A-63184, AUGUST 14, 1935, 15 COMP. GEN. 136

A-63184: Aug 14, 1935

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WHO ARE PERMITTED TO OCCUPY PANAMA CANAL QUARTERS. ARE NOT ENTITLED TO SUCH QUARTERS FREE OF CHARGE UNDER THE PROVISIONS OF THE ACT OF JULY 9. ARE REQUIRED TO PAY RENTAL UNDER THE EXECUTIVE ORDER OF DECEMBER 3. THE QUESTION OF LIVING QUARTERS FOR THESE ARMY OFFICERS WAS ALSO DISCUSSED. "IT IS POSSIBLE FOR YOU AS COMMANDING GENERAL TO GRANT MEMBERS OF THE BOARD COMMUTATION OF QUARTERS. * * * IF THE BOARD CAN BE ASSIGNED TO DUTY UNDER THE DEPARTMENT COMMANDER. THAT WAS WITH THE UNDERSTANDING. SO FAR AS THE PANAMA CANAL WAS CONCERNED. THEY WERE GIVEN SPECIAL. IN DUE COURSE BILLS WERE RENDERED AGAINST THE MEMBERS OF THE BOARD FOR RENT AND ALLIED CHARGES IN THE SAME MANNER AS SUCH BILLS ARE RENDERED AGAINST OTHER ARMY OFFICERS OCCUPYING PANAMA CANAL QUARTERS.

A-63184, AUGUST 14, 1935, 15 COMP. GEN. 136

QUARTERS - PANAMA CANAL - OFFICERS OF ARMY ON DUTY PERTAINING TO TROOPS ARMY OFFICERS ON DUTY IN THE PANAMA CANAL DEPARTMENT AND DETAILED AS MEMBERS OF THE ARMY MEDICAL RESEARCH BOARD, WHO ARE PERMITTED TO OCCUPY PANAMA CANAL QUARTERS, ARE NOT ENTITLED TO SUCH QUARTERS FREE OF CHARGE UNDER THE PROVISIONS OF THE ACT OF JULY 9, 1918, 40 STAT. 855, BUT ARE REQUIRED TO PAY RENTAL UNDER THE EXECUTIVE ORDER OF DECEMBER 3, 1921.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, THE PANAMA CANAL, AUGUST 14, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 8, 1935, REQUESTING DECISION AS FOLLOWS:

ABOUT A YEAR AGO THE WAR DEPARTMENT MADE ARRANGEMENTS WITH THE PANAMA CANAL TO TRANSFER THE TROPICAL RESEARCH BOARD FROM THE PHILIPPINE ISLANDS TO THE PANAMA CANAL ZONE.

DURING THE NEGOTIATIONS WITH THE PANAMA CANAL FOR THE NECESSARY LABORATORY AND OTHER SPACE AND FACILITIES, THE QUESTION OF LIVING QUARTERS FOR THESE ARMY OFFICERS WAS ALSO DISCUSSED. IN A LETTER TO THE COMMANDING GENERAL OF THE PANAMA CANAL DEPARTMENT, DATED FEBRUARY 8, 1934, THE SURGEON GENERAL STATED,"IT IS POSSIBLE FOR YOU AS COMMANDING GENERAL TO GRANT MEMBERS OF THE BOARD COMMUTATION OF QUARTERS. * * * IF THE BOARD CAN BE ASSIGNED TO DUTY UNDER THE DEPARTMENT COMMANDER, WITH ADDITIONAL DUTY WITH THE CANAL ZONE, I BELIEVE THE GOVERNOR COULD THEN ASSIGN THEM QUARTERS.'

UNDER DATE OF MARCH 10, 1934, I INFORMED THE COMMANDING GENERAL THAT PANAMA CANAL QUARTERS COULD BE MADE AVAILABLE. THAT WAS WITH THE UNDERSTANDING, HOWEVER, SO FAR AS THE PANAMA CANAL WAS CONCERNED, THAT THESE OFFICERS WOULD PAY THE USUAL RENT AND ALLIED CHARGES, SUCH AS FUEL, LIGHT, WATER, CARE OF GROUNDS, ETC.

RADIOGRAM DATED APRIL 19, 1934, TO THE PANAMA CANAL DEPARTMENT, COVERED THE TRANSFER OF THIS BOARD FROM THE PHILIPPINE ISLANDS TO THE CANAL ZONE UNDER THE IMMEDIATE JURISDICTION OF THE COMMANDING GENERAL,"WITH SOME ADDITIONAL DUTY UNDER THE GOVERNOR, CANAL ZONE.' UPON THEIR ARRIVAL IN THE CANAL ZONE, THEY WERE GIVEN SPECIAL, ARBITRARY ASSIGNMENTS TO QUARTERS UNDER RULES AND REGULATIONS GOVERNING THE OCCUPANCY OF PANAMA CANAL QUARTERS.

IN DUE COURSE BILLS WERE RENDERED AGAINST THE MEMBERS OF THE BOARD FOR RENT AND ALLIED CHARGES IN THE SAME MANNER AS SUCH BILLS ARE RENDERED AGAINST OTHER ARMY OFFICERS OCCUPYING PANAMA CANAL QUARTERS, BUT THE MEMBERS OF THIS BOARD DECLINED TO PAY THE CHARGES ON THE STRENGTH OF A PROVISION APPEARING IN THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1919 (40 STAT. 855) READING AS FOLLOWS:

"OFFICERS OF THE ARMY PERTAINING TO THE UNITED STATES TROOPS SERVING IN THE CANAL ZONE SHALL NOT BE REQUIRED TO PAY RENT FOR THE OCCUPANCY OF HOUSES OF THE PANAMA CANAL TO WHICH THEY MAY BE ASSIGNED.'

THE PANAMA CANAL MAINTAINS THAT THIS PROVISION IS NO LONGER IN EFFECT, THAT IT WAS NOT GENERAL LEGISLATION BUT APPLIED SPECIFICALLY TO CONDITIONS IN THE CANAL ZONE, AND THAT WHEN THE CANAL ZONE CODE WAS ENACTED INTO LAW ON JUNE 19, 1934, THIS PROVISION WAS NOT INCLUDED AND THEREFORE CEASED TO BE LAW.

WHEN THE PROVISION IN QUESTION WAS INCLUDED IN AN ANNUAL APPROPRIATION ACT, NO RENT WAS COLLECTED FROM OCCUPANTS OF PANAMA CANAL HOUSES, THE COST OF OPERATING AND MAINTAINING THE HOUSES BEING PAID FROM APPROPRIATIONS MADE BY CONGRESS. ON DECEMBER 3, 1921, THE PRESIDENT ISSUED AN EXECUTIVE ORDER REQUIRING THE OCCUPANTS OF PANAMA CANAL HOUSES TO PAY RENT AND ALLIED CHARGES, AND SINCE THEN THE HOUSES HAVE BEEN OPERATED WITH MONEY COLLECTED FROM THE OCCUPANTS AND NO APPROPRIATION HAS BEEN MADE FOR COST OF OPERATING QUARTERS. ALSO, IN 1921, BY DIRECTION OF THE SECRETARY OF WAR, BASED ON RECOMMENDATIONS MADE BY THE SPECIAL PANAMA CANAL COMMISSION, PANAMA CANAL QUARTERS WERE SET UP IN THE ACCOUNTS AS A BUSINESS ACTIVITY OF THE PANAMA CANAL, FOR WHICH NO APPROPRIATION IS MADE BY CONGRESS AND THE OPERATING COSTS MUST BE PAID FROM REVENUES.

OTHER OFFICERS OF THE ARMY ASSIGNED TO DUTY WITH THE PANAMA CANAL PAY THEIR RENT AND OTHER CHARGES, AND RECOVER THE AMOUNTS THROUGH THE ALLOWANCE FOR COMMUTATION OF QUARTERS UNDER THE ACT OF JUNE 15, 1922, AS AMENDED, AND UNDER DECISION OF THE COMPTROLLER GENERAL OF JUNE 27, 1925 (A -8139).

SINCE THE RENDERING OF THE FOREGOING DECISION, THE GOVERNORS OF THE PANAMA CANAL HAVE BEEN CERTIFYING THAT THERE ARE NO GOVERNMENT QUARTERS AVAILABLE IN THE CANAL ZONE UNDER THE JURISDICTION OF THE PANAMA CANAL FREE OF RENTAL CHARGES, WHICH HAS MADE IT POSSIBLE FOR THE ARMY OFFICERS TO DRAW THEIR COMMUTATION OF QUARTERS WHEN OCCUPYING PANAMA CANAL QUARTERS AND PAYING RENT.

THE DEPARTMENT JUDGE ADVOCATE HOLDS, AND THE COMMANDING GENERAL CONCURS IN HIS OPINION, THAT THE PROVISION REFERRED TO IN THE ACT OF JULY 9, 1918, IS STILL IN EFFECT EVEN THOUGH IT WAS NOT INCLUDED IN THE NEW CANAL ZONE CODE; THAT IT IS A GENERAL LAW AND WAS NOT REPEALED BY THE SIMPLE PROCESS OF OMITTING IT FROM THE NEW CODE OF LAWS FOR THE CANAL ZONE.

THE PANAMA CANAL CONTENDS THAT THE ONLY BASIS FOR ASSIGNING PANAMA CANAL QUARTERS TO THE MEMBERS OF THIS BOARD WAS THEIR PARTIAL DETAIL TO THE GOVERNOR OF THE PANAMA CANAL. OTHERWISE THE QUARTERS WOULD HAVE BEEN ASSIGNED TO REGULAR PANAMA CANAL CIVILIAN PERSONNEL. THE ASSIGNMENT OF QUARTERS ON THIS BASIS PLACED THESE OFFICERS IN THE SAME STATUS AS OTHER OFFICERS OF THE ARMY DETAILED TO THE PANAMA CANAL FOR DUTY. THE PANAMA CANAL HAS NO FUNDS WITH WHICH TO OPERATE AND MAINTAIN THE HOUSES OCCUPIED BY THE MEMBERS OF THIS BOARD, WHEREAS THE ARMY UNDOUBTEDLY HAS FUNDS TO PAY THEM COMMUTATION OF QUARTERS AS STATED BY THE SURGEON GENERAL IN HIS LETTER OF FEBRUARY 8, 1934.

THE MATTER IS REFERRED TO YOU FOR DECISION NOT ONLY AS TO WHETHER THE PROVISION IN THE ACT OF JULY 9, 1918, IS STILL IN EFFECT, BUT ALSO WHETHER UNDER THE CIRCUMSTANCES THESE OFFICERS SHOULD BE REQUIRED TO PAY RENT AND OTHER CHARGES TO THE PANAMA CANAL. IF NEITHER THE OFFICERS NOR THE ARMY PAYS THE RENT, IT WILL APPARENTLY BE NECESSARY FOR THE PANAMA CANAL TO REQUEST THE OFFICERS TO VACATE THE QUARTERS.

IT APPEARS THAT MAJOR SEYMOUR C. SWARTZ, M.C., UNITED STATES ARMY, MAJOR RAYMOND RANDALL, V.C., UNITED STATES ARMY, AND 5 ENLISTED MEN, ON DUTY WITH THE MEDICAL DEPARTMENT RESEARCH BOARD IN THE PHILIPPINE DEPARTMENT, WERE TRANSFERRED TO BALBOA, CANAL ZONE, AND DIRECTED TO REPORT TO THE COMMANDING GENERAL FOR DUTY, WITH A VIEW OF ORGANIZING THE BOARD AT GORGAS HOSPITAL. MAJOR JAMES S. SIMMONS, M.C., UNITED STATES ARMY, WAS ASSIGNED FOR DUTY WITH THE BOARD BY SPECIAL ORDERS NO. 109, WAR DEPARTMENT, DATED MAY 8, 1934. PARAGRAPHS 21 AND 22 ARE AS FOLLOWS:

21. MAJOR JAMES S. SIMMONS, MEDICAL CORPS, IS RELIEVED FROM HIS PRESENT ASSIGNMENT AND DUTY AT THE ARMY MEDICAL SCHOOL, ARMY MEDICAL CENTER, WASHINGTON, D.C., EFFECTIVE AT SUCH TIME AS WILL ENABLE HIM TO COMPLY WITH THIS ORDER, WILL PROCEED TO NEW YORK, NEW YORK, AND SAIL ON THE TRANSPORT SCHEDULED TO LEAVE THAT PORT ON OR ABOUT JULY 17, 1934, FOR THE PANAMA CANAL DEPARTMENT. UPON ARRIVAL AT PANAMA, MAJOR SIMMONS WILL REPORT TO THE COMMANDING GENERAL FOR ASSIGNMENT TO DUTY WITH THE MEDICAL RESEARCH BOARD AND TO THE GOVERNOR OF THE PANAMA CANAL FOR ADDITIONAL DUTY IN CONNECTION WITH THE RESEARCH BOARD. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. FD 31 P1-0620 A 153-5.

22. BY DIRECTION OF THE PRESIDENT, UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF CONGRESS APPROVED JUNE 6, 1924 (SEC. XII, BUL. NO. 13, W.D., 1924), MAJOR JAMES S. SIMMONS, MEDICAL CORPS, IS EXCEPTED FROM THE PROVISIONS OF SECTION 4C, NATIONAL DEFENSE ACT OF JUNE 3, 1916, REQUIRING DUTY WITH TROOPS OF ONE OR MORE OF THE COMBATANT ARMS OF THE ARMY, EFFECTIVE AUGUST 16, 1934, AND WHILE ASSIGNED TO DUTY WITH THE MEDICAL DEPARTMENT RESEARCH BOARD AND THE GOVERNOR OF THE PANAMA CANAL.

IT IS STATED THAT THE THREE OFFICERS COMPOSING THE ARMY MEDICAL RESEARCH BOARD, UPON REPORTING TO THE GOVERNOR, WERE ASSIGNED QUARTERS WITHIN THE GORGAS HOSPITAL GROUNDS, AND THAT NONE OF SUCH OFFICERS HAS BEEN PAID ANY RENTAL ALLOWANCES SINCE OCCUPYING THE QUARTERS IN QUESTION.

THE ACT OF JULY 9, 1918, 40 STAT. 855, PROVIDES:

HEREAFTER OFFICERS OF THE ARMY PERTAINING TO THE UNITED STATES TROOPS SERVING IN THE CANAL ZONE SHALL NOT BE REQUIRED TO PAY RENT FOR THE OCCUPANCY OF HOUSES OF THE PANAMA CANAL TO WHICH THEY MAY BE ASSIGNED.

AT THE TIME OF THE ENACTMENT OF THE STATUTE EXCLUSIVE AUTHORITY AND JURISDICTION OVER THE OPERATION OF THE PANAMA CANAL, INCLUDING THE ENTIRE CONTROL AND GOVERNMENT OF THE CANAL ZONE WAS VESTED IN THE OFFICER OF THE ARMY COMMANDING UNITED STATES TROOPS STATIONED IN THE CANAL ZONE, UNDER THE ORDER OF THE PRESIDENT MADE APRIL 9, 1917, ISSUED PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 569, AND PUBLISHED IN GENERAL ORDERS NO. 44, WAR DEPARTMENT, DATED APRIL 21, 1917. REGULATIONS PROMULGATED UNDER THE 1918 STATUTE DIRECTED THAT INDIVIDUAL ARMY OFFICERS "SERVING WITH UNITED STATES TROOPS IN THE CANAL ZONE," WOULD NOT BE CHARGED RENT FOR OCCUPANCY OF CANAL QUARTERS TO WHICH ASSIGNED. THESE QUARTERS WERE THEN UNDER THE CONTROL OF THE ARMY OFFICER IN COMMAND AND HE COULD "ASSIGN" THEM TO ARMY OFFICERS ON DUTY PERTAINING TO TROOPS. THIS JURISDICTION AND AUTHORITY WAS, HOWEVER, TERMINATED BY THE EXECUTIVE ORDER OF JANUARY 25, 1919, PUBLISHED INGENERAL ORDERS NO. 36, WAR DEPARTMENT, DATED MARCH 10, 1919, AND THEREAFTER THE QUARTERS OF THE PANAMA CANAL WERE UNDER THE JURISDICTION OF THE GOVERNOR OF THE PANAMA CANAL, AND PERMISSION FROM HIM FOR ARMY OFFICERS TO OCCUPY SUCH QUARTERS, WAS NOT AN "ASSIGNMENT" AS CONTEMPLATED BY THE 1918 STATUTE.

THE EVIDENCE SHOWS THAT THESE OFFICERS WERE NOT "ASSIGNED" HOUSES FOR OCCUPANCY AS OFFICERS OF THE ARMY "PERTAINING TO THE UNITED STATES TROOPS SERVING IN THE CANAL ZONE" WITHIN THE PURVIEW OF THE PROVISION IN THE ACT OF 1918, SUPRA, BUT WERE PERMITTED UNDER THE EXECUTIVE ORDER OF DECEMBER 3, 1921, TO OCCUPY THE QUARTERS SUBJECT TO THE PAYMENT OF RENTAL; AND THE COLLECTION OF THE RENTAL IS REQUIRED. IN OTHER WORDS, EACH OF THESE OFFICERS IS "OCCUPYING QUARTERS AT HIS PERMANENT STATION NOT UNDER THE JURISDICTION OF THE SERVICE IN WHICH SERVING, BUT WHICH BELONG TO THE GOVERNMENT OF THE UNITED STATES" WITHIN THE PURVIEW OF THE PROVISION IN THE APPROPRIATION "PAY, AND SO FORTH, OF THE ARMY," ACT OF APRIL 26, 1934, 48 STAT. 618. YOU ARE ADVISED ACCORDINGLY.