B-20698, OCTOBER 23, 1941, 21 COMP. GEN. 358

B-20698: Oct 23, 1941

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QUARTERS - RENTAL ALLOWANCE - DETERMINATION AS TO OCCUPANCY OF PUBLIC QUARTERS QUARTERS WHICH WERE ORIGINALLY CONSTRUCTED BY THE WAR DEPARTMENT FOR HOUSING MILITARY PERSONNEL AND WHICH HAVE BEEN TRANSFERRED TO THE INTERIOR DEPARTMENT. ARE NOT "PUBLIC QUARTERS" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10. THE OFFICER IS NOT PRECLUDED BY REASON OF THE OCCUPANCY OF SUCH QUARTERS FROM RECEIVING PAYMENT OF THE RENTAL ALLOWANCE PROVIDED IN SAID SECTION. AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FIRST LT. WHILE THE OFFICER WAS ON ACTIVE DUTY IN ACCORDANCE WITH PARAGRAPH 134. IT IS REPORTED THAT DURING THE ABOVE PERIOD THE OFFICER OCCUPIED HOUSE NO. 59.

B-20698, OCTOBER 23, 1941, 21 COMP. GEN. 358

QUARTERS - RENTAL ALLOWANCE - DETERMINATION AS TO OCCUPANCY OF PUBLIC QUARTERS QUARTERS WHICH WERE ORIGINALLY CONSTRUCTED BY THE WAR DEPARTMENT FOR HOUSING MILITARY PERSONNEL AND WHICH HAVE BEEN TRANSFERRED TO THE INTERIOR DEPARTMENT, LEASED BY IT TO THE WELFARE AND RECREATIONAL ASSOCIATION OF PUBLIC BUILDINGS AND GROUNDS, INC., AND THEN LEASED BY SUCH CORPORATION TO AN ARMY OFFICER, ARE NOT "PUBLIC QUARTERS" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, AND THE OFFICER IS NOT PRECLUDED BY REASON OF THE OCCUPANCY OF SUCH QUARTERS FROM RECEIVING PAYMENT OF THE RENTAL ALLOWANCE PROVIDED IN SAID SECTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COL. W. M. DIXON, U.S. ARMY, OCTOBER 23, 1941:

THERE HAS BEEN RECEIVED BY FIRST INDORSEMENT DATED SEPTEMBER 18, 1941, YOUR REQUEST FOR DECISION DATED AUGUST 18, 1941, AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FIRST LT. LEONARD DONALD MITCHELL, QMC-RES., UNITED STATES ARMY, COVERING RENTAL ALLOWANCE FOR THE PERIOD JULY 17 TO 31, 1941, WHILE THE OFFICER WAS ON ACTIVE DUTY IN ACCORDANCE WITH PARAGRAPH 134, SPECIAL ORDERS NO. 154, WAR DEPARTMENT, DATED JULY 3, 1941.

IT IS REPORTED THAT DURING THE ABOVE PERIOD THE OFFICER OCCUPIED HOUSE NO. 59, LOCATED AT FORT WASHINGTON, MD., AND YOUR QUESTION IS WHETHER HE IS ENTITLED TO AN ALLOWANCE FOR QUARTERS DURING SUCH PERIOD. ATTACHED TO YOUR REQUEST FOR DECISION IS A LETTER DATED AUGUST 8, 1941, SIGNED BY F. W. HOOVER, GENERAL MANAGER, WELFARE AND RECREATIONAL ASSOCIATION OF PUBLIC BUILDINGS AND GROUNDS, INC., 1135 TWENTY-FIRST STREET, NW., WASHINGTON, D.C., AS FOLLOWS:

YOU ARE HEREBY ADVISED THAT LIEUTENANT LEONARD D. MITCHELL, U.S.A., IS OCCUPYING HOUSE NO. 59, LOCATED AT FORT WASHINGTON, MARYLAND, UNDER THE PROVISIONS OF A RENTAL SCHEDULE DEVELOPED BY THIS ASSOCIATION.

YOU ARE FURTHER ADVISED THAT THE WAR DEPARTMENT HAS RELINQUISHED ALL ITS INTEREST IN FORT WASHINGTON AND THIS ASSOCIATION WAS REQUESTED BY THE DEPARTMENT OF THE INTERIOR TO MAINTAIN AND RENT THE RESIDENCES LOCATED THERE UNDER AN AGREEMENT DATED MARCH 13, 1941. ALL THIS PROPERTY WAS TRANSFERRED TO THE DEPARTMENT OF THE INTERIOR; HOWEVER, SO LONG AS THIS ASSOCIATION IS RESPONSIBLE FOR ITS MAINTENANCE, NO DEPARTMENT OF THE GOVERNMENT HAS A RIGHT TO ASSIGN OR ALLOCATE QUARTERS TO ANY OF ITS PERSONNEL IN LIEU OF COMMUTATION OF QUARTERS. THE ROLE OF THIS ASSOCIATION IS THAT OF A RENTAL AGENCY WHICH OPERATES AND MAINTAINS A CERTAIN AREA OF FORT WASHINGTON UNDER POLICIES FORMULATED BY IT. ALL RENTS ARE DUE AND PAYABLE TO THE ASSOCIATION.

LIEUTENANT L. D. MITCHELL RENTED HOUSE NO. 59 UNDER THE PROVISIONS OF A LEASE AT A RENTAL OF TWENTY DOLLARS PER MONTH, PLUS THE COST OF HEATING, LIGHTING, AND WATER. HIS STATUS AS A TENANT IS THE SAME AS ANY CIVILIAN EMPLOYE OF THE GOVERNMENT LIVING IN THE FORT.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES IN PART:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

SECTION 3 OF THE ACT OF MAY 29, 1930, 46 STAT. 484, PROVIDES:

WHENEVER THE USE OF THE FORTS WASHINGTON, FOOTE, AND HUNT, OR EITHER OF THEM, IS NO LONGER DEEMED NECESSARY FOR MILITARY PURPOSES THEY SHALL BE TURNED OVER TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, WITHOUT COST, FOR ADMINISTRATION AND MAINTENANCE AS A PART OF THE SAID GEORGE WASHINGTON MEMORIAL PARKWAY.

SECTION 2 OF THE ACT OF DECEMBER 22, 1928, 45 STAT. 1070, 40 U.S.C. 72B, PROVIDES AS FOLLOWS:

THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL IS AUTHORIZED, SUBJECT TO THE APPROVAL OF THE NATIONAL CAPITAL PARK AND PLANNING COMMISSION, TO LEASE, FOR A TERM NOT EXCEEDING FIVE YEARS, AND TO RENEW SUCH LEASE, SUBJECT TO SUCH APPROVAL, FOR AN ADDITIONAL TERM NOT EXCEEDING FIVE YEARS, PENDING NEED FOR THEIR IMMEDIATE USE IN OTHER WAYS BY THE PUBLIC, AND ON SUCH TERMS AS THE DIRECTOR SHALL DETERMINE, LAND OR ANY EXISTING BUILDING OR STRUCTURE ON LAND ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.

WHILE IT IS NOT STATED IN YOUR REQUEST FOR DECISION THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT FORT WASHINGTON, MD., WAS TRANSFERRED TO THE DEPARTMENT OF THE INTERIOR ON AUGUST 12, 1940. FROM RECORDS AVAILABLE HERE IT IS DISCLOSED THAT CERTAIN BUILDINGS AT FORT WASHINGTON, INCLUDING BUILDING NO. 59, APPARENTLY THE HOUSE OCCUPIED BY LIEUTENANT MITCHELL, WERE LEASED BY THE DEPARTMENT OF THE INTERIOR TO THE WELFARE AND RECREATIONAL ASSOCIATION OF PUBLIC BUILDINGS AND GROUNDS, INC., DESIGNATED IN THE LEASE AS THE OPERATOR. THE AGREEMENT WAS ENTERED INTO MARCH 13, 1941, AND AUTHORIZES THE OPERATOR DURING THE TERM OF 5 YEARS FROM JANUARY 1, 1941, WITH THE OPTION OF RENEWAL FOR 5 YEARS UNDER CERTAIN CIRCUMSTANCES.

(A) TO ESTABLISH AND OPERATE IN THE GOVERNMENT-OWNED BUILDINGS AND/OR IN SUCH BUILDINGS AS MAY BE CONSTRUCTED BY THE OPERATOR AND ON ANY OTHER ASSIGNED AREAS IN THE FORT WASHINGTON AREA, MD., THE FACILITIES FOR HOUSING ON AN APPROPRIATE RENTAL OR OTHER BASIS, THE SALE OF MEALS, LUNCHES, GROCERIES, MAGAZINES, BOOKS, POSTCARDS, PHOTOGRAPHS, SOUVENIRS, CONFECTIONERY, ICE CREAM, DRINKS, CIGARS, CIGARETTES, TOBACCO, AND SUCH OTHER ITEMS OR SERVICES AS ARE NECESSARY IN THE JUDGMENT OF THE SECRETARY FOR THE CONVENIENCE OF THE VISITORS.

IN ARTICLE III OF THE AGREEMENT THE OPERATOR AGREES:

(B) THAT IT WILL ASSUME RESPONSIBILITY FOR THE MAINTENANCE OF THE BUILDINGS AND GROUNDS TURNED OVER TO IT, THE WATER PUMPING PLANT, THE ELECTRICAL LAYOUT WITHIN THE AREA IN WHICH THE BUILDINGS LEASED ARE LOCATED (PARTICULARLY EXCLUDING THE MAINTENANCE OR REPLACEMENT OF THE CABLES CARRYING CURRENT UNDER THE POTOMAC RIVER) AND THE REMOVAL FROM THE BUILDINGS COVERED BY THE LEASE OF TRASH, GARBAGE AND ASHES. IT IS UNDERSTOOD AND AGREED THAT THE OPERATOR WILL BE RESPONSIBLE FOR ALL MAINTENANCE WITHIN THE AREA SHOWN ON HATCHED LINES ON PLAN NO. 117.8 56, ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.

(C) THAT IT WILL PAY FOR THE CURRENT USED IN LIGHTING THE ROADWAYS OF THE RESERVATION AND IN PUMPING WATER TO THE RESERVE TANKS.

(D) THAT IT WILL PAY OR CAUSE TO BE PAID TO THE SECRETARY AT HIS OFFICE IN THE CITY OF WASHINGTON, D.C., OR TO SUCH PERSON AND AT SUCH PLACE AS HE MAY DESIGNATE, WITHIN NINETY DAYS AFTER THE 31ST DAY OF DECEMBER OF EACH YEAR DURING THE TERM OF THIS CONTRACT, THE SUM OF ONE HUNDRED DOLLARS ($100), WHICH SHALL BE REGARDED AS AN EXPENSE FOR THE YEAR FOR WHICH IT IS DUE, AND A FURTHER SUM TO BE ASCERTAINED AS FOLLOWS:

1. THE OPERATOR SHALL BE ALLOWED, AND IT IS HEREBY GRANTED ANNUALLY, A PRIORITY OF NET PROFITS AMOUNTING TO SIX PERCENT (6 PERCENT) OF THE VALUE OF ITS INVESTMENT (AS HEREINAFTER DEFINED).

IF THE AMOUNT OF SAID ANNUAL PRIORITY SHALL NOT HAVE BEEN EARNED IN ANY YEAR THROUGH THE NET PROFITS, THE AMOUNT OF THE UNEARNED PRIORITY SHALL BE CUMULATIVE AND SHALL BE APPLIED AGAINST THE NET PROFITS OF SUCCEEDING YEARS, BUT NEITHER THE EARNED PRIORITY NOR THE UNEARNED PRIORITY SHALL BEAR INTEREST.

2. IN ANY CALENDAR YEAR OF THE TERM OF THIS CONTRACT IN WHICH THE ANNUAL NET PROFITS FOR SUCH YEAR (AS HEREIN DEFINED) SHALL EXCEED SAID SIX PERCENT (6 PERCENT) PRIORITY TO THE OPERATOR, PLUS ALL ACCUMULATIONS OF UNEARNED PRIORITY FOR PRIOR YEARS, IF ANY, THE OPERATOR SHALL PAY TO THE SECRETARY FIFTY PERCENTUM (50 PERCENT) OF SUCH EXCESS; SUCH PAYMENT TO THE SECRETARY TO BE MADE WITHIN 90 DAYS AFTER THE 31ST DAY OF DECEMBER OF EACH YEAR.

(F) THAT NO CHARGES OR RENTS SHALL BE DEMANDED OR RECEIVED FROM ANY PERSON BY OR ON BEHALF OF THE OPERATOR FOR ANY ACCOMMODATION OR SERVICE FURNISHED OR RENDERED BY IT OR FOR ANY THING OR ARTICLE SOLD BY IT, EXCEPT IN ACCORDANCE WITH A TARIFF OR SCHEDULE APPROVED BY THE SECRETARY, WHO SHALL HAVE THE POWER, FROM TIME TO TIME, TO MAKE SUCH ALTERATIONS AND MODIFICATIONS IN SUCH SCHEDULE OR TARIFF AS HE MAY SEE FIT, NOT INCONSISTENT WITH A REASONABLE PROFIT ON THE INVESTMENT OF THE OPERATOR.

(J) THAT UPON THE TERMINATION OF THIS LEASE IT WILL VACATE THE PREMISES AND RETURN THEM TO THE SECRETARY TOGETHER WITH ANY AND ALL GOVERNMENT EQUIPMENT USED BY IT IN SUBSTANTIALLY THE SAME CONDITION IN WHICH THEY WERE RECEIVED, ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS EXCEPTED.

ALTHOUGH THE QUARTERS OCCUPIED BY LIEUTENANT MITCHELL WERE UNDOUBTEDLY CONSTRUCTED WITH PUBLIC FUNDS FOR THE PURPOSE OF HOUSING MILITARY PERSONNEL, IT IS EVIDENT FROM THE FOREGOING THAT THE CONGRESS HAS AUTHORIZED THE SECRETARY OF WAR TO TRANSFER SUCH QUARTERS TO THE DEPARTMENT OF THE INTERIOR, THAT THE DEPARTMENT OF THE INTERIOR IS AUTHORIZED BY LAW TO LEASE SUCH QUARTERS, AND THAT PURSUANT TO SUCH AUTHORITY THE QUARTERS WERE LEASED TO A CORPORATION. BY THE TERMS OF THE LEASE THE CORPORATION IS AUTHORIZED TO LEASE THE QUARTERS COVERED THEREBY TO OTHER PARTIES FOR A RENTAL APPROVED BY THE SECRETARY OF THE INTERIOR, AND IT IS FROM SUCH CORPORATION THAT LIEUTENANT MITCHELL HAS OBTAINED THE QUARTERS OCCUPIED BY HIM. THE RELATIONSHIP BETWEEN THE OFFICER AND THE CORPORATION APPEARS TO BE A LANDLORD-TENANT RELATIONSHIP. IN VIEW OF ALL THESE FACTS THE OFFICER DID NOT OCCUPY PUBLIC QUARTERS WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, SUPRA, DURING THE PERIOD COVERED BY THE VOUCHER AND YOU ARE AUTHORIZED TO MAKE PAYMENT THEREON IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.