A-99802, DECEMBER 21, 1938, 18 COMP. GEN. 562

A-99802: Dec 21, 1938

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MANIFESTLY THE FEDERAL GOVERNMENT IS NOT LIABLE FOR SUCH ASSESSMENTS WERE THE UNITED STATES DOES NOT HAVE THE FEE SIMPLE TITLE TO THE LAND INVOLVED AND HAS ONLY THE RIGHT TO ITS USE AND OCCUPANCY FOR A LIFESAVING. WHICH WAS DISALLOWED UNDER DATE OF JULY 26. THE CLAIM ORIGINALLY FILED BY THE BOROUGH CLERK ALLEGES THAT SOME TIME IN 1927 A LOCAL ORDINANCE WAS ADOPTED PROVIDING FOR THE CONSTRUCTION OF A NEW SEWER ALONG CERTAIN STREETS IN MANASQUAN. AFTER A PUBLIC MEETING THEREON AT WHICH PROTEST WAS ENTERED ON BEHALF OF THE COAST GUARD. THE ASSESSMENT WAS SUSTAINED BY "THE ORDER OF THE COURT.'. NO FURTHER ACTION APPEARS TO HAVE BEEN TAKEN UNTIL AUGUST 11. WHEN THE CLAIM FIRST REFERRED TO ABOVE WAS SUBMITTED BY THE BOROUGH CLERK.

A-99802, DECEMBER 21, 1938, 18 COMP. GEN. 562

STATE OR LOCAL IMPROVEMENTS - ASSESSMENTS ON FEDERAL PROPERTY - GOVERNMENT LIABILITY A STATE OR POLITICAL SUBDIVISION THEREOF HAVING NO AUTHORITY TO IMPOSE AN ASSESSMENT UPON FEDERAL PROPERTY TO PAY FOR LOCAL IMPROVEMENTS, MANIFESTLY THE FEDERAL GOVERNMENT IS NOT LIABLE FOR SUCH ASSESSMENTS WERE THE UNITED STATES DOES NOT HAVE THE FEE SIMPLE TITLE TO THE LAND INVOLVED AND HAS ONLY THE RIGHT TO ITS USE AND OCCUPANCY FOR A LIFESAVING, ETC., STATION PURSUANT TO THE ACT OF MARCH 3, 1875, 18 STAT. 372, WHICH OCCUPATION MAY BE ABANDONED IN THE NEAR FUTURE, BUT A REASONABLE CLAIM MAY BE FILED IN LIEU OF THE ASSESSMENT FOR ANY SERVICE ACTUALLY RENDERED IN THIS CONNECTION, THERE BEING NOTED THE RENTAL CHARGED FOR THE SERVICE INVOLVED PRIOR TO THE NEW IMPROVEMENTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE COLLECTOR, BOROUGH OF MANASQUAN, NEW JERSEY, DECEMBER 21, 1938:

THERE HAS BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION YOUR LETTER OF NOVEMBER 7, 1938, TO THE ASSISTANT COMMANDANT OF THE UNITED STATES COAST GUARD, INCLOSING "FINAL NOTICE OF TAX AND ASSESSMENT SALE" AND A "STATEMENT OF UNPAID TAXES" IN THE AMOUNT OF $895.12 AGAINST THE UNITED STATES COAST GUARD STATION, MANASQUAN, N.J. A COPY OF THE SAME LETTER ADDRESSED TO THIS OFFICE BEARS REFERENCE TO THE CLAIM PREVIOUSLY FILED FOR THESE ASSESSMENTS, WHICH WAS DISALLOWED UNDER DATE OF JULY 26, 1938.

THE CLAIM ORIGINALLY FILED BY THE BOROUGH CLERK ALLEGES THAT SOME TIME IN 1927 A LOCAL ORDINANCE WAS ADOPTED PROVIDING FOR THE CONSTRUCTION OF A NEW SEWER ALONG CERTAIN STREETS IN MANASQUAN, N.J.; THAT FOLLOWING THE COMPLETION OF THE IMPROVEMENT A BOARD OF ASSESSMENT REPORTED CERTAIN AMOUNTS DUE THEREFOR FROM THE PROPERTY OWNERS IN THE VICINITY, INCLUDING THE COAST GUARD; AND THAT, AFTER A PUBLIC MEETING THEREON AT WHICH PROTEST WAS ENTERED ON BEHALF OF THE COAST GUARD, THE ASSESSMENT WAS SUSTAINED BY "THE ORDER OF THE COURT.' IN 1931 THE DISTRICT COMMANDER OF THE COAST GUARD INFORMED THE BOROUGH OF MANASQUAN THAT ANY CLAIM FOR PAYMENT OF THE ASSESSMENT MUST BE FILED WITH THIS OFFICE.

NO FURTHER ACTION APPEARS TO HAVE BEEN TAKEN UNTIL AUGUST 11, 1937, WHEN THE CLAIM FIRST REFERRED TO ABOVE WAS SUBMITTED BY THE BOROUGH CLERK, ASSERTING THERE WAS DUE A TOTAL OF $535.30 FOR THE ASSESSMENTS MADE UNDER THE ORDINANCE OF 1927. THEREAFTER, REPEATED BUT UNSUCCESSFUL EFFORTS WERE MADE BY THE COAST GUARD OFFICERS AT THE REQUEST OF THIS OFFICE TO OBTAIN FULL INFORMATION ON THE CLAIM AND COPIES OF DOCUMENTS NECESSARY TO A DETAILED UNDERSTANDING OF WHAT ACTUALLY TOOK PLACE IN 1927 AND WHETHER THE ASSESSMENT HAD BEEN MADE IN COMPLIANCE WITH THE VARIOUS NEW JERSEY STATUTES ON THE SUBJECT--- PARTICULARLY SECTIONS 40:56-21 TO 53, NEW JERSEY REVISED STATUTES OF 1937. UPON RECEIPT OF SUCH INFORMATION AS THE COAST GUARD COULD OBTAIN, THIS OFFICE DISALLOWED THE CLAIM ON THE GROUND THAT NO STATE OR POLITICAL SUBDIVISION THEREOF HAS AUTHORITY TO IMPOSE AN ASSESSMENT UPON FEDERAL PROPERTY TO PAY FOR LOCAL IMPROVEMENTS.

YOUR LETTER OF NOVEMBER 7 AGAIN ASSERTS A CLAIM FOR THE ASSESSMENTS, BUT TO THE AMOUNT ORIGINALLY CLAIMED THERE HAS NOW BEEN ADDED--- APPARENTLY FOR THE FIRST TIME--- A TOTAL OF $359.82 FOR INTEREST AND COSTS, THE BASIS OF THE COMPUTATION OR THE AUTHORITY FOR THE CHARGE NOT BEING STATED. WHILE THE RECORD IS THUS INCOMPLETE, THE APPLICABLE RULES OF LAW ARE SO WELL DEFINED THAT A FINAL DETERMINATION AS TO THE GOVERNMENT'S LIABILITY WOULD APPEAR TO BE WARRANTED ON THE PRESENT RECORD, WITHOUT FURTHER INQUIRY.

IN THE RECENT CASE OF MULLEN BENEVOLENT CORPORATION V. UNITED STATES, 290 U.S. 89, SUIT WAS BROUGHT BY THE HOLDER OF IMPROVEMENT BONDS ISSUED BY A LOCAL IMPROVEMENT DISTRICT IN IDAHO TO FINANCE SIDEWALK AND SEWER CONSTRUCTION, AND IT WAS SOUGHT TO COLLECT THE BALANCE DUE ON THE BASIS OF A REASSESSMENT MADE AFTER CERTAIN OF THE PROPERTY BENEFITED HAD BEEN ACQUIRED BY THE UNITED STATES. THE SUPREME COURT OF THE UNITED STATES DENIED THE CLAIM, STATING, AT PAGE 91,"BUT AS THE LAND WAS THEN OWNED BY THE UNITED STATES, THE ASSESSMENT WAS A NULLITY. VAN BROCKLIN V. TENNESSEE, 117 U.S. 151.' IN A SIMILAR CASE IN 1925, LEE V. OSCEOLA AND LITTLE RIVER ROAD IMPROVEMENT DISTRICT, 268 U.S. 643, THIS IMMUNITY TO ASSESSMENT FOR LOCAL IMPROVEMENTS WAS EXTENDED TO ANNUL A REASSESSMENT MADE AFTER THE PROPERTY HAD BEEN CONVEYED BY THE UNITED STATES TO PRIVATE OWNERS, THE IMPROVEMENT HAVING BEEN COMPLETED AND THE FIRST ASSESSMENT MADE WHILE THE LAND WAS OWNED BY THE UNITED STATES. SEE, ALSO, WISCONSIN CENTRAL RAILROAD CO. V. PRICE COUNTY, 133 U.S. 496, 504; HAGAR V. RECLAMATION DISTRICT, 111 U.S. 701; AND A VERY RECENT APPLICATION OF THE RULE IN UNITED STATES V. ANDERSON COTTONWOOD IRRIGATION DISTRICT (D.C.N.D.CALIF., 1937), 19 FED.SUPP. 740. THE BASIS IS THAT THE ASSESSMENT IS AN INVOLUNTARY EXACTION, AND AS SUCH IS A TAX WHICH THE UNITED STATES MAY NOT BE REQUIRED TO PAY. HAGAR V. RECLAMATION DISTRICT, SUPRA.

THE STATE COURTS IN WHICH THE QUESTION HAS ARISEN HAVE UNIFORMLY ACCEPTED THE PRINCIPLE. SEE FAGAN V. CHICAGO, 84 ILL. 227, STATING AT PAGE 234,"A MUNICIPAL CORPORATION HAS NO POWER TO ASSESS OR EXACT FROM THE STATE OR GENERAL GOVERNMENT ANY SUM FOR BENEFITS CONFERRED. THE POWER TO LEVY TAXES OR IMPOSE ASSESSMENTS FOR BENEFITS CAN ONLY BE EXERCISED ON THE GOVERNED, AND NOT ON THE GOVERNING POWER, WHETHER STATE OR FEDERAL.' OTHER CASES TO THE SAME EFFECT ARE COLLECTED IN 90 A.L.R. 1140.

THIS HAS BEEN THE SETTLED POLICY OF THE GOVERNMENT FOR MANY YEARS--- SEE 2 COMP. DEC. 375 (1896), 4 ID. 116 (1897), 3 COMP. GEN. 416 (1924), 9 OPS.ATTY.GEN. 291 (1859), 25 ID. 234 (1904/--- AND APPEARS TO HAVE BEEN RECOGNIZED IN A GENERAL WAY BY THE LEGISLATURE AND THE HIGHEST COURTS OF NEW JERSEY. SEE NEW JERSEY REVISED STATUTES OF 1937, SECTION 54:4-3.3, PENNSYLVANIA COAL CO. V. SADDLE RIVER, 96 N.J.L. 40, AND TRUSTEES FOR THE SUPPORT OF PUBLIC SCHOOLS V. TRENTON, 30 N.J.EQ. 667, ALL INDICATING THAT TAXATION IN ITS VARIOUS FORMS MAY NOT BE LEVIED BY THE STATE OR ITS SUBDIVISIONS ON PROPERTY OF THE UNITED STATES.

THE PRINCIPLES STATED ABOVE DO NOT DENY THE BENEFITS SPECIALLY CONFERRED BY THE LOCAL IMPROVEMENTS, WHICH, HOWEVER, DIFFER ONLY IN DEGREE FROM THE MANY OTHER BENEFITS CONTRIBUTED BY LOCAL GOVERNMENTS THROUGHOUT THE COUNTRY, WHEREVER FEDERAL PROPERTY IS LOCATED, AND MAY IN FACT BE SAID TO BE RECIPROCATED AT LEAST IN PART BY THE SPECIAL SERVICE TO THE COMMUNITIES AT LARGE WHICH THE FEDERAL ACTIVITIES THERE RENDER IN CARRYING OUT THE PURPOSES OF THEIR ESTABLISHMENT.

IN THE PRESENT CASE IT IS REPORTED THE UNITED STATES DOES NOT HAVE THE FEE SIMPLE TITLE TO THE LAND IN QUESTION, BUT HAS ACQUIRED ONLY THE RIGHT TO ITS USE AND OCCUPANCY FOR A LIFESAVING, ETC., STATION PURSUANT TO THE ACT OF MARCH 3, 1875, 18 STAT. 372, AND THAT THE PARTICULAR STATION MAY BE ABANDONED IN THE NEAR FUTURE, IN WHICH EVENT THE GOVERNMENT'S ESTATE IN THE LAND WILL TERMINATE. MANIFESTLY, IN SUCH CASE THE BENEFIT OF THE IMPROVEMENT WILL RESULT TO THE OWNER OF THE REVERSION RATHER THAN THE GOVERNMENT.

FOR THE REASONS STATED THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED, BUT SUCH ACTION IS WITHOUT PREJUDICE TO THE FILING IN GOOD TIME BY THE APPROPRIATE LOCAL AUTHORITIES OF A REASONABLE AND PROPER CLAIM, IF ANY THERE BE, IN LIEU OF THE ASSESSMENT, FOR ANY SERVICE ACTUALLY RENDERED, THERE BEING NOTED THE RENTAL OF $5 PER YEAR CHARGED FOR THIS SERVICE PRIOR TO THE NEW INSTALLATION IN 1927.