B-72405, JANUARY 26, 1948, 27 COMP. GEN. 396

B-72405, JANUARY 26, 1948, 27 COMP. GEN. 396

FURNISHING OF QUARTERS IN LIEU OF CASH ALLOWANCE TO EMPLOYEES OF PHILIPPINE WAR DAMAGE COMMISSION EVEN THOUGH SPECIFIC AUTHORITY TO FURNISH QUARTERS IN LIEU OF A CASH ALLOWANCE TO EMPLOYEES OF THE PHILIPPINE WAR DAMAGE COMMISSION IS NOT CONTAINED IN THE COMMISSION'S CURRENT APPROPRIATION, AS IS CONTEMPLATED BY THE PROVISIONS OF THE ACT OF JUNE 26, 1930, THE BROAD AUTHORITY GRANTED THE COMMISSION BY SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 TO "MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS" MAY BE REGARDED AS SUFFICIENT TO MAKE THE CURRENT APPROPRIATION AVAILABLE FOR THE FURNISHING OF QUARTERS TO EMPLOYEES.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, PHILIPPINE WAR DAMAGE COMMISSION, JANUARY 26, 1948:

REFERENCE IS MADE TO LETTER OF DECEMBER 30, 1947, FROM COMMISSIONER JOHN A. O-DONNELL, IN PERTINENT PART, AS FOLLOWS:

SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 ( PUBLIC LAW 370, 79TH CONGRESS) PROVIDES:

"THE COMMISSION MAY, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF SUCH OFFICERS, ATTORNEYS, AND EMPLOYEES AND MAY MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS. OFFICERS AND EMPLOYEES OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF SUCH DEPARTMENT OR AGENCY, BE ASSIGNED TO ASSIST THE COMMISSION IN CARRYING OUT ITS FUNCTIONS. THE COMMISSION MAY, WITH THE CONSENT OF THE HEAD OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT, UTILIZE THE FACILITIES AND SERVICES OF SUCH DEPARTMENT OR AGENCY IN CARRYING OUT THE FUNCTIONS OF THE COMMISSION.' ITALICS BY WRITER.)

THE QUESTION HAS ARISEN AS TO WHETHER, UNDER THE FOREGOING SECTION, THE COMMISSION MAY FURNISH QUARTERS IN LIEU OF CASH ALLOWANCES TO ITS EMPLOYEES IN THE PHILIPPINES.

IT WILL BE APPRECIATED IF THE ANSWER TO THIS QUESTION COULD BE EXPEDITED SINCE THE PROBLEM OF HOUSING OUR EMPLOYEES IN MANILA IS A CRITICAL ONE FROM A MORALE STANDPOINT, SO THAT THE SOONER WE HAVE SETTLED IT, THE GREATER ASSURANCE WE WILL HAVE OF COMPLETING OUR MISSION WITHIN OUR STATUTORY LIMITATION.

IN CONNECTION WITH THE QUESTION SUBMITTED, IT IS UNDERSTOOD THAT, UNTIL RECENTLY, THERE HAVE BEEN NO BUILDINGS AVAILABLE IN THE PHILIPPINES WHICH WERE SUITABLE FOR AND COULD BE ACQUIRED AS QUARTERS FOR EMPLOYEES OF THE COMMISSION AND, CONSEQUENTLY, THAT CASH ALLOWANCES IN LIEU OF QUARTERS HAVE BEEN MADE TO EMPLOYEES IN ACCORDANCE WITH BUDGET CIRCULAR NO. A-8, REVISED, ISSUED UNDER THE ACT OF JUNE 26, 1930, 46 STAT. 818, 5 U.S.C. 118A. ALSO, IT IS UNDERSTOOD THAT, IN VIEW OF THE LACK OF SUITABLE ACCOMMODATIONS GENERALLY, AND OF THE FACT THAT THE RENTAL BEING CHARGED FOR SUCH ACCOMMODATIONS AS ARE AVAILABLE EXCEED TO CONSIDERABLE EXTENT THE CASH ALLOWANCES BEING MADE TO YOUR EMPLOYEES IN LIEU OF QUARTERS, SUCH ARRANGEMENT HAS NOT PROVEN SATISFACTORY. IT IS UNDERSTOOD FURTHER THAT BUILDINGS SUITABLE FOR LIVING QUARTERS ARE OR WILL BE AVAILABLE SHORTLY FOR ACQUISITION BY YOUR AGENCY BY MEANS OF RENTAL ARRANGEMENTS MADE THROUGH THE DEPARTMENT OF STATE. FURTHERMORE, IT IS UNDERSTOOD THAT EMPLOYEES OF THE COMMISSION WHO ARE PERFORMING FUNCTIONS UNDER TITLE III OF THE PHILIPPINE REHABILITATION ACT OF 1946, ARE TO BE FURNISHED QUARTERS IN RENTED BUILDINGS AND THAT IT IS DEEMED DESIRABLE TO FURNISH QUARTERS ALSO TO EMPLOYEES OF THE COMMISSION WHO ARE PERFORMING FUNCTIONS UNDER TITLE I OF THE REHABILITATION ACT.

THE MATTER OF FURNISHING QUARTERS WITHOUT COST TO EMPLOYEES OF THE GOVERNMENT STATIONED IN FOREIGN COUNTRIES, OR THE GRANTING OF AN ALLOWANCE IN LIEU THEREOF, IS GOVERNED BY THE ACT OF JUNE 26, 1930, SUPRA, WHICH PROVIDES AS FOLLOWS:

THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS AND, WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, NOTWITHSTANDING THE PROVISIONS OF SECTION 1765 OF THE REVISED STATUTES ( U.S.C., TITLE 5, SEC. 0): PROVIDED, THAT SAID RENTED QUARTERS OR ALLOWANCES IN LIEU THEREOF MAY BE FURNISHED ONLY WITHIN THE LIMITS OF SUCH APPROPRIATIONS AS MAY BE MADE THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES.

WHILE THE SAID ACT CONTEMPLATES THAT LIVING QUARTERS ARE TO BE FURNISHED WHERE AVAILABLE AND THAT AN ALLOWANCE FOR LIVING QUARTERS IS TO BE GRANTED IN THOSE INSTANCES WHERE QUARTERS ARE NOT AVAILABLE, THE ACT SPECIFICALLY PROVIDES THAT RENTED QUARTERS, OR ALLOWANCES IN LIEU THEREOF, MAY BE FURNISHED "ONLY WITHIN THE LIMITS OF SUCH APPROPRIATIONS AS MAY BE MADE THEREFOR.' IN SUCH CONNECTION, SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1948, PUBLIC LAW 269, APPROVED JULY 30, 1947, 61 STAT. 609, PROVIDES AS FOLLOWS:

SEC. 204. APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR THE FISCAL YEAR 1948, AVAILABLE FOR EXPENSES OF TRAVEL OR FOR THE EXPENSES OF THE ACTIVITY CONCERNED, ARE HEREBY MADE AVAILABLE FOR LIVING QUARTERS ALLOWANCES IN ACCORDANCE WITH THE ACT OF JUNE 26, 1930 (5 U.S.C. 118A), AND REGULATIONS PRESCRIBED THEREUNDER, AND COST OF LIVING ALLOWANCES SIMILAR TO THOSE ALLOWED UNDER SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, IN ACCORDANCE WITH AND TO THE EXTENT PRESCRIBED BY REGULATIONS OF THE PRESIDENT, FOR ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT PERMANENTLY STATIONED IN FOREIGN COUNTRIES: PROVIDED, THAT THE AVAILABILITY OF APPROPRIATIONS OF THE DEPARTMENT OF STATE UNDER THE CAPTION " FOREIGN SERVICE" SHALL NOT BE AFFECTED HEREBY.

IT IS TO BE NOTED THAT SAID PROVISION OF LAW WOULD AUTHORIZE THE USE OF THE COMMISSION'S APPROPRIATION FOR THE FISCAL YEAR 1948--- FOR CARRYING OUT THE PROVISIONS OF TITLE I OF THE PHILIPPINE REHABILITATION ACT--- FOR THE PAYMENT OF A CASH ALLOWANCE IN LIEU OF QUARTERS IN ACCORDANCE WITH THE ACT OF JUNE 26, 1930, BUT SAID SECTION DOES NOT PROVIDE THAT THE APPROPRIATION IS AVAILABLE FOR THE FURNISHING OF QUARTERS AS CONTEMPLATED BY THE 1930 ACT.

THE APPROPRIATION FOR THE PHILIPPINE WAR DAMAGE COMMISSION CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948, SUPRA, 61 STAT. 601, PROVIDES THAT NOT TO EXCEED $1,900,000 SHALL BE AVAILABLE FOR NECESSARY EXPENSES OF THE COMMISSION FOR THE FISCAL YEAR 1948, IN CARRYING OUT THE PROVISIONS OF TITLE I OF THE PHILIPPINE REHABILITATION ACT OF 1946, SUPRA. HOWEVER, THE APPROPRIATION DOES NOT CONTAIN ANY SPECIFIC AUTHORIZATION THAT SAID SUM MAY BE USED TO ACQUIRE QUARTERS IN THE PHILIPPINES TO HOUSE EMPLOYEES OF THE UNITED STATES AS IN THE CASE WITH THE APPROPRIATION FOR CARRYING OUT THE PROVISIONS OF TITLES III AND V OF THE PHILIPPINE REHABILITATION ACT CONTAINED IN THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, 60 STAT. 600, 621. SEE B-66712, JUNE 13, 1947. THEREFORE, IT APPEARS THAT THE COMMISSION'S APPROPRIATION FOR THE FISCAL YEAR 1948 HAS NOT BEEN SPECIFICALLY MADE AVAILABLE FOR THE FURNISHING OF QUARTERS TO ITS EMPLOYEES.

ALSO, WHILE SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, 60 STAT. 128, QUOTED ABOVE, AUTHORIZED THE COMMISSION TO APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF ITS EMPLOYEES "WITHOUT REGARD TO THE CIVIL SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED," SINCE THE CIVIL SERVICE LAWS PERTAIN TO APPOINTMENT TO POSITIONS UNDER THE FEDERAL GOVERNMENT, AND THE CLASSIFICATION ACT RELATES TO THE FIXING OF RATES OF COMPENSATION, THE TERM "ALLOWANCES" AS USED IN THE SAID SECTION 101 (B) MUST BE CONSTRUED AS AUTHORIZING ONLY SUCH ALLOWANCES AS WOULD AFFECT COMPENSATION. SEE 26 COMP. GEN. 165. HENCE, IT REASONABLY MAY NOT BE SAID THAT SUCH PORTION OF SECTION 101 (B) HAS ANY APPLICATION TO THE AUTHORITY OF THE COMMISSION TO FURNISH EMPLOYEES WITH QUARTERS IN LIEU OF A CASH ALLOWANCE.

HOWEVER, SECTION 101 (B) OF TITLE I OF THE PHILIPPINE REHABILITATION ACT, QUOTED IN THE AFORESAID LETTER OF DECEMBER 30, 1947, ALSO PROVIDES THAT THE COMMISSION "MAY MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS. AS INDICATED ABOVE, THE APPROPRIATION FOR THE PHILIPPINE WAR DAMAGE COMMISSION FOR THE CURRENT FISCAL YEAR PROVIDES THAT NOT TO EXCEED $1,900,000 SHALL BE AVAILABLE FOR NECESSARY EXPENSES IN CARRYING OUT THE PROVISION OF TITLE I OF THE PHILIPPINE REHABILITATION ACT OF 1946. THEREFORE, WHILE SPECIFIC AUTHORITY TO FURNISH QUARTERS TO EMPLOYEES OF THE COMMISSION IS NOT CONTAINED IN THE CURRENT APPROPRIATION ACT, IN VIEW OF THE BROAD AUTHORITY GRANTED TO THE COMMISSION IN SECTION 101 (B) OF TITLE I OF THE BASIC ACT, IT REASONABLY MAY BE SAID THAT THE COMMISSION MAY FURNISH QUARTERS TO EMPLOYEES IN LIEU OF A CASH ALLOWANCE FOR QUARTERS IF IT BE DETERMINED THAT SUCH EXPENDITURES IS NECESSARY TO CARRY OUT ITS FUNCTIONS. IN OTHER WORDS, THE LANGUAGE OF SECTION 101 (B) MAY BE CONSIDERED AS SUFFICIENT TO MAKE THE PRESENT APPROPRIATION AVAILABLE FOR QUARTERS AS CONTEMPLATED BY THE ACT OF JUNE 26, 1930, SUPRA, EVEN THOUGH THE APPROPRIATION DOES NOT AUTHORIZE SUCH EXPENDITURE IN SPECIFIC TERMS.