A-12792, FEBRUARY 2, 1926, 5 COMP. GEN. 575

A-12792: Feb 2, 1926

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ARE NOT AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS FOR STORAGE PURPOSES ON GOVERNMENT LAND ADJACENT TO THE PAYETTE NATIONAL FOREST IN IDAHO. 1926: I HAVE YOUR LETTER OF JANUARY 22. THE WHARF BEING DESIRED BY THE DEPARTMENT FOR USE IN A FURTHER QUESTION AFFECTING THE SAME STATUTES BUT INVOLVING A SOMEWHAT DIFFERENT SET OF FACTS HAS BEEN PRESENTED BY THE FORESTER FOR MY CONSIDERATION AND CONCERNING WHICH YOUR INTERPRETATION OF THE LAW IS DESIRED. IT IS PROPOSED TO CONSTRUCT FROM THE FOREST HIGHWAY APPROPRIATION TWO BUILDINGS ON GOVERNMENT LAND CENTRALLY LOCATED AND IMMEDIATELY ADJACENT TO THE PAYETTE NATIONAL FOREST. THE USE TO WHICH THEY WOULD BE SUBJECTED IS CONTINUING OR PERMANENT. ALL OF WHICH OF NECESSITY MUST BE MAINTAINED BY THE FOREST SERVICE IF THESE ROADS AND TRAILS ARE TO CONTINUE TO SERVE THE PURPOSES FOR WHICH THEY WERE CONSTRUCTED.

A-12792, FEBRUARY 2, 1926, 5 COMP. GEN. 575

PUBLIC BUILDINGS - FEDERAL HIGHWAY APPROPRIATION IN THE ABSENCE OF STATUTORY AUTHORITY SPECIFICALLY PROVIDING THE FUNDS FOR SUCH PURPOSE, THE APPROPRIATIONS MADE TO CARRY OUT THE PROVISIONS OF SECTION 23 OF THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921, 42 STAT. 218, ARE NOT AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS FOR STORAGE PURPOSES ON GOVERNMENT LAND ADJACENT TO THE PAYETTE NATIONAL FOREST IN IDAHO, BY THE BUREAU OF PUBLIC ROADS, DEPARTMENT OF AGRICULTURE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, FEBRUARY 2, 1926:

I HAVE YOUR LETTER OF JANUARY 22, 1926, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

UNDER DATE OF MARCH 27, 1925, YOU RENDERED A DECISION TO THIS DEPARTMENT INVOLVING THE QUESTION AS TO WHETHER SECTION 3733 OF THE REVISED STATUTES PRECLUDES THE PURCHASE AND REPAIR OF A WHARF AT JUNEAU, ALASKA, FROM FOREST HIGHWAY FUNDS MADE AVAILABLE BY THE ACT OF NOVEMBER 9, 1921 (42 STAT. 218), THE WHARF BEING DESIRED BY THE DEPARTMENT FOR USE IN A FURTHER QUESTION AFFECTING THE SAME STATUTES BUT INVOLVING A SOMEWHAT DIFFERENT SET OF FACTS HAS BEEN PRESENTED BY THE FORESTER FOR MY CONSIDERATION AND CONCERNING WHICH YOUR INTERPRETATION OF THE LAW IS DESIRED.

IT IS PROPOSED TO CONSTRUCT FROM THE FOREST HIGHWAY APPROPRIATION TWO BUILDINGS ON GOVERNMENT LAND CENTRALLY LOCATED AND IMMEDIATELY ADJACENT TO THE PAYETTE NATIONAL FOREST, IDAHO, AT A COMBINED COST OF APPROXIMATELY $2,500, FOR THE PURPOSE OF STORAGE AND REPAIR OF TOOLS AND EQUIPMENT USED IN THE MAINTENANCE OF THE ROAD AND TRAIL SYSTEM ON THAT FOREST. THE BUILDINGS UNDER CONTEMPLATION WOULD BE OF FRAME CONSTRUCTION WITH CEMENT FOUNDATIONS, CEMENT FLOORS AND SHINGLED ROOFS. WHILE THE BUILDINGS THEMSELVES WOULD NOT BE PARTICULARLY SUBSTANTIAL AND WOULD BE OF A SOMEWHAT TEMPORARY NATURE, THE USE TO WHICH THEY WOULD BE SUBJECTED IS CONTINUING OR PERMANENT.

THE PAYETTE NATIONAL FOREST CONTAINS APPROXIMATELY 200 MILES OF NATIONAL FOREST ROADS AND 500 MILES OF TRAILS, ALL OF WHICH OF NECESSITY MUST BE MAINTAINED BY THE FOREST SERVICE IF THESE ROADS AND TRAILS ARE TO CONTINUE TO SERVE THE PURPOSES FOR WHICH THEY WERE CONSTRUCTED. IN THE ABSENCE OF PROPER STORAGE FACILITIES IN THE PAST IT HAS BEEN NECESSARY TO LEAVE EQUIPMENT AT VARIOUS POINTS THROUGHOUT THE FOREST WHEREVER MORE OR LESS SUITABLE STORAGE SPACE COULD BE SECURED. THIS PRACTICE HAS NOT BEEN FOUND TO BE A GOOD BUSINESS ARRANGEMENT, PARTLY BECAUSE SAFE AND STORM-PROOF STORAGE CAN SELDOM BE FOUND OR RENTED IN REMOTE MOUNTAIN REGIONS SUCH AS ARE COMPRISED IN THE FOREST, AND PARTLY BECAUSE IT DOES NOT PERMIT OF ASSEMBLING EQUIPMENT FOR REPAIR AND CONDITIONING DURING THE WINTER MONTHS WHEN SUCH WORK CAN BE HANDLED MOST ECONOMICALLY. IT IS OF GREAT IMPORTANCE THAT ALL EQUIPMENT BE IN FIRST CLASS CONDITION EARLY IN THE SPRING SO THAT THERE WILL BE NO DELAY IN REPAIRING THE ROADS AND TRAILS BEFORE THE SEASON OF FIRE DANGER OPENS.

THE PROPOSED BUILDINGS OR OTHER BUILDINGS OF A SIMILAR CHARACTER WOULD BE USED CONTINUOUSLY SO LONG AS ROAD AND TRAIL MAINTENANCE WORK IS CONDUCTED ON THE PAYETTE FOREST, WHICH WOULD FOR AN INDEFINITE PERIOD, THE WORK BEING A CONTINUING AND PERMANENT RESPONSIBILITY OF THE DEPARTMENT. WITHOUT DOUBT THE STRUCTURES ARE PARTICULARLY DESIRABLE TO THE EFFICIENT AND ECONOMICAL CONDUCT OF THE ROAD MAINTENANCE WORK AND WITHOUT THEM IT IS NOT CONSIDERED THAT THE INTERESTS OF THE GOVERNMENT CAN BE MOST EFFECTIVELY SERVED. BY REASON OF THE ADMINISTRATION NECESSITY OF THE STORAGE QUARTERS BEING IN OR IMMEDIATELY ADJACENT TO THE FOREST AREA THE RENTING OF SUITABLE BUILDINGS, SATISFACTORILY LOCATED, IS AN IMPOSSIBILITY. QUARTERS NOT OFFERING THE DESIRED LOCATION OR NOT PROPERLY CONSTRUCTED COULD PROBABLY BE SECURED, THE RENTAL OF WHICH WOULD BE MUCH GREATER IN THE LONG RUN THAN THE CONSTRUCTION COSTS. THEN AGAIN THE INCONVENIENCE AS TO LOCATION OR THE INADEQUACY OF THE STRUCTURES WOULD ENTAIL ADDITIONAL COSTS IN THE WAY OF LOST MOTION AND THE EXPENDITURE OF INEFFECTIVE TIME NOT SUSCEPTIBLE OF MEASUREMENT IN TERMS OF MONEY.

SECTION 3733, REVISED STATUTES, PROVIDES:

NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE.

IN THE DECISION OF MARCH 27, 1925 (A-8295), IT WAS SAID:

THE QUESTION AS TO WHAT CONSTITUTES A PUBLIC BUILDING OR A PUBLIC IMPROVEMENT WITHIN THE MEANING OF THIS SECTION HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS BOTH BY FORMER COMPTROLLERS OF THE TREASURY AND BY THIS OFFICE, AND THE GENERAL AND UNIFORM HOLDING SEEMS TO HAVE BEEN THAT ANY STRUCTURE IN THE FORM OF A BUILDING NOT CLEARLY OF A TEMPORARY CHARACTER IS A PUBLIC BUILDING OR PUBLIC IMPROVEMENT WITHIN THE MEANING OF SAID SECTION, AND THE PURCHASE OR CONSTRUCTION THEREOF IS NOT AUTHORIZED UNLESS SPECIFIC APPROPRIATION IS MADE THEREFOR. 10 COMP. DEC. 683; 13 ID. 355; 16 ID. 685; 21 ID. 420; 2 COMP. GEN. 14; ID. 477. IN THIS CONNECTION YOUR ATTENTION IS INVITED IN PARTICULAR TO DECISION OF AUGUST 12, 1911, IN WHICH IT WAS HELD THAT AN APPROPRIATION "FOR THE INVESTIGATION AND IMPROVEMENT OF METHODS OF CROP PRODUCTION UNDER SEMIARID OR DRY-LAND CONDITIONS" WAS NOT AVAILABLE FOR THE ERECTION OF A SO-CALLED TEMPORARY SHED TO SHELTER THE NECESSARY FARM ANIMALS AND A PORTABLE HOUSE 12 X 16 FEET FOR THE TEMPORARY USE OF EMPLOYEES, NOTWITHSTANDING THE FACT THAT THE SECRETARY OF AGRICULTURE REPRESENTED THESE BUILDINGS AS BEING "ABSOLUTELY ESSENTIAL IN CONNECTION WITH THE USE TO WHICH THE LAND IS TO BE PUT BY THE DEPARTMENT" IN CARRYING OUT THE PURPOSE OF THE APPROPRIATION.

SAID DECISION ALSO HELD THAT THE RULE THAT AN APPROPRIATION MADE FOR A PARTICULAR OBJECT IS AVAILABLE FOR ALL EXPENSES WHICH ARE NECESSARY OR INCIDENT TO THE PROPER ACCOMPLISHMENT OF SAID OBJECT IS SUBJECT TO THE GENERAL STATUTORY RESTRICTIONS RELATIVE TO THE USE OF APPROPRIATIONS, AND THAT AS NEITHER THE APPROPRIATIONS MADE FOR CARRYING OUT THE PROVISIONS OF SECTION 23 OF THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921, 42 STAT. 218, NOR THE SECTION ITSELF, PROVIDES IN EXPRESS TERMS OR BY NECESSARY IMPLICATION FOR THE ERECTION OR PURCHASE OF BUILDINGS, THE USE OF SUCH APPROPRIATIONS FOR SUCH PURPOSES WAS PROHIBITED BY SECTION 3733, REVISED STATUTES, SUPRA. THE FACTS PRESENTED IN YOUR LETTER SHOW THAT THE BUILDINGS NOW PROPOSED TO BE CONSTRUCTED ARE PUBLIC BUILDINGS OR PUBLIC IMPROVEMENTS WITHIN THE MEANING OF SAID SECTION.

WITH RESPECT TO YOUR STATEMENT THAT THE APPROPRIATION "GENERAL EXPENSES, FOREST SERVICE," PROVIDES FOR THE CONSTRUCTION OF BUILDINGS AND THAT SECTION 23 OF THE FEDERAL HIGHWAY ACT IS IN THE NATURE OF AN AMENDMENT TO THE IMPROVEMENT FUND CARRIED IN THE GENERAL EXPENSE APPROPRIATIONS, AND THEREFORE THAT THE APPROPRIATIONS MADE FOR CARRYING OUT THE PROVISIONS OF SAID SECTION SHOULD ALSO BE HELD TO BE AVAILABLE FOR SUCH PURPOSES, IT MUST BE NOTED THAT THE TWO APPROPRIATIONS ARE SEPARATE AND DISTINCT REGARDLESS OF WHETHER ONE MAY BE THE OUTGROWTH OF, AND IN A WAY SUPPLEMENTAL TO, THE OTHER; AND THE FACT THAT THE ONE HAS BEEN SPECIFICALLY MADE AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS IS NO JUSTIFICATION OR AUTHORITY FOR HOLDING THAT THE OTHER IS AVAILABLE FOR SUCH PURPOSES WHEN IT HAS NOT BEEN MADE SO IN EXPRESS TERMS.

THE APPROPRIATIONS MADE TO CARRY OUT THE PROVISION OF SECTION 23 OF THE FEDERAL HIGHWAY ACT (SEE ACT OF JUNE 19, 1922, 42 STAT. 660), PROVIDE THAT THE MONEYS THEREIN APPROPRIATED SHOULD BE EXPENDED "IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTION 23.' THERE IS NOTHING CONTAINED THEREIN INDICATING THAT THE FUNDS THUS APPROPRIATED WERE TO BE CONSIDERED A PART OF THE APPROPRIATION "GENERAL EXPENSES, FOREST SERVICE," AND SECTION 23 OF THE FEDERAL HIGHWAY ACT DOES NOT PROVIDE FOR THE CONSTRUCTION OF BUILDINGS AS PART OF THE PROGRAM OF WORK THEREIN CONTEMPLATED.

YOU ARE ACCORDINGLY ADVISED THAT IN THE ABSENCE OF STATUTORY AUTHORITY SPECIFICALLY PROVIDING FUNDS FOR SUCH PURPOSE IT MUST BE HELD THAT THE APPROPRIATIONS MADE FOR CARRYING OUT THE PROVISIONS OF SECTION 23 OF THE FEDERAL HIGHWAY ACT ARE NOT AVAILABLE FOR THE CONSTRUCTION OF THE BUILDINGS PROPOSED.