A-11848, NOVEMBER 27, 1925, 5 COMP. GEN. 389

A-11848: Nov 27, 1925

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1925: I HAVE YOUR LETTER OF NOVEMBER 3. MAY BE USED TO PAY FOR THE OPERATION OF THE PLANT UNTIL CONGRESS SHALL HAVE TAKEN TION. CONSTRUCTION OF THE POWER PLANT AT MUSCLE SHOALS WAS INITIATED AS INCIDENT TO THE NITRATE PLANTS AUTHORIZED UNDER SECTION 124 OF THE NATIONAL DEFENSE ACT OF JUNE 3. ALL OF THE APPROPRIATIONS FOR THE PROJECT ARE FOR CONSTRUCTION PURPOSES. ANY SURPLUS WHICH HE SHALL DETERMINE IS NOT REQUIRED SHALL BE DISPOSED OF BY HIM UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE. THAT THE PLANT IS WORKABLE. IT IS UNDERSTOOD THE DIFFERENT UNITS OF THIS PLANT HAVE BEEN. IT IS PROPOSED NOW TO CONDUCT WHAT MAY BE TERMED A SUPERTEST. IN SUCH CONNECTION IT MAY BE SAID THE ADMINISTRATIVE VIEW IS CORRECT THAT SUCH SURPLUS SHOULD BE DISPOSED OF TO THE BEST ADVANTAGE OF THE UNITED STATES RATHER THAN BE PERMITTED TO GO TO WASTE.

A-11848, NOVEMBER 27, 1925, 5 COMP. GEN. 389

MISCELLANEOUS RECEIPTS - PROCEEDS FROM SALE OF ELECTRIC POWER AT MUSCLE SHOALS THE PROCEEDS FROM THE SALE OF ELECTRIC POWER DEVELOPED DURING THE COURSE OF TESTING THE HYDROELECTRIC PLANT AT MUSCLE SHOALS, ALA., MAY NOT BE USED FOR THE OPERATION OF THE PLANT, BUT MUST BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER THE PROVISIONS OF SECTION 3618, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, NOVEMBER 27, 1925:

I HAVE YOUR LETTER OF NOVEMBER 3, 1925, REQUESTING DECISION WHETHER THE PROCEEDS FROM THE SALE OF ELECTRIC POWER DEVELOPED DURING THE TESTING OF THE HYDROELECTRIC POWER PLANT AT MUSCLE SHOALS, ALA., MAY BE USED TO PAY FOR THE OPERATION OF THE PLANT UNTIL CONGRESS SHALL HAVE TAKEN TION,"IT BEING UNDERSTOOD THAT ANY FUNDS RECEIVED FROM THE SALE OF POWER OVER AND ABOVE THAT NECESSARY FOR OPERATION SHALL BE TURNED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS.'"

SECTION 3618, REVISED STATUTES, PROVIDES:

ALL PROCEEDS OF SALES OF OLD MATERIAL, CONDEMNED STORES, SUPPLIES, OR OTHER PUBLIC PROPERTY OF ANY KIND, EXCEPT THE PROCEEDS OF THE SALE OR LEASING OF MARINE HOSPITALS, OR OF THE SALES OF REVENUE-CUTTERS, OR OF THE SALES OF COMMISSARY STORES TO THE OFFICERS AND ENLISTED MEN OF THE ARMY (OR OF MATERIALS, STORES, OR SUPPLIES SOLD TO OFFICERS AND SOLDIERS OF THE ARMY) OR OF THE SALE OF CONDEMNED NAVY CLOTHING, OR OF SALES OF MATERIALS, STORES, OR SUPPLIES TO ANY EXPLORING OR SURVEYING EXPEDITION AUTHORIZED BY LAW, SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, ON ACCOUNT OF "PROCEEDS OF GOVERNMENT PROPERTY," AND SHALL NOT BE WITHDRAWN OR APPLIED, EXCEPT IN CONSEQUENCE OF A SUBSEQUENT APPROPRIATION MADE BY LAW.

CONSTRUCTION OF THE POWER PLANT AT MUSCLE SHOALS WAS INITIATED AS INCIDENT TO THE NITRATE PLANTS AUTHORIZED UNDER SECTION 124 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 215. THE ACT OF JUNE 30, 1922, 42 STAT. 760, PROVIDED UNDER THE HEADING "MUSCLE SHOALS" AN APPROPRIATION "FOR THE CONTINUATION OF THE WORK ON DAM NUMBERED TWO ON THE TENNESSEE RIVER AT MUSCLE SHOALS, ALABAMA, BUT NOT TO BECOME AVAILABLE UNTIL THE 1ST DAY OF OCTOBER, 1922, 500,000.' THE ACT OF MARCH 2, 1923, 42 STAT. 1421, PROVIDED UNDER THE HEADING "MUSCLE SHOALS" AS FOLLOWS:

FOR THE CONTINUATION OF THE WORK ON DAM NUMBERED 2 ON THE TENNESSEE RIVER AT MUSCLE SHOALS, ALABAMA, $6,998,800: PROVIDED, THAT THE SECRETARY OF WAR MAY ENTER INTO A CONTRACT OR CONTRACTS FOR SUCH MACHINERY, GATES, OR OTHER METAL PARTS AND FOR SUCH MATERIALS TO BE USED IN THE CONSTRUCTION OF THE LOCKS, DAM AND POWERHOUSE AS MAY BE NECESSARY TO PROSECUTE THE SAID PROJECT, TO BE PAID FOR AS APPROPRIATIONS MAY FROM TIME TO TIME BE MADE BY LAW, NOT TO EXCEED IN THE AGGREGATE $10,501,200, EXCLUSIVE OF THE AMOUNTS HEREIN AND HERETOFORE APPROPRIATED.

THE ACT OF JUNE 7, 1924, 43 STAT. 516, PROVIDED UNDER THE HEADING "MUSCLE SHOALS," AS FOLLOWS:

FOR THE CONTINUATION OF THE WORK ON DAM NUMBERED 2 ON THE TENNESSEE RIVER AT MUSCLE SHOALS, ALABAMA, $7,000,000, TO BE IMMEDIATELY AVAILABLE, AND TO APPLY ON THE CONTRACT AUTHORIZATION FOR THIS PROJECT CARRIED IN THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1924: PROVIDED, THAT THE SECRETARY OF WAR MAY ENTER INTO A CONTRACT OR CONTRACTS FOR SUCH MACHINERY, GATES, OR OTHER METAL PARTS AND FOR SUCH MATERIALS TO BE USED IN THE CONSTRUCTION OF THE LOCKS, DAM, AND POWERHOUSE AS MAY BE NECESSARY TO PROSECUTE THE SAID PROJECT, TO BE PAID FOR AS APPROPRIATIONS MAY FROM TIME TO TIME BE MADE BY LAW, NOT TO EXCEED IN THE AGGREGATE $3,040,390, EXCLUSIVE OF THE AMOUNTS HEREIN AND HERETOFORE APPROPRIATED.

THE DEFICIENCY ACT OF JANUARY 20, 1925, 43 STAT. 757, APPROPRIATED "FOR THE CONTINUATION OF THE WORK ON DAM NUMBERED 2, ON THE TENNESSEE RIVER AT MUSCLE SHOALS, ALABAMA, $3,501,200.' THE ACT OF FEBRUARY 12, 1925, 43 STAT. 930, PROVIDES UNDER THE HEADING "MUSCLE SHOALS," AS FOLLOWS:

FOR THE CONTINUATION OF THE WORK ON DAM NUMBERED 2 ON THE TENNESSEE RIVER AT MUSCLE SHOALS, ALABAMA, $3,040,390, TO BE IMMEDIATELY AVAILABLE, AND TO APPLY ON THE CONTRACT AUTHORIZATION FOR THIS PROJECT CARRIED IN THE WAR DEPARTMENT APPROPRIATION ACTS FOR THE FISCAL YEARS 1924 AND 1925.

ALL OF THE APPROPRIATIONS FOR THE PROJECT ARE FOR CONSTRUCTION PURPOSES.

THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 215, AUTHORIZED THE CONSTRUCTION AND OPERATION OF POWER HOUSES AND OTHER PLANTS AND EQUIPMENT FOR THE GENERATION OF ELECTRICAL OR OTHER POWER AND FOR THE PRODUCTION OF NITRATES OR OTHER PRODUCTS NEEDED FOR MUNITIONS OF WAR AND USEFUL IN THE MANUFACTURE OF FERTILIZERS AND OTHER USEFUL PRODUCTS, AND THAT THE PRODUCTS OF SUCH PLANTS SHALL BE USED BY THE PRESIDENT FOR MILITARY AND NAVAL PURPOSES TO THE EXTENT THAT HE MAY DEEM NECESSARY, AND ANY SURPLUS WHICH HE SHALL DETERMINE IS NOT REQUIRED SHALL BE DISPOSED OF BY HIM UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE.

THE TESTING OF AN UNTRIED PLANT OR OF PORTIONS THEREOF, BY THE OPERATION THEREOF FOR A REASONABLE TIME AND TO THE EXTENT NECESSARY TO ASCERTAIN THAT THE PARTS THEREOF ACQUIRED PURSUANT TO CONTRACTS MEET THE CONTRACT REQUIREMENTS, TO DETERMINE THAT IN GENERAL THERE HAS BEEN A PROPER CONSTRUCTION, AND THAT THE PLANT IS WORKABLE, WOULD APPEAR PROPER. IT IS UNDERSTOOD THE DIFFERENT UNITS OF THIS PLANT HAVE BEEN, FOR THE MOST PART, DULY TESTED, AND IT IS PROPOSED NOW TO CONDUCT WHAT MAY BE TERMED A SUPERTEST, INVOLVING A TEMPORARY OPERATION OF THE COMPLETED PLANT WITH THE RESULT THEREFROM OF A PRODUCT, POWER, AS A SURPLUS. SUCH A TEMPORARY OPERATION ADEQUATE FOR TEST PURPOSES WOULD APPEAR PERMISSIBLE IN THE CIRCUMSTANCES, WITHOUT MORE SPECIFIC LEGISLATIVE AUTHORITY, AND IN SUCH CONNECTION IT MAY BE SAID THE ADMINISTRATIVE VIEW IS CORRECT THAT SUCH SURPLUS SHOULD BE DISPOSED OF TO THE BEST ADVANTAGE OF THE UNITED STATES RATHER THAN BE PERMITTED TO GO TO WASTE, BUT IN SUCH CONNECTION THE QUESTION ARISES WHETHER THE PROCEEDS OF THE SALE OF SUCH SURPLUS MAY BE APPLIED TO THE EXPENSES OF THE TEST OPERATION OR MUST GO INTO MISCELLANEOUS RECEIPTS. THE ENACTMENT OF 1916 GIVES AUTHORITY TO THE PRESIDENT TO SELL SURPLUS AND DISPOSE OF IT UNDER REGULATIONS AS HE MAY PRESCRIBE. THERE IS NO PROVISION THEREIN FOR DISPOSITION OF THE PROCEEDS FROM SUCH SALE. IT THUS FOLLOWS THEREFROM THAT GENERAL STATUTORY PROVISIONS ARE APPLICABLE THERETO AND THAT THE DISPOSITION OF THE PROCEEDS OF THE SALE MUST BE PURSUANT TO THE PROVISIONS OF SECTION 3618, REVISED STATUTES.

IT WOULD SEEM ALSO THAT THE NATIONAL DEFENSE ACT HAD REFERENCE TO THE USE OF THE APPROPRIATION THEREIN MADE, WHICH WAS STRICTLY FOR WAR PURPOSES, AND COULD NOT BE HELD TO APPLY TO PEACE-TIME PROJECTS SUCH AS HERE INVOLVED. DECISION OF DECEMBER 10, 1924. A-5842.

YOU SUGGEST ALSO AS AUTHORIZATION THE FOLLOWING PROVISION IN THE RIVERS AND HARBORS ACT OF JUNE 13, 1902, 32 STAT. 373:

SEC. 5. THAT WHEN ANY LAND OR OTHER PROPERTY, WHICH HAS BEEN HERETOFORE OR MAY BE HEREAFTER PURCHASED OR ACQUIRED FOR THE IMPROVEMENT OF RIVERS OR HARBORS IS NO LONGER NEEDED, OR IS NO LONGER SERVICEABLE, IT MAY BE SOLD IN SUCH MANNER AS THE SECRETARY OF WAR MAY DIRECT, AND THE PROCEEDS CREDITED TO THE APPROPRIATION FOR THE WORK FOR WHICH IT WAS PURCHASED OR ACQUIRED; * * *

DAM NO. 2 AT MUSCLE SHOALS IS NOT AN "IMPROVEMENT OF RIVERS OR HARBORS" WITHIN THE MEANING OF THIS ACT. THAT PHRASE HAS REFERENCE TO IMPROVEMENTS IN AID OF NAVIGATION. THE APPROPRIATIONS FOR THIS MUSCLE SHOALS PROJECT HAVE NOT BEEN PROVIDED UNDER THE HEADING OF "RIVERS AND HARBORS IMPROVEMENTS" BUT UNDER A SEPARATE AND DISTINCT HEADING AND ARE ESSENTIALLY FOR DEVELOPMENT OF ELECTRIC POWER FROM THE TENNESSEE RIVER. ANY IMPROVEMENTS IN THE RIVER IN AID OF NAVIGATION WOULD BE INCIDENTAL. NOTWITHSTANDING THAT THE DIGEST OF APPROPRIATIONS AND THE BOOKS OF THE TREASURY DEPARTMENT CLASSIFY THESE APPROPRIATIONS FOR DAM NO. 2 AT MUSCLE SHOALS AS A RIVER AND HARBOR IMPROVEMENT APPROPRIATION, THE PROJECT IS NOT OF SUCH CLASS, WITHIN THE MEANING OF THE RIVERS AND HARBORS ACT, AS WOULD AUTHORIZE CREDIT TO THE APPROPRIATIONS OF THE PROCEEDS OF SALES OF UNNECESSARY LAND OR UNSERVICEABLE SUPPLIES. IF THE APPROPRIATION HAS BEEN SO CONSIDERED AND PROCEEDS OF UNSERVICEABLE GOVERNMENT PROPERTY CREDITED TO THE APPROPRIATIONS, THE PRACTICE MUST BE DISCONTINUED AND SUCH PROCEEDS DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS, UNLESS AND UNTIL EXPRESS STATUTORY AUTHORITY OTHERWISE HAS BEEN PROVIDED. FURTHERMORE, ELECTRIC POWER DEVELOPED DURING THE COURSE OF TESTING THE POWER PLANT COULD NOT REASONABLY BE CONSTRUED AS ,PROPERTY WHICH HAS BEEN HERETOFORE OR MAY BE HEREAFTER PURCHASED OR ACQUIRED.'

CONGRESS HAS EXPRESSLY LIMITED THE AMOUNT TO BE APPROPRIATED FOR THIS PROJECT AT MUSCLE SHOALS. THE EXACT AMOUNT THEREOF HAS BEEN APPROPRIATED. THE USE OF THE PROCEEDS FROM THE SALE OF ELECTRIC POWER, OR FROM UNSERVICEABLE MATERIAL, OR FROM ANY OTHER SOURCE, FOR THE OPERATION OF THE PLANT INCIDENT TO THE COMPLETION OF THE CONSTRUCTION, WOULD PERMIT THE MAXIMUM AMOUNT TO BE EXCEEDED, CONTRARY TO THE PLAIN INTENT OF THE CONGRESS.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE PROCEEDS OF SALES OF ELECTRIC POWER DEVELOPED DURING THE COURSE OF TESTING THE POWER PLANT AT MUSCLE SHOALS ARE NOT AVAILABLE FOR USE IN THE OPERATION OF THE PLANT, BUT MUST BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER THE PROVISIONS OF SECTION 3618, REVISED STATUTES.