B-145677, JULY 7, 1961, 41 COMP. GEN. 16

B-145677, JULY 7, 1961, 41 COMP. GEN. 16

HIGHWAYS - FEDERAL AID TO THE STATES - OVERAPPORTIONMENTS - RECOVERY - ADJUSTMENTS THE FAILURE OF THE SECRETARY OF COMMERCE TO APPORTION FEDERAL-AID HIGHWAY FUNDS IN ACCORDANCE WITH THE FORMULA SPECIFIED IN 23 U.S.C. 104 (B), WITH THE RESULT THAT SOME STATES RECEIVED FUNDS IN EXCESS OF THE AMOUNT THEY WERE ENTITLED TO RECEIVE AND OTHERS RECEIVED LESS THAN THEIR ENTITLEMENT, MUST BE REGARDED AS AN ACT IN EXCESS OF STATUTORY AUTHORITY WHICH NEITHER BINDS NOR ESTOPS THE GOVERNMENT; THEREFORE, SINCE THE GOVERNMENT MAY NOT CHARGE APPROPRIATED MONEYS WITH ANY AMOUNT IN EXCESS OF THE AUTHORIZED APPORTIONMENT, SUCH EXCESS AMOUNTS MUST BE RECOVERED FROM THE STATES AND WHERE ADJUSTMENTS ARE EFFECTED TO RECOVER THE EXCESS AMOUNTS WHICH WERE MADE AT THE EXPENSE OF OTHER STATES, THE RIGHTS OF ALL THE STATES, AS WELL AS THE FEDERAL GOVERNMENT, REQUIRE THAT ALL APPORTIONMENTS BE APPROPRIATELY ADJUSTED.

TO THE SECRETARY OF COMMERCE, JULY 7, 1961:

BY LETTER OF APRIL 20, 1961, THE GENERAL COUNSEL OF YOUR DEPARTMENT REQUESTED THE OPINION OF THIS OFFICE AS TO WHETHER YOU MAY LEGALLY MAKE ADJUSTMENTS IN THE NEXT APPORTIONMENT OF FEDERAL-AID PRIMARY AND SECONDARY HIGHWAY SYSTEM FUNDS TO CORRECT ERRONEOUS APPORTIONMENTS OF SUCH FUNDS IN PRIOR YEARS.

THE FACTS IN THE MATTER MAY BE SUMMARIZED AS FOLLOWS:

SECTION 104 (B) OF TITLE 23, U.S. CODE, REQUIRES THE APPORTIONMENT OF PRIMARY AND SECONDARY FEDERAL-AID HIGHWAY FUNDS TO THE STATES IN ACCORDANCE WITH A SPECIFIED FORMULA WHICH TAKES INTO ACCOUNT A STATE'S AREA, POPULATION, AND TOTAL RURAL AND STAR ROUTE MILEAGE. SECTION 104 (B) PROVIDES IN PART THAT:

(B) ON OR BEFORE JANUARY 1 NEXT PRECEDING THE COMMENCEMENT OF EACH FISCAL YEAR * * * THE SECRETARY * * * SHALL APPORTION THE * * * SUMS AUTHORIZED TO B APPROPRIATED FOR EXPENDITURE * * * FOR THAT FISCAL YEAR, AMONG THE SEVERAL STATES IN THE FOLLOWING MANNER:

(1) FOR THE FEDERAL-AID PRIMARY SYSTEM:

* * * ONE-THIRD IN THE RATIO WHICH THE MILEAGE OF RURAL DELIVERY ROUTES AND STAR ROUTES IN EACH STATE BEARS TO THE TOTAL MILEAGE OF RURAL DELIVERY AND STAR ROUTES IN ALL THE STATES AT THE CLOSE OF THE NEXT PRECEDING FISCAL YEAR, AS SHOWN BY A CERTIFICATE OF THE POSTMASTER GENERAL, WHICH HE IS DIRECTED TO MAKE AND FURNISH ANNUALLY TO THE SECRETARY. * * *

(2) FOR THE FEDERAL-AID SECONDARY SYSTEM:

* * * ONE-THIRD IN THE RATIO WHICH THE MILEAGE OF RURAL DELIVERY AND STAR ROUTES, CERTIFIED AS ABOVE PROVIDED, IN EACH STATE BEARS TO THE TOTAL MILEAGE OF RURAL DELIVERY AND STAR ROUTES IN ALL THE STATES. * * *

THE BUREAU OF PUBLIC ROADS, IN APPORTIONING FEDERAL-AID PRIMARY AND SECONDARY HIGHWAY FUNDS TO THE STATES FOR FISCAL YEARS 1957 THROUGH 1961, USED MILEAGE DATA COMPILED BY THE POST OFFICE DEPARTMENT AS OF THE CLOSE OF THE SECOND FISCAL YEAR PRECEDING THE DATE OF APPORTIONMENT RATHER THAN AS OF THE CLOSE OF THE NEXT PRECEDING FISCAL YEAR AS REQUIRED BY SECTION 104 (B). THIS PRACTICE RESULTED IN MOST STATES RECEIVING APPORTIONMENTS FOR THESE YEARS IN AMOUNTS EITHER LESS THAN OR IN EXCESS OF THE AMOUNTS THEY WOULD HAVE RECEIVED HAD THE BUREAU FOLLOWED THE APPORTIONMENT FORMULA SPECIFIED IN THE LAW. TWENTY-SIX STATES RECEIVED APPORTIONMENTS TOTALING ABOUT $8.5 MILLION IN EXCESS OF THE AMOUNT THEY WERE ENTITLED TO RECEIVE WHILE 19 STATES AND PUERTO RICO RECEIVED APPORTIONMENTS TOTALING ABOUT $8.5 MILLION LESS THAN THEY SHOULD HAVE RECEIVED. THE APPORTIONMENTS TO FIVE STATES AND THE DISTRICT OF COLUMBIA WERE NOT AFFECTED. DEVIATION BY THE BUREAU FROM THE EXPRESS PROVISIONS OF LAW HAS WORKED A SUBSTANTIAL INEQUITY AGAINST EIGHT OF THE STATES WHICH EACH RECEIVED APPORTIONMENTS FOR THE PERIOD IN QUESTION IN AMOUNTS OF FROM ?5 MILLION TO $1.5 MILLION LESS THAN THEY WERE ENTITLED TO RECEIVE.

YOUR GENERAL COUNSEL POINTS OUT THAT:

SECTION 101 (B) OF TITLE 23, U.S.C. DECLARES IT TO BE IN THE NATIONAL INTEREST TO ACCELERATE THE CONSTRUCTION OF THE FEDERAL-AID HIGHWAY SYSTEMS AND FURTHER DECLARES THAT THE PROMPT AND EARLY COMPLETION OF THE NATIONAL SYSTEM OF INTERSTATE AND DEFENSE HIGHWAYS IS ESSENTIAL TO THE NATIONAL INTEREST AND IS ONE OF THE MOST IMPORTANT OBJECTIVES OF THE LAW. FURTHERANCE OF THESE DECLARATIONS, SECTION 104 (B) (5) REQUIRES THAT APPORTIONMENTS OF FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM FOR THE FISCAL YEARS 1960 THROUGH 1969 SHALL BE MADE ON A DATE AS FAR IN ADVANCE OF THE BEGINNING OF THE FISCAL YEAR FOR WHICH AUTHORIZED AS PRACTICABLE. IN VIEW OF THESE STATUTORY PROVISIONS, FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM BY THE FEDERAL AID HIGHWAY ACT OF 1956 HAVE ORDINARILY BEEN APPORTIONED TO THE STATES DURING JUNE, JULY, OR AUGUST PRECEDING THE FISCAL YEAR FOR WHICH THE FUNDS WERE AUTHORIZED. THE LATEST DATE ON WHICH SUCH FUNDS HAVE BEEN APPORTIONED WAS OCTOBER 9, AND THIS APPORTIONMENT HAD TO BE DELAYED UNTIL CONGRESSIONAL ACTION ON HIGHWAY LEGISLATION PROVIDING ADDITIONAL FUNDS WAS RESOLVED, SINCE THE AMOUNT OF FUNDS WHICH COULD BE APPORTIONED TO THE STATES WAS DEPENDENT ON THE AMOUNT OF ADDITIONAL REVENUES PROVIDED.

ALTHOUGH THE LAW DOES NOT REQUIRE THAT FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM AND FUNDS AUTHORIZED FOR THE FEDERAL-AID PRIMARY AND SECONDARY SYSTEMS AND THEIR EXTENSIONS IN URBAN AREAS BE APPORTIONED AT THE SAME TIME, IT HAS BEEN THE PRACTICE TO APPORTION ALL SUCH FUNDS UPON THE SAME DATE. THIS PRACTICE IS CONSIDERED TO BE VERY DESIRABLE, AND THE MOST NEARLY IN ACCORD WITH THE INTENT OF THE CONGRESS, SINCE EARLY APPORTIONMENT OF ALL THE AUTHORIZED FUNDS ENABLES THE STATES TO PROCEED EXPEDITIOUSLY WITH THE DEVELOPMENT OF BALANCED PLANS AND PROGRAMS FOR THE IMPROVEMENT OF THEIR HIGHWAY SYSTEMS TO BE FINANCED WITH FEDERAL FUNDS.

WITH RESPECT TO THE QUESTION PRESENTED--- WHETHER IN THE NEXT APPORTIONMENT OF FEDERAL-AID HIGHWAY FUNDS APPROPRIATE ADJUSTMENTS COULD BE MADE TO OFFSET THE DISCREPANCIES WHICH RESULTED THROUGH USE OF IMPROPER MILEAGE STATISTICS IN PRIOR YEARS--- THE GENERAL COUNSEL SETS FORTH THREE REASONS IN SUPPORT OF A NEGATIVE ANSWER:

1. THE STATUTE REQUIRES THAT APPORTIONMENT BE MADE ON OR BEFORE JANUARY 1 NEXT PRECEDING THE COMMENCEMENT OF THE FISCAL YEAR FOR WHICH THE FUNDS WERE AUTHORIZED AND IS SILENT AS TO THE SECRETARY'S AUTHORITY TO ADJUST AN APPORTIONMENT AFTER THAT DATE.

2. ANY ADJUSTMENT MADE IN A PARTICULAR YEAR WOULD CONSTITUTE A DEPARTURE FROM THE STATUTORY APPORTIONMENT FORMULA FOR THAT YEAR.

3. SINCE THE PERIOD OF AVAILABILITY FOR OBLIGATION OF FUNDS AUTHORIZED FOR CERTAIN OF THE FISCAL YEARS IN QUESTION HAS EXPIRED, ADJUSTMENTS AT THIS DATE MIGHT HAVE THE EFFECT OF EXTENDING THE PERIOD OF AVAILABILITY OF SUCH FUNDS CONTRARY TO LAW.

CONCERNING THE THIRD REASON SET FORTH, IT HAS BEEN THE PRACTICE OF THE BUREAU OF PUBLIC ROADS TO CONSIDER THAT APPORTIONMENTS HAVE NOT LAPSED WHEN IT IS DETERMINED, AT THE CLOSE OF A FISCAL YEAR, THAT THE CUMULATIVE SUM OF FEDERAL AGREEMENTS WITH STATES FOR SHARING IN ROAD CONSTRUCTION COSTS IS AT LEAST EQUAL TO THE CUMULATIVE SUM OF APPORTIONMENTS FOR THAT PURPOSE AT THE CLOSE OF A FISCAL YEAR TWO YEARS BEFORE. THIS CALCULATION EMPLOYS THE "FIRST-IN, FIRST-OUT" BASIS OF ACCOUNTING AND DISREGARDS THE FACT THAT APPORTIONMENTS HAVE FISCAL YEAR IDENTITIES. WHILE THE BUREAU MAINTAINS ACCOUNTS FOR EACH STATE BY TYPES OF HIGHWAY SYSTEM, SUCH ACCOUNTS ARE ON A CUMULATIVE BASIS OF APPORTIONMENTS AND NOT ON AN INDIVIDUAL FISCAL YEAR BASIS. BECAUSE THE FUNDS OF ONE YEAR CANNOT BE DISTINGUISHED FROM THOSE OF ANOTHER, THERE IS NO ALTERNATIVE TO CONSIDERING, AS THE BUREAU DOES, THAT PROJECT AGREEMENTS WITH STATES ARE ALWAYS APPLICABLE TO THE OLDEST OPEN APPORTIONED FUNDS. IN THESE CIRCUMSTANCES, EXISTING PROJECT AGREEMENT AMOUNTS WOULD BE APPLIED AGAINST UNOBLIGATED BALANCES CREATED BY THE PROPOSED ADJUSTMENT OF APPORTIONMENTS AND NO AUTHORIZATIONS WOULD LAPSE AS LONG AS THE CUMULATIVE SUM OF AGREEMENTS EXCEEDS THE CUMULATIVE SUM OF EXPIRED APPORTIONMENTS. UNDERSTAND THAT WITH THE EXCEPTION OF TWO INSTANCES WHICH OCCURRED ABOUT 30 YEARS AGO, NO FUNDS APPORTIONED TO STATES HAVE LAPSED. IN THESE TWO INSTANCES, THE LAPSED FUNDS REVERTED TO THE GENERAL FUND OF THE TREASURY IN ACCORDANCE WITH THE LAW EXISTING AT THAT TIME. WE, THEREFORE, DO NOT BELIEVE THAT THE QUESTION OF A POSSIBLE EXTENSION OF THE PERIOD OF AVAILABILITY OF APPORTIONMENTS TO BE MADE THROUGH THE ADJUSTMENTS INVOLVED PRESENTS ANY REAL PROBLEM AND, UNDER THE CIRCUMSTANCES, IS ONE WHICH NEED NOT BE CONSIDERED.

AND SO FAR AS THE FIRST TWO REASONS ARE CONCERNED--- THAT THE STATUTE IS SILENT WITH RESPECT TO ADJUSTMENTS OF APPORTIONMENTS AND THAT ANY ADJUSTMENT MADE IN A GIVEN YEAR WOULD CONSTITUTE A DEPARTURE FROM THE STATUTORY FORMULA FOR THAT YEAR--- WE CANNOT AGREE THAT THEY ADEQUATELY SUPPORT THE CONCLUSION SUGGESTED. SECTION 104 (B) CHARGES THE SECRETARY OF COMMERCE WITH THE PERFORMANCE OF A MINISTERIAL DUTY. UNDER THE STATUTE THE SECRETARY HAS NO DISCRETIONARY FUNCTION BUT MUST PERFORM HIS DUTY IN EXACT COMPLIANCE WITH THE TERMS OF THE ACT. WHERE HE HAS FAILED TO FOLLOW THE STATUTORY FORMULA FOR APPORTIONING FUNDS, THROUGH ERROR OR OTHERWISE, WE DO NOT BELIEVE A STATUTE IS REQUIRED TO AUTHORIZE HIM TO CORRECT THE MISAPPORTIONMENT MADE. TO THE EXTENT THAT ANY STATE HAS RECEIVED FUNDS IN EXCESS OF THE AMOUNT AUTHORIZED FOR APPORTIONMENT TO IT, THE AMOUNT OF THE OVER-APPORTIONMENT MUST BE RECOVERED. THE FACT THAT THE DEADLINE FOR APPORTIONING FUNDS HAS PASSED DOES NOT AFFECT THE STATE'S LIABILITY FOR RETURN OF FUNDS APPORTIONED TO IT IN EXCESS OF THE AMOUNT AUTHORIZED BY THE STATUTE. IT IS FUNDAMENTAL THAT WHERE AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM, HIS ACT, FROM A LEGAL STANDPOINT, IS NO LONGER AN ACT OF THE GOVERNMENT. THE UNDERWRITER, 6 F.2D 937, 940. IT FOLLOWS THAT SINCE THE SECRETARY OF COMMERCE WAS AUTHORIZED TO APPORTION FEDERAL-AID HIGHWAY FUNDS ONLY TO THE EXTENT PROVIDED IN THE GOVERNING STATUTE, THERE IS NO AUTHORITY FOR CHARGING APPROPRIATED MONEYS WITH ANY AMOUNT IN EXCESS OF SUCH AUTHORIZED APPORTIONMENTS. THE UNITED STATES IS NEITHER BOUND NOR ESTOPPED BY THE ACTS OF ITS OFFICERS AND AGENTS IN ENTERING INTO AN AGREEMENT OR ARRANGEMENT TO DO OR CAUSE TO BE DONE WHAT THE LAW DOES NOT SANCTION OR PERMIT. WILBUR NATIONAL BANK OF ONEONTA, ADMINISTRATOR V. UNITED STATES, 294 U.S. 120, 123. AND ANY ADJUSTMENT BY DEDUCTION FROM A CURRENT APPORTIONMENT TO REFLECT EXCESSIVE APPORTIONMENTS MADE IN THE PAST CANNOT PROPERLY BE CONSIDERED A DEVIATION FROM THE STATUTORY FORMULA PRESCRIBED FOR COMPUTING THE CURRENT APPORTIONMENT, SINCE THE ADJUSTMENT MERELY CONSTITUTES A CORRECTION OF ERRORS MADE IN PRIOR YEARS.

WHILE ADJUSTMENTS ARE REQUIRED WITH RESPECT TO APPORTIONMENTS OF FUNDS IN EXCESS OF AMOUNTS AUTHORIZED, THERE REMAINS FOR RESOLUTION THE QUESTION WHETHER ADJUSTMENTS MAY PROPERLY BE MADE IN THOSE INSTANCES WHERE FAILURE TO FOLLOW THE STATUTORY PRESCRIPTION RESULTED IN APPORTIONMENTS THAT WERE LESS THAN THOSE CALLED FOR. HERE, IT WOULD NOT APPEAR THAT A STATE WOULD HAVE STANDING AGAINST THE FEDERAL GOVERNMENT FOR A SHORTAGE IN APPORTIONMENT SUCH AS THE FEDERAL GOVERNMENT HAS AGAINST A STATE FOR AN OVERAPPORTIONMENT. HOWEVER, IT MUST BE RECOGNIZED THAT THE RIGHTS OF ALL THE STATES AND OF THE FEDERAL GOVERNMENT ARE INTERTWINED IN THAT EACH IS ENTITLED TO EXPECT THAT THE FUNDS BEING APPORTIONED SHALL BE DIVIDED IN STRICT ACCORDANCE WITH STATUTORY REQUIREMENTS. IT IS, THEREFORE, OUR OPINION THAT WHERE REQUIRED ADJUSTMENTS ARE EFFECTED TO RECOVER FROM STATES EXCESS APPORTIONMENTS WHICH WERE MADE AT THE EXPENSE OF OTHER STATES WHO RECEIVED APPORTIONMENTS IN CORRESPONDINGLY LESSER AMOUNTS, THAT THE APPORTIONMENTS OF ALL OF THE STATES INVOLVED MUST BE APPROPRIATELY ADJUSTED. OTHERWISE, THE WILL OF THE CONGRESS IN ESTABLISHING THE STATUTORY BASIS FOR APPORTIONMENT OF FUNDS WOULD NOT BE CARRIED OUT.