A-91852, JANUARY 22, 1938, 17 COMP. GEN. 596

A-91852: Jan 22, 1938

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PROJECTS - FUNDS - ALLOCATIONS CONDITIONED ON PROPERTY ACQUISITION - EXPENDITURES PRIOR TO TITLE TRANSFER WHERE THE PRESIDENT'S APPROVAL OF A PROJECT IS ON THE CONDITION THAT "NO EXPENDITURE OF FEDERAL FUNDS * * * WILL BE MADE UNTIL EASEMENTS OR RIGHTS- OF-WAY HAVE BEEN OBTAINED FROM THE OWNER FOR ALL WORK ON PRIVATE PROPERTY. THERE IS NO AUTHORITY FOR THE EXPENDITURE OF FEDERAL FUNDS ON THE PROJECT. NOTWITHSTANDING THE CITY IS IN POSSESSION OF THE PROPERTY UNDER A SALE AGREEMENT WITH THE OWNER. AS FOLLOWS: THERE IS ATTACHED HERETO. IT IS RESPECTFULLY REQUESTED THAT THIS OFFICE BE ADVISED PROMPTLY CONCERNING THE ACCEPTABILITY OF THE DOCUMENTARY EVIDENCE IN QUESTION. INASMUCH AS IT IS THE DESIRE OF THE NEW YORK WORKS PROGRESS ADMINISTRATION TO COMMENCE THIS PROJECT AS SOON AS POSSIBLE.

A-91852, JANUARY 22, 1938, 17 COMP. GEN. 596

PROJECTS - FUNDS - ALLOCATIONS CONDITIONED ON PROPERTY ACQUISITION - EXPENDITURES PRIOR TO TITLE TRANSFER WHERE THE PRESIDENT'S APPROVAL OF A PROJECT IS ON THE CONDITION THAT "NO EXPENDITURE OF FEDERAL FUNDS * * * WILL BE MADE UNTIL EASEMENTS OR RIGHTS- OF-WAY HAVE BEEN OBTAINED FROM THE OWNER FOR ALL WORK ON PRIVATE PROPERTY," AND THE MUNICIPALITY INVOLVED HAS NOT ACQUIRED TITLE TO, OR AN EASEMENT OR RIGHT-OF-WAY IN, THE PROJECT PROPERTY, THERE IS NO AUTHORITY FOR THE EXPENDITURE OF FEDERAL FUNDS ON THE PROJECT, NOTWITHSTANDING THE CITY IS IN POSSESSION OF THE PROPERTY UNDER A SALE AGREEMENT WITH THE OWNER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JANUARY 22, 1938:

THERE HAS BEEN RECEIVED A LETTER OF JANUARY 10, 1938, FROM THE COMMISSIONER OF ACCOUNTS AND DEPOSITS, TREASURY DEPARTMENT, RELATIVE TO OFFICIAL PROJECT 165-21-4187, SYRACUSE, ONONDAGA COUNTY, N.Y., AS FOLLOWS:

THERE IS ATTACHED HERETO, FOR YOUR CONSIDERATION IN THE DETERMINATION OF ITS ACCEPTABILITY, A CERTIFIED COPY OF OPTION GRANTED TO THE CITY OF SYRACUSE BY THE ONONDAGA ORPHANS HOME, SUPPORTED BY A CERTIFICATION FROM THE DEPUTY STATE ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, NEW YORK STATE, TOGETHER WITH A CERTIFIED COPY OF THE OPINION OF THE CORPORATION COUNSEL OF THE CITY OF SYRACUSE, DEPARTMENT OF LAW, INDICATING THAT THE CITY HAS TAKEN POSSESSION OF THE PROPERTY INVOLVED IN THE PROSECUTION OF OFFICIAL PROJECT 165-21-4187, PRESIDENTIAL LETTER 5890, ALSO SUPPORTED BY A CERTIFICATION FROM THE DEPUTY STATE ADMINISTRATOR.

IT IS RESPECTFULLY REQUESTED THAT THIS OFFICE BE ADVISED PROMPTLY CONCERNING THE ACCEPTABILITY OF THE DOCUMENTARY EVIDENCE IN QUESTION, INASMUCH AS IT IS THE DESIRE OF THE NEW YORK WORKS PROGRESS ADMINISTRATION TO COMMENCE THIS PROJECT AS SOON AS POSSIBLE.

WHILE THE CONCERN OF THE TREASURY IN THE MATTER IS NOT STATED EITHER IN THIS LETTER OR IN A PRIOR LETTER OF JANUARY 3, 1938, ALSO FROM THE OFFICE OF THE COMMISSIONER OF ACCOUNTS AND DEPOSITS OF YOUR DEPARTMENT RELATING TO THE SAME MATTER, IT IS ASSUMED QUESTIONS HAVE ARISEN AS TO ENCUMBERING FEDERAL FUNDS FOR THE PROSECUTION OF WORK UNDER THE PROJECT IN QUESTION FOR CONSIDERATION BY THE TREASURY UNDER EXECUTIVE ORDER NO. 7034 OF MAY 6, 1935, AND THE MATTER WILL BE CONSIDERED ACCORDINGLY.

THE OPTION REFERRED TO IN THE QUOTED LETTER APPEARS TO BE AN OFFER OF DECEMBER 27, 1937, OF THE ONONDAGA ORPHANS' HOME, WHEREBY THE HOME AGREES TO SELL AND CONVEY CERTAIN LANDS TO THE CITY OF SYRACUSE FOR STREET PURPOSES AND TO PAY THAT CITY A STIPULATED SUM OF MONEY IN CONSIDERATION THAT THE CITY WILL COMPROMISE, CANCEL, AND RELEASE CERTAIN TAXES THERETOFORE ASSESSED AGAINST CERTAIN PROPERTY OF THE SAIDONONDAGA ORPHANS' HOME. THE OFFER ALSO PROVIDES THAT THE CITY MAY ENTER INTO POSSESSION OF THE PREMISES IMMEDIATELY UPON ITS ACCEPTANCE BY THE COMMON COUNCIL. ACTION APPEARS TO HAVE BEEN TAKEN BY THE COMMON COUNCIL ON DECEMBER 27, 1937, SUBJECT TO THE APPROVAL OF THE BOARD OF ESTIMATE AND APPORTIONMENT OF THE CITY, WHICH APPROVAL APPEARS TO HAVE BEEN GIVEN DECEMBER 28, 1937.

APPARENTLY THE PROPERTY, WHICH IT IS UNDERSTOOD IS REQUIRED FOR THE PROPER PROSECUTION OF THE PROJECT, HAS NOT YET BEEN CONVEYED TO THE CITY PURSUANT TO THE ACCEPTED OFFER. IT IS REPORTED, HOWEVER, IN A LETTER OF JANUARY 7, 1938, FROM THE CORPORATION COUNSEL OF SYRACUSE, THAT THE CITY HAS TAKEN POSSESSION OF THE LAND AND THAT "THERE REMAINS ONLY THE ROUTINE WORK OF EXAMINING THE TITLE AND FORMALLY CARRYING OUT THE TERMS OF THE OFFER AND ACCEPTANCE.' IN THE CIRCUMSTANCES THERE IS FOR CONSIDERATION WHETHER FEDERAL FUNDS MAY BE USED ON THE PROJECT BASED ON THE ACCEPTED OFFER AND THE FACT THAT THE CITY HAS TAKEN POSSESSION OF THE PROPERTY THEREUNDER, NOTWITHSTANDING TITLE TO THE PROPERTY REMAINS IN THE PRIVATE OWNER.

THE RECORDS OF THIS OFFICE SHOW THAT THE APPROVAL OF THE PROJECT BY THE PRESIDENT IN LETTER OF FEBRUARY 6, 1937, NO. 5890, WAS SUBJECT TO THE CONDITION, AMONG OTHERS, THAT "NO EXPENDITURE OF FEDERAL FUNDS FOR THIS PROJECT WILL BE MADE UNTIL EASEMENTS OR RIGHTS-OF-WAY HAVE BEEN OBTAINED FROM THE OWNER FOR ALL WORK ON PRIVATE PROPERTY.'

THIS STIPULATION CONSTITUTES A CONDITION PRECEDENT WHICH MUST BE COMPLIED WITH BEFORE ANY FEDERAL FUNDS MAY BE EXPENDED IN THE PROSECUTION OF THE PROJECT. SUCH CONDITION WAS IMPOSED BY THE PRESIDENT IN ACCORDANCE WITH THE LAW UNDER WHICH THE PROJECT WAS APPROVED AND MAY NOT BE WAIVED.

IN THE PRESENT MATTER SINCE THE NEGOTIATIONS BETWEEN THE ONONDAGA ORPHANS' HOME AND THE CITY OF SYRACUSE HAVE NOT REACHED THE POINT WHERE TITLE TO THE PROPERTY IN QUESTION HAS BEEN TRANSFERRED FROM PRIVATE OWNERSHIP TO THE PUBLIC OWNERSHIP OF THE CITY, SAID PROPERTY MUST BE CONSIDERED AS STILL IN PRIVATE OWNERSHIP, AND THE FACT THAT THE CITY MAY HAVE TAKEN POSSESSION OF THE PROPERTY UNDER THE OPTION MAY NOT BE CONSIDERED AS EXERCISING THE RIGHTS UNDER AN EASEMENT OR RIGHT-OF-WAY AS CONTEMPLATED BY THE CONDITION, SUPRA. IN THE CIRCUMSTANCES IT MUST BE HELD THAT UNLESS AND UNTIL EASEMENTS OR RIGHTS-OF-WAY HAVE BEEN OBTAINED FROM THE OWNER OF PRIVATE PROPERTY INVOLVED, OR THE TITLE TO SAID PROPERTY IS VESTED IN THE CITY, THERE IS NO AUTHORITY OF LAW FOR THE EXPENDITURE OF ANY FEDERAL FUNDS FOR THE PROSECUTION OF THE PROJECT IN QUESTION.