B-129222, OCTOBER 5, 1956, 36 COMP. GEN. 286

B-129222, OCTOBER 5, 1956, 36 COMP. GEN. 286

STATES AND MUNICIPALITIES - INSTALLATION OF TRAFFIC LIGHT BY FEDERAL GOVERNMENT - PAYMENTS TO STATES IN LIEU OF TAXES THE INSTALLATION OF A TRAFFIC CONTROL LIGHT IN A MUNICIPALITY IS A GOVERNMENTAL FUNCTION FINANCED BY TAX REVENUES, AND A CONTRIBUTION OF MONEY OR A TRAFFIC LIGHT TO A MUNICIPALITY BY A FEDERAL AGENCY WOULD BE A PAYMENT IN LIEU OF TAXES WHICH IS NOT AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATION.

TO THE SECRETARY OF THE ARMY, OCTOBER 5, 1956:

IN HIS LETTER OF SEPTEMBER 11, 1956, THE ASSISTANT SECRETARY OF THE ARMY ( FM) INQUIRED AS TO THE AVAILABILITY OF ARMY APPROPRIATIONS TO INSTALL A TRAFFIC LIGHT OVER A MUNICIPAL HIGHWAY.

THE TRAFFIC LIGHT WILL BE PLACED OVER THE ROAD, WHICH IS NOT SUBJECT TO LEGISLATIVE CONTROL BY THE UNITED STATES, AT A POINT WHERE A NEW OPENING TO CAMERON STATION, ALEXANDRIA, VIRGINIA, WILL INTERSECT THE HIGHWAY. BOTH ARMY AND MUNICIPAL OFFICIALS HAVE DECIDED A CONTROL LIGHT IS NECESSARY TO MAINTAIN MAXIMUM SAFETY CONDITIONS AT THE PROPOSED INTERSECTION. WHILE MUNICIPAL OFFICIALS HAVE DECLINED BECAUSE OF INSUFFICIENT FUNDS TO FURNISH THE CONTROL DEVICE, THEY HAVE AGREED TO OPERATE, MAINTAIN, AND REPAIR THE LIGHT AFTER INSTALLATION BY THE FEDERAL GOVERNMENT. THE UNITED STATES WILL RETAIN TITLE TO THE TRAFFIC LIGHT. REFERRING TO THIS SPECIFIC PROBLEM THE ASSISTANT SECRETARY ASKS:

MAY THE ARMY, UNDER CURRENT APPROPRIATIONS ( MAINTENANCE AND OPERATIONS), LEGALLY PROCURE AND INSTALL A TRAFFIC CONTROL DEVICE UPON A HIGHWAY OVER WHICH THE UNITED STATES EXERCISES NO LEGISLATIVE JURISDICTION, AND IN WHICH THE UNITED STATES HOLDS NO PROPERTY INTEREST, FOR THE PURPOSES OF SAFEGUARDING GOVERNMENT PROPERTY AND SERVICE PERSONNEL AND THEIR DEPENDENTS, AND OF PROVIDING ACCESS AT A MILITARY INSTALLATION?

THIS QUESTION IS THE SUBJECT OF A LEGAL MEMORANDUM WHICH ACCOMPANIED THE ASSISTANT SECRETARY'S LETTER. IN THE ABSENCE OF A CASE ON THE PRECISE ISSUE THREE LINES OF DECISIONS PUBLISHED BY THIS OFFICE ARE DISCUSSED, AND IT IS SUGGESTED THAT THE QUERY SHOULD BE ANSWERED IN THE AFFIRMATIVE. WITHOUT COMMENTING ON THE FIRST TWO LINES OF DECISIONS, WE BELIEVE THE CONTROLLING FACTOR HERE IS THE THIRD; NAMELY, RESPONSIBILITY OF A MUNICIPALITY TO RENDER POLICE SERVICES. ON THIS POINT THE MEMORANDUM THESIS IS THAT PAYMENT BY THE ARMY FOR THE INSTALLATION OF A TRAFFIC LIGHT WOULD NOT RELIEVE THE MUNICIPALITY OF AN EXTANT OBLIGATION TO THE UNITED STATES.

POLICE SERVICES RESULT FROM AN EXERCISE OF ONE FACET OF THE MUNICIPALITY'S GOVERNMENTAL FUNCTION. IN REGARD TO GOVERNMENTAL FUNCTIONS WE HAVE SAID, 24 COMP. GEN. 599, 601:

THE ESTABLISHMENT AND OPERATION OF A FIRE DEPARTMENT BY A MUNICIPAL CORPORATION IS A GOVERNMENTAL--- AS DISTINGUISHED FROM A PROPRIETARY OR BUSINESS--- FUNCTION. O-DONNELL V. GROTON, 144 A. 468; KLING V. CITY OF AUSTIN, 62 S.W.2D 689. AND THE GOVERNMENTAL FUNCTIONS OF A MUNICIPAL CORPORATION ARE EXERCISED FOR THE BENEFIT AND WELFARE OF THE COMMUNITY AT LARGE; SUCH FUNCTIONS ARE NOT MERE FRANCHISES OR PRIVILEGES TO BE PERFORMED OR IGNORED BY THE MUNICIPALITY AT ITS DISCRETION, BUT RATHER LEGAL DUTIES IMPOSED BY THE STATE UPON ITS CREATION; AND SUCH DUTIES ARE OF A MANDATORY NATURE, NOTWITHSTANDING THE LACK OF CIVIL LIABILITY FOR NEGLIGENCE IN THE PERFORMANCE THEREOF. 43 C.J. 182-4; MASON ET AL. V. FEARSON, 50 U.S. 248; MARXER V. CITY OF SAGINAW, 258 N.W. 627; ROSE V. GYPSUM CITY, 179 P. 348; CITY OF UVALDE V. UVALDE ELECTRIC AND ICE CO., 250 S.W. 140. * * *

CONTROL OF TRAFFIC, LIKE FIRE PROTECTION, IS A MUNICIPAL GOVERNMENTAL FUNCTION. CF. CODE OF VIRGINIA, 1950, TITLE 46, CHAPTER 4, ARTICLE 2, ESPECIALLY SECTIONS 46-198, 200, 203, AND 207.

GOVERNMENTAL FUNCTIONS, AS A GENERAL RULE, ARE PAID FROM REVENUES RAISED BY TAXATION. AT LEAST, IN THE INSTANT CASE, THERE IS NO INDICATION THE TRAFFIC LIGHT SYSTEM IS FINANCED BY OTHER THAN TAX MONEYS. IT IS WELL ESTABLISHED THAT FEDERAL CONTRIBUTIONS IN LIEU OF TAXES ARE NOT AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATION, 35 COMP. GEN. 311, AND CASES CITED THEREIN. IN THE PRESENT CIRCUMSTANCES AN ARMY CONTRIBUTION, SUCH AS MONEY OR A TRAFFIC LIGHT TO ALEXANDRIA, VIRGINIA, WOULD BE A PAYMENT IN LIEU OF TAXES NOT PROVIDED FOR OR CONTEMPLATED BY CONGRESS; HENCE, NOT PERMISSIBLE.

PAYMENTS BASED ON THE QUANTUM OF SERVICE RENDERED ARE NOT TO BE CONFUSED WITH GOVERNMENTAL FUNCTIONS SUPPORTED EXCLUSIVELY BY TAXES. THE RESULTS OF THIS DISTINCTION ARE EXPLAINED IN A CASE REPORTED AT 31 COMP. GEN. 405, 408:

IT HAS BEEN HELD THAT THE CONSTITUTIONAL IMMUNITY OF THE FEDERAL GOVERNMENT FROM STATE AND LOCAL TAXATION DOES NOT EXTEND TO PAYMENT OF CHARGES FOR WATER OR SEWER SERVICES WHERE THE AMOUNT THEREOF IS DETERMINED PURSUANT TO STATUTE BY THE QUANTITY OF WATER FURNISHED OR THE AMOUNT OF SEWAGE DISPOSED OF, SUCH CHARGES BEING NEITHER REGARDED AS TAXES OR ASSESSMENTS BUT AS THE PRICE OF THE PRODUCT OR SERVICE RENDERED. STATE V. TAYLOR, 79 N.E. 2ND 127, 29 COMP. GEN. 120. * * *

SINCE THE OPERATION OF A TRAFFIC CONTROL LIGHT IS NOT DEPENDENT UPON, OR RELATED TO, THE RECEIPT OF FEES FOR THE SERVICES OF THAT LIGHT, OUR CONCLUSION IS NOT ALTERED BY CASES, SUCH AS 31 COMP. GEN. 405, ABOVE, 29 ID. 120, AND 20 ID. 206, WHICH REFER TO THE PRINCIPLE OF PAYMENTS MEASURED BY THE SERVICE RENDERED.