A-11242, DECEMBER 7, 1925, 5 COMP. GEN. 413

A-11242: Dec 7, 1925

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CONSTITUTE PAYMENTS FOR SERVICES RENDERED AND ARE NOT OBJECTIONABLE AS A STATE TAX. SUCH WORK NOT BEING CONFINED TO PARTICULAR LABORERS BUT BEING DONE BY THOSE WHO ARE AVAILABLE AT THE TIME AND PLACE. ARE NOT PERSONAL FURNISHINGS AND MAY BE PURCHASED FROM PUBLIC FUNDS. THERE ARE APPROXIMATELY 42 ACRES OF LAND WHICH CAN BE CULTIVATED. THE BALANCE OF THE RANGER STATION IS USED FOR PASTURE PURPOSES. THIS HAY IS USED FOR FEEDING GOVERNMENT HORSES AND FOREST OFFICERS' HORSES WHICH ARE USED IN OFFICIAL WORK. BE NECESSARY TO PURCHASE SUCH HAY AS IS NEEDED. EITHER FROM SOME OF THE FEW RANCHERS WHO HAVE SURPLUS HAY. OR HAVE IT TRANSPORTED IN BY RAILROAD AND OVER A LONG ROAD BY AUTOMOBILE AND WAGON.

A-11242, DECEMBER 7, 1925, 5 COMP. GEN. 413

STATE FEES FOR WATER CERTIFICATES - PERSONAL FURNISHINGS, RUBBER BOOTS FEES CHARGED THE UNITED STATES BY THE STATE OF IDAHO FOR THE ISSUING OF WATER APPROPRIATION CERTIFICATES, TO SECURE TO THE UNITED STATES A RIGHT OR PRIVILEGE AS AGAINST OTHER WATER USERS IN THE STATE, CONSTITUTE PAYMENTS FOR SERVICES RENDERED AND ARE NOT OBJECTIONABLE AS A STATE TAX. RUBBER BOOTS FOR USE BY A SMALL PORTION OF A FORCE OF TRANSIENT LABORERS HIRED BY THE FOREST SERVICE FOR ROAD CONSTRUCTION, TO ENABLE THEM TO WORK AT IRREGULAR TIMES IN THE BED OF RUNNING STREAMS IN CONNECTION WITH BRIDGE CONSTRUCTION, SUCH WORK NOT BEING CONFINED TO PARTICULAR LABORERS BUT BEING DONE BY THOSE WHO ARE AVAILABLE AT THE TIME AND PLACE, ARE NOT PERSONAL FURNISHINGS AND MAY BE PURCHASED FROM PUBLIC FUNDS.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 7, 1925:

LEE STRATTON, DISTRICT FISCAL AGENT, FOREST SERVICE, HAS REQUESTED REVIEW OF THE ACTION TAKEN IN DISALLOWING CREDIT FOR THE SUM OF $5 IN SETTLEMENT C-19785-A, VOUCHER 12475, IN HIS ACCOUNTS FOR THE QUARTER ENDING JUNE 30, 1924, AND THE SUM OF $30 IN SETTLEMENT C-23355-A, VOUCHER 952, IN HIS ACCOUNTS FOR THE QUARTER ENDING SEPTEMBER 30, 1924.

THE $5 ITEM DISALLOWED ON VOUCHER NO. 12475 REPRESENTS A PAYMENT TO THE DEPARTMENT OF RECLAMATION OF THE STATE OF IDAHO FOR A WATER APPROPRIATION CERTIFICATE, UNDER THE FOLLOWING CIRCUMSTANCES:

ON THE SOUTH FORK RANGER STATION WITHIN THE IDAHO NATIONAL FOREST, EMBRACING A TOTAL OF 104.19 ACRES, THERE ARE APPROXIMATELY 42 ACRES OF LAND WHICH CAN BE CULTIVATED. THE BALANCE OF THE RANGER STATION IS USED FOR PASTURE PURPOSES. THE RECORDS SHOW THAT UNDER NORMAL CONDITIONS ABOUT 30 TONS OF HAY MAY BE RAISED ON THAT PART OF THE STATION WHICH CAN BE CULTIVATED, IF IRRIGATED. THIS HAY IS USED FOR FEEDING GOVERNMENT HORSES AND FOREST OFFICERS' HORSES WHICH ARE USED IN OFFICIAL WORK. IF THE HAY COULD NOT BE USED ON THE RANGER STATION IT WOULD, OF COURSE, BE NECESSARY TO PURCHASE SUCH HAY AS IS NEEDED, EITHER FROM SOME OF THE FEW RANCHERS WHO HAVE SURPLUS HAY, OR HAVE IT TRANSPORTED IN BY RAILROAD AND OVER A LONG ROAD BY AUTOMOBILE AND WAGON. THE LATTER METHOD WOULD, OF COURSE, BE VERY EXPENSIVE AND IT IS NOT ALWAYS THAT THE RANCHERS IN THAT VICINITY HAVE SUFFICIENT HAY TO SUPPLY THE FOREST SERVICE NEEDS. THE WATER FOR IRRIGATING THIS STATION IS TAKEN FROM CARREY CREEK, A SMALL TRIBUTARY OF THE SOUTH FORK OF THE SALMON RIVER. IT APPEARS ALSO FROM THE RECORDS THAT THE WATER RIGHT ON THIS PARTICULAR CREEK HAD BEEN APPLIED FOR BY ANOTHER PARTY EVEN BEFORE APPLICATION WAS MADE BY THE FOREST SERVICE, BUT THAT AT THE TIME THE FOREST SERVICE APPLICATION WAS FILED CERTIFICATE OF COMPLETION OF WORKS HAD NOT BEEN ISSUED BY THE DEPARTMENT OF RECLAMATION FOR THE STATE OF IDAHO BECAUSE THE PARTY HAD NOT ACTUALLY COMPLETED THE NECESSARY CONSTRUCTION WORK. THE SUPERVISOR OF THE IDAHO FOREST ADVISED, THEREFORE, THAT IT WAS VERY IMPORTANT THAT THE FOREST SERVICE COMPLY WITH THE STATE LAW IN PROTECTING THIS WATER RIGHT AT THIS PARTICULAR RANGER STATION, OTHERWISE IT MIGHT BE NECESSARY TO EXPEND CONSIDERABLE GOVERNMENT FUNDS IN PURCHASING HAY FOR USE AT THIS STATION.

IT IS UNDERSTOOD THAT IT IS A CONSTITUTIONAL RIGHT OF THE STATE TO CONTROL THE WATER WHERE NAVIGABILITY OF THE STREAMS IS NOT INVOLVED * * *

THE STATE FEE IS NOT A TAX UPON A FEDERAL INSTRUMENTALITY BUT THE PAYMENT FOR A SERVICE RENDERED BY THE STATE TO SECURE TO THE UNITED STATES A RIGHT OR PRIVILEGE AS AGAINST OTHER WATER USERS IN THE STATE AND AS SUCH WILL NOT BE QUESTIONED. SEE 1 COMP. GEN. 560; 4 ID. 366.

WITH RESPECT TO THE DISALLOWANCE OF CREDIT FOR $30 PAID ON VOUCHER NO. 952 OF THE SEPTEMBER QUARTER FOR FOUR PAIRS OF RUBBER BOOTS, THERE ARE FOR CONSIDERATION THE TWO MAIN QUESTIONS INDICATED IN 3 COMP. GEN. 433. FIRST, COULD THE OBJECT FOR WHICH THE APPROPRIATION INVOLVED WAS MADE BY ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT'S STANDPOINT WITHOUT SUCH EQUIPMENT? SECOND, IS THE EQUIPMENT SUCH AS THE EMPLOYEES REASONABLY COULD BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE THEM TO PERFORM THE REGULAR DUTIES OF THE POSITION TO WHICH THEY WERE APPOINTED OR FOR WHICH THEIR SERVICES WERE ENGAGED?

THE DISTRICT FISCAL AGENT MAKES THE FOLLOWING EXPLANATION OF THE NECESSITY FOR THE PURCHASE OF THE BOOTS:

IN CONSTRUCTING THE SODA SPRINGS-FREEDOM ROAD ON THE CARIBOU NATIONAL FOREST DURING THE SEASON OF 1924, THE FOREST SUPERVISOR ADVISES THAT THERE WERE A LARGE NUMBER OF LABORERS EMPLOYED AT $2.50 PER DAY TO DO THE WORK. DURING THE COURSE OF THE CONSTRUCTION, WHICH LASTED DURING THE ENTIRE FIELD SEASON, THERE WAS A LARGE TURNOVER IN THE LABORERS EMPLOYED. THE COURSE OF THE ROAD FOLLOWED TIN CUP CREEK, AND IN ORDER TO TAKE ADVANTAGE OF EASY GRADES IT WAS NECESSARY TO CROSS THE CREEK FIVE TIMES, THUS NECESSITATING THE CONSTRUCTION OF FIVE BRIDGES. THESE BRIDGES WERE BUILT WITH LOG ABUTMENTS AND IN PREPARING FOR THE CONSTRUCTION OF ABUTMENTS, IT WAS NECESSARY FOR THE LABORERS TO GET INTO THE BED OF THE STREAM IN ORDER TO CLEAN OUT A SOLID FOUNDATION FOR THE BASE LOGS AND TO PUT THESE BASE LOGS IN PLACE. TO GET THESE LOGS FIRMLY PLACED IN THE BED OF THE STREAM IN ORDER THAT THE CURRENT IN THE STREAM WOULD NOT WASH UNDER THEM, IT WAS NECESSARY THAT THE LABORERS REMAIN IN THE STREAM FOR SEVERAL HOURS AT A TIME, WHICH IS PRACTICALLY IMPOSSIBLE WITHOUT RUBBER BOOTS, SINCE THESE MOUNTAIN STREAMS ARE FED FROM SNOW AND COLD SPRINGS WHICH MAKE THE WATER VERY COLD. TO PROPERLY HANDLE THESE LOGS, OF COURSE, NECESSITATED SEVERAL MEN WORKING IN THE WATER AT THE SAME TIME. THIS PARTICULAR PART OF THE WORK, HOWEVER, WAS ONLY A SMALL PART OF THE WORK IN CONSTRUCTING SUCH BRIDGES, AND THE WORK OF THESE FIVE BRIDGES WAS ONLY A VERY SMALL PART OF THE TOTAL WORK PERFORMED BY THE LABORERS IN THE CONSTRUCTION OF THIS ROAD. TO BUILD THIS CLASS OF ABUTMENTS, IT WAS NOT NECESSARY TO EMPLOY OTHER THAN THE ORDINARY LABORER. THE DIFFERENT BRIDGES WERE BUILT AT VARIOUS TIMES DURING THE SEASON OF 1924, THE FIRST ONE BEING CONSTRUCTED DURING THE LATTER PART OF JUNE AND THE LAST ONE BEING BUILT IN NOVEMBER. AS THE WORK ON EACH OF THE BRIDGES REQUIRED ONLY A FEW DAYS AT A TIME, AND AS THE BRIDGES WERE WIDELY SEPARATED AND HAD TO BE BUILT FROM SUCCESSIVE CAMPS AS THE WORK PROGRESSED ON THE ROAD, IT WAS IMPRACTICABLE TO MAKE A CONTINUOUS JOB OF THE BRIDGE WORK AND EMPLOY SPECIAL MEN FOR THIS CLASS OF WORK. EVEN HAD THIS BEEN PRACTICABLE, CONSIDERABLE TIME WOULD NECESSARILY HAVE BEEN REQUIRED TO FIND MEN ESPECIALLY EQUIPPED WITH RUBBER BOOTS, AND THE WAGES FOR SUCH MEN SO EQUIPPED, WOULD, OF COURSE, HAVE BEEN CONSIDERABLY HIGHER THAN THE WAGES OF THE LABORERS WHO PERFORMED THE WORK. THE ORDINARY LABORER DOES NOT CARRY RUBBER BOOTS IN THE COURSE OF HIS REGULAR EMPLOYMENT IN THIS REGION. FURTHERMORE, HAD IT BEEN POSSIBLE TO FIND MEN WHO WERE SO EQUIPPED, THE TIME WHICH WOULD HAVE BEEN LOST BY THE FOREMAN IN CHARGE OF THE ROAD WORK IN SEEKING SUCH MEN DURING THE COURSE OF THE ENTIRE SEASON WOULD NO DOUBT HAVE AMOUNTED TO CONSIDERABLY MORE THAN THE ACTUAL COST OF THESE BOOTS. THE FOUR PAIRS OF BOOTS WERE USED BY A LARGE NUMBER OF DIFFERENT MEN DURING THE SEASON AND FOR ONLY A COMPARATIVELY SHORT PERIOD OF TIME BY ANY ONE LABORER.

THE SUPERVISOR FURTHER ADVISES THAT AS THESE BOOTS WERE PURCHASED BY THE GOVERNMENT, THEY ARE BEING ACCOUNTED FOR ON THE PROPERTY RECORDS AS NON- EXPENDABLE EQUIPMENT AND THAT THEY ARE AGAIN BEING USED ON THE SAME PROJECT DURING THE PRESENT SEASON IN PLACING CULVERTS AND BUILDING SMALL BRIDGES WHICH ARE REQUIRED ON THE PORTION OF THE PROJECT BEING CONSTRUCTED THIS SEASON.

IT APPEARS FROM THE FOREGOING STATEMENT OF FACTS THAT THE CONSTRUCTION OF BRIDGES DID NOT CONSTITUTE THE REGULAR DUTY OF ANY PARTICULAR EMPLOYEES AND THAT THE PORTION OF THE WORK REQUIRING THE USE OF BOOTS NECESSITATED THE USE OF BUT A SMALL NUMBER OF THE MEN AND WAS PERFORMED BY WHATEVER LABORERS WERE AVAILABLE AT THE TIME AND PLACE. THE LABORERS, BEING OF THE TRANSIENT VARIETY AND EMPLOYED AT LOW WAGES, COULD NOT REASONABLY BE REQUIRED TO SUPPLY THEMSELVES WITH RUBBER BOOTS FOR SUCH LIMITED USE WHEN THEIR REGULAR DUTIES WERE ON DRY LAND AND COULD NOT BE REQUIRED TO WORK IN COLD WATER WITHOUT SUCH PROTECTION. THE SHOWING MADE BRINGS THE CASE WITHIN THE RULE LAID DOWN IN 3 COMP. GEN. 433. SEE ALSO A-11025, OCTOBER 23, 1925; AND A-11367, OCTOBER 29, 1925.

UPON REVIEW $35 IS CERTIFIED FOR CREDIT IN THE ACCOUNTS OF LEE STRATTON.