B-58950, AUGUST 19, 1946, 26 COMP. GEN. 122

B-58950: Aug 19, 1946

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COMPENSATION - DOUBLE - RETIRED OFFICERS EMPLOYED BY NAVY OFFICERS' MESSES A PERSON EMPLOYED BY A NAVY OFFICERS' MESS ASHORE (OPEN OR CLOSED) IS TO BE REGARDED AS "HOLDING A CIVILIAN OFFICE OR POSITION * * * UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30. - RECEIVING RETIRED PAY AND ALSO CIVILIAN COMPENSATION AS A NAVY OFFICERS' MESS EMPLOYEE EITHER FROM APPROPRIATED FUNDS OR NONAPPROPRIATED MESS FUNDS IS SUBJECT TO THE RESTRICTIONS OF THE STATUTE. IS APPLICABLE IN DETERMINING THE PAY STATUS OF RETIRED OFFICERS EMPLOYED IN CIVILIAN CAPACITIES BY COMMISSIONED OFFICERS' MESSES ASHORE (OPEN OR CLOSED). IN CASES WHERE THE CIVILIAN COMPENSATION IS PAID (1) FROM APPROPRIATED FUNDS.

B-58950, AUGUST 19, 1946, 26 COMP. GEN. 122

COMPENSATION - DOUBLE - RETIRED OFFICERS EMPLOYED BY NAVY OFFICERS' MESSES A PERSON EMPLOYED BY A NAVY OFFICERS' MESS ASHORE (OPEN OR CLOSED) IS TO BE REGARDED AS "HOLDING A CIVILIAN OFFICE OR POSITION * * * UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION, AND, THEREFORE, A RETIRED OFFICER--- NOT OTHERWISE EXCEPTED FROM OPERATION OF THE STATUTE--- RECEIVING RETIRED PAY AND ALSO CIVILIAN COMPENSATION AS A NAVY OFFICERS' MESS EMPLOYEE EITHER FROM APPROPRIATED FUNDS OR NONAPPROPRIATED MESS FUNDS IS SUBJECT TO THE RESTRICTIONS OF THE STATUTE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 19, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 27, 1946, REQUESTING DECISION AS TO WHETHER THE RESTRICTION IMPOSED ON TOTAL COMPENSATION BY SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761, 5 U.S.C. 59A, IS APPLICABLE IN DETERMINING THE PAY STATUS OF RETIRED OFFICERS EMPLOYED IN CIVILIAN CAPACITIES BY COMMISSIONED OFFICERS' MESSES ASHORE (OPEN OR CLOSED), OPERATED UNDER REGULATIONS ISSUED BY THE NAVY DEPARTMENT, IN CASES WHERE THE CIVILIAN COMPENSATION IS PAID (1) FROM APPROPRIATED FUNDS, AND (2) FROM UNAPPROPRIATED MESS FUNDS.

THE SAID SECTION 212, AS AMENDED, IS AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER, IS A LETTER DATED NOVEMBER 29, 1945, ADDRESSED TO YOU BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHICH REFERS TO SEVERAL DECISIONS OF THIS OFFICE INVOLVING THE STATUTORY PROVISIONS QUOTED ABOVE, AND WHICH REQUESTS THAT, IN VIEW OF THESE DECISIONS, THE QUESTIONS STATED IN PARAGRAPH 1, ABOVE, BE PRESENTED TO THIS OFFICE. THE DECISIONS REFERRED TO ARE: A 91513, DATED MARCH 29, 1938 (17 COMP. GEN. 786); A-91513, DATED AUGUST 12, 1939 (19 COMP. GEN. 191); B-10668, DATED AUGUST 2, 1940; AND B 48550, DATED APRIL 21, 1945 (24 COMP. GEN. 771).

THE FIRST OF THESE DECISIONS (17 COMP. GEN. 786), ADDRESSED TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, HELD, IN EFFECT, THAT THE MIDSHIPMEN'S LAUNDRY FUND, UNITED STATES NAVAL ACADEMY, CREATED BY CHARGES OR DEDUCTIONS FROM THE PAY AND/OR ALLOWANCES OF MIDSHIPMEN USING THE LAUNDRY SERVICE, IS EQUIVALENT TO AN APPROPRIATED FUND AND THAT, THEREFORE, THE POSITIONS AND EMPLOYEES IN THE NAVAL ACADEMY LAUNDRY PAID FROM SUCH FUND ARE GOVERNMENT POSITIONS AND EMPLOYEES (SEE, ALSO, DECISION OF THE SAME NUMBER AND DATE TO THE SECRETARY OF THE NAVY).

THE DECISION OF AUGUST 12, 1939 (19 COMP. GEN. 191), SUPRA, DEALT WITH THE CASE OF A PARTICULAR EMPLOYEE OF THE NAVAL ACADEMY LAUNDRY AND, WHILE IT AMPLIFIED THE DECISION IN 17 COMP. GEN. 786, IT DID NOT CHANGE THE BASIC HOLDING THEREIN AND THAT HOLDING WAS CONCURRED IN BY THE COURT OF CLAIMS IN THE CASE OF SULLIVAN V. UNITED STATES, DECIDED NOVEMBER 12, 1940, 92 C.1CLS. 154.

IN THE DECISION OF AUGUST 2, 1940, B-10668, SUPRA, IT WAS HELD THAT AN ARMY OFFICER RETIRED FOR OTHER THAN DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES DRAWING RETIRED PAY AND, ALSO, CIVILIAN COMPENSATION AS AN EMPLOYEE OF AN ARMY POST EXCHANGE, IS SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SINCE POST EXCHANGES ARE INSTRUMENTALITIES OF THE GOVERNMENT AND A CIVILIAN EMPLOYEE OF A POST EXCHANGE IS A "PERSON HOLDING A CIVILIAN OFFICE OR POSITION * * * UNDER THE UNITED STATES GOVERNMENT.'

IN THE DECISION OF APRIL 21, 1945 (24 COMP. GEN. 771), SUPRA, WHICH ADHERED TO THE HOLDING IN THE DECISION OF AUGUST 2, 1940, IT IS STATED- -

SUBSEQUENT DEVELOPMENTS AFFECTING THE SUBJECT * * * ARE REVIEWED BRIEFLY, AS FOLLOWS:

(1) IN 1940, AN EMPLOYEE OF THE NAVAL ACADEMY LAUNDRY WAS HELD SUBJECT TO THE RESTRICTION OF SECTION 212 UPON PERSONS HOLDING A POSITION "UNDER THE UNITED STATES GOVERNMENT," NOTWITHSTANDING THE FUND FROM WHICH HE WAS PAID WAS DERIVED FROM THE PRICES COLLECTED FROM INDIVIDUALS FOR SERVICES RENDERED, THE FUND WAS NOT ACCOUNTED FOR TO THIS OFFICE, AND THE PLAINTIFF WAS NOT SUBJECT TO THE CIVIL SERVICE RETIREMENT OR COMPENSATION ACTS. SULLIVAN V. UNITED STATES, 92 C.1CLS. 154.

(2) ACCORDING TO THE DIGEST, OPINIONS OF THE JUDGE ADVOCATE GENERAL (1940), POST EXCHANGES ARE GOVERNMENT AGENCIES OR INSTRUMENTALITIES, EXPRESSLY RECOGNIZED BY THE CONGRESS, DESIGNED TO CARRY OUT A GOVERNMENT PURPOSE, AND THEIR EMPLOYEES ARE SUBJECT TO THE ARTICLES OF WAR AND TO TRIAL BY COURT MARTIAL (PP. 2, 167). THE 1941 EDITION OF ARMY REGULATIONS 210-65 REPORTS (A) A FURTHER OPINION OF THE SAME OFFICER THAT AN EXCHANGE EXISTS AT THE PLEASURE OF THE GOVERNMENT, WHILE ITS PROPERTY IS OWNED BY THE OFFICERS OF THE ARMY (IN THEIR OFFICIAL CAPACITY) COMPRISING THE EXCHANGE COUNCIL AND (B) A RULING OF THE COMMISSIONER OF INTERNAL REVENUE EXEMPTING EXCHANGES FROM THE SOCIAL SECURITY TAX ON THE BASIS THAT THEY ARE GOVERNMENT INSTRUMENTALITIES "WHOLLY OWNED BY THE UNITED STATES" (PARS. 7 (B) AND 43).

(3) IN 1941, TWO DISTRICT COURTS HELD EXCHANGES TO BE GOVERNMENT INSTRUMENTALITIES (AS USED IN A STATUTE REGULATING STATE TAXATION IN FEDERAL AREAS), THE ONE UPON THE VIEW THAT THE EXCHANGE IS NOT A PURELY VOLUNTARY ORGANIZATION, BUT AN INTEGRAL PART OF AN ARMY ORGANIZATION,"A SUBORDINATE OR AUXILIARY AGENCY," AND THE OTHER CITING THE ANNUAL APPROPRIATIONS (SINCE 1903) FOR POST EXCHANGE BUILDINGS AND EQUIPMENT AS EVIDENCE OF CONGRESSIONAL VALIDATION OF THE ADMINISTRATIVE ACTION SETTING UP THE EXCHANGES. FALLS CITY BREWING CO. V. REEVES ( D.C., KY.), 40 F.1SUPP. 35; UNITED STATES V. QUERY ( D.C., S.C.), 37 F.1SUPP. 972, AFFD. ( C.C.A. 4) 121 F.2D 631; QUERY V. UNITED STATES, 316 U.S. 486.

(4) IN 1942, THE SUPREME COURT, CONSIDERING THE EFFECT OF A STATE TAX STATUTE EXEMPTING SALES TO THE UNITED STATES OR ANY DEPARTMENT THEREOF, REVIEWED THE BACKGROUND OF THE ORGANIZATION OF POST EXCHANGES UNDER WAR DEPARTMENT REGULATIONS OF 1895, NOTED THAT THE AUTHORITY TO MAINTAIN EXCHANGES IS IN THE COMMANDING OFFICER, THEIR SUPERVISION IS UNDER A COUNCIL OF OFFICERS, GOVERNMENT OFFICERS ARE RESPONSIBLE FOR EXCHANGE FUNDS, AND PROFITS FROM THE OPERATIONS DO NOT GO TO INDIVIDUALS, AND CONCLUDED THAT "POST EXCHANGES AS NOW OPERATED ARE ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL FOR THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS. THEY ARE INTEGRAL PARTS OF THE WAR DEPARTMENT, SHARE IN FULFILLING THE DUTIES ENTRUSTED TO IT, AND PARTAKE OF WHATEVER IMMUNITIES IT MAY HAVE UNDER THE CONSTITUTION AND FEDERAL STATUTES.' STANDARD OIL CO. V. JOHNSON, 316 U.S. 481.

(5) IN 1943, THE SUPREME COURT OF ALABAMA DENIED A CLAIM FOR WORKMEN'S COMPENSATION FILED AGAINST A POST EXCHANGE AND ITS INSURANCE CARRIER UNDER STATE LAW. THE COURT OVERRULED THE PLAINTIFF'S CLAIM THAT THE DECEDENT WAS NOT AN EMPLOYEE OF THE UNITED STATES (BASED UPON A CERTIFICATE OF THE UNITED STATES EMPLOYEE'S COMPENSATION COMMISSION TO THAT EFFECT), SAYING,"IF DECEDENT WAS AN EMPLOYEE OF THE POST EXCHANGE, AND THE POST EXCHANGE IS AN INTEGRAL PART OF THE WAR DEPARTMENT, IT IS DIFFICULT TO UNDERSTAND WHY HE SHOULD NOT BE CONSIDERED A CIVIL EMPLOYEE OF THE UNITED STATES WHETHER APPEARING UPON THE PAYROLL OR NOT.' HUMPHREY V. POSS, 15 SO.2D 732.

(6) LATER REVISIONS OF THE ARMY REGULATIONS TEND TO CONFIRM THE FOREGOING. IN THE 1943 EDITION OF AR 210-65, THE EXCHANGE WAS DEFINED AS "A MILITARY ORGANIZATION ESTABLISHED AS A PART OF THE ARMY" AND "OPERATED BY CIVILIAN EMPLOYEES, WITH ARMY OFFICERS IN EXECUTIVE CONTROL.' (PARS. 2 AND 15-A (1) ). THE CURRENT (1944) REGULATION DEFINES THE EXCHANGE AS AN ADJUNCT OF THE ARMY, REQUIRES THAT ANY DIVIDENDS BE TURNED OVER TO THE POST TRUST FUNDS, NOTES THAT, AS GOVERNMENT INSTRUMENTALITIES RECOGNIZED (AND REGULATED--- SEE 58 STAT. 593) BY CONGRESS IN THE ANNUAL APPROPRIATION ACTS, THEY ARE EXEMPT FROM FEDERAL INCOME, SOCIAL SECURITY, AND EXCISE TAXES, PROVIDES THAT THEIR PROFITS SHALL BE USED FOR THE PROMOTION OF THE PHYSICAL AND SPIRITUAL WELFARE OF MILITARY PERSONNEL (IN TERMS COMPARABLE TO THOSE OF THE ANNUAL APPROPRIATION ITEM FOR " WELFARE OF ENLISTED MEN"), THAT GOVERNMENT-OWNED QUARTERS AND CERTAIN UTILITIES MAY BE FURNISHED WITHOUT CHARGE, GOVERNMENT FINANCING IS AVAILABLE, AND THAT, UPON LIQUIDATION, THE BALANCES ARE PAID NOT TO INDIVIDUALS BUT TO THE ARMY EXCHANGE FUND FOR DISPOSAL ACCORDING TO WAR DEPARTMENT POLICY. AR 210 65, PARS. 2, 15, 34, 3, 9, 6 AND 7.

IN COMPARING NAVY OFFICERS' MESSES ASHORE WITH THE NAVAL ACADEMY LAUNDRY (AS IT WAS PRIOR TO THE ACT OF AUGUST 5, 1939, 53 STAT. 1210, WHICH LEGISLATIVELY FIXED THE STATUS OF ITS FUNDS AND EMPLOYEES) AND WITH ARMY POST EXCHANGES, FOR THE PURPOSES OF YOUR PRESENT QUESTIONS, A CONSIDERATION OF THE PROVISIONS IN THE ANNUAL NAVAL APPROPRIATION ACTS AND THE REGULATIONS OF THE NAVY DEPARTMENT, AND THE DEVELOPMENT OF THESE PROVISIONS, IS APPROPRIATE.

IN DECISION OF THIS OFFICE DATED AUGUST 15, 1933, 13 COMP. GEN. 49, IT WAS HELD THAT (QUOTING FROM THE SYLLABUS):

THE PROVISION IN THE ACT APPROVED MARCH 3, 1933, 47 STAT. 1530, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1934,"* * * THAT NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY, ALLOWANCES, OR OTHER EXPENSES OF ANY ENLISTED MAN OR CIVIL EMPLOYEE PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY A HOUSEHOLD SERVANT, * * * " APPLIES TO ENLISTED MEN AND CIVILIANS DETAILED TO SERVE IN AN OFFICERS' MESS SET UP AND OPERATED ON SHORE, NOTWITHSTANDING THE OFFICERS COMPRISING THE MESS MAY BE ATTACHED TO VESSELS AND TECHNICALLY ON SEA DUTY.

IN THAT DECISION IT WAS STATED--- "OFFICERS' MESSES ON SHORE ARE VOLUNTARY AND THERE IS NO LAW OR REGULATION WHICH RECOGNIZES THEM AND, THEREFORE, NO AUTHORITY TO DETAIL ENLISTED MEN TO PREPARE AND SERVE FOOD TO THE OFFICERS THEREOF," AND THERE WAS QUOTED THE FOLLOWING LANGUAGE FROM THE DECISION OF THE COURT OF CLAIMS IN WILLIAMS V. UNITED STATES, 44 C.1CLS. 175.

* * * WHATEVER PRACTICE MAY HAVE GROWN UP RESPECTING THE DETAIL OF ENLISTED MEN ON SHIPBOARD TO PREPARE AND SERVE FOOD TO THE OFFICERS THEREOF CAN HAVE NO APPLICATION TO OFFICERS' MESS ON SHORE, NOR IS THERE ANY LAW AUTHORIZING THE REGULATION OF OFFICERS' MESS ON SHORE. OFFICERS ON SHORE ARE AT LIBERTY TO GET THEIR MEALS WHEN AND HOW THEY PLEASE, AND IF THEY FOR ECONOMICAL REASONS OR OTHERWISE UNITE IN FORMING A MESS ON SHORE THAT IS THEIR OWN CONCERN AND NO REGULATION RESPECTING IT OTHER THAN THAT OF THEIR OWN MAKING IS REQUIRED, AND MEMBERSHIP THEREIN IS ENTIRELY OPTIONAL WITH THEM.

THE STATUS OF COMMISSIONED NAVY OFFICERS' MESSES ASHORE HAS CHANGED SOMEWHAT SINCE THE ABOVE QUOTED DECISION OF AUGUST 15, 1933, WAS RENDERED, INASMUCH AS THERE NOW EXIST QUITE ELABORATE NAVY DEPARTMENT REGULATIONS RELATING TO SUCH MESSES AND THE CURRENT NAVAL APPROPRIATION ACT (FISCAL YEAR 1947), 60 STAT. 486, UNDER THE APPROPRIATION HEADING " PAY AND SUBSISTENCE OF NAVAL PERSONNEL," CONTAINS A PROVISO AS FOLLOWS:

THAT, EXCEPT FOR THE PUBLIC QUARTERS OCCUPIED BY THE CHIEF OF NAVAL OPERATIONS, THE SUPERINTENDENT OF THE NAVAL ACADEMY, AND THE COMMANDANT OF THE MARINE CORPS, AND MESSES TEMPORARILY SET UP ON SHORE FOR OFFICERS ATTACHED TO SEAGOING VESSELS, AVIATION UNITS BASED ON SEAGOING VESSELS (INCLUDING OFFICERS' MESSES AT NAVAL AIR STATIONS), SUBMARINE BASES, OVERSEAS BASES (INCLUDING ALASKA), MOBILE HOSPITALS, LANDING FORCES AND EXPEDITIONS, AND SUCH BACHELOR OFFICERS' QUARTERS AND MESSES AS MAY BE SPECIFICALLY DESIGNATED BY THE SECRETARY AND, IN ADDITION, NOT TO EXCEED THREE HUNDRED IN NUMBER AT SUCH OTHER PLACES AS SHALL BE DESIGNATED BY THE SECRETARY, NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY, ALLOWANCES, OR OTHER EXPENSES OF ANY ENLISTED MAN OR CIVIL EMPLOYEE PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY A HOUSEHOLD SERVANT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS PREVENTING THE VOLUNTARY EMPLOYMENT IN ANY SUCH CAPACITY OF A RETIRED ENLISTED MAN OR A TRANSFERRED MEMBER OF THE FLEET RESERVE WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, NOR THE SALE OF MEALS TO OFFICERS BY GENERAL MESSES ON SHORE AS REGULATED BY DETAILED INSTRUCTIONS FROM THE NAVY DEPARTMENT. ( ITALICS SUPPLIED.) THAT PART OF THE ITALICIZED LANGUAGE WHICH READS,"SUCH BACHELOR OFFICERS' QUARTERS AND MESSES AS MAY BE SPECIFICALLY DESIGNATED BY THE SECRETARY," FIRST APPEARED IN THE NAVAL APPROPRIATION ACT, 1944 (57 STAT. 203), AND HAS APPEARED IN EACH ANNUAL NAVAL APPROPRIATION ACT SINCE THAT TIME. LANGUAGE SIMILAR TO THAT OF THE OTHER PART OF THE ITALICIZED LANGUAGE ABOVE, FIRST APPEARED IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1936, AND HAS BEEN REPEATED EACH YEAR SINCE THEN IN THE NAVAL APPROPRIATION ACTS, EXCEPT THAT THE NUMBER OF PLACES AUTHORIZED TO BE DESIGNATED ORIGINALLY WAS FORTY AND HAS BEEN INCREASED, FROM TIME TO TIME, TO THE PRESENT FIGURE OF THREE HUNDRED.

NO PERMANENT STATUTORY PROVISION HAS BEEN FOUND RELATING TO NAVY OFFICERS' MESSES ASHORE AND, THEREFORE, MUST BE DETERMINED FROM THE QUOTED PROVISIONS OF THE APPROPRIATION ACT AND THE REGULATIONS ISSUED BY THE NAVY DEPARTMENT.

ARTICLE 443 (14) OF THE NAVY REGULATIONS PROVIDES THAT THE BUREAU OF NAVAL PERSONNEL "SHALL BE CHARGED WITH THE REGULATION OF OFFICERS' MESSES * * * ON SHORE" AND LETTER OF JUNE 30, 1944, FROM THE SECRETARY OF THE NAVY TO ALL SHIPS AND STATIONS IS AS FOLLOWS:

1. ALL COMMISSIONED OFFICERS' ORGANIZATIONS ASHORE ESTABLISHED FOR THE PURPOSE OF PROMOTING AND MAINTAINING THE WELL-BEING, MORALE, AND EFFICIENCY OF COMMISSIONED OFFICERS, IF LOCATED ON PROPERTY OWNED OR UNDER THE CONTROL OF THE UNITED STATES, SHALL BE ORGANIZED AND OPERATED AS AN INTEGRAL PART OF THE NAVY.

2. ALL SUCH COMMISSIONED OFFICERS' ORGANIZATIONS SHALL BE OFFICIALLY DESIGNATED AS COMMISSIONED OFFICERS' MESSES.

3. COMMISSIONED OFFICERS' MESSES SHALL NOT BE OPERATED FOR THE FINANCIAL PROFIT OF ANY PERSON OR GROUP OR COMBINATION OF PERSONS AND NO INDIVIDUAL SHALL HAVE ANY FINANCIAL INTEREST OR RIGHT, IN ANY MANNER WHATSOEVER, IN ANY PROPERTY USED, ACQUIRED, OR HELD IN THE OPERATION OF SUCH MESSES.

4. COMMISSIONED OFFICERS' MESSES SHALL BE OPERATED UNDER THE ADMINISTRATIVE CONTROL AND REGULATION OF THE COMMANDANT OR COMMANDING OFFICER OF THE SHORE ACTIVITY WHERE SUCH MESS IS LOCATED, SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED FROM TIME TO TIME BY THE CHIEF OF NAVAL PERSONNEL, THE COMMANDANT OF THE MARINE CORPS, AND THE COMMANDANT OF THE COAST GUARD.

5. ALL COMMANDANTS AND COMMANDING OFFICERS SHALL EFFECTUATE THE PROVISIONS OF THIS ORDER UPON THE RECEIPT THEREOF.

UNDER THE REGULATIONS ISSUED BY THE BUREAU OF NAVAL PERSONNEL, COMMISSIONED OFFICERS' MESSES ASHORE ARE DIVIDED INTO TWO CATEGORIES," OPEN" AND " CLOSED.' GUESTS MAY BE INVITED TO AN OPEN MESS UNDER CONDITIONS SPECIFIED BY THE COMMANDING OFFICER, SUBJECT TO ANY RESTRICTIONS ESTABLISHED BY SUPERIOR NAVAL AUTHORITY, AND THE DETAILING OF ENLISTED PERSONNEL TO, OR THE EMPLOYMENT OF CIVILIANS PAID FROM APPROPRIATED FUNDS BY, AN OPEN MESS IS PROHIBITED, WHILE THE CLASSES OF PERSONS WHO MAY USE THE FACILITIES OF A CLOSED MESS ARE RESTRICTED WITHIN NARROW LIMITS AND APPROPRIATED FUNDS ARE USED FOR PAYMENT OF CIVILIAN EMPLOYEES OF THE MESS AND ENLISTED MEN ARE DETAILED THERETO. ALSO, UNDER THESE REGULATIONS, AND BUREAU OF NAVAL PERSONNEL LETTER DATED NOVEMBER 1, 1944, TRANSMITTING THEM TO NAVAL COMMANDERS AND STATIONS, BOTH CATEGORIES OF OFFICERS' MESSES ASHORE, IF LOCATED ON PROPERTY OWNED OR UNDER THE CONTROL OF THE UNITED STATES, ARE ORGANIZED AND OPERATED AS AN INTEGRAL PART OF THE NAVY, UNDER THE ADMINISTRATIVE CONTROL AND REGULATION OF THE COMMANDANT OR COMMANDING OFFICER OF THE SHORE ACTIVITY WHERE THE MESS IS LOCATED; THE MESSES ARE NOT OPERATED FOR THE FINANCIAL PROFIT OF ANY PERSON OR GROUP OF PERSONS; NO INDIVIDUAL HAS ANY FINANCIAL RIGHT IN ANY PROPERTY USED, ACQUIRED OR HELD IN THE OPERATION OF A MESS; DUES AND MEMBERSHIP FEES ARE PROHIBITED; A NOMINAL SERVICE CHARGE TO COVER OVERHEAD EXPENSES MAY BE ASSESSED AGAINST PARTICIPANTS, BUT NOT FOR THE PURPOSE OF PRODUCING A PROFIT; EACH OFFICERS' MESS ASHORE IS REQUIRED TO FORWARD TO THE BUREAU OF NAVAL PERSONNEL, EVERY THREE MONTHS, A CHECK FOR ONE-QUARTER OF ONE PERCENT OF ITS GROSS RECEIPTS PAYABLE TO THE " NAVAL OFFICERS' MESS CENTRAL CONTINGENCY FUND; " THE VALUE OF ALL MESS SHARES OF OFFICERS' MESSES ASHORE WAS FROZEN AS OF NOVEMBER 1, 1944, AND THE AGGREGATE ORIGINAL PURCHASE VALUE OF ALL SHARES, AS FROZEN, WAS ENTERED ON THE RECORDS AS " MEMBERS DEPOSITS" AND THE DIFFERENCE BETWEEN " MEMBERS DEPOSITS" AND THE NET WORTH OF THE MESS WAS ENTERED ON MESS RECORDS AS " SURPLUS PAID IN; " AND " SURPLUS PAID IN" MAY NOT BE RETURNED TO THE MEMBERS OF A MESS IN ANY WAY, DIRECTLY OR INDIRECTLY, BUT MAY BE USED TO PAY OBLIGATIONS, TO IMPROVE THE MESS AND TO ESTABLISH RESERVES FOR CONTINGENCIES AND FOR SOUND FINANCIAL CONDITION.

BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 103-46, DATED MAY 3, 1946, PROMULGATING THE POLICY, APPROVED BY THE CHIEF OF NAVAL OPERATIONS, CONCERNING OFFICERS' MESSES AND CLUBS ASHORE, IS, IN PART, AS FOLLOWS:

(A) COMMISSIONED OFFICERS' MESSES ASHORE ARE ESTABLISHED FOR THE PURPOSE OF PROMOTING AND MAINTAINING THE WELL-BEING, MORALE, AND EFFICIENCY OF COMMISSIONED OFFICERS. SUCH MESSES ARE CLASSIFIED AS NECESSARY WHEN OPERATED TO MAINTAIN ESSENTIAL ( BOQ) FACILITIES, AND AS DESIRABLE WHEN OPERATED TO PROVIDE SOCIAL AND RECREATIONAL NEEDS. ALL SUCH ORGANIZATIONS SHALL BE OPERATED AS AN INTEGRAL PART OF THE NAVY AND SHALL BE DESIGNATED AS COMMISSIONED OFFICERS' MESSES.

(B) ADEQUATE PROVISIONS MUST BE MADE TO PROVIDE THE MESSES NECESSARY FOR BOQ ACTIVITIES. PROVISIONS SHALL BE MADE, AS PRACTICABLE WITHIN THE LIMITS OF FUNDS AND FACILITIES AVAILABLE, TO PROVIDE MESSES FOR THE SOCIAL AND RECREATIONAL NEEDS OF OFFICERS PERMANENTLY ATTACHED TO THE LOCAL SHORE ACTIVITIES, FLEET OFFICERS, TRANSIENT OFFICERS, AND INACTIVE RESERVE OFFICERS. FACILITIES FOR MESSES SHALL BE LIMITED IN SCOPE AND NUMBER TO THOSE REQUIRED FOR THE PARTICULAR LOCALITY. CONSOLIDATION OF MESS ACTIVITIES INTO EXISTING FACILITIES SHALL BE ACCOMPLISHED WHERE PRACTICABLE; NEW FACILITIES SHALL BE CONSTRUED (WHEN BUILDING RESTRICTIONS ARE REMOVED) AT LOCATIONS LACKING ADEQUATE FACILITIES.

(C) THESE MESSES SHALL BE LOCATED ON PROPERTY OWNED OR UNDER THE CONTROL OF THE U.S. NAVY. NORMALLY MESSES SHALL BE LOCATED ON THE GROUNDS OF A PRINCIPAL SHORE ACTIVITY, RATHER THAN ON SMALL PARCELS OF NAVY PROPERTY IN A CITY LOCATION WHERE PUBLIC RECREATIONAL FACILITIES ARE AVAILABLE.

(E) THE OPERATION OF SUITABLE OFFICERS' MESSES, BOTH FOR ESSENTIAL AND RECREATIONAL PURPOSES, SHOULD BE A RECOGNIZED FUNCTION OF EACH MAJOR NAVAL BASE.

(G) MESSES OPERATED TO MAINTAIN ESSENTIAL (BACHELOR OFFICERS' QUARTERS) FACILITIES, THE OPERATION OF WHICH FULFILLS A NAVY RESPONSIBILITY TO PROVIDE HOUSING AND/OR FEEDING, SHALL BE STAFFED AND EQUIPPED ON THE BASIS OF APPROPRIATED MONEYS, WHILE THOSE NOT OPERATED TO PROVIDE SUCH ESSENTIAL FACILITIES, HENCE SERVING SOCIAL AND RECREATIONAL NEEDS, SHALL BE STAFFED AND EQUIPPED ON THE BASIS OF NONAPPROPRIATED FUNDS.

(H) IN THOSE MESSES THAT MAY BE CLASSIFIED BY BUPERS AS PERFORMING BOTH ESSENTIAL AND PURELY RECREATIONAL FUNCTIONS AND IN WHICH APPROPRIATED FUNDS OR PERSONNEL STAFFS MAY BE ALLOWED ON ACCOUNT OF THE " ESSENTIAL" FEATURES, THE USE OF SUCH FUNDS AND PERSONNEL WILL BE RESTRICTED TO OUTFITTING, MAINTENANCE, AND SERVICE IN THAT PART OF THE ESTABLISHMENT AND FOR THOSE SERVICES WHICH ARE ESSENTIAL FUNCTIONS WITHIN THE MEANING OF PARAGRAPH (G).

IT THUS APPEARS THAT ALL NAVY OFFICERS' MESSES ASHORE, AS NOW CONSTITUTED, ARE OPERATED AS AN INTEGRAL PART OF THE NAVY ON PROPERTY OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT AND THAT EACH MESS IS UNDER THE ADMINISTRATIVE CONTROL OF THE COMMANDANT OR COMMANDING OFFICER OF THE SHORE ACTIVITY WHERE THE MESS IS LOCATED; THAT REGARDLESS OF ANY CONTRIBUTIONS, DEPOSITS OR SERVICE CHARGES PAID IN BY ANY MEMBER OF THE MESS, HE HAS NO FINANCIAL RIGHT IN THE PROPERTY OF THE MESS; AND THAT THE MESSES ARE NOT OPERATED FOR THE FINANCIAL PROFIT OF ANY PERSON OR GROUP OF PERSONS. IT, THEREFORE, SEEMS THAT FOR THE PURPOSES OF YOUR PRESENT QUESTIONS, THERE IS NO MATERIAL DISTINCTION BETWEEN THE EMPLOYEES OF AN ARMY POST EXCHANGE AND THE EMPLOYEES OF A NAVY OFFICERS' MESS, OPEN OR CLOSED. IT IS PERTINENT TO NOTE HOW NEARLY THE NAVY OFFICERS' MESSES (OPEN AND CLOSED), ORGANIZED UNDER THE REGULATIONS AND INSTRUCTIONS DISCUSSED ABOVE, CORRESPOND TO ARMY POST EXCHANGES AS DESCRIBED IN DECISION OF THE SUPREME COURT OF THE UNITED STATES IN STANDARD OIL CO. V. JOHNSON, SUPRA. THAT DECISION IS, IN PART, AS FOLLOWS:

THE COMMANDING OFFICER OF AN ARMY POST, SUBJECT TO THE REGULATIONS AND THE COMMANDS OF HIS OWN SUPERIOR OFFICERS, HAS COMPLETE AUTHORITY TO ESTABLISH AND MAINTAIN AN EXCHANGE. HE DETAILS A POST EXCHANGE OFFICER TO MANAGE ITS AFFAIRS. THIS OFFICER AND THE COMMANDING OFFICERS OF THE VARIOUS COMPANY UNITS MAKE UP A COUNCIL WHICH SUPERVISES EXCHANGE ACTIVITIES. NONE OF THESE OFFICERS RECEIVES ANY COMPENSATION OTHER THAN HIS REGULAR SALARY. THE OBJECT OF THE EXCHANGES IS TO PROVIDE CONVENIENT AND RELIABLE SOURCES WHERE SOLDIERS CAN OBTAIN THEIR ORDINARY NEEDS AT THE LOWEST POSSIBLE PRICES. SOLDIERS, THEIR FAMILIES, AND CIVILIANS EMPLOYED ON MILITARY POSTS HERE AND ABROAD CAN BUY AT EXCHANGES. THE GOVERNMENT ASSUMES NONE OF THE FINANCIAL OBLIGATIONS OF THE EXCHANGE. BUT GOVERNMENT OFFICERS, UNDER GOVERNMENT REGULATIONS, HANDLE AND ARE RESPONSIBLE FOR ALL FUNDS OF THE EXCHANGE WHICH ARE OBTAINED FROM THE COMPANIES OR DETACHMENTS COMPOSING ITS MEMBERSHIP. PROFITS, IF ANY, DO NOT GO TO INDIVIDUALS. THEY ARE USED TO IMPROVE THE SOLDIERS' MESS, TO PROVIDE VARIOUS TYPES OF RECREATION, AND IN GENERAL TO ADD TO THE PLEASURE AND COMFORT OF THE TROOPS.

FROM ALL OF THIS WE CONCLUDE THAT POST EXCHANGES AS NOW OPERATED ARE ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL FOR THE PERFORMANCE OF GOVERNMENT FUNCTIONS. THEY ARE INTEGRAL PARTS OF THE WAR DEPARTMENT, SHARE IN FULFILLING THE DUTIES ENTRUSTED TO IT, AND PARTAKE OF WHATEVER IMMUNITIES IT MAY HAVE UNDER THE CONSTITUTION AND FEDERAL STATUTES. IN CONCLUDING OTHERWISE, THE SUPREME COURT OF CALIFORNIA WAS IN ERROR.

THERE CAN BE NO DOUBT THAT A CIVILIAN EMPLOYEE OF AN OFFICERS' MESS WHO IS PAID FROM APPROPRIATED FUNDS HOLDS A CIVILIAN POSITION UNDER THE UNITED STATES GOVERNMENT, WITHIN CONTEMPLATION OF SAID SECTION 212. WITH RESPECT TO EMPLOYEES OF OPEN AND CLOSED MESSES PAID FROM NONAPPROPRIATED MESS FUNDS IT IS CONCLUDED, IN VIEW OF THE REGULATIONS AND PRECEDENTS CITED ABOVE, THAT THEY, TOO, OCCUPY CIVILIAN POSITIONS UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA. ..END :