B-113278, MARCH 27, 1953, 32 COMP. GEN. 410

B-113278: Mar 27, 1953

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THE RIGHT TO TEMPORARY STORAGE OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO A CHANGE OF STATION ARISES ONLY WHEN THE STORAGE IS IN CONNECTION WITH THE TRANSPORTATION OR SHIPMENT OF SUCH EFFECTS. A NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY WHOSE HOUSEHOLD EFFECTS WERE ALREADY IN STORAGE AT THE LOCATION WHERE THE OFFICER WAS ORDERED TO DUTY. IS NOT ENTITLED TO REIMBURSEMENT FOR ANY PART OF THE STORAGE CHARGES INCURRED. IN VIEW OF THE RULE THAT NEITHER THE PRESIDENT NOR THE HEAD OF AN EXECUTIVE DEPARTMENT MAY EXERCISE LEGISLATIVE POWER OR AUTHORITY BY REGULATION WHEN IT IS CLEAR THAT THE POWER SO EXERCISED IS PURELY LEGISLATIVE AND THAT REGULATIONS OF EXECUTIVE DEPARTMENTS MUST NOT BE INCONSISTENT WITH LAW.

B-113278, MARCH 27, 1953, 32 COMP. GEN. 410

STORAGE - HOUSEHOLD EFFECTS - MILITARY, NAVAL, ETC., PERSONNEL - NOT INCIDENT TO TRANSPORTATION UNDER SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AND THE REGULATIONS PROMULGATED THEREUNDER, THE RIGHT TO TEMPORARY STORAGE OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO A CHANGE OF STATION ARISES ONLY WHEN THE STORAGE IS IN CONNECTION WITH THE TRANSPORTATION OR SHIPMENT OF SUCH EFFECTS, AND THEREFORE, A NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY WHOSE HOUSEHOLD EFFECTS WERE ALREADY IN STORAGE AT THE LOCATION WHERE THE OFFICER WAS ORDERED TO DUTY, IS NOT ENTITLED TO REIMBURSEMENT FOR ANY PART OF THE STORAGE CHARGES INCURRED. IN VIEW OF THE RULE THAT NEITHER THE PRESIDENT NOR THE HEAD OF AN EXECUTIVE DEPARTMENT MAY EXERCISE LEGISLATIVE POWER OR AUTHORITY BY REGULATION WHEN IT IS CLEAR THAT THE POWER SO EXERCISED IS PURELY LEGISLATIVE AND THAT REGULATIONS OF EXECUTIVE DEPARTMENTS MUST NOT BE INCONSISTENT WITH LAW, BUT MUST CONFORM TO LAW, NEITHER THE REGULATIONS GOVERNING STORAGE OF HOUSEHOLD EFFECTS IN COMMERCIAL FACILITIES, NOR THE INTERPRETATION OF SUCH REGULATIONS, MAY GO BEYOND THE STATUTORY AUTHORITY FOR FURNISHING SUCH STORAGE TO MILITARY PERSONNEL AT PUBLIC EXPENSE.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPTAIN GEORGE P. MARKOFF, U.S. NAVAL RESERVE, MARCH 27, 1953:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE DEPARTMENT OF THE NAVY YOUR LETTER OF OCTOBER 24, 1952, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 25, 1952, WHICH DISALLOWED YOUR CLAIM FOR $320.75 REPRESENTING COST OF STORAGE (INCLUDING INSURANCE AND FUMIGATION) OF YOUR HOUSEHOLD EFFECTS.

BY CHIEF OF NAVAL PERSONNEL ORDERS DATED AUGUST 20, 1951, ADDRESSED TO YOU AT YOUR HOME OF RECORD, CLEVELAND, OHIO, YOU WERE ORDERED TO ACTIVE DUTY AND, IF FOUND PHYSICALLY QUALIFIED, WERE DIRECTED TO PROCEED TO WASHINGTON, D.C., AND REPORT TO THE COMMANDER, MILITARY SEA TRANSPORTATION SERVICE FOR DUTY. YOU REPORTED ON SEPTEMBER 28, 1951. ON SEPTEMBER 12, 1952, YOUR HOUSEHOLD EFFECTS (1,500 CUBIC FEET, APPROXIMATELY 10,500 POUNDS) WERE HAULED FROM STORAGE IN WASHINGTON, C., TO YOUR RESIDENCE IN NEARBY KENWOOD, MARYLAND, AT GOVERNMENT EXPENSE. YOUR CLAIM FOR $320.75, REPRESENTING THE AMOUNT PAID BY YOU FOR STORAGE (INCLUDING INSURANCE AND FUMIGATION) OF 500 CUBIC FEET FOR 8 MONTHS ( JANUARY 21, 1952 TO SEPTEMBER 21, 1952) AND OF 1,000 CUBIC FEET FOR 7 MONTHS ( FEBRUARY 7, 1952 TO SEPTEMBER 7, 1952), AND APPROVED BY THE NAVY DEPARTMENT ON THE BASIS OF YOUR CERTIFICATION THAT THE STORAGE WAS NECESSITATED BY YOUR HAVING TO SURRENDER PREMISES ON WHICH THE LEASE HAD EXPIRED AND BY THE NONAVAILABILITY OF QUARTERS, WITH NO HOUSING AVAILABLE, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE ON THE GROUND, AS THEN INDICATED BY THE RECORD, THAT YOUR HOUSEHOLD EFFECTS PREVIOUSLY HAD BEEN MOVED INTO QUARTERS INCIDENT TO YOUR CURRENT ORDERS TO ACTIVE DUTY.

IT NOW APPEARS THAT THE HOUSEHOLD EFFECTS IN QUESTION WERE MOVED FROM CLEVELAND, OHIO, TO WASHINGTON, D.C., AT GOVERNMENT EXPENSE IN JULY 1941, INCIDENT TO ORDERS TO ACTIVE DUTY DATED MARCH 11, 1941; THAT THEY WERE PLACED IN LOCAL STORAGE IN PART PRIOR TO, AND THE REMAINDER UPON, YOUR RELEASE FROM ACTIVE DUTY ON DECEMBER 20, 1946; THAT THE CONDITIONS ASSIGNED IN YOUR CLAIM AS NECESSITATING STORAGE WERE THOSE EXISTING AT TIME OF STORAGE, AND THAT, ALTHOUGH YOU LATER PERFORMED ACTIVE DUTY HERE FROM JULY 21, 1948, TO APRIL 27, 1949, AND AGAIN REPORTED FOR EXTENDED ACTIVE DUTY HERE ON SEPTEMBER 28, 1951, THESE EFFECTS REMAINED IN STORAGE CONTINUOUSLY UNTIL SEPTEMBER 12, 1952. IN URGING THAT OF THIS PERIOD OF APPROXIMATELY SIX YEARS OF CONTINUOUS STORAGE YOU BE ALLOWED STORAGE CHARGES, INCLUDING COST OF PREPARING EFFECTS FOR STORAGE, FOR SIX MONTHS AS FOR TEMPORARY STORAGE IN CONNECTION WITH YOUR ORDERS OF AUGUST 20, 1951, THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, STATES THAT THE REPRESENTATIVES OF THE VARIOUS SERVICES WHO DRAFTED THE REGULATIONS PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 205 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 860, AND LATER IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 814, DID NOT INTEND THAT THE RIGHT TO STORAGE SHOULD BE LIMITED TO INSTANCES WHERE ACTUAL SHIPMENT IS INVOLVED, CITING IN SUPPORT THEREOF PARAGRAPH 8007-8 OF THE JOINT TRAVEL REGULATIONS, AND PARAGRAPH 29003-3C, IMPLEMENTING ADMINISTRATIVE INSTRUCTIONS, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

UNDER THE FUNDAMENTAL RULE THAT NEITHER THE PRESIDENT NOR THE HEAD OF AN EXECUTIVE DEPARTMENT MAY EXERCISE LEGISLATIVE POWER OR AUTHORITY BY REGULATION WHEN IT IS CLEAR THAT THE POWER SO EXERCISED IS PURELY LEGISLATIVE, AND FURTHER, THAT REGULATIONS OF EXECUTIVE DEPARTMENTS MUST NOT BE INCONSISTENT WITH LAW, BUT MUST CONFORM TO THE LAW, NEITHER THE REGULATIONS GOVERNING STORAGE OF HOUSEHOLD EFFECTS IN COMMERCIAL FACILITIES, NOR THE INTERPRETATION OF SUCH REGULATIONS, MAY GO BEYOND THE STATUTORY AUTHORITY FOR FURNISHING SUCH STORAGE TO MILITARY PERSONNEL AT PUBLIC EXPENSE.

FOR THE PURPOSE OF RELIEVING MEMBERS OF THE ARMY OF THE BURDEN OF TRANSPORTING THEIR BAGGAGE AT PERSONAL EXPENSE WHEN MOVING, THERE FIRST WERE APPROPRIATED ANNUALLY FUNDS FOR TRANSPORTATION OF THEIR BAGGAGE, WHICH APPROPRIATIONS, BEGINNING WITH THE APPROPRIATION FOR THE FISCAL YEAR 1909, ACT OF MAY 11, 1908, 35 STAT. 106, 119, PROVIDED FUNDS FOR TRANSPORTATION OF TROOPS AND "OF THEIR BAGGAGE, INCLUDING THE COST OF PACKING AND CRATING.' UNDER SUCH AUTHORITY THE COST OF PACKING AND CRATING OF BAGGAGE WAS HELD TO BE PAYABLE AS INCIDENT TO THE TRANSPORTATION THEREOF AS FREIGHT. 15 COMP. DEC. 122; ID. 314; 22 COMP. GEN. 478, 483. THE ACT OF MARCH 23, 1910, 36 STAT. 255, APPROPRIATING FUNDS FOR THE TRANSPORTATION OF THE ARMY AND ITS SUPPLIES FOR THE FISCAL YEAR 1911, PROVIDED THAT BAGGAGE IN EXCESS OF REGULATION CHANGE OF STATION ALLOWANCES MIGHT BE SHIPPED WITH SUCH ALLOWANCES AND REIMBURSEMENT COLLECTED FOR TRANSPORTATION CHARGES ON SUCH EXCESS, AND THEREAFTER FOR MANY YEARS THE TRANSPORTATION OF HOUSEHOLD EFFECTS, INCLUDING THOSE OF PERSONNEL OF THE NAVY FOLLOWING ENACTMENT OF THE PROVISION IN THE ACT OF MAY 18, 1920, 41 STAT. 604, CONFERRING UPON THEM THE BENEFIT OF EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS, 26 COMP. DEC. 984, WERE GOVERNED LARGELY BY ADMINISTRATIVE REGULATIONS WITHIN THE STATUTORY CONCEPT OF A CHANGE OF STATION BAGGAGE ALLOWANCE OF THE WEIGHTS SPECIFIED THEREIN FOR DIFFERENT RANKS OF OFFICERS. AS A PART OF THE TRANSPORTATION COSTS THERE WERE INCLUDED SUCH NECESSARY INCIDENTAL EXPENSES AS PACKING, CRATING, DRAYAGE AND UNPACKING. SECTION 205 OF THE ACT OF AUGUST 2, 1946, SUPRA, AMENDED SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 364, BY EXPRESSLY PROVIDING THAT UPON CHANGES OF STATION MEMBERS OF THE SERVICES MENTIONED IN ITS TITLE SHOULD BE ENTITLED TO "TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR," AS AUTHORIZED BY REGULATIONS PRESCRIBED BY THE HEADS OF THE DEPARTMENTS CONCERNED, SAID REGULATIONS TO BE UNIFORM FOR THE SERVICES MENTIONED AND APPROVED BY THE PRESIDENT. LANGUAGE IDENTICAL TO THAT QUOTED ABOVE WAS INCORPORATED IN SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, WHICH PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED IN CONNECTION WITH A CHANGE OF STATION "TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS" TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED.

IT IS TO BE NOTED THAT THE ABOVE-CITED ACTS PROVIDE ONLY THAT, IN CONNECTION WITH A CHANGE OF STATION, MILITARY PERSONNEL SHALL BE ENTITLED TO TRANSPORTATION OF THEIR HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, OR TO REIMBURSEMENT THEREFOR, ENUMERATING PARENTHETICALLY CERTAIN ITEMS OF EXPENSE ORDINARILY INCURRED INCIDENT TO THE SHIPMENT OF HOUSEHOLD EFFECTS SUCH AS CRATING, PACKING AND UNPACKING, AMONG WHICH IS INCLUDED ,TEMPORARY STORAGE.' THUS IT IS EVIDENT THAT THE CONGRESS INTENDED THAT TEMPORARY STORAGE, AS IN THE CASE OF PACKING AND CRATING, SHOULD BE FURNISHED ONLY WHEN NECESSARY AS AN INCIDENT TO A SHIPMENT CURRENTLY IN PROCESS OR IN IMMEDIATE PROSPECT. CF. 22 COMP. GEN. 478, 483. THAT THIS IS TRUE IS FURTHER EVIDENCED BY THE FACT THAT, WHILE FOR ADMINISTRATIVE PURPOSES THE MAXIMUM PERIOD OF TEMPORARY STORAGE HAS BEEN FIXED IN THE CASE OF MILITARY PERSONNEL AT SIX MONTHS, THE STATUTORY PROVISION FOR TEMPORARY STORAGE IS INEXACT AND HENCE IT WOULD APPEAR THAT THE TEMPORARY STORAGE TO BE FURNISHED IN A GIVEN CASE WITHIN THE CONTEMPLATION OF LAW CANNOT BE DETERMINED OTHER THAN ON THE BASIS OF THE CIRCUMSTANCES AND CONDITIONS PERTAINING TO THE SHIPMENT AS MADE. ALSO, THERE PROPERLY IS FOR CONSIDERATION SECTION 632 OF THE ACT OF JULY 10, 1952, 66 STAT. 537, WHICH, IN LIMITING THE FUNDS TO BE AVAILABLE DURING THE FISCAL YEAR 1953 FOR TRANSPORTATION OF HOUSEHOLD EFFECTS, EXPRESSLY INCLUDING TEMPORARY STORAGE, PROVIDES THAT SUCH LIMITATION SHALL BE BASED ON THE TOTAL NUMBER OF SHIPMENTS AUTHORIZED DURING THE PREVIOUS YEAR, THUS FURTHER INDICATING THAT IT WAS NOT INTENDED TO AUTHORIZE TEMPORARY STORAGE INDEPENDENTLY OF TRANSPORTATION OF HOUSEHOLD EFFECTS.

IN VIEW OF THE FOREGOING THE CONCLUSION APPEARS REQUIRED THAT PARAGRAPH 7A OF EXECUTIVE ORDER NO. 10053, EFFECTIVE FEBRUARY 1, 1949, IMPLEMENTING THE AUTHORITY FOR TEMPORARY STORAGE OF HOUSEHOLD EFFECTS INCIDENT TO THE TRANSPORTATION THEREOF CONTAINED IN THE SAID ACT OF AUGUST 2, 1946, SUPRA, AND THE SUBSTANTIALLY IDENTICAL PROVISIONS OF PARAGRAPH 8006-1 OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, MUST BE INTERPRETED AS AUTHORIZING TEMPORARY STORAGE OF HOUSEHOLD EFFECTS AT PUBLIC EXPENSE ONLY WHEN NECESSARY IN CONJUNCTION WITH ONE OR MORE OF THE SEVERAL STAGES OF TRANSPORTATION SET OUT IN SAID REGULATIONS, SUCH NECESSITY TO BE CERTIFIED TO BY PROPERLY DESIGNATED AUTHORITY HAVING KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES BEYOND THE CONTROL OF THE OWNER OF THE EFFECTS UNDER WHICH THEY WERE STORED WHICH CIRCUMSTANCES, INTER ALIA, WOULD NOT INCLUDE A MERE REQUEST BY AN OWNER, THAT HIS EFFECTS BE PLACED IN STORAGE PENDING SUCH FUTURE DISPOSITION AS HE MAY DESIRE. AS TO PARAGRAPH 8007-8, JOINT TRAVEL REGULATIONS, CITED IN SUPPORT OF YOUR CLAIM, SAID PARAGRAPH IN EFFECT PROVIDES UPON THE APPROVAL OF THE SECRETARY CONCERNED FOR TRANSPORTATION OF HOUSEHOLD EFFECTS AS FOR A PERMANENT CHANGE OF STATION IN CASES OF PERSONNEL ORDERED TO INDETERMINATE TEMPORARY DUTY, AND IT FOLLOWS THAT TEMPORARY STORAGE WOULD BE WARRANTED ONLY UNDER LIKE CONDITIONS AS IN CASES OF PERMANENT CHANGES OF STATION, SUBJECT TO THE EFFECT WHICH THE NATURE OF THE ORDERS IN FACT MIGHT HAVE UPON SUCH CONDITIONS.

ACCORDINGLY, SINCE YOUR EFFECTS WERE ALREADY IN STORAGE HERE IN WASHINGTON, D.C., WHEN YOU WERE ORDERED TO REPORT HERE FOR EXTENDED ACTIVE DUTY UNDER THE ORDERS OF AUGUST 20, 1951, IT IS CLEAR THAT NO PART OF THE STORAGE WAS INCIDENT TO ANY TRANSPORTATION OR SHIPMENT OF SUCH EFFECTS UNDER THOSE ORDERS. HENCE, THERE IS NO LEGAL BASIS UPON WHICH YOU MAY BE REIMBURSED FOR ANY PART OF THE STORAGE CHARGES SO INCURRED.