A-76027, JULY 15, 1936, 16 COMP. GEN. 29

A-76027: Jul 15, 1936

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EXCEPT THOSE INMATES ON WHOSE BEHALF NO FEDERAL AID IS GIVEN. REGARDLESS OF WHETHER VETERANS' WIVES OR WIDOWS ARE ADMITTED AND MAINTAINED IN SAID HOMES. NO DEDUCTION IS REQUIRED IN THE CASE OF HOMES ADMITTING AND MAINTAINING VETERANS' WIVES AND WIDOWS BECAUSE OF MONEYS COLLECTED FROM INMATES FOR THE SUPPORT OF THE HOMES. HAVE POWER TO HAVE THE SAID STATE OR TERRITORIAL HOMES INSPECTED AT SUCH TIMES AS IT MAY CONSIDER NECESSARY. THAT NO MONEY SHALL BE APPORTIONED TO ANY STATE OR TERRITORIAL HOME THAT MAINTAINS A BAR OR CANTEEN WHERE INTOXICATING LIQUORS ARE SOLD: PROVIDED FURTHER. THIS PROVISO SHALL NOT APPLY TO ANY STATE OR TERRITORIAL HOME INTO WHICH THE WIVES OR WIDOWS OF SOLDIERS ARE ADMITTED AND MAINTAINED.'.

A-76027, JULY 15, 1936, 16 COMP. GEN. 29

VETERANS' ADMINISTRATION - FEDERAL AID TO STATES - HOMES FOR DISABLED SOLDIERS AND SAILORS THE ACT OF JANUARY 27, 1920, 41 STAT. 399, REQUIRES DEDUCTION FROM FEDERAL-AID PAYMENTS TO STATE OR TERRITORIAL HOMES FOR DISABLED SOLDIERS AND SAILORS OF ONE-HALF OF ANY SUM RETAINED BY THE HOME FROM PENSIONS RECEIVED BY THE INMATES, EXCEPT THOSE INMATES ON WHOSE BEHALF NO FEDERAL AID IS GIVEN, REGARDLESS OF WHETHER VETERANS' WIVES OR WIDOWS ARE ADMITTED AND MAINTAINED IN SAID HOMES, BUT NO DEDUCTION IS REQUIRED IN THE CASE OF HOMES ADMITTING AND MAINTAINING VETERANS' WIVES AND WIDOWS BECAUSE OF MONEYS COLLECTED FROM INMATES FOR THE SUPPORT OF THE HOMES, IF COLLECTED FROM SOURCES OTHER THAN PENSIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 15, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 26, 1936, AS FOLLOWS:

A QUESTION HAS RECENTLY ARISEN AS TO THE CORRECT APPLICATION OF THE CURRENT APPROPRIATION ACT FOR THIS ADMINISTRATION INSOFAR AS IT RELATES TO THE STATUTORY PROVISION FOR GIVING AID TO STATE AND TERRITORIAL HOMES FOR DISABLED SOLDIERS AND SAILORS, ORIGINAL ACT U.S.C., TITLE 24, SECTION 134, AND THE CURRENT ACT OF JANUARY 27, 1920, 41 STAT. 399. THE PERTINENT PART OF THE ACT OF JANUARY 27, 1920 READS AS FOLLOWS:

"THE BOARD OF MANAGERS OF THE NATIONAL HOME SHALL, HOWEVER, HAVE POWER TO HAVE THE SAID STATE OR TERRITORIAL HOMES INSPECTED AT SUCH TIMES AS IT MAY CONSIDER NECESSARY, AND SHALL REPORT THE RESULT OF SUCH INSPECTIONS TO CONGRESS IN ITS ANNUAL REPORT; PROVIDED, THAT NO STATE SHALL BE PAID SUM EXCEEDING ONE-HALF THE COST OF MAINTENANCE OF EACH SOLDIER OR SAILOR BY SUCH STATE: PROVIDED FURTHER, THAT ONE-HALF OF ANY SUM OR SUMS RETAINED BY STATE HOMES ON ACCOUNT OF PENSIONS RECEIVED FROM INMATES SHALL BE DEDUCTED FROM THE AID HEREIN PROVIDED FOR. THAT NO MONEY SHALL BE APPORTIONED TO ANY STATE OR TERRITORIAL HOME THAT MAINTAINS A BAR OR CANTEEN WHERE INTOXICATING LIQUORS ARE SOLD: PROVIDED FURTHER, THAT FOR ANY SUM OR SUMS COLLECTED IN ANY MANNER FROM INMATES OF SUCH STATE OR TERRITORIAL HOMES TO BE USED FOR THE SUPPORT OF SAID HOMES A LIKE AMOUNT SHALL BE DEDUCTED FROM THE AID HEREIN PROVIDED FOR, BUT THIS PROVISO SHALL NOT APPLY TO ANY STATE OR TERRITORIAL HOME INTO WHICH THE WIVES OR WIDOWS OF SOLDIERS ARE ADMITTED AND MAINTAINED.'

CONSIDERATION OF THE QUESTION REVOLVES PRINCIPALLY AROUND THE SECOND PROVISO AND THE THIRD PROVISO OF THE STATUTE QUOTED ABOVE, WHICH PROVISOS WILL BE HEREINAFTER REFERRED TO AND IDENTIFIED AS THE "SECOND PROVISO" AND THE "THIRD PROVISO.'

THE "SECOND PROVISO" FIRST APPEARED AS A LIMITATION IN THE APPROPRIATION ACT OF AUGUST 5, 1892, AND WAS REENACTED IN APPROPRIATION ACTS FOR SUBSEQUENT YEARS TO AND INCLUDING THE FISCAL YEAR ENDING JUNE 30, 1904.

IN THE APPROPRIATION ACT OF APRIL 28, 1904, MAKING APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1905, THE FOLLOWING LANGUAGE APPEARED:

"PROVIDED, THAT NO PART OF THIS APPROPRIATION SHALL BE APPORTIONED TO ANY STATE OR TERRITORIAL HOME UNTIL ITS LAWS, RULES, OR REGULATIONS RESPECTING THE PENSIONS OF ITS INMATES BE MADE TO CONFORM TO THE PROVISIONS OF SECTION 4 OF AN ACT APPROVED MARCH THIRD, EIGHTEEN HUNDRED AND EIGHTY- THREE, ENTITLED "AN ACT PRESCRIBING REGULATIONS FOR THE SOLDIERS' HOME LOCATED AT WASHINGTON, IN THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES; " BUT THE ABOVE PROVISO SHALL NOT APPLY TO ANY STATE OR TERRITORIAL HOME INTO WHICH THE WIVES OR WIDOWS OF SOLDIERS ARE ADMITTED AND MAINTAINED: AND PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION SHALL BE APPORTIONED TO ANY STATE OR TERRITORIAL HOME THAT MAINTAINS A BAR OR CANTEEN WHERE INTOXICATING LIQUORS ARE LD.' THE LANGUAGE JUST ABOVE QUOTED WAS REENACTED IN THE APPROPRIATION ACTS FOR EACH YEAR SUBSEQUENT TO THE FISCAL YEAR 1905 TO AND INCLUDING THE FISCAL YEAR ENDING JUNE 30, 1909.

IN THE APPROPRIATION ACT OF MARCH 4, 1909, MAKING APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1910, THE "THIRD PROVISO" APPEARED FOR THE FIRST TIME AND READS:

"PROVIDED FURTHER, THAT FOR ANY SUM OR SUMS COLLECTED IN ANY MANNER FROM INMATES OF SUCH STATE OR TERRITORIAL HOMES TO BE USED FOR THE SUPPORT OF SAID HOMES A LIKE AMOUNT SHALL BE DEDUCTED FROM THE AID HEREIN PROVIDED FOR, BUT THIS PROVISO, SHALL NOT APPLY TO ANY STATE OR TERRITORIAL HOME INTO WHICH THE WIVES OR WIDOWS OF SOLDIERS ARE ADMITTED AND MAINTAINED.'

IN THE ACT OF JANUARY 27, 1920, AMENDING AN ACT ENTITLED "AN ACT TO PROVIDE AID TO STATE OR TERRITORIAL HOMES FOR THE SUPPORT OF DISABLED SOLDIERS AND SAILORS OF THE UNITED STATES," APPROVED AUGUST 27, 1888, AS AMENDED MARCH 2, 1889, BOTH THE "SECOND" AND "THIRD" PROVISOS WERE INCLUDED. THIS ACT IS PERMANENT LEGISLATION AND IS THE CURRENT CONTROLLING STATUTE.

FOLLOWING THE ENACTMENT OF THIS PERMANENT LEGISLATION, I.E., THE ACT OF JANUARY 27, 1920, THE APPROPRIATION ACTS OF EACH SUCCEEDING YEAR UP TO AND INCLUDING THE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1933, CONTAINED THE LANGUAGE OF THE "THIRD PROVISO" BUT NOT THE LANGUAGE OF THE "SECOND PROVISO.' THE ACT OF JUNE 16, 1933, MAKING APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1934, DID NOT, NOR DO APPROPRIATIONS ACTS FOR SUCCEEDING YEARS, CONTAIN THE ,THIRD PROVISO" BUT NOW READ:

"PROVIDED FURTHER, THAT THE APPROPRIATIONS HEREIN MADE FOR DOMICILIARY CARE SHALL BE AVAILABLE FOR CONTINUING AID TO STATE OR TERRITORIAL HOMES FOR THE SUPPORT OF DISABLED VOLUNTEER SOLDIERS AND SAILORS, IN CONFORMITY WITH THE ACT APPROVED AUGUST 27, 1888 (U.S.C., TITLE 24, SEC. 134), AS AMENDED INCLUDING ALL CLASSES OF VETERANS ADMISSIBLE TO THE VETERANS' ADMINISTRATION HOMES.'

IT WAS THE PRACTICE OF THE FORMER NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, WHICH PRACTICE HAS BEEN CONTINUED BY THIS ADMINISTRATION SINCE THE CONSOLIDATION, TO NOT PAY A STATE IN EXCESS OF ONE-HALF THE COST OF MAINTENANCE OF EACH MEMBER; TO DEDUCT A LIKE AMOUNT FOR ANY SUM OR SUMS COLLECTED IN ANY MANNER BY HOMES WHERE WIVES AND WIDOWS WERE NOT ADMITTED AND MAINTAINED AND TO MAKE NO DEDUCTIONS FROM THOSE HOMES WHERE THE WIVES AND WIDOWS WERE ADMITTED AND MAINTAINED.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT ONE-HALF OF THE AMOUNT COLLECTED BY THE HOMES FROM PENSIONS OF INMATES WHERE WIVES AND WIDOWS ARE ADMITTED AND CARED FOR IN SAID HOMES SHOULD BE DEDUCTED FROM FEDERAL-AID PAYMENTS MADE TO THE STATE IN WHICH THE HOME IS LOCATED. IN THE EVENT THAT IT IS DECIDED THAT DEDUCTION SHOULD BE MADE UNDER THE CIRCUMSTANCE OUTLINED ABOVE, INFORMATION IS REQUESTED AS TO WHETHER OR NOT THE DEDUCTION SHOULD APPLY TO THE AMOUNT OF PENSIONS THAT THE STATE HOME COLLECTS FROM THE INMATES IN WHOSE BEHALF THE STATE IS NOT BEING PAID FEDERAL AID, THAT IS, PENSIONERS NOT ELIGIBLE FOR DOMICILIARY CARE IN VETERANS' ADMINISTRATION FACILITIES, INCLUDING WIVES AND WIDOWS. PREVIOUSLY STATED, THESE DEDUCTIONS HAVE NOT BEEN MADE IN PAYMENTS HERETOFORE MADE TO THE VARIOUS STATES; THEREFORE, IN THE EVENT THAT IT IS DECIDED THAT THEY SHOULD BE MADE, INFORMATION IS REQUESTED AS TO WHEN THEY SHOULD START; AS TO WHETHER OR NOT THEY SHOULD BE MADE RETROACTIVE AND TAKEN FROM THE SUBSEQUENT PAYMENTS OF STATE AID AND, IF SO, FROM WHAT DATE.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF AN OPINION ON THE QUESTION INVOLVED RENDERED BY THE SOLICITOR OF THE VETERANS' ADMINISTRATION. YOUR ATTENTION IS PARTICULARLY INVITED TO THE OBSERVATIONS WHICH HE MAKES IN THE LAST AND NEXT TO LAST PARAGRAPHS.

THE SECOND AND THIRD PROVISOS OF THE PARAGRAPH OF THE ACT OF JANUARY 27, 1920, 41 STAT. 399, QUOTED IN YOUR LETTER, ARE NOT INCONSISTENT. BOTH MUST BE GIVEN EFFECT. THE SECOND PROVISO REQUIRES DEDUCTION FROM THE AMOUNT PAID AS FEDERAL AID TO A STATE FOR CARE OF VETERANS OF ONE HALF OF ANY SUM RETAINED BY A HOME IN THAT STATE ON ACCOUNT OF PENSIONS RECEIVED FROM THE INMATES, AND IT IS IMMATERIAL IN SUCH CASES WHETHER THEIR WIVES ARE ADMITTED AND MAINTAINED IN THE HOME. THE THIRD PROVISO REQUIRES A DEDUCTION FROM THE AMOUNT PAID AS FEDERAL AID TO A STATE FOR THE CARE OF VETERANS EQUAL TO THE AMOUNT COLLECTED IN ANY MANNER FROM INMATES OF THE HOMES IN THAT STATE FOR THE SUPPORT OF VETERANS; THAT IS, FROM SOURCES OTHER THAN THE INMATES' PENSION, EXCEPT IN THE EVENT THEIR WIVES OR WIDOWS ARE ADMITTED AND MAINTAINED IN SUCH STATE HOME. STATED IN OTHER WORDS, THE EXEMPTION IN FAVOR OF STATE HOMES INTO WHICH THE WIVES OR WIDOWS OF SOLDIERS ARE ADMITTED AND MAINTAINED RELATES ONLY TO THE THIRD PROVISO AND NOT TO THE SECOND. IT MUST BE CONCLUDED, THEREFORE, THAT ONE-HALF OF THE AMOUNT RETAINED BY ALL STATE HOMES FROM THE PENSIONS OF INMATES SHOULD BE DEDUCTED FROM FEDERAL-AID PAYMENTS MADE TO THE STATE IN WHICH THE HOMES ARE LOCATED, WHETHER OR NOT THE WIVES AND WIDOWS OF THE SOLDIERS ARE ADMITTED AND MAINTAINED IN SUCH HOMES. THERE SHOULD BE NO DEDUCTION, HOWEVER, ON ACCOUNT OF PENSIONS PAID TO INMATES IN WHOSE BEHALF THE STATE IS NOT BEING PAID FEDERAL AID.

IN VIEW OF THE FACT THAT THE ANNUAL APPROPRIATION ACTS FOLLOWING THE ENACTMENT OF THE PERMANENT LEGISLATION OF JANUARY 27, 1920, UP TO AND INCLUDING THE APPROPRIATION ACT FOR THE FISCAL YEAR 1933, CONTAINED THE LANGUAGE OF THE THIRD PROVISO BUT NOT THE LANGUAGE OF THE SECOND, AND AS SETTLEMENTS WITH THE STATES WERE MADE APPARENTLY DURING THAT PERIOD ON THE BASIS THAT THE SECOND PROVISO WAS NOT EFFECTIVE, THERE IS SUFFICIENT JUSTIFICATION FOR MAKING ADJUSTMENT UNDER THE SECOND PROVISO BEGINNING WITH THE FISCAL YEAR 1934.