
    CLIFFORD JONES v. THE UNITED STATES
    [No. D-316.
    Decided April 13, 1925]
    
      On the Proofs
    
    
      Income tax; quarters; commutation of quarters.- — Quarters furnished to officers of the Army in Rind and commutation of quarters paid to them where quarters can not be furnished in Rind, are allowances and not compensation within the meaning of the laws of Congress imposing the income tax.
    
      The Reporter's statement of the case :
    
      Mr. Jesse I. Miller for the plaintiff. . Messrs. Terry A. Lyón and G. A. Bermett were on the briefs.
    
      Mr. Fred K. Dyar, with whom was Mr. Assistant Attorney General Robert II. Lovett, for the defendant. Messrs. Nelson T. Hart son, Forest D. Siefhin, Chester A. Gwinn, and O. R. McGwire were on the brief.
    The following are the facts as found by the court:
    I. The plaintiff, Clifford Jones, is a citizen of the United States residing in the city of Washington, District of Columbia. On June 11, 1903, plaintiff was duly commissioned second lieutenant in the Army of the United States and thereafter he was successively promoted to the grades of first lieutenant and captain, and thereafter, to wit, on July 1, 1920, he was promoted to and commissioned in the grade of major in the United States Army, which grade and rank he is now, and was at all times hereinafter mentioned, occupying and holding.
    II. During the period beginning January 1, 1923, and ending December 31, 1923, plaintiff received pay as an officer of the Army of the United States in the sum of $5,-507.24; during the period January 1, 1923, to August 25, 1923, plaintiff was on official duty as an officer of the Army of the United States at Fortress Monroe, Va., during which period he was required to occupy, and did occupy, Government quarters in connection with the performance of his official duties at the said Fortress Monroe. During the period August 25, 1923, to December 31, 1923, plaintiff was on duty in the city of Washington, D. C.; there were no public quarters available, and he was paid the sum of $500 cash by the War Department as money allowance for rental of quarters; and in fact, did actually expend for quarters in said District of Columbia during said period more than the sum of $500.
    III. Prior to the filing of his income tax return for the year 1923, plaintiff submitted to' the Commissioner of Internal Revenue the question of whether or not the alleged fair rental value of public quarters furnished him at Fortress Monroe and the sum of $500, being the amount of commutation of quarters furnished plaintiff, constituted a part of his gross income for the year 1923. The Commissioner of Internal Revenue held that the fair rental value of quarters in kind furnished plaintiff at Fortress Monroe for the period indicated above was $940 and that both this sum and the sum of $500, commutation of quarters, constituted income to the plaintiff for the year 1923 and should be included in plaintiff’s gross income for the year 1923.
    IY. Plaintiff, on or about the 1st day of March, 1924, filed with the collector of internal revenue at Baltimore, Md., his return of income for the year 1923, and included therein, under protest and pursuant to the decision of the Commissioner of Internal Revenue, the items $940 and $500 heretofore mentioned. The total tax appearing to be due upon said return, by the inclusion of said items of $940 and $500, was $210.73.
    Y. Simultaneously with the filing of said return, plaintiff paid to the collector of internal revenue at Baltimore, Md., one-fourth of said amount, to wit, $52.68, under protest and duress.
    VI. Thereafter, to wit, on the 4th day of March, 1924, plaintiff duly filed an application with the Bureau of Internal Revenue, to wit, a claim for refund on Treasury Department Form No. 843, praying for the refund of the sum-of $21.89, which represented so much of the payment of $52.68 made on March 1, 1924, as was due to the inclusion in his said return of income for the year 1923 of the said items of $940 and $500. Said application was in all respects regular and in accordance with the law and regulations and was accompanied by evidence and proof of facts. On or about the 16th day of April, 1924, the Commissioner of Internal Revenue rejected and denied the said application and has continuously denied and refused to pay plaintiff the moneys asked for and demanded in his said application. No action upon this claim, other than set forth in plaintiff’s petition filed in this court, has been taken before Congress or any other of the departments of the Government. Plaintiff is the sole owner of the claim herein sued upon; no assignment or transfer of the claim, or any part thereof or any interest in the same has been made; plaintiff is a citizen of the United States and loyal to the United States Government, and has not at any time aided or abetted in any manner or given comfort to any sovereign government that is or ever has been at war with the United States.
    VII. The quarters furnished plaintiff at Fortress Monroe during the period January 1 to August 25, 1923, were public quarters owned by the United States Government and situated on its military reservation at Fortress Monroe. During plaintiff’s assignment to duty at Fortress Monroe as an officer of the Army it was compulsory upon him that he occupy the said quarters there so assigned to him.
    
      YIII. During the period August 25, 1923, to December 31, 1923, during which the plaintiff was stationed on official duty in the city of Washington, D. C., he was paid the sum of $500 in cash as money allowance for rental of quarters; said sum of $500 was so paid plaintiff because there were available at the time and place indicated no public quarters.
    IX. It is the understanding of the War Department and customary in the service that an officer shall reside within a reasonable distance of his post of duty when furnished money allowance for rental of quarters.
    X. Army Regulations promulgated in the year 1813 provide, under the chapter entitled “Regulations which shall govern the allowance of quarters, of forage, of fuel, of straw for bedding, of stationery, and of the transportation of the baggage of officers, when ordered on distant com mands,” certain allowance of quarters in kind as follows:
    To a major general, three rooms and a kitchen.
    To a brigadier general and General Staff officers, two rooms and a kitchen.
    To field officers, one room and a kitchen.
    To. captains and similar officers, one room; and for all other commissioned officers, one room to every two officers; and to each mess of six or more officers, one kitchen.
    The General Regulations for the Army, published in 1821 and republished in 1825, contain a table similar to the foregoing and provide, further, as follows:
    “ Quarters will not be rented for officers of the Army when there are public quarters, suitable for their accommodation, at the place where they may be stationed, except in cases where the peculiar nature of their duty requires them to be stationed remote from public quarters.
    “ Officers are entitled to quarters at their permanent stations, whether the quarters be owned by the public or hired; and temporary absence on duty shall not be construed to deprive them of this allowance.
    “No officer shall be entitled to the allowance of fuel or quarters, at any post, unless regularly assigned to duty there; nor then, unless he shall have complied with the regulations, by making a written requisition for those allowances, on the quartermaster, if there be one stationed at the post. Should there not be a quartermaster, at the station, the officer will himself procure these allowances, and will be entitled to the 
      
      sum actually paid for the same, on producing regular vouchers for the payment, accompanied by satisfactory proof that the quarters were actually rented, and the fuel purchased, at the most reasonable rates.
    “ No commutation of money will be allowed to officers of the Army for fuel or quarters, except by express order of the War Department, nor shall orders authorizing such allowances have, in any case, retrospective effect.”
    The Army Regulations of 1835 provided certain additional quarters to officers and further provided as follows:
    “ Quarters shall not be rented for officers or troops, at any post or station where the public quarters, if distributed according to the regulations, shall be sufficient for their accommodation: and it is made the duty of all commanding officers to cause the regulations to be enforced, and to see that the officers of their commands be put in possession of the quarters to which they are entitled, according to their rank. Should any officer be subjected to expense for the hire of quarters, in consequence of the failure of his commanding officer to cause a proper distribution to be made of the quarters at the, post, he shall be reimbursed the expense actually incurred, and the amount shall be charged to the commanding officer, and be refunded by him to the Treasury:,
    “ When officers and troops are assigned to duty at stations where there are no public buildings which they can occupy, the officers of the Quartermaster’s Department shall hire quarters for them, not exceeding the number of rooms to which the officers are entitled, and the space to which the troops are entitled.
    “At stations where officers serve without troops, and where there are no public quarters, the Quartermaster General is authorized to cause quarters to be hired for them; or, if it be found more convenient to the service, to allow them a reasonable commutation in money: Provided, That the allowance shall, in all cases, be so apportioned by the Quartermaster ■General, that the whole sum paid for rent or commutation shall not exceed the present actual expenditures for these objects.
    
    “When a commutation is made for quarters, a commutation will also be allowed for fuel, to be paid by the authority of the Quartermaster General, not to exceed the average market price.
    “ Officers are entitled to quarters at their permanent stations, whether the quarters be owned by the public or hired; and temporary absence on duty shall not be construed to deprive them of this allowance, except when on Court-martial, or other temporary duty, for which they'are allowed a per diem, or when furnished with tents by the public.”
    The Regulations of 1857 provide:
    !i No officer shall occupy more than his proper quarters except by order of the commanding officer when there is an excess of quarters at the station; which order the quartermaster shall forward to the Quartermaster General, to be laid before the Secretary of War. But the amount of quarters shall be reduced pro rata by the commanding officer when the, number of officers and troops make it necessary; and when the public buildings are not sufficient to-quarter the troops, the commanding officer shall report to' the commander of the department for authority to hire-, quarters, or other necessary orders in the case. The department commander shall report the case, and his orders therein, to the Quartermaster General.
    “ WJien public quarters can- not be furnished to officers at stations without troops, or to enlisted men at general or department headquarters, quarters will be commuted at a rate fixed by the Secretary of War, cund fuel at the market price delivered, when fuel and quarters are commuted to an officer by reason of his employment on a civil work, the commutation shall be charged to the appropriation for the work. No commutation of rooms or fuel is allowed for officers or messes.
    “An officer is not deprived of his quarters and fuel, or commutation, at his station, by temporary absence on duty,
    “ Officers and troops in the field are not entitled to commutation for quarters or fuel.”
    The Regulations of 1861 repeated substantially those of 1857, with the following additional paragraphs;
    “The following rates of monthly commutation for quarters, when officers are serving without troops and at posts where there are no public quarters which they can occupy, hai^e been established.
    “ 1. At Boston, New York, Philadelphia, Baltimore,. Washington City, Charleston, Key West, Mobile, and New Orleans, and at all posts and stations in Texas, and in the-territories of New Mexico, Oregon, and Washington, $9 per room.
    “ 2. At Detroit, Chicago, and St. Louis, and at all places east of the Rocky Mountains, not heretofore enumerated, $8-per room.
    “ 3. At San Francisco, $20 per room, and at all other places in California, $12 per room.”
    
      The Regulations of 1881 provided:
    • “ Officers on duty with troops not in the field will be furnished with quarters in kind when public quarters are available; but in cases where there are not sufficient quarters possessed by the United States to accommodate them the Quartermaster’s Department shall hire the necessary quarters for each officer unprovided therewith. (G. O. 83,1880.)
    “ Officers on duty without troops at stations where there are public quarters will be provided with quarters in kind; but in such cases where there are not sufficient quarters possessed by the United States the Quartermaster’s Department shall hire the necessary quarters for each officer unprovided therewith. (G. O. 83, 1880.)
    “ The hire or rent of rooms as quarters for the families of officers is clearly illegal and can not be authorized. (G. O. 77, 1878.)
    
    
      “ Officers on duty without troops at places where there are no public quarters are alone entitled to commutation, which will be paid by the pay department at the rate authorized by, the act approved June 23, 1879. (G. O. 83, 1880.)”
    Army Regulations No. 35-4220 promulgated September 21, 1922, pursuant to the authority contained in the act of June 10, 1922, relating to the pay and allowance of the Army, provide in part as follows:
    “ 1. COMMISSIONED OFFICERS.
    *******
    “b. Rental allowance. — (1) Belova the grade of brigadier general. — * * *. Each commissioned officer on the active list, or on active duty, below the grade of brigadier general, * * * if public quarters are not available, shall be entitled at all times, in addition to his pay, to a money allowance for rental of quarters, the amount of such allowance to be determined by the rate for one room fixed by the President for each fiscal year in accordance with a certificate furnished by the Secretary of Labor showing the comparative cost of rents in the United States for the preceding calendar year as compared with the calendar year 1922. Such rate for one room is hereby fixed’ at $20 per month for the fiscal year 1923, 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. To each officer receiving the base pay of the first period the amount of this allowance shall be equal to that for two rooms, to each officer receiving the base pay of the second period the amount of this allow-anee shall be equal to that for three rooms, to each officer receiving the base pay of the third period the amount of this allowance shall be equal to that for four rooms, to each officer receiving the base pay of the fourth period the amount of this allowance shall be equal to that for five rooms, and to each officer receiving the base pay of the fifth or sixth- period the amount of this allowance shall be equal to that for six rooms. The rental allowance shall accrue while .the officer is on field or sea duty, temporary duty away from his permanent station, in hospital, on leave of absence, or on sick leave, regardless of any shelter that may be furnished him for his personal use, if his dependent or dependents are not occupying public quarters during such period. In lieu of the above allowances an officer with no dependents receiving the. base pay of the first or second period shall receive the allowance for two rooms, that such an officer receiving the base pay of the third or fourth period shall receive the allowance for three rooms, and that such an officer receiving the base pay of the fifth or sixth period shall receive the allowance for four rooms, but no rental allowance shall be made to any officer without dependents by reason of his employment on field * * * duty. (Sec. 6, act June 10, 1922.)
    
      “ 2. General officers. — Major generals and brigadier generals are entitled to the same money allowance for rental of quarters as is authorized in section 6, act of June 10, 1922 (see (1) above), for officers receiving the pay of the sixth period. (See sec. 8, act June 10, 1922:)
    “c. Limitation on allowances.— (1) Below the grade of brigadier generad. — * * * When the total of base pay, pay for length of service, and allowances for subsistence and rental of quarters authorized in this act for any officer below the grade of brigadier general, * * . * shall exceed $7,200 a year, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,200 * * *. (Sec. 7, act June 10, 1922.)
    “ (2) General officers. — * * * Provided, That when the total of base pay, subsistence, and rental allowances exceeds $7,500 for officers serving in the grade of brigadier general of the Army * * *, and $9,700 for those serving in the grade of major general 'of the Army * * *, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,500 or $9,700, respectively. * * * (Sec. 8, act June 10, 1922.)
    “(3) Deduction of excess. — Deduction of the amount necessary to reduce the total of base pay, Subsistence allowance, and rental allowance to the prescribed maximum should be made from the rental allowance.
    
      “ 13. FractioNS of a month. — Rental allowance for fractional parts of a month is computed on the basis of a 30-day month. (Acts June 12 and 30, 1906 (34 Stat. 248, 763); 20 Comp. Dec. 722.)
    “ 14. Conditions essential to receipt.- — -There are two essential conditions necessary to the receipt of the rental allowance: (1) That public quarters are not available, and (2) that the officer occupies a duty status that would entitle him to quarters in kind. If an officer is in a duty status that does not give him a right to quarters in kind, the availability or nonavailability of quarters is not an element for consideration, and a right under the law to the rental allowance fails. When an officer is detached from all duty and ‘ unassigned,’ he does not occupy a status that would entitle him to be assigned quarters, and so the nonavailability thereof would not give rise to a claim for the rental allowance. (2 Comp. Gen. 160.) The term ‘unassigned’ as used in the foregoing decision means unassigned to duty as distinguished from unassigned to an organization.
    “ 15. In hospital without a duty station. — An officer in hospital who has no duty station, and who is furnished personal quarters of some kind at the hospital, is not entitled to the rental allowance, even though his dependents are not occupying public quarters. MS. Comp. Gen., Aug. 31, 1922.
    “16. Availability of public quarters. — a. When not mailable. — Public quarters at a post, camp, or station will be considered as not being available only when all of the quarters thereat are assigned to officers, noncommissioned officers, or others authorized to occupy the same.
    “ b. By whom determined. — Commanding officers will determine when there are no public quarters available within their respective commands.
    “ 17. Stations where there are public quarters. — a. Certificate required,. — When rental allowance is claimed for a station where there are public quarters, payment will not be allowed unless the voucher is accompanied by a certificate of the commanding officer of the station, as follows:
    “I certify that there were no public quarters vacant for the accommodation of-during any portion of the period covered by this account by reason of all quarters at this station being assigned to those authorized to occupy the same.
    “b. Separate■ voucher when temporarily absent. — If on account of temporary absence the claimant is not paid by the finance officer at the station for which he claims rental allowance and a delay in payment of his monthly pay account would result if the allowance were included in his regular monthly pay voucher, he may prepare a separate voucher for tbe rental allowance, with a view to its submission for payment when the certificate required by a has been secured.
    “c. Limitation. — The requirements of this paragraph have application only to those claiming rental allowance for a station where there are public quarters.
    “ 18. Temporary statioN where quarters available.— An officer relieved from duty at his permanent station and ordered to a temporary station where quarters are available is not entitled to rental allowance while on duty at such temporary station, even though his dependents elect not to occupy quarters available at the temporary station. (2 Comp. Gen. 49.)
    “19. DEPENDENTS; WHEN OFFICER FURNISHED QUARTERS.The right to quarters is personal to the officer, and an officer to whom available public quarters are assigned, whether the maximum number of rooms to -which he is entitled or a less number, is not entitled to rental allowance because of the fact that he has dependents. (2 Comp. Gen. 50.)
    “21. Quarters less than regulation allowance. — An officer furnished with quarters, although less than the regulation allowance, is not entitled to rental allowance. (5 Comp. Dec. 548; 19 Comp. Dec. 950; 24 Comp. Dec. 341; 2 Comp. Gen. 47.)
    “ 22. Quarters unsuitable to grade. — An officer to whom habitable quarters are assigned is not entitled to rental allowance because of the alleged unsuitability to his grade of the quarters assigned. (12 Comp. Dec. 21; 24 Comp. Dec. 338; MS. Comp, dren., Dec. 12, 1921.)
    “23. Kefusal to occupy quarters. — An officer who refuses to occupy habitable quarters assigned to him, alleging their unsuitability as quarters, is not entitled to rental allowance. (12 Comp. Dec. 21.)
    * ❖ * * *
    “25. Service at training camps not field duty. — Duty at a training camp located at a station which is regularly established and specifically appropriated for is not field duty. An officer assigned to training duty at a permanent post where public quarters (one room in officers’ barracks) are available can not claim rental allowance on account of a field duty status even though no quarters are available for his dependents. (MS. Comp. Gen., Aug. 24, 1922.)
    “26. Reserve officers at training camps.- — -When on active duty for the purpose of receiving instruction or for the purpose of giving instruction in field exercises at a temporary' cantonment where quarters are available for reserve officers they are not entitled to a rental allowance for their dependents. (MS. Comp. Gen., Sept. 29,1922.)
    “ 27. Sea teavel. — An officer, with or without dependents, traveling under orders to or from a foreign station on either a Government-owned transport or a commercial liner- on which quarters in substance are provided at Government expense is not entitled to rental allowance while so traveling. (2 Comp. Gen. 47.)
    “ 28. Awaiting ORDERS eoe the convenience oe the Government.— (a) Officers who for the convenience of the Government are directed to await orders for a limited period at a point where there are no public quarters available are entitled to rental allowances during such period.
    “(&) Attending Ms own eowt-marticd. — An officer in arrest and on the military duty of attending a court-martial trial (his own), and obeying the orders of the court, is awaiting orders for the convenience of the Government and if the trial is held at a place where there are no public quarters is entitled to rental allowance, provided he made an absolute and unconditional relinquishment of his quarters at his permanent station.” (43 G Cls. 225, 231.)
    XI. The Treasury Department in determining the fair rental value of quarters furnished plaintiff at Fortress Monroe, Virginia, during the period above mentioned has determined such fair rental value to be the amount of commutation of quarters which plaintiff would have received during the same period had there been no public quarters available, to wit, the sum of $940.
    The court decided that plaintiff was entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

The plaintiff is a major in the Army. From January 1, 1923, until August 25, 1923, he was stationed at Fortress Monroe, Va. During this period he was assigned and occupied Government quarters in accord with his rank. On August 25, 1923, he was detached from duty at Fortress Monroe and detailed for duty in Washington, D. C. While in Washington, from August 25,1923, to December 31, 1923, there being no Government quarters available for his occupancy, he was paid and received $500 in cash as commutation of quarters. The plaintiff in making out his income-tax return for 1923 included, under protest, as an item of his gross income, the rental value of the quarters occupied by him at Fortress Monroe and the $500 in cash received as commutation of quarters in Washington, Prior to filing his income-tax return the plaintiff had consulted with the Commissioner of Internal Revt nue with respect to the inclusion of the two items, and the commissioner ruled that they were income and must be returned as such, fixing the alleged fair rental value of the quarters occupied at $940. The total income tax due by reason of the inclusion of said sum of $1,440 was $21.89. This amount the plaintiff paid under protest, and ther; after filed in due form a claim for refund of the tax, which the commissioner disallowed. This suit is to recover the tax so paid.

Section 213 of the revenue act of 1921 (42 Stat. 237) enumerates with precision the various modes of accumulation which constitute under the statute gross income. So far as pertinent to the present discussion it may be abbreviatively reproduced as follows:

“That for tin purposes of this title * * * the term cgross income’ (a) includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of the President of the United States, the judges of the Supreme and Inferior Courts of the United States, and all other officers and employees, whether elected or appointed, of the United States, Alaska, Hawaii, or any political subdivision thereof, or the District of Columbia, the compensation received as such) of whatever kind and in whatever form paid * *

■ It is to be observed that the parenthetical clause of the foregoing section of the revenue law is susceptible to a construction that Congress intended to impose upon the Government officers mentioned an income tax on their “ compensation received as such.” Whether we assume, the words “ as such” intentionally modify compensation or officer, it is certain that they serve a purpose and were intended to make a distinction in dealing with the officers mentioned; otherwise they would not have been used. Jones v. Parker, 67 Tex. 76, 81.

The revenue acts prior to 1918 excluded from income taxation the compensation received by the President, Federal judges, and officers and employees of a State, except as to the latter such as might be paid to them by the Federal Government. The revenue acts of 1918 and 1921, 40 Stat. 1065, 42 Stat. 227, 238, taxed the compensation received by the President and the Federal judges, employing in the taxing acts the identical language involved herein. Having excluded in the first revenue laws the compensation of the President and the Federal judges from income taxation, unqu stionabty because of its doubtful constitutionality, Congress concluded in 1918 and following years to raise the question. The debates in Congress so indicate. The issue was finally presented to the' Supreme Court in Evans v. Gore, 253 U. S. 245, and the tax imposed upon the Federal judiciary was declared to be unconstitutional. The Revenue Bureau, however, has consist, ntly and persistently ruled that Federal judges are not subject to a new or increased tax if appointed prior to the passage of such a taxing statute, and since the act of 1921 in no wise increased the tax, all judges appointed since February 24, 1919, are subject to an income tax upon their salary. The same ruling has be n made as to the Presidency. The incumbent of that office, elected after the passage of the act of 1918, has been taxed. Therefore, it seems quite clear that ,the purpose and intent of Congress in inserting the parenthetical clause in the act of 1918 and continuing the exact language in subsequent legislation was to tax the compensation received by the President and Federal judges in their official capacity. In other words, to subject them to an imposition of the tax as such officers, whereas they had theretofore been excluded. As to the officers and employees of the United States, its island possessions and the District of Columbia, the reason for specific reference to them is not so clear. Just why they were joined in the clause is not apparent. In any event, their inclusion does not change the inference that what Congress intended and designedly expressed was to reach the compensation received by all such officers. So that so far as the construction of the taxing statute is involved, the real issue as to this aspect of the case is whether th' allowance known as commutation of quarters, or assignment and occupancy of quarters granted an Army officer, is compensation.

What is or is not compensation is not always easy to determine in cases where one receives an annual salary and by reason of the duties of his office is entitled to privileges and advantages sometimes discharged in money and at other times in kind. It is not new for this court to be confronted with the question. Under the long-established system of ’pay and allowances for officers of the Army and Navy, we have had occasion in numerous cases, involving almost every aspect of the controversy, to determine the scope and effect of statutes upon the subject. At the outset it may be stated with unquestionable accuracy that the War Department, Congress, and the courts have recognized a distinction between pay and allowances. Inherently such a distinction exists. As illustrative of the fact, the act of February 14, 1885, 23 Stat. 305, provided that enlisted men and noncom-missioned officers when retired should receive “seventy-five per centum of the pay and allowances of the rank upon which he was retired.” [Italics ours.] The act of May 26, 1900 (31 Stat. 205, 211), used the words “pay proper” in providing as follows:

“Provided-, That hereafter the pay proper of all officers and enlisted men serving in Porto Kico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska, «ball be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law in time of peace.”

The act of March 2, 1901, 31 Stat. 895, 903, enlarged the preceding law by providing as follows:

“Provided, That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the States comprising the Union, and the Territories of the United States contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace.”

More recently, section 12 of the act of September 7, 1916, 39 Stat. 746, legislation providing compensation for Government employees injured while in the performance of their duties, pointed out a method of computing pay, providing “ that in computing the monthly pay * * * subsistence and the value of quarters furnished an employee shall be included as part of the pay.” Again, the act of October 6, 1917, 40 Stat. 402, amending the original act establishing the Bureau of War Bisk Insurance in the Treasury Department, expressly defined the term pay as “pay for service in the United States according to grade and length of service, excluding all allowances.”

The first income tax act, passed in 1862, 12 Stat. 472, by express terms provided that “ there shall be levied, collected, and paid on all salaries of officers, or payments to persons in the civil, military, naval, or other employment or service of the United States,” thereby expressly imposing a tax, not only upon the salaries of officers, but likewise upon “payments” to persons in the civil or military service of the Government, thus expressly recognizing the long-established distinction between compensation and allowances, and this language was repeated by Congress in the income tax law of 1894, 28 Stat. 509. As a matter of fact, legislation of this character is so pointedly illustrative of a recognized and long-established difference between compensation and allowances provided for under certain prescribed conditions, that multiplication of citations would serve no useful purpose.

Mr. Justice Brown, in United States v. Smith, 158 U. S. 346, clearly distinguished between allowances which form a part of compensation and those which serve to reimburse for expenditures made. In Sherburne's case, 16 C. Cls. 491, this court, quoting from Scott’s Military Dictionary, said:

“Pay is a fixed and direct amount given by law to persons in the military service in consideration of and as compensation for their personal service. Allowances, as they are called, or emoluments, as they were formerly termed, are indirect or contingent remuneration which may or may not be earned, and which is sometimes in the nature of compensation and sometimes in the nature of reimbursement.”

In United States v. Mills, 197 U. S. 223-227, the Supreme Court had before it the question of computation of longevity pay due an officer of the Army. In the course of the discussion this language was used: “ The words ‘ pay proper,’ we see no reason to think, are to be construed differently from the word ‘ pay.’ The term means compensation, which may properly be described or designated as ‘pay,’ as distinguished from allowances, commutation for rations, or other methods of compensation not specifically described as pay.” In our view of the case, what was said in the Mills case is a clear exposition of the fundamental distinction between “ pay ” and “ allowances.” Therein it is pointed out with clearness the line of demarcation between pay proper, allowances, and other methods of compensation, the court emphasizing by specification and generalization what Congress intended by use of descriptive terms in characterizing “ pay proper.”

Federal District and Circuit judges receive an allowance of not to exceed ten dollars a day when absent holding court away from their homes. Allowances of this character are clearly intended as reimbursements and form no part of the judges’ compensation. Smith v. Jackson, 241 Fed. 747, 246 U. S. 388; Payne v. Reeves, 184 N. W. (S. D.) 993; Christopherson v. Reeves, id. 1015; State v. Weedon, 221 S. W. (Tenn.) 941; Macon Co. v. Williams, 224 S. W. (Mo.) 835; McCoy v. Handlin, 153 N. W. (S. D.) 361.

Congress annually appropriates certain sums for the executive department and likewise a travel allowance. Such appropriations have not been and are not charged against the President as compensation. Members of Congress receive certain allowances. This court determined with refer-erence to mileage that the allowance was no part of their compensation. Wilson v. United States, 44 C. Cls. 428. A vast number of Government employees receive traveling expenses and fixed sums in lieu of subsistence when away on Government affairs. Clearly such allowances are for purposes of reimbursement. Each member of the Cabinet is furnished means of transportation at Government expense. The Vice President is allowed a sum sufficient to procure and maintain an automobile. It is not even suggested that allowances of this character are compensation. In what respect, then, is the allowance of public quarters or commutation of quarters to an Army officer different in character from one intended as reimbursement? We are quite firmly convinced that not only are they not allowances of a compensatory character, but they are not income as well. It is common knowledge that the President of the United States receives as compensation $75,000 per annum. The compensation of Federal judges is their fixed annual salary. Generally, and almost without exception, including the Army and Navy, the Federal statutes fix a certain specified pay for each employee or officer of the Government, known as his compensation. This is a fixed and definite sum annually appropriated for and to which the occupant of the office is by law fully entitled so long as he remains in office, and entitled to whether sick or well, unless separated from the office, and it is this sum, this annual salary, to which Congress and all others refer when they speak of the officer’s compensation, and manifestly, unless there is some qualification of the term, some legislative expression that Congress intended to reach out and tax what has continuously, and notoriously been regarded as an allowance, distinct from compensation, the just inference is an intent to limit the gross income of the officers mentioned-to their pay proper, their fixed compensation. We have said that we do not believe the allowance of quarters or commutation thereof to an officer of the Army is income.

As long as we have had an Army, officers of the Army have not only been permitted but compelled to occupy public quarters when the same were available. This practice, custom, and requirement has prevailed for so long a time, both in this country and abroad, that it would be difficult to establish the date of its origin. The very first Army Regulations issued in the United States, after the organization of the Army, made provision for this identical thing, and without interruption as to essential features it has continued from that day to this. No question as to the discontinuance of the requirement has ever been the subject of agitation, and Congress without hesitation has made and continues to make available each year a sum of money sufficient to pay commutation of quarters and provide public quarters for officers and enlisted men of the Army as well. In the earlier periods of our history the allowance of quarters was provided for in Army Regulations. Officers were assigned a fixed number of rooms according to their rank; and if public quarters were not available at the post, fort, or station, suitable quarters were' rented or, as the regulations stated, “ hired ” by the Quartermaster’s Department and the expense incurred paid out of the general appropriation for the Army. Subsequently it developed that not infrequently there was no one in authority at the post or station to hire quarters when the same were not available, and to obviate this difficulty the regulations authorized the officer himself to procure quarters and receive in return “ a reasonable commutation in money.” Without going further into detail, it is sufficient to observe that Congress has uninterruptedly recognized the right of officers to public quarters when available at his post or station and, when not so available, his right to commutation of quarters in money. Varying changes have from time to time been adopted as to the conditions under which the allowances should be made, but the substantial right itself has continued unimpaired. A complete and sequential history of the law and regulations made in pursuance thereof is set forth in the stipulated findings of fact and need not be repeated here.

The origin and continuance of the Army custom, as well as the law of the Army itself, indicate beyond a doubt that public quarters for the housing of enlisted men and officers is as much a military necessity as the procurement of implements of warfare or the training of troops. Congress has appropriated vast sums of money to establish permanent military posts and stations throughout the country, and in not one but all Army appropriations provision is of course made for the erection of barracks, officers’ quarters, and every other necessary building to maintain, house, and properly care for the enlisted men and officers of the post or station. We need not assert that an officer’s duties require his physical presence at his post or station; his service is continuous day and night; his movements are governed by orders and commands, by military law; troops are to be trained, discipline is to be enforced, and more than one exigency of the military service requires the officer to live with his command. In addition to what has been said, many officers may be and are required to keep and render a variety of official reports, perform certain prescribed military duties during both day and night. All these and many more considerations, of which we confess an unfamiliarity, make it imperative upon the part of the Government to provide housing facilities for troops and officers of the Army if an army is to be maintained at all. Therefore it seems to us that military quarters for both the enlisted men and officers of the Army are no more than an integral part of the organization itself. They are, so to speak, units of the military plant, the indispensable facilities for keeping the Army intact and maintaining it as such, as much so as the crude shelter provided for a watchman at a railroad station, or the lonely habitation of a lighthouse keeper. The officer is not paid a salary and furnished a house to live in for his services ; he is, on the contrary, paid a salary to live in the quarters furnished.

But we are told that if the Government did not furnish the officer quarters he would have to incur the expense of procuring the same. Such an argument is absolutely devoid of merit. The inherent organization of the Military Establishment of the United States refutes it. Imagine a military post uninhabited by officers. Speculation as to possibilities and conditions in the face of long recognized and firmly established status and organization of the' Army are indeed idle. An Army officer’s rights and privileges.under the law are not to be gauged by comparisons. The Supreme Court said, in United States v. Phisterer, 94 U. S. 224:

“ Quarters are expected to be furnished by the Government to its officers; when it can not thus furnish, it allows them to be obtained otherwise and pays a monetary compensation therefor called commutation. This upon the assumption, first, that the officers are actually engaged in the public service; and, second, that such quarters are necessary to the discharge of their duty.”

The policy of Congress has been and is to assimilate the pay of officers of the Army and Navy. Congress has consistently endeavored to equalize the pay of officers of the Army in keeping with'their rank and duties. (Sec. 13 of the Navy personnel act, 30 Stat. 1007, and succeeding legislation down to and including the act of June 10, 1922, 42 Stat. 625.) The last-named statute readjusts the pay of the Army, Navy, Marine Corps, Coast Guard, Coast and Geo-detie Survey, and Public Health Service. The pay proper and method of its computation is set forth in detail. Section 6 of the statute, the section involved here, provides for commutation of quarters and assignment of available quarters. Under the provisions of this section the money value of commutation of quarters is to be fixed each year by the President after an investigation and certification by the Secretary of Labor as to the comparative costs of rents' in the United States, and in no event to exceed $20 per month per room. The Revenue Bureau, in assessing income tax upon the officer’s salary, arbitrarily adopts the commutation value of the occupied public quarters. If, therefore, quarters, or commutation of same, is compensation, then the obvious effect of the statute is to allow the President, in part at least, to fix the compensation of Army officers, and Congress has dejegated to him that power. Without questioning the power, with which we are not concerned, we assuredly doubt the intent. Again, the same section of the statute makes an emphatic distinction between the officer with dependents and the one without. A decided curtailment of the allowance obtains as to the officer without dependents, a manifest legislative recognition of the divergence in personal expense as to the two situations. If, however, the allowance is compensatory, the purpose of the statute is thwarted, for the officer without dependents is required to pay less from his pay proper in income taxes than the officer with dependents, and if both occupy quarters in kind, the officer with dependents will obviously save less of his base pay than the officer without. In common parlance, compensation, when used in connection with salaried officials, is the equivalent of money paid for services performed and received as such. While, of course, it may have a broader legal significance, it is not the rule of statutory construction to give the word more than its ordinary meaning unless from the four corners of the statute such was the legislative intent. In the case of Gould v. Gould, 245 U. S. 151, the Supreme Court said: “ In the interpretation of statutes levying taxes it is the established rule not to extend their provisions by implication beyond the clear import of the language used or to enlarge their operation as to embrace matters not specifically pointed out. In case of doubt, they are construed most strong-ly against the Government and in favor of the citizen.” See also United States v. Merriam, 263 U. S. 179.

The defendant, in its brief, apparently predicates its argument upon the money received by the officer as commutation of quarters. Money, it is said, is the clearest form of income, and when the officer is allowed to receive and expend it free from Government control it is obviously compensation and income. In order to sustain the contention the defendant is put to the necessity of overruling certain decisions of the Supreme and this court. This is done by an ingenious analysis of the acts of 1922 and 1924. This court held in Jaegle v. United States, 28 C. Cls. 133, in an opinion by the late Chief Justice Nott, that—

“ Commutation in the military service is money paid in substitution of something to which an officer, sailor, or soldier is entitled by law or regulations or general orders of the commander in chief. The fact that the statute and the regulations of the Army and Navy prescribe the cases in which commutation may be allowed excludes the supposition of its being allowed by inferior authority. Commutation is not necessarily equal to the value of the thing for which it is a substitute, but is supposed to be, in the general average of cases, a fair equivalent.”

In Odell v. United States, 38 C. Cls. 194, 198, Judge Weldon said:

“ Reimbursement is primarily what the law contemplates; but when there is no expense, as in this case (the occupied quarters being a part of the Naval Establishment of the United States), there can be no reimbursement in fact, and therefore none allowed by law. If the claimant had occupied quarters not belonging to the United States and was otherwise entitled under the circumstances to quarters, the fact that he was not charged with the use of quarters would not be material and would not affect the right and obligation of the parties; but when, as in this case, the quarters occupied belonged to the defendant there is no legal right of recovery.” See also United States v. Mills, supra; United States v. Smith, supra; United States v. Phisterer, supra.

But, says the defendant, the acts of 1922 and 1924 revolutionized the subject of commutation of quarters. Congress, by this legislation, made commutation the primary, and quarters in kind the secondary, right of the officer. We confess some difficulty in apprehending the force of the contention. If it is meant to assert that an officer may choose between an acceptance of commutation or quarters in kind, the error is obvious. The officer has no such choice. As a matter of fact, the legislation referred to in no way reverses the fundamental principle originally provided for in Army regulations and subsequently adopted by Congress, that treated as due an officer of the Army proper quarters in which to live with his dependents in order to discharge his military duties. The statutes regulate the subject matter, prescribe the quantum of allowances, and alter the methods, making, it is true, some radical changes as to when and when not the allowances obtain. In no single provision, however, in either the law or regulations, are we able to discover the slightest deviation from the long established and firmly adhered to principle that in no case may an officer receive commutation of quarters save he is denied the right and privilege accorded him by the acts of public quarters. It is true an officer may be assigned one room and a bath and receive commutation for the remainder of the number of rooms authorized for his grade. Surely that in no wise fortifies the defendant’s contention. The regulation but meets a contingency of inadequate availability of quarters and preserves the right fro tanto. The regulations provide that when adequate quarters are available they must be assigned, a mandatory provision, and if inadequate and only partially available for the convenience of the Government, the officer may occupy one, and only one room and a bath, but bearing in mind that this is only in the instance of inadequacy, for an officer is not required to occupy inadequate Quarters. Is it to be said in any event that this single contingent provision is so revolutionary in character as to annihilate a time-honored policy? Are the few inconsequential exceptions to the general intent of the law to overthrow the obvious purpose to be accomplished in its enactment? We think not. Congress, during the war, made generous provisions for officers who were at the front on foreign soil.

The act of April 16, 1918, 40 Stat. 530, extended by the act of May 18, 1920, 41 Stat. 602, until June 30, 1922, expressly granted to an officer in the field -what was under the law and regulations then denied him, the right to quarters or commutation of quarters for his dependents. Is it to be asserted that this exceptional allowance constitutes added compensation? Certainly not. It is not different in form or substance in any respect from the original purpose of the allowances themselves. In our view of this question, we entertain no doubt that the assignment of public quarters to an Army officer is the equivalent of placing the official in that part of the Army plant where he is to discharge his duties; that it is not for the officer’s benefit, but for the Government’s and that the principle of commutation of quarters was conceived as reimbursement, and continues as reimbursement.

Lastly, may such allowances be considered as income? In Eisner v. Macomber (252 U. S. 189), we find this expression: “Income may be defined as the gain derived from capital, from labor, or from both combined.” The defendant criticises the citation of the above case on the grounds of utter dissimilarity as to issue. There can be no doubt that as to issues involved the citation is inapposite. Nevertheless, the generalization of the definition is possible. In this case involving personal service it is comprehensive. The essential factor in the determination of the question lies not alone in the single element of gain, but gain derived from labor. In other words, as remuneration for the officer’s services is he not only paid a salary but in addition furnished a house to live in as part thereof? If so, income accrues; if not, no income accrues. The most conspicuous illustration of the differentiation is the Chief Executive of the Nation. Our Presidents occupy the White House. If in computing income tax the fair rental value of this most historic and pretentious house and grounds is to be the standard, the annual compensation of the President would indeed be substantially reduced. In the scheme of Government, just as in the Army, the White House becomes the Executive office of the Nation. It is an inseparable incident of the office itself, the one provision made by Congress wbereiñ the Executive’s duties are to be discharged. An English case decided by the House of Lords in 1892 (Tennant v. Smith, H. L. 1892 Appeal Cases, 150) points out with distinct clearness the vital difference between income and that which is not income, though apparently an advantage. Lord Watson said:

“ It appears to me that the case was decided in the court beloAv, as it has been argued at your Lordship’s bar, upon the true legal issue — namely, whether the appellant’s residence is income within the meaning of the statutes which must be valued and assessed for income taxes. * * * The appellant does no doubt reside in the building, but he does so as the servant of the bank and for the purpose of performing the duty which he owes his employers. His position does not differ in any respect from that of a caretaker or other servant, the nature of whose employment requires that he shall live in his master’s dwelling house or business premises instead of occupying a separate residence of his own * * *. In the present case the learned judges of the majority have assessed the value of the appellant’s residence at £50 upon the somewhat speculative footing that if his duty did not require him to reside in the bank he would be compelled to pay that sum for suitable accommodation for himself and family elsewhere. In that view the so-called benefit may in some instances prove a heavy burden as in the case of a bank agent who, but for the service required by his employers, could continue to reside, free of charge, in his parents’ house.”

Again, Judge Clayton, in Smith v. Jackson, 241 Fed. 747, said:

“I think it may be said, therefore, that an emolument is something positively and directly conferred, as compensation or gain, that the holder of an office receives, and not something necessarily, inseparably, and incidentally used by him in the discharge of his duty, a duty for which he is paid a fixed salary.”

We have heretofore cited a number of State cases. The line of demarcation runs parallel with the services one engages to perform. If the nature of the services require the furnishing of a house for their proper performance, and without it the service may not properly be rendered, the house so furnished is part of the maintenance of the general enterprise, an overhead expense, so to speak, and forms no part of the individual income of the laborer. The master of a vessel and captain of a steamboat are furnished living quarters while on a voyage. A countless number of employees engaged in a great variety of special and important employment are required to be continuously present on the job. They must not only have a place in which to live but adequate facilities for doing what they are called upon to do. Is the maintenance of this overhead expense to be first charged to the Government and then in part recouped from the officer’s salary by way of taxation ?

In the'determination of the issue we keep constantly to the fore the pertinent fact that we are dealing with a governmental institution, an organization whose internal affairs are regulated by military law and regulations, and that whatever gain accrues to the officer by reason of these particular allowances must be a gain derived from the particular services he renders for which remuneration is paid, and which the laws of the organization exact as quid fro quo. It is conceded that an officer, as part of his military duty, must reside at his post or station. No one would have the courage to assert that such was not the fact. Indeed, it is a primary necessity, the one thing within the intent and purpose of the law, both civil and military. If quarters are available the officer must live there. He has no choice. The extent, of quarters assigned him, the number of rooms essential for his needs, is fixed not by the officer, but by law. No matter how inconvenient, if adequate he must occupy them or lose the allowance and obtain permission otherwise. Nor does he have the choice of domicile. He may be in the East to-day and in the West tomorrow. When the nature of his duties does not require his personal presence the allowance does not follow. More than sixty-five per cent of the Army officers occupy public quarters.

There are additional instances in the regulations where the allowance is lost, and lost because not indispensable for the performance of the service required. While the mere character of the contingency may not irrevocably determine the nature of the allowance, it is a prime factor available as such in reaching a conclusion as to whether it is a gain derived from service. The officer may not rent the premises assigned and live away from them. He has no control thereover, except the naked right of an uncertain period of occupancy. The advantage which accrues, the gain which obtains, if any such obtains, is to be ascertained by comparison only, and the comparison resorted to is one involving the mode of living in civil life with that which obtains in the Army. Aside from the pronounced dissimilarity of the two, the argument predicated thereon affords no solution of the problem, for the conclusion drawn results only in a saving, which of itself is not income. It is said that if the officer was not permitted to occupy public quarters he would be compelled to hire them and pay the expense from his salary. The Department of Justice in Washington occupies and conducts the major portion of its affairs from a ■commodious and modern office building, rented from the owner and the rent paid by the Government. If the learned Assistant Attorney should resign his public office and resume private practice he would manifestly be required to rent an office and pay from his own income the expense thereof. Does this fact indubitably characterize the privilege of occupancy of an office in the department, rent free, .as income? We think not, for both he and an officer of the Army must remain in the quarters assigned them as an inseparable part of their prescribed duties, just as much so as is the conducting of a trial or the giving of military instructions or the training of troops. The public quarters of the officer is his office as well as his temporary home. It is not, as well said in the case of Tennant v. Smith, supra, what is paid out but what comes in that constitutes income. It is indeed far from impressive that where an employer, in the course of the promotion and efficiency of the enterprise in which he is engaged, must of necessity provide the indispensable facilities for the successful prosecution of the same, because perchance an employee in the not to be •avoided course of his duties may be in a position to avoid an expense which in a different chara'cter of service he might be obliged to incur, that therefore the use of the facility constitutes income. In any event, the contention is without merit. Situations must be faced as they exist; rights are not to be determined upon a hypothetical basis in the face of facts. The Army officer may not provide himself with his own quarters. No such regulation or law has ever prevailed. Congress has never accorded the privilege, and the provision for commutation emphasizes the fact. On the contrary, the Government furnishes the quarters as a part of the military establishment itself.

From what has been said we believe the plaintiff is entitled to judgment for the amount claimed. It is so ordered.

GRAham, Judge; Hay, Judge; DowNey, Judge; and Campbell, Chief Justice, concur.  