B-123240, JUN. 9, 1955

B-123240, JUN. 9, 1955

TO MR. L. H. HEWITT, COMMISSIONER INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1955, WITH ENCLOSURES DESIGNATED EXHIBITS 1, 2, 3, AND 4, REQUESTING ADVICE ON TWO QUESTIONS CONCERNING THE PROPRIETY OF SUPPLYING FURNITURE AND EQUIPMENT, AT GOVERNMENT EXPENSE, FOR CERTAIN PUBLIC BUILDINGS, SCHOOLS, AND FACILITIES CONSTRUCTED BY YOUR SECTION OF THE COMMISSION IN A TOWNSITE KNOWN AS NEW ZAPATA, ZAPATA COUNTY, TEXAS, TO REPLACE SIMILAR BUILDINGS, SCHOOLS, AND FACILITIES ACQUIRED BY THE UNITED STATES IN CONNECTION WITH THE CONSTRUCTION OF THE FALCON DAM AND RESERVOIR.

YOU STATE THAT THE JOINT CONSTRUCTION WITH MEXICO OF THE FALCON DAM WAS AUTHORIZED BY THE MEXICAN WATER TREATY OF 1944, 59 STAT. (PART 2) 1219, AS IMPLEMENTED BY THE AMERICAN-MEXICAN TREATY ACT OF 1950, 64 STAT. 846, AND THAT CONSTRUCTION FUNDS APPROPRIATED TO THE DEPARTMENT OF STATE FOR USE BY YOUR COMMISSION IN CARRYING OUT THAT PROJECT INCLUDED COSTS FOR THE TAKING OF PRIVATE PROPERTY AS RIGHTS-OF-WAY THEREFOR. FURTHER, YOU STATE THAT SEVERAL TOWNS AND COMMUNITIES WERE SITUATED WITHIN THE FALCON RESERVOIR SITE AND THAT THEY NECESSARILY WOULD BE SUBMERGED WITH THE RESERVOIR FILLED. ACCORDINGLY PETITIONS WERE FILED BY THE GOVERNMENT IN THE APPROPRIATE UNITED STATES DISTRICT COURT FOR ACQUIRING BY CONDEMNATION THE NECESSARY RIGHTS-OF-WAY, INCLUDING THE UNINCORPORATED COUNTY SEAT TOWN OF ZAPATA, TEXAS.

SUBSEQUENT TO FILING THE PETITIONS FOR CONDEMNATION, AND WITH THE VIEW OF SAVING AS NEARLY AS POSSIBLE THE COMMUNITY LIFE OF THE CITIZENS OF THE SEVERAL TOWNS, IT WAS DETERMINED ON THE BASIS OF THE AUTHORITY OF THE AMERICAN-MEXICAN TREATY ACT OF 1950, AND THE DIRECTION CONTAINED IN LETTER DATED MAY 16, 1951, OF THE THEN PRESIDENT OF THE UNITED STATES TO THE SECRETARY OF STATE, COPY OF WHICH IS DESIGNATED EXHIBIT 2, TO RELOCATE THE AFFECTED TOWNS AND COMMUNITIES IN A NEW TOWNSITE IN ZAPATA COUNTY. THAT END YOUR COMMISSION ENTERED INTO AN AGREEMENT WITH THE COMMISSIONERS' COURT OF ZAPATA COUNTY, THE GOVERNING BODY OF SAID COUNTY, AND WITH THE BOARD OF TRUSTEES OF THE ZAPATA COUNTY SCHOOL DISTRICT, EVIDENCED BY AN ORDER ISSUED BY SAID COMMISSIONERS' COURT ON JUNE 25, 1952, COPY OF WHICH IS MARKED EXHIBIT 3. THE AGREEMENT, INSOFAR AS HERE MATERIAL, PROVIDES FOR THE PAYMENT OF COMPENSATION FOR THE TAKING OF THE COURTHOUSE, SCHOOLHOUSES, AND OTHER PUBLIC FACILITIES BY THE EXCHANGE ON A NEW TOWNSITE OUTSIDE THE RESERVOIR AREA OF CERTAIN PUBLIC BUILDINGS, SCHOOLS, AND FACILITIES TO REPLACE SIMILAR IMPROVEMENTS SITUATED IN THE COMMUNITIES WHICH WERE TO BE INUNDATED.

REGARDING THE DECISION TO RELOCATE THE TOWN OF ZAPATA AND OTHER COMMUNITIES, YOU POINT OUT THAT YOUR COMMISSION DID NOT CONSIDER THE AMERICAN-MEXICAN TREATY ACT OF 1950 "SUFFICIENT TO AUTHORIZE IT TO PROVIDE CERTAIN FACILITIES INSISTED UPON BY ZAPATA COUNTY.' TO RESOLVE THE DOUBT IN THE MATTER FORMER CONGRESSMAN LLOYD M. BENTSEN, JR. INTRODUCED IDENTICAL BILLS. H.R. 7743, AND H.R. 1649 IN THE 81ST AND 82D CONGRESSES, RESPECTIVELY, WHICH WOULD, AMONG OTHER THINGS, EXPRESSLY AUTHORIZE THE RELOCATION OF THE TOWN OF ZAPATA AND THE SEVERAL AFFECTED COMMUNITIES AND PROVIDE FOR THE CONSTRUCTION OF PUBLIC BUILDINGS AND FACILITIES TO REPLACE SIMILAR BUILDINGS AND FACILITIES TAKEN BY THE GOVERNMENT. THE LATTER BILL IS REFERRED TO IN A STATEMENT MARKED EXHIBIT ,A," WHICH STATEMENT IS INCORPORATED BY REFERENCE AND MADE A PART OF THE COURT ORDER OF JUNE 25, 1952. IT IS UNDERSTOOD THAT THIS LEGISLATION WAS WITHDRAWN BY CONGRESSMAN BENTSEN IN VIEW OF THE STATEMENTS BY PRESIDENT TRUMAN IN HIS LETTER OF MAY 16, 1951, THAT "THE BEST WAY TO ACCOMPLISH THIS OBJECTIVE (RELOCATION) IS NOT THROUGH SPECIAL LEGISLATION BUT THROUGH GENERAL LEGISLATIVE AUTHORITY WHICH NOW EXISTS; " THAT "THE COMMISSIONER OF THE UNITED STATES SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION CAN, AND SHOULD, FURNISH ALL NECESSARY ASSISTANCE TO THE RESIDENTS OF THE AREA," AND THE ACTION WHICH WAS TAKEN BY THE COMMISSION IN PURSUANCE THEREOF.

IT IS REPORTED IN YOUR LETTER, AND IN A PRIOR LETTER, DATED DECEMBER 14, 1954, WHICH WAS THE SUBJECT OF OUR REPLY DATED JANUARY 18, 1955, B-122350, TO YOU THAT, IN ACCORDANCE WITH THE AGREEMENT WITH ZAPATA COUNTY, CERTAIN PUBLIC BUILDINGS AND FACILITIES HAVE ALREADY BEEN PROVIDED THE TOWN OF NEW ZAPATA AND THAT THEY ARE NOW BEING USED IN THE COUNTY OR ARE SUBJECT TO USE BY THE COUNTY AND SCHOOL DISTRICT. THE INSTANT PROBLEM IS SAID TO ARISE BY REASON OF THE DEMAND BY ZAPATA COUNTY AND THE COUNTY SCHOOL DISTRICT FOR CERTAIN ITEMS OF FURNITURE AND EQUIPMENT FOR SUCH BUILDINGS AND FACILITIES. THEIR CONTENTION, IT IS SAID, IS THAT "THE PRESIDENT'S LETTER, * * * READ IN THE LIGHT OF THE BENTSEN BILL, * * * THEN PENDING IN CONGRESS, AND UNDER AGREEMENT AS EMBODIED IN THE ZAPATA COUNTY COURT ORDER" AUTHORIZES THE UNITED STATES SECTION OF THE COMMISSION AND THE UNITED STATES IS OBLIGATED TO REMOVE OR REPLACE THE PUBLIC BUILDINGS IN THE OLD TOWN OF ZAPATA WITHIN THE FALCON RESERVOIR SITE BY CONSTRUCTION OF BUILDINGS OF LIKE CHARACTER IN THE NEW TOWNSITE; THAT IN ADDITION, THE SAID AGENCY IS THEREBY AUTHORIZED AND THE UNITED STATES THEREBY OBLIGATED TO EQUIP SAID PUBLIC BUILDINGS WITH NEW FURNITURE AND EQUIPMENT FOR THEIR PROPER OPERATION IN THE PURPOSES FOR WHICH THEY ARE SUPPLIED, AT THE COST OF THE UNITED STATES. IT IS ALSO CONTENDED THAT "IN THE REPLACEMENT OF PUBLIC FACILITIES THEY MUST BE SERVICEABLE AND THAT BY USING FURNITURE AND EQUIPMENT FORMERLY INSTALLED IN THE OLD BUILDINGS IN THE NEWLY FURNISHED BUILDINGS, THE SERVICEABILITY OF THE COMPLETED NEW STRUCTURES WOULD BE UNSATISFACTORY.' THERE ACCOMPANIED YOUR LETTER AN ITEMIZED LIST OF THE FURNITURE AND EQUIPMENT REQUESTED BY ZAPATA COUNTY AND THE COUNTY SCHOOL DISTRICT FOR THE NEW ELEMENTARY SCHOOL, COURTHOUSE, JAIL, WATER TREATMENT PLANT, AND CERTAIN FIRE FIGHTING EQUIPMENT, THE ESTIMATED AGGREGATE COST OF WHICH IS $30,000.96.

REGARDING THESE CONTENTIONS, YOU SAY THAT THE PETITIONS FILED BY THE GOVERNMENT FOR CONDEMNATION INCLUDED ONLY REAL AS DISTINGUISHED FROM PERSONAL PROPERTY; THAT THE MATTER OF SUPPLYING FURNITURE AND EQUIPMENT WAS NOT DISCUSSED WITH OFFICIALS OF ZAPATA COUNTY OR THE COUNTY SCHOOL DISTRICT AT THE TIME OF NEGOTIATING SAID AGREEMENT; AND THAT IT WAS NOT THE INTENTION OF THE OFFICIALS OF YOUR COMMISSION TO REPLACE ANYTHING MORE THAN THE REAL PROPERTY. THE SPECIFIC QUESTIONS ON WHICH YOU ASK TO BE ADVISED ARE AS FOLLOWS:

"CAN THE PRESIDENT'S LETTER (EXHIBIT 2), READ IN CONJUNCTION WITH THE BENTSEN BILL (EXHIBIT 1), OR THE ORDER (EXHIBIT 3), OR ANY OR ALL OF THEM, BE CONSTRUED AS AN AGREEMENT ON THE PART OF THE UNITED STATES TO SUPPLY, AT THE COST OF THE UNITED STATES, THE FURNITURE AND EQUIPMENT SET FORTH IN EXHIBIT 4?

"ARE APPROPRIATIONS MADE BY CONGRESS TO THE DEPARTMENT OF STATE FOR THE USE OF THE UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, IN THE CONSTRUCTION OF THE INTERNATIONAL FALCON DAM AND POWER PLANT PROJECT, INCLUDING ACQUISITION OF NECESSARY RIGHTS-OF-WAY THEREFOR, AVAILABLE FOR THE PURCHASE OF SUCH FURNITURE AND EQUIPMENT FOR ZAPATA COUNTY OR ZAPATA COUNTY SCHOOL DISTRICT?

THE ESTABLISHED RULE OF CONTRACT CONSTRUCTION IS THAT A WRITTEN CONTRACT EMBODYING THE FINAL INTENTIONS AND AGREEMENTS OF THE PARTIES MUST BE INTERPRETED ACCORDING TO THE LEGAL IMPORT OF ITS TERMS AND THAT, IN THE ABSENCE OF MISTAKE OR FRAUD, ALL PRIOR VERBAL AND WRITTEN STATEMENTS MADE IN REFERENCE TO THE SAME SUBJECT AT OR BEFORE THE TIME OF ITS EXECUTION ARE TO BE CONSIDERED AS MERGED IN THE CONTRACT. 12 AM.JUR., CONTRACTS, SEC. 232.

UNDER THE TERMS OF THE REFERRED-TO AGREEMENT YOUR COMMISSION UNDERTOOK TO CONSTRUCT A NEW TOWNSITE IN ORDER TO RELOCATE SEVERAL TOWNS AND COMMUNITIES TO BE FLOODED UPON COMPLETION OF THE FALCON DAM AND RESERVOIR AND, AMONG OTHER THINGS, TO REPLACE WITHIN THE TOWNSITE CERTAIN PUBLIC BUILDINGS AND FACILITIES SIMILAR TO THOSE SURRENDERED TO THE GOVERNMENT. IT IS STATED IN YOUR PRIOR LETTER THAT THE UNITED STATES DID NOT CONDEMN ANY SCHOOL FURNITURE, EQUIPMENT, BOOKS OR MOVABLE PLAYGROUND EQUIPMENT, ALL OF WHICH WAS MOVED IN NOVEMBER 1953 FROM OLD ZAPATA TO THE NEW ZAPATA TOWNSHIP AT GOVERNMENT EXPENSE AND IT IS UNDERSTOOD THAT MOVABLE PERSONAL PROPERTY WAS NOT TAKEN BY THE GOVERNMENT. ALSO, IT IS OBSERVED THAT THE AGREEMENT MAKES NO MENTION OR REFERENCE RELATIVE TO FURNISHING AND EQUIPPING THE REPLACED PUBLIC BUILDINGS AND FACILITIES AT THE EXPENSE OF THE GOVERNMENT. MOREOVER, IT IS NOTED THAT THE PROVISIONS OF THE BENTSEN BILL, AND THE STATEMENTS CONTAINED IN THE PRESIDENT'S LETTER, ARE SILENT IN THAT RESPECT.

THE WORD "REPLACE," AS USED IN THE AGREEMENT, CLEARLY RELATES TO THE RECONSTRUCTION OF CERTAIN REALTY AND DENOTES THAT THE REPLACEMENT OF THE REALTY IS THE AGREED VALUE OF THE PROPERTY TAKEN BY THE GOVERNMENT. ALL THAT IS THEREBY REQUIRED IS THAT THE NEWLY CONSTRUCTED BUILDINGS AND FACILITIES BE COMPARABLE TO AND IN SUITABLE AND PROPER CONDITION FOR THE PURPOSES AND USES FOR WHICH THE OLD PROPERTIES WERE ADAPTED. SEE TOWN OF BEDFORD V. UNITED STATES, 23 F.2D 453, 456; TOWN OF CLARKSVILLE, VA. V. UNITED STATES, 198 F.2D 238, CERTIORARI DENIED 344 U.S. 927. IT IS UNDERSTOOD THAT, AS PROVIDED BY THE AGREEMENT AND STATEMENTS ATTACHED THERETO, THE REPLACED BUILDINGS AND FACILITIES ARE COMPARABLE IN FLOOR SPACE TO THOSE TAKEN BY THE GOVERNMENT AND ARE ADEQUATE, FROM A FUNCTIONAL STANDPOINT, TO SERVE THE NEEDS OF THE INHABITANTS OF THE NEW TOWNSITE. STATED ABOVE, THERE IS NO REQUIREMENT IN THE AGREEMENT FOR SUPPLYING THE RECONSTRUCTED BUILDINGS AND FACILITIES WITH FURNITURE AND EQUIPMENT, AND NOTHING IS FOUND THEREIN FROM WHICH SUCH A REQUIREMENT MAY BE IMPLIED. HENCE, IT SEEMS CLEAR THAT THE SUBSTITUTED BUILDINGS AND FACILITIES PROVIDED IN THE NEW TOWNSITE FULLY COMPLIED WITH THE SPECIFIC TERMS OF THE AGREEMENT.

IN THAT CONNECTION, IT MAY BE STATED THAT WHERE THE CONGRESS INTENDS THAT GOVERNMENT AGENCIES ACQUIRING REALTY FOR PUBLIC USE REIMBURSE THE OWNERS AND TENANTS THEREOF FOR EXPENSES, LOSSES, AND DAMAGES INCURRED BY SUCH OWNERS AND TENANTS AS A DIRECT RESULT OF THE ACQUISITION, IN ADDITION TO AMOUNTS WHICH MAY OTHERWISE BE AUTHORIZED BY LAW, IT MAKES SPECIFIC PROVISION THEREFOR. SEE SECTION 501 (A) AND (B) OF THE ACT OF SEPTEMBER 28, 1951, 65 STAT. 363, 364. ALSO, IT IS PERTINENT TO STATE THAT WHEN REALTY IS ACQUIRED IN FEDERAL CONDEMNATION PROCEEDINGS THE LAW IS WELL SETTLED THAT ALL THAT IS REQUIRED TO BE PAID IS JUST COMPENSATION FOR WHAT ACTUALLY IS TAKEN. SEE BROWN V. UNITED STATES, 263 U.S. 78; UNITED STATES V. MILLER ET AL., 317 U.S. 369, 74; FUTROVSKY V. UNITED STATES, 66 F.2D 215; CITY OF FORT WORTH, TEX. V. UNITED STATES188 F.2D 217 AND 212 F.2D 474. SINCE THERE WAS NO TAKING OF MOVABLE PERSONAL PROPERTY THE FACT THAT THE BUILDINGS AND FACILITIES WERE ACQUIRED BY NEGOTIATION RATHER THAN CONDEMNATION WOULD NOT APPEAR, IN THE FACTS AND CIRCUMSTANCES INVOLVED HERE, TO INCREASE THE LIABILITY OF THE GOVERNMENT CONCERNING THE ITEMS OF FURNITURE AND EQUIPMENT IN QUESTION.

ACCORDINGLY, YOU ARE ADVISED THAT UNDER THE TERMS OF THE AGREEMENT THERE APPEARS NO CONTRACTUAL REQUIREMENT OR OBLIGATION ON THE PART OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION TO FURNISH ZAPATA COUNTY OR THE COUNTY SCHOOL DISTRICT FOR THE REPLACED PUBLIC BUILDINGS, SCHOOLS, AND FACILITIES ITEMS OF THE NATURE OF FURNITURE AND EQUIPMENT. THE FIRST QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

REGARDING THE SECOND QUESTION, THE APPROPRIATIONS PROVIDED BY THE CONGRESS FOR THE CONSTRUCTION OF THE FALCON DAM, E.G., DEPARTMENT OF STATE APPROPRIATION ACT, 1955, PUBLIC LAW 471, APPROVED JULY 2, 1954, 68 STAT. 416, ARE AVAILABLE FOR EXPENSES DIRECTLY CONNECTED WITH AND NECESSARY FOR THE PROSECUTION OF THAT PROJECT. AS HEREINABOVE STATED, THERE WAS NO TAKING OF FURNITURE AND EQUIPMENT BY THE GOVERNMENT, AND, MOREOVER, IT COULD HARDLY BE CONTENDED THAT SUCH ITEMS WERE REQUIRED FOR THE CONSTRUCTION OF THE FALCON DAM PROJECT. CONSEQUENTLY, THERE BEING NO LEGAL OBLIGATION TO PAY FOR THE FURNITURE AND EQUIPMENT, IT MUST BE HELD THAT THE APPROPRIATIONS AVAILABLE FOR THE CONSTRUCTION OF THE FALCON DAM MAY NOT BE USED FOR EXPENDITURES OF SUCH NATURE. THE SECOND QUESTION IS ACCORDINGLY ALSO ANSWERED IN THE NEGATIVE. SEE 31 U.S.C. 628; 32 COMP. GEN. 164.