B-141144, NOVEMBER 18, 1959, 39 COMP. GEN. 388

B-141144: Nov 18, 1959

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APPROPRIATIONS - RIVER AND HARBOR FUNDS - IMPROVEMENT OF ACCESS ROAD TO PROJECT IN THE ABSENCE OF ANY INDICATION IN A SENATE DOCUMENT DETAILING PLANS FOR A RIVER IMPROVEMENT PROJECT THAT CONSTRUCTION OF ACCESS ROADS OUTSIDE THE PROJECT OR THE IMPROVEMENT OF A SIMILARLY SITUATED STATE PUBLIC ROAD WAS CONTEMPLATED. THE USE OF A PUBLIC WORKS APPROPRIATION WHICH IS AVAILABLE SOLELY FOR "PROJECTS AUTHORIZED BY LAW" FOR NECESSARY IMPROVEMENTS TO A STATE PUBLIC ROAD USED FOR ACCESS TO THE PROJECT BY GOVERNMENT PERSONNEL WOULD BE IN CONTRAVENTION OF THE PROHIBITORY STATUTES. - WHICH REQUIRE APPROPRIATIONS TO BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE MADE. PRECLUDE EXECUTION OF CONTRACTS IN ADVANCE OF APPROPRIATION WITHOUT AUTHORIZATION AND PROHIBIT CONTRACTS FOR PUBLIC IMPROVEMENTS UNLESS FUNDS ARE SPECIFICALLY APPROPRIATED THEREFOR.

B-141144, NOVEMBER 18, 1959, 39 COMP. GEN. 388

APPROPRIATIONS - RIVER AND HARBOR FUNDS - IMPROVEMENT OF ACCESS ROAD TO PROJECT IN THE ABSENCE OF ANY INDICATION IN A SENATE DOCUMENT DETAILING PLANS FOR A RIVER IMPROVEMENT PROJECT THAT CONSTRUCTION OF ACCESS ROADS OUTSIDE THE PROJECT OR THE IMPROVEMENT OF A SIMILARLY SITUATED STATE PUBLIC ROAD WAS CONTEMPLATED, THE USE OF A PUBLIC WORKS APPROPRIATION WHICH IS AVAILABLE SOLELY FOR "PROJECTS AUTHORIZED BY LAW" FOR NECESSARY IMPROVEMENTS TO A STATE PUBLIC ROAD USED FOR ACCESS TO THE PROJECT BY GOVERNMENT PERSONNEL WOULD BE IN CONTRAVENTION OF THE PROHIBITORY STATUTES--- SECTIONS 3678, 3679 AND 3733 OF THE REVISED STATUTES, 31 U.S.C. 628, ID. 665, AND 41 U.S.C. 12--- WHICH REQUIRE APPROPRIATIONS TO BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE MADE, PRECLUDE EXECUTION OF CONTRACTS IN ADVANCE OF APPROPRIATION WITHOUT AUTHORIZATION AND PROHIBIT CONTRACTS FOR PUBLIC IMPROVEMENTS UNLESS FUNDS ARE SPECIFICALLY APPROPRIATED THEREFOR.

TO THE SECRETARY OF THE ARMY, NOVEMBER 18, 1959:

BY LETTER DATED OCTOBER 28, 1959, THE ASSISTANT SECRETARY OF THE ARMY ( MANPOWER, PERSONNEL AND RESERVE FORCES) SUBMITTED FOR OUR CONSIDERATION A PROPOSED CONTRACT WITH THE STATE ROAD COMMISSION OF WEST VIRGINIA REQUIRING THE USE OF FEDERAL FUNDS FOR THE IMPROVEMENT OF WEST VIRGINIA SECONDARY ROUTE 40/5 WHICH IS USED FOR ACCESS TO THE HILDEBRAND LOCK AND DAM, MONONGAHELA RIVER, WEST VIRGINIA, BY GOVERNMENT PERSONNEL IN THE OPERATION AND MAINTENANCE OF THE PROJECT.

THE LETTER STATES THAT THE EXISTING STATE SECONDARY ROUTE 40/5 IS APPROXIMATELY 10.85 MILES IN LENGTH AND DEAD ENDS AT MONONGAHELA RIVER NEAR THE HILDEBRAND LOCK SITE; THE ROAD SERVES ONLY FOUR RESIDENCES, TWO OF WHICH ARE LOCATED AT ITS TERMINUS NEAR THE RIVER; THE REMAINING TWO ARE LOCATED NEAR THE BEGINNING OF THE ROAD AT ITS CONNECTION WITH STATE ROUTE 40; THE ROAD HAS STEEP GRADES AND IS GENERALLY IN POOR CONDITION; THE TRAVEL SURFACE CONSISTS OF EARTH AND STONE AND RANGES FROM 12 TO 20 FEET IN WIDTH; THIS SURFACE IS PITTED IN AREAS; AND THE LACK OF SHOULDERS CAUSES SURFACE DAMAGE TO ERODE THE TRAVEL AREA. THE LETTER FURTHER STATES THAT DEEP DITCHES HAVE FORMED ALONG THE EDGE OF THE TRAVEL AREA DUE TO THE LACK OF DRAINAGE FACILITIES; SEVERAL SPRINGS WITHIN THE TRAVEL PORTION ADD TO EXISTING ROAD DEFICIENCIES; AND THE COMBINATION OF THESE DEFICIENCIES CREATES HAZARDOUS TRAVEL CONDITIONS AT ALL TIMES PARTICULARLY IN WINTER SEASONS WHEN THE ROADWAY IS FROZEN. IT APPEARS THAT SINCE STATE SECONDARY ROUTE 40/5 IS A DEADEND ROAD AND SERVES ONLY TWO RESIDENCES AT ITS TERMINUS NEAR THE RIVER, THE STATE ROAD COMMISSION DOES NOT FEEL OBLIGATED TO FURNISH AND MAINTAIN ANY BETTER ROAD THAN THAT WHICH EXISTS.

THE LETTER FURTHER STATES THAT ACCORDING TO THE TERMS OF THE PROPOSED CONTRACT THE STATE WOULD IMPROVE THE EXISTING ROAD IN ORDER TO PROVIDE NECESSARY AND CONVENIENT ALL-WEATHER ACCESS FOR USE OF GOVERNMENT PERSONNEL IN OPERATION AND MAINTENANCE OF THE HILDEBRAND LOCK AND DAM; THE IMPROVEMENT WOULD CONSIST OF ALLEVIATING THE STEEPER GRADES AND WIDENING ON ESSENTIALLY THE EXISTING ALIGNMENT AND PROVIDING A 16-FOOT WIDTH BITUMINOUS SURFACE COURSE WITH 4-FOOT SHOULDERS AND ADEQUATE DRAINAGE FACILITIES; UPON COMPLETION OF IMPROVEMENT, THE STATE WOULD MAINTAIN THE ROAD IN ITS IMPROVED CONDITION AT ITS SOLE COST AND EXPENSE; THE TOTAL AMOUNT OF CONSIDERATION IN THE CONTRACT IS $54,900; AND THAT THE STATE IS IN A POSITION TO BEGIN IMPROVEMENT OF THE ROAD THIS FALL AND COMPLETE THE WORK BEFORE WINTER CONDITIONS SET IN.IT IS INTENDED TO USE PROJECT CONSTRUCTION FUNDS FOR PAYMENT UNDER THE PROPOSED CONTRACT.

IT IS FURTHER STATED THAT CONSTRUCTION OF A GOVERNMENT-OWNED ROAD, PARALLELING STATE ROUTE 40/5 WOULD INVOLVE EXTENSIVE HILLSIDE CUTS THROUGH TERRAIN WHERE SLIDE CONDITIONS WOULD BE ENCOUNTERED AND RESULT IN EXTENSIVE MAINTENANCE PROBLEMS AND THAT THE LENGTH OF TIME INVOLVED TO PREPARE CONTRACT PLANS AND TO ACQUIRE THE RIGHT-OF-WAY FOR A PRIVATE ROAD WOULD NOT PERMIT CONSTRUCTION OF THE ROAD THIS CALENDAR YEAR. THE ESTIMATED COST FOR CONSTRUCTION OF SUCH A PRIVATE ROAD IS STATED TO BE APPROXIMATELY $100,000 AND THAT IN ADDITION MAINTENANCE OF THE ROAD WOULD BE THE GOVERNMENT'S RESPONSIBILITY.

THE ASSISTANT SECRETARY SAYS THAT UNLESS A SUITABLE ALL-WEATHER ROAD IS PROVIDED THIS FALL, TRAVEL CONDITIONS FOR LOCK OPERATING PERSONNEL WILL BE HAZARDOUS DURING INCLEMENT WINTER WEATHER CONDITIONS AND RESULT IN UNPREDICTABLE SCHEDULES FOR ARRIVAL AND DEPARTURE OF LOCK PERSONNEL AND THAT COMPLETION OF CONSTRUCTION OF THE LOCK AND DAM ABOUT NOVEMBER WILL ELIMINATE THE AVAILABILITY OF EQUIPMENT WHICH HAS MAINTAINED THE ROAD SUFFICIENTLY TO ENABLE ACCESS DURING THE CONSTRUCTION OPERATIONS.

THE LETTER FURTHER STATES THAT OUR ATTENTION IS INVITED TO A PROVISION IN THE PROPOSED CONTRACT WHEREBY THE STATE GRANTS TO THE GOVERNMENT A LICENSE FOR ROAD PURPOSES OVER SECONDARY ROUTE 40/5; ADVICE IS THAT THE LICENSE WAS CONSIDERED TO BE MORE THAN MERELY PERMISSIVE TO COVER THE REQUIREMENTS FOR ROAD PURPOSES, I.E., LOADS AND TRAFFIC ABOVE THE STANDARDS FOR THE SECONDARY OUTE; AND THE STATE, HAVING NO BASIS FOR FUNDING IMPROVEMENT OF THE ROAD, IS WILLING TO ACCEPT THE CONTINUING OBLIGATION REQUIRING A HIGHER MAINTENANCE STANDARD WITHOUT CHARGE TO THE GOVERNMENT, AND, THEREFORE, THE LICENSE IS THUS MORE THAN A MERE PERMISSIVE LICENSE AND SEEMS TO BE COUPLED WITH AN INTEREST SUFFICIENT TO VEST A SUBSTANTIVE RIGHT IN THE GOVERNMENT SIMILAR TO AN EASEMENT. IN THIS CONNECTION, WE SHOULD LIKE TO POINT OUT THAT UNDER SEC. 1412, C. 17, WEST VIRGINIA CODE OF 1955, A PUBLIC ROAD IS DEFINED AS INCLUDING ANY ROAD TO WHICH THE PUBLIC HAS ACCESS AND WHICH IT IS NOT DENIED THE RIGHT TO USE AND UNDER ARTICLE F OF THE PROPOSED CONTRACT THE GOVERNMENT WOULD BE GRANTED AN IRREVOCABLE LICENSE TO USE THE INVOLVED ROAD ONLY "AS LONG AS SAID PORTION OF ROAD REMAINS A PUBLIC ROAD.' HENCE IT APPEARS THAT THE GOVERNMENT WOULD ACQUIRE NO GREATER RIGHTS WITH RESPECT TO THE USE OF SECONDARY ROUTE 40/5 THAN THAT ENJOYED BY THE GENERAL PUBLIC.

THE DOUBT IN THE MATTER IS SAID TO ARISE FROM OUR PRIOR RULING PROHIBITING THE USE OF FEDERAL FUNDS FOR PUBLIC ROAD IMPROVEMENT. IT IS STATED, HOWEVER, THAT THERE ARE MANY EXTENUATING CIRCUMSTANCES WHICH ARE CONSIDERED TO BE JUSTIFICATION FOR THE PROPOSED EXPENDITURE.

IT IS WELL ESTABLISHED THAT APPROPRIATED FUNDS ARE NOT AVAILABLE FOR THE REPAIR, IMPROVEMENT, OR RECONSTRUCTION OF STATE-CONTROLLED PUBLIC ROADS, UNLESS SPECIFICALLY AUTHORIZED BY SUBSTANTIVE LAW OR THE APPROPRIATION CONCERNED. 2 COMP. GEN. 308; 6 ID. 97; ID. 353. THE USE OF APPROPRIATED FUNDS THEREFOR IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY WOULD RESULT IN THE VIOLATION OF SECTIONS 3678, 3679, AS AMENDED, AND 3733, REVISED STATUTES.

SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, STATES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

SECTION 3679, REVISED STATUTES, 31 U.S.C. 665, PROVIDES THAT:

NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL MAKE OR AUTHORIZE AN EXPENDITURE FROM OR CREATE OR AUTHORIZE AN OBLIGATION UNDER ANY APPROPRIATION OR FUND IN EXCESS OF THE AMOUNT AVAILABLE THEREIN; NOR SHALL ANY SUCH OFFICER OR EMPLOYEE INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION, FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW.

SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, STATES:

NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE.

THIS LATTER PROVISION OF LAW PROHIBITS THE EXECUTION OF A CONTRACT FOR "ANY PUBLIC IMPROVEMENT" ON FEDERAL PROPERTY UNLESS FUNDS ARE SPECIFICALLY APPROPRIATED THEREFOR.

THUS, IF SPECIFIC ACTION IS REQUIRED BY THE CONGRESS WITH RESPECT TO PUBLIC IMPROVEMENTS ON FEDERAL PROPERTY, A FORTIORI, SPECIFIC AUTHORITY WOULD BE REQUIRED FOR THE FINANCING FROM FEDERAL FUNDS OF PUBLIC IMPROVEMENTS ON STATE PROPERTY.

IN A DECISION DATED DECEMBER 23, 1952, ON A SIMILAR CASE (32 COMP. GEN. 296), WE CONCLUDED THAT THE CONSTRUCTION OF A DECELERATION LANE ON U.S. HIGHWAY 6, ADJOINING THE ENTRANCE TO THE VETERANS ADMINISTRATION HOSPITAL, BUT NOT ON THE PREMISES, WAS NOT AUTHORIZED, STATING IN PART:

CONSIDERING ALL OF THE FACTORS INVOLVED, INCLUDING THE BELIEF THAT NUMEROUS OTHER REQUESTS WOULD BE MADE IF FEDERAL PARTICIPATION IN THE CONSTRUCTION OF THESE PROPOSED LANES WERE PERMITTED, THE CONCLUSION SEEMS INESCAPABLE THAT THE USE OF FEDERAL FUNDS TO IMPROVE PUBLIC ROADS NEAR FEDERAL FACILITIES IS A MATTER FOR THE CONSIDERATION OF THE CONGRESS.

THE APPROPRIATION SOUGHT TO BE CHARGED IN THIS CASE IS CONTAINED IN THE PUBLIC WORKS APPROPRIATION ACT, 1960, 73 STAT. 491. UNDER THE HEADING " CONSTRUCTION GENERAL," THE ACT ROVIDES:

FOR THE PROSECUTION OF RIVER AND HARBOR, FLOOD CONTROL, SHORE PROTECTION, AND RELATED PROJECTS AUTHORIZED BY LAW * * *.

THE HILDEBRAND LOCK AND DAM PROJECT ON THE MONONGAHELA RIVER, WEST VIRGINIA, WAS AUTHORIZED BY THE RIVER AND HARBOR ACT OF 1950, 64 STAT. 163, OF WHICH SECTION 101 PROVIDES:

THAT THE FOLLOWING WORKS OF IMPROVEMENT OF RIVERS AND HARBORS AND OTHER WATERWAYS FOR NAVIGATION, FLOOD CONTROL, AND OTHER PURPOSES ARE HEREBY ADOPTED AND AUTHORIZED TO BE PROSECUTED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY AND SUPERVISION OF THE CHIEF OF ENGINEERS IN ACCORDANCE WITH THE PLANS AND SUBJECT TO THE CONDITIONS RECOMMENDED BY THE CHIEF OF ENGINEERS IN THE RESPECTIVE REPORTS HEREINAFTER DESIGNATED * *

MONONGAHELA RIVER, WEST VIRGINIA AND PENNSYLVANIA; SENATE DOCUMENT NUMBER 100, EIGHTY-FIRST CONGRESS.

SENATE DOCUMENT NO. 100, 81ST CONGRESS, CONTAINS THE PLANS AND RECOMMENDATIONS FOR THE ENLARGEMENT AND IMPROVEMENT OF THE NAVIGATION CHANNELS ON THE MONONGAHELA RIVER, WEST VIRGINIA AND PENNSYLVANIA, INCLUDING THE HILDEBRAND LOCK AND DAM PROJECT. HOWEVER, WE FIND NOTHING IN THAT DOCUMENT TO INDICATE THAT THE CONSTRUCTION OF ACCESS ROADS OUTSIDE THE PROJECT OR THE IMPROVEMENT OF SIMILARLY SITUATED STATE, PUBLIC ROADS WERE CONTEMPLATED. SINCE THE APPROPRIATION SOUGHT TO BE CHARGED IS FOR "PROJECTS AUTHORIZED BY LAW" AND AUTHORITY FOR THE PROJECT IS BASED SOLELY UPON THE PLANS SET FORTH IN SENATE DOCUMENT NO. 100, IT FOLLOWS THAT THE APPROPRIATION IS NOT AVAILABLE FOR THE IMPROVEMENT OF STATE PUBLIC ROADS OUTSIDE THE PROJECT.

ACCORDINGLY, WE ARE REQUIRED TO CONCLUDE THAT THE USE OF PROJECT CONSTRUCTION FUNDS FOR THE IMPROVEMENT OF WEST VIRGINIA SECONDARY ROUTE 40/5 IS NOT AUTHORIZED.