B-87618, SEPTEMBER 8, 1949, 29 COMP. GEN. 120

B-87618, SEPTEMBER 8, 1949, 29 COMP. GEN. 120

STATES - SUBDIVISIONS - SEWER SERVICE CHARGE - GOVT. LIABILITY A MONTHLY SEWER SERVICE CHARGE IMPOSED BY MUNICIPAL ORDINANCE UPON ALL IMPROVED PROPERTY WITHIN THE CORPORATE LIMITS HAVING SEWER CONNECTIONS WITH THE MUNICIPAL SEWAGE DISPOSAL SYSTEM IS TO BE REGARDED, INSOFAR AS THE UNITED STATES IS CONCERNED, AS A RENTAL CHARGE FOUNDED ON CONTRACT, RATHER THAN AS A TAX, FOR THE PRIVILEGE AFFORDED THE GOVERNMENT OF EMPTYING SEWAGE FROM ITS PUBLIC BUILDINGS INTO THE MUNICIPAL SEWAGE SYSTEM AND, AS SUCH, PAYMENT MAY BE MADE ON A QUANTUM MERUIT BASIS (THE ORDINANCE RATE) FOR SEWAGE SERVICE FURNISHED TO PUBLIC BUILDINGS WITHIN THE CORPORATE LIMITS SO LONG AS THE GOVERNMENT AVAILS ITSELF OF THE SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 8, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1949, WITH ENCLOSURES, REQUESTING IN EFFECT A DECISION AS TO WHETHER THE CITY OF ALBUQUERQUE, NEW MEXICO, IS ENTITLED TO BE PAID THE SEWER SERVICE CHARGE IMPOSED BY CITY COMMISSION ORDINANCE NO. 620, EFFECTIVE DECEMBER 1, 1948, IN THE CASE OF CERTAIN BUILDINGS OF THE UNITED PUEBLOS INDIAN AGENCY.

IT IS UNDERSTOOD THAT SOME OF THE BUILDINGS ARE WITHIN THE CITY WHILE OTHERS ARE WITHOUT THE CORPORATE LIMITS; THAT SEWER SERVICE PREVIOUSLY WAS FURNISHED TO THE BUILDINGS BY THE CITY OF ALBUQUERQUE WITHOUT ANY CHARGE; AND THAT THE CITY IS DEMANDING PAYMENT AT THE RATES PRESCRIBED IN THE ORDINANCE WITH RESPECT TO THE SERVICE PROVIDED ALL OF THE BUILDINGS FROM DECEMBER 1, 1948.

THE ORDINANCE IN QUESTION IMPOSES UPON ALL IMPROVED PREMISES WITHIN THE CITY OF ALBUQUERQUE HAVING SEWER CONNECTIONS A MONTHLY SERVICE CHARGE AS FOLLOWS: A MINIMUM CHARGE OF 50 CENTS TO INCLUDE THE FIRST FOUR SEWER OUTLETS ON THE PREMISES, 10 CENTS EACH FOR THE NEXT TWENTY ONE SEWER OUTLETS, AND 5 CENTS FOR EACH ADDITIONAL OUTLET. ALSO, THE ORDINANCE PROVIDES THAT THE CHARGES SHALL BE A PART OF THE BILLS RENDERED MONTHLY BY THE CITY WATER DEPARTMENT; THAT DELINQUENT CHARGES SHALL BE ENFORCEABLE AND COLLECTIBLE AS IN THE CASE OF DELINQUENT WATER BILLS; AND THAT THE CHARGES SHALL CONSTITUTE A LIEN ON A PARITY WITH WATER LIENS AND SUPERIOR TO ALL OTHER LIENS EXCEPT GENERAL PROPERTY TAXES.

IT IS TRUE, AS HAS BEEN POINTED OUT IN NUMEROUS DECISIONS OF THIS OFFICE, THAT AN ASSESSMENT LEVIED BY A MUNICIPALITY AGAINST REAL PROPERTY TO COVER A BENEFIT ENURING TO SUCH LAND IN CONSEQUENCE OF A LOCAL IMPROVEMENT IS AN INVOLUNTARY EXACTION AND, AS SUCH, IS A TAX WHICH THE UNITED STATES MAY NOT BE REQUIRED TO PAY. BUT IT IS EQUALLY WELL SETTLED THAT A CHARGE BY A STATE OR POLITICAL SUBDIVISION THEREOF FOR SERVICES RENDERED TO THE FEDERAL GOVERNMENT IS IN NO SENSE A TAX (SEE 20 COMP. GEN. 748, AND CASES CITED THEREIN); AND AS WAS SAID BY THE SUPREME COURT OF OHIO IN THE CASE OF STATE EX REL GORDON V. TAYLOR, ET AL., 79 N.E. 127, 131,"IT IS WELL ESTABLISHED THAT CHARGES FOR SEWER SERVICES OR SO-CALLED RENTAL CHARGES ARE NEITHER TAXES NOR ASSESSMENTS.'

MOREOVER, IT IS TO BE OBSERVED THAT IN 11 COMP. DEC. 629, WHERE IT WAS HELD THAT THE UNITED STATES WAS NOT LIABLE FOR THE AMOUNT OF AN ASSESSMENT LEVIED BY A MUNICIPALITY FOR THE CONSTRUCTION OF A SEWER ALONG A STREET CONTIGUOUS TO GOVERNMENT PROPERTY, IT WAS SAID: "IF CLAIM WERE MADE FOR PAYMENT FOR THE PRIVILEGE OF USING THE SEWER OF THE CITY A DIFFERENT QUESTION WOULD BE PRESENTED.' AND IN 9 COMP. GEN. 41, AS WELL AS IN OTHER SUBSEQUENT DECISIONS OF THIS OFFICE, IT WAS HELD THAT PAYMENT WAS AUTHORIZED OF THE AMOUNT CHARGED THE UNITED STATES BY A MUNICIPALITY FOR THE PRIVILEGE OF CONNECTING THE SEWERS OF A GOVERNMENT BUILDING WITH A CITY SEWAGE SYSTEM.

HERE, IT DOES NOT APPEAR THAT THE SITUATION PRESENTED PROPERLY MAY BE VIEWED AS AN EFFORT ON THE PART OF THE CITY OF ALBUQUERQUE TO TAX PROPERTY BELONGING TO THE UNITED STATES. ON THE CONTRARY, THE SERVICE CHARGE PRESCRIBED BY THE ORDINANCE IN QUESTION IS, IN REALITY, NOTHING MORE, SO FAR AS THE UNITED STATES IS CONCERNED, THAN A MONTHLY RENTAL FOR THE PRIVILEGE AFFORDED TO THE GOVERNMENT OF EMPTYING THE SEWAGE FROM ITS IMPROVED PROPERTY WITHIN THE CITY INTO THE MUNICIPAL SEWAGE DISPOSAL SYSTEM. OBVIOUSLY, THE UNITED STATES IS UNDER NO LEGAL COMPULSION TO AVAIL ITSELF OF THE MUNICIPAL SERVICE BUT WHEN IT DOES SO, WITH KNOWLEDGE OF THE RATES CHARGED THEREFOR, THE GOVERNMENT, BY IMPLICATION, AGREES TO COMPENSATE THE MUNICIPALITY FOR SUCH SERVICE AND ITS OBLIGATION RESTS UPON CONTRACT RATHER THAN UPON AN EXERCISE OF THE TAXING POWER.

CONSEQUENTLY, SINCE THERE IS NOTHING TO INDICATE THAT THE RATE PRESCRIBED BY THE ORDINANCE HERE INVOLVED IS UNREASONABLE, AND IT IS ASSUMED THAT THE SEWER OUTLETS ON THE PROPERTY ARE ACTUALLY IN USE, I HAVE TO ADVISE THAT THE CITY OF ALBUQUERQUE IS ENTITLED TO BE PAID ON A QUANTUM MERUIT BASIS FOR THE SEWAGE SERVICE FURNISHED TO THE BUILDINGS OF THE UNITED PUEBLOS INDIAN AGENCY LOCATED WITHIN THE CORPORATE LIMITS SO LONG AS THE GOVERNMENT AVAILS ITSELF OF THE SERVICE, AND THAT THE RATE SPECIFIED IN THE ORDINANCE MAY BE ACCEPTED AS A PROPER MEASURE OF THE VALUE OF THE SERVICE.

HOWEVER, IN VIEW OF THE FACT THAT THE ORDINANCE PURPORTS TO COVER ONLY SUCH IMPROVED PREMISES AS ARE WITHIN THE CITY OF ALBUQUERQUE, IT DOES NOT APPEAR, ON THE BASIS OF THE PRESENT RECORD, THAT PAYMENT IS REQUIRED TO BE MADE TO THE MUNICIPALITY FOR THE SEWER SERVICE PROVIDED TO ANY BUILDINGS OF THE UNITED PUEBLOS INDIAN AGENCY LOCATED WITHOUT THE CORPORATE LIMITS.