B-173347, AUG 26, 1971, 51 COMP GEN 135

B-173347: Aug 26, 1971

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SINCE SUCH GOVERNMENTAL FUNCTIONS ARE GENERALLY FINANCED FROM REVENUES RAISED BY STATE AND LOCAL TAXATION AND FEDERAL CONTRIBUTIONS IN LIEU OF STATE AND LOCAL TAXES ARE NOT PERMITTED IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION. THE PRINCIPLE OF PAYMENTS MEASURED BY THE QUANTUM OF SERVICES RENDERED IS ONLY APPLICABLE TO DIRECT UTILITY TYPE SERVICES. THAT ARE FURNISHED TO THE GOVERNMENT. YOU STATE THAT HOSPITAL OFFICIALS HAVE TRIED UNSUCCESSFULLY FOR APPROXIMATELY 4 YEARS TO HAVE THE STATE OR THE CITY INSTALL A SIGNAL ON U.S. WHERE NUMEROUS ACCIDENTS HAVE RECENTLY OCCURRED. YOU STATE THAT THE STATE GOVERNMENT CANNOT PARTICIPATE IN THE COST OF THE TRAFFIC SIGNAL SINCE THE VA ENTRANCE ROAD IS NOT A PUBLIC STREET AND THAT THE CITY DOES NOT FEEL IT SHOULD HAVE TO BEAR THE FULL COST OF THE INSTALLATION OF THE SIGNAL SINCE THE HIGHWAY IS A STATE ROAD.

B-173347, AUG 26, 1971, 51 COMP GEN 135

STATES - FEDERAL PAYMENTS IN LIEU OF TAXES - GOVERNMENTAL FUNCTIONS - SPECIFIC AUTHORIZATION REQUIREMENT THE COSTS OF PERFORMING THE GOVERNMENTAL FUNCTIONS OF INSTALLING A TRAFFIC LIGHT OVER A PUBLIC HIGHWAY OR PAVING A PUBLIC DIRT ROAD IN THE VICINITY OF VETERANS ADMINISTRATION (VA) HOSPITALS MAY NOT BE SHARED BY VA, SINCE SUCH GOVERNMENTAL FUNCTIONS ARE GENERALLY FINANCED FROM REVENUES RAISED BY STATE AND LOCAL TAXATION AND FEDERAL CONTRIBUTIONS IN LIEU OF STATE AND LOCAL TAXES ARE NOT PERMITTED IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION, AND THE BROAD AUTHORITY IN 38 U.S.C. 5001 ET SEQ. TO OPERATE HOSPITALS DOES NOT CONTAIN THE NECESSARY SPECIFIC AUTHORIZATION FOR VA TO PARTICIPATE IN THE PROPOSED GOVERNMENTAL FUNCTIONS. MOREOVER, THE PRINCIPLE OF PAYMENTS MEASURED BY THE QUANTUM OF SERVICES RENDERED IS ONLY APPLICABLE TO DIRECT UTILITY TYPE SERVICES, SUCH AS SEWER, WATER, TRASH, ETC., THAT ARE FURNISHED TO THE GOVERNMENT.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, AUGUST 26, 1971:

YOUR LETTER OF JUNE 16, 1971, REQUESTS OUR DECISION AS TO WHETHER THE VETERANS ADMINISTRATION (VA) MAY PARTICIPATE IN THE COSTS OF THE INSTALLATION OF A TRAFFIC LIGHT OVER A PUBLIC HIGHWAY AT THE ENTRANCE TO THE VETERANS ADMINISTRATION (VA) HOSPITAL IN IOWA CITY, IOWA, AND OF THE PAVING OF A DIRT ROAD BORDERING THE VA HOSPITAL RESERVATION IN FAYETTEVILLE, NORTH CAROLINA.

IN REGARD TO THE TRAFFIC LIGHT, YOU STATE THAT HOSPITAL OFFICIALS HAVE TRIED UNSUCCESSFULLY FOR APPROXIMATELY 4 YEARS TO HAVE THE STATE OR THE CITY INSTALL A SIGNAL ON U.S. HIGHWAY NO. 6 AT THE ENTRANCE TO THE HOSPITAL AND THAT BECAUSE OF THE SAFETY HAZARD AT THE ENTRANCE, WHERE NUMEROUS ACCIDENTS HAVE RECENTLY OCCURRED, THERE WOULD APPEAR TO BE A STRONG NEED FOR THE TRAFFIC CONTROL DEVICE. YOU STATE THAT THE STATE GOVERNMENT CANNOT PARTICIPATE IN THE COST OF THE TRAFFIC SIGNAL SINCE THE VA ENTRANCE ROAD IS NOT A PUBLIC STREET AND THAT THE CITY DOES NOT FEEL IT SHOULD HAVE TO BEAR THE FULL COST OF THE INSTALLATION OF THE SIGNAL SINCE THE HIGHWAY IS A STATE ROAD.

WE PREVIOUSLY CONSIDERED THE QUESTION OF FEDERAL PAYMENT OF COSTS FOR TRAFFIC LIGHTS ON STATE OR LOCAL HIGHWAYS IN OUR DECISION TO THE SECRETARY OF THE ARMY IN 36 COMP. GEN. 286 (1956). WE STATED THEREIN THAT THE CONTROL OF TRAFFIC, LIKE POLICE AND FIRE PROTECTION, IS A GOVERNMENTAL FUNCTION. GENERALLY, GOVERNMENTAL FUNCTIONS ARE FINANCED FROM REVENUES RAISED BY STATE AND LOCAL TAXATION AND IT IS WELL SETTLED THAT FEDERAL CONTRIBUTIONS IN LIEU OF STATE OR LOCAL TAXES ARE NOT AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORIZATION. THEREFORE, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORIZATION. THEREFORE, IN THE ABSENCE OF AUTHORIZING LEGISLATION, WE CONCLUDED THAT THE DEPARTMENT OF THE ARMY WOULD NOT BE AUTHORIZED TO PAY FOR THE PROCUREMENT AND INSTALLATION OF A TRAFFIC CONTROL DEVICE OVER A HIGHWAY NOT UNDER THE LEGISLATIVE CONTROL OF THE UNITED STATES AT ITS INTERSECTION WITH A ROAD ON FEDERAL PROPERTY AND UNDER FEDERAL JURISDICTION.

IN THE INSTANT SITUATION, THERE IS FOR CONSIDERATION THE PROVISIONS OF 38 U.S.C. 5001 ET SEQ., WHICH GRANT TO THE ADMINISTRATOR OF VETERANS AFFAIRS THE AUTHORITY TO ACQUIRE AND OPERATE VA HOSPITALS, DOMICILIARIES AND OUT- PATIENT DISPENSARY FACILITIES. SECTION 5001(F) THEREOF PROVIDES, IN PERTINENT PART, THAT HOSPITALS, DOMICILARIES AND OUT-PATIENT DISPENSARY FACILITIES INCLUDE:

*** NECESSARY BUILDINGS AND AUXILIARY STRUCTURES, MECHANICAL EQUIPMENT, APPROACH WORK, ROADS, AND TRACKAGE FACILITIES LEADING THERETO, SIDEWALKS ABUTTING HOSPITAL RESERVATIONS, VEHICLES, LIVESTOCK, FURNITURE, EQUIPMENT, ACCESSORIES, ACCOMMODATIONS FOR OFFICERS, NURSES, AND ATTENDING PERSONNEL, AND PROPER AND SUITABLE RECREATIONAL FACILITIES.

WE FEEL THAT THE PROVISIONS OF THIS SUBSECTION, AND IN PARTICULAR THE ITALICIZED PHRASES, EXPRESS THE INTENT OF CONGRESS THAT THE ADMINISTRATOR OF VETERANS AFFAIRS BE GIVEN BROAD AUTHORITY IN THE OPERATION OF VA HOSPITALS, SUCH AUTHORITY EXTENDING, TO A LIMITED EXTENT, TO WORK ON NON- FEDERAL PROPERTY SURROUNDING THE HOSPITAL RESERVATION. THUS, IN 1 COMP. GEN. 468 (1922) WE HELD THAT THE ACT OF MARCH 4, 1921, 41 STAT. 1364, THE PREDECESSOR TO THE CURRENT STATUTE, AUTHORIZING THE SECRETARY OF THE TREASURY TO PROVIDE ADDITIONAL HOSPITAL FACILITIES, INCLUDING APPROACH WORK, ROADS AND TRACKAGE FACILITIES LEADING THERETO, FOR PERSONS WHO SERVED IN WORLD WAR I, AUTHORIZED THE OPENING OR ACQUISITION OF A RIGHT OF WAY TO THE HOSPITAL OVER PRIVATE LAND. ON THE OTHER HAND, WE HELD IN 2 COMP. GEN. 308 (1922) THAT THAT ACT DID NOT AUTHORIZE THE FEDERAL GOVERNMENT TO REPAIR AND MAINTAIN A PUBLIC ROAD, THE REPAIR AND MAINTENANCE OF WHICH IS A PUBLIC MATTER TO BE CARED FOR BY STATE OR LOCAL AUTHORITIES AND PAID FOR FROM STATE OR LOCAL FUNDS. SINCE, WITH THE EXCEPTION OF THE PHRASE "SIDEWALKS ABUTTING HOSPITAL RESERVATIONS," THE AUTHORITY PRESENTLY CONTAINED IN 38 U.S.C. 5001(F) IS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN THE ACT OF MARCH 4, 1921, 41 STAT. 1364, WE ARE SIMILARLY OF THE OPINION THAT THE APPLICABLE PROVISIONS OF 38 U.S.C. 5001(F) DO NOT AUTHORIZE THE VETERANS ADMINISTRATION TO PAY FOR THE COST OF A TRAFFIC SIGNAL ON A PUBLIC ROAD. CF. 3 COMP. GEN. 416 (1924). MOREOVER, WE KNOW OF NO OTHER LEGISLATIVE AUTHORITY UNDER WHICH THE VA MAY PAY FOR A TRAFFIC SIGNAL. AS INDICATED ABOVE, VA PARTICIPATION IN THE COST OF THE PROCUREMENT AND INSTALLATION OF THE SIGNAL WOULD, IN EFFECT, BE A PAYMENT IN LIEU OF TAXES NOT PROVIDED FOR BY CONGRESS AND HENCE, WOULD NOT BE PERMISSIBLE.

SIMILARLY, THE PAVING OF A STATE OR LOCAL DIRT ROAD (PUBLIC ROAD) IS A GOVERNMENTAL FUNCTION GENERALLY PAID FOR OUT OF REVENUES RAISED BY TAXATION. THEREFORE, PAYMENT BY VA FOR THE PAVING OF A PUBLIC ROAD ADJOINING THE FAYETTEVILLE HOSPITAL RESERVATION WOULD, IN EFFECT, BE A PAYMENT IN LIEU OF TAXES WHICH, ABSENT SPECIFIC STATUTORY AUTHORITY, IS NOT PERMISSIBLE. SEE FOR EXAMPLE, 3 COMP. GEN. 416; 27 COMP. GEN. 20 (1947); AND 36 COMP. GEN. 286.

YOU REFER IN YOUR LETTER TO 49 COMP. GEN. 72 (1969) IN WHICH WE HELD THAT CERTAIN CHARGES, BASED ON THE QUANTUM OF SERVICES FURNISHED THE GOVERNMENT, IMPOSED BY A STATE OR POLITICAL SUBDIVISION FOR SERVICES RENDERED ARE NOT TAXES AND COULD BE PAID, IF REASONABLE. IN THIS REGARD, THE FURNISHING BY A STATE OR LOCAL GOVERNMENT OF A QUANTUM OF DIRECT UTILITY TYPE SERVICES, SUCH AS SEWER, WATER, TRASH, ETC., TO THE FEDERAL GOVERNMENT, FOR WHICH PAYMENT MAY BE AUTHORIZED, IS TO BE DISTINGUISHED FROM THE PERFORMANCE BY A STATE OR LOCAL GOVERNMENT OF GOVERNMENTAL FUNCTIONS, SUCH AS POLICE AND FIRE PROTECTION, REGULATION OF TRAFFIC AND ROAD CONSTRUCTION AND MAINTENANCE, GENERALLY SUPPORTED BY TAXES, FOR WHICH PAYMENT BY A FEDERAL AGENCY, ABSENT STATUTORY AUTHORITY, IS NOT PERMISSIBLE. SINCE BOTH THE INSTALLATION OF A TRAFFIC CONTROL DEVICE AND THE PAVING OF A ROAD ARE NOT UTILITY TYPE GOVERNMENTAL FUNCTIONS, OUR DECISIONS CONCERNING THE PRINCIPLE OF PAYMENTS MEASURED BY THE QUANTUM OF SERVICES RENDERED WOULD NOT BE APPLICABLE. SEE GENERALLY OUR DECISION OF NOVEMBER 9, 1970, 50 COMP. GEN. 343, AND 36 COMP. GEN. 286, 287 (1956).

ACCORDINGLY, THE VETERANS ADMINISTRATION MAY NOT PARTICIPATE IN THE COSTS OF THE PROCUREMENT AND INSTALLATION OF THE ABOVE REFERRED TO TRAFFIC CONTROL SIGNAL IN IOWA CITY, IOWA, OR IN THE PAVING OF THE ROAD IN QUESTION IN FAYETTEVILLE, NORTH CAROLINA.