B-169992, JUL 24, 1970, 50 COMP GEN 63

B-169992, JUL 24, 1970, 50 COMP GEN 63

PROPERTY - PUBLIC - PRIVATE USE - AUTHORITY THE LEASE OF LAND ADJACENT TO THE VISITORS' INFORMATION CENTER AT THE JOHN F. KENNEDY CENTER, FLORIDA, FOR THE CONSTRUCTION OF A NONDENOMINATIONAL CHAPEL FROM FUNDS RAISED BY PUBLIC SUBSCRIPTION IS PURSUANT TO ARTICLE IV, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES A CONGRESSIONAL AND NOT AN EXECUTIVE FUNCTION, UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE, AND THE LEASING AUTHORITY IN SECTION 203(B)(3) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, AS AMENDED (42 U.S.C. 2473(B)(3), DOES NOT APPEAR TO BE INTENDED AS SPECIFIC AUTHORITY FOR THE EXECUTION OF THE PROPOSED 30-YEAR LEASE. THEREFORE, BECAUSE OF THE NATURE OF ITS USE, THE LAND WITHIN THE FEDERAL ENCLAVE SHOULD NOT BE LEASED WITHOUT CONGRESSIONAL APPROVAL OF THE CHAPEL CONSTRUCTION, AND THE PAYMENT OF AN ANNUAL RENTAL HAS NO SIGNIFICANCE IN CONSIDERING THE LACK OF SPECIFIC AUTHORITY TO LEASE THE LAND.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, JULY 24, 1970:

REFERENCE IS MADE TO THE LETTER DATED JUNE 4, 1970, FROM YOUR GENERAL COUNSEL WHICH REQUESTS ADVICE AS TO THE ADEQUACY OF THE RENTAL PROPOSED TO BE CHARGED, PARTICULARLY WITH REFERENCE TO 40 U.S.C. 303B, OVER THE FULL 30-YEAR PERIOD OF A PROPOSED LEASE TO THE CHAPEL OF THE ASTRONAUTS, INC., A NONPROFIT FLORIDA CORPORATION. ANY COMMENTS WHICH WE MIGHT WANT TO OFFER ON MATTERS OTHER THAN THE RENTAL TO BE CHARGED WERE ALSO SOLICITED.

THE LETTER STATES THAT THE CHAPEL OF THE ASTRONAUTS, INC., HAS REQUESTED YOUR AGENCY TO LEASE IT A TRACT OF APPROXIMATELY 5.5 ACRES OF LAND ADJACENT TO THE VISITORS' INFORMATION CENTER AT THE JOHN F. KENNEDY CENTER, FLORIDA. THE SITE WAS SELECTED BECAUSE THE CENTER IS VISITED BY LARGE NUMBERS OF PEOPLE. IT IS ESTIMATED THAT THE NUMBER OF VISITORS MAY GROW TO 5 MILLION ANNUALLY BEFORE 1980. THE LETTER STATES THAT "THE CORPORATION INTENDS TO CONSTRUCT A NONDENOMINATIONAL CHAPEL THEREON USING FUNDS RAISED BY PUBLIC SUBSCRIPTION." THE PERIOD OF THE LEASE WOULD BE 30 YEARS. IF OTHERWISE PROPER THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IS PREPARED TO ENTER INTO SUCH A LEASE UNDER THE AUTHORITY OF SECTION 203(B)(3) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, AS AMENDED, 42 U.S.C. 2473(B)(3).

THE LETTER ALSO STATES THAT IN ORDER TO "ESTABLISH A FAIR RENT FOR THE PURPOSES OF 40 U.S.C. 303B AND IN ORDER TO AVOID ANY IMPLICATION WHETHER WARRANTED OR NOT) THAT THE UNITED STATES, THROUGH NASA, IS ANYTHING OTHER THAN NEUTRAL TO THE EXERCISE OF ANY PARTICULAR RELIGION OR RELIGION AS A WHOLE, NASA HAS HAD THE SITE IN QUESTION APPRAISED BY A QUALIFIED CORPS OF ENGINEERS, U.S. ARMY, APPRAISER. THE APPRAISER HAS CONCLUDED THAT A FAIR RENTAL FOR THE 5.5 ACRE MORE OR LESS BASIC SITE WOULD BE $600.00 PER ANNUM." ALSO IN ACCORDANCE WITH THE REQUIREMENTS OF 40 U.S.C. 303B THE AMOUNT PAID WOULD BE DEPOSITED INTO THE MISCELLANEOUS RECEIPTS OF THE TREASURY.

FORWARDED WITH THE LETTERS WERE COPIES OF THE APPRAISAL AND THE PROPOSED LEASE AS PREPARED AT THE KENNEDY SPACE CENTER, TOGETHER WITH A COPY OF A MEMORANDUM OFFERING YOUR GENERAL COUNSEL'S COMMENTS WITH RESPECT TO THE PROPOSED LEASE.

THE CONSTITUTION OF THE UNITED STATES PROVIDES IN ARTICLE 4, SECTION 3, CLAUSE 2, THAT:

THE CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES; ***

THE WORDS "DISPOSE OF" VEST IN CONGRESS THE POWER TO LEASE AS WELL AS TO SELL THE LANDS OF THE UNITED STATES. "THE DISPOSAL MUST BE LEFT TO THE DISCRETION OF CONGRESS." UNITED STATES V GRATIOT, 14 PET. 526, 39 U.S. 526.

IN OTHER DECISIONS IT ALSO HAS BEEN UNIFORMLY HELD THAT THE PROVISION CONFERS UPON THE CONGRESS EXCLUSIVE JURISDICTION TO DISPOSE OF THE LAND OR OTHER PROPERTY OF THE UNITED STATES AND THAT THERE IS NO POWER IN THE HEAD OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT TO TAKE SUCH ACTION WITHOUT SPECIFIC LEGISLATIVE AUTHORITY. SEE 22 COMP. GEN. 563 (1942) AND REFERENCES THEREIN CITED. SEE PARTICULARLY 14 COMP. GEN. 169 (1934) AS TO LEASES.

IT IS A SOUND RULE OF STATUTORY CONSTRUCTION THAT THE INTENT OF CONGRESS AS EXPRESSED IN ANY PART OF A STATUTE MUST BE GATHERED FROM THE READING OF THE STATUTE AS A WHOLE AND THAT THE STATUTE SHOULD BE CONSTRUED WITH REFERENCE TO EXISTING LAWS. ITS OPERATION MUST BE RESTRICTED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE THE LITERAL MEANING EMBRACES CASES NOT INTENDED BY THE LEGISLATIVE BODY. 17 COMP. GEN. 736 (1938), 19 ID, 640 (1940, 20 ID. 46 (1940); AND 21 ID. 425 AND 510 (1941). THE AUTHORIZATION IN SECTION 203(B)(3) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, AS AMENDED, FOR THE ADMINISTRATION " *** TO LEASE TO OTHERS SUCH REAL AND PERSONAL PROPERTY; *** " IS BROADLY STATED. WE HAVE FOUND NOTHING ELSEWHERE IN THE ACT OR IN ITS LEGISLATIVE HISTORY WHICH WOULD BE HELPFUL IN DETERMINING ANY LIMITS WHICH CONGRESS MIGHT HAVE INTENDED TO IMPOSE ON THAT AUTHORITY. HOWEVER, WE HAVE CONSIDERABLE DOUBTS THAT THE AUTHORITY WAS INTENDED TO EXTEND TO A LEASE FOR THE PURPOSES HERE UNDER CONSIDERATION, WHICH INCLUDE THE CONSTRUCTION OF A SUBSTANTIAL BUILDING FOR USE BY THE PUBLIC AS A NONDENOMINATIONAL CHAPEL.

THE PLOT WHICH WOULD BE LEASED IS A COMPARATIVELY SMALL ONE COMPLETELY SURROUNDED BY A LARGE FEDERAL ENCLAVE. THE SITE FOR THE BUILDING WAS SELECTED BECAUSE OF ITS PROXIMITY TO THE VISITORS' INFORMATION CENTER WHICH IT IS ANTICIPATED WILL BE VISITED BY MILLIONS OF PEOPLE ANNUALLY. THE EFFECT OF PROCEEDING WITH THE PROPOSED LEASE WOULD BE TO UTILIZE PUBLIC PROPERTY TO PROVIDE TO THE PUBLIC A FACILITY COMPLETELY WITHIN A FEDERAL ENCLAVE WITHOUT THAT FACILITY BEING AUTHORIZED BY THE CONGRESS. THE FACT THAT AN ANNUAL RENTAL WOULD BE PAID WOULD NOT BE SIGNIFICANT IN CONSIDERING THIS LACK OF SPECIFIC AUTHORIZATION. CF. 10 COMP. GEN. 395 (1931), AND 11 ID. 355 (1931) AND DECISIONS THEREIN CITED.

IN VIEW OF THE ABOVE, AND WHILE WE HAVE NO BASIS TO QUESTION THE ADEQUACY OF THE PROPOSED RENTAL TO BE CHARGED IF OTHERWISE PROPER, WE DO BELIEVE THAT THE AUTHORITY FOR THE ENTIRE PROPOSAL IS SO DOUBTFUL THAT SPECIFIC AUTHORIZATION SHOULD BE OBTAINED FROM THE CONGRESS BEFORE ENTERING INTO ANY LEASE ARRANGEMENT SUCH AS PROPOSED.