A-28162, AUGUST 15, 1929, 9 COMP. GEN. 75

A-28162: Aug 15, 1929

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PAYMENT FOR THE LAND IS NOT AUTHORIZED UNTIL THE CERTIFICATE OF ATTORNEY GENERAL OF THE UNITED STATES AS TO THE VALIDITY OF THE TITLE HAS BEEN FURNISHED. IT IS MANDATORY THAT THE PROVISIONS OF SECTION 355. BE COMPLIED WITH BEFORE PAYMENT IS MADE FOR THE LAND. APPEAR TO HAVE BEEN INFLUENCED BY THE OTHER STATUTES REFERRED TO IN THE OPINIONS. IN SO FAR AS THE PRESENT QUESTION IS CONCERNED. APPEAR TO HAVE BEEN NULLIFIED BY THE OPINIONS OF ATTORNEY GENERAL WICKERSHAM. THE OPINION OF THE ATTORNEY GENERAL AS TO THE VALIDITY OF THE TITLE IS NOT NECESSARY. IT WAS UNNECESSARY TO STATE IN THE OPINION SUCH A REQUIREMENT. THE SUGGESTION QUOTED WAS ADDED. BECAUSE INDEPENDENT OF THE STATUTE IT WAS DEEMED A WISE PRECAUTION THAT THE TITLE TO THE LANDS SHOULD BE EXAMINED BEFORE IMPROVEMENTS SHOULD BE PLACED THEREON.

A-28162, AUGUST 15, 1929, 9 COMP. GEN. 75

PUBLIC BUILDINGS - ACQUISITION OF SITES THE PURCHASER OF LAND BY THE FOREST SERVICE FOR THE ERECTION OF NECESSARY BUILDINGS FOR A RANGER STATION CONSTITUTES THE PURCHASE OF LANDS FOR THE ERECTION OF PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES, AND PAYMENT FOR THE LAND IS NOT AUTHORIZED UNTIL THE CERTIFICATE OF ATTORNEY GENERAL OF THE UNITED STATES AS TO THE VALIDITY OF THE TITLE HAS BEEN FURNISHED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, AUGUST 15, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 27, 1929, REQUESTING DECISION WHETHER IN THE PURCHASE OF TRACTS OF LAND TO BE USED AS SITES FOR RANGER STATIONS IN THE ADMINISTRATION AND PROTECTION OF NATIONAL FORESTS, IT IS MANDATORY THAT THE PROVISIONS OF SECTION 355, REVISED STATUTES, BE COMPLIED WITH BEFORE PAYMENT IS MADE FOR THE LAND.

SECTION 355, REVISED STATUTES, 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, CUSTOMHOUSE, 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 DISTRICT ATTORNEYS OF THE UNITED STATES, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL FURNISH ANY ASSISTANCE OR INFORMATION IN THEIR POWER IN RELATION TO THE TITLES OF THE PUBLIC PROPERTY LYING WITHIN THEIR RESPECTIVE DISTRICTS. AND THE SECRETARIES OF THE DEPARTMENTS, UPON THE APPLICATION OF THE ATTORNEY GENERAL, SHALL PROCURE ANY ADDITIONAL EVIDENCE OF TITLE WHICH HE MAY DEEM NECESSARY, AND WHICH MAY NOT BE IN THE POSSESSION OF THE OFFICERS OF THE GOVERNMENT, AND THE EXPENSE OF PROCURING IT SHALL BE PAID OUT OF THE APPROPRIATIONS MADE FOR THE CONTINGENCIES OF THE DEPARTMENTS, RESPECTIVELY.

THE VIEW EXPRESSED BY THE ATTORNEY GENERAL IN 10 OP. ATTY. GEN. 34, CITED IN YOUR SUBMISSION, THAT THE JOINT RESOLUTION OF SEPTEMBER 11, 1841, WHICH SUBSEQUENTLY BECAME THE BASIS OF SECTION 355, REVISED STATUTES, DID NOT REQUIRE THE WRITTEN OPINION OF THE ATTORNEY GENERAL BEFORE THE PURCHASE OF THE LAND BUT ONLY BEFORE THE ERECTION OF BUILDINGS ETC., HAS BEEN NOT CONCURRED IN BY THE FORMER COMPTROLLER OF THE TREASURY NOR BY THIS OFFICE. THE SUBSEQUENT OPINIONS OF THE ATTORNEY GENERAL,REPORTED IN VOLUME 13, PAGE 131, AND VOLUME 15, PAGE 212, APPEAR TO HAVE BEEN INFLUENCED BY THE OTHER STATUTES REFERRED TO IN THE OPINIONS. FURTHERMORE, ALL OF THESE OPINIONS, IN SO FAR AS THE PRESENT QUESTION IS CONCERNED, APPEAR TO HAVE BEEN NULLIFIED BY THE OPINIONS OF ATTORNEY GENERAL WICKERSHAM, PUBLISHED IN 28 OP. ATTY. GEN. 413, 463, THE LAST PARAGRAPH OF THE LATTER OF WHICH READS:

THIS CONTAINS NO INTIMATION, AS YOU SUGGEST IT MIGHT, THAT WHEN SECTION 355 REVISED STATUTES, DOES APPLY, THE OPINION OF THE ATTORNEY GENERAL AS TO THE VALIDITY OF THE TITLE IS NOT NECESSARY. IT WAS UNNECESSARY TO STATE IN THE OPINION SUCH A REQUIREMENT, BECAUSE THE LANGUAGE OF THE STATUTE COULD NOT BE MADE MORE EXPLICIT BY ITS REPETITION; AND THE SUGGESTION QUOTED WAS ADDED, FIRST, THAT THE REQUIREMENT MIGHT BE COMPLIED WITH IN CASE SECTION 355 DID APPLY, AND, SECOND, BECAUSE INDEPENDENT OF THE STATUTE IT WAS DEEMED A WISE PRECAUTION THAT THE TITLE TO THE LANDS SHOULD BE EXAMINED BEFORE IMPROVEMENTS SHOULD BE PLACED THEREON.

IN DECISION OF NOVEMBER 21, 1896, 3 COMP. DEC. 195, THE COMPTROLLER OF THE TREASURY STATED:

I AM CLEARLY OF THE OPINION THAT THIS SECTION (SEC. 355, REVISED STATUTES) NOT ONLY PROHIBITS PAYMENT FOR LAND TO BE USED FOR THE PURPOSES THEREIN ENUMERATED UNTIL THE ATTORNEY GENERAL SHALL HAVE CERTIFIED TO THE VALIDITY OF THE TITLE * * *.

SEE, ALSO, 1 COMP. GEN. 625, ID. 752, IN WHICH IT WAS HELD THAT THE TENDER OF THE PURCHASE PRICE COULD NOT HAVE BEEN MADE UNDER THE LAWS GOVERNING THE PAYMENT FOR LANDS PURCHASED BY THE UNITED STATES UNTIL THE TITLE HAS BEEN CERTIFIED BY THE ATTORNEY GENERAL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 355, REVISED STATUTES,"WHICH FORM A PART OF EVERY CONTRACT FOR THE PURCHASE OF LAND BY THE UNITED STATES.'

YOU EXPRESS THE VIEW, ALSO, THAT THE BUILDINGS ERECTED UPON A RANGERSTATION, BY REASON OF THEIR UNSUBSTANTIAL OR CHEAP CONSTRUCTION AND THE NECESSITY OF MOVING THE STATIONS FROM TIME TO TIME, ARE OF SUCH CHARACTER AS NOT TO BE CONSIDERED PUBLIC BUILDINGS WITHIN THE PURVIEW OF SAID SECTION 355, WHICH SECTION, YOU SUGGEST, SHOULD BE LIMITED TO PERMANENT BUILDINGS. SAID SECTION, HOWEVER, SPECIFICALLY REFERS TO PUBLIC BUILDINGS "OF ANY KIND WHATEVER," WHICH LANGUAGE DOES NOT PERMIT OF THE CONSTRUCTION SUGGESTED BY YOU. IN CONSTRUING THE TERM "PUBLIC BUILDINGS" AS USED IN SECTION 3733, REVISED STATUTES, IT HAS BEEN HELD REPEATEDLY THAT THE DETERMINATION OF WHETHER STRUCTURES ARE PUBLIC BUILDINGS WITHIN THE PURVIEW THEREOF DOES NOT DEPEND UPON THE CHARACTER OF THEIR CONSTRUCTION, AND THAT ANY STRUCTURE IN THE FORM OF A BUILDING NOT CLEARLY OF A TEMPORARY CHARACTER, IS A PUBLIC BUILDING WITHING THE MEANING OF SAID SECTION. 10 COMP. DEC. 683; 13 ID. 355; 2 COMP. GEN. 14; ID. 477; 6 ID. 619. THE DETERMINATION THAT THE BUILDINGS NECESSARILY ERECTED UPON A RANGER STATION ARE PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355, WOULD NOT NECESSARILY MEAN, AS SUGGESTED BY YOU, THAT THEY WOULD BE CONSIDERED PUBLIC BUILDINGS WITHIN THE MEANING OF THAT TERM WHEREVER IT MAY BE FOUND IN THE FEDERAL STATUTES. WITH RESPECT TO THE STATUTES CITED BY YOU AS IN PARI MATERIA, IT MAY BE STATED THAT SUCH OF THE STATUTES CITED AS REQUIRE ACTION BY THE SECRETARY OF THE TREASURY OR THE SUPERVISING ARCHITECT OF THE TREASURY ARE APPLICABLE ONLY TO PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT. 3 COMP. DEC. 216; 8 ID. 212; 25 ID. 195; 3 COMP. GEN. 571; A-10160, SEPTEMBER 10, 1925. 10160, SEPTEMBER 10, 1925.

THE ACT OF AUGUST 13, 1894, 28 STAT. 278, AS AMENDED BY THE ACT OF FEBRUARY 24, 1905, 33 STAT. 811, REQUIRING BONDS IN CONNECTION WITH CONTRACTS FOR CONSTRUCTION OF PUBLIC BUILDINGS, DOES NOT REQUIRE THAT SUCH BUILDINGS BE ERECTED BY CONTRACT IN ALL CASES AND WOULD NOT, AS SUGGESTED BY YOU, PREVENT THE CONSTRUCTION OR ERECTION OF BUILDINGS UPON RANGER STATIONS BY THE PERSONNEL OF THE FOREST SERVICE WITHOUT ANY REQUIREMENT FOR A BOND. SEE 4 COMP. GEN. 58.

THE FACTS, CIRCUMSTANCES, AND ARGUMENTS PRESENTED IN YOUR SUBMISSION HAVE BEEN GIVEN CAREFUL CONSIDERATION, BUT IT MUST BE HELD THAT THE PROVISIONS OF SECTION 355, REVISED STATUTES, ARE APPLICABLE TO THE PURCHASE OF SITES FOR THE ERECTION OF THE NECESSARY BUILDINGS FOR RANGER STATIONS AND THAT THE CERTIFICATE BY THE ATTORNEY GENERAL AS TO THE VALIDITY OF THE TITLE IS NECESSARY BEFORE PAYMENT FOR SUCH SITES IS AUTHORIZED.