B-126244, JAN. 6, 1956

B-126244: Jan 6, 1956

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TO THE HONORABLE SECRETARY OF STATE: REFERENCE IS MADE TO LETTER OF DECEMBER 1. WHICH IS SPECIAL LEGISLATION. WHICH SECTION IS GENERAL LEGISLATION. - "FOREIGN CREDITS OWED TO OR OWNED BY THE UNITED STATES TREASURY WILL NOT BE AVAILABLE FOR EXPENDITURE BY AGENCIES OF THE UNITED STATES AFTER JUNE 30. EXCEPT AS MAY BE PROVIDED FOR ANNUALLY IN APPROPRIATION ACTS AND PROVISIONS FOR THE UTILIZATION OF SUCH CREDITS FOR PURPOSES AUTHORIZED BY LAW ARE HEREBY AUTHORIZED TO BE INCLUDED IN GENERAL APPROPRIATION ACTS.'. IT IS STATED IN THE ASSISTANT SECRETARY'S LETTER THAT THE FOREIGN SERVICE BUILDINGS ACT DOES NOT DESIGNATE THE TYPE OF CURRENCY THAT MAY BE ACCEPTED FOR THE SALE OF PROPERTY AND THAT YOUR DEPARTMENT HAS NEGOTIATED IN BOTH UNITED STATES DOLLARS AND FOREIGN CURRENCIES AND HAS ACCEPTED THE BIDS THAT GAVE THE UNITED STATES GOVERNMENT THE BEST PRICE AVAILABLE.

B-126244, JAN. 6, 1956

TO THE HONORABLE SECRETARY OF STATE:

REFERENCE IS MADE TO LETTER OF DECEMBER 1, 1955, FROM THE ASSISTANT SECRETARY-CONTROLLER OF YOUR DEPARTMENT REQUESTING OUR DECISION AS TO WHETHER FOREIGN CURRENCIES RECEIVED FROM THE SALE OF PROPERTIES ACQUIRED PURSUANT TO THE PROVISIONS OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, 44 STAT. 403, AS AMENDED BY THE ACT OF APRIL 19, 1945, 59 STAT. 53 (22 U.S.C. 300), WHICH ADDED SECTION 9 THERETO, MAY BE USED IN THE PROMOTION OF THE BUILDING PROGRAM IN ACCORDANCE WITH THE TERMS OF THAT ACT, IN VIEW OF THE RESTRICTION IN SECTION 1415 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1953, 66 STAT. 662.

THE FOREIGN SERVICE BUILDINGS ACT, AS AMENDED, AUTHORIZES THE SECRETARY OF STATE TO ACQUIRE SITES AND BUILDINGS ABROAD FOR DIPLOMATIC AND CONSULAR ESTABLISHMENTS. SECTION 9 OF THAT ACT, WHICH IS SPECIAL LEGISLATION, AUTHORIZES THE SECRETARY OF STATE TO SELL BUILDINGS AND GROUNDS ACQUIRED UNDER THE ACT, WHEN FOUND TO BE IN THE INTEREST OF THE UNITED STATES GOVERNMENT, AND TO APPLY THE PROCEEDS FROM SUCH SALES "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW," TOWARD THE PURCHASE AND CONSTRUCTION, FURNISHING AND PRESERVATION OF OTHER PROPERTIES. SECTION 9 ALSO PROVIDES THAT THE SECRETARY OF STATE SHALL REPORT ALL SUCH TRANSACTIONS ANNUALLY TO THE CONGRESS WITH THE BUDGET ESTIMATES OF YOUR DEPARTMENT.

SECTION 1415 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1953, WHICH SECTION IS GENERAL LEGISLATION, PROVIDES---

"FOREIGN CREDITS OWED TO OR OWNED BY THE UNITED STATES TREASURY WILL NOT BE AVAILABLE FOR EXPENDITURE BY AGENCIES OF THE UNITED STATES AFTER JUNE 30, 1953, EXCEPT AS MAY BE PROVIDED FOR ANNUALLY IN APPROPRIATION ACTS AND PROVISIONS FOR THE UTILIZATION OF SUCH CREDITS FOR PURPOSES AUTHORIZED BY LAW ARE HEREBY AUTHORIZED TO BE INCLUDED IN GENERAL APPROPRIATION ACTS.'

IT IS STATED IN THE ASSISTANT SECRETARY'S LETTER THAT THE FOREIGN SERVICE BUILDINGS ACT DOES NOT DESIGNATE THE TYPE OF CURRENCY THAT MAY BE ACCEPTED FOR THE SALE OF PROPERTY AND THAT YOUR DEPARTMENT HAS NEGOTIATED IN BOTH UNITED STATES DOLLARS AND FOREIGN CURRENCIES AND HAS ACCEPTED THE BIDS THAT GAVE THE UNITED STATES GOVERNMENT THE BEST PRICE AVAILABLE. IT IS FURTHER STATED THEREIN THAT YOUR DEPARTMENT "TAKES THE POSITION THAT SECTION 1415 DID NOT CHANGE THE AUTHORITY CONTAINED IN THE FOREIGN SERVICE BUILDINGS ACT OF 1926 WHICH IS NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, AND THAT PROCEEDS OF SALES OF PROPERTY, WHETHER IN UNITED STATES DOLLARS OR FOREIGN CURRENCIES, ARE AVAILABLE FOR USE UNDER THE FOREIGN SERVICE BUILDINGS ACT.'

PRIOR TO THE PASSAGE OF THE ACT OF APRIL 19, 1945, ADDING SECTION 9 TO THE FOREIGN SERVICE BUILDINGS ACT OF 1926, YOUR DEPARTMENT HAD AUTHORITY UNDER THE 1926 ACT TO ACQUIRE PROPERTY IN FOREIGN COUNTRIES BY EXCHANGE, BUT IF PROPERTY WAS DISPOSED OF BY CASH SALE THE PROCEEDS WERE REQUIRED TO BE DEPOSITED INTO THE GENERAL RECEIPTS OF THE TREASURY. THE LEGISLATIVE HISTORY OF THE 1945 ACT SHOWS THAT THE PURPOSE OF THE ACT WAS TO PERMIT YOUR DEPARTMENT TO MAKE A CASH SALE OF SUCH PROPERTY AND USE THE PROCEEDS FOR DIRECT PURCHASE AND THAT THE SAID ACT ONLY INVOLVED A MEANS OF IMPLEMENTING THE THEN EXISTING EXCHANGE LAW IN ORDER TO OVERCOME PRACTICAL DIFFICULTIES OF OPERATION. THE LEGISLATIVE HISTORY FURTHER SHOWS THAT THE CURRENCY EXCHANGE FACTOR WAS ALSO A CONSIDERATION LEADING TO THE PASSAGE OF THE 1945 ACT. SEE PAGE 4 OF SENATE REPORT NO. 112 OF THE 79TH CONGRESS. IN OTHER WORDS, IN PASSING THIS LEGISLATION THE CONGRESS CONTEMPLATED THAT PROPERTY WOULD BE SOLD FOR FOREIGN CURRENCY INSTEAD OF UNITED STATES DOLLARS IF ACCEPTANCE OF FOREIGN CURRENCY WOULD RESULT IN A MORE FAVORABLE RETURN TO THE UNITED STATES. IT WAS ALSO CONTEMPLATED THAT THE FOREIGN CURRENCY RECEIVED FROM SUCH A SALE WOULD BE UTILIZED IN PURCHASING, CONSTRUCTING, FURNISHING AND PRESERVING OTHER PROPERTIES, OR BE HELD IN THE FOREIGN SERVICE BUILDING FUND UNTIL REQUIRED. SEE PAGES 3 AND 4 OF THE ABOVE-CITED SENATE REPORT.

THERE IS NOTHING IN SECTION 1415 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1953, OR THE LEGISLATIVE HISTORY THEREOF, TO INDICATE THAT THE CONGRESS INTENDED THE RESTRICTION IN THE SAID SECTION TO APPLY TO FOREIGN CURRENCIES ACQUIRED FROM THE SALE OF PROPERTY UNDER SECTION 9 OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED. THE LEGISLATIVE HISTORY OF SECTION 1415 SHOWS THAT THE CHIEF PURPOSE OF THAT SECTION WAS TO BRING FOREIGN CREDITS OWED TO OR OWNED BY THE UNITED STATES WHICH WERE NOT OTHERWISE SUBJECT TO THE CONTROL OF THE CONGRESS WITHIN ITS CONTROL AND PREVENT THE EXPENDITURE OF SUCH FUNDS WITHOUT THE PRIOR APPROVAL OF THE CONGRESS. IT WOULD NOT APPEAR REASONABLE TO HOLD THAT SECTION 1415 IS APPLICABLE TO THE FOREIGN CURRENCIES IN QUESTION, SINCE BY ENACTING SECTION 9 OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED, CONGRESS SPECIFICALLY MADE SUCH CURRENCIES AVAILABLE FOR THE PURPOSES SET FORTH IN SECTION 9. FURTHER, INASMUCH AS ALL TRANSACTIONS UNDER SECTION 9 MUST BE REPORTED ANNUALLY TO CONGRESS WITH THE BUDGET OF YOUR DEPARTMENT FOR THE SUCCEEDING FISCAL YEAR THE CONGRESS CAN, FOR ALL PRACTICAL PURPOSES, EXERCISE CONTROL OVER EXPENDITURES MADE PURSUANT TO THE AUTHORITY IN SECTION 9 BY REDUCING YOUR APPROPRIATIONS FOR THE NEXT FISCAL YEAR. ALSO, IT SHOULD BE NOTED THAT IF UNITED STATES DOLLARS ARE ACCEPTED IN CONNECTION WITH THE SALE OF PROPERTY ACQUIRED UNDER THE 1926 ACT, THE DOLLARS ARE AVAILABLE FOR EXPENDITURE IN ACCORDANCE WITH SECTION 9 OF THAT ACT.

IT IS AN ESTABLISHED RULE OF STATUTORY INTERPRETATION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. SEE 19 COMP. GEN. 492 AND CASES THERE CITED. SECTION 1415 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1953, WHICH IS OF A GENERAL NATURE CONTAINS NO PROVISION FOR REPEAL OF PRIOR STATUTES, AND NEITHER DOES ANY IMPLICATION OF SUCH REPEAL APPEAR THEREIN.

IN VIEW OF THE FOREGOING RULE OF STATUTORY INTERPRETATION AND TAKING INTO CONSIDERATION THE LEGISLATIVE HISTORY OF THE SECTIONS INVOLVED, IT IS CONCLUDED THAT SECTION 1415 DOES NOT AFFECT THE PRIOR SPECIFIC PROVISIONS OF SECTION 9 OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED, AUTHORIZING THE SALE OF PROPERTY ACQUIRED UNDER THE 1926 ACT AND THE APPLICATION OF THE PROCEEDS FROM SUCH SALES "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW" TOWARD THE PURCHASE AND CONSTRUCTION, FURNISHING AND PRESERVATION OF OTHER PROPERTIES. ACCORDINGLY, YOU ARE ADVISED THAT FOREIGN CURRENCIES RECEIVED FROM THE SALE OF PROPERTIES ACQUIRED PURSUANT TO PROVISION OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED, MAY BE USED IN THE PROMOTION OF THE BUILDING PROGRAM IN ACCORDANCE WITH THE TERMS OF THAT ACT.