A-20243, DECEMBER 12, 1927, 7 COMP. GEN. 381

A-20243: Dec 12, 1927

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OR PLAYGROUNDS IS NOT AVAILABLE FOR THE CONSTRUCTION OF SUCH POOLS ON LAND ACQUIRED BY THE DISTRICT OF COLUMBIA FOR SCHOOL PURPOSES. 1927: THERE IS FOR CONSIDERATION BY THIS OFFICE A CONTRACT ENTERED INTO BY AND BETWEEN THE G. HE IS HEREBY. THE APPROPRIATION OF SUCH SUM FOR THE PURPOSES NAMED IS HEREBY AUT!ORIZED. THE QUESTION FOR CONSIDERATION AT THIS TIME IS AS TO WHETHER THE LAND PURCHASED "FOR SCHOOL PURPOSES" MAY BE REGARDED AS HAVING BEEN "ACQUIRED FOR PARK. THE APPROPRIATION HERE IN QUESTION IS NOT AVAILABLE FOR THE CONSTRUCTION OF THE BATHING POOLS. BECAUSE THE USE OF SAID APPROPRIATION IS SPECIFICALLY RESTRICTED TO POOLS TO BE LOCATED UPON LANDS "ACQUIRED FOR PARK. WHILE THE TERM "FOR SCHOOL PURPOSES" IS BROADER OR MORE COMPREHENSIVE THAN THE TERM "FOR THE ERECTION OF SCHOOL BUILDINGS.

A-20243, DECEMBER 12, 1927, 7 COMP. GEN. 381

DISTRICT OF COLUMBIA - CONSTRUCTION OF SWIMMING POOLS ON SCHOOL GROUND THE APPROPRIATION FOR THE CONSTRUCTION OF SWIMMING POOLS ON LANDS ACQUIRED FOR PARKS, PARKWAYS, OR PLAYGROUNDS IS NOT AVAILABLE FOR THE CONSTRUCTION OF SUCH POOLS ON LAND ACQUIRED BY THE DISTRICT OF COLUMBIA FOR SCHOOL PURPOSES.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 12, 1927:

THERE IS FOR CONSIDERATION BY THIS OFFICE A CONTRACT ENTERED INTO BY AND BETWEEN THE G. G. LOEHLER CO. AND U. S. GRANT, 3D, DIRECTOR OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, ON OCTOBER 6, 1927, FOR THE CONSTRUCTION OF PUBLIC BATHHOUSES AND PUBLIC SWIMMING POOLS ON THE GROUNDS OF THE MCKINLEY HIGH SCHOOL, IN WASHINGTON, D.C., THE COST THEREOF TO BE CHARGED TO THE APPROPRIATION AUTHORIZED BY THE ACT APPROVED MAY 4, 1926, 44 STAT. 394, READING AS FOLLOWS:

THAT THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL BE, AND HE IS HEREBY, AUTHORIZED AND DIRECTED TO LOCATE AND CONSTRUCT, SUBJECT TO THE APPROVAL OF THE NATIONAL CAPITAL PARK COMMISSION, AND TO CONDUCT AND MAINTAIN TWO ARTIFICIAL BATHING POOLS OR BEACHES IN THE DISTRICT OF COLUMBIA, ONE POOL FOR THE WHITE RACE AND THE OTHER FOR THE COLORED RACE, WITH SUITABLE BUILDINGS, SHOWER BATHS, LOCKERS, PROVISIONS FOR THE USE OF FILTERED WATER, PURIFICATION OF THE WATER, AND ALL THINGS NECESSARY FOR THE PROPER CONDUCT OF SUCH POOLS OR BEACHES. THE COMMISSION OF FINE ARTS SHALL BE CONSULTED AS TO THE LOCATION AND CONSTRUCTION OF SAID POOLS OR BEACHES. THE COST OF THESE POOLS OR BEACHES, WITH BUILDINGS AND EQUIPMENT, SHALL NOT EXCEED $345,000, AND THE APPROPRIATION OF SUCH SUM FOR THE PURPOSES NAMED IS HEREBY AUT!ORIZED. NO PART OF THE SUMS APPROPRIATED FOR THE PURPOSES OF THIS ACT SHALL BE EXPENDED IN THE PURCHASE OF LAND AND THE POOLS OR BEACHES HEREIN PROVIDED FOR SHALL BE LOCATED UPON LANDS ACQUIRED OR HEREAFTER ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.

SAID APPROPRIATION HAVING BEEN MADE BY THE ACT APPROVED MARCH 2, 1927, 44 STAT. 1329, AS FOLLOWS:

FOR THE CONSTRUCTION OF TWO BATHING POOLS IN PURSUANCE OF THE ACT ENTITLED "AN ACT FOR THE ESTABLISHMENT OF ARTIFICIAL BATHING POOLS OR BEACHES IN THE DISTRICT OF COLUMBIA," APPROVED MAY 4, 1926 (FORTY FOURTH STATUTES, PAGE 394), TO BE AVAILABLE IMMEDIATELY, $150,000: * * *

THE CONTRACT HERE IN QUESTION PROVIDES FOR THE CONSTRUCTION OF BATHHOUSES, SWIMMING POOLS, TC., ON THE SOUTHWEST CORNER OF THE MCKINLEY HIGH SCHOOL GROUNDS NEAR FIRST AND R STREETS NE., SAID SITE BEING A PART OF THE LAND PURCHASED AND PAID FOR UNDER THAT PORTION OF THE ACT APPROVED FEBRUARY 28, 1923, 42 STAT. 1347, READING AS FOLLOWS:

FOR THE PURCHASE OF LAND FOR SCHOOL PURPOSES ADJACENT TO THE LANGLEY JUNIOR HIGH SCHOOL, $215,000.

THE QUESTION FOR CONSIDERATION AT THIS TIME IS AS TO WHETHER THE LAND PURCHASED "FOR SCHOOL PURPOSES" MAY BE REGARDED AS HAVING BEEN "ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.' IF THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE, THE APPROPRIATION HERE IN QUESTION IS NOT AVAILABLE FOR THE CONSTRUCTION OF THE BATHING POOLS, BECAUSE THE USE OF SAID APPROPRIATION IS SPECIFICALLY RESTRICTED TO POOLS TO BE LOCATED UPON LANDS "ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.'

WHILE THE TERM "FOR SCHOOL PURPOSES" IS BROADER OR MORE COMPREHENSIVE THAN THE TERM "FOR THE ERECTION OF SCHOOL BUILDINGS," AND WOULD PROPERLY INCLUDE THE CONSTRUCTION OF GYMNASIUMS, STADIUMS, AND SIMILAR FACILITIES FOR THE USE OF THE PUPILS OF THE SCHOOL FOR RECREATION PURPOSES AND MIGHT, UNDER CERTAIN CONDITIONS, INCLUDE THE CONSTRUCTION OF A SWIMMING POOL CONSTRUCTED PRIMARILY FOR THE USE OF THE PUPILS OF THE SCHOOL IF SUCH POOLS WERE DEEMED NECESSARY FOR THE PROPER RECREATION OR INSTRUCTION OF THE PUPILS OF THE SCHOOL, THE POOLS PROVIDED FOR UNDER THE CONTRACT HERE INVOLVED ARE NOT INTENDED PRIMARILY FOR THE USE OF THE PUPILS ATTENDING THE MCKINLEY HIGH SCHOOL, OR TO BE USED IN CONNECTION WITH ANY AUTHORIZED SCHOOL WORK. IT MAY BE NOTED HERE THAT THE ASSISTANT SUPERINTENDENT OF SCHOOLS IS QUOTED AS HAVING STATED: "THERE IS NOT THE SLIGHTEST QUESTION IN THE MINDS OF THE SCHOOL OFFICIALS THAT THE SCHOOL WOULD BE BETTER OFF IF THE POOLS WERE NOT THERE.'

IN SUPPORT OF THE PROPOSED USE OF THE APPROPRIATION HERE IN QUESTION THE NATIONAL CAPITAL PARK AND PLANNING COMMISSION SUBMITTED THE FOLLOWING EXPLANATION:

THE NATIONAL CAPITAL PARK AND PLANNING COMMISSION RECOMMENDED THE LOCATIONS MENTIONED, AS APPEARS FROM STATEMENT HEREWITH, WHICH IS DESIGNATED EXHIBIT C. THE LOCATION AND GENERAL DESIGN OF THE POOLS WAS ALSO APPROVED BY THE COMMISSION OF FINE ARTS. SEE EXHIBIT D HEREWITH. THE DISTRICT COMMISSIONERS AND THE BOARD OF EDUCATION CONCURRED IN THE LOCATIONS OF THE POOLS, AS WILL APPEAR FROM EXHIBIT E HEREWITH.

ATTENTION IS INVITED TO PAGES 720 TO 723, INCLUSIVE, OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE AND PAGES 73 TO 76 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON APPROPRIATIONS IN CHARGE OF THE DISTRICT OF COLUMBIA APPROPRIATION BILL FOR 1928, SIXTY- NINTH CONGRESS, SECOND SESSION. FROM THE REPORT OF THESE HEARINGS IT IS EVIDENT THAT CONGRESS WAS FULLY AWARE OF THE LOCATIONS PROPOSED FOR THE TWO POOLS AND MADE THE APPROPRIATION FOR THEIR CONSTRUCTION THERE, AND ALSO THAT THE DISTRICT ENGINEER COMMISSIONER, COLONEL BELL, REPRESENTING THE MUNICIPAL AUTHORITIES WHO HAVE JURISDICTION OVER THE SITE PROPOSED, GAVE THEIR APPROVAL.

WHILE THE GROUND ON WHICH THE POOL FOR WHITE PERSONS IS BEING BUILT WAS BOUGHT BY THE BOARD OF EDUCATION AND, THEREFORE, WAS APPROPRIATED FOR WITH OTHER MONEYS "FOR SCHOOL PURPOSES" THE PLANS FOR THE DEVELOPMENT OF THE GROUND SHOW THAT IT WAS NEVER INTENDED FOR THE CONSTRUCTION OF SCHOOL BUILDINGS, BUT ON THE CONTRARY WAS TO BE DEVELOPED ALONG WITH OTHER ADJACENT LAND BOUGHT AT THE SAME TIME FOR A LARGE RECREATION AND PLAYGROUND, INCLUDING A STADIUM, TENNIS COURTS, ETC., JUST SUCH USES AS JUSTIFY IT APPELATION OF AN AREA DESTINED FOR PLAYGROUND PURPOSES. * * *

THE APPROVAL AND RECOMMENDATION OF THE SITE BY THE VARIOUS AGENCIES AND INDIVIDUALS REFERRED TO COULD NOT AFFECT THE AVAILABILITY OF THE APPROPRIATION INVOLVED. THEY WERE CONSIDERING THE SITE FROM AN ENTIRELY DIFFERENT STANDPOINT. IT WAS NOT WITHIN THEIR AUTHORITY OR JURISDICTION TO DETERMINE WHETHER THE SITE WAS AVAILABLE UNDER THE LAW FOR THE PROPOSED USE; AND, FOR THE PURPOSES OF THEIR CONSIDERATION AND RECOMMENDATION, THEY, NO DOUBT, ASSUMED, AS OF COURSE, THAT THE SITE WAS AVAILABLE UNDER THE LAW.

IF, AS SUGGESTED IN THE ABOVE-QUOTED STATEMENT, THE SITE HERE IN QUESTION WAS IN FACT ACQUIRED FOR PLAYGROUND PURPOSES, THEN IT WAS ILLEGALLY ACQUIRED, AS THE APPROPRIATION USED FOR ITS PURCHASE WAS AVAILABLE ONLY FOR THE PURCHASE OF LAND "FOR SCHOOL PURPOSES.' BUT IT IS NOT TO BE ASSUMED THAT THE LAND WAS ACQUIRED FOR PLAYGROUND PURPOSES. THE APPROPRIATION USED BEING AVAILABLE ONLY FOR THE PURCHASE OF LAND FOR SCHOOL PURPOSES, AND A LARGE PORTION OF THE SITE HAVING BEEN ACTUALLY USED FOR SCHOOL PURPOSES, IT MUST BE ASSUMED THAT THE ENTIRE PURCHASE WAS ,FOR SCHOOL PURPOSES.'

IN VIEW OF THE FACTS AND THE STATUTES ABOVE SET FORTH, IT MUST BE CONCLUDED, FIRST, THAT THE GROUNDS OF THE MCKINLEY HIGH SCHOOL WERE PURCHASED FOR SCHOOL PURPOSES AND WERE NOT ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES; SECOND, THAT THERE IS NO APPROPRIATION AVAILABLE FOR THE CONSTRUCTION OF SWIMMING POOLS INTENDED PRIMARILY FOR USE IN CONNECTION WITH THE WORK OF THE SCHOOLS OF THE DISTRICT OF COLUMBIA; AND THIRD, THAT THE APPROPRIATION OF $150,000, MADE BY THE ACT OF MARCH 2, 1927, FOR THE CONSTRUCTION OF TWO BATHING POOLS, IS AVAILABLE ONLY FOR THE CONSTRUCTION OF POOLS LOCATED ON LAND ACQUIRED PRIMARILY FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.

IT NECESSARILY FOLLOWS THAT AS THE CONTRACT OF OCTOBER 6, 1927, WAS FOR A PURPOSE FOR WHICH NO APPROPRIATION IS AVAILABLE, NO PAYMENTS THEREUNDER ARE AUTHORIZED. THEREFORE, CREDIT FOR ANY PAYMENTS HERETOFORE OR HEREAFTER MADE UNDER SAID CONTRACT WILL NOT BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER MAKING THEM.