B-110, JANUARY 6, 1939, 18 COMP. GEN. 592

B-110, JANUARY 6, 1939, 18 COMP. GEN. 592

LAND DONATIONS - NATIONAL PARKS - INCIDENTAL TITLE QUIETING, ETC., EXPENSES - APPROPRIATION AVAILABILITY THE APPROPRIATION FOR THE ADMINISTRATION OF THE YOSEMITE NATIONAL PARK FOR THE FISCAL YEAR 1939, 52 STAT. 333, IS NOT AVAILABLE TO PAY THE LEGAL EXPENSES OF A SUIT TO QUIET TITLE TO LANDS THEREIN DONATED TO THE GOVERNMENT WHETHER THE SUIT BE BEFORE OR AFTER ACCEPTANCE BY THE GOVERNMENT OF SUCH TITLE AS THE GRANTOR HAD IN THE LAND, THE LAND NOT YET HAVING BECOME A PART OF THE PARK IN THE FORMER EVENT AND THE EXPENSE THEREFORE NOT BEING WITHIN THE PURPOSE OF THE APPROPRIATION, AND COURT COSTS, MARSHALS' FEES, ETC., IN THE DEFENSE OF TITLE BEING FOR PAYMENT FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE IN THE EVENT OF THE LATTER; THAT IS, AFTER TITLE ACQUISITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JANUARY 6, 1939:

YOUR LETTER OF DECEMBER 17, 1938, IS AS FOLLOWS:

UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1920 (41 STAT. 917), THE SECRETARY OF THE INTERIOR IS AUTHORIZED, IN HIS DISCRETION, TO ACCEPT PATENTED LANDS, RIGHTS-OF-WAY OVER PATENTED LANDS, OR OTHER LANDS, BUILDINGS OR OTHER PROPERTY WITHIN THE VARIOUS NATIONAL PARKS AND NATIONAL MONUMENTS, AND MONEYS WHICH MAY BE DONATED FOR THE PURPOSES OF THE NATIONAL PARK AND MONUMENT SYSTEM. PURSUANT TO THIS AUTHORITY A DEED PROPOSING TO CONVEY CERTAIN LANDS TO THE UNITED STATES WITHIN THE YOSEMITE NATIONAL PARK HAS BEEN TENDERED THIS DEPARTMENT AS A DONATION.

THE EXAMINATION OF THE TITLE BY THE SOLICITOR OF THIS DEPARTMENT DISCLOSES THAT THE GRANTOR'S TITLE IS BASED ON A TAX SALE. IT HAS BEEN DETERMINED THAT A SUIT TO QUIET TITLE IS NECESSARY BEFORE THE UNITED STATES WILL ACQUIRE A SATISFACTORY TITLE TO THE LANDS PROFFERED TO THE UNITED STATES AS A DONATION.

AS THE GRANTOR IS DONATING THE ABOVE-MENTIONED LANDS, HE IS UNWILLING TO PAY THE EXPENSES OF THE QUIET TITLE PROCEEDINGS, WHICH WILL AMOUNT TO APPROXIMATELY $50. NO LAND PURCHASE FUNDS, FEDERAL OR DONATED, ARE AVAILABLE FOR THE ACQUISITION OF THESE LANDS OR FOR THE PAYMENT OF EXPENSES INCIDENTAL TO THE ACQUISITION. THE QUESTION HAS, THEREFORE, BEEN RAISED WHETHER THE FUNDS MADE AVAILABLE BY THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1939, FOR THE GENERAL ADMINISTRATIVE EXPENSES OF YOSEMITE NATIONAL PARK MAY BE USED TO PAY FOR THE EXPENSES INCIDENTAL TO THE NECESSARY QUIET TITLE PROCEEDINGS. IT WILL BE ADMINISTRATIVELY ADVANTAGEOUS TO THE PARK TO ACQUIRE TITLE TO THE LANDS INVOLVED.

IT IS REQUESTED THAT YOU ADVISE THIS DEPARTMENT AT THE EARLIEST PRACTICABLE DATE WHETHER THE FUNDS ABOVE-REFERRED TO MAY BE USED IN PAYMENT OF EXPENSES INCIDENTAL TO THE NECESSARY QUIET TITLE PROCEEDINGS.

THE ACT OF JUNE 5, 1920, 41 STAT. 917, PROVIDES:

HEREAFTER THE SECRETARY OF THE INTERIOR IN HIS ADMINISTRATION OF THE NATIONAL PARK SERVICE IS AUTHORIZED, IN HIS DISCRETION, TO ACCEPT PATENTED LANDS, RIGHTS-OF-WAY OVER PATENTED LANDS OR OTHER LANDS, BUILDINGS, OR OTHER PROPERTY WITHIN THE VARIOUS NATIONAL PARKS AND NATIONAL MONUMENTS, AND MONEYS WHICH MAY BE DONATED FOR THE PURPOSES OF THE NATIONAL PARK AND MONUMENT SYSTEM.

THE APPROPRIATION TO WHICH YOU REFER IS CONTAINED IN THE ACT OF MAY 9, 1938, 52 STAT. 333, MAKING AVAILABLE THE SUM OF $311,920 "FOR ADMINISTRATION, PROTECTION, AND MAINTENANCE" OF YOSEMITE NATIONAL PARK, CALIF., "INCLUDING NECESSARY EXPENSES OF A COMPREHENSIVE STUDY OF THE PROBLEMS RELATING TO THE USE AND ENJOYMENT OF THE YOSEMITE NATIONAL PARK AND THE PRESERVATION OF ITS NATURAL FEATURES.'

IT HAS BEEN HELD THAT A SIMILAR APPROPRIATION FOR A PREVIOUS FISCAL YEAR WAS NOT AVAILABLE FOR ANY EXPENSES--- SUCH AS ABSTRACTS OF TITLE-- IN CONNECTION WITH THE ACQUISITION OF LAND DONATED FOR A NATIONAL PARK, SINCE SUCH LAND DOES NOT BECOME A PART OF THE PARK UNTIL AFTER THE DONATION HAS BEEN ACCEPTED BY THE SECRETARY. SEE A-26824, TO YOUR PREDECESSOR, UNDER DATE OF APRIL 25, 1929.

IN THE PRESENT CASE IT IS ASSUMED THAT YOU HAVE ACCEPTED THE GIFT OF SUCH TITLE AS THE GRANTOR HAD IN THE LAND; THAT THE NATIONAL PARK SERVICE HAS TAKEN POSSESSION OF THE PREMISES; AND THAT IT IS NOW YOUR PURPOSE TO HAVE INSTITUTED SUCH COURT PROCEEDINGS AS MAY BE NECESSARY TO PERFECT THE TITLE WHICH HAS BEEN ACQUIRED BY THE UNITED STATES. PRESUMABLY ANY SUCH PROCEEDINGS, BEING IN THE NAME OF THE UNITED STATES, WOULD BE FOR PROSECUTION BY THE LOCAL UNITED STATES ATTORNEY UNDER THE DIRECTION OF THE ATTORNEY GENERAL, AS YOU HAVE NO DOUBT PLANNED. SEE 28 U.S.C. 485, DERIVED FROM THE JUDICIARY ACT OF 1789, 1 STAT. 92, AND SECTION 771 OF THE REVISED STATUTES. SEE, ALSO, CONFISCATION CASES, 74 U.S. (7 WALL.) 454, 456; UNITED STATES V. SAN JACINTO TIN CO., 125 U.S. 273, 278; 5 OP.ATTY.GEN. 261; 8 ID. 399; 15 COMP. GEN. 359.

YOUR LETTER DOES NOT ITEMIZE THE ESTIMATE OF $50 TO BE EXPENSED BUT THE AMOUNT EVIDENTLY IS TO COVER NECESSARY COURT FEES, CHARGES FOR THE SERVICE OF PROCESS, AND THE LIKE. WHERE A SUIT IS PROSECUTED OR DEFENDED BY THE UNITED STATES ATTORNEYS ON BEHALF OF THE GOVERNMENT IT HAS LONG BEEN THE PRACTICE TO REGARD THE USUAL COURT COSTS, MARSHALS' AND WITNESSES' FEES, ETC., AS ORDINARY EXPENSES INCIDENT TO THE WORK OF THE UNITED STATES ATTORNEYS, AND AS SUCH, PAYABLE FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE WITH THE PRIOR APPROVAL OF THE ATTORNEY GENERAL WHERE REQUIRED. SEE 1 COMP. DEC. 46; 12 ID. 208; 13 ID. 397; 8 COMP. GEN. 554; 9 ID. 224; 15 ID. 81; 16 ID. 333. THIS RULE HAS BEEN SPECIFICALLY APPLIED TO ACTIONS IN REGARD TO REAL ESTATE SUCH AS CONDEMNATION SUITS; 1 COMP. DEC. 317; 2 ID. 201, 377; 3 ID. 216; 9 ID. 569; 8 COMP. GEN. 308, OR THE DEFENSE OF THE GOVERNMENT'S TITLE OR POSSESSION WHERE IT HAS BEEN JUDICIALLY BROUGHT IN QUESTION. 6 COMP. GEN. 214; A-25839, FEBRUARY 25, 1929.

SUCH BEING THE ESTABLISHED RULE, IT MUST BE HELD THAT THE APPROPRIATION FOR THE ADMINISTRATION OF THE YOSEMITE NATIONAL PARK IS NOT AVAILABLE TO PAY THE LEGAL EXPENSES OF A SUIT TO QUIET TITLE TO LANDS THEREIN DONATED TO THE GOVERNMENT.