
    ARTHUR A. AGETON v. THE UNITED STATES
    [No. 43970.
    Decided March 2, 1942]
    
      Mr. Fred W. Shields for plaintiff. King db King were on the briefs.
    
      Mr. L. R. Mehlvnger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   GreeN, Judge,

delivered the opinion of the court:

The plaintiff, who is a Lieutenant in the United States Navy, brings this suit to recover rental and subsistence allowances which he claims are due him from the Government for the period from May 1, 1932, to November 24, 1933.

The defendant now concedes that the evidence shows that the plaintiff had a dependent mother during the period covered by his claim, and there is no dispute as to the other material facts in the case. The controversy is as to the amount due the plaintiff.

Part of the period involved as shown by the findings the plaintiff was assigned and occupied a room in the bachelor quarters of the Government. This room was provided with bath and was located at the Naval Air Station at Coronado, California. Plaintiff’s mother did not at any time during the period involved occupy Government quarters.

During the time that plaintiff was neither assigned to public quarters nor on sea duty, plaintiff was paid the rental allowance of an officer of his status without dependents. During the period of May 1, 1932, to December 24, 1933, plaintiff was paid the subsistence allowance of an officer of his status without dependents. Plaintiff claims to be entitled to the full allowance for the period involved and seeks to recover the balance due bim accordingly.

Plaintiff bases his claim to full rental allowance under provisions of section 2 of the Act of May 31, 1924, 43 Stat. 250, amending section 6 of the Act of June 10, 1922. This statute has been reenacted in the United States Code but no change has been made in the wording thereof although the sections have been renumbered so that section 6 has now become section 10.

The determination of the case depends upon the construction given to that portion of the Act which reads as follows:

Sec. 2. That section 6 of said Act be, and the same is hereby, amended to read as follows:
Seo. 6. Except as otherwise provided in the fourth paragraph of this section, each commissioned officer below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this Act, while either on active duty or entitled to active-duty pay shall be entitled at all times to a money allowance for rental of quarters. * * *
No rental allowance shall accrue to an officer, having no dependents, while he is on field or sea duty, nor while an officer with or without dependents is assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank or a less number of rooms in any particular case wherein, in the judgment of competent superior authority of the service concerned, a less number of rooms would be adequate for the occupancy of the officer and his dependents.

The last paragraph quoted above is the fourth paragraph of section 6.

This court has in many decisions with reference to allowances made to Naval officers announced principles which are inconsistent with the construction of the statute contended for by plaintiff, and which would deny him a full allowance under the circumstances shown in the findings.

The court is now, however, informed for the first time that the Comptroller General’s Office has uniformly and continuously held, ever since the amendment of the statute in 1924, that an officer with dependents on sea duty who is not given any quarters for his dependents is entitled to the full rental allowance, evidently because a berth in a cabin on shipboard was not regarded as quarters. This ruling passed directly on the allowance of an officer having dependents when on sea duty. The nature of the case is such that it must have arisen on very numerous occasions since, and a large number of officers paid accordingly. The rule is so well established that the long continued practice of administrative officials who were called upon to administer the Act (especially when in the meantime, it has been reenacted) is evidence of its proper construction and acquiescence by the legislative body therein, that we need to make no citation of authorities.

While this rule is not in accord with principles laid down by this court in prior decisions with reference to allowances to Naval officers, this court has never passed upon the precise point here involved nor even considered the effect of the amendments made by the Act of 1924.

We are therefore of the opinion that the administrative practice must prevail and plaintiff given the full allowance during the period he was on sea duty.

The determination of what plaintiff’s allowance should be during the period when he occupied Government quarters presents a very different question. The plaintiff claims he is entitled to the full allowance for this period also. It is obvious that such a ruling would give him five rooms, one of which he occupied, and four for which he would be paid; but such a holding would be in direct conflict with the provisions of the statute which fixed the number of rooms to which he was entitled at four and we must construe the statute as a whole. The portion of the statute upon which plaintiff relies we think is ambiguous and not clear in its meaning when considered in connection with the other provisions.

Under such circumstances, a reasonable construction should be given to the statute and we do not think it could have been intended by Congress that an officer should be given a room which he occupies, and at the same time be paid for it, especially when such a holding would conflict with other provisions of the statute.

We therefore conclude that this part of the case should be decided in conformity with our opinions previously rendered and that the plaintiff should be charged with the room he occupied in Government quarters for the period of such occupancy and reimbursed for the three rooms to which he was otherwise entitled, all at the monetary value fixed by presidential order. While the rule applied may not work out with perfect equity in all cases, we think that it is the fairest that can be made.

Entry of judgment will be deferred until the incoming of a report from the General Accounting Office showing the balance due plaintiff computed in accordance with the findings and this opinion. When this is determined, judgment will be rendered in plaintiff’s favor accordingly.

Whalet, C/Mef Justice, concurs.

Jones, Judge,

concurring:

I concur in the result on the ground that, while the plaintiff is entitled to a statutory allowance equivalent to the fixed value of four rooms, the value of the one room actually assigned and used should be treated as a partial allotment or part payment of the statutory obligation. While divided living quarters may not be equivalent to complete undivided quarters, the awarding of the full allowance for four rooms without any deduction for the one room actually assigned and used would amount to more than the statutory allowance.

Madden, Judge,

dissenting in part:

I do not agree with that part of the decision and opinion of the court which disallows plaintiff’s claim for the period during which he occupied bachelor quarters.

The applicable statute is Section 6 of the Act of June 10, 1922, as amended by Section 2 of the Act of May 31, 1924. (43 Stat. 250, 37 U. S. C. A., sec. 10.) The first paragraph of that section is as follows:

Except as otherwise provided in the fourth paragraph of this section, each commissioned officer below the grade of brigadier general or its equivalent, in any of the services mentioned in the first paragraph of section 1 of this title, while either on active duty or entitled to active duty pay shall be entitled at all times to a money allowance for rental of quarters. The amount of such money allowance for the rental of quarters shall be determined by the rate for one room to be fixed by the President for each fiscal year in accordance with a certificate furnished by the Secretary of Labor showing the costs of rents for the calendar year 1922. Such rate for one room is hereby fixed at $20 per month for the fiscal year 1928, and this rate shall be the maximum and shall be used by the President as the standard in fixing the same or lower rates for subsequent years.

The second and third paragraphs specify the number of rooms, or corresponding allowance, to which officers of different ranks are entitled. The fourth paragraph is as follows:

No rental allowance shall accrue to an officer, having no dependents, while he is on field or sea duty, nor while an officer with or without dependents is assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank or a less number of rooms in any particular case wherein, in the judgment of competent superior authority of the service concerned, a less number of rooms would be adequate for the occupancy of the officer and his dependents.

The fifth paragraph of the section authorizes the President to make regulations in execution of the provisions of the section.

In reporting the bill which contained the section enacted and referred to above, the Committee on Military Affairs of the House of Eepresentatives said of the section:

The second section of the bill is a redraft of section 6 of the pay readjustment act relating to money allowance for rental of quarters in order to make clear the import and uniform the application of the same. The textual arrangement and scheme of the section as a whole has been much improved by including and combining all the exclusionary provisions affecting rental allowance in a single paragraph. This paragraph is preceded by three paragraphs containing the express grant of rental allowance, certain and unconditional in nature except as conditioned by aforesaid exclusionary provisions of the fourth paragraph, as conclusively appears from the initial clause of the redrafted section, reading “Except as otherwise provided in the fourth, paragraph of this section.” The effect of this is to simplify the meaning and administration of this section by securing to all officers drawing pay-period pay the corresponding rental allowance which the section creates and which ceases to accrue only in the circumstances specified in the fourth paragraph thereof.
That the language of the existing section, as reflecting the legislative intent in this matter, has proved unsatisfactory and should not longer be allowed to stand is the conclusion of your committee from a consideration of various decisions of the Comptroller General thereon. (2 Comp. Gen. 47, July 25, 1922; 2 Comp. Gen. 107, August 11, 1922 ; 2 Comp. Gen. 160, August 30,1922 ; 2 Comp. Gen. 399, December 26,1922; 2 Comp. Gen. 430, January 10, 1923 ; 2 Comp. Gen. 437, January 16, 1923; 2 Comp. Gen. 745, May 10, 1923; reconsideration decision, May 22, 1923, to Secretary of War; Royce case, June 30,1923.)

The decisions of the Comptroller General cited in the report showed that it had been necessary for the departments to submit many questions to the Comptroller General concerning the 1922 act.

The language of the amended statute and the congressional intent as shown by the committee report show that the purpose of the Congress was to “simplify the meaning and administration” of the rental allowance statute, by expressly granting to each officer an allowance “certain and unconditional in nature except as conditioned by aforesaid exclusionary provisions of the fourth paragraph,” and “which ceases to accrue only in the circumstances specified in the fourth paragraph * * *.”

The fourth paragraph of the section, quoted above, has no application to plaintiff’s situation. He was not an officer “having no dependents.” He was not an officer “assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank * * He was entitled to four rooms and was assigned one. No “competent superior authority” had decided nor does the defendant now contend that the one room assigned him was “adequate for the occupancy of the officer and his dependents.”

Plaintiff’s case, then, seems to be within the provisions of the statute granting a four-room rental allowance, and not within the exclusionary provisions. The court nevertheless has held that for a part of the period in question, plaintiff should not receive the full statutory allowance, but one-fourth less, or an allowance for three rooms, because during that part of the period plaintiff had a room in public quarters. The basis for the court’s holding apparently is that the rental allowance is a reimbursement for expenses incurred, and since plaintiff has been saved the expense of one room by having a room in public quarters, his allowance should be reduced accordingly.

I disagree for two reasons. First, it seems to me to be directly in the teeth of the statute, the meaning of which is further pointed with unusual clarity by the Committee report. Second, as a doctrine of offsets invented by the court to put equity in the statute, it is not supportable because it is unfair.

The statute, particularly in view of the accompanying committee report, seems to me to be clear in its purpose. It provides for money allowances for rental of quarters, fixes the number of rooms to which officers of the several ranks shall be entitled, and sets the money value of each room. Then in the fourth paragraph of Section 6 it provides that no rental allowance should accrue to officers in certain circumstances. One of those is that he be an officer without dependents while on sea duty. Plaintiff was an officer with dependents while on sea duty. He did not come within the exclusionary language, and the court so holds and gives him his allowance for his time on board ship. The other situation in which an officer is excluded from the statutory allowance is that he be “an officer with or without dependents * * * assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank or a less number of rooms in any particular case wherein, in the judgment of competent superior authority of the service concerned, a less number of rooms would be adequate for the occupancy of the officer and his dependents.” Again plaintiff does not come within the exclusionary language, as both parties readily concede. Yet the court holds that plaintiff, on this count, does not get the money allowance provided in the earlier paragraphs of the section, but a part of it. Here the court, I think, is entitled to credit for invention. There is not a syllable in the statute, which was intended by its draftsmen “to make clear the import and uniform the application” of the act relating to money allowances for rental of quarters, which could be regarded as an anticipation of this result. The committee report shows that plaintiff’s statutory allowance was to “cease to accrue only in the circumstances ■specified in the fourth paragraph * * Plaintiff was, admittedly not “in the circumstances specified in the fourth paragraph”, yet a substantial part of his allowance “ceases to accrue” nevertheless.

No reason is given in the opinion of the court for giving plaintiff his full allowance while on board ship but deducting a part of it while on shore except that as to the former situation the Comptroller General in numerous rulings has so held. The Comptroller General seems not to have ruled as to the latter situation. The opinion of the court concedes that there is no logical difference between the two situations. That being obviously true, the Comptroller General may be expected to rule, when the occasion arises, that one situated as plaintiff is shall have his full allowance. The court in this case rules to the contrary. Yet the Committee’s purpose in amending the act was “to make clear the import and vmform the application of the same.” [Italics supplied.]

As to the equity of the defendant’s position, there is no evidence that an officer with dependents entitled to four rooms can maintain his dependents at one place in three rooms at the standard at which he and they are expected to live, at three-fourths the rent of a four-room apartment. Experience is to the contrary. If in fact he rents quarters for his dependents with the remaining three-fourths of his rental allowance, his family will live in inadequate quarters in one place, while he does the same in another. He and they will, therefore, be penalized, either financially if he provides them with adequate quarters, or in their standard of living if he provides them with what he can get for the remaining portion of the allowance, because he is unfortunate enough to be an officer stationed at a post where official living quarters for officers’ families are not available.

Judge Littleton authorizes me to say that he concurs in this opinion. 
      
       House Report No. 236, 68th Cong., 1st Sess.
     