B-11810, AUGUST 22, 1940, 20 COMP. GEN. 102

B-11810, AUGUST 22, 1940, 20 COMP. GEN. 102

QUARTERS FOR NATIONAL-DEFENSE EMPLOYEES SECTION 8 (B) OF THE NATIONAL DEFENSE ACT OF JUNE 28, 1940, MAY NOT BE CONSTRUED AS AUTHORIZING THE USE OF NAVAL APPROPRIATIONS MADE FOR CONSTRUCTION OR PROCUREMENT OF VESSELS, AIRCRAFT, ETC., TO PROVIDE HOUSING FOR PERSONNEL ENGAGED IN THE PRODUCTION OF SUCH NATIONAL DEFENSE NEEDS. THE VALUE OF GOVERNMENT QUARTERS FURNISHED CIVILIAN FIELD EMPLOYEES ENGAGED IN PRODUCTION OF NATIONAL DEFENSE NEEDS NEED NOT BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS BUT SHOULD BE CONSIDERED PART OF THEIR COMPENSATION AND THEIR CASH COMPENSATION PAYMENT REDUCED ACCORDINGLY, BUT RENTAL RECEIVED FROM OTHERS SO QUARTERED SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 22, 1940:

CONSIDERATION HAS BEEN GIVEN THE QUESTIONS SUBMITTED IN YOUR LETTER OF AUGUST 13, 1940, AS FOLLOWS:

INFORMATION AT PRESENT AVAILABLE INDICATES THAT THE SHIPBUILDING AND AIRPLANE PRODUCTION PROGRAMS FOR THE NAVY WILL BE SERIOUSLY RETARDED UNLESS PROVISION IS MADE FOR HOUSING WORKERS ENGAGED ON THESE PROGRAMS. SUCH HOUSING WOULD BE REQUIRED AT PRIVATE ESTABLISHMENTS AS WELL AS AT NAVY YARDS AND OTHER GOVERNMENT ESTABLISHMENTS.

SECTION 8 (B) OF THE ACT " TO EXPEDITE NATIONAL DEFENSE, AND FOR OTHER PURPOSES," APPROVED JUNE 28, 1940 ( PUBLIC NO. 671, 76TH CONGRESS), PROVIDES:

"/B) WHENEVER THE SECRETARY OF THE NAVY FINDS IT IMPOSSIBLE TO MAKE CONTRACTS OR OBTAIN FACILITIES TO EFFECTUATE THE PURPOSES OF THIS ACT IN THE PROCUREMENT OR CONSTRUCTION OF ITEMS AUTHORIZED IN CONNECTION WITH NATIONAL DEFENSE HE IS HEREBY AUTHORIZED TO PROVIDE, OUT OF APPROPRIATIONS AVAILABLE IN THE NAVY DEPARTMENT FOR SUCH PURPOSES, THE NECESSARY BUILDINGS, FACILITIES, UTILITIES, AND APPURTENANCES THERETO ON GOVERNMENT OWNED LAND OR ELSEWHERE, AND TO OPERATE THEM, EITHER BY MEANS OF GOVERNMENT PERSONNEL OR OTHERWISE: * * *"

IN CONNECTION WITH THE FOREGOING YOUR DECISION IS REQUESTED ON THE FOLLOWING SPECIFIC UESTIONS:

(A) WHETHER, UNDER SECTION 8 (B), SUPRA, THE SECRETARY OF THE NAVY IS AUTHORIZED TO PROVIDE HOUSING FOR PERSONNEL ENGAGED ON PRODUCTION FOR THE NAVY DEPARTMENT OUT OF CURRENT NAVAL APPROPRIATIONS?

(B) WOULD IT BE LEGAL TO HAVE THIS HOUSING CONSTRUCTED BY A PRIVATE SHIPBUILDER UTILIZING GOVERNMENT FUNDS AS A SHIPBUILDING FACILITY, THE PRIVATE SHIPBUILDER TO COLLECT THE RENTS AND CREDIT THEM TO THE COST OF THE VESSEL OR VESSELS?

(C) WHETHER, IN THE CASE OF A PROJECT CONSTRUCTED AT OR IN THE VICINITY OF A NAVY YARD, THE RENTS WOULD HAVE TO BE TURNED IN TO THE TREASURY AS " MISCELLANEOUS RECEIPTS," OR WHETHER SOME PROCEDURE COULD BE ESTABLISHED FOR REDUCING THE PAY OF EMPLOYEES BY THE VALUE OF THE RENTALS, THUS OBTAINING THE REIMBURSEMENT FOR THE COST OF THE HOUSING?

IN VIEW OF THE URGENCY OF THIS SUBMISSION IN CONNECTION WITH NATIONAL DEFENSE, IT IS REQUESTED THAT YOUR DECISION ON THE QUESTIONS HEREIN PRESENTED BE EXPEDITED AS MUCH AS POSSIBLE.

THE AUTHORITY CONFERRED BY THE LANGUAGE QUOTED FROM SECTION 8 (B) OF THE ACT APPROVED JUNE 28, 1940, PUBLIC, 671, 54 STAT. 680, IS BROAD AND COMPREHENSIVE, BUT NOTHING IS FOUND IN THE NATURAL IMPORT OF SUCH LANGUAGE, OR IN THE LEGISLATIVE HISTORY OF THE ACT, OR IN OTHER RECENT ENACTMENTS IN PARI MATERIA, DISCLOSING ANY LEGISLATIVE INTENT THAT APPROPRIATIONS MADE FOR THE CONSTRUCTION OR PROCUREMENT OF NAVAL VESSELS, AIRCRAFT, AND OTHER EQUIPMENT AND SUPPLIES FOR NATIONAL DEFENSE SHOULD BE AVAILABLE FOR BUILDING HOUSES TO BE RENTED TO WORKERS ENGAGED IN THE PRODUCTION OF SUCH NATIONAL-DEFENSE NEEDS. ON THE CONTRARY, BY TITLE II OF THE VERY SAME ACT, PUBLIC, 671, 54 STAT. 681, THE CONGRESS EXPRESSLY PROVIDED A MEANS FOR "MAKING NECESSARY HOUSING AVAILABLE FOR PERSONS ENGAGED IN NATIONAL-DEFENSE ACTIVITIES" INCLUDING, INTER ALIA,"WORKERS WITH FAMILIES, WHO ARE ENGAGED OR TO BE ENGAGED IN INDUSTRIES CONNECTED WITH AND ESSENTIAL TO THE NATIONAL DEFENSE GRAM," BY COOPERATION OF THE NAVY AND WAR DEPARTMENTS WITH, AND -- SUBJECT TO APPROVAL BY THE PRESIDENT --- UTILIZING THE FUNDS AND RESOURCES OF, THE UNITED STATES HOUSING AUTHORITY. HAVING THUS SPECIFICALLY LEGISLATED ON THE SUBJECT, IT IS NOT TO BE INFERRED THAT THE CONGRESS INTENDED, BY THE SAME ACT AND WITHOUT EXPRESS MENTION, TO AUTHORIZE THE GENERAL USE FOR SUCH PURPOSES OF NAVY APPROPRIATIONS MADE FOR THE PROCUREMENT OF NATIONAL-DEFENSE EQUIPMENT AND MATERIEL. MOREOVER, THERE IS NOW BEFORE THE CONGRESS IN CONNECTION WITH THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION BILL, 1941, H.R. 10263, REPORTED BACK TO THE SENATE WITH AMENDMENTS FROM THE SENATE COMMITTEE ON APPROPRIATIONS BY SENATOR MCKELLAR ON AUGUST 19, 1940, AN AMENDMENT INTENDED TO APPROPRIATE $100,000,000 TO THE PRESIDENT FOR ALLOCATION TO THE WAR DEPARTMENT AND THE NAVY DEPARTMENT FOR TEMPORARY DWELLINGS TO BE CONSTRUCTED UNDER THE DIRECTION OF THE ARMY, NAVY, OR MARINE CORPS FOR HOUSING PERSONS ENGAGED IN NATIONAL-DEFENSE ACTIVITIES IN LOCALITIES WHERE THE PRESIDENT DETERMINES THAT THERE IS AN ACUTE SHORTAGE OF HOUSING WHICH IMPEDES THE NATIONAL-DEFENSE PROGRAM. SEE THE CONGRESSIONAL RECORD FOR AUGUST 19, 1940, AT PAGES 16036-16042. IN THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE APPROPRIATIONS COMMITTEE ON THE SAID BILL, THE MATTER OF SUCH ADDITIONAL HOUSING FOR NATIONAL-DEFENSE WORKERS WAS DISCUSSED AT SOME LENGTH. THIS WAS ON AUGUST 14 AND 15, 1940, THAT IS, SINCE THE SUBMISSION OF THE PRESENT MATTER TO THIS OFFICE; AND WHILE ADMIRAL MOREELL, FOR THE NAVY DEPARTMENT, AND OTHERS, TESTIFIED AS TO THE NECESSITY FOR A LARGE APPROPRIATION FOR SUCH PURPOSES, THERE APPEARS TO HAVE BEEN NO SUGGESTION BY ANYONE CONCERNED THAT GENERAL APPROPRIATIONS THERETOFORE MADE FOR THE CONSTRUCTION AND PROCUREMENT OF SHIPS, AIRCRAFT, ETC., WERE INTENDED, OR LEGALLY MIGHT BE USED, TO PROVIDE SUCH HOUSING--- IT APPARENTLY BEING ASSUMED THAT SPECIAL LEGISLATION AND APPROPRIATIONS FOR SUCH PURPOSES WOULD BE REQUISITE. SEE THE REPORT OF THE HEARINGS, PAGES 183 ET SEQ. THERE MAY BE POINTED OUT, ALSO, THE APPARENT INCONSISTENCY OF THE REQUIREMENT OF PRESIDENTIAL APPROVAL, UNDER EXPRESS CONDITIONS, FOR SUCH HOUSING CONSTRUCTION UNDER SAID TITLE II OF PUBLIC, 671, SUPRA, AND UNDER THE ABOVE-MENTIONED PROPOSED AMENDMENT TO THE PENDING SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION BILL, IF SUCH HOUSING MAY BE PROVIDED WITHOUT PRESIDENTIAL APPROVAL UNDER GENERAL APPROPRIATIONS FOR THE CONSTRUCTION OR PROCUREMENT OF SHIPS AND AIRCRAFT. IN VIEW OF THESE CONSIDERATIONS, I THINK THE CONCLUSION IS REQUIRED THAT THE AUTHORITY CONFERRED BY THE CITED SECTION 8 (B) OF PUBLIC, 671 TO USE SUCH APPROPRIATIONS TO PROVIDE "THE NECESSARY BUILDINGS, FACILITIES, UTILITIES, AND APPURTENANCES THERETO" IN THE "PROCUREMENT OR CONSTRUCTION" OF ITEMS AUTHORIZED IN CONNECTION WITH NATIONAL DEFENSE, IN THE EVENT THE SECRETARY OF THE NAVY FINDS IT IMPOSSIBLE TO MAKE CONTRACTS OR OBTAIN FACILITIES FOR SUCH PROCUREMENT OR CONSTRUCTION, DOES NOT EXTEND TO BUILDING HOUSES FOR NATIONAL DEFENSE WORKERS, SEPARATE LEGISLATION FOR THAT PURPOSE HAVING BEEN ENACTED AND FURTHER LEGISLATION BEING IN CONTEMPLATION. ACCORDINGLY, I AM CONSTRAINED TO ANSWER THE SUBMITTED QUESTIONS (A) AND (B) IN THE NEGATIVE.

RESPECTING QUESTION (C), YOUR ATTENTION IS INVITED TO SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, WHICH PROVIDES:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

PURSUANT TO THE PROVISIONS OF THIS STATUTE THE REASONABLE VALUE OF QUARTERS FURNISHED CIVILIAN FIELD EMPLOYEES OF THE GOVERNMENT IS REQUIRED TO BE CONSIDERED AS PART OF THEIR COMPENSATION, AND THE AMOUNT OF COMPENSATION PAID IN CASH REDUCED ACCORDINGLY, AND ONLY THE BALANCE PAID IN CASH IS REQUIRED TO BE CHARGED TO THE APPROPRIATION. RENTAL RECEIVED FROM OTHERS, HOWEVER, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY OTHERWISE, IS REQUIRED TO BE DEPOSITED FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. SEE 8 COMP. GEN. 628.