B-43235, AUGUST 16, 1944, 24 COMP. GEN. 129

B-43235, AUGUST 16, 1944, 24 COMP. GEN. 129

POST OFFICES - THIRD-CLASS - ALLOWANCE FOR RENT, LIGHT, FUEL, ETC., AS BEING EXCLUSIVE OF INCIDENTAL EXPENSES THE AUTHORITY IN THE ACT OF JULY 24, 1888, TO ALLOW RENT, LIGHT, FUEL AND WATER AT THIRD-CLASS POST OFFICES DOES NOT INCLUDE AUTHORITY TO ALLOW INCIDENTAL EXPENSES AS FOR REMOVAL OF ASHES; NOR MAY THE ACTUAL EXPENSES THEREOF BE CHARGED TO THE APPROPRIATION FOR RENT, LIGHT, FUEL AND WATER.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 16, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 10, 1944, AS FOLLOWS:

THE POSTMASTER OF SALEM, NEW YORK, HAS REQUESTED AN ALLOWANCE FOR THE REMOVAL OF ASHES IN THE CELLAR OF THE BUILDINGS.

SALEM IS A POST OFFICE OF THE THIRD CLASS OCCUPYING QUARTERS UNDER LEASE. THE CONTRACT DOES NOT REQUIRE THE LESSOR TO PROVIDE FUEL, HEAT, OR JANITOR SERVICE.

WILL YOU PLEASE ADVISE WHETHER THE EXPENSE OF REMOVING THE ASHES MAY BE CHARGED TO THE APPROPRIATION FOR RENT, LIGHT, FUEL AND WATER.

AS INDICATED IN YOUR LETTER THE LEASE COVERING THE PREMISES HERE INVOLVED CONTAINS NO PROVISION REQUIRING THE LESSOR TO FURNISH FUEL, HEAT OR JANITOR SERVICE. AND IT HAS BEEN HELD THAT "IN THE ABSENCE OF A STATUTE OR EXPRESS AGREEMENT, OR OF CIRCUMSTANCES RAISING AN IMPLIED COVENANT, A LANDLORD IS UNDER NO OBLIGATION TO FURNISH HEAT, WATER, STEAM OR OTHER SPECIAL SERVICES TO HIS TENANT.' 22 COMP. GEN. 454: ALSO, SEE TAILORED READY COMPANY V. FOURTH AND PIKE STREET CORPORATION ET AL., 35 P.2D 508. WHILE UNDER THE SUBJECT LEASE THE LESSOR IS REQUIRED TO "MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION," IT WAS HELD IN KEHL V. ILLINOIS DOUGHNUT AND CAKE COMPANY, 31 N.E.2D 359, THAT THE REMOVAL OF ASHES DID NOT CONSTITUTE "REPAIRS" WITHIN THE MEANING OF A COVENANT TO KEEP IN GOOD REPAIR.

IN THE ACT OF JULY 24, 1888 (39 U.S.C. 11A) IT IS PROVIDED:

THE POSTMASTER GENERAL MAY HEREAFTER ALLOW RENT, LIGHT, AND FUEL AT OFFICES OF THE THIRD CLASS IN THE SAME MANNER AS HE IS NOW AUTHORIZED BY LAW TO DO IN THE CASE OF OFFICES OF THE FIRST AND SECOND CLASS. ALSO, SEE SECTION 474 OF THE POSTAL LAWS AND REGULATIONS.

THE RECORDS OF THIS OFFICE INDICATE THAT THE POSTMASTER AT SALEM, NEW YORK, HAS BEEN GRANTED AN ALLOWANCE FOR LIGHT AND FUEL: THAT FROM TIME TO TIME EXPENDITURES HAVE BEEN MADE FOR THESE ITEMS; AND THAT SUCH EXPENDITURES HAVE BEEN MADE FOR THOSE ITEMS; AND THAT SUCH EXPENDITURES HAVE BEEN CHARGED TO THE CURRENT APPROPRIATION FOR "RENT, LIGHT, FUEL, AND WATER, FOR FIRST-, SECOND-, AND THIRD-CLASS POST OFFICES.'

THE REMOVAL OF ASHES IS IN THE NATURE OF JANITOR SERVICE AND MUST BE CONSIDERED AS SUCH IN THE INSTANT MATTER. IN 4 COMP. GEN. 615 IT WAS HELD THAT THE APPROPRIATION "MISCELLANEOUS ITEMS, FIRST AND SECOND CLASS POST OFFICES" IS AVAILABLE FOR THE PAYMENT OF JANITOR SERVICE IN QUARTERS LEASED BY THE POST OFFICE DEPARTMENT WHERE SUCH SERVICE IS NECESSARY AND IS NOT REQUIRED TO BE PERFORMED BY THE LESSOR OF THE PREMISES. THE SAID DECISION HAD APPLICATION, OF COURSE, ONLY TO POST OFFICES OF THE FIRST AND SECOND CLASS; AND THERE IS NO SIMILAR APPROPRIATION APPLICABLE TO POST OFFICES OF THE THIRD CLASS.

IT COULD BE ARGUED THAT THE REMOVAL OF ASHES IS A NECESSARY INCIDENT TO THE HEATING OF THE PREMISES AND THAT, ACCORDINGLY, THE EXPENSE THEREOF SHOULD CONSTITUTE A PROPER CHARGE AGAINST THE APPROPRIATION FOR RENT, LIGHT, FUEL, AND WATER. HOWEVER, FOLLOWING THAT LINE OF ARGUMENT MIGHT RESULT IN CHARGING TO SUCH APPROPRIATION ANY OF THE INCIDENTAL EXPENSES WHICH, FOR FIRST- AND SECOND-CLASS POST OFFICES, ARE PROVIDED FOR IN THE APPROPRIATION "MISCELLANEOUS ITEMS, FIRST AND SECOND CLASS POST OFFICES.' BUT THE VERY FACT THAT THE CONGRESS DOES NOT PROVIDE FUNDS FOR SUCH INCIDENTAL EXPENSES AT FIRST- AND SECOND-CLASS POST OFFICES IN A SEPARATE AND DISTINCT APPROPRIATION WOULD SEEM TO BE INDICATIVE OF A LACK OF AUTHORITY, INSOFAR AS THIRD-CLASS POST OFFICES ARE CONCERNED, FOR CHARGING TO THE SAID APPROPRIATION FOR RENT, LIGHT, FUEL AND WATER SUCH INCIDENTAL EXPENSES AS FOR THE REMOVAL OF ASHES.

MOREOVER, IT IS NOTED THAT SOMEWHAT THE SAME ARGUMENT WAS MADE IN A CASE DECIDED BY THE FIRST COMPTROLLER OF THE TREASURY ABOUT 50 YEARS AGO. APPEAL OF DAYTON HALE, DECISIONS OF THE FIRST COMPTROLLER, 1893 1894, PAGE 228. THE QUESTION INVOLVED WAS WHETHER IT WAS WITHIN THE AUTHORITY OF THE POSTMASTER GENERAL TO MAKE AN ALLOWANCE FOR THE RENTAL OF QUARTERS FOR A THIRD-CLASS POST OFFICE WHICH WOULD INCLUDE CERTAIN FIXTURES, BOXES, ETC. IN THE DECISION THERE WAS QUOTED SECTION 3860, REVISED STATUTES (39 U.S.C. 64), WHICH AUTHORIZES THE POSTMASTER GENERAL TO ALLOW TO POSTMASTERS AT OFFICES OF THE FIRST AND SECOND CLASS "A REASONABLE SUM FOR THE NECESSARY COST OF RENT, FUEL, LIGHTS, FURNITURE * * * AND NECESSARY INCIDENTALS" OUT OF THE SURPLUS REVENUES OF THEIR RESPECTIVE OFFICES. THEN, IT WAS STATED:

THIS SECTION SPECIFICALLY ENUMERATES, AS THE ALLOWANCES WHICH MAY BE MADE TO POSTMASTERS AT OFFICES OF THE FIRST AND SECOND CLASS, NOT ONLY RENT, FUEL, AND LIGHTS, BUT ALSO FURNITURE, STATIONERY, PRINTING, CLERKS, AND NECESSARY INCIDENTALS. THE CLAUSE IN THE ACT OF JULY 24, 1888, ABOVE QUOTED, AUTHORIZES THE POSTMASTER GENERAL TO ALLOW TO POSTMASTERS AT OFFICES OF THE THIRD CLASS "RENT, LIGHT, AND FUEL.' THIS PARTICULAR ENUMERATION OF "RENT, LIGHT, AND FUEL," WITH THE FAILURE TO ENUMERATE FURNITURE, STATIONERY, PRINTING, CLERKS, AND NECESSARY INCIDENTALS," SPECIFICALLY AUTHORIZED BY SECTION 3860, REVISED STATUTES, FOR OFFICES OF THE FIRST AND SECOND CLASSES, WOULD SEEM CLEARLY TO INDICATE THE INTENTION UPON THE PART OF CONGRESS TO LIMIT THE ALLOWANCES FOR OFFICES OF THE THIRD CLASS TO THE THREE ITEMS ENUMERATED IN THE CLAUSE IN THE ACT OF JULY 24, 1888, TO WIT, RENT, LIGHT, AND FUEL; AND SUCH WAS THE CONSTRUCTION PLACED UPON THE CLAUSE IN THE ACT OF JULY 24, 1888, BY THE POST-OFFICE DEPARTMENT AFTER ITS PASSAGE, WHICH CONSTRUCTION HAS BEEN CONTINUOUS AND UNINTERRUPTED FROM THAT DAY TO THIS.

MR. HALE'S CLAIM, HOWEVER, RESTS UPON THE GROUND THAT RENT INCLUDES NOT ONLY THE ROOM OR ROOMS SURROUNDED BY FOUR BARE WALLS, BUT ALSO A ROOM PROPERLY FURNISHED AND EQUIPPED FOR USE AS A POST-OFFICE, ON THE GROUND THAT SUCH LEASES ARE AUTHORIZED BY THE POSTMASTER-1GENERAL TO BE MADE FOR OFFICES OF THE FIRST AND SECOND CLASSES AND THAT THE POSTMASTER-1GENERAL IS, BY THE CLAUSE IN THE ACT OF JULY 24, 1888, AUTHORIZED TO "ALLOW RENT * * * AT OFFICES OF THE THIRD CLASS IN THE SAME MANNER AS HE IS NOW AUTHORIZED BY LAW TO DO IN THE CASE OF OFFICES OF THE FIRST AND SECOND CLASS," AND THAT THE POSTMASTER-1GENERAL HAS AUTHORIZED LEASES OF QUARTERS EQUIPPED WITH BOXES TO BE MADE AT OFFICES OF THE FIRST AND SECOND CLASSES. * * * * *

AS THE POSTMASTER-1GENERAL WAS AUTHORIZED BY SECTION 3860, REVISED STATUTES, TO ALLOW TO OFFICES OF THE FIRST AND SECOND CLASSES, IN ADDITION TO RENT, A SUM FOR FURNITURE, IT WAS OF COURSE PERMISSIBLE FOR HIM TO AUTHORIZE THOSE ALLOWANCES TO BE INCLUDED IN ONE CONTRACT FOR THE RENT OF QUARTERS WHICH WOULD INCLUDE THE FURNITURE, AND HE HAS EXERCISED THAT RIGHT; BUT AS HE WAS AUTHORIZED, BY THE CLAUSE IN THE ACT OF JULY 24, 1888, TO ALLOW RENT ONLY, AND COULD NOT ALLOW FURNITURE, FOR OFFICES OF THE THIRD CLASS, IT FOLLOWS THAT HE COULD NOT AUTHORIZE LEASES FOR QUARTERS INCLUDING FURNITURE, AND HE HAS NOT DONE SO.

ACCORDINGLY, I HAVE TO ADVISE THAT THERE IS NO AUTHORITY FOR MAKING AN ALLOWANCE TO POSTMASTERS AT OFFICES OF THE THIRD CLASS FOR THE REMOVAL OF ASHES OR FOR CHARGING ACTUAL EXPENSES INCURRED FOR SUCH SERVICE TO THE APPROPRIATION "RENT, LIGHT, FUEL, AND WATER.'