B-109420, OCT 10, 1952

B-109420: Oct 10, 1952

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THE ATTORNEY GENERAL: REFERENCE IS MADE TO THE LETTER OF THE ASSISTANT ATTORNEY GENERAL DATED APRIL 14. REQUESTING TO BE FURNISHED WITH EVIDENCE THAT THE AGREEMENT BY THE TOWN OF PINE BLUFFS TO REFUND THE ABOVE-MENTIONED AMOUNT TO THE UNITED STATES WAS EXECUTED BY DULY AUTHORIZED OFFICIALS OF THE TOWN PURSUANT TO A VALID APPROPRIATION AS REQUIRED BY WYOMING LAW. THERE IS NOTHING OF RECORD IN THIS OFFICE TO SHOW THAT THE TOWN OF PINE BLUFFS HAS EVER MADE AN APPROPRIATION FOR THE REPAYMENT OF THIS PLANNING ADVANCE. THERE ARE ENCLOSED HEREWITH TWO PHOTOSTATIC COPIES EACH OF AGREEMENT AND PUBLIC VOUCHER FOR ADVANCE NO. 13-158580. IT WILL BE NOTED THAT THE AGREEMENT TO REPAY THIS ADVANCE RECITES THAT IT WAS EXECUTED ON FEBRUARY 5.

B-109420, OCT 10, 1952

RE: CLAIM OF COMMUNITY FACILITIES SERVICE AGAINST TOWN OF PINE BLUFFS, WYOMING, $3,500.

THE ATTORNEY GENERAL:

REFERENCE IS MADE TO THE LETTER OF THE ASSISTANT ATTORNEY GENERAL DATED APRIL 14, 1952, FILE AHB:RM 77-87-60, IN THE ABOVE-ENTITLED MATTER, REQUESTING TO BE FURNISHED WITH EVIDENCE THAT THE AGREEMENT BY THE TOWN OF PINE BLUFFS TO REFUND THE ABOVE-MENTIONED AMOUNT TO THE UNITED STATES WAS EXECUTED BY DULY AUTHORIZED OFFICIALS OF THE TOWN PURSUANT TO A VALID APPROPRIATION AS REQUIRED BY WYOMING LAW.

THERE IS NOTHING OF RECORD IN THIS OFFICE TO SHOW THAT THE TOWN OF PINE BLUFFS HAS EVER MADE AN APPROPRIATION FOR THE REPAYMENT OF THIS PLANNING ADVANCE. HOWEVER, THERE ARE ENCLOSED HEREWITH TWO PHOTOSTATIC COPIES EACH OF AGREEMENT AND PUBLIC VOUCHER FOR ADVANCE NO. 13-158580, FEBRUARY 1947 ACCOUNT OF E. J. BRENNAN, PUBLIC VOUCHER FOR FINAL PAYMENT OF ADVANCE NO. 13-78446, JUNE 1947 ACCOUNT OF PAUL D. BANNING, TREASURY DEPARTMENT, AND LETTER DATED MAY 11, 1951, FROM THE HOUSING AND HOME FINANCE AGENCY, WITH FIVE ENCLOSURES, WHICH SET FORTH IN DETAIL THE CONTRACTURAL ARRANGEMENTS MADE THE CIRCUMSTANCES GIVING RISE TO THE GOVERNMENT'S CLAIM.

IT WILL BE NOTED THAT THE AGREEMENT TO REPAY THIS ADVANCE RECITES THAT IT WAS EXECUTED ON FEBRUARY 5, 1947, IN BEHALF OF THE TOWN OF PINE BLUFFS, WYOMING, BY O. A. ELWOOD, CHAIRMAN, PUBLIC WORKS. THAT AUTHORITY TO EXECUTE SAID AGREEMENT WAS VESTED IN SUCH OFFICIAL AT A MEETING HELD ON DECEMBER 4, 1946, WAS CERTIFIED TO BY M. L. MORRIS, MAYOR, AND ATTESTED BY H. JOHNSON, CLERK. THE AGREEMENT THEREUPON WAS ACCEPTED BY THE UNITED STATES ON FEBRUARY 12, 1947.

IT APPEARS FROM THE ABOVE-CITED LETTER OF MAY 11, 1951, AND ITS ENCLOSURES, THAT AFTER THE PLANS WERE COMPLETED AND BIDS FOR THE CONSTRUCTION OF THE WORK WERE RECEIVED, IT WAS FOUND THAT THE COST OF THE WHOLE PROJECT WOULD GREATLY HAVE EXCEEDED A PROPOSED SPECIAL IMPROVEMENT DISTRICT BOND ISSUE FOR THE PURPOSE, AND INSTEAD OF THE TOWN PROCEEDING WITH THE ENTIRE PROJECT, A GROUP OF LOCAL BUSINESS MEN FINANCED THE IMPROVEMENT OF THAT SEGMENT OF THE PLANNED WORK ABUTTING AND ADJACENT TO THEIR PROPERTIES. THE WORK DONE WAS LAID OUT PURSUANT TO PLANS FINANCED WITH THE FEDERAL GRANT AND WAS SUPERVISED BY THE TOWN'S CONSULTING ENGINEER FOR WHICH HE WAS PAID BY THE TOWN. WHILE THE ACTUAL COST OF THE WORK WAS PRIVATELY FINANCED, IT COULD NOT HAVE BEEN DONE UNDER WYOMING LAW WITHOUT CONCURRENCE, CONTROL AND SUPERVISION BY THE TOWN OFFICIALS. HENCE, IN ESSENCE IT WAS A PUBLIC IMPROVEMENT PROJECT OF THE TOWN.

THE AGREEMENT TO REPAY THE FEDERAL ADVANCE WAS CONTINGENT UPON THE WORK BEING UNDERTAKEN AND AS BOTH THE OBLIGATION AND THE NEED FOR AN APPROPRIATION TO MAKE THE REPAYMENT DID NOT EXIST AT THE TIME THE AGREEMENT WAS EXECUTED BUT AROSE SUBSEQUENTLY WHEN THE STREET IMPROVEMENTS WERE UNDERTAKEN, THERE WOULD APPEAR TO BE NO VIOLATION OF THE PROVISIONS OF SECTIONS 29-433 AND 434 OF THE WYOMING COMPILED STATUTES, 1945, GENERALLY REQUIRING APPROPRIATIONS PRIOR TO THE INCURRING AND LIQUIDATING OF OBLIGATIONS. WARD V. CITY OF BIG SPRING, 161 S.W. 2ND 821.

IT IS APPARENT THAT AN APPROPRIATION OF FUNDS BY THE TOWN OF PINE BLUFFS TO REPAY THIS PLANNING ADVANCE IS NECESSARY. HOWEVER, WHILE THE CITED PROVISIONS OF WYOMING LAW OBVIOUSLY WERE ENACTED TO PROTECT THE CITIZENS OF INCORPORATED TOWNS IN THAT STATE FROM UNAUTHORIZED OBLIGATION AND INJUDICIOUS EXPENDITURE OF THE TOWN'S REVENUE, IT HARDLY CAN BE SAID THAT SUCH PROVISIONS WERE INTENDED TO REGULATE ALL ASPECTS OF THE RECEIPT AND EXPENDITURE OF PUBLIC GRANTS AND DONATIONS, INCLUDING PRIVATE AID, WHICH PRIMARILY ARE GOVERNED BY THE TERMS AND CONDITIONS IMPOSED BY THE GRANTORS AND DONORS, IN THIS CASE PURSUANT TO FEDERAL LAW.

A MUNICIPAL CORPORATION MAY ACCEPT GRANTS OR DONATIONS, GUNDERSON V. MAIDES, 3 N.W. 2D. 236, AND AID FROM INDIVIDUALS, SCRUGGS V. TOWN OF SWEETWATER, 196 S.W. 2D 717, 720, TO BE USED IN LIEU OF ITS OWN REVENUES FOR FINANCING PUBLIC IMPROVEMENTS. THE TOWN OF PINE BLUFFS RECEIVED AND EXPENDED THE FEDERAL GRANT IN THE PLANNING, AND PRIVATE FUNDS WERE EXPENDED, IN THE CONSTRUCTION OF STREET IMPROVEMENTS IN LIEU OF THE TOWN'S REVENUE. THE FEDERAL GRANT WAS SUBJECT TO A REGULATORY REQUIREMENT IMPOSED PURSUANT TO A STATUTORY MANDATE THAT IT MUST BE REPAID "IF AND WHEN THE CONSTRUCTION OF THE PUBLIC WORKS SO PLANNED IS UNDERTAKEN." SECTION 501(C) OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, 58 STAT. 791. THE EMPLOYMENT OF THIS METHOD OF FINANCING THE ADVANCE PLANNING AND THE WORK DONE WOULD NOT APPEAR TO COME WITHIN THE AFOREMENTIONED INHIBITIONS OF THE WYOMING STATUTES, BUT EVEN IF IT WERE CONCEDED THAT THE LAWS OF WYOMING ARE WHOLLY APPLICABLE THEN THE INVOLVED ADVANCE WOULD HAVE BEEN PROCURED UNDER A MISREPRESENTATION BY THE TOWN OFFICIALS THAT THEY HAD VESTED AUTHORITY TO CONTRACT FOR AND REPAY SUCH ADVANCE WHEN THE WORK WAS UNDERTAKEN, WHICH PER SE WOULD ENTITLE THE UNITED STATES TO RECOVER THE AMOUNT PAID.

ACCORDINGLY, IT APPEARS THAT THE TOWN OF PINE BLUFFS IS LEGALLY OBLIGATED TO REPAY THE AMOUNT OF $3,500 IN QUESTION FOR WHICH PROVISION PROPERLY COULD AND SHOULD BE MADE IN THE TOWN'S NEXT BUDGET IN ACCORDANCE WITH SECTION 29-432, WYOMING COMPILED STATUTES, 1945.