MARCH 19, 1924, 3 COMP. GEN. 663

MARCH 19, 1924, 3 COMP. GEN. 663

MUNICIPAL PERMITS FOR OPERATION OF FACILITIES OF THE FEDERAL GOVERNMENT THE FACILITIES OF THE FEDERAL GOVERNMENT ARE NOT SUBJECT TO LOCAL CITY ORDINANCES OR REGULATIONS AND WHERE SUCH AN ORDINANCE OR REGULATION OF A MUNICIPAL FIRE DEPARTMENT REQUIRES THAT A PERMIT BE OBTAINED FOR THE OPERATION OF A GASOLINE PUMP, SUCH PERMIT TO BE ISSUED UPON EXAMINATION AND PAYMENT OF A FEE, A FEDERAL EMPLOYEE, WHOSE OFFICIAL DUTIES REQUIRE THE OPERATION OF A FEDERAL GASOLINE PUMP, IS NOT REQUIRED TO STAND THE EXAMINATION OR TO PAY THE FEE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 19, 1924:

IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF THE POSTMASTER AT BROOKLYN, N.Y., FOR THE QUARTER ENDED DECEMBER 31, 1923, THERE IS FOR CONSIDERATION THE QUESTION WHETHER CREDIT MAY BE ALLOWED FOR THE SUM OF $15, THE AMOUNT PAID TO THREE POST OFFICE CLERKS AS REIMBURSEMENT OF THE AMOUNT EXPENDED BY THEM FOR PERMITS ISSUED BY THE FIRE DEPARTMENT OF THE CITY OF NEW YORK COVERING CERTIFICATES OF FITNESS TO TAKE CHARGE OF GASOLINE PUMPS AT THE BROOKLYN POST OFFICE.

THE CLAIM FOR CREDIT IS SUPPORTED BY A LETTER FROM THE FIRST ASSISTANT POSTMASTER GENERAL AUTHORIZING PAYMENT FROM THE POST-OFFICE APPROPRIATION FOR "VEHICLE SERVICE, 1924," WHICH IS AS FOLLOWS:

FOR VEHICLE ALLOWANCE, THE HIRING OF DRIVERS, THE RENTAL OF VEHICLES,AND THE PURCHASE AND EXCHANGE AND MAINTENANCE, INCLUDING STABLE AND GARAGE FACILITIES OF WAGONS OR AUTOMOBILES FOR, AND THE OPERATION OF, SCREEN- WAGON AND CITY DELIVERY AND COLLECTION SERVICE, $14,500,000. ACT OF FEBRUARY 14, 1923, 42 STAT., 1255.

THE QUESTION OF THE AUTHORITY OF A STATE TO REQUIRE FEDERAL EMPLOYEES WHO, IN THE DISCHARGE OF THEIR OFFICIAL DUTIES, ARE ENGAGED IN OCCUPATIONS WHICH ARE THE SUBJECT OF STATE REGULATIONS THROUGH THE ISSUE OF PERMITS OR LICENSES HAS FREQUENTLY BEEN BEFORE THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS, AND IT HAS UNIFORMLY BEEN HELD THAT THE EMPLOYEES SO ENGAGED ARE NOT REQUIRED TO OBTAIN THE PERMITS OR LICENSES REQUIRED TO BE OBTAINED BY THE GENERAL PUBLIC.

IN THE CASE OF JOHNSON V. MARYLAND, 254 U.S., 51, THE PLAINTIFF IN ERROR WAS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT OF THE UNITED STATES, AND WHILE DRIVING A MOTOR TRUCK IN THE TRANSPORTATION OF MAIL OVER A POST ROAD FROM MOUNT AIRY, MD., TO WASHINGTON, WAS ARRESTED IN MARYLAND AND WAS TRIED, CONVICTED, AND FINED FOR SO DRIVING WITHOUT HAVING OBTAINED A LICENSE FROM THE STATE. THE FACTS WERE ADMITTED AND THE QUESTION CONSIDERED BY THE SUPREME COURT WAS STATED TO BE, PAGE 55:

* * * WHETHER THE STATE HAS POWER TO REQUIRE SUCH AN EMPLOYEE TO OBTAIN A LICENSE BY SUBMITTING TO AN EXAMINATION CONCERNING HIS COMPETENCE AND PAYING THREE DOLLARS BEFORE PERFORMING HIS OFFICIAL DUTY IN OBEDIENCE TO SUPERIOR COMMAND.

IN DENYING THAT THE STATE HAD SUCH POWER THE COURT SAID, PAGE 57:

IT SEEMS TO US THAT THE IMMUNITY OF THE INSTRUMENTS OF THE UNITED STATES FROM STATE CONTROL IN THE PERFORMANCE OF THEIR DUTIES EXTENDS TO A REQUIREMENT THAT THEY DESIST FROM PERFORMANCE UNTIL THEY SATISFY A STATE OFFICER UPON EXAMINATION THAT THEY ARE COMPETENT FOR A NECESSARY PART OF THEM AND PAY A FEE FOR PERMISSION TO GO ON. SUCH A REQUIREMENT DOES NOT MERELY TOUCH THE GOVERNMENT SERVANTS REMOTELY BY A GENERAL RULE OF CONDUCT; IT LAYS HOLD OF THEM IN THEIR SPECIFIC ATTEMPT TO OBEY ORDERS AND REQUIRES QUALIFICATIONS IN ADDITION TO THOSE THAT THE GOVERNMENT HAS PRONOUNCED SUFFICIENT. IT IS THE DUTY OF THE DEPARTMENT TO EMPLOY PERSONS COMPETENT FOR THEIR WORK AND THAT DUTY IT MUST BE PRESUMED HAS BEEN PERFORMED.

SINCE A STATE HAS NO SUCH POWER, IT WOULD SEEM NECESSARILY TO FOLLOW THAT A MUNICIPALITY, THE CREATURE OF THE STATE, IS LIKEWISE WITHOUT AUTHORITY TO REQUIRE A FEDERAL EMPLOYEE TO STAND AN EXAMINATION AND OBTAIN THE PERMISSION OF THE MUNICIPAL GOVERNMENT OR AN AGENCY THEREOF BEFORE PERFORMING THE WORK REQUIRED OF HIM BY HIS SUPERIOR. 9 COMP. DEC., 181; 15 ID., 231. HOWEVER, EVEN IF IT SHOULD BE HELD THAT IT WAS NECESSARY IN THIS CASE FOR THE EMPLOYEES TO OBTAIN THE PERMITS AND PAY THE FEES INCIDENT THERETO, THE REQUIREMENT WOULD BE PERSONAL TO THEM AND THE EXPENSE THEREOF WOULD BE AN EXPENSE NECESSARY TO QUALIFY THEM FOR THE DUTIES REQUIRED OF THEM AND REIMBURSEMENT THEREFOR WOULD NOT BE AUTHORIZED. 23 COMP. DEC., 386.

CREDIT FOR THE AMOUNT OF $15 WILL THEREFORE BE DISALLOWED IN THE ACCOUNTS OF WALTER C. BURTON, POSTMASTER, BROOKLYN, N.Y. ..END :