A-13645, JUNE 2, 1926, 5 COMP. GEN. 953

A-13645: Jun 2, 1926

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1926: THERE IS FOR CONSIDERATION THE QUESTION OF THE LEGALITY OF PAYMENTS MADE BY COL. HAS BEEN GIVEN. * * THE LAND FOR WHICH THE PAYMENTS IN QUESTION WERE MADE IS REPRESENTED BY COLONEL SHERRILL AS HAVING BEEN ACQUIRED SOLELY FOR PARK PURPOSES WITH NO INTENTION OF ERECTING ANY PUBLIC BUILDINGS THEREON. THE NATIONAL CAPITAL PARK COMMISSION WAS CREATED BY THE ACT OF JUNE 6. SECTION 2 OF THE ACT PROVIDED: SAID COMMISSION OR A MAJORITY THEREOF IS HEREBY AUTHORIZED AND DIRECTED TO ACQUIRE SUCH LANDS AS IN ITS JUDGMENT SHALL BE NECESSARY AND DESIRABLE IN THE DISTRICT OF COLUMBIA AND ADJACENT AREAS IN MARYLAND AND VIRGINIA. THAT SAID COMMISSION IS HEREBY AUTHORIZED TO ACQUIRE SUCH LANDS BY PURCHASE WHEN THEY CAN BE ACQUIRED AT PRICES REASONABLE IN THE JUDGMENT OF SAID COMMISSION.

A-13645, JUNE 2, 1926, 5 COMP. GEN. 953

REAL ESTATE, TITLES - LAND PURCHASED BY NATIONAL CAPITAL PARK COMMISSION THE AUTHORITY UNDER SECTION 2 OF THE ACT OF JUNE 6, 1924, 43 STAT. 463, GIVEN THE NATIONAL CAPITAL PARK COMMISSION TO PURCHASE OR CONDEMN LANDS FOR PARK PURPOSES REQUIRES THAT THE COMMISSION MUST PRIMARILY DETERMINE THE VALIDITY OF THE TITLE TO BE ACQUIRED BY PURCHASE, AND ITS FAILURE TO SECURE THE OPINION OF THE ATTORNEY GENERAL AS TO THE VALIDITY OF THE TITLE UNDER SECTION 355 OF THE REVISED STATUTES DOES NOT PRECLUDE PAYMENT FOR THE LAND SO PURCHASED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 2, 1926:

THERE IS FOR CONSIDERATION THE QUESTION OF THE LEGALITY OF PAYMENTS MADE BY COL. C. O. SHERRILL, FORMERLY EXECUTIVE AND DISBURSING OFFICER, NATIONAL CAPITAL PARK COMMISSION, TO VARIOUS PERSONS AS THE PURCHASE PRICE OF TRACTS OF REAL ESTATE WITHOUT FIRST HAVING THE TITLE PASSED UPON BY THE ATTORNEY GENERAL IN ACCORDANCE WITH SECTION 355, REVISED STATUTES. SAID SECTION 355 PROVIDES:

NO PUBLIC MONEY SHALL BE EXPENDED UPON ANY SITE OR LAND PURCHASED BY THE UNITED STATES FOR THE PURPOSE OF ERECTING THEREON ANY ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY-YARD, CUSTOM-HOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER, UNTIL THE WRITTEN OPINION OF THE ATTORNEY- GENERAL SHALL BE HAD IN FAVOR OF THE VALIDITY OF THE TITLE, NOR UNTIL THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE LAND OR SITE MAY BE, TO SUCH PURCHASE, HAS BEEN GIVEN. * *

THE LAND FOR WHICH THE PAYMENTS IN QUESTION WERE MADE IS REPRESENTED BY COLONEL SHERRILL AS HAVING BEEN ACQUIRED SOLELY FOR PARK PURPOSES WITH NO INTENTION OF ERECTING ANY PUBLIC BUILDINGS THEREON.

THE NATIONAL CAPITAL PARK COMMISSION WAS CREATED BY THE ACT OF JUNE 6, 1924, 43 STAT. 463, WHICH DESIGNATED THE VARIOUS PUBLIC OFFICIALS WHO SHOULD CONSTITUTE THE COMMISSION. SECTION 2 OF THE ACT PROVIDED:

SAID COMMISSION OR A MAJORITY THEREOF IS HEREBY AUTHORIZED AND DIRECTED TO ACQUIRE SUCH LANDS AS IN ITS JUDGMENT SHALL BE NECESSARY AND DESIRABLE IN THE DISTRICT OF COLUMBIA AND ADJACENT AREAS IN MARYLAND AND VIRGINIA, WITHIN THE LIMITS OF THE APPROPRIATIONS MADE FOR SUCH PURPOSES, FOR SUITABLE DEVELOPMENT OF THE NATIONAL CAPITAL PARK, PARKWAY AND PLAYGROUND SYSTEM. THAT SAID COMMISSION IS HEREBY AUTHORIZED TO ACQUIRE SUCH LANDS BY PURCHASE WHEN THEY CAN BE ACQUIRED AT PRICES REASONABLE IN THE JUDGMENT OF SAID COMMISSION, OTHERWISE BY CONDEMNATION PROCEEDINGS * * *. THE DESIGNATION OF ALL LANDS TO BE ACQUIRED BY CONDEMNATION, ALL CONTRACTS FOR PURCHASE OF LANDS, AND ALL AGREEMENTS BETWEEN SAID COMMISSION AND THE OFFICIALS OF THE STATES OF MARYLAND AND VIRGINIA SHALL BE SUBJECT TO THE APPROVAL OF THE PRESIDENT OF THE UNITED STATES.

UNDER THIS STATUTE THE COMMISSION IS VESTED WITH DISCRETION TO DETERMINE WHAT PROPERTY SHALL BE ACQUIRED AND ALSO WHETHER IT SHALL BE ACQUIRED BY PURCHASE OR BY CONDEMNATION PROCEEDINGS. IN DECIDING WHETHER TO PROCEED BY PURCHASE OR BY CONDEMNATION, THERE MUST NECESSARILY BE DETERMINED WHETHER THE PRICE AT WHICH THE LAND IS OFFERED IS REASONABLE AND WHETHER A GOOD AND VALID TITLE CAN BE CONVEYED WITHOUT CONDEMNATION PROCEEDINGS. THE VALIDITY OF THE TITLE TO BE ACQUIRED BY PURCHASE IS ACCORDINGLY A MATTER PRIMARILY FOR DETERMINATION BY THE COMMISSION, SUBJECT TO THE APPROVAL BY THE PRESIDENT; IN OTHER WORDS, SECTION 355, REVISED STATUTES, DOES NOT NECESSARILY APPLY TO PURCHASES OF LAND FOR PARK PURPOSES BY THE NATIONAL CAPITAL PARK COMMISSION. SEE 12 COMP. DEC. 691, IN RE THE PURCHASE OF LAND BY THE SECRETARY OF THE INTERIOR UNDER THE RECLAMATION ACT. PAYMENTS BY THE NATIONAL CAPITAL PARK COMMISSION FOR LANDS PURCHASED FOR PARK PURPOSES WILL NOT, THEREFORE, BE OBJECTED TO BY THIS OFFICE SOLELY BECAUSE OF THE FAILURE TO SECURE THE OPINION OF THE ATTORNEY GENERAL AS TO THE TITLE.