B-8692, MARCH 13, 1940, 19 COMP. GEN. 778

B-8692, MARCH 13, 1940, 19 COMP. GEN. 778

PUBLIC BUILDINGS - CHARGES FOR CONNECTING WITH A COUNTY SEWER THE AMOUNT CHARGED THE UNITED STATES BY A COUNTY FOR THE PRIVILEGE OF CONNECTING THE SEWER LINE OF A VETERANS' ADMINISTRATION FACILITY WITH THE COUNTY SEWERAGE SYSTEM IS PROPERLY PAYABLE FROM THE FUNDS ALLOTTED FOR THE CONSTRUCTION OF THE FACILITY RATHER THAN THE FUNDS AVAILABLE FOR MAINTENANCE AND OPERATION THEREOF.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 13, 1940:

I HAVE YOUR LETTER OF FEBRUARY 20, 1940, AS FOLLOWS:

ON DECEMBER 29, 1939, A CONTRACT WAS ENTERED INTO WITH THE BOARD OF CUYAHOGA COUNTY COMMISSIONERS (VAM-14769), PHOTOSTAT COPY ATTACHED, WHICH WILL PERMIT THE DISCHARGE OF UNTREATED SEWAGE FROM THE VETERANS' ADMINISTRATION FACILITY, BRECKSVILLE, OHIO, INTO THE SEWER LINE NOW BEING CONSTRUCTED BY THE COUNTY AUTHORITIES. THIS CONTRACT PROVIDES FOR THE PAYMENT OF THE SUM OF $40,000 TO THE COUNTY AUTHORITIES FOR THE PRIVILEGE OF CONNECTING TO THE SEWER SYSTEM NOW UNDER CONSTRUCTION AND TO CONTINUE TO DISCHARGE THE SEWAGE FROM THE BRECKSVILLE FACILITY FOR SUCH PERIOD OF TIME, AS MAY BE REQUIRED, WITHOUT FURTHER CHARGE. SINCE A DOUBT HAS BEEN EXPRESSED IN THE VETERANS' ADMINISTRATION AS TO THE APPROPRIATION WHICH SHOULD BE CHARGED WITH THIS EXPENDITURE, THE MATTER IS SUBMITTED TO YOU FOR DECISION.

FUNDS FOR THE CONSTRUCTION OF THE BRECKSVILLE FACILITY WERE ALLOCATED TO THE VETERANS' ADMINISTRATION UNDER THE PROVISIONS OF TITLE II OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938, PUBLIC RESOLUTION NO. 122, 75TH CONGRESS, WHICH PROVIDES, IN PERTINENT PART AS FOLLOWS:

"/B) NO FUNDS APPROPRIATED UNDER THIS TITLE SHALL BE ALLOTTED FOR ANY PROJECT WHICH IN THE DETERMINATION OF THE ADMINISTRATOR CANNOT BE COMMENCED PRIOR TO JANUARY 1, 1939, OR THE COMPLETION OF WHICH CANNOT BE SUBSTANTIALLY ACCOMPLISHED PRIOR TO JUNE 30, 1940: PROVIDED, THAT THIS LIMITATION UPON TIME SHALL NOT APPLY TO ANY PROJECT ENJOINED IN ANY FEDERAL OR STATE COURT.'

"/3) PROJECTS FOR HOSPITALS AND DOMICILIARY FACILITIES OF THE VETERANS' ADMINISTRATION (INCLUDING THE ACQUISITION OF LAND FOR SITES THEREFOR) AND ANY SUCH ALLOTMENTS SHALL BE AVAILABLE FOR THE PURPOSES AND UNDER THE CONDITIONS SPECIFIED IN THE APPROPRIATION FOR " HOSPITALS AND DOMICILIARY FACILITIES" IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939.'

THE PURPOSES AND CONDITIONS SPECIFIED BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939, WITH REFERENCE TO THE APPROPRIATION " HOSPITAL AND DOMICILIARY FACILITIES" ARE IN PERTINENT PART AS FOLLOWS:

"PROVIDED, THAT THIS AMOUNT SHALL BE AVAILABLE FOR USE BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, WITH THE APPROVAL OF THE PRESIDENT, FOR EXTENDING ANY OF THE FACILITIES UNDER THE JURISDICTION OF THE VETERANS' ADMINISTRATION OR FOR ANY OF THE PURPOSES SET FORTH IN SECTIONS 1 AND 2 OF THE ACT APPROVED MARCH 4, 1931 (38 U.S.C. 438): * * *"

THE PURPOSES SET FORTH IN SECTIONS 1 AND 2 OF THE ACT OF MARCH 4, 1931, SUPRA, ARE AS FOLLOWS:

"* * * ADDITIONAL HOSPITAL, DOMICILIARY, AND OUT-PATIENT DISPENSARY FACILITIES FOR PERSONS ENTITLED TO HOSPITALIZATION OR DOMICILIARY CARE UNDER THIS CHAPTER, OR THE VARIOUS LAWS PERTAINING TO THE BUREAU OF NATIONAL HOMES, FORMERLY THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, BY PURCHASE, REPLACEMENT, AND REMODELING OR EXTENSION OF EXISTING PLANTS, AND BY CONSTRUCTION ON SITES NOW OWNED BY THE GOVERNMENT OR ON SITES TO BE ACQUIRED BY PURCHASE, CONDEMNATION, GIFT, OR OTHERWISE OF SUCH HOSPITALS, DOMICILIARY AND OUT-PATIENT DISPENSARY FACILITIES TO INCLUDE THE NECESSARY BUILDINGS AND AUXILIARY STRUCTURES, MECHANICAL EQUIPMENT, APPROACH WORK, ROADS, AND TRACKAGE FACILITIES LEADING THERETO, SIDEWALKS ABUTTING HOSPITAL RESERVATIONS, VEHICLES, LIVESTOCK, FURNITURE, EQUIPMENT, AND ACCESSORIES; AND ALSO TO PROVIDE ACCOMMODATIONS FOR OFFICERS, NURSES, AND ATTENDING PERSONNEL; * * *"

IN CONNECTION WITH THIS MATTER YOU WILL APPRECIATE, OF COURSE, THAT IN MAINTAINING INSTITUTIONS UNDER THE JURISDICTION OF THE VETERANS' ADMINISTRATION, IT IS NECESSARY TO PROVIDE FOR SUCH SERVICES AS WATER, GAS, ELECTRICITY, TELEPHONE, AS WELL AS FOR THE DISPOSAL OF SEWAGE. INSTANCES ARISE WHERE CERTAIN OF THESE SERVICES EITHER CAN NOT BE FURNISHED BY LOCAL AUTHORITIES OR THE COST IS SUCH AS TO JUSTIFY THE VETERANS' ADMINISTRATION IN PROVIDING ITS OWN FACILITIES, SUCH, FOR EXAMPLE, AS CONSTRUCTING WELL AND GENERATING PLANTS. IN THE INSTANT CASE IF IT WERE NOT FOR THE FACT THAT THE BOARD OF CUYAHOGA COUNTY COMMISSIONERS AGREED, AT A REASONABLE PRICE, TO PERMIT A CONNECTION WITH THEIR SEWER SYSTEM "WITH THE RIGHT TO CONTINUE TO DISCHARGE THE SEWAGE FROM SAID FACILITY THEREIN FOR SUCH PERIOD OF TIME AS MAY BE REQUIRED, WITHOUT FURTHER CHARGE" IT WOULD HAVE BEEN NECESSARY FOR THE VETERANS' ADMINISTRATION TO CONSTRUCT AND MAINTAIN ITS OWN SEWAGE DISPOSAL PLANT. IF THIS HAD BEEN DONE THE COST FOR THE CONSTRUCTION WOULD HAVE BEEN PROPERLY CHARGEABLE TO FUNDS ALLOTTED BY THE PUBLIC WORKS ADMINISTRATION AND THE MAINTENANCE (ESTIMATED AT $3,000 A YEAR) WOULD BE CHARGEABLE TO APPROPRIATION " SALARIES AND EXPENSES" ( ADMINISTRATION, MEDICAL, HOSPITAL AND DOMICILIARY SERVICES) MADE AVAILABLE UNDER PUBLIC NO. 8, 76TH CONGRESS, CHAPTER II, ST SESSION, WHICH PROVIDES, IN PERTINENT PART AS FOLLOWS:

"FOR ALL SALARIES AND EXPENSES OF THE VETERANS' ADMINISTRATION INCLUDING THE EXPENSES OF MAINTENANCE AND OPERATION OF MEDICAL, HOSPITAL AND DOMICILIARY SERVICES, OF THE VETERANS' ADMINISTRATION * * *" ( ITALICS SUPPLIED.)

AS PREVIOUSLY MENTIONED THE VETERANS' ADMINISTRATION WAS NOT REQUIRED TO CONSTRUCT ITS OWN SEWAGE DISPOSAL PLANT. AS A CONSEQUENCE IT IS NOT CONSIDERED THAT FUNDS ALLOTTED BY THE PUBLIC WORKS ADMINISTRATION WOULD BE AVAILABLE FOR THIS EXPENDITURE, ESPECIALLY SO SINCE THE FEDERAL GOVERNMENT WILL NOT ACQUIRE TITLE TO THE PROPERTY. THERE REMAINS FOR DETERMINATION, THEREFORE, WHETHER THIS EXPENDITURE, IF CHARGEABLE TO APPROPRIATION " SALARIES AND EXPENSES" ( ADMINISTRATION, MEDICAL, HOSPITAL, AND DOMICILIARY SERVICES) IS AN ITEM OF EXPENSE FOR " MAINTENANCE AND OPERATION" OR A REPAIR, ALTERATION, IMPROVEMENT OR A FACILITY AS COVERED BY THE LIMITATION UPON APPROPRIATION " SALARIES AND EXPENSES" ( ADMINISTRATION, MEDICAL, HOSPITAL, AND DOMICILIARY SERVICES) AS FOLLOWS:

"NO PART OF THIS APPROPRIATION SHALL BE EXPENDED FOR THE PURCHASE OF ANY SITE FOR OR TOWARD THE CONSTRUCTION OF ANY NEW HOSPITAL OR HOME, OR FOR THE PURCHASE OF ANY HOSPITAL OR HOME; AND NOT MORE THAN $2,500,000 OF THIS APPROPRIATION MAY BE USED TO REPAIR, ALTER, IMPROVE, OR PROVIDE FACILITIES IN THE SEVERAL HOSPITALS AND HOMES UNDER THE JURISDICTION OF THE VETERANS' ADMINISTRATION EITHER BY CONTRACT OR BY THE HIRE OF TEMPORARY EMPLOYEES AND THE PURCHASE OF MATERIALS.'

IN MY OPINION THIS EXPENDITURE IS PREDOMINATELY IN THE NATURE OF MAINTENANCE AND OPERATION OF THE FACILITY AND YOUR DECISION AT AN EARLY DATE UPON THE QUESTION PRESENTED WILL BE HIGHLY APPRECIATED.

THE " PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938" WAS APPROVED JUNE 21, 1938, 52 STAT. 816, AND THE PORTION THEREOF QUOTED IN THE SECOND PARAGRAPH OF YOUR LETTER IS SECTION 201 (B) AND (C) (3) OF SAID ACT.

IN 9 COMP. GEN. 41, IT WAS HELD BY THIS OFFICE---

THE AMOUNT CHARGED THE UNITED STATES BY A MUNICIPALITY FOR THE PRIVILEGE OF CONNECTING THE SEWERS OF A VETERANS' BUREAU HOSPITAL WITH AN EXTENSION SEWER OF THE CITY IS NOT A TAX LEVIED AGAINST THE FEDERAL GOVERNMENT AND MAY BE PAID ON THE BASIS OF AN IMPLIED CONTRACT AS A PART OF THE COST OF CONSTRUCTION OF THE HOSPITAL, WHERE THE GOVERNMENT AUTHORITIES WERE ADVISED BEFORE THE CONNECTION WAS EFFECTED THAT THE CHARGE WOULD BE MADE. ( ITALICS SUPPLIED.) ALSO, IN DECISION A-49649, OF JULY 14, 1933, TO YOU, THIS OFFICE HELD THAT THE PROPOSED PAYMENT IN THAT CASE TO THE CITY OF ROSEBURG, OREG., FOR A PART OF THE COST OF CONSTRUCTION OF A CITY-OWNED SEWAGE DISPOSAL PLANT WAS NOT AUTHORIZED, BUT NO OBJECTION WAS MADE TO THE PAYMENT OF THE $10,000 FEE CHARGED BY THE CITY FOR A SEWER CONNECTION--- THE PAYMENT OF SUCH FEE TO BE MADE, PRESUMABLY, FROM THE APPROPRIATION FOR THE CONSTRUCTION OF THE FACILITY.

WHILE IT IS TRUE THAT UNDER THE NOW PROPOSED AGREEMENT TO PAY A LUMP SUM FOR THE PRIVILEGE OF CONNECTING WITH THE COUNTY SEWERAGE SYSTEM, THE UNITED STATES DOES NOT ACQUIRE TITLE TO SAID SYSTEM OR THE DISPOSAL PLANT, THE AGREEMENT, UPON ITS BEING CARRIED OUT, WOULD VEST IN THE UNITED STATES A PROPERTY RIGHT IN PERPETUITY WHICH WOULD BE AN APPURTENANT TO THE BRECKSVILLE FACILITY, THE SITE FOR WHICH, PRESUMABLY, HAS BEEN ACQUIRED BY THE UNITED STATES. AS INDICATED IN THE ABOVE-CITED DECISIONS SUCH A RIGHT IS FOR CONSIDERING AS A PART OF THE CONSTRUCTION COST OF THE FACILITY AND NO REASON IS PERCEIVED WHY THE COSTS OF THE SEWERAGE CONNECTION IN THE PRESENT CASE SHOULD NOT BE PAID FROM THE ALLOTMENT MADE FOR SUCH CONSTRUCTION. COSTS NECESSARY TO THE COMPLETION OF A CONSTRUCTION PROJECT ARE, ESSENTIALLY, CONSTRUCTION COSTS, AND NOT COSTS OF MAINTENANCE, OPERATION, REPAIR, ALTERATION, OR IMPROVEMENTS, WHICH COSTS ORDINARILY ARISE ONLY AFTER COMPLETION OF THE PROJECT. CF. A-40231, JANUARY 11, 1932.

CONSEQUENTLY, I AM UNABLE TO CONCUR IN THE OPINION STATED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, SUPRA; AND HAVE TO ADVISE THAT THE CONNECTION CHARGE COVERED BY THE AGREEMENT IN QUESTION IS PROPERTY FOR CHARGING--- IN THE ABSENCE OF OTHER OBJECTION--- TO THE FUNDS ALLOTTED FOR THE CONSTRUCTION OF THE BRECKSVILLE FACILITY.