B-57141, MAY 23, 1946, 25 COMP. GEN. 798

B-57141: May 23, 1946

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" UNLESS IT IS SHOWN THAT THE HOUSING WAS CONSTRUCTED WITH FUNDS DERIVED FROM AN APPROPRIATION CLEARLY CONTEMPLATING THE CONSTRUCTION OF RENTAL HOUSING AT THE PARTICULAR STATION OR BASE. OR THAT SUCH HOUSING IS UNDER THE JURISDICTION OF THE NAVY DEPARTMENT UNDER CIRCUMSTANCES CLEARLY TAKING IT OUT OF THE "PUBLIC QUARTERS" EXCEPTION CONTAINED IN SAID ACT. 1946: I HAVE YOUR LETTER OF APRIL 9. LARGE PART OF THIS TEMPORARY HOUSING WILL CONSIST OF MODIFIED QUONSET HUTS ERECTED FROM AREA STOCK. IT IS ANTICIPATED THAT FUNDS WILL BECOME AVAILABLE TO THE NAVY ON JULY 1. IT IS ESTIMATED THAT IF SUCH FUNDS DO BECOME AVAILABLE AT THAT TIME. 1947 AFTER WHICH IT WILL BECOME PROGRESSIVELY AVAILABLE. IT WAS CONSIDERED THAT SUCH DELAY IN PROVIDING HOUSING FOR NAVAL PERSONNEL AND THEIR DEPENDENTS IN THESE AREAS WOULD BE CERTAIN TO HAVE AN ADVERSE EFFECT ON MORALE OF PERSONNEL AND FOR THIS REASON THE TEMPORARY HOUSING PROGRAM WAS AUTHORIZED.

B-57141, MAY 23, 1946, 25 COMP. GEN. 798

HOUSING FOR OCCUPANCY BY NAVAL PERSONNEL AND DEPENDENTS TEMPORARY HOUSING CONSTRUCTED AT ADVANCE NAVAL BASES OR STATIONS MAY NOT BE OCCUPIED BY NAVAL PERSONNEL AND THEIR DEPENDENTS ON A RENTAL BASIS WITHOUT LOSS OF THEIR RENTAL OR MONETARY ALLOWANCE IN LIEU OF QUARTERS, AS PERMITTED BY THE ACT OF JULY 2, 1945, IN CONNECTION WITH THE OCCUPANCY OF CERTAIN HOUSING FACILITIES, OTHER THAN "PUBLIC QUARTERS," UNLESS IT IS SHOWN THAT THE HOUSING WAS CONSTRUCTED WITH FUNDS DERIVED FROM AN APPROPRIATION CLEARLY CONTEMPLATING THE CONSTRUCTION OF RENTAL HOUSING AT THE PARTICULAR STATION OR BASE, OR THAT SUCH HOUSING IS UNDER THE JURISDICTION OF THE NAVY DEPARTMENT UNDER CIRCUMSTANCES CLEARLY TAKING IT OUT OF THE "PUBLIC QUARTERS" EXCEPTION CONTAINED IN SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 23, 1946:

I HAVE YOUR LETTER OF APRIL 9, 1946, AS FOLLOWS:

THE SECRETARY OF THE NAVY HAS AUTHORIZED THE COMMANDER IN CHIEF, U.S. PACIFIC FLEET AND PACIFIC OCEAN AREAS, TO CONSTRUCT TEMPORARY EMERGENCY HOUSING DEEMED BY HIM TO BE ESSENTIAL FOR NAVAL PERSONNEL AND THEIR DEPENDENTS IN PACIFIC OCEAN AREAS AND TO UNDERTAKE THE CONSTRUCTION OF SUCH HOUSING WITHIN THE AVAILABILITY OF MATERIAL AND LABOR ON HAND. LARGE PART OF THIS TEMPORARY HOUSING WILL CONSIST OF MODIFIED QUONSET HUTS ERECTED FROM AREA STOCK.

IT IS ANTICIPATED THAT FUNDS WILL BECOME AVAILABLE TO THE NAVY ON JULY 1, 1946, FOR PERMANENT HOUSING FOR NAVAL PERSONNEL AND THEIR DEPENDENTS IN PACIFIC OCEAN AREAS, BUT IT IS ESTIMATED THAT IF SUCH FUNDS DO BECOME AVAILABLE AT THAT TIME, PERMANENT HOUSING CANNOT BE COMPLETED TO ANY EXTENT PRIOR TO JULY 1, 1947 AFTER WHICH IT WILL BECOME PROGRESSIVELY AVAILABLE. IT WAS CONSIDERED THAT SUCH DELAY IN PROVIDING HOUSING FOR NAVAL PERSONNEL AND THEIR DEPENDENTS IN THESE AREAS WOULD BE CERTAIN TO HAVE AN ADVERSE EFFECT ON MORALE OF PERSONNEL AND FOR THIS REASON THE TEMPORARY HOUSING PROGRAM WAS AUTHORIZED.

YOUR DECISION IS REQUESTED WHETHER NAVAL PERSONNEL WHO OCCUPY THE TEMPORARY HOUSING REFERRED TO ABOVE, WITH THEIR DEPENDENTS, PENDING THE CONSTRUCTION OF PERMANENT HOUSING, WILL FORFEIT THEIR RENTAL ALLOWANCES, OR WHETHER UNDER THE PROVISIONS OF PUBLIC LAW 120, APPROVED 2 JULY 1945, SUCH TEMPORARY EMERGENCY HOUSING MAY BE OCCUPIED ON A RENTAL BASIS WITHOUT LOSS OF RENTAL ALLOWANCE.

AN ADVISORY OPINION OF THE JUDGE ADVOCATE GENERAL TO THE CHIEF OF NAVAL OPERATIONS ON THE SUBJECT IS ENCLOSED.

THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN THE MATTER ARE CONTAINED IN AN ADVISORY OPINION TO THE CHIEF OF NAVAL OPERATIONS DATED FEBRUARY 4, 1946, IN PERTINENT PART AS FOLLOWS:

6. IN ORDER TO DETERMINE WHETHER HOUSING FACILITIES OF THE TYPE REFERRED TO IN ENCLOSURES WITH REFERENCE (A) WERE CONTEMPLATED BY THE ACT OF 2 JULY, 1945, SUPRA, FOR OCCUPANCY ON A RENTAL BASIS WITHOUT LOSS OF RENTAL ALLOWANCE, A BRIEF HISTORY OF THIS LEGISLATION AND THE CIRCUMSTANCES LEADING UP TO ITS ENACTMENT IS NECESSARY.

7. AT THE BEGINNING OF THE PRESENT NATIONAL EMERGENCY, A NUMBER OF LAWS WERE ENACTED PERMITTING VARIOUS AGENCIES OF THE GOVERNMENT, INCLUDING THE NAVY, TO ERECT DEFENSE HOUSING FACILITIES. (SEE ACT OF 28 JUNE 1940 (54 STAT. 681; 42 U.S.C. 1501, ET SEQ.); SECTION 201 OF TITLE II OF ACT OF 9 SEPTEMBER 1940 (54 STAT. 872, 883; 41 U.S.C., NOTE PRECEDING SEC. 1); ACT OF 14 OCT 1940, AS AMENDED (42 U.S.C. SUPP IV 1521, ET SEQ.).) EXECUTIVE ORDER 9070 OF 24 FEBRUARY 1942 (7 F.R. 1529; 50 ( APPENDIX) U.S.C. SUPP IV, 601) CONSOLIDATED ALL HOUSING AGENCIES AND FUNCTIONS TO THE NATIONAL HOUSING AGENCY. THIS INCLUDED ALL FUNCTIONS, POWERS AND DUTIES RELATING TO DEFENSE HOUSING OF THE WAR DEPARTMENT AND THE NAVY DEPARTMENT WITH RESPECT TO HOUSING UNITES FOR PERSONS WITH FAMILIES ENGAGED IN NATIONAL DEFENSE ACTIVITIES (EXCEPT HOUSING UNITS LOCATED ON MILITARY OR NAVAL RESERVATIONS, POSTS, OR BASES) UNDER TITLE IV OF THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1941 ( TITLE II, SEC. 201 OF THE ACT OF 9 SEPTEMBER 1940, SUPRA).

8. SECTION 201 OF TITLE II OF THE ACT OF 9 SEPTEMBER 1940, AMONG OTHER THINGS, AUTHORIZED THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY TO RENT DEFENSE HOUSING UNITS TO ENLISTED PERSONNEL. THIS PROVISION OF LAW WAS AS FOLLOWS:

"TO THE PRESIDENT FOR ALLOCATION TO THE WAR DEPARTMENT AND THE NAVY DEPARTMENT FOR THE ACQUISITION OF NECESSARY LAND AND THE CONSTRUCTION OF HOUSING UNITS, INCLUDING NECESSARY UTILITIES, ROADS, WALKS, AND ACCESSORIES, AT LOCATIONS ON OR NEAR MILITARY OR NAVAL ESTABLISHMENTS, NOW IN EXISTENCE OR TO BE BUILT, OR NEAR PRIVATELY OWNED INDUSTRIAL PLANTS ENGAGED IN MILITARY OR NAVAL ACTIVITIES, WHICH FOR THE PURPOSES OF THIS ACT, SHALL BE CONSTRUCTED TO INCLUDE ACTIVITIES OF THE MARITIME COMMISSION, WHERE THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE CHAIRMAN OF THE MARITIME COMMISSION SHALL CERTIFY THAT SUCH HOUSING IS IMPORTANT FOR PURPOSES UNDER THEIR RESPECTIVE JURISDICTION AND NECESSARY TO THE NATIONAL DEFENSE PROGRAM * * * PROVIDED FURTHER, THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AT THEIR DISCRETION, ARE HEREBY AUTHORIZED TO RENT SUCH HOUSING UNITS, UPON COMPLETION, TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS WITH FAMILIES, TO FIELD EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS WITH FAMILIES, AND TO WORKERS WITH FAMILIES WHO ARE ENGAGED, OR TO BE ENGAGED, IN INDUSTRIES ESSENTIAL TO THE MILITARY AND NAVAL NATIONAL DEFENSE PROGRAMS, INCLUDING WORK ON SHIPS UNDER THE CONTROL OF THE MARITIME COMMISSION. * * * "

THE ACT OF 26 OCTOBER 1942 (56 STAT. 988) AMENDED THE PROVISIONS OF LAW QUOTED IMMEDIATELY ABOVE, SO THAT THE AUTHORITY TO RENT HOUSING UNITS TO ENLISTED PERSONNEL, WAS EXTENDED TO INCLUDE OFFICERS OF THE ARMY AND MARINE CORPS NOT ABOVE THE GRADE OF CAPTAIN AND OFFICERS OF THE NAVY AND COAST GUARD NOT ABOVE THE GRADE OF LIEUTENANT, WITH FAMILIES, ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS OR BASES.

9. THE ABOVE PROVISIONS OF LAW ARE REFERRED TO IN ORDER TO SHOW THAT IT WAS THE INTENTION OF CONGRESS TO PERMIT CERTAIN HOUSING FACILITIES TO BE ERECTED BY THE NAVY OR OTHER GOVERNMENTAL AGENCIES AT LOCATIONS AT OR NEAR NAVAL ESTABLISHMENTS OR ELSEWHERE FOR OCCUPANCY BY ENLISTED PERSONNEL AND CERTAIN CLASSES OF OFFICERS, ON A RENTAL BASIS WITHOUT LOSS OF RENTAL ALLOWANCE.

10. THE ACT OF 2 JULY 1945, QUOTED ABOVE, WAS MERELY AN EXTENSION OF THE PRIOR AUTHORIZATION RELATIVE TO RENTAL OF GOVERNMENT-OWNED HOUSING FACILITIES, TO PERMIT ANY OFFICER OF THE SERVICES THEREIN SPECIFIED, REGARDLESS OF RANK, TO OCCUPY, WITH HIS DEPENDENTS, ANY GOVERNMENT OWNED HOUSING FACILITIES ON A RENTAL BASIS WITHOUT LOSS OF RENTAL ALLOWANCE, PROVIDED SUCH FACILITIES HAD NOT BEEN CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHANGE BY THE PERSONNEL OF THE SERVICES NAMED THEREIN.

11. IT IS THEREFORE, THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT IT WOULD BE WITHIN BOTH THE LETTER AND THE SPIRIT OF THE AFORESAID ACT OF 2 JULY 1945 TO CONSTRUCTION THE QUONSET HUTS IN ADVANCE BASE AREAS AS PROPOSED IN THE CORRESPONDENCE FORWARDED BY REFERENCE (A), NOT AS "PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHANGE" OF NAVAL PERSONNEL, BUT FOR OCCUPANCY ON A RENTAL BASIS AND THAT THE NAVAL PERSONNEL TO WHOM THEY ARE RENTED WOULD NOT LOSE THEIR RENTAL ALLOWANCE BY REASON OF SUCH OCCUPANCY.

PUBLIC LAW 120, APPROVED JULY 2, 1945, 59 STAT. 316, READS AS FOLLOWS:

THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW (INCLUDING ANY LAWS RESTRICTING THE OCCUPANCY OF HOUSING FACILITIES UNDER THE JURISDICTION OF GOVERNMENT DEPARTMENTS, OR AGENCIES BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD ABOVE SPECIFIED RANKS, OR BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE), PERSONNEL OF ANY OF THE SERVICES MENTIONED HEREIN AND THEIR DEPENDENTS MAY BE ACCEPTED AS TENANTS IN AND MAY OCCUPY ON A RENTAL BASIS ANY SUCH HOUSING FACILITIES, OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS IF ANY, AND SUCH PERSONNEL SHALL NOT BE DEPRIVED BY REASON OF SUCH OCCUPANCY OF MONEY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED FOR RENTAL OF QUARTERS. (ITALICS SUPPLIED.)

THE OBVIOUS PURPOSE OF THE STATUTE ABOVE QUOTED IS TO PERMIT MILITARY AND NAVAL PERSONNEL AND THEIR DEPENDENTS TO OCCUPY ON A RENTAL BASIS TEMPORARY OR EMERGENCY HOUSING FACILITIES, INCLUDING THOSE UNDER THE JURISDICTION OF THE NAVY DEPARTMENT, OTHER THAN "PUBLIC QUARTERS" CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO OR OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS IN LIEU OF QUARTERS. HOWEVER, ASIDE FROM SUCH PROVISIONS IN THE SAID ACT OF JULY 2, 1945, AND CERTAIN OTHER TEMPORARY WARTIME STATUTES PERMITTING NAVAL PERSONNEL AND THEIR DEPENDENTS TO OCCUPY ON A RENTAL BASIS CERTAIN TEMPORARY OR EMERGENCY HOUSING FACILITIES UNDER THE JURISDICTION OF THE GOVERNMENT, IT HAS ALWAYS BEEN THE PRACTICE TO PROVIDE QUARTERS FOR PERSONNEL OF THE ARMED FORCES WITHOUT CHARGE AS AN ESSENTIAL PART OF THEIR MILITARY LIFE. IN JONES V. UNITED STATES, 60 C.1CLS. 552, 568, THE COURT OF CLAIMS, IN CONCLUDING THAT QUARTERS IN KIND FURNISHED OFFICERS OF THE ARMY, OR THE MONEY ALLOWANCE PAID IN LIEU OF QUARTERS WHERE THEY ARE NOT FURNISHED IN KIND, ARE NECESSARY ALLOWANCES AND NOT COMPENSATION/WITHIN THE MEANING OF THE INCOME TAX LAWS, AND AS SUCH ARE NOT SUBJECT TO INCOME TAX, STATED WITH RESPECT TO SUCH PRACTICE THAT:

AS LONG AS WE HAVE HAD AN ARMY, OFFICERS OF THE ARMY HAVE NOT ONLY BEEN PERMITTED BUT COMPELLED TO OCCUPY PUBLIC QUARTERS WHEN THE SAME WERE AVAILABLE. THIS PRACTICE, CUSTOM, AND REQUIREMENT HAS PREVAILED FOR SO LONG A TIME, BOTH IN THIS COUNTRY AND ABROAD, THAT IT WOULD BE DIFFICULT TO ESTABLISH THE DATE OF ITS ORIGIN. THE VERY FIRST ARMY REGULATIONS ISSUED IN THE UNITED STATES, AFTER THE ORGANIZATION OF THE ARMY, MADE PROVISION FOR THIS IDENTICAL THING, AND WITHOUT INTERRUPTION AS TO ESSENTIAL FEATURES IT HAS CONTINUED FROM THAT DAY TO THIS. NO QUESTION AS TO THE DISCONTINUANCE OF THE REQUIREMENT HAS EVER BEEN THE SUBJECT OF AGITATION, AND CONGRESS WITHOUT HESITATION HAS MADE AND CONTINUES TO MAKE AVAILABLE EACH YEAR A SUM OF MONEY SUFFICIENT TO PAY COMMUTATION OF QUARTERS AND PROVIDE PUBLIC QUARTERS FOR OFFICERS AND ENLISTED MEN OF THE ARMY AS WELL. IN THE EARLIER PERIODS OF OUR HISTORY THE ALLOWANCE OF QUARTERS WAS PROVIDED FOR IN ARMY REGULATIONS. OFFICERS WERE ASSIGNED A FIXED NUMBER OF ROOMS, ACCORDING TO THEIR RANK, AND IF PUBLIC QUARTERS WERE NOT AVAILABLE AT THE POST, FORT, OR STATION, SUITABLE QUARTERS WERE RENTED OR, AS THE REGULATIONS STATED,"HIRED" BY THE QUARTERMASTER'S DEPARTMENT AND THE EXPENSE INCURRED PAID OUT OF THE GENERAL APPROPRIATION FOR THE ARMY. SUBSEQUENTLY IT DEVELOPED THAT NOT INFREQUENTLY THERE WAS NO ONE IN AUTHORITY AT THE POST OR STATION TO HIRE QUARTERS WHEN THE SAME WERE NOT AVAILABLE, AND TO OBVIATE THIS DIFFICULTY THE REGULATIONS AUTHORIZED THE OFFICER HIMSELF TO PROCURE QUARTERS AND RECEIVE IN RETURN "A REASONABLE COMMUTATION IN MONEY.' WITHOUT GOING FURTHER INTO DETAIL, IT IS SUFFICIENT TO OBSERVE THAT CONGRESS HAS UNINTERRUPTEDLY RECOGNIZED THE RIGHT OF OFFICERS TO PUBLIC QUARTERS WHEN AVAILABLE AT HIS POST OR STATION AND, WHEN NOT SO AVAILABLE, HIS RIGHT TO COMMUTATION OF QUARTERS IN MONEY. * * *

THE ORIGIN AND CONTINUANCE OF THE ARMY CUSTOM, AS WELL AS THE LAW OF THE ARMY ITSELF, INDICATE BEYOND A DOUBT THAT PUBLIC QUARTERS FOR THE HOUSING OF ENLISTED MEN AND OFFICERS IS AS MUCH A MILITARY NECESSITY AS THE PROCUREMENT OF IMPLEMENTS OF WARFARE OR THE TRAINING OF TROOPS. CONGRESS HAS APPROPRIATED VAST SUMS OF MONEY TO ESTABLISH PERMANENT MILITARY POSTS AND STATIONS THROUGHOUT THE COUNTRY, AND IN NOT ONE BUT ALL ARMY APPROPRIATIONS PROVISION IS OF COURSE MADE FOR THE ERECTION OF BARRACKS, OFFICERS' QUARTERS, AND EVERY OTHER NECESSARY BUILDING TO MAINTAIN, HOUSE, AND PROPERLY FOR THE ENLISTED MEN AND OFFICERS OF THE POST OR STATION.

IN THAT CONNECTION, IT MAY BE NOTED THAT ANY PRACTICE OF CONSTRUCTING QUARTERS TO BE RENTED TO ARMY OR NAVY OFFICERS AT THEIR STATIONS RESULTS IN A GRATUITY OR ADDITIONAL COMPENSATION BEING PAID THEM TO THE EXTENT OF THE DIFFERENCE BETWEEN THE AMOUNT, NOMINAL OR OTHERWISE, WHICH THEY MAY BE REQUIRED TO PAY AS RENT AND THE AMOUNT PAID TO THEM AS RENTAL ALLOWANCE BECAUSE FREE QUARTERS ARE NOT FURNISHED, AND THAT THE RECEIPT OF SUCH GRATUITY OR ADDITIONAL COMPENSATION CUTS SQUARELY ACROSS THE THEORY AND CONCEPT ON WHICH THE COURT OF CLAIMS HELD THAT RENTAL ALLOWANCE PAYMENTS ARE NOT SUBJECT TO INCOME TAXES. HENCE, IT WOULD APPEAR THAT ANY SUBSTANTIAL EXTENSION OF THE PRACTICE OF RENTING GOVERNMENT-OWNED QUARTERS TO OFFICERS IN CONJUNCTION WITH PAYMENTS TO THEM OF RENTAL ALLOWANCE MIGHT WELL REQUIRE, IN THE INTERESTS OF THE GOVERNMENT, A REEXAMINATION BY THE COURTS OF THE BASIS IN THE JONES CASE FOR INCOME TAX EXEMPTION FOR MILITARY PERSONNEL ON THE VALUE OF SUCH ALLOWANCES, AS CONTRASTED WITH THE POSITION OF CIVILIAN PERSONNEL OF THE GOVERNMENT FURNISHED QUARTERS AS A PART OF THEIR COMPENSATION.

HOWEVER THAT MAY BE, IN VIEW OF THE IMMEMORIAL PRACTICE OF PROVIDING QUARTERS FOR PERSONNEL OF THE ARMED FORCES, WITHOUT CHARGE, AS AN ESSENTIAL PART OF THEIR MILITARY LIFE, IT IS NOT TO BE ASSUMED THAT APPROPRIATIONS DIRECTLY OR INDIRECTLY MADE AVAILABLE FOR THE CONSTRUCTION OF QUARTERS OR HOUSING FOR NAVAL PERSONNEL AT NAVAL STATIONS OR BASES WERE INTENDED BY THE CONGRESS TO BE USED FOR THE CONSTRUCTION OF QUARTERS TO BE OCCUPIED BY SUCH PERSONNEL AND THEIR DEPENDENTS ON A RENTAL BASIS. ON THE CONTRARY, IT MUST BE ASSUMED THAT SUCH APPROPRIATIONS FOR THE CONSTRUCTION OF QUARTERS PRIMARILY WERE MADE AVAILABLE FOR THE CONSTRUCTION OF "PUBLIC QUARTERS" TO BE OCCUPIED BY SUCH PERSONNEL WITHOUT CHARGE, WITHIN THE EXCEPTION CONTAINED IN THE ACT OF JULY 2, 1945, SUPRA, IN THE ABSENCE OF A DEFINITE SHOWING IN EACH CASE THAT THE PARTICULAR QUARTERS WERE CONSTRUCTED UNDER APPROPRIATIONS CLEARLY CONTEMPLATING THE CONSTRUCTION OF RENTAL HOUSING AT THE PARTICULAR NAVAL STATION OR BASE, OR THAT SUCH HOUSING CAME UNDER THE JURISDICTION OF THE NAVY DEPARTMENT UNDER CIRCUMSTANCES OTHERWISE CLEARLY TAKING THEM OUT OF THE EXCEPTION IN THE SAID ACT OF JULY 2, 1945. THE CURRENT NAVAL APPROPRIATION ACT, PUBLIC LAW 62, APPROVED MAY 29, 1945, 59 STAT. 211, UNDER THE HEADING "1PUBLIC WORKS, BUREAU OF YARDS AND DOCKS" PROVIDES FUNDS FOR THE CONSTRUCTION OF TEMPORARY OR EMERGENCY BUILDINGS AND FACILITIES NEEDED BY THE NAVY AND SPECIFICALLY APPROVED BY THE SECRETARY OF THE NAVY, AND IT FURTHER PROVIDES THAT NO PART OF SUCH APPROPRIATION SHALL BE USED FOR THE CONSTRUCTION OF PERMANENT OR TEMPORARY "QUARTERS" EXCEEDING A SPECIFIED AMOUNT PER UNIT. WHILE THE LEGISLATIVE HISTORY OF THE SAID APPROPRIATION ACT INDICATES THAT THE NAVY CONTEMPLATED THE POSSIBLE CONSTRUCTION OF ADDITIONAL QUONSET OR XHOMOJA HUTS FOR THE TEMPORARY ACCOMMODATION ON A RENTAL BASIS OF TRANSIENT NAVAL PERSONNEL AND THEIR VISITING DEPENDENTS UPON THE RETURN OF SUCH PERSONNEL FROM SEA DUTY OR OVERSEAS ASSIGNMENT AND WHILE AWAITING REASSIGNMENT, ETC., AND POSSIBLY, ALSO, SOME EMERGENCY LOW COST "DEFENSE HOUSING" UNITS, FOLLOWING THE PATTERN OF THE SO-CALLED LANHAM ACT DEFENSE HOUSING PROJECTS TO BE AVAILABLE FOR OCCUPANCY ON A RENTAL BASIS BY NAVAL PERSONNEL ASSIGNED TO DUTY IN CONGESTED LOCALITIES, IT IS AT LEAST DOUBTFUL THAT THE CONGRESS INTENDED THAT THE SAID APPROPRIATION SHOULD BE AVAILABLE FOR THE CONSTRUCTION OF TEMPORARY QUARTERS OR HOUSING AT ADVANCE BASES AND STATIONS TO BE OCCUPIED BY NAVAL PERSONNEL AND THEIR DEPENDENTS ON A RENTAL BASIS, AS NOW PROPOSED, ESPECIALLY IN VIEW OF THE SPECIFIC LIMITATIONS CONTAINED IN SUCH APPROPRIATION ACT ON THE UNIT COST OF TEMPORARY "QUARTERS" FOR PERSONNEL AT SUCH STATIONS AND BASES, WHICH UNDOUBTEDLY CONTEMPLATED THE CONSTRUCTION OF TEMPORARY "PUBLIC QUARTERS" FOR OCCUPANCY WITHOUT CHARGE BY NAVAL PERSONNEL AND THEIR DEPENDENTS, WITHIN THE EXCEPTION IN THE ACT OF JULY 2, 1945, AND NOT THE CONSTRUCTION OF "DEFENSE HOUSING" TO BE RENTED OUT TO NAVAL PERSONNEL ON DUTY AT SUCH STATIONS.

ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, I HAVE TO ADVISE THAT THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT NAVAL PERSONNEL AND THEIR DEPENDENTS MAY OCCUPY THE TEMPORARY QUARTERS HERE INVOLVED ON A RENTAL BASIS AND CONTINUE IN RECEIPT OF THEIR RENTAL OR MONETARY ALLOWANCE IN LIEU OF QUARTERS, IN LIEU OF QUARTERS, IN THE ABSENCE OF A CLEAR SHOWING IN EACH CASE THAT THE QUARTERS OR HOUSING WERE CONSTRUCTED WITH FUNDS DERIVED FROM APPROPRIATIONS CLEARLY CONTEMPLATING THE CONSTRUCTION OF RENTAL HOUSING AT THE PARTICULAR STATION OR BASE, OR THAT SUCH HOUSING IS UNDER THE JURISDICTION OF THE NAVY DEPARTMENT UNDER CIRCUMSTANCE CLEARLY TAKING IT OUT OF THE EXCEPTION IN THE ACT OF JULY 2, 1945.