A-82205, FEBRUARY 9, 1937, 16 COMP. GEN. 741

A-82205: Feb 9, 1937

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DISTRICT OF COLUMBIA - WATER RENTS - REFUNDS AND CHARGES AGAINST FEDERAL AGENCIES THERE IS NO LEGAL BASIS FOR THE COLLECTION OF WATER RENT FROM FEDERAL AGENCIES OCCUPYING PRIVATE PROPERTY IN THE DISTRICT OF COLUMBIA. 16 COMP. THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA ARE BY LAW CHARGED WITH THE DETERMINATION WHETHER THERE MAY BE REFUNDED WATER RENTS VOLUNTARILY PAID BY THE OWNER OF PREMISES LOCATED THEREIN. IS. FOR A REFUND OF WATER RENTS ALLEGED TO HAVE BEEN ERRONEOUSLY PAID TO THE DISTRICT OF COLUMBIA DURING THE PERIOD SEPTEMBER 1935 TO SEPTEMBER 1936. THE COMMISSIONERS ARE IN RECEIPT OF A LETTER DATED OCTOBER 9. IN WHICH IT IS STATED THAT "THE PREMISES HAVE BEEN LEASED FOR USE BY THE RURAL ELECTRIFICATION ADMINISTRATION.

A-82205, FEBRUARY 9, 1937, 16 COMP. GEN. 741

DISTRICT OF COLUMBIA - WATER RENTS - REFUNDS AND CHARGES AGAINST FEDERAL AGENCIES THERE IS NO LEGAL BASIS FOR THE COLLECTION OF WATER RENT FROM FEDERAL AGENCIES OCCUPYING PRIVATE PROPERTY IN THE DISTRICT OF COLUMBIA. 16 COMP. GEN. 323, DISTINGUISHED. THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA ARE BY LAW CHARGED WITH THE DETERMINATION WHETHER THERE MAY BE REFUNDED WATER RENTS VOLUNTARILY PAID BY THE OWNER OF PREMISES LOCATED THEREIN, LEASED TO A GOVERNMENT AGENCY UNDER AN AGREEMENT PROVIDING THAT THE LESSOR SHALL NOT BE RESPONSIBLE FOR SUCH CHARGES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, FEBRUARY 9, 1937:

YOUR LETTER OF DECEMBER 8, 1936, IS, IN PART, AS FOLLOWS:

CLAIM HAS BEEN MADE BY MR. H. B. SPENCER, OWNER OF PREMISES 2000 MASSACHUSETTS AVENUE, NORTHWEST, THROUGH RANDALL H. HAGNER AND COMPANY, RENTAL AGENTS, FOR A REFUND OF WATER RENTS ALLEGED TO HAVE BEEN ERRONEOUSLY PAID TO THE DISTRICT OF COLUMBIA DURING THE PERIOD SEPTEMBER 1935 TO SEPTEMBER 1936, IN THE SUM OF $155.84.

THE COMMISSIONERS ARE IN RECEIPT OF A LETTER DATED OCTOBER 9, 1936, FROM THE DIVISION OF GOVERNMENT SPACE CONTROL, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, IN WHICH IT IS STATED THAT "THE PREMISES HAVE BEEN LEASED FOR USE BY THE RURAL ELECTRIFICATION ADMINISTRATION. THE LEASE IS EFFECTIVE MAY 18, 1935, AND PROVIDES THAT THE LESSOR SHALL NOT BE RESPONSIBLE FOR WATER RENT AFTER THAT DATE.' THIS LETTER IS ADDRESSED TO RANDALL H. HAGNER AND COMPANY AND IN SUBSTANCE DENIES LIABILITY ON THE PART OF THE RURAL ELECTRIFICATION ADMINISTRATION TO PAY THE DISTRICT OF COLUMBIA FOR WATER CONSUMED AT THESE PREMISES. CONSEQUENTLY THE OWNER IS LOOKING TO THE DISTRICT FOR A REFUND OF THE ALLEGED ERRONEOUS PAYMENT. THE BILLS ON WHICH PAYMENT WAS MADE TO THE COLLECTOR OF TAXES ARE ADDRESSED TO THE OCCUPANT OF PREMISES 1500 20TH STREET, NORTHWEST, WHICH CORRESPONDS WITH THE ADDRESS 2000 MASSACHUSETTS AVENUE, NORTHWEST, AND ARE FOR THE FISCAL YEARS 1935 AND 1936 IN THE FOLLOWING AMOUNTS:

TABLE

NET AMOUNT

DATE PAID--- PAID

SEPT. 11, 1935 ------------------------------------- $20.06

DEC. 3, 1935 --------------------------------------- 44.42

MAR. 2, 1936 --------------------------------------- 35.07

JUNE 10, 1936 -------------------------------------- 22.16

SEPT. 10, 1936 ------------------------------------- 34.13

155.84

TITLE 20, SECTION 1391, OF THE CODE OF THE DISTRICT OF COLUMBIA, PROVIDES:

"THE COMMISSIONERS HAVE AUTHORITY TO PROVIDE FOR THE COLLECTION OF WATER RENTS IN ADVANCE OR OTHERWISE, FROM THE OWNER OR OCCUPANT OF ALL BUILDINGS OR ESTABLISHMENTS USING THE WATER; AND TO PROVIDE FOR STOPPING THE SUPPLY OF WATER TO ANY DWELLING OR ESTABLISHMENT UPON A FAILURE TO PAY THE RATE, AND TO CARRY INTO FULL EFFECT THE PROVISIONS OF THIS CHAPTER.' SEE IN THIS CONNECTION THE ACT OF JULY 3, 1930 (46 STAT. 909).

IN THE CASE OF MARTHA W. GODDARD V. THE DISTRICT OF COLUMBIA, JUSTICE BRADLEY, ON FEBRUARY 2, 1895, RENDERED THE FOLLOWING OPINION ON A PETITION FOR MANDAMUS:

"* * * THE LAW AS I INTERPRET IT, SAYS SIMPLY THIS: IF THE OCCUPANT OF THE PREMISES FAILS TO PAY THE WATER RATE, WITHIN THE TIME PRESCRIBED BY LAW, THE WATER SHALL BE TURNED OFF, AND AS TO THAT USER IT SHALL NOT BE TURNED ON AGAIN UNTIL THE WATER RATE AND THE PENALTY FOR TURNING IT OFF ARE PAID.

"SO THAT THE CONCLUSION IS THIS: THAT THE COMMISSIONERS HAVE NO RIGHT TO REFUSE TO TURN THIS WATER ON AT THE INSTANCE OF THE RELATOR OR TO IMPOSE ANY CONDITION UPON HER RIGHT TO USE THE WATER EXCEPT THE PAYMENT OF SUCH EXPENSE AS MAY BE INCIDENT TO THE MECHANICAL ACT OF TURNING IT ON, AND UPON THE PAYMENT BY HER OF THE RATE FOR THE UNEXPIRED FISCAL YEAR, AND OF SUCH EXPENSES AS MAY BE NECESSARY TO TURN THE WATER ON, SHE IS ENTITLED TO THE RELIEF PRAYED.'

NO APPEAL WAS TAKEN FROM THIS DECISION, BUT IT IS RATHER APPARENT FROM THE WORDING OF THE LAW, THAT THE COMMISSIONERS MAY PROVIDE FOR THE COLLECTION OF WATER RENT FROM EITHER THE OWNER OR THE OCCUPANT, AND SINCE THE WATER RENT BILLS HERE INVOLVED WERE RENDERED TO THE OCCUPANT AND PAID AS RENDERED, IT WOULD NOT APPEAR TO BE A PROPER CASE FOR A REFUND UNDER THE PROVISIONS OF THE 1937 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 23, 1936, WHICH PROVIDES IN PERTINENT PART:

"FOR THE REFUNDING OF WATER RENTS AND OTHER WATER CHARGES ERRONEOUSLY PAID IN THE DISTRICT OF COLUMBIA, TO BE REFUNDED IN THE MANNER PRESCRIBED BY LAW FOR THE REFUNDING OF ERRONEOUSLY PAID TAXES, $5,000: * * *.'

IT APPEARS IN THIS CASE, HOWEVER, THAT THE OWNER OF THE PREMISES, IN NEGOTIATING WITH AN AGENCY OF THE FEDERAL GOVERNMENT, HAS ATTEMPTED TO PASS TO IT A RESPONSIBILITY FOR THE PAYMENT OF WATER RENT, A LEGAL OBLIGATION IMPOSED BY LAW UPON HIM, THEREBY IN EFFECT INCREASING THE RENTAL CONSIDERATION, AND RECEIVING BENEFITS OF EXEMPTION WHICH COULD ACCRUE ONLY TO THE UNITED STATES. SEE IN THIS CONNECTION YOUR DECISION TO THE ALLEY DWELLING AUTHORITY FOR THE DISTRICT OF COLUMBIA DATED SEPTEMBER 30, 1936 (16 COMP. GEN. 323).

THERE ARE MANY OTHER CASES WHERE RENTED PROPERTY IN THE DISTRICT OF COLUMBIA IS BEING OCCUPIED BY AGENCIES OF THE UNITED STATES GOVERNMENT UNDER LEASES WHICH PROVIDE THAT THE LESSOR SHALL NOT BE RESPONSIBLE FOR WATER RENT, AND THE OWNER IS DENYING LIABILITY ON THE GROUND THAT THE OCCUPANT, NAMELY, THE AGENCY OF THE FEDERAL GOVERNMENT, IS RESPONSIBLE FOR THE WATER RENT.

THE COMMISSIONERS WOULD APPRECIATE EARLY ADVICE FROM YOU AS TO WHETHER, UNDER THE CIRCUMSTANCES, REFUND MAY BE MADE OF THE WATER RENT BILLS PAID BY H. B. SPENCER THROUGH HIS AGENT, RANDALL H. HAGNER AND COMPANY, AND WHETHER WATER RENT MAY BE COLLECTED FROM THE RURAL ELECTRIFICATION ADMINISTRATION AND OTHER FEDERAL AGENCIES OCCUPYING PRIVATE PROPERTY IN THE DISTRICT OF COLUMBIA, AND IF NOT, WHETHER IN YOUR OPINION WATER FURNISHED THESE AGENCIES MAY BE LEGALLY ASSESSED AGAINST THE OWNER.

YOUR SUBMISSION PRESENTS IN SUBSTANCE TWO PRINCIPAL QUESTIONS, FIRST, WHETHER WATER RENT MAY BE COLLECTED FROM FEDERAL AGENCIES OCCUPYING PRIVATE PROPERTY IN THE DISTRICT OF COLUMBIA, AND, SECOND, WHETHER REFUND MAY BE MADE TO THE OWNER OF THE PREMISES IN QUESTION OF THE AMOUNT OF WATER-RENT BILLS PAID THROUGH THE AGENT OF THE OWNER.

THE QUESTIONS THUS PRESENTED WILL BE CONSIDERED SEPARATELY IN THE ORDER JUST STATED. WITH RESPECT TO THE FIRST QUESTION--- INVOLVING THE PROPRIETY OF EXPENDITURE OF FEDERAL FUNDS FOR WATER SERVICES IN RENTED BUILDINGS OCCUPIED BY FEDERAL AGENCIES IN THE DISTRICT OF COLUMBIA--- YOUR ATTENTION IS INVITED TO THE FOLLOWING SECTIONS OF TITLE 40, UNITED STATES CODE:

45. CHIEF OF ENGINEERS; CHARGE OF WASHINGTON AQUEDUCT AND OTHER PUBLIC WORKS. THE CHIEF OF ENGINEERS SHALL HAVE THE IMMEDIATE SUPERINTENDENCE OF THE WASHINGTON AQUEDUCT, TOGETHER WITH ALL RIGHTS, APPURTENANCES, AND FIXTURES CONNECTED WITH THE SAME, AND BELONGING TO THE UNITED STATES, * *

51. CHIEF OF ENGINEERS; AUTHORITY. HE AND HIS NECESSARY ASSISTANTS ARE EMPOWERED TO USE ALL LAWFUL MEANS FOR THE DISCHARGE OF THEIR DUTIES; AND, PARTICULARLY, HE SHALL HAVE FULL CONTROL OVER THE WASHINGTON AQUEDUCT, TO REGULATE THE MANNER IN WHICH THE AUTHORITIES OF THE DISTRICT OF COLUMBIA MAY TAP THE SUPPLY OF WATER TO THE INHABITANTS THEREOF; * * *

55. MAINS OR PIPES; LAYING FOR USE OF PUBLIC BUILDINGS. NO GREATER NUMBER OF MAIN PIPES OF THE WASHINGTON AQUEDUCT SHALL BE LAID AT THE EXPENSE OF THE UNITED STATES THAN ARE SUFFICIENT TO FURNISH THE PUBLIC BUILDINGS, OFFICES, AND GROUNDS WITH THE NECESSARY SUPPLY OF WATER. THE COST OF ANY MAIN PIPE, FOR THE SUPPLY OF WATER TO THE INHABITANTS OF WASHINGTON, MUST BE PAID BY THE DISTRICT OF COLUMBIA, IN THE MANNER PROVIDED BY LAW (R.S. 1805; ACT OF MARCH 3, 1859, 11 STAT. 436).

SEE ALSO SECTION 1373, TITLE 20, DISTRICT OF COLUMBIA CODE, WHICH PROVIDES:

WATER SUPPLY; RULES AND REGULATIONS.--- FULL POWER IS GIVEN TO THE COMMISSIONERS TO SUPPLY THE INHABITANTS OF THE DISTRICT WITH THE POTOMAC WATER FROM THE AQUEDUCT MAINS OR PIPES LAID IN THE STREETS AND AVENUES BY THE UNITED STATES; AND TO MAKE ALL LAWS AND REGULATIONS FOR THE PROPER DISTRIBUTION OF THE SAME, SUBJECT TO THE PROVISIONS OF THIS CHAPTER, AND TO THE CONTROL OF THE CHIEF OF ENGINEERS, AS PROVIDED IN SECTION 51 OF TITLE 40 OF THE CODE OF LAWS OF THE UNITED STATES. * * *

THE QUOTED PROVISIONS OF LAW CLEARLY ESTABLISH THAT THE WASHINGTON AQUEDUCT IS A GOVERNMENTAL ACTIVITY ESTABLISHED PRIMARILY FOR THE PURPOSE OF FURNISHING WATER FOR THE NEEDS OF THE GOVERNMENT. IT IS TO BE OBSERVED FROM THE WORDING OF SECTION 55, SUPRA, THAT THE NEEDS CONTEMPLATED ARE NOT LIMITED TO GOVERNMENT BUILDINGS BUT THEY ALSO COVER THE NECESSARY SUPPLY OF WATER FOR PUBLIC OFFICES AND GROUNDS. THE FACT THAT A BUILDING USED BY THE UNITED STATES IN CARRYING ON GOVERNMENT ACTIVITIES IS LEASED DOES NOT AFFECT ITS PUBLIC CHARACTER. IT IS BEING USED FOR PUBLIC PURPOSES AND IN ALL PRACTICAL RESPECTS IS SERVING AS A PUBLIC BUILDING TO THE SAME EXTENT AS IF OWNERSHIP THEREOF WERE VESTED IN THE GOVERNMENT.

ACCORDINGLY, YOU ARE ADVISED THAT RELATIVE TO THE FIRST QUESTION PRESENTED THERE EXISTS NO LEGAL BASIS FOR THE COLLECTION OF WATER RENT FROM FEDERAL AGENCIES OCCUPYING PRIVATE PROPERTY IN THE DISTRICT OF COLUMBIA. SEE 5 COMP. DEC. 960 AND 27 ID. 163. THE CASE DECIDED IN 16 COMP. GEN. 323 IS TO BE DISTINGUISHED ON THE GROUND THAT THE USE IN THAT CASE WAS FOR OTHER THAN GOVERNMENT PURPOSES.

IN CONSIDERING THE QUESTION WHETHER WATER RENTS PAID BY THE OWNER OF PREMISES IN QUESTION LEGALLY MAY BE REFUNDED PURSUANT TO THE ABOVE QUOTED REPAYMENT PROVISION OF THE ACT OF JUNE 23, 1936, 49 STAT. 1886, IT IS NOTED THAT REFUNDS THEREUNDER ARE AUTHORIZED TO BE MADE "IN THE MANNER PRESCRIBED BY LAW FOR THE REFUNDING OF ERRONEOUSLY PAID TAXES.' WITH RESPECT TO REFUNDING TAXES ERRONEOUSLY PAID, IT WAS POINTED OUT IN 14 COMP. GEN. 480, THAT THE RESPONSIBILITY THEREFOR, AS PROVIDED IN SECTION 821, TITLE 20, DISTRICT OF COLUMBIA CODE--- AMENDED BY SECTION 14 OF THE PERMANENT APPROPRIATION REPEAL ACT OF JUNE 26, 1934, 48 STAT. 1224, 1230-- - IS PLACED SPECIFICALLY UPON THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA.

ACCORDINGLY, THE SECOND QUESTION PRESENTED MAY NOT BE SPECIFICALLY ANSWERED, BUT SEE UNITED STATES V. EDMONDSTON, 181 U.S. 500, 513, AND DISCUSSION THEREIN OF THE EXCEPTION TO THE GENERAL RULE THAT VOLUNTARY PAYMENTS MAY NOT BE REFUNDED. YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT THE LEASES COVERING THE PREMISES IN QUESTION EXCEPT THEREFROM ONE STORE LOCATED ON THE P STREET SIDE OF THE BUILDING. IN THE EVENT IT IS DETERMINED BY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA THAT A REFUND IS IN ORDER, IT WOULD APPEAR THAT THE AMOUNT THEREOF SHOULD BE LIMITED TO RENT PAID ON WATER SUPPLIED TO THOSE PORTIONS OF THE PREMISES ACTUALLY UNDER LEASE TO THE GOVERNMENT.