B-70277, NOVEMBER 12, 1947, 27 COMP. GEN. 273

B-70277: Nov 12, 1947

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PAYMENT OF SUCH FEE UPON DEMAND THEREFOR BY THE STATE IS NOT AUTHORIZED. 1947: I HAVE YOUR LETTER OF OCTOBER 9. THE PUBLIC SERVICE COMMISSION OF NEW HAMPSHIRE HAS ADVISED THIS OFFICE THAT STATE LAW PERMITS NO EXCEPTIONS AND ANY PERSON OPERATING AN OUTBOARD MOTOR WHICH HAS NOT BEEN PROPERLY REGISTERED IS LIABLE TO FINE IN ACCORDANCE WITH STATE LAW. IN THE PERFORMANCE OF WORK AUTHORIZED UNDER CURRENT APPROPRIATIONS THE USE OF BOATS PROPELLED BY OUTBOARD MOTORS IS NECESSARY BUT UNLESS WE CAN OBTAIN PROPER REGISTRATION IT APPEARS THAT UNDER STATE INTERPRETATION WE MUST REFRAIN FROM USING THESE BOATS. THE PROPRIETY OF PAYMENT IS QUESTIONED. WILL YOU PLEASE ADVISE ME IF THIS VOUCHER. IT IS A WELL ESTABLISHED PRINCIPLE THAT THE STATES HAVE NO POWER BY TAXATION OR OTHERWISE TO RETARD.

B-70277, NOVEMBER 12, 1947, 27 COMP. GEN. 273

FEES - REGISTRATION - GOVERNMENT LIABILITY THE IMPOSITION OF A REGISTRATION FEE PRESCRIBED BY A STATE STATUTE IN CONNECTION WITH THE USE OF OUTBOARD MOTORS ON BOATS REQUIRED TO BE USED IN THE DISCHARGE OF AUTHORIZED GOVERNMENTAL FUNCTIONS CONSTITUTES INFRINGEMENT OF THE RIGHT OF THE UNITED STATES TO CONDUCT ITS ACTIVITIES FREE FROM STATE INTERFERENCE OR CONTROL, AND, ACCORDINGLY, PAYMENT OF SUCH FEE UPON DEMAND THEREFOR BY THE STATE IS NOT AUTHORIZED.

COMPTROLLER GENERAL WARREN TO M. R. SCOTT, DEPARTMENT OF AGRICULTURE, NOVEMBER 12, 1947:

I HAVE YOUR LETTER OF OCTOBER 9, 1947, WITH ENCLOSURE, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION FOR PAYMENT THE ATTACHED VOUCHER IN FAVOR OF THE NEW HAMPSHIRE PUBLIC SERVICE COMMISSION COVERING BOAT REGISTRATION PLATES FOR THREE OUTBOARD MOTORS IN THE AMOUNT OF $9.00.

SECTION 3 OF THE " LAWS OF NEW HAMPSHIRE AND RULES GOVERNING THE OPERATION, EQUIPMENT AND NAVIGATION OF BOATS" STATES THAT " NO PERSON SHALL OPERATE UPON ANY WATERS OF THE STATE * * * A COMMERCIAL OR PRIVATE BOAT UNLESS SAID BOAT HAS BEEN REGISTERED * * *. IN CASE OF BOATS PROPELLED BY OUTBOARD MOTORS THE MOTOR ITSELF SHALL BE REGISTERED AND NOT THE BOAT. THE PRESENCE OF AN OUTBOARD MOTOR IN CONDITION FOR OPERATION, ATTACHED TO A HULL AFLOAT ON THE PUBLIC WATERS OF THE STATE SHALL BE PRIMA FACIE EVIDENCE THAT SUCH BOAT OR MOTOR REQUIRES REGISTRATION.'

THE PUBLIC SERVICE COMMISSION OF NEW HAMPSHIRE HAS ADVISED THIS OFFICE THAT STATE LAW PERMITS NO EXCEPTIONS AND ANY PERSON OPERATING AN OUTBOARD MOTOR WHICH HAS NOT BEEN PROPERLY REGISTERED IS LIABLE TO FINE IN ACCORDANCE WITH STATE LAW.

IN THE PERFORMANCE OF WORK AUTHORIZED UNDER CURRENT APPROPRIATIONS THE USE OF BOATS PROPELLED BY OUTBOARD MOTORS IS NECESSARY BUT UNLESS WE CAN OBTAIN PROPER REGISTRATION IT APPEARS THAT UNDER STATE INTERPRETATION WE MUST REFRAIN FROM USING THESE BOATS.

IT BEING A WELL SETTLED RULE THAT A STATE MAY NOT IMPOSE A TAX ON THE UNITED STATES AND SINCE THIS REGISTRATION FEE MIGHT BE CONSIDERED A TAX AND INVOLVES NO WORK OR SERVICE, THE PROPRIETY OF PAYMENT IS QUESTIONED. WILL YOU PLEASE ADVISE ME IF THIS VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT IN ITS PRESENT FORM.

AS INDICATED BY YOU, IT IS A WELL ESTABLISHED PRINCIPLE THAT THE STATES HAVE NO POWER BY TAXATION OR OTHERWISE TO RETARD, IMPEDE, BURDEN, OR IN ANY MANNER CONTROL THE OPERATION OF THE CONSTITUTIONAL LAWS ENACTED BY THE CONGRESS TO CARRY INTO EFFECT THE POWERS VESTED IN THE FEDERAL GOVERNMENT. SEE MCCULLOCH V. MARYLAND, ET AL., 4 WHEAT. 316; OHIO V. THOMAS, 173 U.S. 276, JOHNSON V. MARYLAND, 254 U.S. 51. ALSO, SEE THE COMPARATIVELY RECENT DECISION IN THE CASE OF MAYO, ET AL. V. UNITED STATES, 319 U.S. 441, 445, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

SINCE THE UNITED STATES IS A GOVERNMENT OF DELEGATED POWERS, NONE OF WHICH MAY BE EXERCISED THROUGHOUT THE NATION BY ANY ONE STATE, IT IS NECESSARY FOR UNIFORMITY THAT THE LAWS OF THE UNITED STATES BE DOMINANT OVER THOSE OF ANY STATE. SUCH DOMINANCY IS REQUIRED ALSO TO AVOID A BREAKDOWN OF ADMINISTRATION THROUGH POSSIBLE CONFLICTS ARISING FROM INCONSISTENT REQUIREMENTS. THE SUPREMACY CLAUSE OF THE CONSTITUTION STATES THIS ESSENTIAL PRINCIPLE. ARTICLE VI. A COROLLARY TO THIS PRINCIPLE IS THAT THE ACTIVITIES OF THE FEDERAL GOVERNMENT ARE FREE FROM REGULATION BY ANY STATE. NO OTHER ADJUSTMENT OF COMPETING ENACTMENTS OR LEGAL PRINCIPLES IS POSSIBLE.

HERE IT APPEARS THAT THE FOREST SERVICE IS REQUIRED TO USE BOATS PROPELLED BY OUTBOARD MOTORS IN THE DISCHARGE OF ITS AUTHORIZED FUNCTIONS IN THE STATE OF NEW HAMPSHIRE, AND IT IS OBVIOUS THAT THE IMPOSITION OF THE REGISTRATION FEE PRESCRIBED BY THE STATE STATUTE IN CONNECTION WITH THE OPERATION OF SUCH BOATS INFRINGES THE RIGHT OF THE UNITED STATES TO CONDUCT ITS ACTIVITIES FREE FROM STATE INTERFERENCE OR CONTROL. CONSEQUENTLY, IT MUST BE HELD THAT THERE IS NO LEGAL BASIS FOR THE DEMAND OF THE STATE OF NEW HAMPSHIRE FOR THE PAYMENT OF THE FEES HERE IN QUESTION. COMPARE 21 COMP. GEN. 769 AND CASES CITED THEREIN IN WHICH IT WAS HELD THAT THERE IS NO AUTHORITY OF LAW FOR PAYMENT FROM PUBLIC FUNDS OF A FEE FOR A LICENSE TAG REQUIRED BY A STATE ON A GOVERNMENT VEHICLE.

ACCORDINGLY, YOU ARE ADVISED THAT CERTIFICATION FOR PAYMENT OF THE INSTANT VOUCHER, WHICH IS RETURNED HEREWITH, IS NOT AUTHORIZED.