A-62528, AUGUST 5, 1935, 15 COMP. GEN. 96

A-62528: Aug 5, 1935

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AS FOLLOWS: THE INDIAN SERVICE IS NOW MAINTAINING AND OPERATING AN INDIAN SANATORIUM LOCATED ON LAND OWNED BY THE UNITED STATES AT SAN XAVIER NEAR TUCSON. THE INSTITUTION WAS CONSTRUCTED UNDER AUTHORITY OF AN ITEM CONTAINED IN THE ACT OF MAY 14. THERE IS ENCLOSED A TENTATIVE FORM OF CONTRACT DESIGNED TO CARRY SUCH PROPOSAL INTO EFFECT. YOU WILL OBSERVE THAT UNDER THE PROVISIONS OF THE TENTATIVE CONTRACT THE GOVERNMENT-OWNED LANDS. UTILITIES COMPRISING THE INDIAN SANATORIUM WILL BE LEASED TO THE SISTERS OF CHARITY TO BE OPERATED FOR THE BENEFIT OF INDIAN PATIENTS. I WILL THEREFORE BE PLEASED TO HAVE THE BENEFIT OF YOUR DECISION IN THE PREMISES BEFORE THE TRANSACTION IS ENTERED INTO. IF IT IS YOUR VIEW THAT THE PROPOSED LEASE IS NOT AUTHORIZED.

A-62528, AUGUST 5, 1935, 15 COMP. GEN. 96

PUBLIC PROPERTY - LEASING - OFFICERS AND EMPLOYEES CONTRACTING FOR CONDUCT OF INSTITUTION PUBLIC PROPERTY MAY NOT BE LEASED WITHOUT AUTHORITY OF STATUTE. WHERE PURSUANT TO STATUTE A SANATORIUM HAS BEEN CONSTRUCTED FOR OPERATION BY THE INTERIOR DEPARTMENT, A CONTRACT MAY NOT LEGALLY BE MADE BY THE DEPARTMENT WITH A RELIGIOUS ORGANIZATION TO CONDUCT THE SANATORIUM.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 5, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 29, 1935, AS FOLLOWS:

THE INDIAN SERVICE IS NOW MAINTAINING AND OPERATING AN INDIAN SANATORIUM LOCATED ON LAND OWNED BY THE UNITED STATES AT SAN XAVIER NEAR TUCSON, ARIZONA. THE INSTITUTION WAS CONSTRUCTED UNDER AUTHORITY OF AN ITEM CONTAINED IN THE ACT OF MAY 14, 1930 (46 STAT. 279, 299), AND HAS BEEN MAINTAINED AND OPERATED SINCE THAT TIME WITH FUNDS APPROPRIATED ANNUALLY BY CONGRESS UNDER THE GENERAL HEADING OF "CONSERVATION OF HEALTH.' THE LANGUAGE OF THE PARTICULAR ITEM AS TAKEN FROM THE ACT APPROVED MAY 9, 1935 (PUBLIC, NO. 53, 74TH CONGRESS), READS:

"FOR CONSERVATION OF HEALTH AMONG INDIANS, INCLUDING EQUIPMENT, MATERIALS, AND SUPPLIES; REPAIRS AND IMPROVEMENTS TO BUILDINGS AND PLANTS; COMPENSATION AND TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES AND RENTING OF QUARTERS FOR THEM WHEN NECESSARY; TRANSPORTATION OF PATIENTS AND ATTENDANTS TO AND FROM HOSPITALS AND SANATORIA; RETURNING TO THEIR FORMER HOMES AND INTERRING THE REMAINS OF DECEASED PATIENTS; AND NOT EXCEEDING $1,000 FOR PRINTING AND BINDING CIRCULARS AND PAMPHLETS FOR USE IN PREVENTING AND SUPPRESSING TRACHOMA AND OTHER CONTAGIOUS AND INFECTIOUS DISEASES, $3,534,620, INCLUDING NOT TO EXCEED $2,604,000 FOR THE FOLLOWING -NAMED HOSPITALS AND SANATORIA:

"ARIZONA: * * * SAN XAVIER SANATORIUM, $42,500 * * *.'

THE COMMISSIONER OF INDIAN AFFAIRS HAS HAD UNDER CONSIDERATION FOR SOME TIME A PROPOSAL SUBMITTED BY THE SISTERS OF CHARITY OF SAINT ELIZABETH CONVENT, NEW JERSEY, TO TAKE OVER THE MANAGEMENT OF THE SAN XAVIER SANATORIUM, AND THERE IS ENCLOSED A TENTATIVE FORM OF CONTRACT DESIGNED TO CARRY SUCH PROPOSAL INTO EFFECT. YOU WILL OBSERVE THAT UNDER THE PROVISIONS OF THE TENTATIVE CONTRACT THE GOVERNMENT-OWNED LANDS, BUILDINGS, EQUIPMENT, AND UTILITIES COMPRISING THE INDIAN SANATORIUM WILL BE LEASED TO THE SISTERS OF CHARITY TO BE OPERATED FOR THE BENEFIT OF INDIAN PATIENTS, THE SISTERS TO RECEIVE PAYMENT FROM THE FUNDS APPROPRIATED FOR THE MAINTENANCE OF THE SANATORIUM AT A RATE OF $2 PER DAY FOR EACH INDIAN TREATED WITH THE LIMITATION THAT THE AGGREGATE OF ALL PAYMENTS MADE SHALL NOT EXCEED THE AMOUNT APPROPRIATED BY CONGRESS FOR THE MAINTENANCE OF THE SANATORIUM.

SOME DOUBT EXISTS AS TO THE LEGALITY OF A CONTRACT SUCH AS PROPOSED IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, AND I WILL THEREFORE BE PLEASED TO HAVE THE BENEFIT OF YOUR DECISION IN THE PREMISES BEFORE THE TRANSACTION IS ENTERED INTO. IF IT IS YOUR VIEW THAT THE PROPOSED LEASE IS NOT AUTHORIZED, WILL IT BE PERMISSIBLE TO ENTER INTO A CONTRACT WITH THE SISTERS UNDER WHICH THEY WILL TAKE OVER THE MANAGEMENT OF THE SANATORIUM UNDER THE SUPERINTENDENCE OF A SPECIFIED GOVERNMENT EMPLOYEE FOR A CONSIDERATION TO BE PAID FROM THE APPROPRIATION MADE FOR THE OPERATION AND MAINTENANCE OF THE INSTITUTION?

A PROMPT DECISION WILL BE APPRECIATED.

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 CONSTITUTION IT HAS BEEN HELD BY THE COURTS THAT CONGRESS HAS EXCLUSIVE JURISDICTION IN THE MATTER OF DIRECTING WHAT SHOULD BE DONE WITH LAND OR OTHER PROPERTY OWNED BY THE UNITED STATES. UNITED STATES V. NICOLL, 1 PAINE (U.S.) 646 (FED. CASE 15879); IRVINE V. MARSHALL, 20 HOWARD 558; LIGHT V. UNITED STATES, 220 U.S. 523.

IN SOME SPECIFIC INSTANCES THE POWER OF LEASING LANDS AND BUILDINGS TO PRIVATE PARTIES HAS BEEN DELEGATED BY CONGRESS TO THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER EXECUTIVE OFFICER. 14 COMP. GEN. 169. IT IS NOT FOUND THAT SUCH AUTHORITY HAS BEEN DELEGATED TO ANY OFFICER OF THE INTERIOR DEPARTMENT IN CONNECTION WITH THE BUILDINGS ABOVE MENTIONED. ACCORDINGLY, YOU ARE ADVISED THAT UNDER EXISTING LAW THERE IS NO AUTHORITY FOR THE LEASING OF THE BUILDINGS ABOVE MENTIONED AS PROPOSED IN THE TENTATIVE CONTRACT ENCLOSED IN YOUR LETTER.

IN RESPONSE TO THE QUESTION PROPOUNDED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THE SANATORIUM WAS AUTHORIZED TO BE CONSTRUCTED AND OPERATED BY THE SECRETARY OF THE INTERIOR AS A PART OF THE ACTIVITIES OF THE INTERIOR DEPARTMENT. THE EMPLOYEES FOR THE OPERATION OF THE SANATORIUM ARE REQUIRED TO BE EMPLOYED AND PAID UNDER THE LAWS APPLICABLE TO FEDERAL EMPLOYEES; THERE IS NO AUTHORITY TO SECURE SUCH SERVICES BY CONTRACT IN THE ABSENCE OF A STATUTE SO PROVIDING. YOU ARE ACCORDINGLY INFORMED THAT THERE IS NO AUTHORITY OF LAW TO CONTRACT WITH THE RELIGIOUS SOCIETY NAMED FOR THE MANAGEMENT OF THE SANATORIUM.