JANUARY 24, 1924, 3 COMP. GEN. 448

JANUARY 24, 1924, 3 COMP. GEN. 448

COMMUTATION OF QUARTERS, HEAT, AND LIGHT - OFFICERS' CLUBS BUILDINGS ERECTED BY A LICENSEE UPON GOVERNMENT-OWNED LAND AT AN ARMY POST, UPON ABANDONMENT BY THE LICENSEE, BECOME PUBLIC PROPERTY AND WHEN OCCUPIED BY ARMY OFFICERS AS QUARTERS ARE AVAILABLE PUBLIC QUARTERS AND PRECLUDE THE PAYMENT TO SUCH OFFICERS OF ALLOWANCES FOR COMMUTATION OF QUARTERS, HEAT, AND LIGHT. THE FACT THAT THE OFFICERS HAVE ORGANIZED A MUTUAL CLUB TO CARE FOR THE BUILDINGS AND PAY A FIXED CHARGE TO SUCH CLUB DOES NOT DEPRIVE THE BUILDINGS OF THEIR CHARACTER AS PUBLIC QUARTERS. COMP. GEN., 436, AFFIRMED. THE ACTUAL OCCUPANCY OF PUBLIC QUARTERS BY ARMY OFFICERS LEAVES NO QUESTION AS TO THE AVAILABILITY OF PUBLIC QUARTERS FOR DETERMINATION BY THE SECRETARY OF WAR UNDER THE ACT OF MARCH 4, 1915, 38 STAT., 1069. (BYERLY V. UNITED STATES, DECIDED BY COURT OF CLAIMS APRIL 16, 1923, NOT FOLLOWED.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JANUARY 24, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 29, 1923, AS FOLLOWS:

IT IS REQUESTED THAT THE DECISION RENDERED ON FEBRUARY 18, 1922 (1 COMP. GEN., 436), PRECLUDING THE PAYMENT OF COMMUTATION IN THE CASE OF AN OFFICER ON DUTY AT CAMP KNOX, AND LIVING AT THE OFFICERS' CLUB, BE RECONSIDERED, IN VIEW OF THE RULING OF THE COURT OF CLAIMS IN AN ANALOGOUS CASE (BYERLY V. UNITED STATES, APRIL 16, 1923, NO. B-59), GRANTING SUCH ALLOWANCE.

THIS REQUEST IS BASED ON THE FACT THAT UNDER THE PRESENT RULING, AS HELD, NOT ONLY ARE REQUESTS FOR PAYMENT BEING REFUSED, BUT PAYMENTS ALREADY MADE CONTRARY TO THE DECISION OF FEBRUARY 18, 1922, CITED ABOVE, ARE BEING SUSPENDED BY THE GENERAL ACCOUNTING OFFICE, AND THE OFFICERS REQUIRED TO REFUND THE AMOUNT PAID THEM BY FINANCE OFFICERS, NOTWITHSTANDING THE FACT THAT THE IDENTICAL OFFICER MAY, UPON STATEMENT OF HIS CLAIM TO THE COURT OF CLAIMS, RECEIVE REIMBURSEMENT IN THE AMOUNT REFUNDED.

IN THE CASE OF HAUSEMAN, 1 COMP. GEN., 436, THE FACTS WERE THAT HE, WHILE ASSIGNED TO DUTY AT CAMP KNOX, WITH HIS FAMILY OCCUPIED QUARTERS IN THE OFFICERS' CLUB, PAYING THEREFORE TO THE AGENT OF THE CLUB. IN THAT CASE THERE WAS CONSIDERED WHETHER OCCUPANCY OF QUARTERS IN THE OFFICERS' CLUB HOUSED IN A BUILDING OWNED OR CONTROLLED BY THE UNITED STATES WAS OCCUPANCY OF PUBLIC QUARTERS WITHIN THE MEANING OF THE ACT OF MARCH 2, 1907, 34 STAT., 1169, AUTHORIZING COMMUTATION OF QUARTERS "AT PLACES WHERE THERE ARE NO PUBLIC QUARTERS," AND THE ACT OF MARCH 4, 1915, 38 AT., 1069, AUTHORIZING SUCH COMMUTATION "AT PLACES WHERE THERE ARE NO PUBLIC QUARTERS AVAILABLE," AND IT WAS HELD THAT QUARTERS IN AN OFFICERS' CLUB IN A BUILDING OWNED OR CONTROLLED BY THE GOVERNMENT AT AN ARMY CAMP ARE PUBLIC QUARTERS, OCCUPANCY OF WHICH, BY AN OFFICER AND HIS WIFE, PRECLUDES PAYMENT OF COMMUTATION OF QUARTERS.

IN THE BYERLY CASE, 58 CT.CLS., 269, THE CLAIM FOR COMMUTATION OF QUARTERS COVERED THE PERIOD JANUARY 24 TO APRIL 7, 1922; THE CLAIMANT WAS ON DUTY AT CAMP KNOX, AND DURING THE PERIOD COVERED BY THE CLAIM HE AND HIS FAMILY OCCUPIED ROOMS IN THE OFFICERS' CLUB, FOR WHICH HE MADE PAYMENT TO THE AGENTS OF THE CLUB. THE HAUSEMAN CASE AND BYERLY CASE APPEAR IDENTICAL IN FACT AND PRINCIPLE, AND AS THE CONCLUSIONS ARE DIRECTLY OPPOSITE BOTH CAN NOT BE CORRECT. THE FACTS DISCLOSED, THE REASONING, AND THE CONCLUSION OF THE COURT OF CLAIMS IN THE BYERLY CASE WILL, THEREFORE, BE CONSIDERED WITH A VIEW TO DETERMINING WHETHER THE JUDGMENT IN THAT CASE JUSTIFIES A REVERSAL OF THE DECISION OF THIS OFFICE IN HAUSEMAN'S CASE.

THE COURT OF CLAIMS IN ITS FOURTH FINDING OF FACT QUOTED WAR DEPARTMENT CORRESPONDENCE RESPECTING THE OCCUPANCY IN 1919 OF QUARTERS BY THE DEPENDENTS OF AN OFFICER ON DUTY AT CAMP KNOX IN THE WAR CAMP COMMUNITY SERVICE HOTEL, THEN UNDER CONSTRUCTION AT THAT CAMP BY THE WAR CAMP COMMUNITY SERVICE, AND HIS RIGHT TO COMMUTATION OF QUARTERS, HEAT, AND LIGHT FOR SUCH DEPENDENTS BY REASON OF BEING ON FIELD DUTY. THE WAR TERMINATED JULY 2, 1921, 41 STAT., 1359, AND THE WAR CAMP COMMUNITY SERVICE HAD RELINQUISHED ITS RIGHTS IN THE BUILDING PRIOR TO THE PERIOD COVERED BY BYERLY'S CLAIM. THE CORRESPONDENCE QUOTED BY THE COURT THEREFORE DESCRIBED CONDITIONS WHICH DID NOT EXIST DURING THE PERIOD COVERED BY BYERLY'S CLAIM. THE COURT DETERMINED AS A "CONCLUSION OF LAW" THAT BYERLY WAS ENTITLED TO RECOVER. IN A "MEMORANDUM" FOLLOWING, THE COURT SAYS:

UNDER THE ACT OF MARCH 4, 1915, 38 STAT., 1069, IT IS PROVIDED "THAT HEREAFTER THE SECRETARY OF WAR MAY DETERMINE WHERE AND WHEN THERE ARE NO PUBLIC QUARTERS AVAILABLE WITHIN THE MEANING OF THIS OR ANY OTHER ACT.'

THE SECRETARY OF WAR DETERMINED THAT THERE WERE NO PUBLIC QUARTERS AVAILABLE FOR THE USE OF THE PLAINTIFF AT CAMP KNOX, AND, THAT BEING SO, HE WAS ENTITLED TO COMMUTATION OF QUARTERS, HEAT, AND LIGHT WHILE OCCUPYING AND PAYING FOR ROOMS IN THE OFFICERS' CLUB AT CAMP KNOX.

THE DECISION OF THE SECRETARY OF WAR IS CONCLUSIVE. UNITED STATES V. JONES, 18 HOWARD, 92; DYER V. UNITED STATES, 37 C.CLS., 337; ACKER V. UNITED STATES, 46 C.CLS., 63.

THE PLAINTIFF IN THIS CASE HAD TO PAY OUT HIS OWN MONEY FOR QUARTERS, HEAT, AND LIGHT. THE GOVERNMENT FAILED TO FURNISH HIM WITH QUARTERS, AND HAVING HIRED THEM AT HIS OWN EXPENSE THE GOVERNMENT MUST REIMBURSE HIM.

APPARENTLY THE COURT'S ACTION WAS BASED ON THE OFFICER'S RIGHT UNDER THE ACT OF MARCH 4, 1915, AND NOT UNDER THE ACT OF APRIL 16, 1918, 40 STAT., 530. THE COURT NECESSARILY ACCEPTED AS A FACT THAT THE UNITED STATES HAD NO RIGHT, TITLE, OR INTEREST IN THE BUILDING DENOMINATED THE ,OFFICERS' CLUB," AND THAT OCCUPANCY OF QUARTERS IN THAT BUILDING WAS NOT AN OCCUPANCY OF PUBLIC QUARTERS; OR THAT UNDER THE PROVISION OF THE ACT OF MARCH 4, 1915, QUOTED, THE SECRETARY OF WAR COULD DETERMINE AS A FACT THAT WHICH DID NOT IN FACT EXIST, AND THE OFFICER'S RIGHTS BE DETERMINED ACCORDINGLY; THAT IS, THAT THERE COULD BE AN OCCUPANCY OF PUBLIC QUARTERS BY AN OFFICER, AND NOTWITHSTANDING THE OFFICER BE ENTITLED TO COMMUTATION OF QUARTERS UNDER A DETERMINATION BY THE SECRETARY OF WAR THAT DURING THE PERIOD THERE WERE NO PUBLIC QUARTERS AVAILABLE FOR HIM.

THE BUILDING IN QUESTION, AS STATED IN THE CORRESPONDENCE QUOTED IN THE FOURTH FINDING OF FACT, AND IN THE HISTORY OF THE BUILDING QUOTED IN DECISION OF FEBRUARY 18, 1922, WAS CONSTRUCTED BY THE WAR CAMP COMMUNITY SERVICE, ONE OF THE SEVEN AFFILIATED ORGANIZATIONS SUPPORTED BY PUBLIC SUBSCRIPTION FOR THE PROVISION OF SOCIAL AND RECREATIONAL ACTIVITIES IN THE CAMPS MAINTAINED DURING THE WAR. WAR DEPARTMENT CIRCULAR NO. 483, DATED OCTOBER 21, 1919, PROVIDES IN PART:

THE FOLLOWING CIRCULAR, APPLICABLE ONLY TO FORCES SERVING WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES IS PUBLISHED FOR THE INFORMATION AND GUIDANCE OF ALL CONCERNED:

1. IN ACCORDANCE WITH THE POLICY OF THE WAR DEPARTMENT, AS OUTLINED IN SECTION IV, GENERAL ORDERS, NO. 109, WAR DEPARTMENT, 1919, AND SUBSEQUENT INSTRUCTIONS, THE ACTIVITIES OF THE SEVEN AFFILIATED ORGANIZATIONS AT ALL POSTS, CAMPS, AND STATIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, WILL BE TAKEN OVER BY, AND BECOME THE RESPONSIBILITY OF, THE ARMY NOVEMBER 1, 1919. AT EACH POST, CAMP, AND STATION THE RESPONSIBILITY RESTS WITH THE COMMANDING OFFICER, AND WILL BE DISCHARGED THROUGH THE EDUCATION AND RECREATION OFFICER ON HIS STAFF.

4. * * * THE TAKING OVER OF BUILDINGS AND EQUIPMENT AND EMPLOYMENT OF CIVILIAN PERSONNEL WILL BE AS OUTLINED BELOW:

5. THE NATIONAL HEADS OF THE SEVEN AFFILIATED ORGANIZATIONS HAVE BEEN REQUESTED TO INSTRUCT THEIR SENIOR REPRESENTATIVES IN POSTS, CAMPS, AND STATIONS TO PREPARE, NOT LATER THAN OCTOBER 26, 1919, A TYPEWRITTEN LIST IN QUADRUPLICATE SHOWING THE NUMBER OF BUILDINGS AND AMOUNT OF EQUIPMENT IT IS PROPOSED TO TURN OVER TO THE ARMY. NOT EARLIER THAN OCTOBER 26, 1919, AND NOT LATER THAN OCTOBER 31, 1919, EACH POST, CAMP, AND STATION COMMANDER WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WILL DETAIL AN OFFICER OF HIS STAFF TO ARRANGE FOR THE TAKING OVER OF THIS PROPERTY. TWO LISTS REMAIN WITH THE REPRESENTATIVE OF THE WELFARE ORGANIZATION; OF THE OTHER TWO, ONE, WITH THE CERTIFICATE OF THE OFFICER THAT IT HAS BEEN VERIFIED BY HIM, WILL BE RETAINED IN THE POST, CAMP, OR STATION, AND THE OTHER, WITH A SIMILAR CERTIFICATE, WILL BE FORWARDED TO THE ADJUTANT GENERAL OF THE ARMY, WASHINGTON, D.C.

7. CERTAIN OF THE RED CROSS ACTIVITIES WILL BE MAINTAINED. THIS WILL INCLUDE "HOME SERVICE; RECREATIONAL AND ENTERTAINMENT PROGRAM FOR SICK, WOUNDED, AND CONVALESCENT IN ARMY HOSPITALS; AND COMMUNICATION SERVICE IN ARMY HOSPITALS," THE LAST TWO BEING FOR PATIENTS ONLY.

8. OF THE BUILDINGS TAKEN OVER, POST, CAMP, AND STATION COMMANDERS WILL RESERVE AN ADEQUATE NUMBER TO MEET THE NEEDS OF SERVICE CLUBS WITHIN THEIR COMMANDS. THEIR NUMBER, SIZE, SUITABILITY, AND LOCATION IS LEFT TO THE DISCRETION OF THE VARIOUS COMMANDING OFFICERS, BUT PRECAUTION WILL BE TAKEN THAT THE CONTEMPLATED NORMAL GARRISON WILL BE ADEQUATELY PROVIDED FOR. COMMANDING OFFICERS WILL ALSO NOTE, ON THE LISTS FORWARDED, BUILDINGS NOT SET ASIDE FOR SERVICE CLUBS, AND THEIR CONTEMPLATED USE, IF ANY, THIS IN ORDER THAT THE QUESTION OF SALVAGE MAY BE PROPERLY DISPOSED OF. SUCH EQUIPMENT AS IS TURNED OVER, AND IS NOT NEEDED FOR SERVICE CLUB WORK WITHIN EACH STATION, WILL BE HELD SUBJECT TO INSTRUCTIONS OF THE WAR DEPARTMENT. THE FACT THAT IT IS SURPLUS WILL BE NOTED ON THE ABOVE- MENTIONED INVENTORY.

9. IT IS POSSIBLE THAT REPRESENTATIVES OF THE VARIOUS WELFARE ORGANIZATIONS WILL NOT BE ABLE TO SETTLE ALL THE DETAILS OF THEIR BUSINESS PRIOR TO OCTOBER 31, 1919. COMMANDING OFFICERS ARE AUTHORIZED TO ALLOW THEM A REASONABLE TIME TO CLEAN UP SUCH MATTERS. THIS PRIVILEGE REFERS TO THEIR INTERIOR ADMINISTRATION ONLY, AND IS NOT TO BE CONSTRUED AS AUTHORIZATION FOR ANY DELAY IN THE ARMY'S TAKING CHARGE.

ABANDONMENT IN THE LEGAL AND TECHNICAL SENSE IS DEFINED IN VOLUME 1, CORPUS JURIS, AS---

* * * MADE UP OF TWO ELEMENTS, ACT AND INTENTION. IT INCLUDES BOTH THE INTENTION TO ABANDON AND THE EXTERNAL ACT BY WHICH THE INTENTION IS CARRIED INTO EFFECT.

AND IT IS FURTHER SAID THAT "THE INTENTION TO ABANDON IS TO BE DERIVED FROM ALL THE FACTS AND CIRCUMSTANCES OF THE CASE.'

WAR DEPARTMENT CIRCULAR NO. 570, DATED DECEMBER 27, 1919, PROVIDES IN PART:

2. DURING THE WORLD WAR THE WELFARE ORGANIZATIONS OF THE COUNTRY PROVIDED AN IMPORTANT MEANS OF MAINTAINING A CLOSE CONTACT BETWEEN THE ARMY AND THE NATION. OF THE SEVEN AFFILIATED ORGANIZATIONS WORKING WITH THE WAR DEPARTMENT, ONE, THE WAR CAMP COMMUNITY SERVICE, WAS ESTABLISHED WITH THE SPECIFIC IDEA OF PERFORMING SERVICE FOR THE ARMED FORCES IN THE COMMUNITIES OF THE COUNTRY.

THE WAR CAMP COMMUNITY SERVICE WAS ONE OF THE SEVEN AFFILIATED ORGANIZATIONS REFERRED TO IN CIRCULAR NO. 483, 1919, AND THE EVIDENCE CONTAINED IN THE PUBLICATIONS OF THE WAR DEPARTMENT CLEARLY ESTABLISH ABANDONMENT. WHAT EVIDENCE WAS PRESENTED TO THE COURT ON WHICH IT BASED ITS SECOND FINDING OF FACT THAT UPON THE WITHDRAWAL OF THE WAR CAMP COMMUNITY SERVICE "FROM THE CAMP THE BUILDING WAS NEITHER ABANDONED NOR TURNED OVER TO THE GOVERNMENT," IS NOT DISCLOSED. THE PUBLICATIONS OF THE WAR DEPARTMENT SHOW IT TO HAVE BEEN ONE OF THE CLASS OF BUILDINGS DESCRIBED IN CIRCULAR NO. 483 TO BE TURNED "OVER TO THE ARMY" AND RESERVED "TO MEET THE NEEDS OF SERVICE CLUBS.'

IT MUST BE ASSUMED THAT THE LICENSEE ABANDONED THE BUILDING TO THE UNITED STATES; THAT IT IS NOW, AND SINCE NOVEMBER 1, 1919, HAS BEEN A PART OF THE REALTY, THE PROPERTY OF THE UNITED STATES. THE CLAIM OF THE GROUP OF OFFICERS STYLING THEMSELVES THE "OFFICERS' CLUB," OF RIGHT TO USE THE BUILDING FOR OTHER THAN ARMY PURPOSES, IS ADVERSE TO THE UNITED STATES, AND NO EVIDENCE HAS BEEN SUBMITTED THAT THE SECRETARY OF WAR HAS AFFIRMATIVELY TURNED OVER TO SUCH "OFFICERS' CLUB" THE CUSTODY AND CONTROL OF THE BUILDING WITH RIGHT TO CHARGE OFFICERS OF THE ARMY FOR USE THEREOF. NOR IS THERE KNOWN TO THIS OFFICE ANY STATUTE OR RULE OF LAW WHICH WOULD PERMIT THE GRATUITOUS ASSIGNMENT TO A MUTUAL ASSOCIATION OF OFFICERS OF THE GOVERNMENT OF A BUILDING OWNED BY THE UNITED STATES FOR THE PURPOSE OF RENTING ROOMS THEREIN TO OFFICERS OF THE ARMY WHO WHEN ON DUTY AT A POST OR STATION ARE ENTITLED UNDER THE LAW TO PUBLIC QUARTERS OR TO A RENTAL ALLOWANCE IN LIEU THEREOF IF PUBLIC QUARTERS ARE NOT AVAILABLE.

ON THE EVIDENCE SO FAR ACCUMULATED THE BUILDING IS THE ABSOLUTE PROPERTY OF THE GOVERNMENT, AND IF IT CAN BE SO ASSIGNED NO REASON IS PERCEIVED WHY SUCH AN ASSIGNMENT COULD NOT BE MADE OF ANY BUILDING UNDER THE CONTROL OF THE WAR DEPARTMENT USED BY OFFICERS AS QUARTERS WITH POSSIBLY A CHARGE MADE TO ASSIST IN DEFRAYING THE EXPENSES OF MAINTAINING CLUB ACTIVITIES, RESTAURANT, SODA FOUNTAIN, ETC., AND SUCH OFFICERS BE PAID THE ALLOWANCE FOR RENTAL OF QUARTERS AS FOR NO PUBLIC QUARTERS AVAILABLE FOR THEM.

THE COURT REFERS TO THE SECRETARY'S AUTHORITY OR DISCRETION UNDER THE ACT OF MARCH 4, 1915. THAT DISCRETION IS A LEGAL DISCRETION, AND IF THERE WAS OR IS AN ACTUAL OCCUPANCY OF PUBLIC QUARTERS THE STATUTE DOES NOT AUTHORIZE A DETERMINATION THAT NO PUBLIC QUARTERS ARE AVAILABLE SO AS TO ENTITLE THE OFFICER TO COMMUTATION OF QUARTERS; IN SUCH A CASE THERE IS NO QUESTION CAPABLE OF BEING DETERMINED IN DIFFERENT WAYS AND NO OPPORTUNITY FOR THE EXERCISE OF DISCRETION. IT HAS ALWAYS BEEN THE RULE THAT ANY OCCUPANCY OF PUBLIC QUARTERS DEFEATS A CLAIM FOR COMMUTATION DURING THE PERIOD OF OCCUPANCY.

IT IS BELIEVED THAT THE CONCLUSION REACHED BY THIS OFFICE IN DECISION OF FEBRUARY 18, 1922, IS FULLY SUPPORTED BY THE LAW AND THE EVIDENCE. IF THE EVIDENCE PRESENTED TO THE COURT OF CLAIMS IN THE BYERLY CASE WARRANTED A DIFFERENT CONCLUSION IT HAS NOT BEEN MADE CLEAR TO THIS OFFICE, AND UNTIL IT IS THE CONCLUSION ANNOUNCED IN DECISION OF FEBRUARY 18, 1922, MUST BE ADHERED TO. ..END :