A-95990, AUGUST 11, 1938, 18 COMP. GEN. 151

A-95990: Aug 11, 1938

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NOTWITHSTANDING THE CHARGE FOR SUCH CARDS IS NOMINAL AND THE FEE IS TO COVER THE COST OF INSPECTION. IS AS FOLLOWS: REQUEST HAS BEEN RECEIVED FROM THE VETERANS' ADMINISTRATION FACILITY. COPY OF WHICH IS ATTACHED. IS CHARGING $1.00 FOR A SERVICE CARD FOR PARKING IN THE METER ZONE TWO VEHICLES BELONGING TO THE PORTLAND OFFICE OF THE VETERANS' ADMINISTRATION. THIS FEE IS PURELY NOMINAL IN VIEW OF THE FACT THAT THE VETERANS' ADMINISTRATION CARS ARE DOWNTOWN MANY TIMES EACH DAY. WHICH WOULD REQUIRE THE PASSENGERS TO WALK TO THE POINT WHICH THEY ARE REQUIRED TO VISIT. IS IMPOSSIBLE. ESPECIALLY BECAUSE THE CARS ARE NOT INFREQUENTLY USED TO TAKE DISABLED BENEFICIARIES TO THE BUSINESS ESTABLISHMENTS OF PROSTHETIC APPLIANCE HOUSES FOR THE PURPOSE OF FITTING BELTS.

A-95990, AUGUST 11, 1938, 18 COMP. GEN. 151

APPROPRIATIONS - AVAILABILITY - MUNICIPAL PARKING METER FEES IN VIEW OF THE FUNDAMENTAL QUESTION OF FEDERAL-STATE AUTHORITY INVOLVED; THE JUDICIAL INTERPRETATIONS WITH REGARD TO THE TAXING AND POLICE POWERS OF A STATE IN ITS RELATION TO THE FEDERAL GOVERNMENT AND THOSE ENGAGED IN ITS LAWFUL AND PROPER FUNCTIONS WITHIN A STATE; AND THE ABSENCE OF A DETERMINATION BY PROPER JUDICIAL AUTHORITY OF THE LIABILITY OF THE UNITED STATES FOR PARKING METER FEES IMPOSED BY MUNICIPAL ORDINANCE OR STATE LAW, APPROPRIATED MONEYS MAY NOT BE CONSIDERED AVAILABLE FOR THE PROCUREMENT OF "SERVICE CARDS" FOR THE PARKING OF GOVERNMENT VEHICLES IN A METERED ZONE IN LIEU OF PAYMENT OF THE PARKING FEE RATES, NOTWITHSTANDING THE CHARGE FOR SUCH CARDS IS NOMINAL AND THE FEE IS TO COVER THE COST OF INSPECTION, INSTALLATION, OPERATION, CONTROL, ETC., OF THE PARKING AREA AND METERS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 11, 1938:

YOUR LETTER OF JUNE 22, 1938, IS AS FOLLOWS:

REQUEST HAS BEEN RECEIVED FROM THE VETERANS' ADMINISTRATION FACILITY, PORTLAND, OREGON, FOR PERMISSION TO PURCHASE TWO SERVICE CARDS, ESTIMATED TOTAL COST $2.00, OBTAINABLE FROM THE CITY OF PORTLAND DEPARTMENT OF PUBLIC WORKS FOR PARKING IN METER ZONE, AND COVERING A PERIOD OF TIME FROM APRIL TO SEPTEMBER 30, 1938.

IT APPEARS THAT THE CITY OF PORTLAND HAS PASSED ORDINANCE NO. 70240, COPY OF WHICH IS ATTACHED, INAUGURATING THE USE OF PARKING METERS THROUGHOUT THE BUSINESS DISTRICT OF THE CITY, AND IN LIEU OF REQUIRING THE VETERANS' ADMINISTRATION TO PAY THE CHARGE OF $0.05 PER HOUR FOR EACH MOTOR VEHICLE, IS CHARGING $1.00 FOR A SERVICE CARD FOR PARKING IN THE METER ZONE TWO VEHICLES BELONGING TO THE PORTLAND OFFICE OF THE VETERANS' ADMINISTRATION. THIS FEE IS PURELY NOMINAL IN VIEW OF THE FACT THAT THE VETERANS' ADMINISTRATION CARS ARE DOWNTOWN MANY TIMES EACH DAY, AND THE ONLY ALTERNATIVE TO THE USE OF THESE SERVICE CARDS WOULD BE TO PARK OUTSIDE THE BUSINESS ZONE, WHICH WOULD REQUIRE THE PASSENGERS TO WALK TO THE POINT WHICH THEY ARE REQUIRED TO VISIT. THIS, FOR MANY REASONS, IS IMPOSSIBLE, ESPECIALLY BECAUSE THE CARS ARE NOT INFREQUENTLY USED TO TAKE DISABLED BENEFICIARIES TO THE BUSINESS ESTABLISHMENTS OF PROSTHETIC APPLIANCE HOUSES FOR THE PURPOSE OF FITTING BELTS, ORTHOPEDIC SHOES, AND OTHER APPLIANCES.

INFORMATION IS REQUESTED AS TO WHETHER THE VETERANS' ADMINISTRATION APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF THE CHARGE FOR THESE PARKING SERVICE CARDS. PLEASE RETURN THE ENCLOSURE WITH YOU REPLY.

THE ORDINANCE REFERRED TO IN YOUR LETTER AUTHORIZES THE INSTALLATION AND USE OF PARKING METERS FOR AN EXPERIMENTAL PERIOD OF 120 DAYS, IN DESIGNATED PARKING-METER DISTRICTS, FOR THE DECLARED PURPOSE OF RELIEVING MOTOR VEHICLE TRAFFIC CONGESTION AND ESTABLISHING AN EFFICIENT SYSTEM APPLICABLE TO THE ENFORCEMENT OF PARKING PRIVILEGES AND AS AN EXERCISE OF THE POLICE POWER. A FEE OF 5 CENTS IS PRESCRIBED FOR PARKING IN A PARKING -METER SPACE FOR THE TIME LIMITED IN THE ORDINANCE, WITH PENALTIES FOR PARKING OVERTIME.

SECTION 55-5 PROVIDES THAT PARKING METER SPACE MAY BE USED WITHOUT CHARGE ON SUNDAYS AND LEGAL HOLIDAYS AND OTHER DAYS OF THE WEEK BETWEEN 6 P.M. AND 8 A.M. SECTION 55-11 PROVIDES THAT THE 5-CENT PARKING METER FEES ARE LEVIED AS POLICE REGULATION, SUPERVISION AND INSPECTION FEES, TO COVER THE COSTS INVOLVED IN THE INSPECTION, INSTALLATION, OPERATION, CONTROL, AND USE OF THE PARKING SPACES AND PARKING METERS DESCRIBED IN THE ORDINANCE.

SINCE THE FEE OF $1 WHICH THE CITY OF PORTLAND IS CHARGING FOR "SERVICE CARDS" FOR THE MOTOR VEHICLES OF YOUR ADMINISTRATION IS IN LIEU OF THE PARKING METER FEES PRESCRIBED IN THE CITY ORDINANCE, THE QUESTION AS TO PAYMENT FOR SUCH "SERVICE CARDS" DEPENDS UPON THE NATURE OF THE PARKING METER FEE AND THE LIABILITY OF THE FEDERAL GOVERNMENT TO PAY ANY FEE AT ALL FOR PARKING IN THE CITY STREETS. 4 COMP. GEN. 412.

THE USE OF PARKING METERS IS A RECENT DEVELOPMENT IN THE FIELD OF TRAFFIC REGULATION. HOWEVER, ORDINANCES SIMILAR TO THAT HERE IN QUESTION HAVE BEEN BEFORE THE COURTS IN A NUMBER OF CASES. IN AT LEAST THREE JURISDICTIONS THEY HAVE BEEN SUSTAINED AS A VALID EXERCISE OF THE POLICE POWER AND THE FEES PRESCRIBED THEREIN, WHERE REASONABLY CALCULATED TO PAY THE COSTS OF INSTALLATION, MAINTENANCE, AND SUPERVISION OF THE METERS, AND NOT TO RAISE MUNICIPAL REVENUE GENERALLY, HAVE BEEN HELD LICENSE FEES FOR THE PRIVILEGE OF PARKING RATHER THAN TAXES. STATE EX REL. HARKOW V. MCCARTHY, - FLA. -, 171 SO. 314; EX PARTE DUNCAN, 179 OKLA. 355, 65 P./2D) 1015; HARPER V. CITY OF WICHITA FALLS ET AL., - TEX.CIV.APP. -, 105 S.W./2D) 743. SEE, ALSO, IN RE OPINION OF THE JUSTICES, - MASS. -, 8 N.E./2D) 179. HOWEVER, IN BIRMINGHAM V. HOOD-MCPHERSON REALTY CO., - ALA. -, 172 SO. 114, 108 A.L.R. 1140, THE PARKING METER ORDINANCE OF THE CITY OF BIRMINGHAM WAS HELD INVALID AS AN UNAUTHORIZED ABANDONMENT OF THE TERMS OF A DEED OF DEDICATION OF THE STREETS TO THE CITY AND AN UNAUTHORIZED EXERCISE OF THE TAXING POWERS. THERE MAY BE NOTED, ALSO, THE PROVISIONS OF SECTION 11 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1939, 52 STAT. 192, AUTHORIZING THE EXPERIMENTAL INSTALLATION OF PARKING METERS AT NO EXPENSE TO THE DISTRICT.

WHETHER THE PARKING METER FEE PRESCRIBED IN THE PORTLAND CITY ORDINANCE BE REGARDED AS A TAX OR AS A LICENSE FEE INCIDENT TO THE EXERCISE OF THE POLICE POWER, THE IMPOSITION OF THE FEE OR ANY FEE IN LIEU THEREOF UPON THE UNITED STATES RAISES A FUNDAMENTAL QUESTION AS TO THE RELATIONS BETWEEN THE STATE, ACTING THROUGH THE CITY, AND THE FEDERAL GOVERNMENT. THE CITY WOULD OF COURSE HAVE NO AUTHORITY TO TAX THE FUNCTIONS OF THE FEDERAL GOVERNMENT WITHOUT ITS CONSENT. MCCULLOCH V. MARYLAND, 4 WHEAT. 316. IF IT BE CONSIDERED THAT IT IS THE POLICE POWER WHICH IS BEING EXERCISED HERE, THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT DEFINITIONS OF THE POLICE POWER OF THE STATE MUST BE TAKEN SUBJECT TO THE CONDITION THAT THE STATE CANNOT, IN ITS EXERCISE, FOR ANY PURPOSE WHATEVER, ENCROACH UPON THE POWERS OF THE GENERAL GOVERNMENT, OR RIGHTS GRANTED OR SECURED BY THE SUPREME LAW OF THE LAND. NEW ORLEANS GAS CO. V. LOUISIANA LIGHT CO., 115 U.S. 650; AND THAT FEDERAL OFFICERS WHO ARE DISCHARGING THEIR DUTIES IN A STATE, AND ENGAGED IN SUPERINTENDING THE INTERNAL MANAGEMENT OF A FEDERAL INSTITUTION, UNDER LAWFUL DIRECTION AND WITH THE APPROVAL OF CONGRESS ARE NOT SUBJECT TO THE JURISDICTION OF THE STATE IN REGARD TO THOSE VERY MATTERS OF ADMINISTRATION THUS APPROVED BY FEDERAL AUTHORITY. OHIO V. THOMAS, 173 U.S. 276.

IN JOHNSON V. MARYLAND, 254 U.S. 51, IT WAS HELD THAT THE STATE OF MARYLAND HAD NO POWER TO REQUIRE AN EMPLOYEE OF THE FEDERAL GOVERNMENT TO OBTAIN A LICENSE AND PAY A FEE THEREFOR AS A PREREQUISITE TO DRIVING A GOVERNMENT-OWNED VEHICLE IN THE STATE. SEE, ALSO, HUNT V. UNITED STATES, 278 U.S. 96. THE TWO CASES JUST REFERRED TO ARE CITED BY THE SUPREME COURT IN ARIZONA V. CALIFORNIA ET AL., 283 U.S. 423, 451, AS AUTHORITY FOR THE PROPOSITION THAT THE UNITED STATES MAY PERFORM ITS FUNCTIONS WITHOUT CONFORMING TO THE POLICE REGULATIONS OF A STATE.

IT HAS LONG BEEN THE RULE OF THE ACCOUNTING OFFICERS THAT THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF A STATE FEE FOR A LICENSE TAG REQUIRED BY THE STATE FOR A GOVERNMENT VEHICLE, EVEN THOUGH THE FEE IS LIMITED TO THE COST OF PRODUCING THE TAGS. 15 COMP. DEC. 231; 1 COMP. GEN. 50; 4 ID. 412.

THERE HAS NOT BEEN OVERLOOKED THE STATEMENT OF MR. JUSTICE HOLMES, SPEAKING FOR THE MAJORITY OF THE COURT IN JOHNSON V. MARYLAND, SUPRA, THAT

OF COURSE AN EMPLOYEE OF THE UNITED STATES DOES NOT SECURE A GENERAL IMMUNITY FROM STATE LAW WHILE ACTING IN THE COURSE OF HIS EMPLOYMENT. THAT WAS DECIDED LONG AGO BY MR. JUSTICE WASHINGTON IN UNITED STATES V. HART, PET.C.C. 390. 5 OPS.ATTY.GEN. 554. IT VERY WELL MAY BE THAT, WHEN THE UNITED STATES HAS NOT SPOKEN, THE SUBJECTION TO LOCAL LAW WOULD EXTEND TO GENERAL RULES THAT MIGHT AFFECT INCIDENTALLY THE MODE OF CARRYING OUT THE EMPLOYMENT--- AS, FOR INSTANCE, A STATUTE OR ORDINANCE REGULATING THE MODE OF TURNING AT THE CORNERS OF STREETS. COMMONWEALTH V. CLOSSON, 229 MASSACHUSETTS, 329. * * *

WHILE IT MAY BE THAT PARKING REGULATIONS OR RESTRICTIONS FALL WITHIN THE CLASS OF "GENERAL RULES" REFERRED TO IN THE QUOTED LANGUAGE FROM JOHNSON V. MARYLAND AS PROPER FOR COMPLYING WITH BY FEDERAL EMPLOYEES WHEN NOT IN CONFLICT WITH FEDERAL LAW OR AUTHORITY, THE IMPOSITION BY A POLICE REGULATION SUCH AS THAT HERE IN QUESTION, OF A LICENSE FEE FOR PARKING IN A PUBLIC THOROUGHFARE, SAID FEE TO BE USED TO DEFRAY THE COST OF ADMINISTERING AND ENFORCING THE REGULATION, WOULD APPEAR SCARCELY DISTINGUISHABLE, INSOFAR AS APPLICABLE TO THE INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT, FROM THE FEE INVOLVED IN THAT CASE. IN VIEW OF THE HOLDING IN THAT CASE, AND IN THE ABSENCE OF A DETERMINATION BY PROPER JUDICIAL AUTHORITY OF THE LIABILITY OF THE UNITED STATES FOR PARKING METER FEES IMPOSED BY MUNICIPAL ORDINANCE OR STATE LAW, THE ACCOUNTING OFFICERS WOULD NOT BE JUSTIFIED IN APPROVING SUCH FEES AS PROPER CHARGES AGAINST THE PUBLIC FUNDS OF THE UNITED STATES.

FURTHERMORE, THERE IS NOTHING IN THE PARKING METER ORDINANCE OF THE CITY OF PORTLAND PURPORTING TO MAKE IT APPLICABLE TO THE OPERATIONS OF THE FEDERAL GOVERNMENT OR TO AUTHORIZE A CHARGE FOR A ,SERVICE CARD" IN LIEU OF THE PARKING METER FEES THEREIN PRESCRIBED. IT IS WELL SETTLED THAT GENERAL WORDS IN A STATUTE OR MUNICIPAL ORDINANCE DO NOT APPLY TO THE SOVEREIGN, UNLESS THERE IS A CLEAR EXPRESSION OF AN INTENTION SO TO DO, OR UNLESS IT IS INCLUDED BY NECESSARY IMPLICATION. 15 COMP. DEC. 231, AND CASES CITED THEREIN.

IF THERE IS ANY QUESTION AS TO IDENTIFICATION OF THE VEHICLES OF YOUR ADMINISTRATION FOR THE PURPOSE OF EXEMPTION FROM THE PARKING METER FEE, IT APPEARS THAT THEY SHOULD BE, OR CAN BE, MADE READILY IDENTIFIABLE AS GOVERNMENT-OWNED VEHICLES WITHOUT THE NECESSITY OF OBTAINING A "SERVICE CARD" FROM THE CITY AUTHORITIES.

ANSWERING YOUR QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT THE APPROPRIATIONS OF YOUR ADMINISTRATION ARE NOT AVAILABLE FOR PAYMENT FOR THE "SERVICE CARDS" DESCRIBED IN YOUR LETTER. THE INCLOSURE TRANSMITTED WITH YOUR LETTER IS RETURNED AS REQUESTED.