B-63225, APRIL 14, 1947, 26 COMP. GEN. 778

B-63225: Apr 14, 1947

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INCREASED ALLOWANCES ARE NOT PAYABLE WHERE THE ALLEGED IN LOCO PARENTIS STATUS OF AN OFFICER'S DEPENDENT AUNT COMMENCED AFTER THE OFFICER HAD BECOME AN ADULT. THERE WAS FORWARDED TO THIS OFFICE BY THE CHIEF OF FINANCE YOUR LETTER OF JANUARY 9. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE A PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CAPT. DEFINES THE TERM "DEPENDENT" AS FOLLOWS: THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL * * * ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT BY THE ACT OF NOVEMBER 24. IT WAS PROVIDED. IS AMENDED B ADDING AT THE END THEREOF THE FOLLOWING NEW PARAGRAPH: "AS USED IN THIS SECTION.

B-63225, APRIL 14, 1947, 26 COMP. GEN. 778

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - IN LOCO PARENTIS RELATION COMMENCING AFTER OFFICER BECAME ADULT UNDER SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, INCLUDING PERSONS WHO HAD STOOD IN LOCO PARENTIS FOR NOT LESS THAN 5 YEARS IN THE CLASSES OF PERSONS ON WHOSE ACCOUNT INCREASED RENTAL AND SUBSISTENCE ALLOWANCES MAY BE PAID, INCREASED ALLOWANCES ARE NOT PAYABLE WHERE THE ALLEGED IN LOCO PARENTIS STATUS OF AN OFFICER'S DEPENDENT AUNT COMMENCED AFTER THE OFFICER HAD BECOME AN ADULT.

COMPTROLLER GENERAL WARREN TO COL. F. RICHARDS, U.S. ARMY, APRIL 14, 1947:

BY FIRST INDORSEMENT OF JANUARY 21, 1947, THERE WAS FORWARDED TO THIS OFFICE BY THE CHIEF OF FINANCE YOUR LETTER OF JANUARY 9, 1947, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE A PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CAPT. BARTHOLOMEW W. PETERSON, AUS, O- 1995319, COVERING INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (AUNT IN LOCO PARENTIS) FOR THE PERIOD FROM DECEMBER 1 TO 31, 1946.

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, DEFINES THE TERM "DEPENDENT" AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL * * * ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT

BY THE ACT OF NOVEMBER 24, 1945, 59 STAT. 587, EFFECTIVE DECEMBER 1, 1945, IT WAS PROVIDED, IN PART, AS FOLLOWS:

THAT SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 361), AS AMENDED, IS AMENDED B ADDING AT THE END THEREOF THE FOLLOWING NEW PARAGRAPH:

"AS USED IN THIS SECTION, THE TERMS "FATHER," "MOTHER," "PARENT," AND "PARENTS" SHALL INCLUDE A STEPPARENT, A PARENT BY ADOPTION, AND ANY PERSON, INCLUDING A FORMER STEPPARENT, WHO HAS STOOD IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME FOR A CONTINUOUS PERIOD OF NOT LESS THAN FIVE YEARS * * *.'

IT APPEARS FROM THE OFFICER'S AFFIDAVIT EXECUTED DECEMBER 21, 1946, SUBMITTED WITH YOUR LETTER, THAT HE WAS BORN ON SEPTEMBER 27, 1905, AND THAT THE ALLEGED IN LOCO PARENTIS RELATION COMMENCED ON OCTOBER 1, 1927, AFTER THE OFFICER HAD REACHED THE AGE OF 22 YEARS--- THAT IS TO SAY, AFTER HE HAD BECOME AN ADULT. HENCE, THERE ARISES THE QUESTION AS TO WHETHER THE CONGRESS IN ENACTING THE AMENDING ACT OF NOVEMBER 24, 1945, SUPRA, USED IN THE WORDS IN LOCO PARENTIS WITH THE COMMON-LAW LIMITATION UPON THEM, NAMELY, THAT THE RELATION COULD NOT EXIST EXCEPT AS TO A MINOR, OR IN THE BROADER SENSE OF GENERAL DESCRIPTIVE WORDS.

AS TO THE GENERAL PROPOSITION WHETHER AT COMMON LAW A PERSON CAN STAND IN LOCO PARENTIS TO AN ADULT, THERE HAS BEEN FOUND ONLY ONE CASE- - IN RE MCCARDLE'S ESTATE ( SUPREME COURT OF COLORADO, JUNE 25, 1934, 35 P. 2D 850/--- INVOLVING OTHER THAN VETERANS' INSURANCE CASES UNDER FEDERAL INSURANCE STATUTES. IN THE FIRST SUCH INSURANCE CASE--- MEISNER V. UNITED STATES, DECIDED BY THE UNITED STATES DISTRICT COURT, W.D., MISSOURI, FEBRUARY 28, 1924, 295 F. 866--- IT WAS HELD THAT A PERSON MAY STAND IN LOCO PARENTIS TO AN ADULT, THERE BEING REFERRED TO, AMONG OTHER MATTERS, THE GENERAL POLICY OF THE COURTS TO EFFECT, IF POSSIBLE, THE EXPRESSED WISHES OF A DECEASED SOLDIER. THEREAFTER, ON OCTOBER THIRD OF THAT SAME YEAR (1924), THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, IN THE CASE OF HOWARD V. UNITED STATES, 2 F.2D 170, DISCUSSED THE MEISNER CASE, SUPRA, AND EXPRESSLY DISAPPROVED THE CONCLUSION REACHED IN THAT CASE, STATING THAT THE PHRASE IN LOCO PARENTIS IS A LEGAL ONE; THAT IT REPRESENTS A DEFINITE LEGAL CONCEPTION; AND THAT IT MUST BE TAKEN IN THAT SENSE UNLESS SHOWN TO HAVE BEEN USED IN A BROADER SENSE. TO LIKE EFFECT AS THE HOWARD CASE ARE, THEREAFTER, THE CASES OF TUDOR V. UNITED STATES, 36 F.2D 386, DECIDED BY THE UNITED STATES DISTRICT COURT, W.D., WASHINGTON, N.D., NOVEMBER 8, 1929; IN RE MCCARDLE'S ESTATE, SUPRA, 35 P.2D 850, DECIDED BY THE SUPREME COURT OF COLORADO, JUNE 25, 1934--- THE ONLY CASE FOUND WHICH INVOLVED A MATTER OTHER THAN VETERANS' INSURANCE; AND THE CASE OF ZAZOVE V. UNITED STATES, DECIDED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. HOWEVER, IN THE LATTER CASE, ON APPEAL TO THE CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT--- AS REPORTED IN 156 F.2D 24 -- THAT COURT HELD JUNE 27, 1946, THAT A PERSON MAY STAND IN LOCO PARENTIS TO AN ADULT. THE COURT'S DECISION WAS BASED, IN PART, ON ITS OPINION THAT THE WORDS IN LOCO PARENTIS, AS USED IN THE STATUTE THERE INVOLVED, WERE USED AS DESCRIPTIVE WORDS RATHER THAN WORDS CIRCUMSCRIBED BY COMMON-LAW LIMITATIONS; THAT THE STATUTE SHOULD BE GIVEN SUCH CONSTRUCTION "AS WE THINK WOULD FAIRLY CARRY OUT THE GENEROUS AND LIBERAL POLICY OF THE CONGRESS TO PROTECT AND EFFECTUATE THE CLEARLY EXPRESSED INTENTIONS OF THE ERVICEMEN; " AND ON THE ACTION OF THE HOUSE OF REPRESENTATIVES JUST PREVIOUSLY ON JUNE 3, 1946, TO MAKE CERTAIN THAT THE CLASS OF BENEFICIARIES INCLUDED STEPPARENTS, CONTRARY TO A PREVIOUS ADMINISTRATIVE DETERMINATION THAT SUCH PERSONS WERE NOT INCLUDED, WHICH CONGRESSIONAL ACTION WAS REFERRED TO BY THE COURT AS INDICATIVE THAT THE CONGRESS NEVER INTENDED THAT THE WORDS IN LOCO PARENTIS AS USED IN THE STATUTE THEN BEFORE THE COURT, WERE TO BE GIVEN A NARROW, LEGALISTIC CONSTRUCTION.

ASIDE FROM THE CONFLICT OF OPINION SHOWN BY THE ABOVE-CITED DECISIONS AS TO THE MEANING TO BE GIVEN TO THE WORDS IN LOCO PARENTIS, AND WHILE THE LATEST OF SAID DECISIONS IS TO THE EFFECT THAT A PERSON MAY STAND IN LOCO PARENTIS TO AN ADULT, IT IS TO BE NOTED THAT THE DECISIONS HOLDING THAT A PERSON MAY STAND IN LOCO PARENTIS TO AN ADULT ARE CONFINED TO VETERANS' CASES INVOLVING CONTRACTS OF INSURANCE. IN SUCH CASES THE INSURED PAYS A PREMIUM AND A CONTRACTUAL RELATIONSHIP EXISTS BETWEEN THE INSURED AND THE GOVERNMENT, WHEREAS CLAIMS FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF PERSONS IN LOCO PARENTIS ARE CLAIMS FOR AMOUNTS OF A GRATUITOUS NATURE AND WHICH ARE PAYABLE TO THE ADULT CLAIMING THAT ANOTHER STANDS IN LOCO PARENTIS TO HIM RATHER THAN TO THE ONE ASSERTING THAT HE STANDS IN LOCO PARENTIS, AS IS THE CASE IN THE INSURANCE CONTRACTS. ALSO, THE ZAZOVE CASE--- DECIDED JUNE 27, 1946--- HOLDING THAT A PERSON MAY STAND IN LOCO PARENTIS TO AN ADULT, HAD NOT BEEN DECIDED AT THE TIME OF THE AMENDMENTS OF NOVEMBER 24, 1945, HEREINBEFORE QUOTED, TO SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, WHICH AMENDMENT INCLUDED, FOR THE FIRST TIME IN THE TERM "DEPENDENT" AS USED IN SAID SECTION 4, PERSONS WHO HAVE "STOOD IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME FOR A CONTINUOUS PERIOD OF NOT LESS THAN 5 ARS.'

AS INDICATIVE THAT THE CONGRESS LEGISLATED MORE RESTRICTIVELY WITH REGARD TO PERSONS IN LOCO PARENTIS UNDER THE SO-CALLED DEPENDENCY ALLOWANCE ACT, IT WILL BE NOTED THAT A PERIOD OF AT LEAST FIVE YEARS OF IN LOCO PARENTIS STATUS IS REQUIRED UNDER THAT ACT, WHEREAS IN THE INSURANCE LEGISLATION CONSIDERED IN THE CASES CITED HEREINBEFORE THERE WAS REQUIRED SUCH STATUS FOR ONLY A PERIOD OF NOT LESS THAN 1 YEAR. FURTHER, AS SUGGESTIVE, THOUGH ADMITTEDLY NOT CONCLUSIVE, OF THE CONGRESSIONAL INTENT IN THE MATTER, THERE IS QUOTED FROM VOLUME 91, PART 7, OF THE CONGRESSIONAL RECORD, AT PAGE 8697, THE FOLLOWING:

AMENDING SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

THE CLERK CALLED THE BILL ( H.R. 2525) TO INCLUDE STEPPARENTS AMONG THOSE PERSONS WITH RESPECT TO WHOM ALLOWANCES MAY BE PAID UNDER THE PAY READJUSTMENT ACT OF 1942, AND FOR OTHER PURPOSES.

THE SPEAKER. IS THERE OBJECTION TO THE PRESENT CONSIDERATION OF THE BILL?

MR. COLE OF NEW YORK. MR. SPEAKER, RESERVING THE RIGHT TO OBJECT, FOR THE PURPOSE OF ASKING THE GENTLEMAN FROM ALABAMA WHO REPORTED THIS BILL AN EXPLANATION OF THE MEANING OF THE EXPRESSION:

"A PERSON STANDING IN THE PLACE OF A PARENT IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME WILL BE CONSIDERED AS A BLOOD PARENT.'

DOES THAT MEAN THAT THE INDIVIDUAL MUST BE IN THE POSITION OR HAVE THE STATUS OF LOCO PARENTIS DURING THE SOLDIER'S MINORITY? OR MAY THAT PERIOD OF LOCO PARENTIS RUN AFTER THE SOLDIER BECOMES 21 YEARS OF AGE?

MR. SPARKMAN. ANSWERING THE GENTLEMAN FROM NEW YORK, IT SEEMS TO ME THAT WOULD BE WHOLLY A MATTER OF LEGAL INTERPRETATION. TO MY OWN MIND A PERSON COULD NOT BECOME IN LOCO PARENTIS TO AN ADULT. THE RELATIONSHIP MUST EXIST AT A TIME WHEN THE CHILD REQUIRES THE PROTECTION OF A PARENT; IN OTHER WORDS, DURING THE INFANCY OR MINORITY OF A CHILD.

MR. COLE OF NEW YORK. I UNDERSTAND THAT IS THE VIEW THAT HAS BEEN TAKEN BY THE VETERANS' ADMINISTRATION IN INTERPRETING CERTAIN VETERANS' ADMINISTRATION LAWS, BUT SOME CASES HAVE COME TO MY ATTENTION WHERE AN ADULT HAS ACTUALLY FULFILLED THE STATUS OF LOCO PARENTIS TO A SOLDIER WHO WAS OVER 21 YEARS OF AGE, PROVIDING A HOME FOR THE YOUNG MAN, AND CARING FOR HIM THE SAME AS ANY MOTHER WOULD. IT WAS MY THOUGHT THAT IT MIGHT BE THE INTENTION OF THE GENTLEMAN'S COMMITTEE THAT THIS 5-YEAR PERIOD OF LOCO PARENTIS STATUS MIGHT BE APPLIED TO A CASE SUCH AS II HAVE JUST MENTIONED WHERE THE STATUS DID NOT BEGIN UNTIL AFTER THE PERSON CONCERNED WAS OVER 21 YEARS OF AGE.

MR. SPARKMAN. IN MY OPINION IT COULD NOT.

MR. RANKIN. MR. SPEAKER, I ASK UNANIMOUS CONSENT THAT THIS BILL MAY BE PASSED OVER WITHOUT PREJUDICE. I BELIEVE THERE ARE SOME PHASES OF THIS QUESTION WITH WHICH THE GENTLEMEN FROM ALABAMA IS NOT FAMILIAR.

THE SPEAKER IS THERE OBJECTION TO THE REQUEST OF THE GENTLEMAN FROM MISSISSIPPI?

THERE WAS NO OBJECTION.

ALSO, IT IS SIGNIFICANT TO NOTE THAT NOWHERE IN THE COMMITTEE REPORTS ON THE BILL--- THERE ARE NO PUBLISHED HEARINGS ON THE BILL--- OR IN ITS CONSIDERATION ON THE FLOOR OF EITHER HOUSE OF CONGRESS HAS THERE BEEN FOUND ANY INDICATION, OTHER THAN THE ABOVE-QUOTED MATTER, AS TO THE INTENTION OF THE CONGRESS WITH REGARD TO THE WORDS IN LOCO PARENTIS.

IN THIS STATE OF THE MATTER THERE IS AT LEAST GRAVE DOUBT THAT THE CONGRESS INTENDED BY THE SAID AMENDING ACT OF NOVEMBER 24, 1945, TO INCLUDE WITHIN THE PHRASE IN LOCO PARENTIS OF THAT ACT, PERSONS WHO HAD ASSUMED A PARENTAL RELATION TO AN ADULT. AND, AS WAS SAID IN LONGWILL V. UNITED STATES, 17 C.1CLS. 288, AT PAGE 291, IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT THOSE CLAIMS "AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT.' ACCORDINGLY, THIS OFFICE MAY NOT AUTHORIZE PAYMENT OF SUCH ALLOWANCES IN SUCH IN LOCO PARENTIS CASES IN THE ABSENCE OF AN AFFIRMATIVE EXPRESSION OF THE CONGRESS IN THE MATTER OR OF A JUDICIAL DETERMINATION OF AN OFFICER'S RIGHT TO THE INCREASED ALLOWANCES IN SUCH CASES.

THE VOUCHER SUBMITTED WITH YOUR LETTER--- PAYMENT THEREON NOT BEING PROPER UNDER THIS VIEW OF THE MATTER--- IS, TOGETHER WITH THE OTHER PAPERS SUBMITTED, BEING RETAINED IN THIS OFFICE ..END :