B-28478, MAY 1, 1944, 23 COMP. GEN. 823

B-28478, MAY 1, 1944, 23 COMP. GEN. 823

LEASES - LIMITATION ON RENTAL OF STORAGE SPACE IN DISTRICT OF COLUMBIA THE PROVISION IN THE ACT OF MARCH 2, 1913, LIMITING THE RENTAL THAT MAY BE PAID FOR "STORAGE ACCOMMODATIONS" IN THE DISTRICT OF COLUMBIA TO 25 CENTS PER SQUARE FOOT, WAS NOT REPEALED BY SECTIONS 322 AND 802 OF THE ECONOMY ACT OF 1932, RESTRICTING THE AMOUNT OF RENTAL THAT MAY BE PAID FOR LEASED PREMISES TO 15 PER CENT OF THE FAIR MARKET VALUE THEREOF AND REPEALING ALL PRIOR LAWS INCONSISTENT OR IN CONFLICT WITH SAID ACT, AND, THEREFORE, THIS OFFICE WILL CONTINUE TO APPLY THE LIMITATION OF THE 1913 ACT TO LEASES FOR THE RENTAL OF STORAGE SPACE IN THE DISTRICT OF COLUMBIA.

ACTING COMPTROLLER GENERAL YATES TO THE FEDERAL WORKS ADMINISTRATOR, MAY 1, 1944:

I HAVE YOUR LETTER OF FEBRUARY 26, 1944, REQUESTING RECONSIDERATION OF THE DECISIONS OF THIS OFFICE HOLDING APPLICABLE TO LEASES OF STORAGE SPACE IN THE DISTRICT OF COLUMBIA, THE PROVISIONS OF THE ACT OF MARCH 2, 1913, 37 STAT. 718, AUTHORIZING THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS TO ENTER INTO CONTRACTS FOR THE LEASE FOR PERIODS OF NOT EXCEEDING SIX YEARS OF MODERN FIREPROOF STORAGE ACCOMMODATIONS WITHIN THE DISTRICT OF COLUMBIA FOR THEIR RESPECTIVE DEPARTMENTS AT RATES PER SQUARE FOOT OF AVAILABLE FLOOR SPACE NOT EXCEEDING 25 CENTS.

YOUR LETTER TAKES THE POSITION THAT THE PROVISION IN QUESTION WAS INSERTED IN THE ARMY APPROPRIATION ACT FOR THE FISCAL YEAR 1914 WITH A VIEW TO LEASING A PARTICULAR BUILDING AND THAT SUCH PROVISION WAS REPEALED BY SECTION 802 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 419, BY REASON OF AN ALLEGED INCONSISTENCY WITH THE RENTAL LIMITATION OF SECTION 322 OF THE LATTER ACT. IN SUPPORT OF THAT VIEW THERE ARE CITED IN YOUR LETTER SEVERAL AUTHORITIES TO THE EFFECT THAT WHERE A LATER ACT COVERS THE WHOLE SUBJECT OF EARLIER ACTS, EMBRACES NEW PROVISIONS, AND PLAINLY SHOWS THAT IT WAS INTENDED, NOT ONLY AS A SUBSTITUTE FOR THE EARLIER ACTS BUT TO COVER THE WHOLE SUBJECT THEN CONSIDERED BY THE LEGISLATURE, AND TO PRESCRIBE THE ONLY RULES IN RESPECT THERETO, IT OPERATES AS A REPEAL OF ALL FORMER STATUTES RELATING TO SUCH SUBJECT MATTER. IT IS FURTHER STATED IN YOUR LETTER THAT LEASES FOR THE RENTAL OF STORAGE SPACE--- PRESUMABLY UNDER THE INTERPRETATION THAT THE EARLIER ACT WAS REPEALED BY THE LATTER ACT--- ANNUALLY HAVE BEEN INCLUDED IN THE BUDGET ESTIMATE OF YOUR AGENCY AND ITS PREDECESSORS AND IN THIS MANNER BROUGHT TO THE ATTENTION OF COMMITTEES OF CONGRESS WITHOUT OBJECTION; THAT THE CONGRESS NEVER CONSIDERED THAT THE 1913 ACT WAS APPLICABLE TO SUCH LEASES; AND THAT THE APPLICATION OF THE 1913 ACT WAS NOT BROUGHT TO THE ATTENTION OF YOUR AGENCY BY THIS OFFICE UNTIL JANUARY 19, 1943.

THE ACT OF MARCH 2, 1913, 37 STAT. 704, 718, PROVIDES IN PERTINENT PART:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS ARE AUTHORIZED TO ENTER INTO CONTRACTS FOR THE LEASE, FOR PERIODS OF NOT EXCEEDING SIX YEARS, OF MODERN FIREPROOF STORAGE ACCOMMODATIONS WITHIN THE DISTRICT OF COLUMBIA, FOR THEIR RESPECTIVE DEPARTMENTS, AT RATES PER SQUARE FOOT OF AVAILABLE FLOOR SPACE NOT EXCEEDING 25 CENTS, PAYABLE FROM APPROPRIATIONS THAT CONGRESS MAY FROM TIME TO TIME MAKE FOR RENT OF BUILDINGS FOR THEIR RESPECTIVE DEPARTMENTS.

SECTIONS 322 AND 802 OF THE ACT OF JUNE 30, 1932, 47 STAT. 412, 419, PROVIDE, RESPECTIVELY:

SEC. 322. HEREAFTER NO APPROPRIATION SHALL BE OBLIGATED OR EXPENDED FOR THE RENT OF ANY BUILDING OR PART OF A BUILDING TO BE OCCUPIED FOR GOVERNMENT PURPOSES AT A RENTAL IN EXCESS OF THE PER ANNUM RATE OF 15 PERCENTUM OF THE FAIR MARKET VALUE OF THE RENTED PREMISES AT DATE OF THE LEASE UNDER WHICH THE PREMISES ARE TO BE OCCUPIED BY THE GOVERNMENT NOR FOR ALTERATIONS, IMPROVEMENTS, AND REPAIRS OF THE RENTED PREMISES IN EXCESS OF 25 PERCENTUM OF THE AMOUNT OF THE RENT FOR THE FIRST YEAR OF THE RENTAL TERM, OR FOR THE RENTAL TERM IF LESS THAN ONE YEAR: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO LEASES HERETOFORE MADE, EXCEPT WHEN RENEWALS THEREOF ARE MADE HEREAFTER, NOR TO LEASES OF PREMISES IN FOREIGN COUNTRIES FOR THE FOREIGN SERVICES OF THE UNITED STATES.

SEC. 802. ALL ACTS AND PARTS OF ACTS INCONSISTENT OR IN CONFLICT WITH THOSE PROVISIONS OF THIS ACT WHICH ARE OF TEMPORARY DURATION ARE HEREBY SUSPENDED DURING THE PERIOD IN WHICH SUCH PROVISIONS OF THIS ACT ARE IN EFFECT. ALL ACTS OR PARTS OF ACTS INCONSISTENT OR IN CONFLICT WITH THOSE PROVISIONS OF THIS ACT WHICH ARE OF PERMANENT NATURE ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

AS APPEARS FROM YOUR LETTER, THE VIEW THAT THE 1913 ACT WAS REPEALED BY THE PROVISIONS OF SECTIONS 322 AND 802 OF THE ACT OF JUNE 30, 1932, IS BASED, PRIMARILY, ON THE THEORY THAT SINCE IT WAS THE INTENT OF THE CONGRESS IN ENACTING THE LATER ACT "TO COVER THE WHOLE SUBJECT OF THE LEASING OF ALL PROPERTIES," ALL PRIOR LAWS ON THE SAME SUBJECT WERE REPEALED. WHILE THE RULE RELIED ON IN SUPPORT OF YOUR VIEW IS A WELL ESTABLISHED CANON OF STATUTORY CONSTRUCTION, AN EXAMINATION OF JUDICIAL PRECEDENTS WITH RESPECT THERETO DISCLOSES THAT THE SCOPE OF ITS APPLICATION IS LIMITED TO THOSE INSTANCES WHERE THE LATER ACT PLAINLY SHOWS THAT IT WAS INTENDED TO COVER THE WHOLE SUBJECT MATTER TO WHICH IT RELATES AND TO PRESCRIBE THE ONLY RULES WITH RESPECT THERETO.

IN UNITED STATES V. HENDERSON, 11 WALL. 652, 20 L.1ED. 235, WITH RESPECT TO THE CONTENTION THAT A LATER ACT REPEALED CERTAIN PRIOR LAWS, IT WAS STATED:

IF THIS IS SO, IT WAS A REPEAL BY IMPLICATION ONLY. THAT ACT CONTAINS NO WORDS EXPRESSLY REPEALING EITHER THE ACT OF 1867 OR THAT OF 1864 * * *. ON THE CONTRARY, THE REPEALING CLAUSE, WHICH IT DOES CONTAIN, INDICATES PLAINLY THE INTENTION OF CONGRESS TO LEAVE IN FORCE SOME PORTIONS OF FORMER ACTS RELATIVE TO THE SAME SUBJECT-MATTER. THE 125TH SECTION ENACTS "THAT ALL ACTS AND PARTS OF ACTS INCONSISTENT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED.' THIS IS AN EXPRESS LIMITATION OF THE EXTENT TO WHICH IT WAS INTENDED FORMER ACTS SHOULD CEASE TO BE OPERATIVE, NAMELY, ONLY SO FAR AS THEY ARE INCONSISTENT WITH THE NEW ACT. IT IS QUITE INADMISSABLE TO ENGRAFT UPON THIS EXPRESS DECLARATION OF LEGISLATIVE INTENT AN IMPLICATION OF MORE EXTENSIVE REPEAL. * * * ALSO, IN GREAT NORTHERN RY. CO. V. UNITED STATES, 155 F. 945, IT WAS STATED:

IN SUPPORT OF THE CONTENTION THAT BY ITS REENACTMENT, WITH MODIFICATIONS, SECTION 1 OF THE ELKINS ACT WAS ENTIRELY REPEALED * * * COUNSEL FOR THE RAILWAY COMPANY RELY UPON SUCH CASES AS NORRIS V. CROCKER * * * UNITED STATES V. TYNEN * * * TRACY V. TUFFY * * * MURPHY V. UTTER * * * FROM WHICH THEY DEDUCE THE CONCLUSION THAT WHERE A LATER ACT COVERS THE WHOLE SUBJECT OF A PRIOR ONE, AND EMBRACES NEW PROVISIONS PLAINLY SHOWING THAT IT WAS INTENDED AS A SUBSTITUTE, IT OPERATES BY IMPLICATION, AND WITHOUT ANY REPEALING CLAUSE, AS AN UNQUALIFIED REPEAL OF THE WHOLE OF THE PRIOR ACT. IN OUR OPINION THERE ARE TWO INSUPERABLE OBJECTIONS TO THIS POSITION: FIRST, THE REPEALING CLAUSE IN THE HEPBURN ACT," ALL LAWS AND PARTS OF LAWS IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED,"EXPRESSES THE EXTENT TO WHICH IT WAS INTENDED TO REPEAL PRIOR LAWS, AND EXCLUDES ANY IMPLICATION OF A MORE EXTENDED REPEAL. HENDERSON'S TOBACCO, 11 WALL 652, 656, 20 L.1ED. 235 * * *.

IT IS STATED IN SUTHERLAND STATUTORY CONSTRUCTION, VOLUME 1, 3D EDITION, SECTION 2013, PAGE 466, AS FOLLOWS:

AN EXPRESS GENERAL REPEALING CLAUSE TO THE EFFECT THAT ALL INCONSISTENT ENACTMENTS ARE REPEALED, IS IN LEGAL CONTEMPLATION A NULLITY. REPEALS MUST EITHER BE EXPRESSED OR RESULT BY IMPLICATION. A GENERAL REPEALING CLAUSE CANNOT BE DEEMED AN EXPRESS REPEAL BECAUSE IT FAILS TO IDENTIFY OR DESIGNATE ANY ACT TO BE REPEALED. IT CANNOT BE DETERMINATIVE OF AN IMPLIED REPEAL FOR IT DOES NOT DECLARE ANY INCONSISTENCY BUT CONVERSELY, MERELY PREDICATES A REPEAL UPON THE CONDITION THAT A SUBSTANTIAL CONFLICT IS FOUND UNDER APPLICATION OF THE RULES OF IMPLIED REPEALS. IF ITS INCLUSION IS MORE THAN MERE MECHANICAL VERBIAGE, IT IS MORE OFTEN A DETRIMENT THAN AN AID TO THE ESTABLISHMENT OF A REPEAL, FOR SUCH A CLAUSE IS CONSTRUED AS AN EXPRESS LIMITATION OF THE REPEAL TO INCONSISTENT ACTS.

IN VIEW OF THE FOREGOING, IT IS EVIDENT THAT THE REPEALING CLAUSE IN SECTION 802 OF THE 1932 ACT CANNOT BE CONSTRUED AS INDICATIVE OF AN INTENT OF THE CONGRESS THAT SECTION 322 OF SAID ACT WAS "TO COVER THE WHOLE SUBJECT" OF THE LEASING OF PROPERTY BY THE GOVERNMENT. RATHER, AS SHOWN BY THE AUTHORITIES HEREINBEFORE CITED, THE REPEALING CLAUSE, IN FACT, OPERATES TO NEGATIVE SUCH AN INTENT. HENCE, UNLESS THE LEGISLATIVE INTENT SOUGHT TO BE ESTABLISHED BY YOU CAN BE ADDUCED FROM THE PROVISIONS OF SECTION 322 ITSELF, IT NECESSARILY FOLLOWS THAT THE RULE OF CONSTRUCTION RELIED ON IS NOT FOR APPLICATION IN THE PRESENT MATTER.

FURTHERMORE, THE BASIS FOR YOUR CONCLUSION THAT SECTION 322 OF THE ACT OF JUNE 30, 1932--- COMMONLY KNOWN AS THE ECONOMY ACT--- COVERS THE WHOLE SUBJECT OF THE 1913 ACT AND WAS PLAINLY INTENDED AS A SUBSTITUTE FOR IT IS NOT READILY APPARENT EITHER FROM AN EXAMINATION OF THE CIRCUMSTANCES ATTENDING THE ENACTMENT OF THE 1932 ACT OR FROM THE LANGUAGE EMPLOYED IN SAID SECTION. OBVIOUSLY, AS ITS POPULAR NAME SUGGESTS, THE PRIMARY PURPOSE OF THE VARIOUS PROVISIONS OF THE 1932 ACT WAS TO EFFECT A DRASTIC ECONOMY IN GOVERNMENT EXPENDITURES. PRACTICALLY EVERY PHASE OF FEDERAL ACTIVITY INVOLVING THE EXPENDITURE OF PUBLIC MONEYS WAS CURTAILED--- IN FACT, MANY WERE DISCONTINUED. IT IS MANIFEST, THEREFORE, THAT THE INTENT OF THE CONGRESS IN ENACTING SECTION 322, OF THE ACT WAS TO REDUCE--- NOT TO INCREASE--- THE AMOUNTS PAID BY THE GOVERNMENT AS RENT OF BUILDINGS OR SPACE THEREIN. OBVIOUSLY, RENT BASED ON 15 PERCENT OF THE FAIR MARKET VALUE OF PROPERTY--- THE MAXIMUM RATE AUTHORIZED BY SECTION 322--- WOULD FAR EXCEED, IN MOST INSTANCES, RENT AT THE RATE OF 25 CENTS PER SQUARE FOOT -- THE MAXIMUM RATE PRESCRIBED UNDER THE 1913 ACT--- AND, CONSEQUENTLY, IT WOULD BE ENTIRELY INCONSISTENT WITH THE SPIRIT AND PURPOSE OF THE LATER STATUTE TO ATTRIBUTE TO IT ANY INTENT TO REPEAL OR SUPERSEDE THE EARLIER ONE.

FURTHERMORE, WHILE NOT CONCLUSIVE OF THE INTENT OF THE CONGRESS IN THE MATTER, THE FACT THAT THE LATER ACT CONTAINS NO MENTION OF THE EARLIER ONE NOR MAKES ANY REFERENCE TO THE SUBJECT MATTER THEREOF, NAMELY, THE MAXIMUM RENT TO BE PAID FOR "STORAGE ACCOMMODATIONS WITHIN THE DISTRICT OF COLUMBIA" IS ANOTHER INDICATION THAT IT WAS NOT THE LEGISLATIVE INTENT TO CONSTITUTE SECTION 322 AS "COVERING THE WHOLE SUBJECT" OF RENTAL OF BUILDINGS BY THE GOVERNMENT. SEE UNITED STATES V. SECURITY-FIRST NAT. BANK OF LOS ANGELES, 30 F.1SUPP. 113.

WITH REFERENCE TO THE QUESTION AS TO WHETHER THE PROVISIONS OF THE TWO STATUTES ARE INCONSISTENT OR CONFLICTING, IT IS SIGNIFICANT THAT EACH OF THE STATUTES IMPOSES A MAXIMUM LIMITATION ON THE RATE OF RENTAL THAT MAY BE PAID UNDER THE CONDITIONS PRESCRIBED. WHILE, GENERALLY, THE MAXIMUM RENT AUTHORIZED BY THE 1932 ACT WOULD EXCEED THAT AUTHORIZED BY THE 1913 ACT, THIS FACT DOES NOT RENDER THE STATUTES INCONSISTENT OR CONFLICTING, SINCE, UNDER SUCH CIRCUMSTANCES, THE RENT AUTHORIZED BY THE OLD ACT OBVIOUSLY WOULD BE WITHIN THE MAXIMUM LIMITATION OF THE NEW ACT.

THE MATTERS SET FORTH IN YOUR LETTER HAVE BEEN GIVEN CAREFUL CONSIDERATION, BUT I FIND NO SOUND BASIS FOR ANY CHANGE IN THE CONCLUSIONS HERETOFORE REACHED IN THE DECISIONS OF JANUARY 19 (22 COMP. GEN. 658) AND JUNE 12, 1943, B-28478, TO THE EFFECT THAT THE ACT OF MARCH 2, 1913, 37 STAT. 718, HAS NOT BEEN REPEALED AND THAT UNLESS AND UNTIL IT IS EXPRESSLY REPEALED, THIS OFFICE WILL CONTINUE TO APPLY IT TO LEASES FOR THE RENTAL OF STORAGE SPACE IN THE DISTRICT OF COLUMBIA.