B-100883, JAN. 26, 1965, 44 COMP. GEN. 424

B-100883: Jan 26, 1965

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MISCELLANEOUS RECEIPTS - RENT COLLECTIONS - GARAGE SPACE THE REQUIREMENT FOR DEPOSIT OF GARAGE RENTALS COLLECTED BY PAYROLL DEDUCTIONS MADE FROM THE SALARIES OF EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITALS AND DOMICILIARIES TO MISCELLANEOUS RECEIPTS PURSUANT TO 38 U.S.C. 5004 IS NOT REPEALED BY IMPLICATION BY THE ACT OF AUGUST 20. THE VETERANS ADMINISTRATION IS NOT AUTHORIZED TO PERMIT GARAGE RENTALS TO REMAIN IN THE APPLICABLE APPROPRIATIONS. IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS AND FACILITIES ARE PROVIDED. WHENEVER PAYMENT OF SUCH RATES AND CHARGES IS MADE BY ANY OTHER METHOD. THE LETTER OF NOVEMBER 30 EXPRESSES THE VIEW THAT THE PROVISIONS OF 38 U.S.C. 5004 ARE PRESERVED TO THE EXTENT THAT THEY ARE NOT IN CONFLICT WITH PUBLIC LAW 88-459.

B-100883, JAN. 26, 1965, 44 COMP. GEN. 424

MISCELLANEOUS RECEIPTS - RENT COLLECTIONS - GARAGE SPACE THE REQUIREMENT FOR DEPOSIT OF GARAGE RENTALS COLLECTED BY PAYROLL DEDUCTIONS MADE FROM THE SALARIES OF EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITALS AND DOMICILIARIES TO MISCELLANEOUS RECEIPTS PURSUANT TO 38 U.S.C. 5004 IS NOT REPEALED BY IMPLICATION BY THE ACT OF AUGUST 20, 1964 AND CONTINUES IN EFFECT, THE 1964 ACT AUTHORIZING AGENCIES TO PERMIT RENTALS RECEIVED FOR QUARTERS AND FACILITIES, INCLUDING GARAGE SPACE, TO REMAIN IN THE APPLICABLE APPROPRIATION OR FUND HAVING GENERAL APPLICATION NOT CHANGING PREVIOUSLY EXISTING METHODS OF HANDLING RENT RECEIPTS DOES NOT CONFLICT WITH OR REPEAL 38 U.S.C. 5004, SPECIFICALLY AUTHORIZING THE VETERANS ADMINISTRATION TO CONSTRUCT AND MAINTAIN GARAGES FOR THE ACCOMMODATION OF EMPLOYEES AND TO COLLECT RENTALS FOR DEPOSIT INTO MISCELLANEOUS RECEIPTS AND, THEREFORE, THE 1964 ACT NOT REPEALING SECTION 5004, BUT CONTINUING PREVIOUSLY EXISTING METHODS, THE VETERANS ADMINISTRATION IS NOT AUTHORIZED TO PERMIT GARAGE RENTALS TO REMAIN IN THE APPLICABLE APPROPRIATIONS.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JANUARY 26, 1965:

BY LETTER OF NOVEMBER 30, 1964, YOUR PREDECESSOR PRESENTED FOR OUR DECISION A QUESTION AS TO THE PROPER DISPOSITION OF PAYROLL DEDUCTIONS MADE FROM THE SALARIES OF VETERANS ADMINISTRATION PERSONNEL AS CHARGES FOR GARAGE RENTAL.

FOR MANY YEARS, YOUR ADMINISTRATION HAS CONSTRUCTED AND MAINTAINED ON RESERVATIONS OF VETERANS ADMINISTRATION HOSPITALS AND DOMICILIARIES GARAGES FOR THE ACCOMMODATION OF PRIVATELY OWNED AUTOMOBILES OF EMPLOYEES UNDER THE AUTHORITY OF 38 U.S.C. 5004 (FORMERLY CODIFIED AS 38 U.S.C. 438E). THE CITED STATUTE PROVIDES THAT EMPLOYEES USING SUCH GARAGES SHALL PAY SUCH RENTAL AS THE ADMINISTRATOR SHALL DEEM REASONABLE, AND SPECIFICALLY PROVIDES THAT MONEY RECEIVED THEREFROM SHALL BE COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS. HOWEVER, THE ACT OF AUGUST 20, 1964, PUBLIC LAW 88-459, 78 STAT. 557, AUTHORIZES ALL GOVERNMENT AGENCIES (EXCEPT TVA) TO PROVIDE QUARTERS AND FACILITIES TO EMPLOYEES UNDER CERTAIN CONDITIONS AND SPECIFICALLY INCLUDES GARAGE SPACE IN THE DEFINITION OF FACILITIES. SECTION 3 OF THE CITED ACT PROVIDES AS FOLLOWS:

SEC. 3. RENTAL RATES FOR QUARTERS PROVIDED FOR AN EMPLOYEE UNDER SECTION 2 OF THIS ACT OR OCCUPIED ON A RENTAL BASIS BY AN EMPLOYEE OR A MEMBER OF THE UNIFORMED SERVICES UNDER ANY OTHER PROVISION OF LAW, AND CHARGES FOR FACILITIES MADE AVAILABLE IN CONNECTION WITH THE OCCUPANCY OF SUCH QUARTERS, SHALL BE BASED ON THE REASONABLE VALUE OF THE QUARTERS AND FACILITIES TO THE EMPLOYEE OR THE MEMBER OF THE UNIFORMED SERVICES CONCERNED, IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS AND FACILITIES ARE PROVIDED, OCCUPIED, OR MADE AVAILABLE. THE AMOUNTS OF SUCH RATES AND CHARGES SHALL BE PAID BY, OR DEDUCTED FROM THE SALARY OF SUCH EMPLOYEE OR MEMBER OF THE UNIFORMED SERVICES, OR OTHERWISE CHARGED AGAINST HIM IN ACCORDANCE WITH LAW. THE AMOUNTS OF PAYROLL DEDUCTIONS FOR SUCH RATES AND CHARGES SHALL REMAIN IN THE APPLICABLE APPROPRIATION OR FUND, BUT, WHENEVER PAYMENT OF SUCH RATES AND CHARGES IS MADE BY ANY OTHER METHOD, THE AMOUNTS OF PAYMENT SHALL BE CREDITED TO THE GOVERNMENT AS PROVIDED BY LAW.

PUBLIC LAW 88-459 DOES NOT SPECIFICALLY REPEAL OR PRESERVE 38 U.S.C. 5004. THE LETTER OF NOVEMBER 30 EXPRESSES THE VIEW THAT THE PROVISIONS OF 38 U.S.C. 5004 ARE PRESERVED TO THE EXTENT THAT THEY ARE NOT IN CONFLICT WITH PUBLIC LAW 88-459, BUT THAT THE PROVISION OF THE FORMER REQUIRING DEPOSIT OF RENTAL MONEY INTO THE TREASURY AS MISCELLANEOUS RECEIPTS CONFLICTS WITH AND DEFEATS THE PURPOSE OF SECTION 3 OF THE LATTER QUOTED ABOVE, WHICH REQUIRES THE AMOUNT OF PAYROLL DEDUCTIONS FOR SUCH CHARGES TO REMAIN IN THE APPLICABLE APPROPRIATION OR FUND, AND THAT THE LATTER SHOULD PREVAIL. OUR DECISION THEREON IS REQUESTED.

THE LAST SENTENCE OF 38 U.S.C. 5004 APPEARS TO CONFLICT WITH SECTION 3 OF PUBLIC LAW 88-459 INSOFAR AS CONCERNS THE DISPOSITION OF RENTALS COLLECTED BY MEANS OF PAYROLL DEDUCTIONS, SINCE THE TWO PROVISIONS REQUIRE DIFFERENT DISPOSITION OF AMOUNTS SO COLLECTED. HOWEVER, SUCH APPARENT CONFLICT DOES NOT NECESSARILY INDICATE OR IMPLY THAT SAID SENTENCE IS REPEALED BY PUBLIC LAW 88-459. REPEAL BY IMPLICATION IS NOT FAVORED. THE COURTS WILL NOT ADJUDGE A STATUTE TO HAVE BEEN REPEALED BY IMPLICATION UNLESS A LEGISLATIVE INTENT TO REPEAL OR SUPERSEDE THE STATUTE PLAINLY AND CLEARLY APPEARS. THE IMPLICATION MUST BE CLEAR, NECESSARY, IRRESISTIBLE, AND FREE FROM REASONABLE DOUBT. AN ACT IS NOT IMPLIEDLY REPEALED BECAUSE OF CONFLICT, INCONSISTENCY, OR REPUGNANCY BETWEEN IT AND A LATER ACT UNLESS THE CONFLICT, ETC., IS PLAIN, UNAVOIDABLE, AND IRRECONCILABLE, AND THE TWO ACTS CANNOT BE HARMONIZED OR BOTH CANNOT STAND, OPERATE, OR BE GIVEN EFFECT AT THE SAME TIME. IF IT IS POSSIBLE TO DO SO, BY ANY FAIR AND REASONABLE CONSTRUCTION, TWO SEEMINGLY REPUGNANT ACTS SHOULD BE HARMONIZED AND RECONCILED, SO AS TO PERMIT BOTH TO STAND AND BE OPERATIVE AND EFFECTIVE AND THEREBY AVOID A REPEAL OF THE EARLIER ACT BY IMPLICATION. 82 C.J.S. STATUTES 286, ET SEQ.

THE PORTION OF SECTION 3 OF PUBLIC LAW 88-459 HERE IN QUESTION APPLIES TO RENTALS RECEIVED BY GOVERNMENT AGENCIES GENERALLY FOR QUARTERS AND FACILITIES (INCIDENTALLY INCLUDING GARAGES) FURNISHED TO EMPLOYEES. U.S.C. 5004 CONCERNS ONLY THE VETERANS ADMINISTRATION, AND THE LAST SENTENCE THEREOF APPLIES SOLELY TO RENTALS RECEIVED BY THE VETERANS ADMINISTRATION FOR A PARTICULAR GROUP OF GARAGES ONLY; I.E., THOSE GARAGES "CONSTRUCTED AND MAINTAINED" UNDER THE SPECIFIC AUTHORITY OF THAT PROVISION. HENCE, THE APPARENT CONFLICT IS NOT IRRECONCILABLE AND THE TWO PROVISIONS OF LAW CAN STAND, OPERATE, AND BE GIVEN EFFECT TOGETHER. MOREOVER, THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-459 INDICATES THAT THERE WAS NO INTENTION TO CHANGE PREVIOUSLY EXISTING METHODS OF HANDLING RENT RECEIPTS. THE EXPLANATION OF THE BILL MADE BY THE BUREAU OF THE BUDGET WHEN IT TRANSMITTED THE ORIGINAL BILL TO CONGRESS STATED AS FOLLOWS IN CONNECTION WITH THE WORDING OF SECTION 3 HERE IN QUESTION (PAGE 8, H.REPT. NO. 1459, DATED JUNE 4, 1964, ON S. 1833; PAGE 5, S.REPT. NO. 829, DATED JANUARY 22, 1964, ON S. 1833):

WITH TWO MINOR CHANGES, THE LEGISLATION NOW PROPOSED IS IDENTICAL WITH THAT APPROVED BY BOTH THE HOUSE AND THE SENATE IN THE TWO CONGRESSES. THE FIRST CHANGE, THE ADDITION OF LANGUAGE AT THE END OF SECTION 2 AND SECTION 3, RELATES TO THE NEED FOR WORDING TO ASSURE THE CONTINUATION OF PRESENT AND LONG-STANDING PRACTICE OF CREDITING RENTS AND PROCEEDS OF OTHER SERVICES TO APPROPRIATIONS. THE COMPTROLLER GENERAL EXPRESSED THE VIEW THAT THE EARLIER PROPOSED WORDING WOULD REMOVE THE AUTHORITY FOR RETAINING IN THE VARIOUS APPROPRIATIONS THE AMOUNTS OF RENTALS AND OTHER CHARGES WHICH ARE NOW AVAILABLE TO DEFER THE COSTS OF UPKEEP AND SERVICE OPERATIONS INVOLVED. BUDGET ESTIMATES HAVE GENERALLY BEEN CALCULATED ON THE ASSUMPTION THAT SUCH DEDUCTIONS WILL CONTINUE TO BE AVAILABLE FOR THESE PURPOSES.

THUS IT APPEARS THAT THE PORTION OF SECTION 3 IN QUESTION WAS INTENDED, NOT TO ESTABLISH A NEW METHOD OF HANDLING RENTAL RECEIPTS BUT, RATHER, TO PRESERVE AND CONTINUE PREVIOUSLY EXISTING METHODS.

HENCE, IT MUST BE HELD THAT PUBLIC LAW 88-459 DOES NOT REPEAL 38 U.S.C. 5004 AND DOES NOT AUTHORIZE THE VETERANS ADMINISTRATION TO PERMIT RENTALS FOR GARAGES FURNISHED VETERANS ADMINISTRATION EMPLOYEES UNDER THE AUTHORITY OF THE LATTER, COLLECTED BY MEANS OF PAYROLL DEDUCTIONS OR OTHERWISE, TO REMAIN IN THE APPLICABLE APPROPRIATIONS.