A-35500, MARCH 19, 1931, 10 COMP. GEN. 418

A-35500: Mar 19, 1931

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THERE IS NO AUTHORITY FOR THE PAYMENT OF A JUDGMENT RENDERED IN CONDEMNATION PROCEEDINGS PROVIDING FOR A PAYMENT IN EXCESS OF THE ASSESSED VALUE. CONGRESS AUTHORIZED THE ESTABLISHMENT OF A NATIONAL ARBORETUM AND PURSUANT TO THE TERMS OF THIS STATUTE THERE WAS INCLUDED IN THE FIRST DEFICIENCY ACT. ALL OF THESE PURCHASES WERE NEGOTIATED WITH THE OWNERS OF THE PROPERTY BY PRIVATE SALE. WERE WITHIN THE LIMITS OF THE PROVISION OF SECTION 1 OF THE ARBORETUM ACT. THAT IS. WAS UNABLE TO AGREE WITH THE OWNERS ON THE PRICE. AS THESE PARCELS OF LAND WERE IN THE IMMEDIATE AREA OF THE LAND ALREADY ACQUIRED BY THE DEPARTMENT FOR THE ARBORETUM. WERE KEY PROPERTIES NECESSARY TO THE PROPER ACCOMPLISHMENT OF THE PURPOSES FOR WHICH THE APPROPRIATION WAS MADE.

A-35500, MARCH 19, 1931, 10 COMP. GEN. 418

REAL ESTATE - ACQUISITION BY CONDEMNATION - NATIONAL ARBORETUM UNDER THE NATIONAL ARBORETUM ACT OF MARCH 4, 1927, 44 STAT. 1422, PROVIDING THAT IN THE ACQUISITION OF LAND BY PRIVATE PURCHASE, CONDEMNATION, OR GIFT, TO CARRY OUT ITS PROVISIONS THE PURCHASE PRICE OF ANY OF THE LAND SHALL NOT EXCEED THE VALUE ASSESSED FOR TAXING PURPOSES PLUS 25 PERCENTUM, THERE IS NO AUTHORITY FOR THE PAYMENT OF A JUDGMENT RENDERED IN CONDEMNATION PROCEEDINGS PROVIDING FOR A PAYMENT IN EXCESS OF THE ASSESSED VALUE, PLUS 25 PERCENTUM, OR FOR TAKING TITLE TO THE LAND UNDER THE CONDEMNATION PROCEEDINGS WHERE TO DO SO WOULD RESULT IN COMMITMENTS IN EXCESS OF THE LIMITS OF THE TOTAL AMOUNT AUTHORIZED AND APPROPRIATED FOR THE PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MARCH 19, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 19, 1931, AS FOLLOWS:

UNDER DATE OF MARCH 4, 1927 (44 STAT. 1422), CONGRESS AUTHORIZED THE ESTABLISHMENT OF A NATIONAL ARBORETUM AND PURSUANT TO THE TERMS OF THIS STATUTE THERE WAS INCLUDED IN THE FIRST DEFICIENCY ACT, APPROVED DECEMBER 22, 1927 (45 STAT. 14), THE SUM OF $300,00 FOR THE PURCHASE OF LAND AND RELATED PURPOSES NECESSARY FOR THE ESTABLISHMENT OF SAID ARBORETUM. THIS AMOUNT $228,531.24 HAS BEEN EXPENDED FOR ACQUIRING LAND AND EXPENSES INCIDENT THERETO FOR THE SAID ARBORETUM. ALL OF THESE PURCHASES WERE NEGOTIATED WITH THE OWNERS OF THE PROPERTY BY PRIVATE SALE, AND WERE WITHIN THE LIMITS OF THE PROVISION OF SECTION 1 OF THE ARBORETUM ACT, WHICH PROVIDES THAT THE PURCHASE PRICE OF ANY PART OF SAID LAND MAY NOT EXCEED THE FULL VALUE ASSESSMENT OF SUCH PROPERTY LAST MADE BEFORE PURCHASE THEREOF, PLUS 25 PERCENT OF SUCH ASSESSED VALUE.

THE DEPARTMENT ENDEAVORED TO OBTAIN ADDITIONAL LAND WITH THE BALANCE REMAINING OF THE $300,000, THAT IS, $71,468.76, WITHIN THE LIMITS OF 125 PERCENT OF THE ASSESSED VALUATION PRESCRIBED BY CONGRESS FOR THE PURCHASE OF SAME, BUT WAS UNABLE TO AGREE WITH THE OWNERS ON THE PRICE. AS THESE PARCELS OF LAND WERE IN THE IMMEDIATE AREA OF THE LAND ALREADY ACQUIRED BY THE DEPARTMENT FOR THE ARBORETUM, AND WERE KEY PROPERTIES NECESSARY TO THE PROPER ACCOMPLISHMENT OF THE PURPOSES FOR WHICH THE APPROPRIATION WAS MADE, IT WAS FOUND NECESSARY TO CONDEMN SEVERAL OF THESE TRACTS. ACCORDINGLY, CONDEMNATION PETITIONS WERE FILED ON PARCELS 162/4, 162/8, 172/3, 172/4, AND 172/9, AND AFTER THE PROPER CONDEMNATION PROCEEDINGS THE JURY AWARDED A VERDICT OF $138,459.66, AS THE AMOUNT THAT THE GOVERNMENT WOULD BE REQUIRED TO PAY FOR THESE FIVE PARCELS. THE ASSESSED VALUATION PLUS 25 PERCENT OF THESE FIVE PARCELS WAS $64,513.75, WHICH AMOUNT WAS PART OF THE UNEXPENDED BALANCE OF THE $71,468.76.

SECTION 1 OF THE ACT OF MARCH 4, 1927, AUTHORIZES THE SECRETARY OF AGRICULTURE TO ACQUIRE LANDS FOR THE PURPOSES OF A NATIONAL ARBORETUM BY PRIVATE PURCHASE, CONDEMNATION PROCEEDINGS, OR GIFT. THE QUESTION ARISES WHETHER THE LIMITATION OF 125 PERCENT OF THE PURCHASE PRICE APPLIED TO ALL THREE METHODS OF ACQUIRING THE LAND, THAT IS, BY GIFT PRIVATE PURCHASE, OR CONDEMNATION, OR WHETHER THE PROVISO IS A LIMITATION ONLY UPON THE PRICE THAT MAY BE AGREED UPON IN PRIVATE PURCHASE. SHOULD THIS PROVISO BE CONSTRUED AS LIMITING ALL METHODS OF ACQUIRING LAND FOR THE NATIONAL ARBORETUM, YOUR OPINION IS REQUESTED WHETHER SECTION 19 OF THE ACT APPROVED MARCH 1, 1929 (45 STAT. 1415 22), AN ACT TO PROVIDE FOR ACQUIRING LAND IN THE DISTRICT OF COLUMBIA FOR THE UNITED STATES BY CONDEMNATION, BEING LATER OF ENACTMENT, DOES NOT AMEND FOR THE NATIONAL ARBORETUM ACT, IN THAT THE METHOD OF ACQUIRING THE PROPERTY BY CONDEMNATION IS AN ENLARGEMENT ON THE AUTHORITY OF THE ACT OF MARCH 4, 1927, IN SO FAR AS SUCH CONDEMNATION PROCEEDINGS ARE WITHIN THE GENERAL LIMITATION OF THE NAVAL ARBORETUM ACT.

IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT A DECISION BE FURNISHED THIS DEPARTMENT AS TO WHETHER THE BALANCE OF $71,468.76 OF THE $300,000APPROPRIATED FOR THIS PURPOSE MAY BE USED TO PAY THE AWARDS IN SO FAR AS THIS MONEY WILL GO TOWARD SUCH PAYMENT FOR ANY ONE OR MORE OF THE TRACTS IN QUESTION.

THERE IS SOME DOUBT AS TO WHETHER THIS MATTER SHOULD BE PRESENTED IN THE FORM ABOVE OUTLINED, OR WHETHER, UNDER SECTION 19 OF THE CONDEMNATION ACT, IMMEDIATELY UPON THE AWARD BEING MADE BY THE JURY AND CONFIRMED BY THE COURT, THE ITEM OF $138,459.66 SHOULD BE PRESENTED TO YOU AS A CLAIM AGAINST THE GOVERNMENT FOR CERTIFICATION BY YOU TO CONGRESS. SECTION 19 ABOVE REFERRED TO READS AS FOLLOWS:

"ANY FINAL JUDGMENT RENDERED AGAINST THE UNITED STATES UNDER ANY PROVISION OF THIS ACT SHALL HAVE LIKE FORCE AND EFFECT AS A MONEY JUDGMENT RENDERED AGAINST THE UNITED STATES BY THE COURT OF CLAIMS IN A SUIT IN RESPECT OF WHICH THE UNITED STATES HAS EXPRESSLY CONSENTED TO BE SUED; AND THE AMOUNT OF ANY SUCH FINAL JUDGMENT SHALL BE PAID OUT OF ANY SPECIFIC APPROPRIATION APPLICABLE TO THE CASE, IF ANY SUCH THERE BE; AND WHEN NO SUCH APPROPRIATION EXISTS, SAID JUDGMENT SHALL BE PAID IN THE SAME MANNER (EXCEPT WITH RESPECT TO INTEREST) AS JUDGMENTS RENDERED BY THE COURT OF CLAIMS IN CASES UNDER ITS GENERAL JURISDICTION.'

THE FACT THAT CONGRESS HAS AUTHORIZED THE DEPARTMENT IN THE ACT AUTHORIZING THE NATIONAL ARBORETUM TO ACQUIRE LAND BY GIFT, PURCHASE, OR CONDEMNATION WOULD SEEM TO INDICATE THAT CONGRESS INTENDED THAT SUCH LANDS AS COULD NOT BE ACQUIRED WITHIN THE AMOUNT AUTHORIZED AT 125 PERCENT OF THE ASSESSED VALUATION COULD BE CONDEMNED AND THE AWARD MADE EXCLUSIVE OF THE LIMITATION OF THE 125 PERCENT AS THE MATTER IS THEN ONE NOT WITHIN THE DISCRETION OF THE SECRETARY BUT IS IN THE HANDS OF A JURY APPOINTED BY THE COURT AND ITS DECISION IS FINAL.

THE PARTICULAR PROVISIONS CONTAINED IN SECTION 1 OF THE NATIONAL ARBORETUM ACT OF MARCH 4, 1927, 44 STAT. 1422, WITH RESPECT TO THE ACQUISITION OF LAND FOR CARRYING OUT ITS PURPOSE, ARE THAT---

* * * THE SECRETARY OF AGRICULTURE IS AUTHORIZED IN HIS DISCRETION TO ACQUIRE, WITHIN THE LIMITS OF THE APPROPRIATION AUTHORIZED BY THIS ACT BY PRIVATE PURCHASE, CONDEMNATION PROCEEDINGS, OR GIFT, LAND SO LOCATED OR OTHER LAND WITHIN OR ADJACENT TO THE DISTRICT OF COLUMBIA: PROVIDED, THAT THE PURCHASE PRICE OF ANY PART OF SAID LAND SHALL NOT EXCEED THE FULL VALUE ASSESSMENT OF SUCH PROPERTY LAST MADE BEFORE PURCHASE THEREOF PLUS 25 PERCENTUM OF SUCH ASSESSED VALUE.

SECTION 2 OF THE ACT AUTHORIZES AN APPROPRIATION OF $300,000 TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE FOR THE ACQUISITION OF LAND AS SPECIFIED IN SECTION 1. THIS AMOUNT WAS APPROPRIATED BY THE DEFICIENCY ACT OF DECEMBER 22, 1927, 45 STAT. 14, AND CONSTITUTES THE ONLY FUNDS AVAILABLE FOR THE ACQUISITION OF LAND, FOR A NATIONAL ARBORETUM.

IT SHOULD BE NOTED THAT THE PROVISIONS OF SECTION 1 OF THE ARBORETUM ACT, SUPRA, CONTAIN TWO SPECIFIC LIMITATIONS WITH RESPECT TO THE ACQUISITION OF LAND FOR THE PURPOSE INDICATED, THE FIRST BEING THAT THE TOTAL AMOUNT TO BE EXPENDED FOR SUCH ACQUISITION SHOULD BE WITHIN THE LIMITS OF THE APPROPRIATION AUTHORIZED; THAT IS TO SAY, SHOULD NOT EXCEED THE AMOUNT OF $300,000, AND SECOND, THAT FOR "ANY PART OF SAID LAND" SO ACQUIRED THE PURCHASE PRICE SHALL NOT EXCEED THE ASSESSED VALUE PLUS 25 PERCENT. THESE LIMITATIONS ARE SO CLEAR AND SPECIFIC THAT THEY NEED NO ELABORATION AND THERE APPEARS TO BE NO DOUBT, ALSO AS TO THEIR APPLICATION IN ANY EVENT, WHETHER THE LAND IS TO BE ACQUIRED BY PRIVATE PURCHASE, BY CONDEMNATION, OR OTHERWISE, THERE BEING NOTHING IN THE ACT LIMITING THE PROVISO TO PRIVATE PURCHASES ONLY. SEE 6 COMP. GEN. 145.

WITH RESPECT TO YOUR SUGGESTION THAT THE PROVISIONS OF THE NATIONAL ARBORETUM ACT MAY HAVE BEEN AMENDED BY THE ACT OF MARCH 1, 1929, 45 STAT. 1415, PROVIDING A GENERAL PROCEDURE FOR THE ACQUISITION BY CONDEMNATION OF LAND IN THE DISTRICT OF COLUMBIA FOR THE UNITED STATES, INCLUDING PROVISIONS IN SECTION 19 THEREOF QUOTED IN YOUR LETTER AS TO THE MANNER OF PAYMENT OF JUDGMENTS RENDERED IN SUCH CONDEMNATION PROCEEDINGS, IT MAY BE STATED THAT IT IS A WELL ESTABLISHED RULE OF CONSTRUCTION THAT AS BETWEEN TWO STATUTES RELATING TO THE SAME SUBJECT MATTER, ONE SPECIAL AND THE OTHER GENERAL, THE SPECIAL STATUTE WILL PREVAIL OVER THE GENERAL EVEN THOUGH THE SPECIAL STATUTE MAY HAVE BEEN ENACTED PRIOR TO THE GENERAL STATUTE UNLESS THE GENERAL STATUTE CONTAINS SPECIFIC PROVISIONS AMENDING THE PRIOR SPECIAL ACT OR IT IS OTHERWISE SHOWN THAT THE GENERAL STATUTE WAS INTENDED TO SUPERSEDE THE SPECIAL STATUTE, WHICH DOES NOT APPEAR TO BE THE CASE IN THE PRESENT MATTER. SEE RODGERS V. UNITED STATES, 185 U. S. 83.

FURTHERMORE, EVEN IF SECTION 19 OF THE ACT OF 1929 COULD BE HELD AS APPLICABLE TO AMEND THE PROVISO IN SECTION 1 OF THE NATIONAL ARBORETUM ACT RELATING TO THE PAYMENT OF THE ASSESSED VALUE, PLUS 25 PERCENT, IT IS NOT APPARENT HOW THE OTHER LIMITATION IN THE ACT RELATING TO THE TOTAL AMOUNT MADE AVAILABLE FOR THE PURPOSE COULD BE OVERCOME. IT IS NOTED THAT SECTION 19 OF THE ACT OF 1929 PROVIDES THAT THE AMOUNT OF ANY SUCH FINAL JUDGMENT SHALL BE PAID OUT OF ANY SPECIFIC APPROPRIATION TO THE CASE, IF ANY SUCH THERE BE, AND THAT WHEN NO SUCH APPROPRIATION EXISTS, SAID JUDGMENT IS TO BE PAID IN THE SAME MANNER, INTEREST EXCEPTED, AS JUDGMENTS RENDERED BY THE COURT OF CLAIMS IN CASES UNDER IT GENERAL JURISDICTION. IN THE CASE PRESENTED BY YOUR SUBMISSION THERE IS NOT INVOLVED A MATTER IN WHICH A GENERAL AUTHORIZATION WAS GRANTED BY STATUTE TO INSTITUTE CONDEMNATION PROCEEDINGS FOR THE ACQUISITION OF LAND WITHOUT MAKING AN APPROPRIATION, OR MAKING ONLY A PARTIAL APPROPRIATION, THEREFOR, IN WHICH EVENT THE JUDGMENT WOULD BE FOR REPORTING TO THE CONGRESS FOR AN APPROPRIATION AS A JUDGMENT CLAIM. THE CASE PRESENTS RATHER A SITUATION IN WHICH A SPECIFIC APPROPRIATION WILL BE EXCEEDED IF THE JUDGMENT CLAIM IS REPORTED TO THE CONGRESS FOR AN APPROPRIATION TO PAY THE SAME.

CLEARLY THERE IS NO AUTHORITY UNDER EXISTING LAW TO ACQUIRE LAND FOR THE NATIONAL ARBORETUM AT AN AGGREGATE COST IN EXCESS OF $300,000.

IT IS SUGGESTED THAT IF IT IS DETERMINED ADMINISTRATIVELY THAT THE LAND INVOLVED IN THE CONDEMNATION PROCEEDINGS, OR ANY PORTION THEREOF, IS NEEDED FOR CARRYING OUT THE PROVISIONS OF THE NATIONAL ARBORETUM ACT, THE MATTER IS FOR PRESENTATION TO THE CONGRESS ADMINISTRATIVELY FOR SUCH REMEDIAL LEGISLATION AS THAT BODY MAY DEEM APPROPRIATE. IN THE ABSENCE OF SUCH ADEQUATE LEGISLATION, HOWEVER, I HAVE TO ADVISE THERE IS NO AUTHORITY OF LAW TO MAKE PAYMENTS OR INCUR OBLIGATIONS FOR THE ACQUISITION OF LAND UNDER THE AUTHORITY OF THE NATIONAL ARBORETUM ACT OF 1927 IN AMOUNTS IN EXCESS OF THOSE PROVIDED FOR THEREIN. THAT IS TO SAY, THE COST TO THE UNITED STATES OF ANY OF THE LAND MAY NOT BE IN EXCESS OF THE ASSESSED VALUE PLUS 25 PERCENT, WHETHER THE LAND BE ACQUIRED BY PRIVATE PURCHASE OR BY CONDEMNATION PROCEEDINGS, AND THE AGGREGATE COMMITMENTS FOR ALL SUCH ACQUISITIONS MUST NOT EXCEED $300,000.