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B-136911, OCTOBER 1, 1958, 38 COMP. GEN. 258

B-136911 Oct 01, 1958
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NEITHER THE PAYMENT OF PARKING METER FEES FOR GOVERNMENT-OWNED VEHICLES NOR THE REIMBURSEMENT OF EMPLOYEES FOR PARKING METER DEPOSITS IS PROPER. IT IS STATED THAT THE USE OF PARKING METERS HAS INCREASED TO SUCH AN EXTENT THAT THERE ARE LARGE AREAS IN MANY CITIES WHERE FREE PARKING ON THE STREETS IS NOT PROVIDED OR IS SO LIMITED AS TO BE PRACTICALLY UNOBTAINABLE. IT IS STATED THAT THE SITUATION THUS ARISES WHEREIN A GOVERNMENT EMPLOYEE IS UNABLE TO PARK A GOVERNMENT AUTOMOBILE WITHOUT CHARGE. THE GOVERNMENT WILL NOT REIMBURSE HIM FOR THE PARKING FEE. THE LETTER FURTHER STATES: THIS PROBLEM IS AGGRAVATED BY THE FACT THAT IT IS NECESSARY TO CONCEAL THE IDENTITY OF MANY AUTOMOBILES USED IN INVESTIGATIVE WORK.

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B-136911, OCTOBER 1, 1958, 38 COMP. GEN. 258

PARKING METER FEES - GOVERNMENT-OWNED VEHICLES - UNMARKED VEHICLES THE IMPOSITION OF PARKING METER FEES BY MUNICIPALITIES OR STATES FOR VEHICLES OWNED BY THE FEDERAL GOVERNMENT CONSTITUTES AN UNAUTHORIZED ATTEMPT TO TAX OR BURDEN THE FEDERAL GOVERNMENT CONTRARY TO ITS CONSTITUTIONAL IMMUNITY AND, THEREFORE, NEITHER THE PAYMENT OF PARKING METER FEES FOR GOVERNMENT-OWNED VEHICLES NOR THE REIMBURSEMENT OF EMPLOYEES FOR PARKING METER DEPOSITS IS PROPER. IN CASE INSISTENCE ON THE IMMUNITY OF THE FEDERAL GOVERNMENT FROM THE IMPOSITION OF PARKING METER FEES FOR PARKING UNMARKED GOVERNMENT OWNED VEHICLES USED IN INVESTIGATIVE WORK WOULD JEOPARDIZE THE INVESTIGATION, THE FEES MAY BE CONSIDERED AS A NECESSARY COST OF THE INVESTIGATION AND IN SUCH CASE THE EMPLOYEE MAY BE REIMBURSED FOR THE PARKING METER DEPOSITS.

TO THE SECRETARY OF THE TREASURY, OCTOBER 1, 1958:

THE LETTER OF JULY 18, 1958, FROM THE ACTING SECRETARY CONCERNS CERTAIN PROBLEMS ARISING FROM OUR PRIOR DECISIONS HOLDING THAT GOVERNMENT EMPLOYEES MAY NOT BE REIMBURSED FOR AMOUNTS PAID AS METER FEES FOR PARKING GOVERNMENT AUTOMOBILES ON CITY STREETS AND REQUESTS SUCH RELIEF OR ASSISTANCE AS MAY BE GIVEN IN CONNECTION THEREWITH.

IT IS STATED THAT THE USE OF PARKING METERS HAS INCREASED TO SUCH AN EXTENT THAT THERE ARE LARGE AREAS IN MANY CITIES WHERE FREE PARKING ON THE STREETS IS NOT PROVIDED OR IS SO LIMITED AS TO BE PRACTICALLY UNOBTAINABLE. IT IS STATED THAT THE SITUATION THUS ARISES WHEREIN A GOVERNMENT EMPLOYEE IS UNABLE TO PARK A GOVERNMENT AUTOMOBILE WITHOUT CHARGE, BUT THE GOVERNMENT WILL NOT REIMBURSE HIM FOR THE PARKING FEE, PLACING THE GOVERNMENT IN THE POSITION OF REQUIRING ITS EMPLOYEE TO BEAR COSTS INCURRED SOLELY AS A RESULT OF PERFORMANCE OF OFFICIAL DUTIES. THE LETTER FURTHER STATES:

THIS PROBLEM IS AGGRAVATED BY THE FACT THAT IT IS NECESSARY TO CONCEAL THE IDENTITY OF MANY AUTOMOBILES USED IN INVESTIGATIVE WORK. THESE VEHICLES BEAR NO MARKINGS TO SHOW THAT THEY ARE GOVERNMENT PROPERTY, AND CARE IS TAKEN TO PREVENT THAT FACT FROM BECOMING KNOWN TO PERSONS WHO MIGHT BE SUBJECT TO INVESTIGATION. THE PARKING OF SUCH AUTOMOBILES IN SPACES RESERVED FOR OFFICIAL VEHICLES WOULD BE OUT OF THE QUESTION.

A NUMBER OF PRIOR DECISIONS OF OUR OFFICE HAVE HELD THAT METER OR OTHER FEES IMPOSED BY VARIOUS MUNICIPALITIES FOR PARKING ON A PUBLIC STREET ARE NOT APPLICABLE TO VEHICLES OWNED BY THE FEDERAL GOVERNMENT. SEE 34 COMP. GEN. 417; 26 ID. 397; AND 18 ID. 151. CF. 32 COMP. GEN. 409 AND 30 ID. 173. WE STATED IN 18 COMP. GEN. 151, ON PAGE 153, THAT:

WHETHER THE PARKING METER FEE PRESCRIBED IN THE PORTLAND CITY ORDINANCE BE REGARDED AS A TAX OR AS A LICENSE FEE INCIDENT TO THE EXERCISE OF THE POLICE POWER, THE IMPOSITION OF THE FEE OR ANY FEE IN LIEU THEREOF UPON THE UNITED STATES RAISES A FUNDAMENTAL QUESTION AS TO THE RELATIONS BETWEEN THE STATE, ACTING THROUGH THE CITY, AND THE FEDERAL GOVERNMENT. THE CITY WOULD OF COURSE HAVE NO AUTHORITY TO TAX THE FUNCTIONS FO THE FEDERAL GOVERNMENT WITHOUT ITS CONSENT. MCCULLOCH V. MARYLAND, 4 WHEAT. 316. IF IT BE CONSIDERED THAT IT IS THE POLICE POWER WHICH IS BEING EXERCISED HERE, THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT DEFINITIONS OF THE POLICE POWER OF THE STATE MUST BE TAKEN SUBJECT TO THE CONDITION THAT THE STATE CANNOT, IN ITS EXERCISE, FOR ANY PURPOSE WHATEVER, ENCROACH UPON THE POWERS OF THE GENERAL GOVERNMENT, OR RIGHTS GRANTED OR SECURED BY THE SUPREME LAW OF THE LAND. NEW ORLEANS GAS CO. V. LOUISIANA LIGHT CO., 115 U.S. 50; AND THAT FEDERAL OFFICERS WHO ARE DISCHARGING THEIR DUTIES IN A STATE, AND ENGAGED IN SUPERINTENDING THE INTERNAL MANAGEMENT OF A FEDERAL INSTITUTION, UNDER LAWFUL DIRECTION AND WITH THE APPROVAL OF CONGRESS ARE NOT SUBJECT TO THE JURISDICTION OF THE STATE IN REGARD TO THOSE VERY MATTERS OF ADMINISTRATION THUS APPROVED BY FEDERAL AUTHORITY. OHIO V. THOMAS, 173 U.S. 276.

IN JOHNSON V. MARYLAND, 254 U.S. 51, IT WAS HELD THAT THE STATE OF MARYLAND HAD NO POWER TO REQUIRE AN EMPLOYEE OF THE FEDERAL GOVERNMENT TO OBTAIN A LICENSE AND PAY A FEE THEREFOR AS A PREREQUISITE TO DRIVING A GOVERNMENT-OWNED VEHICLE IN THE STATE. SEE, ALSO, HUNT V. UNITED STATES, 278 U.S. 96. THE TWO CASES JUST REFERRED TO ARE CITED BY THE SUPREME COURT IN ARIZONA V. CALIFORNIA ET AL., 283 U.S. 423, 451, AS AUTHORITY FOR THE PROPOSITION THAT THE UNITED STATES MAY PERFORM ITS FUNCTIONS WITHOUT CONFORMING TO THE POLICE REGULATIONS OF A STATE.

WE HAVE NOT FOUND ANY COURT DECISIONS DETERMINING THE LIABILITY OF THE UNITED STATES FOR PARKING METER FEES NOR WERE ANY SUCH DECISIONS CITED IN THE LETTER OF JULY 18. HENCE, IN THE ABSENCE OF LEGISLATION BY THE CONGRESS PERMITTING OR REQUIRING THE PAYMENT OF SUCH FEES, THE DECISIONS CITED MUST BE HELD TO BE STILL APPLICABLE. IT MAY BE POINTED OUT, HOWEVER, THAT THE DECISIONS DO NOT CONTEMPLATE GENERALLY THAT THE EMPLOYEES WILL PAY THE PARKING FEES BUT RATHER, WHERE THE GOVERNMENT CAR IS PLAINLY MARKED AS SUCH, THAT THE FEES BE NOT PAID ON THE GROUND THAT THEY CONSTITUTE AN UNAUTHORIZED ATTEMPT BY THE STATE OR MUNICIPALITY TO TAX OR BURDEN THE FEDERAL GOVERNMENT IN CARRYING OUT ITS FUNCTIONS AND ARE NOT PROPERLY ASSESSABLE AGAINST THE UNITED STATES OR FOR PAYMENT BY IT. IF THE FEES IN SUCH CASES ARE NOT PROPERLY PAYABLE BY THE UNITED STATES, IT WOULD NATURALLY FOLLOW THAT AN EMPLOYEE WHO PAYS SUCH FEES IS NOT ENTITLED TO REIMBURSEMENT SINCE THE EXPENSE IS NOT PROPERLY FOR PAYMENT BY THE UNITED STATES IN THE FIRST INSTANCE.

HOWEVER, THOSE DECISIONS CONTEMPLATED THE USE OF VEHICLES READILY IDENTIFIABLE AS BEING GOVERNMENT-OWNED AND HENCE IN A POSITION TO CLAIM THE IMMUNITY THEREIN RELIED UPON. A SOMEWHAT DIFFERENT SITUATION APPEARS TO OBTAIN IN THE CASE OF UNIDENTIFIED VEHICLES BEARING NEITHER FEDERAL LICENSE PLATES NOR OTHER MARKINGS TO INDICATE THEY ARE PROPERTY OF THE UNITED STATES. IT IS OBVIOUS THAT AN AUTOMOBILE IN NO WAY IDENTIFIED AS BEING GOVERNMENT-OWNED COULD NOT CLAIM THE IMMUNITY WITHOUT DISCLOSING ITS IDENTITY AND DESTROYING ITS USEFULNESS AS A VEHICLE FOR USE IN INVESTIGATIVE WORK. SUCH A VEHICLE, IF PARKED IN A METERED PARKING PLACE WITHOUT DEPOSITING THE REQUIRED COIN WOULD UNDOUBTEDLY BE TREATED BY THE LOCAL POLICE IN THE SAME MANNER AS ANY PRIVATE AUTOMOBILE SO PARKED--- THAT IS, TICKETED OR IMPOUNDED AS THE LOCAL POLICE REGULATIONS REQUIRE. WHILE THE ADMINISTRATIVE OFFICE INVOLVED CONCEIVABLY COULD HAVE THE TICKET CANCELLED OR THE AUTOMOBILE RELEASED WITHOUT CHARGE BY REVEALING THE IDENTITY OF THE AUTOMOBILE TO POLICE OFFICIALS, IT IS OBVIOUS THAT SUCH PROCEDURE WOULD BE AWKWARD AND TIME CONSUMING AND THE DELAY OCCASIONED THEREBY MIGHT BE FATAL TO THE INVESTIGATION BEING CONDUCTED BY THE DRIVER OF THE AUTOMOBILE. MOREOVER, SUCH PROCEDURE WOULD JEOPARDIZE THE SECRET OF THE AUTOMOBILE'S IDENTITY AND THE COST THEREOF TO THE GOVERNMENT WOULD FAR EXCEED THE AMOUNT REQUIRED TO BE DEPOSITED IN THE METER.

ACCORDINGLY, WHERE IT IS NECESSARY TO CONCEAL THE IDENTITY OF GOVERNMENT- OWNED VEHICLES USED IN INVESTIGATIVE WORK AND AN ATTEMPT TO INSIST UPON THE GOVERNMENT'S IMMUNITY TO PARKING METER FEES IN THE CASE OF SUCH UNMARKED VEHICLES WOULD JEOPARDIZE THE SECRET OF THEIR IDENTITY AND HINDER THE INVESTIGATIVE WORK CONDUCTED THEREWITH, METER FEES FOR PARKING SUCH VEHICLES ON PUBLIC STREETS IN THE COURSE OF AN OFFICIAL INVESTIGATION MAY BE CONSIDERED AS A NECESSARY COST OF THE INVESTIGATION. HENCE, A GOVERNMENT INVESTIGATIVE EMPLOYEE WHO DEPOSITS HIS OWN COIN IN A PARKING METER TO PARK AN UNMARKED GOVERNMENT OWNED VEHICLE ON A PUBLIC STREET IN THE COURSE OF AN OFFICIAL INVESTIGATION MAY BE REIMBURSED FOR THE COST THEREOF. CF. B-123196, DECEMBER 16, 1955, TO MR. G. W. CUNNINGHAM, AUTHORIZED CERTIFYING OFFICER, BUREAU OF NARCOTICS.

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