B-56655, DECEMBER 2, 1946, 26 COMP. GEN. 382

B-56655, DECEMBER 2, 1946, 26 COMP. GEN. 382

RIGHT OF GOVERNMENT TO SERVICES OF VOLUNTEER FIRE DEPARTMENT THE GOVERNMENT, WITHOUT REGARD TO THE PAYMENT OF THE FIRE TAX ASSESSED AGAINST PRIVATE PROPERTY OWNERS, IS ENTITLED TO THE BENEFITS OF PROTECTION AFFORDED BY A VOLUNTEER FIRE DEPARTMENT SERVING A LEGISLATIVELY DEFINED DISTRICT WITHIN A COUNTY ( MONTGOMERY COUNTY, MARYLAND) THAT SUPPORTS THE DEPARTMENT BY FIRE-TAX ASSESSMENTS UPON PROPERTY LOCATED IN THE DISTRICT, WHICH DEPARTMENT ACTS FOR THE COUNTY IN THE PERFORMANCE OF THE GOVERNMENTAL FUNCTION OF AFFORDING FIRE PROTECTION, AND, THEREFORE, APPROPRIATED FUNDS MAY NOT BE USED TO PAY SUCH VOLUNTEER FIRE DEPARTMENT FOR STAND-BY SERVICE. 24 COMP. GEN. 599, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 2, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1946, AS FOLLOWS:

THE NAVY DEPARTMENT PROPOSES TO ENTER INTO A CONTRACT WITH THE CABIN JOHN ( MARYLAND) VOLUNTEER FIRE DEPARTMENT FOR STANDBY SERVICE AT AN ANNUAL MINIMUM RATE OF $200, WITH $50 ADDITIONAL FOR EACH EMERGENCY RESPONSE TO FIRE ALARMS FROM THE MODEL BASIN IN EXCESS OF FOUR.

THE DAVID TAYLOR MODEL BASIN IS LOCATED AT CARDEROCK, MARYLAND, ABOUT TWO MILES FROM NEAREST SETTLEMENT. DURING THE PAST WAR THERE WERE SUFFICIENT EMPLOYEES AT THE STATION TO PROVIDE A SMALL FIRE FIGHTING FORCE TWENTY- FOUR HOURS A DAY, WITH THE EXCEPTION OF OCCASIONAL SUNDAYS. AT THE PRESENT TIME THERE IS ONLY A LIMITED NUMBER OF PERSONNEL MAKING UP THE SECURITY FORCE FROM 10000 TO 10800 DAILY AND OVER TWO-DAY WEEKENDS, REQUIRING MORE DEPENDENCE UPON THE CABIN JOHN FIRE DEPARTMENT FOR ADEQUATE PROTECTION. PAYMENT FOR ONLY THOSE SERVICES ACTUALLY RENDERED, IT IS FELT BY THE DIRECTOR OF THE DAVID TAYLOR MODEL BASIN, DOES NOT FAIRLY COMPENSATE FOR STANDBY SERVICES WHICH MUST BE MAINTAINED AT ALL TIMES. ALL PRIVATE PROPERTY OWNERS WITHIN THE AREA SERVED BY THE CABIN JOHN FIRE DEPARTMENT ARE REQUIRED TO PAYA FIRE TAX, PART OF WHICH GOES TO THE MAINTENANCE OF THE LOCAL FIRE-FIGHTING DEPARTMENT EQUIPMENT.

THE CURRENT NAVAL APPROPRIATION ACT, APPROVED 29 MAY 1945 ( PUBLIC LAW 62, 79TH CONGRESS), UNDER THE APPROPRIATION " MAINTENANCE, BUREAU OF SHIPS," PROVIDES FOR "THE EXPERIMENTAL MODEL BASIN, CARDEROCK, MARYLAND * * *" INCLUDING MAINTENANCE AND EQUIPMENT OF BUILDINGS AND GROUNDS AND APPURTENANCES. IT PROVIDES ALSO FOR "SERVICES, AT HOME AND ABROAD, UNDER THE COGNIZANCE OF THE BUREAU OF SHIPS" AND FOR "INCIDENTAL EXPENSES FOR NAVAL VESSELS, NAVY YARDS AND STATIONS, AND OTHER ACTIVITIES UNDER THE COGNIZANCE OF THE BUREAU OF SHIPS.'

YOUR DECISION IS REQUESTED AS TO WHETHER THE APPROPRIATION " MAINTENANCE, BUREAU OF SHIPS" IS AVAILABLE FOR PAYMENT FOR STANDBY SERVICE OF THE CABIN JOHN ( MARYLAND) VOLUNTEER FIRE DEPARTMENT UNDER CONTRACT AS HEREIN STATED.

IN 24 COMP. GEN. 599, INVOLVING A CLAIM FOR SERVICES RENDERED BY THE CITY OF DETROIT FIRE DEPARTMENT IN CONNECTION WITH A FIRE AT FORT WAYNE, DETROIT, IT WAS HELD THAT THE FEDERAL GOVERNMENT WAS UNDER NO LEGAL OBLIGATION TO PAY FOR SUCH SERVICES IN VIEW OF THE DUTY OF A MUNICIPALITY TO EXTINGUISH ALL FIRES WITHIN ITS LIMITS. IN OTHER WORDS, STATED GENERALLY, THE SAID DECISION HELD THAT THERE WAS NO AUTHORITY TO CHARGE APPROPRIATED FUNDS WITH THE COST OF FIRE PROTECTION OR FIRE-FIGHTING SERVICES IF THE GOVERNMENT ALREADY WERE LEGALLY ENTITLED THERETO. THIS SAME PRINCIPLE IS CONTAINED IN SEVERAL EARLIER DECISIONS OF THIS OFFICE ALTHOUGH THE FACTS IN THOSE CASES DID NOT PRECLUDE PAYMENT FOR SUCH SERVICES. SEE 3 COMP. GEN. 979; A-5970, NOVEMBER 19, 1924, A-15262, AUGUST 23, 1926; A-22069, MARCH 31, 1928.

IN THE INSTANT CASE, THE PROPOSAL TO PAY THE CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT FOR STAND-BY SERVICES APPARENTLY STEMS FROM THE FACT THAT THE FEDERAL GOVERNMENT IS NOT REQUIRED TO PAY THE FIRE TAX ASSESSED UPON PRIVATE PROPERTY OWNERS WITHIN THE AREA SERVED BY SAID DEPARTMENT. HOWEVER, IN 24 COMP. GEN. 599, REFERRED TO ABOVE, THERE WAS SPECIFICALLY CONSIDERED AND DISCUSSED THE FACT THAT UNDER THE CONSTITUTION OF THE UNITED STATES THE FEDERAL GOVERNMENT IS EXEMPT FROM STATE OR MUNICIPAL REAL ESTATE TAXES. AND, IN THAT CONNECTION, THE VIEW WAS ADOPTED THAT THE DUTY OF A MUNICIPALITY TO AFFORD FIRE PROTECTION TO PROPERTY WITHIN ITS LIMITS HAD NO CONNECTION WHATEVER WITH THE LIABILITY FOR OR THE PAYMENT OF TAXES.

HOWEVER, IT IS UNDERSTOOD THAT THE CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT IS A VOLUNTEER ORGANIZATION, CHARTERED AS A CORPORATION BY THE STATE OF MARYLAND, TO "CONTROL, PREVENT, LIMIT AND COMBAT DAMAGE BY FIRE IN MONTGOMERY COUNTY, MARYLAND, AND SUCH NEARBY TERRITORY AS IS WITHIN REACH OF ITS ASSISTANCE.' THUS, THE SITUATION HERE DOES NOT INVOLVE A MUNICIPALITY WITH CERTAIN DEFINED LIMITS AND IT DOES NOT INVOLVE A REGULARLY ESTABLISHED AND PAID FIRE DEPARTMENT. HENCE, THE QUESTION REALLY RESOLVES ITSELF INTO WHETHER THESE VARIANCES IN THE FACTS ARE SO FUNDAMENTAL AS TO REQUIRE THE APPLICATION OF A DIFFERENT RULE FROM THAT LAID DOWN IN THE DETROIT FIRE DEPARTMENT CASE.

IN THE FIRST PLACE, CHAPTER 459, LAWS OF MARYLAND, 1943, ESTABLISHED A FIRE DISTRICT IN MONTGOMERY COUNTY, MARYLAND, TO BE SERVED BY THE CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT, WHICH DISTRICT INCLUDED THE DAVID W. TAYLOR MODEL BASIN. IT WAS BY THIS SAME ACT THAT THE COUNTY COMMISSIONERS OF MONTGOMERY COUNTY WERE AUTHORIZED AND DIRECTED TO LEVY ANNUALLY AGAINST ASSESSABLE REAL PROPERTY IN THE AREA A TAX SUFFICIENT TO MAINTAIN AND OPERATE THE SAID CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT. UNDER THE LAW IN EFFECT AT THAT TIME, THE COUNTY COMMISSIONERS WERE AUTHORIZED TO PAY $500 ANNUALLY TO THE SEVERAL VOLUNTEER FIRE DEPARTMENTS OPERATING IN THE COUNTY FOR EACH PIECE OF FIRE-FIGHTING APPARATUS MAINTAINED IN EFFICIENT OPERATING CONDITION, THE MONEY TO BE USED FOR THE PURCHASE, REPAIR AND MAINTENANCE OF FIRE FIGHTING EQUIPMENT. BUT, AT ANY RATE, IT IS CLEAR THAT THE PROPERTY HERE INVOLVED LIES WITHIN A LEGISLATIVELY DEFINED AREA TO BE SERVED BY THE SAID CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT IN MUCH THE SAME WAY THAT PROPERTY WITHIN THE CITY LIMITS IS SERVED BY A MUNICIPAL FIRE DEPARTMENT.

MOREOVER, THE COUNTY COMMISSIONERS OF EACH COUNTY IN MARYLAND ARE DECLARED BY LAW TO BE CORPORATIONS. ( ANN. CODE OF MARYLAND, ARTICLE 25, SECTION 1). AT THE SAME TIME, THE COUNTIES ARE PUBLIC AGENCIES OF THE STATE INVESTED WITH CERTAIN POLITICAL AND GOVERNMENTAL FUNCTIONS, THE PERFORMANCE OF WHICH THEY HAVE NO POWER TO DECLINE. 14 AM. JUR. COUNTIES, 48, 49. AND ONE OF THE GOVERNMENTAL FUNCTIONS ORDINARILY PERFORMED BY A MUNICIPALITY, COUNTY OR OTHER POLITICAL SUBDIVISION OF A STATE IS THAT OF FURNISHING FIRE PROTECTION. JOHNSON V. FONTANA COUNTY FIRE PROTECTION DISTRICT., 87 P.2D 426, AND 101 P.2D 1092; CITY OF PORT ARTHUR V. WALLACE, 171 S.W.2D 480; BUCKHOUT V. CITY OF NEWPORT, 27 A.2D 317; COMMONWEALTH V. BARTOL, 20 A.2D 313. NOR IS IT MATERIAL THAT THE COUNTY FURNISHES SUCH FIRE PROTECTION THROUGH A VOLUNTARY ASSOCIATION; THE NATURE OF THE FUNCTION AND THE CHARACTER OF THE DUTY ARE THE SAME. SEE COMMONWEALTH V. BARTOL, SUPRA; PEOPLE V. SAN FRANCISCO FIRE DEPARTMENT, 14 CAL. 479; FIRE INS. PATROL V.

BOYD, 15 A. 553.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE CABIN JOHN PARK VOLUNTEER FIRE DEPARTMENT ACTS FOR OR IN AID OF MONTGOMERY COUNTY IN THE PERFORMANCE OF ITS MANDATORY DUTY TO AFFORD FIRE PROTECTION TO PROPERTY LOCATED WITHIN ITS BOUNDARIES; THAT THE FEDERAL GOVERNMENT IS ENTITLED TO THE BENEFITS OF SUCH PROTECTION WITHOUT REGARD TO THE PAYMENT OF THE FIRE TAX ASSESSED UPON PRIVATE PROPERTY OWNERS IN SAID AREA; AND THAT, THEREFORE, THE APPROPRIATION INDICATED IN YOUR LETTER MAY NOT PROPERLY BE CHARGED WITH PAYMENTS UNDER THE PROPOSED CONTRACT.