B-153804, APRIL 29, 1964, 43 COMP. GEN. 705

B-153804: Apr 29, 1964

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GUTTERS AND SIDEWALKS ALONG THE BOUNDARY OF PROPERTY LEASED BY THE UNITED STATES GOVERNMENT FROM UTAH STATE UNIVERSITY OF AGRICULTURE AND APPLIED SCIENCE FOR ERECTION OF A FOREST SERVICE LABORATORY UNDER A 99-YEAR LEASE MAY BE REGARDED AS CONSTRUCTION ON PROPERTY WHICH IS IN POSSESSION OF THE GOVERNMENT SO AS TO COME WITHIN THE MEANING OF "GOVERNMENT-OWNED" PROPERTY IN SECTION 9 OF THE ACT OF OCTOBER 23. WHICH IS AN AGENCY OF THE STATE OF UTAH. THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. SITE TRACT WAS LEASED FROM UTAH STATE UNIVERSITY OF AGRICULTURE AND APPLIED SCIENCE FOR THE PURPOSE OF ERECTING A FORESTRY SCIENCES LABORATORY ON THE UNIVERSITY'S CAMPUS AT LOGAN. THIS UNIVERSITY IS AN INSTRUMENTALITY OF THE STATE OF UTAH.

B-153804, APRIL 29, 1964, 43 COMP. GEN. 705

APPROPRIATIONS - AVAILABILITY - CONSTRUCTION, ETC. - IMPROVEMENTS ON LEASED PROPERTY THE CONSTRUCTION OF CURBS, GUTTERS AND SIDEWALKS ALONG THE BOUNDARY OF PROPERTY LEASED BY THE UNITED STATES GOVERNMENT FROM UTAH STATE UNIVERSITY OF AGRICULTURE AND APPLIED SCIENCE FOR ERECTION OF A FOREST SERVICE LABORATORY UNDER A 99-YEAR LEASE MAY BE REGARDED AS CONSTRUCTION ON PROPERTY WHICH IS IN POSSESSION OF THE GOVERNMENT SO AS TO COME WITHIN THE MEANING OF "GOVERNMENT-OWNED" PROPERTY IN SECTION 9 OF THE ACT OF OCTOBER 23, 1962, 16 U.S.C. 555B, WHICH MAKES FOREST SERVICE FUNDS AVAILABLE FOR ASSESSMENTS BY GOVERNMENTAL UNITS FOR CONSTRUCTION OF SIDEWALKS, CURBS, OR STREET PAVING ALONG THE BOUNDARY OF GOVERNMENT-OWNED PROPERTY, AND, THEREFORE, THE COST OF CONSTRUCTING CURBS, GUTTERS AND SIDEWALKS ON THE LEASED PROPERTY BY UTAH STATE UNIVERSITY, WHICH IS AN AGENCY OF THE STATE OF UTAH, MAY BE REGARDED AS A STATE ASSESSMENT AND REIMBURSABLE UNDER THE ACT OF OCTOBER 23, 1962.

TO THE SECRETARY OF AGRICULTURE, APRIL 29, 1964:

BY LETTER DATED MARCH 23, 1964, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION AS TO THE AVAILABILITY OF FUNDS APPROPRIATED TO THE FOREST SERVICE FOR THE EXPENSE OF CONSTRUCTING CONCRETE CURB, GUTTER, AND SIDEWALK ALONG THE BOUNDARY OF A LEASED SITE.

THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS. SITE TRACT WAS LEASED FROM UTAH STATE UNIVERSITY OF AGRICULTURE AND APPLIED SCIENCE FOR THE PURPOSE OF ERECTING A FORESTRY SCIENCES LABORATORY ON THE UNIVERSITY'S CAMPUS AT LOGAN, UTAH. THIS UNIVERSITY IS AN INSTRUMENTALITY OF THE STATE OF UTAH. SEE SECTION 53-32-1, ET SEQ. OF THE UTAH CODE ANNOTATED, 1953. ERECTION OF THIS BUILDING ON LEASED PREMISES IS AUTHORIZED BY SECTION 1 OF THE ACT OF APRIL 24, 1950, CH. 97, 64 STAT. 83, 16 U.S.C. 571C. THE LEASE, OBTAINED FOR THE NOMINAL AMOUNT OF $1, IS FOR A 99-YEAR PERIOD EXTENDING FROM OCTOBER 1, 1962, TO SEPTEMBER 30, 2061. IT IS STATED THAT FULL UTILIZATION OF THE LEASED SITE AND IMPROVEMENTS TO BE PLACED THEREON IS--- BECAUSE OF PRACTICAL, SANITARY AND AESTHETIC REASONS--- DEPENDENT UPON THE CONSTRUCTION OF A CONCRETE CURB, GUTTER, AND SIDEWALK ALONG THE SITE BOUNDARY. IT IS FURTHER STATED THAT THE UNIVERSITY HAS OR WILL CONSTRUCT SIDEWALKS, CURBS, AND GUTTERS ALONG THE BOUNDARY OF SITES UPON WHICH IT HAS STRUCTURES. PRESUMABLY SUCH STRUCTURES ARE OR WILL BE ADJACENT TO THE FORESTRY SCIENCES LABORATORY.

IN SUPPORT OF THE POSITION THAT THE FOREST SERVICE HAS AUTHORITY TO PAY FOR THESE PROPERTY IMPROVEMENTS, THE SUBMISSION CITES SECTION 9 OF THE ACT OF OCTOBER 23, 1962, PUBLIC LAW 87-869, 76 STAT. 1157, 16 U.S.C. 555B (SUPP. IV). THAT SECTION READS AS FOLLOWS:

FUNDS AVAILABLE TO THE FOREST SERVICE SHALL BE AVAILABLE FOR EXPENSES OF, OR PAYMENT OF ASSESSMENT FOR, CONSTRUCTION OF SIDEWALKS, CURBS, OR STREET PAVING ALONG THE BOUNDARY OF GOVERNMENT-OWNED RESIDENTIAL OR OTHERWISE IMPROVED LOTS.

IT IS SUGGESTED THAT THE USE OF THE PHRASE "GOVERNMENT-OWNED" IN THE QUOTED LANGUAGE DID NOT INTEND TO RESTRICT SUCH IMPROVEMENTS TO THOSE CASES WHERE THE GOVERNMENT OWNED THE FEE.

THERE IS ADEQUATE CASE LAW FOR THE PROPOSITION THAT THE WORD "OWN" OR ITS DERIVATIVES, HAS NO PRECISE OR DEFINITE MEANING AND THAT IT MUST BE EXAMINED IN ITS CONTEXT AND SETTING TO DETERMINE THE MEANING INTENDED. WHEN USED IN A STATUTE THE OBJECT SOUGHT BY THE STATUTE IS OF COURSE DETERMINATIVE. SEE BLUMENFIELD V. UNITED STATES, 306 F.2D 892, 900 (8TH CIRC. 1962). SEE ALSO 73 C.J.S., PROPERTY, SEC. 13 (2) (B), P. 184; 42 AM.JUR., PROPERTY, SEC. 27, P. 214 AND THE ANNOTATIONS COLLECTED AT 2 ALR 778 AND 95 ALR 1085. THE PROPERTY IS IN THE POSSESSION OF THE GOVERNMENT UNDER THE TERMS OF A 99-YEAR LEASE. WHATEVER MAY BE THE STATUS OF THE PROPERTY AT THE TERMINATION OF THE LEASE, THE GOVERNMENT AT THE PRESENT TIME MAY BE CONSIDERED AS HAVING OWNERSHIP OF THE PROPERTY.

THERE REMAINS FOR CONSIDERATION HOWEVER THE QUESTION OF WHETHER SECTION 9 OF PUBLIC LAW 87-869 CAN BE USED AS AUTHORITY FOR INCURRING THE EXPENSES OF THESE IMPROVEMENTS. WE ARE NOT UNMINDFUL OF THE FACT THAT THE LEGISLATIVE HISTORY OF THAT SECTION SHOWS THAT ITS PURPOSE WAS TO AFFORD THE FOREST SERVICE THE LEGAL RIGHT TO HONOR ASSESSMENTS FOR SUCH IMPROVEMENTS MADE BY LOCAL GOVERNMENTAL UNITS IN APPROPRIATE CASES OR--- ALTERNATIVELY--- TO INCUR EXPENSES IN THE CONSTRUCTION OF SUCH IMPROVEMENTS IN LIEU OF HAVING THEM MADE BY LOCAL GOVERNMENTS WITH RESULTING ASSESSMENTS. SEE S.REPT. NO. 1803, 87TH CONG., 2D SESS. 2, 7; H.REPORT. NO. 2377, 87TH CONG., 2D SESS. 3, 8 AND HEARINGS BEFORE THE SUBCOMMITTEE ON FOREST OF THE COMMITTEE ON AGRICULTURE, HOUSE OF REPRESENTATIVES, ON H.R. 12434, 87TH CONG., 2D SESS. 95, 108. IN THIS PARTICULAR CASE IT WOULD BE UTAH STATE UNIVERSITY RATHER THAN LOGAN, UTAH, THE LOCAL GOVERNMENT, THAT WOULD CONSTRUCT AND SEEK REIMBURSEMENT BUT FOR THE FOREST SERVICE MAKING ITS OWN IMPROVEMENTS.

WHILE, AS POINTED OUT, THE LEGISLATIVE HISTORY SHOWS THAT THE PRIMARY PURPOSE OF SECTION 9 OF PUBLIC LAW 87-869 WAS TO AFFORD THE RIGHT TO PAY CITY ASSESSMENTS, THE SAME LEGISLATIVE HISTORY MAKES IT CLEAR THAT DECISIONS RENDERED BY THE COMPTROLLER GENERAL NECESSITATED THE ENACTMENT OF SUCH LEGISLATION. SEE HEARINGS, SUPRA, P. 108. THOSE DECISIONS HOLD THAT ABSENT SPECIFIC AUTHORITY, APPROPRIATED FUNDS MAY NOT BE USED FOR THE PURPOSE OF PAYING THE EXPENSES OF OR ASSESSMENT FOR PUBLIC IMPROVEMENTS ON NONFEDERALLY OWNED PROPERTY. THE DECISIONS INVOLVED HAVE INCLUDED STATE AS WELL AS CITY IMPROVEMENTS OR ASSESSMENTS. SEE FOR EXAMPLE 32 COMP. GEN. 296 AND 39 COMP. GEN. 388.

THEREFORE, INASMUCH AS UTAH STATE UNIVERSITY IS AN AGENCY OF THE STATE OF UTAH AND THE PREVIOUS DECISIONS OF OUR OFFICE THAT GAVE RISE TO THE NEED FOR SECTION 9 OF PUBLIC LAW 87-869 CONCERNED STATE AS WELL AS CITY IMPROVEMENTS AND ASSESSMENTS, OUR OFFICE WILL NOT OBJECT TO THE PROPOSED EXPENDITURES.