B-85544, JULY 1, 1949, 29 COMP. GEN. 1

B-85544: Jul 1, 1949

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A PERCENTAGE OF WHICH IS REQUIRED BY SECTION 401 OF THE ACT OF JUNE 15. TO BE DISTRIBUTED TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED. SUCH REVENUES ARE FOR DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED. 1949: REFERENCE IS MADE TO YOUR LETTER OF APRIL 13. IT IS EXPLAINED THAT THE TWO MAIN TYPES OF REVENUE FROM THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE ARE DERIVED FROM (A) RENTALS COLLECTED UNDER LEASES OF BUILDINGS AND FACILITIES FOR INDUSTRIAL USAGE TO VARIOUS COMMERCIAL FIRMS. THE LANDS NOW DESIGNATED AS THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE WERE PLACED UNDER THE JURISDICTION OF THE SECRETARY OF THE INTERIOR FOR DEVELOPMENT OF THE MOST BENEFICIAL USES.

B-85544, JULY 1, 1949, 29 COMP. GEN. 1

WILDLIFE REFUGES - DISPOSITION OF RENTAL RECEIPTS AND COLLECTIONS FOR CUSTODIAL AND UTILITY SERVICES IN VIEW OF THE SPECIFIC REQUIREMENT IN SECTION 321 OF THE ACT OF JUNE 30, 1932, THAT RENTALS FROM PUBLIC BUILDINGS BE DEPOSITED AS MISCELLANEOUS RECEIPTS AND THE EJUSDEM GENERIS RULE OF STATUTORY CONSTRUCTION, REVENUES DERIVED FROM THE RENTAL OF PUBLIC BUILDINGS LOCATED ON NATIONAL WILDLIFE REFUGES MAY NOT BE REGARDED AS RECEIPTS INCLUDED WITHIN THE TERM "OTHER PRIVILEGES" ON REFUGES, A PERCENTAGE OF WHICH IS REQUIRED BY SECTION 401 OF THE ACT OF JUNE 15, 1935, AS AMENDED, TO BE DISTRIBUTED TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED, AND, THEREFORE, SUCH REVENUES ARE FOR DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. INASMUCH AS COLLECTIONS FOR CUSTODIAL AND UTILITY SERVICES RENDERED TO INDUSTRIAL FIRMS LEASING PREMISES AT NATIONAL WILDLIFE REFUGES DO NOT REPRESENT REVENUES OF TYPE ENUMERATED IN SECTION 401 OF THE ACT OF JUNE 15, 1935, AS AMENDED, BUT CONSTITUTE PAYMENTS TO THE GOVERNMENT FOR THE COST OF SUCH SERVICES, A PERCENTAGE OF SUCH COLLECTIONS MAY NOT BE DISTRIBUTED, PURSUANT TO SAID SECTION 401, TO THE COUNTY OR COUNTIES IN WHICH THE REFUGE IS LOCATED; MOREOVER, TO SO DISTRIBUTE SUCH COLLECTIONS WOULD CONSTITUTE, IN EFFECT, AN INDIRECT APPROPRIATION OF FEDERAL FUNDS TO SUCH COUNTIES--- A RESULT CLEARLY NOT INTENDED BY THE CONGRESS OR IMPLIED BY THE TERMS OF THE 1935 ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JULY 1, 1949:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1949, CONCERNING THE DISPOSITION OF RECEIPTS ACCRUING FROM THE OPERATION OF NATIONAL WILDLIFE REFUGES ADMINISTERED BY THE FISH AND WILDLIFE SERVICE OF YOUR DEPARTMENT, PARTICULARLY THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE NEAR CARBONDALE, ILLINOIS, AND REQUESTING A DECISION OF THIS OFFICE ON THE FOLLOWING QUESTIONS:

(1) MAY THE REVENUES ACCRUING UNDER LEASES FOR INDUSTRIAL USAGE OF THE BUILDINGS AND FACILITIES AT THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE IN CONSONANCE WITH THE ACT OF AUGUST 5, 1947 (61 STAT. 770) BE TREATED AS MONEYS ACCRUING UNDER THE ACT OF JUNE 15, 1935 (16 U.S.C. 715S), AND BE DISPOSED OF ACCORDINGLY?

(2) MAY THE COLLECTIONS FOR CUSTODIAL AND UTILITY SERVICES RENDERED TO INDUSTRIAL FIRMS LEASING PREMISES AT THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE BE HANDLED IN THE SAME WAY AS THE RENTAL COLLECTIONS DESCRIBED IN QUESTION (1/?

(3) MAY THE COLLECTIONS OF RENTALS FOR BUILDINGS OF ALL TYPES AT CRAB ORCHARD NATIONAL WILDLIFE REFUGE AND OTHER WILDLIFE REFUGE AREAS BE TREATED AS MONEYS SUBJECT TO THE ACT OF JUNE 15, 1935 (16 U.S.C. 715S), AND BE DISPOSED OF ACCORDINGLY?

IT IS EXPLAINED THAT THE TWO MAIN TYPES OF REVENUE FROM THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE ARE DERIVED FROM (A) RENTALS COLLECTED UNDER LEASES OF BUILDINGS AND FACILITIES FOR INDUSTRIAL USAGE TO VARIOUS COMMERCIAL FIRMS, AND (B) COLLECTIONS FOR CUSTODIAL AND UTILITY SERVICES RENDERED SUCH FIRMS, SUCH AS WATER, SEWAGE DISPOSAL, HEAT AND LIVE STEAM, RAILROAD SWITCHING SERVICE, AND ROAD MAINTENANCE.

UNDER THE PROVISIONS OF THE ACT OF AUGUST 5, 1947, 61 STAT. 770, THE LANDS NOW DESIGNATED AS THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE WERE PLACED UNDER THE JURISDICTION OF THE SECRETARY OF THE INTERIOR FOR DEVELOPMENT OF THE MOST BENEFICIAL USES, INCLUDING WILDLIFE CONSERVATION, AGRICULTURAL, RECREATIONAL, INDUSTRIAL, AND RELATED PURPOSES.

RELATIVE TO THE LEASE OF GOVERNMENT BUILDINGS, IT IS PROVIDED IN SECTION 321 OF THE ACT OF JUNE 30, 1932, 47 STAT. 412 (40 U.S.C. 303B), THAT---

HEREAFTER, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW, THE LEASING OF BUILDINGS AND PROPERTIES OF THE UNITED STATES SHALL BE FOR A MONEY CONSIDERATION ONLY, AND THERE SHALL NOT BE INCLUDED IN THE LEASE ANY PROVISION FOR THE ALTERATION, REPAIR, OR IMPROVEMENT OF SUCH BUILDINGS OR PROPERTIES AS A PART OF THE CONSIDERATION FOR THE RENTAL TO BE PAID FOR THE USE AND OCCUPATION OF THE SAME. THE MONEYS DERIVED FROM SUCH RENTALS SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

IN VIEW OF THE ABOVE-QUOTED PROVISION OF LAW, AND IN THE ABSENCE OF LEGISLATION TO THE CONTRARY, REVENUE COLLECTED BY THE FISH AND WILDLIFE SERVICE FROM THE RENTAL OF GOVERNMENT-OWNED BUILDINGS MUST BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. IT IS CONTENDED, HOWEVER, THAT SECTION 401 OF THE ACT OF JUNE 15, 1935, 49 STAT. 383, DIRECTS THAT SUCH COLLECTIONS SHALL BE DISPOSED OF IN ACCORDANCE WITH THE REQUIREMENTS OF THE SAID SECTION 401, AS AMENDED (16 U.S.C. 715S), WHICH READS IN PART AS FOLLOWS:

TWENTY-FIVE PERCENTUM OF ALL MONEY RECEIVED DURING EACH FISCAL YEAR FROM THE SALE OR OTHER DISPOSITION OF SURPLUS WILDLIFE, OR OF TIMBER, HAY, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, SHELL, SAND OR GRAVEL, AND FROM OTHER PRIVILEGES ON REFUGES ESTABLISHED UNDER SECTIONS 715-715 (D), 715 (E), 715 (F/-715 (K), AND 715 (1/-715 (R) OF THIS TITLE, OR UNDER ANY OTHER LAW, PROCLAMATION, OR EXECUTIVE ORDER, ADMINISTERED BY THE FISH AND WILDLIFE SERVICE OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, SHALL BE PAID AT THE END OF SUCH YEAR BY THE SECRETARY OF THE TREASURY TO THE COUNTY OR COUNTIES IN WHICH SUCH REFUGE IS SITUATED, TO BE EXPENDED FOR THE BENEFIT OF THE PUBLIC SCHOOLS AND ROADS IN THE COUNTY OR COUNTIES IN WHICH SUCH REFUGE IS SITUATED * * *.

IN CONNECTION WITH SUCH CONTENTION IT IS STATED THAT---

THE ACT OF JUNE 15, 1935, WAS OBVIOUSLY DIRECTED AT THOSE LANDS ADMINISTERED BY THE FISH AND WILDLIFE SERVICE FOR WILDLIFE CONSERVATION PURPOSES. ITS EVIDENT PRIMARY PURPOSE WAS TO SECURE TO THE COUNTIES IN WHICH SUCH LANDS ARE LOCATED BENEFITS THROUGH PAYMENTS IN LIEU OF TAXES TO THE EXTENT OF 25 PERCENT OF THE NET PROCEEDS OF ECONOMIC USAGE INCIDENTAL TO MANAGEMENT OF THE AREAS FOR WILDLIFE CONSERVATION PURPOSES.

THE LAW IN QUESTION, PASSED SUBSEQUENT TO THE ACT OF JUNE 30, 1932, IS SPECIFIC IN ITS APPLICATION TO REFUGE AREAS. IT WOULD APPEAR THAT THE WORDS "OTHER PRIVILEGES" AS USED IN THIS ACT OF JUNE 15, 1935, SHOULD NOT BE SO RESTRICTIVELY INTERPRETED AS TO EXCLUDE THE OCCUPANCY AND USE OF BUILDINGS FROM THEIR MEANING. SUCH AN AUTHORIZATION TO OCCUPY AND USE BUILDINGS SEEMS CLEARLY TO FALL WITHIN THE COMMON CONCEPT OF A PRIVILEGE.

THE PURPOSE OF TITLE IV OF H.R. 7982, WHICH LATER WAS ENACTED AS SECTION 401 OF THE ACT OF JUNE 15, 1935, IS STATED IN THE REPORT FROM THE COMMITTEE ON AGRICULTURE, HOUSE OF REPRESENTATIVES, ACCOMPANYING THE BILL, TO BE AS FOLLOWS:

THE PURPOSE OF THIS TITLE IS TO AUTHORIZE PAYMENT TO THE STATES OF 25 PERCENT OF ANY REVENUE THAT MAY BE DERIVED FROM CERTAIN WILDLIFE REFUGES AND RESERVATIONS ADMINISTERED BY THE DEPARTMENT OF AGRICULTURE. IT IS THE APPLICATION TO THESE REFUGES OF THE PLAN THAT HAS OBTAINED UNDER CONGRESSIONAL LEGISLATION FOR MANY YEARS WITH RESPECT TO PARTICIPATION OF THE VARIOUS STATES IN REVENUES FROM THE NATIONAL FORESTS, AND IS THOUGHT TO BE EQUITABLE AND FAIR TO THE STATES.

IT IS ALSO PROPOSED TO AUTHORIZE DISPOSITION OF SURPLUS ANIMALS AND PRODUCTS ON THESE RESERVATIONS OR REFUGES UPON SUCH TERMS AND CONDITIONS AS THE SECRETARY OF AGRICULTURE SHALL DETERMINE TO BE FOR THE BEST INTERESTS OF THE GOVERNMENT, INCLUDING EXCHANGES FOR OTHER WILDLIFE.

THE REPORT FROM THE SPECIAL COMMITTEE OF THE SENATE ON CONSERVATION OF WILDLIFE RESOURCES, ACCOMPANYING S. 3006, INCLUDES A STATEMENT AS TO THE PURPOSES OF TITLE IV OF SAID BILL LATER ENACTED AS SECTION 401, TITLE IV, OF THE ACT OF JUNE 15, 1935, AS FOLLOWS:

UNDER PRESENT CONGRESSIONAL ENACTMENTS, THE SEVERAL STATES PARTICIPATE IN REVENUES WHICH THE FEDERAL GOVERNMENT RECEIVES FROM THE USE OF THE NATIONAL FORESTS AND SALE OF THEIR PRODUCTS. THIS TITLE PROPOSES TO APPLY THIS PRINCIPLE AND EXTEND ITS APPLICATION TO WILDLIFE REFUGES AND RESERVATIONS ESTABLISHED UNDER THE DEPARTMENT OF AGRICULTURE.

THE CARRYING CAPACITY OF ANY REFUGE IS LIMITED TO THE FOOD AND SHELTER FOUND THEREON. WHEN A SURPLUS OF WILDLIFE IS EVIDENT, PROVISIONS SHOULD BE MADE FOR THE DISPOSITION OF THIS SURPLUS OF WILDLIFE AND ANY OTHER PRODUCTS OF THE REFUGE. THIS TITLE GIVES AUTHORITY TO THE SECRETARY OF AGRICULTURE TO TAKE CARE OF THESE SITUATIONS UNDER SUCH TERMS AND CONDITIONS AS HE MAY DETERMINE TO BE FOR THE BEST INTERESTS OF THE GOVERNMENT, INCLUDING EXCHANGES FOR OTHER WILDLIFE.

AT NO PLACE IN SUCH REPORTS DOES THERE APPEAR ANY INTENT ON THE PART OF THE CONGRESS TO EXTEND TO THE VARIOUS STATES THE RIGHT TO SHARE IN THE PROCEEDS DERIVED FROM THE RENTAL OF PUBLIC BUILDINGS LOCATED ON NATIONAL WILDLIFE REFUGES. IT IS TO BE NOTED THAT THE TERM "OTHER IVILEGES," AS USED IN THE ACT, IS PRECEDED BY THE SPECIFIC MENTION OF SURPLUS WILDLIFE, TIMBER, HAY, GRASS, OR OTHER SPONTANEOUS PRODUCTS OF THE SOIL, SHELL, SAND, OR GRAVEL. UNDER THE RULE OF EJUSDEM GENERIS, WHERE GENERAL WORDS FOLLOW THE ENUMERATION OF PARTICULAR CLASSES OF PERSONS OR THINGS, THE GENERAL WORDS WILL BE CONSTRUED AS APPLICABLE ONLY TO PERSONS OR THINGS OF THE SAME GENERAL NATURE OR CLASS AS ENUMERATED. WHILE ORDINARILY THE TERM "OTHER PRIVILEGES" MIGHT BE CONSIDERED AS BEING BROAD ENOUGH TO INCLUDE THE RIGHT TO LEASE AND OCCUPY PUBLIC BUILDINGS, IN VIEW OF THE ABOVE RULE OF STATUTORY CONSTRUCTION AND THE SPECIFIC REQUIREMENT CONTAINED IN SECTION 321 OF THE ACT OF JUNE 30, 1932, SUPRA, THAT ALL MONEYS RECEIVED FROM THE RENTAL OF PUBLIC BUILDINGS ARE FOR DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, IT IS THE CONSIDERED OPINION OF THIS OFFICE THAT THE TERM "OTHER PRIVILEGES," AS USED IN THE ACT OF JUNE 15, 1935, DOES NOT EMBRACE RENTALS OF PUBLIC BUILDINGS LOCATED ON NATIONAL WILDLIFE REFUGES. CF. 8 COMP. GEN. 628; 21 ID. 873.

ACCORDINGLY, QUESTIONS NUMBERED (1) AND (3) ARE ANSWERED IN THE NEGATIVE.

INASMUCH AS COLLECTIONS FOR CUSTODIAL AND UTILITY SERVICES RENDERED TO INDUSTRIAL FIRMS LEASING PREMISES AT THE CRAB ORCHARD NATIONAL WILDLIFE REFUGE DO NOT REPRESENT REVENUES OF THE TYPE ENUMERATED IN SECTION 401 OF THE ACT OF JUNE 15, 1935, BUT CONSTITUTE PAYMENTS TO THE GOVERNMENT FOR THE COST OF SUCH SERVICES, THERE APPEARS NO REASON WHY A PORTION OF SUCH COLLECTIONS SHOULD BE PAID TO ANY STATE, NOR ARE ANY REASONS THEREFOR SUGGESTED BY YOUR DEPARTMENT. SINCE THE COST OF SUCH SERVICES HAS BEEN BORNE FROM APPROPRIATED FUNDS, TO PAY OVER TO THE VARIOUS STATES IN WHICH THE PROPERTY IS LOCATED ANY PORTION OF THE COLLECTIONS SO RECEIVED WOULD CONSTITUTE, IN EFFECT, AN INDIRECT APPROPRIATION OF FEDERAL FUNDS TO SUCH STATES--- A RESULT CLEARLY NOT INTENDED BY THE CONGRESS NOR IS SUCH RESULT IMPLIED IN ANY WAY BY THE TERMS OF THE ACT OF JUNE 15, 1935.