A-60237, NOVEMBER 8, 1935, 15 COMP. GEN. 380

A-60237: Nov 8, 1935

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TAXES - MUNICIPAL - GARBAGE REMOVAL CHARGE INCLUDED IN WATER RATE A CHARGE FOR GARBAGE-REMOVAL SERVICE INCLUDED IN A PUBLISHED INSIDE THE- CITY WATER RATE ON EVERY METER WHETHER THE SERVICE IS OR IS NOT REQUIRED. IS A TAX AND MAY NOT BE COLLECTED FROM THE UNITED STATES. NOR BY MAKING SERVICE CHARGES AS THOUGH THE GOVERNMENT-OCCUPIED BUILDING WAS BEYOND THE CORPORATE LIMITS. IN THIS CONNECTION THERE IS FOR CONSIDERATION TWO LETTERS FROM THE SUPERINTENDENT. IS AS FOLLOWS: AS EXPLAINED TO YOU WHEN THE CITY SUBMITTED ITS PROPOSAL IN JANUARY 1935 FOR THE FISCAL YEAR ENDING JUNE 30. WE QUOTED YOU ON THE INSIDE-THE-CITY WATER RATE WHICH INCLUDES A CHARGE OF 15 CENTS FOR GARBAGE REMOVAL ON EVERY METER REGARDLESS OF WHETHER THE GARBAGE SERVICE IS REQUIRED OR NOT.

A-60237, NOVEMBER 8, 1935, 15 COMP. GEN. 380

TAXES - MUNICIPAL - GARBAGE REMOVAL CHARGE INCLUDED IN WATER RATE A CHARGE FOR GARBAGE-REMOVAL SERVICE INCLUDED IN A PUBLISHED INSIDE THE- CITY WATER RATE ON EVERY METER WHETHER THE SERVICE IS OR IS NOT REQUIRED, IS A TAX AND MAY NOT BE COLLECTED FROM THE UNITED STATES, EITHER SEPARATELY OR BY ADDING IT TO A SERVICE CHARGE, NOR BY MAKING SERVICE CHARGES AS THOUGH THE GOVERNMENT-OCCUPIED BUILDING WAS BEYOND THE CORPORATE LIMITS.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 8, 1935:

THE CITY OF PORT ARTHUR, TEX., HAS REQUESTED REVIEW OF SETTLEMENT OF MARCH 21, 1935, DISALLOWING ITS CLAIM NO. P-995 FOR PAYMENT AT THE RATE OF $0.15 PER MONTH ON A WATER METER FOR THE PURPOSE OF MAINTAINING AND OPERATING A GARBAGE DEPARTMENT FOR THE CITY.

IN THIS CONNECTION THERE IS FOR CONSIDERATION TWO LETTERS FROM THE SUPERINTENDENT, WATER DEPARTMENT, PORT ARTHUR, TEX. LETTER OF AUGUST 1, 1935, FROM SAID OFFICIAL, IS AS FOLLOWS:

AS EXPLAINED TO YOU WHEN THE CITY SUBMITTED ITS PROPOSAL IN JANUARY 1935 FOR THE FISCAL YEAR ENDING JUNE 30, 1936, THE CITY HAS BUT TWO PUBLISHED WATER RATES. WE QUOTED YOU ON THE INSIDE-THE-CITY WATER RATE WHICH INCLUDES A CHARGE OF 15 CENTS FOR GARBAGE REMOVAL ON EVERY METER REGARDLESS OF WHETHER THE GARBAGE SERVICE IS REQUIRED OR NOT. DEMANDED, THE CUSTOMER IS ENTITLED TO THE REMOVAL OF FOUR 30-GALLON CANS PER MONTH, BUT ALL WATER USERS MUST PAY THE 15 CENTS PER MONTH CHARGE.

THE POST OFFICE DEPARTMENT HAS REFUSED TO PAY THIS 15 CENTS PER MONTH CHARGE AND NOW OWES FOURTEEN MONTHS.

IN VIEW OF THE FACT THAT THE POST OFFICE DEPARTMENT HAS REFUSED TO PAY THE WATER RATE THAT IS CHARGED TO EVERY CUSTOMER INSIDE THE CITY LIMITS AND STATED THAT THE FEDERAL BUILDING IS EXTRATERRITORIAL, THE CITY HAS NO ALTERNATIVE EXCEPT TO CHARGE THE POST OFFICE DEPARTMENT THE OUTSIDE-THE- CITY RATE. WE REFER YOU TO YOURS OF JULY 18TH ENCLOSING COMMUNICATION FROM THE FOURTH ASSISTANT POSTMASTER GENERAL, DATED JULY 15TH. IN VIEW OF THE FACT THAT THE POST OFFICE DEPARTMENT HAS CANCELED THIS 15 CENTS CHARGE, WHICH IS PART OF THE CITY WATER RATE FOR THE YEAR 1936, WE CAN ONLY FURNISH WATER ON THE OUTSIDE-THE CITY RATE, OR IT WILL BE NECESSARY FOR THE POST OFFICE DEPARTMENT TO CLEAR UP THE ARREARAGE IN THE INSIDE-THE -CITY RATE NOW EXISTING AND PAY FOR THE FISCAL YEAR 1936 AS QUOTED IN OUR PROPOSAL.

THE LETTER OF AUGUST 12, 1935, FROM THE OFFICIAL, IS AS FOLLOWS:

WITH FURTHER REFERENCE TO OUR CORRESPONDENCE WITH REFERENCE TO WATER RATES FOR THE POST-OFFICE BUILDING IN PORT ARTHUR. THIS RATE WAS PUT INTO EFFECT BY VIRTUE OF ORDINANCE NO. 1046 PASSED APRIL 21ST, 1934. THE POST OFFICE DEPARTMENT HAS REFUSED TO PAY THE 15 CENTS CHARGE FOR GARBAGE WHICH IS PLACED ON EVERY METER INSIDE THE CITY OF PORT ARTHUR. THE POST OFFICE DEPARTMENT NOW OWES THE CITY OF PORT ARTHUR FOURTEEN MONTHS AT 15 CENTS PER MONTH, THAT IS FROM THE MAY READING IN 1934 THROUGH THE JUNE READING IN 1935.

IN OUR PROPOSAL FOR THE YEAR ENDING JUNE 30TH, 1936, THE INSIDE-THE CITY RATE WAS QUOTED. IN YOUR LETTER OF JULY 15, 1935, FROM S. W. PURDUM, FOURTH ASSISTANT POSTMASTER GENERAL, STATEMENT WAS MADE THAT THIS 15 CENTS CHARGE FOR GARBAGE FOR THE FISCAL YEAR 1936 WAS CANCELED. IN VIEW OF THE ABOVE FACTS, AND AS STATED IN MY LETTER OF AUGUST 1ST, SINCE THE CITY HAS BUT TWO PUBLISHED WATER RATES IT IS NECESSARY TO FURNISH WATER TO THE POST OFFICE DEPARTMENT AT THE OUTSIDE-THE-CITY RATE.

IF THE POST OFFICE DEPARTMENT DESIRES TO AVAIL THEMSELVES OF THE INSIDE- THE-CITY RATE IT WILL BE NECESSARY TO PAY THE FOURTEEN MONTHS' PAST-DUE ACCOUNT OF 15 CENTS PER MONTH AND TO PAY THE 15 CENTS PER MONTH AS SUBMITTED IN OUR PROPOSAL FOR THE YEAR ENDING JUNE 30, 1936.

FOR YOUR INFORMATION THIS CHARGE IS BEING COLLECTED FROM EVERY METER INSIDE THE CITY OF PORT ARTHUR SAVE AND EXCEPT THE POST OFFICE BUILDING AND THE U.S. ENGINEER'S OFFICE, AND THE CHARGE IS PART OF THE WATER BILL AND MUST BE PAID BY EVERY METER REGARDLESS OF WHETHER THE CUSTOMER DEMANDS GARBAGE SERVICE OR NOT.

I AM ENCLOSING COPY OF AN OPINION FROM THE CITY ATTORNEY WITH REFERENCE TO THIS MATTER.

THE COPY OF OPINION OF V. J. WISTNER, CITY ATTORNEY, PORT ARTHUR, TEX., REFERRED TO, IS AS FOLLOWS:

REFERRING TO YOUR RECENT INQUIRY AS TO WHETHER OR NOT THE CITY OF PORT ARTHUR HAS THE RIGHT TO, OR IS JUSTIFIED IN ASSESSING FIFTEEN CENTS PER MONTH AGAINST ALL WATER USERS IN THE CITY, AS A SUM OF MONEY TO BE USED IN AIDING AND ASSISTING IN THE MAINTENANCE AND OPERATION OF THE GARBAGE DEPARTMENT OF THE CITY OF PORT ARTHUR, WISH TO STATE:

THAT THE REMOVAL OF GARBAGE IS A VERY NECESSARY THING IN ORDER TO INSURE THE HEALTH OF THE INHABITANTS OF OUR CITY. THIS DEPARTMENT, OF COURSE, IS MAINTAINED AT THE EXPENSE OF THE CITY, AND ITS OPERATION MUST BE PAID EITHER FROM TAXATION OR FROM SOME OTHER REVENUE TO BE DERIVED FROM THE OPERATION OF SOME OTHER DEPARTMENT. I FEEL THAT INASMUCH AS THE COMMISSIONERS HAVE DECIDED TO MAINTAIN THIS DEPARTMENT BY THE LEVY OF FIFTEEN CENTS PER MONTH AGAINST ALL WATER USERS FOR THE PURPOSE OF CREATING A FUND TO AID AND ASSIST IN THE REMOVAL OF GARBAGE IN LIEU OF A TAX LEVY TO PRODUCE A SUFFICIENT AMOUNT, IT IS WELL WITHIN THE POWERS OF THE CITY COMMISSION.

IT IS MY OPINION THAT INASMUCH AS IT IS NECESSARY TO REMOVE GARBAGE FROM THE CITY, THE COMMISSION CAN PROVIDE SUCH FUNDS FROM ANY SOURCE WHICH WITHIN THEIR JUDGMENT IS MOST FEASIBLE.

THE DISALLOWANCE IN THIS CASE WAS NOT FOR THE REASON THAT THE CITY OF PORT ARTHUR DOES NOT NEED THE FUNDS ARISING FROM THIS LEVY, NOR THAT THERE WAS NO AUTHORITY TO PASS THE ORDINANCE OR MAKE THE LEVY, BUT FOR THE REASON THAT THIS CHARGE IS NOT A SERVICE CHARGE BUT IS A TAX AND AS SUCH MAY NOT BE COLLECTED FROM THE UNITED STATES.

BEING A TAX AND NOT A SERVICE CHARGE IT MAY NOT BE COLLECTED UNDER ANY GUISE--- EITHER SEPARATELY OR BY ADDING IT TO SERVICE OR OTHER CHARGES DUE BY THE GOVERNMENT NOR BY MAKING SERVICE CHARGES AGAINST THE GOVERNMENT AS THOUGH THE POST-OFFICE BUILDING WAS BEYOND THE CORPORATE LIMITS OF PORT ARTHUR; NEITHER MAY IT BE COLLECTED BY MEANS OF ANY OTHER DEVICE.