUGUST 15, 1933, 13 COMP. GEN. 49

A-50326: Aug 15, 1933

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" IT IS PROVIDED: "THAT NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY. VARIOUS QUESTIONS HAVE BEEN PRESENTED FOR THE CONSIDERATION OF THE NAVY DEPARTMENT AS TO THE APPLICABILITY. WHEN SUCH MESS IS SET UP TEMPORARILY ON SHORE. THE QUESTIONS PRESENTED MAY BE STATED AS FOLLOWS: (A) WHEN A FLEET AVIATION UNIT IS TRANSFERRED FROM ITS SHIP BASE FOR TEMPORARY DUTY AT A SHORE BASE. WHEN SUCH MESS IS SET UP TEMPORARILY ON SHORE? BE EMPLOYED IN THEIR NORMAL DUTIES IN CONNECTION WITH THE OFFICERS' MESS WHICH IS TEMPORARILY MOVED TO SOME BUILDING ON THE BASE? THERE IS NOW OPERATED AT THE RECEIVING STATION AT WASHINGTON NAVY YARD. THE FOOD SERVED AT THIS LUNCHEON MESS IS FROM THAT PREPARED IN THE GALLEY FOR THE RECEIVING-STATION CREW.

A-50326, AUGUST 15, 1933, 13 COMP. GEN. 49

NAVY - OFFICERS - USE OF ENLISTED MEN AND CIVILIAN EMPLOYEES AS SERVANTS THE PROVISION IN THE ACT APPROVED MARCH 3, 1933, 47 STAT. 1530, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1934,"* * * THAT NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY, ALLOWANCES, OR OTHER EXPENSES OF ANY ENLISTED MAN OR CIVIL EMPLOYEE PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY A HOUSEHOLD SERVANT, * * *" APPLIES TO ENLISTED MEN AND CIVILIANS DETAILED TO SERVE IN AN OFFICERS' MESS SET UP AND OPERATED ON SHORE, NOTWITHSTANDING THE OFFICERS COMPRISING THE MESS MAY BE ATTACHED TO VESSELS AND TECHNICALLY ON SEA DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 15, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 2, 1933, REQUESTING DECISION AS FOLLOWS:

IN THE ACT "MAKING APPROPRIATIONS FOR THE NAVY DEPARTMENT AND THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1934, AND FOR OTHER PURPOSES," APPROVED MARCH 3, 1933 (PUBLIC NO. 429 72D CONGRESS), UNDER THE SUBHEAD "PAY OF NAVAL PERSONNEL" APPEARING UNDER THE CAPTION "PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," IT IS PROVIDED:

"THAT NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY, ALLOWANCES, OR OTHER EXPENSES OF ANY ENLISTED MAN OR CIVIL EMPLOYEE PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY A HOUSEHOLD SERVANT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS PREVENTING THE VOLUNTARY EMPLOYMENT IN ANY SUCH CAPACITY OF A RETIRED ENLISTED MAN OR A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT.'

VARIOUS QUESTIONS HAVE BEEN PRESENTED FOR THE CONSIDERATION OF THE NAVY DEPARTMENT AS TO THE APPLICABILITY, IF ANY, OF THE ABOVE QUOTED PROVISION TO ENLISTED MEN OF THE MESSMAN BRANCH ATTACHED TO VARIOUS NAVAL UNITS WHILE PERFORMING THEIR NORMAL DUTIES ON SHORE IN CONNECTION WITH ATTENDING TO THE MESS OF THE OFFICERS OF THE UNIT TO WHICH ATTACHED, WHEN SUCH MESS IS SET UP TEMPORARILY ON SHORE. THE QUESTIONS PRESENTED MAY BE STATED AS FOLLOWS:

(A) WHEN A FLEET AVIATION UNIT IS TRANSFERRED FROM ITS SHIP BASE FOR TEMPORARY DUTY AT A SHORE BASE, MAY THE ENLISTED MEN OF THE MESSMAN BRANCH ATTACHED TO SUCH UNIT CONTINUE TO PERFORM THEIR NORMAL DUTIES ON SHORE IN CONNECTION WITH ATTENDING TO THE MESS OF THE OFFICERS OF THAT UNIT, WHEN SUCH MESS IS SET UP TEMPORARILY ON SHORE?

(B) WHEN A SHORE BASED SUBMARINE OR FLEET SUBMARINE TIES UP TO A SUBMARINE BASE, MAY THE ENLISTED MEN OF THE MESSMAN BRANCH IN THE ALLOWANCES OF THOSE SUBMARINES BE USED FOR THEIR NORMAL DUTIES IN CONNECTION WITH A COMBINED MESS FOR THESE OFFICERS TEMPORARILY SET UP ON THE BASE AND ADJACENT TO THE SUBMARINES?

(C) WHEN A RIGID AIRSHIP ENTERS THE HANGAR OR MOORS AT A BASE, MAY THE ENLISTED MEN OF THE MESSMAN BRANCH, ATTACHED TO SUCH AIRSHIP, BE EMPLOYED IN THEIR NORMAL DUTIES IN CONNECTION WITH THE OFFICERS' MESS WHICH IS TEMPORARILY MOVED TO SOME BUILDING ON THE BASE?

(D) DOES THE LAW PERMIT THE EMPLOYMENT OF ENLISTED MEN OF THE MESSMAN BRANCH IN THEIR NORMAL DUTIES WITH THE NAVAL LANDING FORCES AND EXPEDITIONARY FORCES?

IN ADDITION TO THE ABOVE, THERE IS NOW OPERATED AT THE RECEIVING STATION AT WASHINGTON NAVY YARD, WASHINGTON, D.C., A LUNCHEON MESS FOR THE CONVENIENCE OF OFFICERS ATTACHED TO THE RECEIVING STATION AND FOR OFFICERS ON THE STAFF OF THE COMMANDANT OF THE WASHINGTON NAVY YARD. THE FOOD SERVED AT THIS LUNCHEON MESS IS FROM THAT PREPARED IN THE GALLEY FOR THE RECEIVING-STATION CREW. MEN OF THE MESSMAN BRANCH WHO ARE AT THE RECEIVING STATION AWAITING ASSIGNMENT, OR WHO ARE DETAILED TO THE U.S.S. SEQUOIA OR TO OTHER SPECIAL DUTY WHICH LEAVES THEM OTHERWISE UNEMPLOYED PART OF THE TIME, ARE UTILIZED FOR OBTAINING THE FOOD FROM THE GALLEY FOR THE MIDDAY MEAL OF WORKING-DAYS ONLY, SERVING IT AT THE TABLE AND WASHING DISHES.

THE NAVY DEPARTMENT IS OF THE VIEW THAT THE EMPLOYMENT OF ENLISTED MEN OF THE MESSMAN BRANCH IN THE MANNER ABOVE STATED SHOULD NOT OPERATE TO DEPRIVE THEM OF THEIR PAY AND ALLOWANCES TO WHICH OTHERWISE ENTITLED, FOR THE REASON THAT IT IS NOT CONTEMPLATED IN ANY OF THE INSTANCES CITED THAT THE ENLISTED MEN WILL BE REQUIRED TO PERFORM SERVICE "IN THE RESIDENCE OR QUARTERS OF AN OFFICER OF OFFICERS" WITHIN THE MEANING OF THE TERMS "RESIDENCE" AND "QUARTERS" AS GENERALLY UNDERSTOOD.

HOWEVER, SINCE THE STATUTORY PROVISION UNDER CONSIDERATION IS CLEARLY A RESTRICTION UPON THE AVAILABILITY OF THE CURRENT APPROPRIATION FOR THE PAY AND ALLOWANCES OF ENLISTED MEN PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF OFFICERS UNDER THE CONDITIONS STATED IN THE ACT OF MARCH 3, 1933, YOUR DECISION IS REQUESTED UPON THE QUESTION AS TO WHETHER OR NOT THE CURRENT APPROPRIATION FOR THE "PAY OF NAVAL PERSONNEL" AS PROVIDED UNDER THE CAPTION "PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL" WILL BE CONSIDERED AVAILABLE FOR THE PAY AND ALLOWANCES OF ENLISTED MEN OF THE MESSMAN BRANCH EMPLOYED AS STATED IN THE SECOND AND THIRD PARAGRAPHS ABOVE.

SECTION 1232 OF THE REVISED STATUTES PROVIDES RELATIVE TO THE ARMY THAT--

NO OFFICER SHALL USE AN ENLISTED MAN AS A SERVANT IN ANY CASE WHATEVER.

IN THE CONSIDERATION OF THE BILL THE CHAIRMAN OF THE SUBCOMMITTEE IN CHARGE CALLED ATTENTION TO THE FACT THAT ARMY OFFICERS WERE PROHIBITED FROM USING ENLISTED MEN AS SERVANTS.

AN ASPECT OF THE QUESTION WAS CONSIDERED BY THE COURT OF CLAIMS IN WILLIAMS V. UNITED STATES, 44 CT.CLS. 175, IN DETERMINING WHETHER THE COMMUTED RATIONS OF MEN ON DUTY AS ATTENDANTS ON THE OFFICERS' MESS AT THE NAVY YARD, BROOKLYN, N.Y., DURING THE PERIOD OCTOBER 1904 TO FEBRUARY 1905 COULD BE PAID TO THE TREASURER OF SAID MESS. THE COURT STATED:

IN THE ACT OF JULY 1, 1902, MAKING APPROPRIATION FOR THE NAVAL SERVICE THE LAST PARAGRAPH UNDER THE HEADING OF "SUPPLIES AND ACCOUNTS" (32 STAT.L., 662, 680) PROVIDES: "THAT MONEY ACCRUING FROM THE RATIONS OF ENLISTED MEN COMMUTED FOR THE BENEFIT OF ANY MESS MAY BE PAID ON PUBLIC BILLS TO THE COMMISSARY OFFICER BY THE PAY OFFICER HAVING THEIR ACCOUNTS.'

SECTIONS 1115 AND 1120, NAVY REGULATIONS OF 1900, AS WELL AS 1905, HAVE REFERENCE ONLY TO OFFICERS' MESS ON BOARD SHIP, AND WHATEVER PRACTICE MAY HAVE GROWN UP RESPECTING THE DETAIL OF ENLISTED MEN ON SHIPBOARD TO PREPARE AND SERVE FOOD TO THE OFFICERS THEREOF CAN HAVE NO APPLICATION TO OFFICERS' MESS ON SHORE, NOR IS THERE ANY LAW AUTHORIZING THE REGULATION OF OFFICERS' MESS ON SHORE. OFFICERS ON SHORE ARE AT LIBERTY TO GET THEIR MEALS WHEN AND HOW THEY PLEASE, AND IF THEY FOR ECONOMICAL REASONS OR OTHERWISE UNITE IN FORMING A MESS ON SHORE THAT IS THEIR OWN CONCERN AND NO REGULATION RESPECTING IT OTHER THAN THAT OF THEIR OWN MAKING IS REQUIRED, AND MEMBERSHIP THEREIN IS ENTIRELY OPTIONAL WITH THEM.

REVISED STATUTES, SECTION 1222, PROVIDING THAT "NO OFFICER SHALL USE AN ENLISTED MAN AS A SERVANT IN ANY CASE WHATEVER," IS EQUALLY APPLICABLE TO OFFICERS OF THE NAVY, AT LEAST ON SHORE. SECTION 1034, NAVY REGULATIONS, 1905, RESPECTING ENLISTED MEN IN THE MARINE SERVICE, IS EQUALLY AS EXPLICIT, SO THAT WHATEVER AUTHORITY THERE MAY BE FOR THE ENLISTMENT OF MESS MEN OF THE SERVANT CLASS ON BOARD SHIP CAN HAVE NO APPLICATION TO A PRIVATE MESS FORMED BY OFFICERS ON SHORE.

BY THE ACT CITED THE PAY OFFICER IS AUTHORIZED TO PAY "MONEY ACCRUING FROM THE RATIONS OF ENLISTED MEN COMMUTED FOR THE BENEFIT OF ANY MESS * * * TO THE COMMISSARY OFFICER," WHOSE DETAIL IS PROVIDED FOR BY SECTION 387 AND HIS RESPONSIBILITIES FIXED BY SECTION 753 OF THE NAVY REGULATIONS. CONSTRUING THAT STATUTE THE COMPTROLLER, AS WE THINK RIGHTLY SAID: "I AM OF OPINION THAT THE PROVISION REFERRED TO IN SAID ACT OF JULY 1, 1902, CONTEMPLATES MESSES ON BOARD SUBJECT TO THE NAVY REGULATIONS, AND THAT THE PAY OFFICER IS AUTHORIZED TO PAY COMMUTED RATION MONEY OF ENLISTED MEN TO THE COMMISSARY OF SUCH MESSES ONLY AND NOT TO THE COMMISSARY OF PRIVATE MESSES.'

IN THAT CASE THE COURT HELD, QUOTING FROM THE SYLLABUS:

I. THE NAVY REGULATIONS (SECTIONS 1115, 1120) WHICH ALLOW THE DETAIL OF ENLISTED MEN TO PREPARE AND SERVE FOOD FOR OFFICERS' MESSES EXTEND ONLY TO MESSES ON BOARD SHIP. OFFICERS' MESSES ON SHORE ARE VOLUNTARY AND THERE IS NO LAW OR REGULATION WHICH RECOGNIZES THEM.

II. WHERE ENLISTED MEN ON SHIPBOARD WERE DETAILED TO SERVE AN OFFICERS' MESS ON SHORE AND WERE SUBSISTED BY THE MESS AND THEIR RATIONS WERE COMMUTED AND PAID TO THE MESS THE ACCOUNTING OFFICERS COULD DISALLOW THE PAYMENT AND COMPEL THE OFFICERS TO REFUND THE MONEY.

IT IS NOT APPARENT THAT THE LAW OR REGULATION RELATIVE TO THE DETAIL OF ENLISTED MEN OF THE NAVY AS SERVANTS TO OFFICERS ON SHORE HAS BEEN CHANGED SINCE THE COURT'S DECISION SO AS TO RECOGNIZE THE LEGALITY OF SAID ASSIGNMENT. OFFICERS' MESSES ON SHORE ARE VOLUNTARY AND THERE IS NO LAW OR REGULATION WHICH RECOGNIZES THEM AND, THEREFORE, NO AUTHORITY TO DETAIL ENLISTED MEN TO PREPARE AND SERVE FOOD TO THE OFFICERS THEREOF. IT IS TO BE NOTED IN THIS CONNECTION THAT THE STATUTE IS ADDRESSED TO THE EMPLOYMENT OF ENLISTED MEN AND CIVILIAN EMPLOYEES "IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE.' THE USE OF THE PLURAL "OFFICERS" AFTER THE SINGULAR AND THE USE OF THE WORD "QUARTERS" AFTER THE WORD "RESIDENCE" INDICATES THE PURPOSE TO BE TO STRIKE DOWN THE PRACTICE IN ITS ENTIRETY OF SUPPLYING OFFICERS ON SHORE WITH SERVANTS FROM THE ENLISTED OR CIVIL PERSONNEL OF THE NAVY. IT IS APPARENT THAT THE INHIBITION AS TO PAY AND ALLOWANCES OF ENLISTED MEN "PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY HOUSEHOLD ERVANTS" IS INTENDED TO STOP THE PRACTICE OF DETAILING MEN TO SERVE IN OFFICERS' MESSES ON SHORE.

YOU URGE, HOWEVER, THAT THE MESSES DESCRIBED IN QUESTIONS (A), (B), (C), AND (D) OF YOUR SUBMISSION, THOUGH ACTUALLY SET UP AND OPERATED ON SHORE ARE THERE TEMPORARILY ONLY, THE OFFICERS COMPOSING THE MESS BEING ON SEA DUTY; AND THAT THE INHIBITION ON THE USE OF ENLISTED MEN AS DOMESTIC SERVANTS WAS NOT INTENDED TO APPLY TO THE USE OF ENLISTED MEN AS COOKS OR MESSMEN IN CONNECTION WITH MESSES OF OFFICERS ON DUTY WITH TACTICAL UNITS OR SUBDIVISIONS OF THE NAVY AND TECHNICALLY ON SEA DUTY WHEN THEIR MESS IS TEMPORARILY SET UP ON SHORE.

AS HEREINBEFORE STATED THERE IS NO LAW OR LEGAL REGULATION WHICH RECOGNIZES OFFICERS' MESSES ON SHORE AS OF A PUBLIC CHARACTER AND THE INHIBITION IN QUESTION IN THE CURRENT APPROPRIATION ACT IS INTENDED TO STOP THE PRACTICE OF DETAILING ENLISTED MEN TO PREPARE AND SERVE FOOD TO OFFICERS' MESSES NOT RECOGNIZED OR AUTHORIZED BY LAW OR LEGAL REGULATION. THE TEST IS NOT THE TECHNICAL ASSIGNMENT OF THE OFFICERS COMPOSING THE MESS TO DUTY ON BOARD A VESSEL BUT THE LOCATION OF THE MESS. THE SAME SITUATIONS EXIST IN THE ARMY, BUT THE LAW PROHIBITS THE USE OF ENLISTED MEN OF THE ARMY IN SUCH SITUATIONS, AS WELL AS IN OTHERS, AS SERVANTS FOR OFFICERS. IF THE OFFICERS ARE REQUIRED OR PERMITTED TO SUBSIST THEMSELVES ASHORE IT IS A PRIVATE MESS NOTWITHSTANDING THE OFFICERS MAY TECHNICALLY BE ON SEA DUTY. DECISION A-38907, DECEMBER 1, 1931. THE PURPOSE OF THE INHIBITION ON PAY AND ALLOWANCES OF ENLISTED MEN IN THE PROVISO IN QUESTION, AS SHOWN IN THE LEGISLATIVE HISTORY AND THE STATUS OF THE LAW THEN IN FORCE, IS TO PROHIBIT THE DETAIL OF ENLISTED MEN AND CIVILIANS IN NAVAL SERVICE TO PERFORM FOR OFFICERS DUTY OF A PRIVATE OR PERSONAL CHARACTER AS CONTRASTED WITH PUBLIC DUTY. THE MESSES DESCRIBED IN QUESTIONS (A), (B), (C), AND (D) ARE OFFICERS' MESSES ON SHORE. IT IS IMMATERIAL THAT THE OFFICERS COMPOSING THESE MESSES ARE ATTACHED TO A VESSEL AND TECHNICALLY ON SEA DUTY. THE FACT THAT THE MESSES ARE SET UP AND OPERATED ON SHORE GIVES TO THEM A PRIVATE CHARACTER AND THE SERVICE OF ENLISTED MEN AS COOKS, WAITERS, OR OTHERWISE, IN CONNECTION WITH SUCH MESSES IS SERVICE IN "QUARTERS * * * OFFICERS ON SHORE" WITHIN THE PURPOSE AND INTENT OF THE INHIBITION IN THE CURRENT APPROPRIATION ACT ON THE USE OF PAY AND ALLOWANCES OF ENLISTED MEN.

ACCORDINGLY, QUESTIONS (A), (B), (C), AND (D) ARE ANSWERED IN THE NEGATIVE; ALSO THE ACT DEPRIVES AN ENLISTED MAN OF PAY AND ALLOWANCES WHILE SERVING THE LUNCHEON MESS SET UP AT THE NAVY YARD, WASHINGTON, D.C., FOR THE CONVENIENCE OF OFFICERS ATTACHED TO THE RECEIVING STATION AND OFFICERS ON THE STAFF OF THE COMMANDANT OF THE WASHINGTON NAVY YARD.