A-59249, MAY 6, 1936, 15 COMP. GEN. 963

A-59249: May 6, 1936

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IS PROHIBITED BY SECTION 7 OF THE ACT OF AUGUST 23. 1936: I HAVE YOUR LETTER OF APRIL 20. EXPRESSING AN INCLINATION TO THE BELIEF THAT YOU DID NOT HAVE POSSESSION OF ALL OF THE FACTS CONCERNING THE INTERCOMMUNICATING TELEPHONE SYSTEM IN THE GOVERNMENT-OWNED AMERICAN EMBASSY RESIDENCE BUILDING. AT THE TIME YOUR RULING WAS MADE. I MAY SAY THAT THE VIEW OF THE AMBASSADOR THAT THE BUILDING AT PARIS IS NOT A PRIVATE RESIDENCE WITHIN THE MEANING OF SECTION 7 OF THE ACT OF AUGUST 23. IS AT VARIANCE WITH THE VIEW TAKEN BY THE FORMER COMPTROLLER OF THE TREASURY IN A COMPARABLE CASE BY HIS DECISION OF SEPTEMBER 25. THE POINT AT ISSUE IS NOT WHETHER OR NOT THE BUILDING IS A PRIVATE RESIDENCE. TO HAVE NO CONNECTION WITH THE SORT OF ABUSE WHICH THE LAW OF 1912 WAS DESIGNED TO CORRECT.

A-59249, MAY 6, 1936, 15 COMP. GEN. 963

TELEPHONES - AMERICAN EMBASSY RESIDENCE BUILDING THE INSTALLATION AT GOVERNMENT EXPENSE OF AN INTERCOMMUNICATING TELEPHONE SYSTEM IN AN AMERICAN EMBASSY RESIDENCE BUILDING, EVEN THOUGH LIMITED TO COMMUNICATIONS BETWEEN THE AMBASSADOR'S OFFICE AND HIS LIVING QUARTERS, IS PROHIBITED BY SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 6, 1936:

I HAVE YOUR LETTER OF APRIL 20, 1936, AS FOLLOWS:

REFERRING TO YOUR DECISION A-59249 OF JANUARY 11, 1935, I ENCLOSE A COPY OF A DESPATCH OF APRIL 4, 1936, FROM THE AMERICAN AMBASSADOR AT PARIS, EXPRESSING AN INCLINATION TO THE BELIEF THAT YOU DID NOT HAVE POSSESSION OF ALL OF THE FACTS CONCERNING THE INTERCOMMUNICATING TELEPHONE SYSTEM IN THE GOVERNMENT-OWNED AMERICAN EMBASSY RESIDENCE BUILDING, AT THE TIME YOUR RULING WAS MADE.

I MAY SAY THAT THE VIEW OF THE AMBASSADOR THAT THE BUILDING AT PARIS IS NOT A PRIVATE RESIDENCE WITHIN THE MEANING OF SECTION 7 OF THE ACT OF AUGUST 23, 1912, IS AT VARIANCE WITH THE VIEW TAKEN BY THE FORMER COMPTROLLER OF THE TREASURY IN A COMPARABLE CASE BY HIS DECISION OF SEPTEMBER 25, 1912 (19 COMP. DEC. 198). TO MY MIND, HOWEVER, THE POINT AT ISSUE IS NOT WHETHER OR NOT THE BUILDING IS A PRIVATE RESIDENCE, BUT WHETHER THE INSTALLATION IN QUESTION DOES IN FACT CONSTITUTE TELEPHONE SERVICE. IT SEEMS TO ME TO FALL INTO THE CATEGORY OF INTERNAL CALL-BELL AND SIGNAL SYSTEMS, AND TO HAVE NO CONNECTION WITH THE SORT OF ABUSE WHICH THE LAW OF 1912 WAS DESIGNED TO CORRECT. I SHALL APPRECIATE YOUR REVIEWING YOUR DECISION A-59249 OF JANUARY 11, 1935, IN THIS LIGHT.

THE DESPATCH REFERRED TO IS AS FOLLOWS:

I HAVE THE HONOR TO REFER TO THE DEPARTMENT'S INSTRUCTION NO. 710 OF JANUARY 18, 1935, ON THE SUBJECT OF THE INTER-COMMUNICATING TELEPHONE SYSTEM IN THE GOVERNMENT-OWNED EMBASSY RESIDENCE BUILDING AT PARIS.

A RE-READING OF THE CORRESPONDENCE UPON THIS SUBJECT, BUT PARTICULARLY THE RULING OF THE COMPTROLLER GENERAL WHICH FORMED THE ENCLOSURE TO THE DEPARTMENT'S INSTRUCTION REFERRED TO ABOVE, HAS INCLINED THE EMBASSY TO THE BELIEF THAT THE COMPTROLLER GENERAL DID NOT HAVE POSSESSION OF ALL OF THE FACTS WHEN MAKING HIS ADVERSE DECISION.

THAT DECISION, AND THE INFORMATION SUPPLIED TO THE COMPTROLLER GENERAL AT THE TIME THE REQUEST FOR THE DECISION WAS MADE, WOULD APPEAR TO WARRANT THE BELIEF THAT THE COMPTROLLER GENERAL WAS RULING UPON THE QUESTION OF THE STATUTORY AUTHORITY FOR THE EXPENDITURE OF GOVERNMENT FUNDS FOR THE INSTALLATION OF A NEW INTER-COMMUNICATING TELEPHONE SYSTEM IN A PRIVATE RESIDENCE.

IT DOES NOT APPEAR THAT THE COMPTROLLER GENERAL'S ATTENTION WAS DRAWN TO THE FACT THAT AN INTER-COMMUNICATING TELEPHONE SYSTEM ALREADY EXISTS IN THE EMBASSY RESIDENCE, NOR TO THE FACT THAT THAT BUILDING IS NOT A PRIVATE RESIDENCE, SUCH AS WOULD APPEAR TO HAVE BEEN CONTEMPLATED BY SECTION 7 OF THE ACT OF AUGUST 23, 1912 (37 STAT. 414), BUT THE OFFICIAL GOVERNMENT- OWNED RESIDENCE OF THE AMERICAN AMBASSADOR AT PARIS FOR THE TIME BEING.

THE INTER-COMMUNICATING TELEPHONE SYSTEM WHICH IS AT PRESENT IN USE IN THE EMBASSY RESIDENCE IS GOVERNMENT PROPERTY. IT HAS BEEN IN USE FOR A GREAT NUMBER OF YEARS, AND, EVEN WITH CONSTANT MINOR REPAIRS IT DOES NOT RENDER SATISFACTORY SERVICE. THE EMBASSY THEREFORE AGAIN REQUESTS THAT IT BE GRANTED A SPECIAL ALLOTMENT OF 15,700 FRANCS IN ORDER THAT IT MAY EFFECT THE ADEQUATE REPAIR OF THAT INTERCOMMUNICATING TELEPHONE SYSTEM. THE PRESENT CONDITION OF THE SYSTEM IS SUCH THAT ADEQUATE REPARATION WILL REQUIRE REPLACING MOST OF THE SYSTEM.

THE FACT THAT THE PROPOSED INTERCOMMUNICATING TELEPHONE SYSTEM WOULD BE EXCLUSIVELY FOR USE WITHIN THE HOUSE AND WOULD NOT BE CONNECTED WITH THE PUBLIC TELEPHONE LINES WAS KNOWN TO THIS OFFICE AT THE TIME THE DECISION OF JANUARY 11, 1935, WAS RENDERED HOLDING THAT THE INSTALLATION AT GOVERNMENT EXPENSE WAS PROHIBITED BY THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 23, 1912 (37 STAT. 414). IT IS TO BE NOTED THAT THE TERMS OF SAID SECTION DO NOT LIMIT THE INHIBITION TO TELEPHONES CONNECTED WITH PUBLIC TELEPHONE LINES.

WHILE THE EMBASSY IS OWNED BY THE GOVERNMENT AND IS THE OFFICIAL RESIDENCE OF THE AMBASSADOR, IT IS NEVERTHELESS A PRIVATE RESIDENCE WITHIN THE MEANING OF SAID SECTION 7 (19 COMP. DEC. 198). HENCE, THE INSTALLATION OF THE TELEPHONE SYSTEM, EVEN IF LIMITED TO COMMUNICATIONS BETWEEN THE AMBASSADOR'S OFFICE AND HIS LIVING QUARTERS WITHIN THE EMBASSY, IS WITHIN THE STATUTORY INHIBITION AND THE FACT THAT A SIMILAR SYSTEM HERETOFORE MAY HAVE BEEN INSTALLED AT GOVERNMENT EXPENSE CANNOT OPERATE TO AUTHORIZE THIS INSTALLATION. ACCORDINGLY, THE DECISION OF JANUARY 11, 1935, MUST BE AND IS AFFIRMED.