A-4327, AUGUST 28, 1924, 4 COMP. GEN. 219

A-4327: Aug 28, 1924

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IS AN . 1924: I HAVE YOUR LETTER OF JULY 26. YOU STATE THAT AFTER AN INVESTIGATION YOU HAVE REACHED THE DECISION THAT IT IS IMPRACTICABLE TO MAKE CONTRACTS FOR THE PURCHASE OF THESE RIGHTS. HAVE FOUND IT NECESSARY TO REQUEST THE ATTORNEY GENERAL TO INSTITUTE CONDEMNATION PROCEEDINGS PURSUANT TO THE PROVISIONS OF THE ACT REFERRED TO. YOU REQUEST TO BE ADVISED WHETHER THERE IS AN APPROPRIATION OF FUNDS AVAILABLE AT THIS TIME TO MEET THE EXPENSE. 42 STAT. 67 PROVIDES: THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO EXAMINE AND APPRAISE THE VALUE OF THE PRIVATELY OWNED RIGHTS OF FISHERY IN PEARL HARBOR. IF IN HIS JUDGMENT THE PRICE FOR SUCH RIGHTS IS REASONABLE AND SATISFACTORY. HE IS HEREBY AUTHORIZED AND DIRECTED THROUGH THE ATTORNEY GENERAL TO INSTITUTE AND CARRY TO COMPLETION PROCEEDINGS FOR THE CONDEMNATION OF SAID RIGHTS OF FISHERY.

A-4327, AUGUST 28, 1924, 4 COMP. GEN. 219

APPROPRIATIONS AUTHORIZED OR MADE NO ACT OF CONGRESS MAY BE CONSTRUED AS MAKING AN APPROPRIATION UNLESS IT SPECIFICALLY DECLARES AN APPROPRIATION TO BE MADE. THE ACT OF JUNE 28, 1921, 42 STAT. 67, AUTHORIZING THE SECRETARY OF THE NAVY TO EXAMINE AND APPRAISE THE VALUE OF THE PRIVATELY-OWNED RIGHTS OF FISHERY IN PEARL HARBOR, ISLAND OF OAHU, TERRITORY OF HAWAII, AND TO ENTER INTO NEGOTIATION FOR THE PURCHASE OF SAID RIGHTS, AUTHORIZES A SUM TO BE APPROPRIATED, TO BE IMMEDIATELY AND CONTINUOUSLY AVAILABLE UNTIL EXPENDED, AND IS AN ,AUTHORIZATION ACT" AS DISTINGUISHED FROM AN "APPROPRIATION ACT," AND NO PAYMENT MAY BE LAWFULLY MADE FROM THE TREASURY UNTIL CONGRESS MAKES AN APPROPRIATION TO CARRY OUT THE INTENTIONS OF THE ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 28, 1924:

I HAVE YOUR LETTER OF JULY 26, 1924, RELATIVE TO THE AUTHORITY GRANTED IN THE ACT OF JUNE 28, 1921, 42 STAT. 67, TO EXAMINE AND APPRAISE PRIVATELY- OWNED RIGHTS OF FISHERY IN PEARL HARBOR, ISLAND OF OAHU, TERRITORY OF HAWAII, AND TO MAKE CONTRACTS FOR THE PURCHASE OF SAME SUBJECT TO FUTURE RATIFICATION AND APPROPRIATION BY CONGRESS.

YOU STATE THAT AFTER AN INVESTIGATION YOU HAVE REACHED THE DECISION THAT IT IS IMPRACTICABLE TO MAKE CONTRACTS FOR THE PURCHASE OF THESE RIGHTS, AND, CONSEQUENTLY, HAVE FOUND IT NECESSARY TO REQUEST THE ATTORNEY GENERAL TO INSTITUTE CONDEMNATION PROCEEDINGS PURSUANT TO THE PROVISIONS OF THE ACT REFERRED TO, BUT BECAUSE OF CERTAIN EXPENSES IN CONNECTION WITH THE WORK, YOU REQUEST TO BE ADVISED WHETHER THERE IS AN APPROPRIATION OF FUNDS AVAILABLE AT THIS TIME TO MEET THE EXPENSE.

THE ACT OF JUNE 28, 1921, 42 STAT. 67 PROVIDES:

THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO EXAMINE AND APPRAISE THE VALUE OF THE PRIVATELY OWNED RIGHTS OF FISHERY IN PEARL HARBOR, ISLAND OF OAHU, TERRITORY OF HAWAII, FROM AN IMAGINARY LINE FROM KAAK POINT TO BECKONING POINT, BOTH WITHIN SAID HARBOR, TO THE SEAWARD, AND THE PRIVATELY OWNED RIGHTS OF FISHERY IN AND ABOUT THE ENTRANCE CHANNEL TO SAID HARBOR, AND TO ENTER INTO NEGOTIATIONS FOR THE PURCHASE OF THE SAID RIGHTS AND, IF IN HIS JUDGMENT THE PRICE FOR SUCH RIGHTS IS REASONABLE AND SATISFACTORY, TO MAKE CONTRACTS FOR THE PURCHASE OF SAME SUBJECT TO FUTURE RATIFICATION AND APPROPRIATION BY CONGRESS; OR IN THE EVENT OF THE INABILITY OF THE SECRETARY OF THE NAVY TO MAKE A SATISFACTORY CONTRACT FOR THE VOLUNTARY PURCHASE OF THE SAID RIGHTS OF FISHERY, HE IS HEREBY AUTHORIZED AND DIRECTED THROUGH THE ATTORNEY GENERAL TO INSTITUTE AND CARRY TO COMPLETION PROCEEDINGS FOR THE CONDEMNATION OF SAID RIGHTS OF FISHERY, THE ACCEPTANCE OF THE AWARD IN SAID PROCEEDINGS TO BE SUBJECT TO THE FUTURE RATIFICATION AND APPROPRIATION BY CONGRESS. SUCH CONDEMNATION PROCEEDINGS SHALL BE INSTITUTED AND CONDUCTED IN, AND JURISDICTION OF SAID PROCEEDINGS IS HEREBY GIVEN TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF HAWAII, SUBSTANTIALLY AS PROVIDED IN "AN ACT TO AUTHORIZE CONDEMNATION OF LAND FOR SITES FOR PUBLIC BUILDINGS, AND FOR OTHER PURPOSES," APPROVED AUGUST 1, 1888; AND THE SUM OF $5,000 IS HEREBY AUTHORIZED TO BE APPROPRIATED, TO BE IMMEDIATELY AND CONTINUOUSLY AVAILABLE UNTIL EXPENDED, TO PAY THE NECESSARY COSTS THEREOF AND EXPENSES IN CONNECTION THEREWITH. THE SECRETARY OF THE NAVY IS FURTHER AUTHORIZED AND DIRECTED TO REPORT THE PROCEEDINGS HEREUNDER TO CONGRESS.

SECTION 9 OF ARTICLE I OF THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT:

NO MONEY SHALL BE WITHDRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW * * *.

THE ACT OF JULY 1, 1902, 32 STAT. 560, PROVIDES:

HEREAFTER NO ACT OF CONGRESS SHALL BE CONSTRUED TO MAKE AN APPROPRIATION OUT OF THE TREASURY OF THE UNITED STATES UNLESS SUCH ACT SHALL, IN SPECIFIC TERMS, DECLARE AN APPROPRIATION TO BE MADE FOR THE PURPOSE OR PURPOSES SPECIFIED IN THE ACT.

THE ACT OF JUNE 30, 1906, 34 STAT. 764, PROVIDES:

SEC. 9. NO ACT OF CONGRESS HEREAFTER PASSED SHALL BE CONSTRUED TO MAKE AN APPROPRIATION OUT OF THE TREASURY OF THE UNITED STATES, OR TO AUTHORIZE THE EXECUTION OF A CONTRACT INVOLVING THE PAYMENT OF MONEY IN EXCESS OF APPROPRIATIONS MADE BY LAW, UNLESS SUCH ACT SHALL IN SPECIFIC TERMS DECLARE AN APPROPRIATION TO BE MADE OR THAT A CONTRACT MAY BE EXECUTED.

THE ACT OF JUNE 28, 1921, SUPRA, AUTHORIZES AN APPROPRIATION TO BE MADE, BUT DOES NOT IN SPECIFIC TERMS DECLARE AN APPROPRIATION TO BE MADE. OTHER WORDS, IT IS AN AUTHORIZATION ACT AS DISTINGUISHED FROM AN APPROPRIATION ACT. IN THIS CONNECTION SEE 20 OP.ATTY.GEN. 147; 55 MS. COMP. DEC. 1, OCTOBER 1, 1910; ID., 907, NOVEMBER 29, 1910; 64 ID., 1374, MARCH 20, 1913; 66 ID., 135, JULY 15, 1913; 67 ID., 201, OCTOBER 15, 1913; 73 ID., 195, APRIL 16, 1915.

YOU ARE ADVISED, THEREFORE, THAT NO PAYMENT FROM THE TREASURY CAN LAWFULLY BE MADE UNDER THE ACT OF JUNE 28, 1921, SUPRA, UNTIL CONGRESS MAKES AN APPROPRIATION TO CARRY OUT ITS INTENTIONS AS THEREIN EXPRESSED.