B-77842, AUGUST 17, 1948, 28 COMP. GEN. 99

B-77842, AUGUST 17, 1948, 28 COMP. GEN. 99

LEASES - LESSOR'S OBLIGATION TO FURNISH TOILET FACILITIES AS INCLUDING COST OF TOWN SEWERAGE SERVICE THE COST OF TOWN SEWERAGE SERVICE FURNISHED QUARTER LEASED BY THE GOVERNMENT FOR USE AS A POST OFFICE OF THE SECOND OR THIRD CLASS IS NOT PROPERLY CHARGEABLE AGAINST THE GOVERNMENT WHERE THE LEASE EXPRESSLY OBLIGATED THE LESSOR TO FURNISH PLUMBING AND TOILET FACILITIES AS PART OF THE RENTAL CONSIDERATION, BUT, RATHER, SUCH COST MUST BE ASSUMED BY THE LESSOR AS AN INCIDENT TO THE FURNISHING OF TOILET FACILITIES.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 17, 1948:

I HAVE YOUR LETTER OF JUNE 25, 1948, STATING THAT THE POSTMASTER AT TONASKET, WASHINGTON, A SECOND CLASS POST OFFICE, HAS APPLIED FOR AN ALLOWANCE OF $42 A YEAR FOR SEWERAGE SERVICE AND REQUESTING TO BE ADVISED AS TO THE APPROPRIATION PROPERLY CHARGEABLE WITH THE COST OF SUCH SERVICE.

THE RECORD SHOWS THAT QUARTERS FOR THE TONASKET POST OFFICE ARE FURNISHED UNDER A LEASE ENTERED INTO ON JUNE 3, 1940, BETWEEN THE ALPHA CORPORATION BY ITS VICE PRESIDENT AND ASSISTANT SECRETARY AND THE UNITED STATES BY THE ACTING POSTMASTER GENERAL FOR A TEN YEAR TERM BEGINNING MARCH 1, 1940, AT AN ANNUAL RENTAL RATE OF $430. PARAGRAPH 6 OF SAID LEASE OBLIGATES THE LESSOR TO FURNISH THE GOVERNMENT DURING THE TERM OF THE LEASE AS PART OF THE RENTAL CONSIDERATION, THE FOLLOWING:

* * * THE LESSOR SHALL PAY ALL TAXES AND SHALL HAVE THIS LEASE DULY RECORDED AND SHALL PROPERLY PROTECT ALL WINDOWS AND DOORS IN THE WORKROOM BY NECESSARY LOCKS AND BARS ACCORDING TO REQUIREMENTS. THE LESSOR SHALL FURNISH APPROVED HEATING AND LIGHTING FIXTURES, PLUMBING AND TOILET FACILITIES, THE NECESSARY GAS, WATER AND ELECTRIC METERS. THE LESSOR SHALL KEEP THE SAID HEATING AND LIGHTING FIXTURES, PLUMBING AND TOILET FACILITIES IN SATISFACTORY REPAIR AND CONDITION DURING THE TERM OF THIS LEASE.

THE RECORD SHOWS FURTHER THAT THE PROPERTY IN QUESTION WAS PURCHASED BY THE PRESENT LESSOR, MR. M. E. NELSON, ON NOVEMBER 8, 1943. THERE IS NO SHOWING AS TO WHO PAID THE SERVICE CHARGES UP TO THE PRESENT TIME.

THERE WAS TRANSMITTED WITH YOUR LETTER A COPY OF ORDINANCE NO. 84, PASSED BY THE COUNCIL OF THE TOWN OF TONASKET, AND APPROVED BY ITS MAYOR ON MAY 13, 1947, WHICH ORDINANCE FIXES RATES AND CHARGES FOR SEWERAGE SERVICES. SECTION 3 PROVIDES THAT THE RATES AND CHARGES THEREIN PROVIDED AND ALL CHARGES THEREAFTER FIXED BY THE COUNCIL FOR SERVICES SHALL BE PAID ON OR BEFORE THE 15TH DAY OF EACH CALENDAR MONTH FOR THE PRECEDING MONTH'S CHARGES AND, IF NOT SO PAID, THEY SHALL BECOME DELINQUENT ON SAID DATE AND SHALL BEAR INTEREST AT THE RATE OF 8 PERCENT PER ANNUM FROM DATE OF DELINQUENCY UNTIL PAID. SECTION 5 PROVIDES AMONG OTHER THINGS THAT ALL CHARGES FOR SEWERAGE SERVICE TOGETHER WITH PENALTIES AND INTEREST AS PROVIDED IN THE ORDINANCE SHALL BE A LIEN UPON THE PROPERTY FOR WHICH SEWERAGE SERVICE IS FURNISHED, SUPERIOR TO ALL OTHER LIENS OR ENCUMBRANCES WHATSOEVER, EXCEPT GENERAL TAXES AND SPECIAL ASSESSMENTS.

PARAGRAPH 6 OF THIS LEASE, QUOTED ABOVE, EXPRESSLY OBLIGATED THE LESSOR TO FURNISH "TOILET FACILITIES" AS PART OF THE RENTAL CONSIDERATION. DEFINING THE WORD "FACILITIES" THE COURT IN THE CASE OF PEOPLE V. BUNGE BROS. COAL COMPANY, 64 N.E. 2D 365, STATED, IN PERTINENT PART, AS FOLLOWS:

THE WORD "FACILITIES" IS NOT A TECHNICAL WORD BUT ONE IN COMMON USE, AND ITS MEANING IS TO BE FOUND IN THE SENSE ATTACHED TO IT BY APPROVED USAGE. STANDARD LEXICOGRAPHERS GIVE "AID," ,ASSISTANCE," AND "HELP" AS SYNONYMS OR EQUIVALENTS OF "FACILITY.' * * * THE WORD "FACILITY" IS A VERY INCLUSIVE TERM AND WAS INTENDED TO EMBRACE ANYTHING WHICH AIDED OR MADE EASIER THE PERFORMANCE OF THE DUTY WHICH THE CARRIER WAS REQUIRED TO PERFORM. NEKOOSA-EDWARDS PAPER CO. V. RAILROAD COMM., 193 WIS. 538, 203 N.W. 633.

IN THE CIRCUMSTANCES, THE EXPRESS OBLIGATION OF THE LESSOR UNDER THE INSTANT LEASE TO FURNISH ,TOILET FACILITIES" MUST BE VIEWED AS REQUIRING HIM TO ASSUME THE COST OF SEWERAGE SERVICE FOR THE QUARTERS HERE IN QUESTION. SEE, IN THIS CONNECTION, DECISION OF APRIL 2, 1934, A-53719, TO YOUR PREDECESSOR.

ACCORDINGLY, YOU ARE ADVISED THAT THE COST OF SEWERAGE SERVICE FURNISHED THE POST OFFICE AT TONASKET--- IRRESPECTIVE OF ITS CLASSIFICATION AS A SECOND OR THIRD CLASS POST OFFICE--- IS NOT PROPERLY CHARGEABLE AGAINST THE UNITED STATES.