B-49800, JUNE 27, 1945, 24 COMP. GEN. 942

APPROPRIATIONS - TEMPORARY DEFENSE HOUSING - PERIOD OF AVAILABILITY FOR PAYMENT OF OBLIGATIONS OBLIGATED BALANCES OF THE APPROPRIATION FOR " DEFENSE HOUSING"--- TEMPORARY SHELTER--- WHICH WAS EXPRESSLY MADE AVAILABLE FOR OBLIGATION UNTIL JUNE 30, 1943, ONLY, BY THE ACT OF DECEMBER 17, 1941, ARE NOT AVAILABLE FOR PAYMENT PURPOSES AFTER JUNE 30, 1945, BUT MUST BE CARRIED TO THE SURPLUS FUND AND COVERED INTO THE TREASURY IN ACCORDANCE WITH SECTION 5 OF THE ACT OF JUNE 20, 1874, AS AMENDED, REGARDLESS OF WHETHER THE TEMPORARY SHELTER AUTHORIZED BE CONSIDERED "PUBLIC BUILDINGS" SUCH AS WOULD BE WITHIN CERTAIN EXCEPTIONS TO THE REQUIREMENTS OF SAID SECTION 5 BUT FOR THE APPROPRIATION'S LIMITED PERIOD OF AVAILABILITY FOR OBLIGATION.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, JUNE 27, 1945:

REFERENCE IS MADE TO LETTER OF MAY 15, 1945, FROM THE FEDERAL PUBLIC HOUSING COMMISSIONER, AS FOLLOWS:

UNDER THE PROVISIONS OF 31 U.S.C. SEC. 713 THE UNEXPENDED BALANCES OF APPROPRIATIONS REMAINING OUTSTANDING UPON THE BOOKS OF THE TREASURY FOR TWO FISCAL YEARS ARE REQUIRED TO BE CARRIED TO THE SURPLUS FUND. PAYMENTS FROM THESE UNEXPENDED BALANCES MAY NOT BE MADE THEREAFTER EXCEPT THROUGH SPECIAL APPROPRIATIONS BY CONGRESS AFTER CONSIDERATION AND CERTIFICATION BY THE GENERAL ACCOUNTING OFFICE (31 U.S.C. SEC. 714). CONGRESS RECENTLY WAIVED THE REQUIREMENT OF CONGRESSIONAL CONSIDERATION AND SPECIAL APPROPRIATION WITH RESPECT TO CLAIMS NOT EXCEEDING $500 CERTIFIED BY YOU DURING THE FISCAL YEARS 1945 AND 1946 ( FIRST DEFICIENCY APPROPRIATION ACT, 1945). HOWEVER CONGRESS LONG AGO EXCEPTED FROM THE REQUIREMENTS OF SECTION 713 "APPROPRIATIONS FOR RIVERS AND HARBORS, LIGHTHOUSES OR PUBLIC BUILDINGS" (31 U.S.C. SEC. 713; OF 31 U.S.C. SEC. 718), AND ALSO PROVIDED THAT "ALL MONEYS APPROPRIATED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS SHALL REMAIN AVAILABLE UNTIL THE COMPLETION OF EACH OR ANY OF SAID BUILDINGS, AND THE PAYMENT OF ALL OUTSTANDING LIABILITIES THEREFOR, THE BALANCE OR BALANCES REMAINING SHALL BE IMMEDIATELY COVERED INTO THE TREASURY" (31 U.S.C. SEC. 682). (ITALICS SUPPLIED.) 1 COMP. DEC. 487 (1895); 7 ID. 777 (1901).

I WOULD APPRECIATE YOUR DECISION AS TO WHETHER THE APPROPRIATION FOR DEFENSE HOUSING CONTAINED IN PUBLIC LAW 353, 77TH CONGRESS, IS WITHIN THE ABOVE QUOTED EXCEPTIONS AS AN APPROPRIATION FOR PUBLIC BUILDINGS" OR FOR "THE CONSTRUCTION OF PUBLIC BUILDINGS.' PUBLIC LAW 353, 55 STAT. 810, 818, PROVIDES:

"DEFENSE HOUSING: FOR AN ADDITIONAL AMOUNT TO ENABLE THE PRESIDENT OF THE UNITED STATES TO PROVIDE TEMPORARY SHELTER IN LOCALITIES WHERE FOR ANY REASON ARISING OUT OF THE WAR A SHORTAGE OF HOUSING EXISTS, FISCAL YEAR 1942, INCLUDING THE OBJECTS AND SUBJECT TO THE CONDITIONS SPECIFIED UNDER THIS HEAD IN THE URGENT DEFICIENCY APPROPRIATION ACT, 1941, APPROVED MARCH 1, 1941, $300,000,000, TO REMAIN AVAILABLE UNTIL JUNE 30, 1943.'

THE URGENT DEFICIENCY APPROPRIATION ACT, 1941 ( PUBLIC LAW 9, 77TH CONG., 55 STAT. 14) SPECIFIES THAT SUCH DEFENSE HOUSING BE PROVIDED:

"EITHER BY THE CONSTRUCTION OF BUILDINGS OR OTHERWISE, INCLUDING THEIR APPURTENANCES AND INCLUDING THE ACQUISITION OF LAND OR INTERESTS THEREIN * * * IN LOCALITIES WHERE IT IS NOT PRACTICABLE UNDER * * * ( PUBLIC LAW 849, SEVENTY-SIXTH CONGRESS), OR OTHER ACTS OF CONGRESS * * * TO MEET THE IMMEDIATE NEED FOR EMERGENCY HOUSING * * *" (ITALICS SUPPLIED.)

NO DECISION HAS BEEN FOUND INVOLVING THE APPLICABILITY OF THE TERM "PUBLIC BUILDINGS" AS USED IN SECTIONS 713 AND 682, SUPRA, TO BUILDINGS DESIGNED TO PROVIDE TEMPORARY HOUSING ACCOMMODATIONS. HOWEVER DECISIONS CONSTRUING THE SAME TERM AS USED IN RELATED RESTRICTIVE STATUTES HAVE HELD THAT IT INCLUDES THE TYPE OF BUILDINGS APPROPRIATED FOR BY PUBLIC LAW 353, AND WE HAVE ACCORDINGLY SUBJECTED THIS APPROPRIATION TO THE RESTRICTIONS IMPOSED BY THESE STATUTES. SOME OF THESE DECISIONS ARE: UNPRINTED DECISION OF THE COMPTROLLER OF THE TREASURY, DATED AUGUST 12, 1911 (CITED WITH APPROVAL IN 2 COMP. GEN. 14, 15 (1922) AND IN 6 ID. 619, 621 (1927), INVOLVING A TEMPORARY SHED FOR THE SHELTER OF FARM ANIMALS AND A PORTABLE HOUSE FOR THE TEMPORARY USE OF EMPLOYEES); 13 COMP. DEC. 355 (1906) (TEMPORARY PORTABLE BUILDINGS FOR USE IN THE DETENTION AND TREATMENT OF ALIENS); 21 COMP. DEC. 420 (1914) (FARM BUILDINGS CONSISTING OF BARNS, SHEDS, COTTAGES, FEED HOUSES, ETC. OF "FRAME CONSTRUCTION, WITH ROOFING OF SHEET ASBESTOS, AND FOR MOST PART WITH DIRT FLOORS * * * OF THE VERY SIMPLEST CONSTRUCTION * * * OF A TEMPORARY NATURE, * * * CONTEMPLATED (TO BE DESTROYED) * * * WHEN THE PURPOSES OF THE APPROPRIATION ARE ACCOMPLISHED IN THAT VICINITY); 2 COMP. GEN. 14 (1922) (HANGARS, SHOPS AND STOREHOUSES). 6 ID. 619 1927) (TEMPORARY FRAME SHED OR STOREHOUSE). IN 9 COMP. GEN. 75 (19I2) THE SUGGESTION THAT BUILDINGS FOR A RANGER STATION SHOULD NOT BE CONSIDERED AS PUBLIC BUILDINGS "BY REASON OF THEIR UNSUBSTANTIAL OR CHEAP CONSTRUCTION AND THE NECESSITY OF MOVING THE STATIONS FROM TIME TO TIME," AND THE FURTHER SUGGESTION THAT THE TERM "PUBLIC BUILDINGS" SHOULD BE LIMITED TO "PERMANENT BUILDINGS" WERE EXPRESSLY REJECTED. IN 10 COMP. GEN. 461 (1931) INVOLVING THE TERM "PUBLIC BUILDINGS" AS USED IN THE BACON-DAVIS ACT IT WAS HELD, WITH RESPECT TO TEMPORARY BUILDINGS TO BE USED DURING THE CONSTRUCTION OF A DAM, THAT "WHETHER A PUBLIC BUILDING BE OF PERMANENT OR A TEMPORARY CHARACTER, IT IS NONE THE LESS A PUBLIC BUILDING.'

IT WOULD APPEAR, THEREFORE, THAT THE BUILDINGS AUTHORIZED TO BE CONSTRUCTED BY PUBLIC LAW 353 MAY BE CONSIDERED AS "PUBLIC BUILDINGS" WITHIN THE MEANING OF THE TERM AS USED IN SECTIONS 713 AND 682, SUPRA.

MOREOVER, IT WOULD APPEAR FROM THE NATURE OF THE ITEMS EXCEPTED FROM THE TWO YEAR LIMITATION (I.E., APPROPRIATIONS FOR RIVERS AND HARBORS, LIGHTHOUSES AND PUBLIC BUILDINGS) THAT THE ENACTMENT OF THE EXCEPTIONS MUST HAVE BEEN PROMPTED, AT LEAST TO SOME EXTENT, BY THE REALIZATION THAT GOVERNMENT ACTIVITIES INVOLVING LAND ACQUISITION AND CONSTRUCTION OF BUILDINGS AND WORKS NORMALLY NECESSITATE AN UNUSUALLY LONG PERIOD BETWEEN THE OBLIGATION OF APPROPRIATIONS AND FINAL PAYMENT, AND THAT A TWO YEAR STATUTE OF LIMITATIONS WOULD WORK AN UNFAIR HARDSHIP IN THESE CASES. THIS REASON FOR THE EXCEPTIONS IS EVEN MORE APPLICABLE N THE CONDITIONS UNDER WHICH THE FUNDS APPROPRIATED BY PUBLIC LAW 353 WERE OBLIGATED. THIS APPROPRIATION WAS OCCASIONED BY AN IMMEDIATE HOUSING NEED SO UNPREDICTABLE AND URGENT THAT IT WAS NOT "PRACTICABLE" TO MEET IT UNDER THE EMERGENCY PROCEDURES OF THE BASIC DEFENSE HOUSING ACTS ( URGENT DEFICIENCY APPROPRIATION ACT, 1941, QUOTED ABOVE). THE EXTREME PRESSURE FOR IMMEDIATE PROVISION OF SHELTER NECESSITATED THE SIMULTANEOUS ACQUISITION OF THOUSANDS OF PARCELS OF LAND SCATTERED THROUGHOUT THE COUNTRY AND THE SIMULTANEOUS EXECUTION OF CONTRACTS FOR THE CONSTRUCTION OF THOUSANDS OF BUILDINGS. PROCESSING OF THE CONDEMNATION PROCEEDINGS THROUGH THE COURTS, ALREADY OVERLOADED WITH OTHER WAR CONDEMNATIONS, WAS CONSIDERABLY RETARDED BY THE RESULTING CONGESTION. UNDER THESE CIRCUMSTANCES MANY OF THE FINAL DETERMINATIONS AND PAYMENTS OF OBLIGATIONS WERE NECESSARILY DEFERRED. SINCE CONGRESS HAS REPEATEDLY INCREASED THIS EMERGENCY PROGRAM BY ADDITIONAL UNANTICIPATED APPROPRIATIONS, THIS PRESSURE HAS NOT LESSENED. THE RECENT ADDITIONAL LOAD CREATED BY THE APPROPRIATION OF $84,373,000 IN THE FIRST DEFICIENCY APPROPRIATION ACT, 1945, APPROVED APRIL 25, 1945, MAKES IT UNLIKELY THAT ANY SUBSTANTIAL NUMBER OF THESE OUTSTANDING OBLIGATIONS CAN BE CLEARED UP BEFORE JUNE 30, 1945, ALTHOUGH EVERY EFFORT IS BEING MADE AND WILL CONTINUE TO BE MADE TO DO SO.

IT SHOULD ALSO BE NOTED THAT IN A PROGRAM OF THIS KIND THE OBLIGEES CONSTITUTE A CLASS OF PERSONS WHO ARE DEALING WITH THE GOVERNMENT FOR THE FIRST TIME AND WHO HAVE NO KNOWLEDGE OF GOVERNMENT PROCEDURES AND THE REASONS FOR THEM. THIS IS ESPECIALLY TRUE OF THOSE WHOSE LAND HAS BEEN ACQUIRED AND WHO CONSTITUTE BY FAR THE LARGEST GROUP OF THOSE WHO HAVE NOT YET BEEN PAID. THIS GROUP INCLUDES THOSE WHO HAVE PATRIOTICALLY COOPERATED WITH THE GOVERNMENT AS WELL AS THOSE WHOSE PROPERTY HAS BEEN TAKEN FROM THEM WITHOUT THEIR CONSENT UNDER THE WAR POWERS. IT SEEMS ESPECIALLY UNFAIR TO THESE PERSONS TO SUBJECT THEM TO THE ADDED DELAY AND INCONVENIENCE OF A DE NOVO CONSIDERATION OF THEIR OTHERWISE VALID CLAIMS BY THE GENERAL ACCOUNTING OFFICE AND CONGRESS. IT IS ALSO DIFFICULT TO EXPLAIN TO THEM THE NECESSITY OF THIS PROCEDURE AND OF SPECIAL APPROPRIATIONS, IN VIEW OF THE FACT THAT THEIR ACTIONS AND OURS HAVE BEEN BASED ON THE SECURITY OF AN EXISTING APPROPRIATION.

WE FEEL THAT THE IMPROVING WAR SITUATION WILL SOON RELIEVE THE URGENT NEED FOR ADDITIONAL LAND ACQUISITION AND CONSTRUCTION, AND WILL MAKE IT POSSIBLE TO CLEAR UP THESE OUTSTANDING OBLIGATIONS. WE BELIEVE THAT A MINIMUM OF DELAY CAN BE ACHIEVED BY MAKING PAYMENTS ADMINISTRATIVELY AFTER JUNE 30, 1945, FROM THE FUNDS APPROPRIATED BY PUBLIC LAW 353, SUPRA.

IT DOES NOT APPEAR THAT THIS OFFICE HERETOFORE HAS DETERMINED THE QUESTION WHETHER THE TERM ,PUBLIC BUILDINGS" AS USED IN SECTION 5 OF THE ACT OF JUNE 20, 1874, AS AMENDED, 31 U.S.C. 713, AND IN SECTION 1 OF THE ACT OF JUNE 23, 1874, 31 U.S.C. 682, COMPREHENDS TEMPORARY SHELTER OF THE CHARACTER AUTHORIZED TO BE CONSTRUCTED UNDER THE APPROPRIATION HERE INVOLVED. NOR IS IT NECESSARY TO MAKE SUCH DETERMINATION IN THE PRESENT MATTER. IF THE APPROPRIATION INVOLVED IS NOT ONE FOR ,PUBLIC BUILDINGS" WITHIN THE MEANING OF THE SAID STATUTES THEN IT IS CLEAR THAT THE UNEXPENDED BALANCE REMAINING OUTSTANDING FOR TWO FISCAL YEARS IS REQUIRED TO BE CARRIED TO THE SURPLUS FUND AND COVERED INTO THE TREASURY. IF THE APPROPRIATION INVOLVED IS ONE FOR "PUBLIC BUILDINGS" IT NEVERTHELESS IS REQUIRED TO BE CARRIED TO THE SURPLUS FUND BY REASON OF THE SPECIFIC LIMITATION PLACED UPON ITS AVAILABILITY BY THE CONGRESS. " PUBLIC BUILDINGS" APPROPRIATIONS ARE EXCEPTED FROM THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 20, 1874, AS AMENDED, SUPRA, ONLY WHEN NOT OTHERWISE PROVIDED BY THE CONGRESS. THE APPROPRIATION HERE INVOLVED EXPRESSLY STATES THAT IT IS "TO REMAIN AVAILABLE UNTIL JUNE 30, 1943.' THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT, OR OTHERWISE, INDICATING AN INTENTION ON THE PART OF THE CONGRESS THAT THE SAID APPROPRIATION SHOULD BE AVAILABLE FOR OBLIGATING UP TO AND INCLUDING JUNE 30, 1943, ONLY, BUT THAT IT SHOULD CONTINUE AVAILABLE, INDEFINITELY, FOR THE PAYMENT OF OBLIGATIONS INCURRED ON OR PRIOR TO THAT DATE. ANY SUCH THEORY IS CONTRARY TO THE BASIC PRINCIPLES UNDERLYING THE SUBJECT STATUTES. IN VIEW OF THE SPECIFIC PROVISION, SUPRA, RELATIVE TO THE PERIOD OF AVAILABILITY OF THE APPROPRIATION HERE INVOLVED SAID APPROPRIATION CLEARLY IS NOT SUBJECT TO THE PROVISIONS OF 31 U.S.C. 682; AND I FIND NO BASIS FOR HOLDING THAT THE PROVISO IN 31 U.S.C. 713 CAN HAVE ANY APPLICATION TO AN APPROPRIATION THE PERIOD OF AVAILABILITY OF WHICH OTHERWISE IS SPECIFICALLY FIXED BY LAW, AS IN THE PRESENT CASE.

IN VIEW OF THE FOREGOING IT MUST BE HELD THAT THE APPROPRIATION FOR " DEFENSE HOUSING" CONTAINED IN THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942, PUBLIC LAW 353, APPROVED DECEMBER 17, 1941, 55 STAT. 818, WILL LAPSE FOR PAYMENT PURPOSES ON JUNE 30, 1945, AND THE BALANCE THEREOF THEN REMAINING WILL BE REQUIRED TO BE CARRIED TO THE SURPLUS FUND AND COVERED INTO THE TREASURY IN ACCORDANCE WITH SECTION 5 OF THE ACT OF JUNE 20, 1874, AS AMENDED, 31 U.S.C. 713.