B-120668, MARCH 4, 1955, 34 COMP. GEN. 417

B-120668, MARCH 4, 1955, 34 COMP. GEN. 417

PARKING METER FEES FOR GOVERNMENT VEHICLES IN THE ABSENCE OF A PROPER JUDICIAL DETERMINATION AS TO THE LIABILITY OF THE UNITED STATES FOR PARKING METER FEES OR ENACTMENT OF LEGISLATION, PUBLIC PARKING METER FEES FOR PARKING GOVERNMENT VEHICLES ON STREETS OF CITIES IN THE UNITED STATES MAY NOT BE PAID FROM APPROPRIATED FUNDS NOTWITHSTANDING CERTAIN MUNICIPAL ORDINANCES REQUIRE PAYMENT OF SUCH FEES BY OPERATORS OF VEHICLES OWNED OR USED BY THE UNITED STATES.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, MARCH 4, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1954, REQUESTING A DECISION AS TO WHETHER REIMBURSEMENT MAY BE MADE TO OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOR PUBLIC PARKING METER FEES PAID BY THEM INCIDENT TO THE PARKING OF GOVERNMENT VEHICLES ON STREETS OF CITIES THROUGHOUT THE UNITED STATES.

FOR EXAMPLE, IT IS STATED IN YOUR LETTER THAT IN THE OPERATION OF THE PUBLIC HEALTH SERVICE INSTALLATION SITUATED IN THE OUTSKIRTS OF CINCINNATI, OHIO, IT IS NECESSARY FOR EMPLOYEES TO USE GOVERNMENT-OWNED VEHICLES FOR MAIL AND MESSENGER SERVICE TO OTHER GOVERNMENT AGENCIES WHICH ARE LOCATED IN DOWNTOWN CINCINNATI. IT IS STATED FURTHER THAT IT IS NECESSARY FOR OFFICIALS OF THE INSTALLATION TO CONSULT WITH OFFICIALS OF OTHER GOVERNMENT DEPARTMENTS, STATE AND CITY HEALTH OFFICIALS, ETC., WHOSE OFFICES ARE LOCATED IN THE BUSINESS DISTRICT OF THAT CITY. THE LETTER RELATES THAT PUBLIC TRANSPORTATION FROM THE INSTALLATION TO THE BUSINESS DISTRICT IS INADEQUATE AND THAT THE PUBLIC PARKING METER FEES ARE PAID BY THE OFFICERS AND EMPLOYEES. YOU REFER TO THE DECISIONS REPORTED IN 18 COMP. GEN. 151 AND 26 ID. 397, WHEREIN PAYMENT FROM APPROPRIATED FUNDS TO A MUNICIPALITY FOR USE OF PUBLIC PARKING SPACE BY GOVERNMENT VEHICLES WAS HELD TO BE UNAUTHORIZED. HOWEVER, YOU INVITED SPECIFIC ATTENTION TO THE FACT THAT THE TRAFFIC CODE OF CINCINNATI PROVIDES THAT THE PROVISIONS OF THE CODE SHALL NOT BE CONSTRUED TO EXEMPT FROM ITS PENALTY PROVISIONS ,OPERATORS OF VEHICLES OWNED OR USED IN THE SERVICE OF THE UNITED STATES.' IT IS URGED THAT, IN VIEW OF THE POSSIBLE SAVINGS IN TIME AND EXPENSES, THE PUBLIC "PARKING METER FEES (BE CONSIDERED) IN ALL INSTANCES AS A LEASING OF SPACE FROM THE CITY INVOLVED.'

THE GENERAL RULE IS THAT TITLE TO STREETS IS HELD BY A MUNICIPALITY IN ITS PUBLIC OR GOVERNMENTAL CAPACITY RATHER THAN IN ITS PROPRIETARY CAPACITY. SEE 64 C.J.S. 60, 64, MUNICIPAL CORPORATIONS, SECTION 1682; AND HARBOR LAND CO. V. VILLAGE OF FAIRPORT, 49 N.E. 2D 194, 204 ( OHIO). PARKING METER FEES GENERALLY HAVE BEEN HELD AS BEING IMPOSED INCIDENT TO TRAFFIC REGULATION UNDER THE POLICE POWER OF A MUNICIPALITY. CITY OF COLUMBUS V. WARD, 31 N.E. 2D 142 ( OHIO); PEOPLE V. LANG 106 N.Y.S. 2D 829 ( NEW YORK); BOWERS V. CITY OF MUSKEGON, 9 N.W. 2D 889 ( MICHIGAN). CASE HAS BEEN LOCATED IN WHICH SUCH A CHARGE WAS HELD TO BE INCIDENT TO A PROPRIETARY FUNCTION, SUCH AS A LEASE OF SPACE FROM THE CITY REFERRED TO IN THE LETTER OF JULY 7. SEE, GENERALLY, JOHNSON V. MARYLAND, 254 U.S. 51; ARIZONA V. CALIFORNIA, 283 U.S. 423, 451; PENN DAIRIES V. MILK CONTROL COMMISSION, 318 U.S. 261; MAYO V. UNITED STATES, 319 U.S. 441.

WHILE IT WAS STATED IN 18 COMP. GEN. 151 THAT THERE WAS NOTHING IN THE PARKING METER ORDINANCE THERE INVOLVED PURPORTING TO MAKE IT APPLICABLE TO THE OPERATIONS OF THE FEDERAL GOVERNMENT, THE FACT WAS NOT CONTROLLING IN THE DISPOSITION OF THE CASE. AS POINTED OUT IN SAID DECISION, A STATE CANNOT IN THE EXERCISE OF ITS POLICE POWER "ENCROACH UPON THE POWERS OF THE GENERAL GOVERNMENT, OR RIGHTS GRANTED OR SECURED BY THE SUPREME LAW OF THE LAND.' ALSO, SEE 14 COMP. DEC. 256, AND THE CASES REFERRED TO THEREIN. THUS, IT WOULD SEEM THAT THE LANGUAGE OF THE TRAFFIC CODE OF THE CITY OF CINCINNATI WHICH PURPORTS TO MAKE ITS PROVISIONS APPLICABLE TO "OPERATORS OF VEHICLES OWNED OR USED IN THE SERVICE OF THE UNITED STATES," MAY NOT OPERATE TO REQUIRE PAYMENT OF PARKING METER FEES UNDER THE CONDITIONS HERE IN QUESTION.

IN THE ABSENCE OF A DETERMINATION BY PROPER JUDICIAL AUTHORITY OF THE LIABILITY OF THE UNITED STATES FOR PARKING METER FEES OR THE ENACTMENT OF APPROPRIATE LEGISLATION, THE PAYMENTS IN QUESTION ARE NOT AUTHORIZED TO BE MADE FROM APPROPRIATED FUNDS. HOWEVER, IT IS SUGGESTED THAT CONSIDERATION BE GIVEN BY YOUR DEPARTMENT TO THE DESIRABILITY OF CONTACTING APPROPRIATE OFFICIALS OF THE CITY OF CINCINNATI WITH A VIEW TO OBTAINING, OR ATTEMPTING TO OBTAIN, A LIMITED NUMBER OF OFFICIAL STREET PARKING SPACES.

YOUR SUBMISSION IS ANSWERED ACCORDINGLY.

THE COPY OF THE 28TH ANNUAL TRAFFIC CODE OF THE CITY OF CINCINNATI, 1953, TRANSMITTED WITH YOUR LETTER, IS RETURNED.