A-76951, JUNE 29, 1936, 15 COMP. GEN. 1140

A-76951: Jun 29, 1936

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REQUIRING THE INCLUSION IN SPECIFIED TYPES OF GOVERNMENT CONTRACTS OF A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF THE CONTRACT FROM ANY BUT A CODE MEMBER PRODUCER. NOTWITHSTANDING PROPOSAL AND ACCEPTANCE WAS ON BASIS OF SAID PROVISIONS. AS FOLLOWS: IN VIEW OF THE FACT THAT THE BITUMINOUS COAL CONSERVATION ACT OF 1935 WAS DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT OF THE UNITED STATES ON MAY 27. UPON WHICH YOUR ADVICE IS SOUGHT. WILL YOU PLEASE ADVISE WHETHER IN CASES WHERE A PROPOSAL HAS BEEN SUBMITTED AND ACCEPTED. THE PROVISIONS OF PARAGRAPH 14 (B) OF THE ACT IN QUESTION SHOULD BE INCORPORATED IN THE FORMAL LEASES WHEN THEY ARE PREPARED?

A-76951, JUNE 29, 1936, 15 COMP. GEN. 1140

LEASES - EXECUTION - BITUMINOUS COAL CONSERVATION ACT, 1935 - UNCONSITUTITONALITY OF COAL PURCHASE PROVISIONS SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, 49 STAT. 1007, REQUIRING THE INCLUSION IN SPECIFIED TYPES OF GOVERNMENT CONTRACTS OF A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF THE CONTRACT FROM ANY BUT A CODE MEMBER PRODUCER, HAVING BEEN RENDERED INOPERATIVE BY THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, SAID PROVISION NEED NO LONGER BE INCLUDED IN FORMAL CONTRACTS, NOTWITHSTANDING PROPOSAL AND ACCEPTANCE WAS ON BASIS OF SAID PROVISIONS.

COMPTROLLER GENERAL MCCARL TO MAJOR E. C. MORTON, UNITED STATES ARMY, JUNE 29, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 12, 1936, AS FOLLOWS:

IN VIEW OF THE FACT THAT THE BITUMINOUS COAL CONSERVATION ACT OF 1935 WAS DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT OF THE UNITED STATES ON MAY 27, 1936, A QUESTION HAS ARISEN IN CONNECTION WITH THE EXECUTION OF LEASES, UPON WHICH YOUR ADVICE IS SOUGHT.

WILL YOU PLEASE ADVISE WHETHER IN CASES WHERE A PROPOSAL HAS BEEN SUBMITTED AND ACCEPTED, SUBJECT TO THE PROVISIONS OF PARAGRAPH 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, THEREBY CONSTITUTING A BINDING CONTRACT, THE PROVISIONS OF PARAGRAPH 14 (B) OF THE ACT IN QUESTION SHOULD BE INCORPORATED IN THE FORMAL LEASES WHEN THEY ARE PREPARED?

SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935 (49 STAT. 1007), WAS RENDERED INOPERATIVE BY THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CARTER CASE, DECIDED MAY 18, 1936, AND THE PROPOSED SUBSTITUTE FOR THE SAID ACT, WHICH WAS BEFORE THE CONGRESS DURING THE SESSION WHICH CLOSED JUNE 20, 1936, FAILED OF ENACTMENT. CONSEQUENTLY, INSOFAR AS MAY BE INVOLVED ANY QUESTION AS TO THE LEGAL AVAILABILITY OF THE APPROPRIATION FOR MAKING PAYMENTS UNDER CONTRACTS OF THE CLASS REFERRED TO IN YOUR LETTER, IT WILL MAKE NO DIFFERENCE WHETHER THE PROVISION IN QUESTION IS INCLUDED IN THE FORMAL CONTRACT OR IS OMITTED THEREFROM.