A-62929, JULY 30, 1935, 15 COMP. GEN. 88

A-62929: Jul 30, 1935

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A MEMBER OF THE ARMY NURSE CORPS IS NOT ENTITLED TO SUBSISTENCE ALLOWANCE UNDER SECTIONS 5 AND 13 OF THE ACT OF JUNE 10. 1935: THERE IS FOR CONSIDERATION THE CLAIM OF HELEN E. WAS GRANTED AUTHORITY TO RELIEVE THIS NURSE FROM DUTY AT STERNBERG GENERAL HOSPITAL ON OR ABOUT JUNE 20. NURSE WOODMANSEE WAS GRANTED 120 DAYS' LEAVE OF ABSENCE WITH PERMISSION TO TRAVEL IN CHINA AND JAPAN. NURSE WOODMANSEE WAS RELIEVED FROM DUTY IN THE PHILIPPINE DEPARTMENT. HER RESIGNATION FROM THE ARMY NURSE CORPS WAS ACCEPTED EFFECTIVE OCTOBER 18. NOTIFIED NURSE WOODMANSEE THAT HER ASSIGNMENT TO QUARTERS AT NURSES' QUARTERS IN SAID HOSPITAL WAS TERMINATED EFFECTIVE OCTOBER 18. MISS WOODMANSEE WAS MARRIED TO WILLIAM J.

A-62929, JULY 30, 1935, 15 COMP. GEN. 88

RENTAL ALLOWANCE - SUBSISTENCE ALLOWANCE - ARMY NURSE UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, RENTAL ALLOWANCE DOES NOT ACCRUE DURING THE PERIOD WHILE ON LEAVE OF ABSENCE TO A MEMBER OF THE ARMY NURSE CORPS, ASSIGNMENT OF QUARTERS AT HER PERMANENT STATION NOT HAVING BEEN TERMINATED UNTIL THE TERMINATION OF HER LEAVE. A MEMBER OF THE ARMY NURSE CORPS IS NOT ENTITLED TO SUBSISTENCE ALLOWANCE UNDER SECTIONS 5 AND 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628 AND 631, DURING ANY PART OF THE PERIOD HER ARMY OFFICER HUSBAND HAS RECEIVED INCREASED SUBSISTENCE ALLOWANCE AS AN OFFICER WITH DEPENDENTS BECAUSE OF HIS MARRIAGE TO SAID NURSE.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 30, 1935:

THERE IS FOR CONSIDERATION THE CLAIM OF HELEN E. WOODMANSEE, FORMER SECOND LIEUTENANT, ARMY NURSE CORPS, FOR RENTAL AND SUBSISTENCE ALLOWANCES FOR THE PERIOD FROM JUNE 20 TO OCTOBER 18, 1934.

BY PARAGRAPH 3 OF RADIO ORDERS OF MAY 22, 1934, THE COMMANDING GENERAL, PHILIPPINE DEPARTMENT, WAS GRANTED AUTHORITY TO RELIEVE THIS NURSE FROM DUTY AT STERNBERG GENERAL HOSPITAL ON OR ABOUT JUNE 20, 1934, AND ACCEPT HER RESIGNATION FROM THE ARMY NURSE CORPS AT THE EXPIRATION OF APPROXIMATELY 120 DAYS' ACCRUED LEAVE OF ABSENCE DUE HER.

BY PARAGRAPH 13, SPECIAL ORDERS NO. 124, HEADQUARTERS PHILIPPINE DEPARTMENT, JUNE 5, 1934, PURSUANT TO THE RADIOGRAM ABOVE REFERRED TO, NURSE WOODMANSEE WAS GRANTED 120 DAYS' LEAVE OF ABSENCE WITH PERMISSION TO TRAVEL IN CHINA AND JAPAN, EFFECTIVE ON OR ABOUT JUNE 20, 1934.

BY PARAGRAPH 2, SPECIAL ORDERS NO. 159, HEADQUARTERS PHILIPPINE DEPARTMENT, JULY 19, 1934, IN FURTHER COMPLIANCE WITH RADIO ORDERS OF MAY 22, 1934, NURSE WOODMANSEE WAS RELIEVED FROM DUTY IN THE PHILIPPINE DEPARTMENT, EFFECTIVE OCTOBER 18, 1934, AND HER RESIGNATION FROM THE ARMY NURSE CORPS WAS ACCEPTED EFFECTIVE OCTOBER 18, 1934.

ON OCTOBER 17, 1934, THE COMMANDING OFFICER, STERNBERG GENERAL HOSPITAL, MANILA, P.I., NOTIFIED NURSE WOODMANSEE THAT HER ASSIGNMENT TO QUARTERS AT NURSES' QUARTERS IN SAID HOSPITAL WAS TERMINATED EFFECTIVE OCTOBER 18, 1934.

IT APPEARS THAT ON JUNE 20, 1934, THE DATE SHE ENTERED UPON LEAVE, MISS WOODMANSEE WAS MARRIED TO WILLIAM J. JACKSON (THEN CAPTAIN, NOW MAJOR, QUARTERMASTER CORPS, UNITED STATES ARMY); THAT HER HUSBAND HAS RECEIVED INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS (WIFE) FROM DATE OF MARRIAGE, JUNE 20, 1934, TO AUGUST 14, 1934; AND THAT THEREAFTER TO OCTOBER 18, 1934, HE WAS IN RECEIPT OF INCREASED SUBSISTENCE ALLOWANCE BECAUSE OF SAID DEPENDENT (WIFE).

SECTION 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES IN PART:

* * * NURSES SHALL BE ENTITLED TO THE SAME ALLOWANCE FOR SUBSISTENCE AS IS AUTHORIZED IN SECTION 5 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD, AND TO THE SAME ALLOWANCE FOR RENTAL OF QUARTERS AS IS AUTHORIZED IN SECTION 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

SECTION 5 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, PROVIDES, AS FAR AS HERE MATERIAL:

THAT EACH COMMISSIONED OFFICER ON THE ACTIVE LIST, OR ON ACTIVE DUTY BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT * * * SHALL BE ENTITLED AT ALL TIMES, IN ADDITION TO HIS PAY, TO A MONEY ALLOWANCE FOR SUBSISTENCE * * *. TO EACH OFFICER * * * RECEIVING THE BASE PAY OF THE FIRST PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO ONE SUBSISTENCE ALLOWANCE * * *.

SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES, IN PART:

EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF THIS SECTION EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, * * * WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS. * * *

AN OFFICER HAVING NO DEPENDENT, RECEIVING THE BASE PAY OF THE FIRST OR SECOND PERIOD SHALL RECEIVE THE ALLOWANCE FOR TWO ROOMS, * * *.

NO RENTAL ALLOWANCE SHALL ACCRUE * * * WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK * * *.

INASMUCH AS CLAIMANT'S ASSIGNMENT OF QUARTERS WAS NOT TERMINATED UNTIL OCTOBER 18, 1934, DATE OF ACCEPTANCE OF HER RESIGNATION AND DATE OF TERMINATION OF HER LEAVE, SHE WAS "ASSIGNED AS QUARTERS AT HER PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER" OF HER RANK AND THE ACT PROVIDES THAT "NO RENTAL ALLOWANCE SHALL ACCRUE" IN SUCH CIRCUMSTANCES. THE CLAIM FOR RENTAL ALLOWANCE, ACCORDINGLY, MUST BE, AND IS, DISALLOWED.

THE BASIS OF CLAIMANT'S INSISTENCE UPON PAYMENT OF HER CLAIM FOR SUBSISTENCE ALLOWANCE APPEARS TO BE THAT THE PLAIN TERMS OF THE STATUTE GRANT IT. IN VIEW OF THE FACT, HOWEVER, THAT THE CLAIMANT'S HUSBAND, AS AN OFFICER IN THE ARMY, WAS PAID INCREASED ALLOWANCES, INCLUDING INCREASED SUBSISTENCE ALLOWANCE AS AN OFFICER WITH THIS CLAIMANT AS A DEPENDENT (WIFE) SO THAT THE PAYMENT TO CLAIMANT OF SUBSISTENCE ALLOWANCE WOULD BE, IN THIS CASE, DUPLICATED FOR THE PERIOD JUNE 20, 1934, TO OCTOBER 18, 1934, THERE IS DOUBT AS TO WHETHER GIVING EFFECT TO THE EXACT LANGUAGE OF THE STATUTE WOULD BE, IN FACT, CONTRARY TO THE TRUE PURPOSE OF THE ACT WITHIN THE INTENT OF THE CONGRESS.

THE PRIMARY AND GENERAL RULE OF STATUTORY CONSTRUCTION IS THAT THE INTENT OF THE LAWMAKER IS TO BE FOUND IN THE LANGUAGE USED. UNITED STATES V. GOLDENBERG, 168 U.S. 95, 102. THE RULE IS ALSO WELL ESTABLISHED THAT "A COURT IS NOT ALWAYS CONFINED TO THE WRITTEN WORD.' UNITED STATES V. FARENHOLT, 206 U.S. 226, 229. A STATUTE IS TO BE INTERPRETED NOT ONLY BY ITS EXACT WORDS, BUT ALSO BY ITS APPARENT GENERAL PURPOSES. UNITED STATES V. SAUNDERS, 22 WALL. 492. A "CASE MAY BE WITHIN THE MEANING OFA STATUTE AND NOT WITHIN ITS LETTER, AND WITHIN ITS LETTER AND NOT WITHIN ITS MEANING.' STEWART V. KAHN, 11 WALL. 493, 504. COURTS WILL LOOK INTO THE OCCASION FOR THE PASSAGE OF AN ACT, AND CONSIDER THE WRONGS WHICH IT SEEKS TO REMEDY, IN ORDER TO ASCERTAIN HOW FAR CONGRESS INTENDED TO AFFORD RELIEF. JOHNSTON V. UNITED STATES, 17 CT. CLS. 157.

IN BREWER V. BLOUGHER, 14 PET. 178, AT 198, CHIEF JUSTICE TANEY SAID:

IT IS UNDOUBTEDLY THE DUTY OF THE COURT TO ASCERTAIN THE MEANING OF THE LEGISLATURE, FROM THE WORDS USED IN THE STATUTE, AND THE SUBJECT MATTER TO WHICH IT RELATES; AND TO RESTRAIN ITS OPERATION WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT, IF THE COURT ARE SATISFIED THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT.

THE UNITED STATES SUPREME COURT IN CROOKS V. HARRELSON, 282 U.S. 55, SAID:

* * * THE PRINCIPLE SOUGHT TO BE APPLIED IS THAT FOLLOWED BY THIS COURT IN HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457; BUT A CONSIDERATION OF WHAT IS THERE SAID WILL DISCLOSE THAT THE PRINCIPLE IS TO BE APPLIED TO OVERRIDE THE LITERAL TERMS OF A STATUTE ONLY UNDER RARE AND EXCEPTIONAL CIRCUMSTANCES. THE ILLUSTRATIVE CASES CITED IN THE OPINION DEMONSTRATE THAT, TO JUSTIFY A DEPARTURE FROM THE LETTER OF THE LAW UPON THAT GROUND, THE ABSURDITY MUST BE SO GROSS AS TO SHOCK THE GENERAL MORAL OR COMMON SENSE. * * *

THE CLAIMANT IN THIS CASE RECEIVED HER SUBSISTENCE FROM THE UNITED STATES THROUGH THE INCREASED SUBSISTENCE ALLOWANCE PAID TO HER ARMY OFFICER HUSBAND AS AN OFFICER WITH DEPENDENTS BECAUSE HE HAD MARRIED HER. THE PAYMENT TO HER OF SUBSISTENCE ALLOWANCE, UNDER SUCH CIRCUMSTANCES, WOULD NOT BE NECESSARY TO INSURE THAT SHE BE SUBSISTED, BUT WOULD BE A GRATUITY, OR A DUPLICATION OF THE SUBSISTENCE SHE HAS ALREADY RECEIVED. OBVIOUSLY, THE CLAIM OF THE FORMER NURSE FOR SUBSISTENCE ALLOWANCE DOES NOT COME WITHIN THE SPIRIT OF THE STATUTE NOR WITHIN THE OBVIOUS INTENTIONS OF ITS MAKERS. THE CLAIMANT IS NOT ENTITLED TO THE BENEFITS OF THE STATUTE AND HER CLAIM FOR SUBSISTENCE ALLOWANCE MUST BE, AND IS, DISALLOWED. SEE ROBEY V. UNITED STATES, 71 CT. CLS. 561. SEE, ALSO, 6 COMP. GEN. 288.