B-70990, DECEMBER 24, 1947, 27 COMP. GEN. 345

B-70990, DECEMBER 24, 1947, 27 COMP. GEN. 345

HOUSING PROJECTS TRANSFERRED TO DEPARTMENT OF AIR FORCE - USE OF RENTALS FOR MAINTENANCE THE PROVISION IN SECTION 303 OF THE ACT OF OCTOBER 14, 1940, AS AMENDED, THAT THE HOUSING AND HOME FINANCE ADMINISTRATOR MAY USE MONEYS DERIVED FROM RENTAL OR OPERATION OF PROPERTY ACQUIRED OR CONSTRUCTED UNDER SAID ACT FOR THE EXPENSES OF OPERATION AND MAINTENANCE THEREOF DOES NOT AUTHORIZE THE SECRETARY OF THE AIR FORCE TO UTILIZE HOUSING RENTALS, OTHERWISE FOR DEPOSITING INTO MISCELLANEOUS RECEIPTS, FOR MAINTAINING HOUSING UNITS PERMANENTLY TRANSFERRED BY THE ADMINISTRATOR TO THE DEPARTMENT OF THE AIR FORCE PURSUANT TO SECTION 4 OF THE ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE AIR FORCE, DECEMBER 24, 1947:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1947, STATING THAT YOUR DEPARTMENT, THROUGH THE DEPARTMENT OF THE ARMY, HAS ACQUIRED NUMEROUS CIVILIAN WAR HOUSING PROJECTS FOR ULTIMATE PERMANENT USE, UNDER THE AUTHORITY OF SECTION 4 OF THE ACT OF OCTOBER 14, 1940--- GENERALLY KNOWN AS THE LANHAM ACT--- AS AMENDED BY THE ACT OF JANUARY 21, 1942, 56 STAT. 11, 12, WHICH AUTHORIZES THE NATIONAL HOUSING ADMINISTRATOR TO TRANSFER TO THE JURISDICTION OF THE WAR OR NAVY DEPARTMENTS "SUCH HOUSING CONSTRUCTED UNDER THE PROVISIONS OF THIS ACT AS MAY BE CONSIDERED TO BE PERMANENTLY USEFUL TO THE ARMY OF NAVY.' IT IS STATED, ALSO, THAT THE TRANSFER OF THE HOUSING PROJECTS INVOLVED IS SUBJECT TO THE RESTRICTION THAT CERTAIN UNITS OF EACH PROJECT BE CONTINUED AVAILABLE FOR OCCUPANCY BY OTHER WAR DEPARTMENT PERSONNEL WHO WERE IN POSSESSION AT THE TIME OF THE TRANSFER. IT IS UNDERSTOOD THAT THE REMAINING UNITS--- AND SUCH UNITS AS BECOME AVAILABLE FROM TIME TO TIME--- ARE TO BE FURNISHED AS PUBLIC QUARTERS TO OFFICER, ENLISTED AND CIVILIAN PERSONNEL OF YOUR DEPARTMENT.

YOUR LETTER STATES THAT AT PRESENT THE VARIOUS LOCAL FINANCE OFFICERS ARE COVERING THE RENTS COLLECTED FROM NON-DEPARTMENT PERSONNEL DIRECTLY INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, BUT THAT THERE IS A CURRENT PRESSING NEED FOR THESE FUNDS FOR MAINTENANCE EXPENSES OF THE CIVILIAN WAS HOUSING PROJECTS BECAUSE THE BUDGET ESTIMATES OF YOUR DEPARTMENT FOR THE CURRENT FISCAL YEAR DID NOT INCLUDE FUNDS FOR THE MAINTENANCE OF THE PROJECTS.

YOU SUGGEST THAT THE COSTS FOR THE MAINTENANCE OF CIVILIAN WAR HOUSING PROJECTS, UNITS OF WHICH ARE STILL BEING OCCUPIED BY TENANTS WHOSE POSSESSION, TENANCY, RENT AND CONTINUED OCCUPANCY ARE BEYOND THE CONTROL OF THE DEPARTMENT OF THE AIR FORCE, SHOULD BE BORNE FROM RENTALS COLLECTED BY THE DEPARTMENT FROM THESE TENANTS, PARTICULARLY AS IT APPEARS THAT IN SO RESERVING THE HOUSING UNITS THE NATIONAL HOUSING ADMINISTRATOR WAS ACTING IN ACCORDANCE WITH THE EXPRESS AUTHORITY OF SECTION 4 OF THE LANHAM ACT, SUPRA; THAT SUCH UNITS ARE STILL IN REALITY CIVILIAN WAR HOUSING UNITS, AND, INSOFAR AS THOSE UNITS ARE CONCERNED, THE DEPARTMENT OF THE AIR FORCE IS ACTING IN A MANAGEMENT CAPACITY ONLY. ALSO, YOU STATE THAT CONTINUED DEPLETION OF YOUR DEPARTMENT'S APPROPRIATED FUNDS FOR MAINTENANCE OF THESE CIVILIAN WAR HOUSING PROJECTS, TO THE DETRIMENT OF ESSENTIAL MAINTENANCE SPECIFICALLY AUTHORIZED, DOES NOT APPEAR TO BE WARRANTED.

YOU, THEREFORE, PRESENT THE QUESTION WHETHER YOUR DEPARTMENT PROPERLY MAY UTILIZE THE RENTAL PROCEEDS OF THE CIVILIAN WAR HOUSING PROJECTS TRANSFERRED TO THE MILITARY ESTABLISHMENT FOR THE MAINTENANCE OF SUCH PROJECTS, THE NET REMAINING AT THE END OF THE FISCAL YEAR TO BE DEPOSITED TO THE CREDIT OF MISCELLANEOUS RECEIPTS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 303 OF THE LANHAM ACT, AS AMENDED, 57 STAT. 388, WHICH PROVIDES THAT:

MONEYS DERIVED FROM RENTAL OR OPERATION OF PROPERTY ACQUIRED OR CONSTRUCTED UNDER THE PROVISIONS OF THIS ACT, OF PUBLIC LAWS NUMBERED 9, 73, AND 353, SEVENTY-SEVENTH CONGRESS, AND OF SECTION 201 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, AS AMENDED, SHALL BE AVAILABLE FOR EXPENSES OF OPERATION AND MAINTENANCE AND EXPENSES FOUND NECESSARY IN THE DISPOSITION OF ANY SUCH PROPERTY OR THE REMOVAL OF TEMPORARY HOUSING BY THE ADMINISTRATOR, INCLUDING THE ESTABLISHMENT OF NECESSARY RESERVES THEREFOR AND ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH: PROVIDED, THAT MONEYS DERIVED BY THE ADMINISTRATOR FROM THE RENTAL OR OPERATION OF ANY SUCH PROPERTY MAY BE DEPOSITED IN A COMMON FUND ACCOUNT OR ACCOUNTS IN THE TREASURY: AND PROVIDED FURTHER, THAT EXCEPT FOR NECESSARY RESERVES AUTHORIZED BY THIS ACT OR BY SECTION 201 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, AS AMENDED, THE UNOBLIGATED BALANCES OF THE MONEYS DEPOSITED INTO THE TREASURY FROM THE RENTAL OR OPERATION OF SUCH PROPERTY SHALL BE COVERED AT THE END OF EACH FISCAL YEAR INTO MISCELLANEOUS RECEIPTS.

THE MANDATE OF SECTION 3617, REVISED STATUTES, THAT THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS WOULD SEEM TO INHIBIT THE USE OF THE RENTALS AS PROPOSED IN YOUR LETTER, UNLESS THERE IS A PROPER BASIS FOR INVOKING THE EXEMPTION FROM SAID PROVISION OF LAW PROVIDED BY SECTION 303 OF THE LANHAM ACT, SUPRA. IT HARDLY IS OPEN TO QUESTION THAT, UNLESS OTHERWISE SPECIFICALLY INDICATED, THE PROVISIONS OF THE LANHAM ACT MUST BE REGARDED AS GOVERNING THE OPERATION AND MANAGEMENT OF PUBLIC HOUSING UNDER THE JURISDICTION OF THE NATIONAL HOUSING ADMINISTRATOR (NOW THE HOUSING AND HOME FINANCE ADMINISTRATOR--- SEE REORGANIZATION PLAN 3 OF 1947, 12 F.R. 4981). AND, IN THIS CONNECTION, NEITHER THE EXPRESS TERMS NOR THE LEGISLATIVE HISTORY OF THE AMENDMENT OF JANUARY 21, 1942, SUPRA, AUTHORIZING THE TRANSFER TO THE JURISDICTION OF THE WAR AND NAVY DEPARTMENTS OF SUCH HOUSING AS MAY BE CONSIDERED PERMANENTLY USEFUL TO THE ARMY OR NAVY, DISCLOSES A LEGISLATIVE INTENT THAT THE AUTHORITY OF THE ADMINISTRATOR IN RESPECT TO THE USE OF INCOME FROM HOUSING SHALL VEST IN THE AGENCY TO WHICH IT MIGHT BE TRANSFERRED. AS POINTED OUT IN THE DECISION OF FEBRUARY 9, 1943, B-31967, CITED BY YOU, IT IS CLEAR THAT THE CONGRESS INTENDED THAT "SUCH A TRANSFER WOULD BE NO LESS COMPLETE AND PERMANENT THAN A DISPOSITION BY THE ADMINISTRATOR OF HOUSING TO PRIVATE PARTIES.'

MOREOVER, IN DECISION OF DECEMBER 4, 1943, TO THE SECRETARY OF THE NAVY, 23 COMP. GEN. 406, IT WAS HELD THAT THE AUTHORITY VESTED IN THE NATIONAL HOUSING ADMINISTRATOR BY SECTION 306 OF THE ACT, 54 STAT. 1127, TO MAKE PAYMENTS IN LIEU OF TAXES WITH RESPECT TO REAL PROPERTY ACQUIRED AND HELD BY HIM, MAY NOT LEGALLY BE EXERCISED BY THE SECRETARY OF THE NAVY UPON THE TRANSFER OF HOUSING UNITS TO THE NAVY DEPARTMENT PURSUANT TO SECTION 4 OF THE ACT. THAT THE RATIONALE OF SAID DECISION MUST CONTROL THE RESULT HERE IS AT ONCE APPARENT, THAT IS TO SAY, IF UPON TRANSFER OF HOUSING PROPERTY PURSUANT TO THE PROVISIONS OF THE 1942 AMENDMENT, THERE NO LONGER EXISTS THE POWER CONFERRED BY ONE SECTION OF THE LANHAM ACT TO MAKE PAYMENTS IN LIEU OF TAXES, IT NECESSARILY FOLLOWS THAT THE AUTHORITY CONFERRED BY ANOTHER SECTION OF THE SAME ACT TO WITHHOLD RENTALS FROM THE MISCELLANEOUS RECEIPTS OF THE TREASURY FOR USE IN MAINTAINING THE PROPERTY LIKEWISE IS TERMINATED.

ACCORDINGLY, I AM CONSTRAINED TO CONCLUDE THAT A NEGATIVE ANSWER TO THE QUESTION PRESENTED IN YOUR LETTER IS REQUIRED.