A-6660, MAY 1, 1925, 4 COMP. GEN. 905

A-6660: May 1, 1925

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COMMUTATION OF QUARTERS AND RENTAL ALLOWANCE - DEPENDENT MOTHER WHERE THE MOTHER OF A NAVAL OFFICER IS LIVING WITH HER HUSBAND AND TWO MINOR CHILDREN. WHO IS AND HAS BEEN ENGAGED IN THE HOTEL BUSINESS. HAS AN INCOME THEREFROM UPON WHICH HE WAS REQUIRED TO EXECUTE AN INCOME-TAX RETURN. THE DOMESTIC ARRANGEMENTS OF THE MOTHER HAVE NOT CHANGED SINCE THE OFFICER SON WAS APPOINTED IN THE NAVY. SHE IS NOT DEPENDENT UPON HIM WITHIN THE MEANING OF THE LAWS AUTHORIZING PAYMENT OF RENTAL ALLOWANCE OR COMMUTATION OF QUARTERS. WHEREIN SUCH AMOUNT WAS SET OFF AGAINST AN INDEBTEDNESS DUE FROM HIM TO THE UNITED STATES OF $1. AS A RESULT OF CERTIFICATES MADE BY HIM THAT HIS MOTHER WAS ACTUALLY AND NECESSARILY DEPENDENT UPON HIM FOR MORE THAN ONE-HALF OF A REASONABLE LIVING AND FOR HER CHIEF SUPPORT.

A-6660, MAY 1, 1925, 4 COMP. GEN. 905

COMMUTATION OF QUARTERS AND RENTAL ALLOWANCE - DEPENDENT MOTHER WHERE THE MOTHER OF A NAVAL OFFICER IS LIVING WITH HER HUSBAND AND TWO MINOR CHILDREN, AND SUCH HUSBAND, WHO IS AND HAS BEEN ENGAGED IN THE HOTEL BUSINESS, HAS AN INCOME THEREFROM UPON WHICH HE WAS REQUIRED TO EXECUTE AN INCOME-TAX RETURN, AND THE DOMESTIC ARRANGEMENTS OF THE MOTHER HAVE NOT CHANGED SINCE THE OFFICER SON WAS APPOINTED IN THE NAVY, SHE IS NOT DEPENDENT UPON HIM WITHIN THE MEANING OF THE LAWS AUTHORIZING PAYMENT OF RENTAL ALLOWANCE OR COMMUTATION OF QUARTERS.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 1, 1925:

LIEUT. HARRY L. DODSON, UNITED STATES NAVY, HAS REQUESTED REVIEW OF SETTLEMENT NO. 01615, DATED AUGUST 12, 1924, ALLOWING HIS CLAIM IN THE AMOUNT OF $51.34 FOR DIFFERENCE BETWEEN PAY AS LIEUTENANT (JUNIOR GRADE) AND LIEUTENANT DURING THE PERIOD FROM MARCH 23 TO APRIL 25, 1922, BUT WHEREIN SUCH AMOUNT WAS SET OFF AGAINST AN INDEBTEDNESS DUE FROM HIM TO THE UNITED STATES OF $1,511.30 BY REASON OF PAYMENTS MADE TO HIM FOR COMMUTATION OF QUARTERS, HEAT, AND LIGHT, AND RENTAL AND INCREASED SUBSISTENCE ALLOWANCES DURING THE PERIOD FROM MARCH 1, 1919, TO JUNE 20, 1923, TOTALING $2,231.97, LESS $720.67 CHECKED AGAINST HIS PAY FROM JULY 1, 1923, TO DECEMBER 28, 1923, AS A RESULT OF CERTIFICATES MADE BY HIM THAT HIS MOTHER WAS ACTUALLY AND NECESSARILY DEPENDENT UPON HIM FOR MORE THAN ONE-HALF OF A REASONABLE LIVING AND FOR HER CHIEF SUPPORT.

THE ACT OF APRIL 16, 1918, 40 STAT. 530, AUTHORIZED THE FURNISHING OF PUBLIC QUARTERS TO AN OFFICER OF THE ARMY IN THE FIELD OR AN ACTIVE DUTY WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES WHO MAINTAINED A PLACE OF ABODE FOR A WIFE, CHILD, OR DEPENDENT PARENT, AND IF NO PUBLIC QUARTERS WERE AVAILABLE FOR SUCH DEPENDENTS AT THE PLACE AT WHICH THEY WERE MAINTAINED, THE STATUTE AUTHORIZED THE PAYMENT OF COMMUTATION OF QUARTERS, HEAT, AND LIGHT FOR SUCH DEPENDENTS. UNDER ASSIMILATING STATUTES AND DECISIONS OF THE COMPTROLLER OF THE TREASURY THIS ACT WAS APPLICABLE TO OFFICERS OF THE NAVY ON SEA DUTY. 24 COMP. DEC. 610, AND CITATIONS THEREIN. THE COMPTROLLER OF THE TREASURY, IN CONSTRUING THE STATUTE, HELD 24 COMP. DEC. 686, THAT THE TERM ,DEPENDENT PARENT" INCLUDED AMOUNT OTHERS, THE OFFICER'S FATHER AND MOTHER AND THAT THE QUALIFYING WORD "DEPENDENT" IS CONSTRUED TO MEAN THAT THE OFFICER HAS CONTRIBUTED, BEFORE APRIL 16, 1918, OR MAY THEREAFTER ACTUALLY AND NECESSARILY CONTRIBUTE REGULARLY MORE THAN ONE-HALF OF THE COST OF A REASONABLE LIVING FOR THE PARENT.

IN VIEW OF THE CONDITIONS THEN EXISTING OF ACTUAL WAR OFFICERS WERE PERMITTED TO OBTAIN PAYMENT OF SUCH ALLOWANCES UNDER THE SYSTEM OF PAYING SALARIES AND ALLOWANCES GENERALLY ON THE FAITH AND CREDIT OF THEIR CERTIFICATES ATTACHED TO THE PAY ACCOUNT SHOWING THE FULL NAME AND POST OFFICE ADDRESS OF EACH PERSON FOR THE MAINTENANCE OF WHOM COMMUTATION WAS CLAIMED, THE EXACT DEGREE OF RELATIONSHIP OF SUCH PERSON TO THE OFFICER AND, IF A PARENT, THAT HE ACTUALLY AND NECESSARILY CONTRIBUTED REGULARLY MORE THAN ONE-HALF THE COST OF A REASONABLE LIVING.

THE OBTAINING OF FUNDS WAS THUS AUTHORIZED ON THE FAITH AND CREDIT OF THE OFFICER, BUT HIS RIGHTS UNDER THE LAW WERE IN NO WAY EXPANDED. NUMEROUS INSTANCES WHERE PAYMENTS WERE MADE ON SUCH CERTIFICATES, WHERE IN FACT THERE WAS NO DEPENDENCY, CAME TO THE ATTENTION OF THIS OFFICE AND BY ACTION OF APRIL 6, 1922, EVIDENCE OF DEPENDENCY WAS REQUIRED. SUCH EVIDENCE WAS ALSO REQUIRED AS TO THE PAYMENTS OF RENTAL AND INCREASED SUBSISTENCE ALLOWANCES UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, WHICH BY SECTIONS 5 AND 6 ESTABLISHED A SUBSISTENCE ALLOWANCE, FIXED BY THE PRESIDENT AT 60 CENTS PER DAY, AND A RENTAL ALLOWANCE, FIXED BY THE PRESIDENT AT $20 PER MONTH, PER ROOM, THE NUMBER OF SUBSISTENCE ALLOWANCES AND THE NUMBER OF ROOMS FOR RENTAL ALLOWANCE VARYING WITH THE RANK OR GRADE OF THE OFFICER AND HIS STATUS WITH RELATION TO DEPENDENTS. DEPENDENTS ARE DEFINED IN SECTION 4 OF THE ACT AS FOLLOWS:

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. IT SHALL ALSO INCLUDE THE MOTHER OF THE OFFICER, PROVIDED SHE IS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT.

CLAIMANT HAS SUBMITTED IN SUPPORT OF HIS CLAIM FOR THE ALLOWANCES INDICATED THE AFFIDAVIT OF HIS MOTHER, EXECUTED MARCH 27, 1923, FROM WHICH IT APPEARS THAT SHE IS 57 YEARS OF AGE, RESIDES AT INGLESIDE, NORFOLK, VA., WITH HER HUSBAND, WHO IS ENGAGED IN THE HOTEL BUSINESS IN NORFOLK, VA. BESIDES CLAIMANT SHE HAS TWO CHILDREN RESIDING AT HOME, ONE 20 AND THE OTHER 16 YEARS OF AGE, A MARRIED DAUGHTER, RESIDING AT CANON CITY, COLO., AND A SON, AN ELECTRICAL ENGINEER, AT RICHMOND, VA. THE VALUE OF PROPERTY OWNED BY THE HUSBAND IS NOT SHOWN, BUT IT IS STATED THAT HIS INCOME FROM HIS HOTEL BUSINESS IS $150 PER MONTH, AND THAT AN INCOME-TAX RETURN WAS FILED BY HIM WITH THE COLLECTOR OF INTERNAL REVENUE AT RICHMOND, VA.

THE RESIDENCE IN WHICH THE FATHER AND MOTHER RESIDE IS STATED TO BE OWNED BY THE MOTHER, AND IS VALUED BY HER AT $8,000, WITH AN INCUMBRANCE THEREON OF $5,500. BESIDES THE HOME, SHE OWNS OTHER TANGIBLE PERSONAL PROPERTY VALUED AT $400.

THE MOTHER'S LIVING EXPENSES ARE STATED TO BE $105 PER MONTH, AND SHE STATES THAT DURING THE YEAR ENDED MARCH 1, 1922, THERE WAS CONTRIBUTED FOR HER SUPPORT $1,500 BY HER OFFICER SON AND $500 BY HER HUSBAND, AND FOR THE YEAR ENDED MARCH 1, 1923, $1,500 BY HER OFFICER SON AND $360 BY HER HUSBAND, AND IN ADDITION IT IS STATED THE SON CONTRIBUTED CERTAIN PUBLICATIONS VALUED AT $14. FURTHER REFERENCE TO THE CONTRIBUTIONS MADE BY THE SON SHOWS THAT HE SENT HIS MOTHER $75 THE FIRST OF EACH MONTH. WHILE IT APPEARS THAT THE MOTHER RESIDES WITH HER HUSBAND AND TWO MINOR CHILDREN, IT IS NOT SHOWN HOW SHE ARRIVED AT THE AMOUNT OF HER INDIVIDUAL LIVING EXPENSES APART FROM THOSE OF THE OTHER MEMBERS OF THE SAME HOUSEHOLD. NOR HAS THERE BEEN EXPLAINED THE DISPOSITION OF THE FUNDS CONTRIBUTED IN EXCESS OF THE AMOUNT INDICATED AS HER EXPENSES. IT IS SHOWN BY THE ORIGINAL VOUCHERS ON FILE IN THIS OFFICE THAT THE MOTHER WAS AWAY FROM HER INGLESIDE, NORFOLK, VA., RESIDENCE FROM OCTOBER 1, 1919, TO MAY 15, 1920, AND THAT THE OFFICER CLAIMED TO HAVE MAINTAINED AN ABODE CONSISTING OF ONE ROOM FOR HER DURING SUCH PERIOD TO MARCH 31, 1920, AND THREE ROOMS DURING THE REMAINDER OF SUCH PERIOD. HER ADDRESS WAS GIVEN AT 523 NORTH FOURTH STREET, CANON CITY, COLO., APPARENTLY THE RESIDENCE OF HER DAUGHTER.

IT WILL BE OBSERVED THAT THE LAW DOES NOT CONTEMPLATE DEPENDENCY ARISING FROM THE VOLUNTARY ACTION OF THE PARTIES. THE CLAIMANT DID NOT ENTER THE NAVY UNTIL MAY 31, 1918, AND THE MOTHER'S LIVING ARRANGEMENTS WERE PRIOR THERETO ADJUSTED ON THE BASIS OF INDEPENDENCE OF HER SON. THERE APPEARS NO CHANGE IN HER DOMESTIC RELATIONS REQUIRING THE REARRANGEMENT OF HER MODE OF LIVING BASED UPON NECESSARY CONTRIBUTIONS FROM HER SON FOR MORE THAN ONE-HALF OF THE COST OF A REASONABLE LIVING OR HER CHIEF SUPPORT WITHIN THE MEANING OF THE LAWS. IT IS APPARENT THAT THE FATHER HAS RAISED A FAMILY OF FIVE CHILDREN. HE IS NOW ONLY 57 YEARS OF AGE, AND DOES NOT APPEAR TO BE IN ANY WAY PHYSICALLY OR MENTALLY INCAPACITATED FROM EARNING A LIVELIHOOD FOR HIMSELF AND FAMILY, AND, IN FACT, IT IS SHOWN THAT HE IS AND HAS BEEN DURING THE ENTIRE PERIOD HERE IN QUESTION, ENGAGED IN THE SAME HOTEL BUSINESS WHICH HE HAS BEEN CONDUCTING CONTINUOUSLY DURING THE PAST NUMBER OF YEARS, AND FROM WHICH HE DERIVES A SUBSTANTIAL AND GAINFUL INCOME AND THAT HE IS ACTUALLY MAINTAINING HIS WIFE, CLAIMANT'S MOTHER. IN THESE CIRCUMSTANCES AND ON THE EVIDENCE FURNISHED, THE AMOUNTS OBTAINED BY LIEUTENANT DODSON WERE IMPROPER, HIS MOTHER NOT BEING ACTUALLY AND NECESSARILY DEPENDENT UPON HIM FOR MORE THAN ONE-HALF THE COST OF A REASONABLE LIVING OR HER CHIEF SUPPORT WITHIN THE MEANING OF THE LAW. THE AMOUNTS THUS PAID ACCORDINGLY CONSTITUTE AN INDEBTEDNESS DUE THE UNITED STATES FROM SUCH OFFICER FOR WHICH THE CHARGE RAISED BY THE SETTLEMENT WAS PROPERLY MADE. GRATIOT V. UNITED STATES, 15 PETERS, 336; MCKNIGHT V. UNITED STATES, 98 U.S. 179; UNITED STATES V. BURCHARD, 125 U.S. 176; BARRY V. UNITED STATES, 229 U.S. 47; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 201.