A-35117, FEBRUARY 28, 1931, 10 COMP. GEN. 395

A-35117: Feb 28, 1931

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ON PUBLIC PROPERTY AT PRIVATE EXPENSE THERE IS NO AUTHORITY OF LAW FOR ENTERING INTO A CONTRACT FOR THE ERECTION OF A MEMORIAL ON PUBLIC PROPERTY. THE SPECIFICATIONS CALLING FOR THE ERECTION OF A MEMORIAL MONUMENT WHICH WILL BE PRACTICALLY A REPLICA OF THE DOVER PATROL MEMORIAL MONUMENTS LOCATED AT DOVER. FROM THE OFFICE OF THE PAYMASTER GENERAL OF THE NAVY TO THIS OFFICE IT WAS STATED THAT THE AMOUNT OF $34. 129.40 AVAILABLE FOR THIS PURPOSE WAS TAKEN UP BY LIEUT. AS TO THE SOURCE OF THE FUNDS IT IS STATED IN THE LETTER THAT. - THE "DOVER PATROL MEMORIAL FUND" WAS RAISED BY POPULAR SUBSCRIPTION IN GREAT BRITAIN TO PERPETUATE THE MEMORY OF THE DOVER PATROL AND THE PART IT PLAYED IN SAFEGUARDING THE ENGLISH CHANNEL DURING THE WORLD WAR.

A-35117, FEBRUARY 28, 1931, 10 COMP. GEN. 395

MEMORIALS - ERECTION OF, ON PUBLIC PROPERTY AT PRIVATE EXPENSE THERE IS NO AUTHORITY OF LAW FOR ENTERING INTO A CONTRACT FOR THE ERECTION OF A MEMORIAL ON PUBLIC PROPERTY, THE USE OF WHICH FOR THE PURPOSE, HAS NOT BEEN SPECIFICALLY AUTHORIZED BY LAW.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 28, 1931:

THERE HAS BEEN SUBMITTED TO THIS OFFICE BY THE BUREAU OF YARDS AND DOCKS OF YOUR DEPARTMENT, FOR PREAUDIT, TWO VOUCHERS NUMBERED 1 AND 2 FOR $2,897.82 AND $118.08, RESPECTIVELY, IN FAVOR OF JOHN YOUNG, JR., REPRESENTING PROGRESS PAYMENTS UNDER CONTRACT NOY-896 OF SEPTEMBER 26, 1930, COVERING THE CONSTRUCTION OF A MONUMENT IN FORT HAMILTON PARK, N.Y., AS A MEMORIAL TO THE DOVER PATROL, AT A COST OF $29,760, THE SPECIFICATIONS CALLING FOR THE ERECTION OF A MEMORIAL MONUMENT WHICH WILL BE PRACTICALLY A REPLICA OF THE DOVER PATROL MEMORIAL MONUMENTS LOCATED AT DOVER, ENGLAND, AND CAPE BLANC NEZ, FRANCE.

IN A LETTER DATED JANUARY 7, 1931, FROM THE OFFICE OF THE PAYMASTER GENERAL OF THE NAVY TO THIS OFFICE IT WAS STATED THAT THE AMOUNT OF $34,129.40 AVAILABLE FOR THIS PURPOSE WAS TAKEN UP BY LIEUT. C. W. WHITE IN OCTOBER, 1930, AND DEPOSITED TO THE CREDIT OF THE NAVAL WORKING FUND TO TAKE CARE OF PAYMENTS UNDER THIS CONTRACT. AS TO THE SOURCE OF THE FUNDS IT IS STATED IN THE LETTER THAT---

THE "DOVER PATROL MEMORIAL FUND" WAS RAISED BY POPULAR SUBSCRIPTION IN GREAT BRITAIN TO PERPETUATE THE MEMORY OF THE DOVER PATROL AND THE PART IT PLAYED IN SAFEGUARDING THE ENGLISH CHANNEL DURING THE WORLD WAR. IT WAS TO BE USED TO ERECT MONOLITHS ON THE CLIFFS OF DOVER IN GREAT BRITAIN AND NEAR CAPE BLANC NEZ IN FRANCE, WHICH WOULD BE TESTIMONIALS OF THE COOPERATION OF THE FRENCH AND BRITISH NAVIES DURING THE WAR. ON 21 APRIL, 1920, 6,000 POUNDS OF THE AMOUNT RAISED WAS PRESENTED TO THE SECRETARY OF THE NAVY, HON. JOSEPHUS DANIELS, AS A GIFT FROM THE BRITISH PEOPLE TO THE AMERICAN PEOPLE FOR THE ERECTION OF A SIMILAR MONOLITH IN NEW YORK HARBOR AS A MEMORIAL TO THE PART THE AMERICAN NAVAL FORCES PLAYED IN THE DOVER PATROL WHICH KEPT THE DOVER STRAITS FREE FROM THE U BOATS.

IT IS NOT APPARENT UNDER WHAT AUTHORITY OF LAW THE DONATION IN THIS CASE WAS ACCEPTED ON BEHALF OF THE AMERICAN PEOPLE, AND THE PUBLIC CONTRACT ENTERED INTO FOR THE ERECTION OF A MONUMENT ON PUBLIC LANDS THE COST OF WHICH IS TO BE CHARGED TO THE DONATION SO ACCEPTED. IN CASES IN WHICH A MONUMENT OR MEMORIAL IS TO BE ERECTED ON PUBLIC LAND BY PRIVATE SUBSCRIPTION OR BY DONATIONS OF CIVIC OR OTHER ORGANIZATION IT APPEARS TO BE THE USUAL PRACTICE TO HAVE SPECIFIC LEGISLATIVE AUTHORITY FOR THE PURPOSE. SEE ACT OF FEBRUARY 26, 1917, 39 STAT. 944, AUTHORIZING THE REMOVAL OF THE STATUE OF ADMIRAL DUPONT IN DUPONT CIRCLE, WASHINGTON, D.C., AND THE ERECTION OF A MEMORIAL TO ADMIRAL DUPONT IN PLACE THEREOF; ACT OF AUGUST 15, 1921, 42 STAT. 170, AUTHORIZING A MEMORIAL TO EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE WHO DIED IN THE WAR WITH GERMANY, ON PUBLIC GROUNDS IN THE DISTRICT OF COLUMBIA; ACT OF DECEMBER 16, 1921, 42 STAT. 349, AUTHORIZING A MEMORIAL TO THE FIRST DIVISION, A.E.F., ON PUBLIC GROUNDS IN WASHINGTON, D.C.; ACT OF MARCH 3, 1923, 42 STAT. 1444, AUTHORIZING A MEMORIAL TO JOSEPH J. DARLINGTON, ON PUBLIC GROUND IN WASHINGTON, D.C.; ACT OF FEBRUARY 16, 1924, 43 STAT. 14, AUTHORIZING THE ERECTION OF THE NAVY AND MARINE MEMORIAL DEDICATED TO AMERICANS LOST AT SEA, IN WASHINGTON, D.C.; ACT OF JUNE 7, 1924, 43 STAT. 666, AUTHORIZING A MEMORIAL TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES FROM THE DISTRICT OF COLUMBIA WHO SERVED DURING THE WORLD WAR, IN POTOMAC PARK, DISTRICT OF COLUMBIA; ACT OF JUNE 7, 1926, 44 STAT. 699, AUTHORIZING THE WAKEFIELD MEMORIAL ASSOCIATION TO BUILD UPON GOVERNMENT OWNED LAND AT WAKEFIELD A REPLICA OF THE HOUSE IN WHICH GEORGE WASHINGTON WAS BORN; AND ACT OF MARCH 2, 1929, 45 STAT. 1540, AUTHORIZING THE ERECTION OF A MONUMENT OR MEMORIAL ON PUBLIC GROUND IN THE DISTRICT OF COLUMBIA TO OSCAR S. STRAUS. IN THE PRESENT MATTER THERE HAS BEEN CITED NO LAW AUTHORIZING THEIR ERECTION OF THE PROPOSED MONUMENT AT FORT HAMILTON, NOR HAS IT BEEN SHOWN THAT THE MATTER WAS BROUGHT TO THE ATTENTION OF THE CONGRESS DURING THE INTERVAL OF OVER 10 YEARS FROM THE DATE OF THE DONATION APPARENTLY WAS ACCEPTED BY THE THEN SECRETARY OF THE NAVY TO THE TIME THE PRESENT CONTRACT WAS ENTERED INTO. IT APPEARS, ALSO, THAT, DURING THAT PERIOD, A PART OF THE MONEY WAS ON DEPOSIT WITH A PRIVATE BANKING INSTITUTION, AND THE REMAINDER INVESTED IN GOVERNMENT SECURITIES, AND NO ACCOUNTING THEREFOR WAS RENDERED AS REQUIRED BY LAW UNTIL IT WAS TAKEN UP AS A CREDIT TO THE NAVAL WORKING FUND LAST OCTOBER.

AS TO THE ACCEPTANCE OF GIFTS OR DONATIONS ON BEHALF OF THE UNITED STATES, ATTENTION IS INVITED TO 30 OP.ATTY.GEN. 527, IN WHICH IT WAS SAID THAT A PROPERTY GIFT UPON CONDITION THAT IT BE MAINTAINED AS A SUITABLE MEMORIAL SHOULD NOT, AS A MATTER OF ADMINISTRATIVE POLICY, BE ACCEPTED ON BEHALF OF THE UNITED STATES WITHOUT THE CONSENT OF THE CONGRESS AND THE PRESIDENT. TO THE SAME EFFECT, SEE 22 COMP. DEC. 465. IT IS ASSUMED, OF COURSE, THAT THE EXPENSE INCIDENT TO THE UPKEEP AND MAINTENANCE OF THE MEMORIAL HERE INVOLVED, AFTER ITS ERECTION, IS TO BE BORNE BY THE UNITED STATES.

WITH RESPECT TO THE DISPOSITION, USE, ETC., OF PUBLIC PROPERTY, ARTICLE 4, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES, PROVIDES THAT---

THE CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES. * * *

CONSTRUING THIS PROVISION OF THE LAW OF THE LAND IT HAS BEEN HELD BY THE COURTS THAT THE CONGRESS HAS EXCLUSIVE JURISDICTION IN THE MATTER OF DIRECTING WHAT SHALL BE DONE WITH LANDS OR OTHER PROPERTY OWNED BY THE UNITED STATES. UNITED STATES V. NICOLL, 1 PAINE (US) 646; UNITED STATES V. GRATIOT, 14 PETERS 538; IRVINE V. MARSHALL, 20 HOWARD 53; LIGHT V. UNITED STATES, 220 U. S. 523.

IN SOME SPECIFIC INSTANCES THIS POWER OF DISPOSING OF OR OTHERWISE ADMINISTERING PUBLIC PROPERTY HAS BEEN DELEGATED BY THE CONGRESS TO THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER EXECUTIVE OFFICIAL. SEE SECTION 3749, REVISED STATUTES; THE ACT OF MARCH 3, 1879, 20 STAT. 383; ACT OF JULY 28, 1892, 27 STAT. 321; AND ACT OF MARCH 3, 1903, 32 STAT. 1112. EACH OF THESE STATUTES CONTAINS DIRECTIONS AS TO DISPOSITION AND ADMINISTRATION OF CERTAIN PROPERTY OWNED BY THE UNITED STATES BUT NONE OF THEM AUTHORIZES THE ACTION TAKEN IN THE PRESENT MATTER.

SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 48, PROVIDES THAT NO EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT SHALL INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF AN APPROPRIATION MADE THEREFOR UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW.

SECTION 3732, REVISED STATUTES, PROVIDES THAT NO CONTRACT OR PURCHASE ON BEHALF OF THE UNITED STATES SHALL BE MADE UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, AND BY SECTION 3733, REVISED STATUTES, IT WAS PROVIDED:

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.

WHILE IT MAY BE ARGUED IN THE PRESENT MATTER THAT SINCE THE MONEY HAS BEEN DONATED AND IS AVAILABLE FOR THE PURPOSE THERE IS NO NEED FOR THE CONGRESS TO MAKE AN APPROPRIATION TO COVER THE COST OF THE CONSTRUCTION OF THE MEMORIAL, ASSUMING THAT THE COST THEREOF WILL NOT EXCEED THE AMOUNT NOW AVAILABLE THEREFOR, THERE IS FOR CONSIDERATION, NEVERTHELESS, ASIDE FROM THE SETTING ASIDE THE NECESSARY LAND AREA, AND USE OF THE GOVERNMENT PROPERTY FOR THE ERECTION OF THE STRUCTURE, THE MATTER OF THE UPKEEP AND MAINTENANCE AFTER ITS ERECTION AS TO WHICH THERE HAS BEEN GRANTED NO LEGISLATIVE AUTHORITY.

FURTHERMORE, THE SECTIONS OF THE REVISED STATUTES HEREIN CITED AND QUOTED HAVE IN CONTEMPLATION NOT ONLY CONTRACTS AND PURCHASES FOR WHICH MONEYS ARE APPROPRIATED OR TO BE APPROPRIATED FROM PUBLIC FUNDS, BUT, ALSO, OTHER PUBLIC CONTRACTS IN WHICH THE GOVERNMENT IS INVOLVED BY THE ACTS OF ITS OFFICERS EVEN THOUGH THE CONSIDERATION UNDER SUCH CONTRACT MAY BE PAID FROM PRIVATE FUNDS, AND THE PROVISIONS OF SECTION 3733, REVISED STATUTES, SUPRA, HAVE BEEN HELD AS PROHIBITING THE ENTERING INTO CONTRACTS FOR IMPROVEMENTS, SUCH AS A MEMORIAL MONUMENT AS PROPOSED IN THIS CASE, ON PUBLIC PROPERTY UNLESS SPECIFICALLY AUTHORIZED BY LAW. ALSO, THERE HAS BEEN NO APPROPRIATION MADE FOR THIS IMPROVEMENT. THE DONATION AS SUCH MAY NOT BE CONSIDERED AN APPROPRIATION WITHIN THE MEANING OF THIS LAW. BEST, UNTIL THE DONATION HAS BEEN DULY ACCEPTED BY PROPER AUTHORITY AND THE CONGRESS HAS DIRECTED WHAT DISPOSITION MAY BE MADE OF SAME, THE DONATION MUST BE CONSIDERED AS MONEY HELD IN TRUST AWAITING LEGISLATIVE AUTHORITY FOR ITS DISPOSITION.

THE FACTS AND CIRCUMSTANCES AS PRESENTED BY THE RECORD AS SUCH AS TO COMPEL THE HOLDING THAT THE CONTRACT ENTERED INTO IS IN CONTRAVENTION OF LAW, AND IN THE ABSENCE OF APPROPRIATE LEGISLATION TO TAKE CARE OF THE MATTER, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF THE COMPENSATION PROVIDED FOR THEREUNDER. THEREFORE, PAYMENT ON THE TWO VOUCHERS UNDER CONSIDERATION IS NOT AUTHORIZED. THE VOUCHERS WILL BE RETAINED IN THIS OFFICE.