B-137735, DECEMBER 30, 1958, 38 COMP. GEN. 458

B-137735: Dec 30, 1958

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THE FEDERAL AIRPORT FUNDS WHICH ARE PRESENTLY APPORTIONED TO THE TERRITORY OF ALASKA UNDER SECTION 5 OF THE FEDERAL AIRPORT ACT. THERE ARE AUTHORIZED TO BE OBLIGATED BY THE EXECUTION OF GRANT AGREEMENTS PURSUANT TO SECTION 1111 OF THIS TITLE THE SUM OF $40. OF THE FISCAL YEAR FOR WHICH IT IS AUTHORIZED. THERE ARE HEREBY AUTHORIZED TO BE OBLIGATED BY THE EXECUTION OF GRANT AGREEMENTS PURSUANT TO SECTION 1111 OF THIS TITLE THE SUM OF $2. EACH SUCH AUTHORIZED AMOUNT SHALL BECOME AVAILABLE FOR OBLIGATION BEGINNING JULY 1 OF THE FISCAL YEAR FOR WHICH IT IS AUTHORIZED. YOU SAY THAT YOU HAVE DETERMINED THAT ONCE ALASKA QUALIFIES AS A STATE IT MUST BE TREATED UNDER THOSE PROVISIONS OF LAW APPLYING TO THE SEVERAL STATES.

B-137735, DECEMBER 30, 1958, 38 COMP. GEN. 458

ALASKA - STATEHOOD - FEDERAL AIRPORT FUND AVAILABILITY AFTER THE ADMISSION OF ALASKA AS A STATE, THE FEDERAL AIRPORT FUNDS WHICH ARE PRESENTLY APPORTIONED TO THE TERRITORY OF ALASKA UNDER SECTION 5 OF THE FEDERAL AIRPORT ACT, 49 U.S.C. 1104, WHICH INDICATES A CONGRESSIONAL INTENT TO PROVIDE ADDITIONAL FUNDS TO ALASKA BECAUSE OF ITS GEOGRAPHICAL LOCATION RATHER THAN ITS STATUS AS A TERRITORY, MAY CONTINUE TO REMAIN AVAILABLE UNTIL THE CONGRESS HAS AN OPPORTUNITY TO CONSIDER THE MATTER.

TO THE SECRETARY OF COMMERCE, DECEMBER 30, 1958:

YOUR LETTER OF OCTOBER 21, 1958, ACKNOWLEDGED NOVEMBER 10 AND DECEMBER 12, 1958, REQUESTS A DECISION AS TO WHETHER FUNDS AVAILABLE FOR OBLIGATION DURING FISCAL YEAR 1959 FOR AIRPORT PROJECTS IN THE TERRITORY OF ALASKA, PURSUANT TO SECTION 5 (B) OF THE FEDERAL AIRPORT ACT, AS AMENDED, 49 U.S.C. 1104 (B), REMAIN AVAILABLE AFTER ALASKA BECOMES A STATE.

SECTION 5 OF THE FEDERAL AIRPORT ACT, AS AMENDED, 49 U.S.C. 1104 (A), PROVIDES IN PART (QUOTING FROM SUPPLEMENT V IF THE UNITED STATES CODE):

(A) FOR THE PURPOSE OF CARRYING OUT THIS CHAPTER WITH RESPECT TO PROJECTS IN THE SEVERAL STATES, THERE ARE AUTHORIZED TO BE OBLIGATED BY THE EXECUTION OF GRANT AGREEMENTS PURSUANT TO SECTION 1111 OF THIS TITLE THE SUM OF $40,000,000 FOR THE FISCAL YEAR ENDING JUNE 30, 1956, AND THE SUM OF $60,000,000 FOR EACH OF THE FISCAL YEARS ENDING JUNE 30, 1957, JUNE 30, 1958, AND JUNE 30, 1959. EACH SUCH AUTHORIZED AMOUNT SHALL BECOME AVAILABLE FOR OBLIGATION BEGINNING JULY 1, OF THE FISCAL YEAR FOR WHICH IT IS AUTHORIZED, AND SHALL CONTINUE TO BE SO AVAILABLE UNTIL SO OBLIGATED.

(B) FOR THE PURPOSE OF CARRYING OUT THIS CHAPTER WITH RESPECT TO PROJECTS IN THE TERRITORIES OF ALASKA AND HAWAII, AND IN PUERTO RICO AND THE VIRGIN ISLANDS, THERE ARE HEREBY AUTHORIZED TO BE OBLIGATED BY THE EXECUTION OF GRANT AGREEMENTS PURSUANT TO SECTION 1111 OF THIS TITLE THE SUM OF $2,500,000 FOR THE FISCAL YEAR ENDING JUNE 30, 1956, AND THE SUM OF $3,000,000 FOR EACH OF THE FISCAL YEARS ENDING JUNE 30, 1957, JUNE 30, 1958, AND JUNE 30, 1959. EACH SUCH AUTHORIZED AMOUNT SHALL BECOME AVAILABLE FOR OBLIGATION BEGINNING JULY 1 OF THE FISCAL YEAR FOR WHICH IT IS AUTHORIZED, AND SHALL CONTINUE TO BE SO AVAILABLE UNTIL SO OBLIGATED. OF EACH OF THE AMOUNTS AUTHORIZED BY THIS SUBSECTION, 45 PERCENTUM SHALL BE AVAILABLE FOR PROJECTS IN THE TERRITORY OF ALASKA, 25 PERCENTUM FOR PROJECTS IN THE TERRITORY OF HAWAII, 20 PERCENTUM FOR PROJECTS IN PUERTO RICO, AND 10 PERCENTUM FOR PROJECTS IN THE VIRGIN ISLANDS.

THE FEDERAL AIRPORT ACT THUS PROVIDES ONE SYSTEM OF AID FOR PROJECTS LOCATED IN THE SEVERAL STATES AND ANOTHER SYSTEM OF AID FOR PROJECTS LOCATED IN THE TERRITORIES OF ALASKA AND HAWAII, AND IN PUERTO RICO AND THE VIRGIN ISLANDS. YOU SAY THAT YOU HAVE DETERMINED THAT ONCE ALASKA QUALIFIES AS A STATE IT MUST BE TREATED UNDER THOSE PROVISIONS OF LAW APPLYING TO THE SEVERAL STATES, BUT THAT THIS CONSTRUCTION OF THE STATUTE PRESENTS A FURTHER DIFFICULTY. THE 1959 APPORTIONMENT OF THE FUNDS AMONG THE SEVERAL STATES HAS BEEN MADE IN ACCORDANCE WITH THE LAW IN EFFECT AT THE TIME OF SUCH ACTION AND THEREFORE WITHOUT REFERENCE TO ALASKA. SINCE SECTION 6 OF THE FEDERAL AIRPORT ACT, 49 U.S.C. 1105, PROVIDES THAT AMOUNTS SO APPORTIONED FOR A STATE SHALL, DURING THE FISCAL YEAR AUTHORIZED, BE AVAILABLE ONLY FOR GRANTS FOR PROJECTS IN THAT STATE, IT IS NOT POSSIBLE TO REAPPORTION THE FUNDS ON THE ADMISSION OF ALASKA AS A STATE AND THE UNCOMMITTED PORTION OF THE $1,350,000 PRESENTLY AVAILABLE TO ALASKA WILL LAPSE.

YOU ALSO SAY IN YOUR LETTER THAT IT CAN BE ARGUED THAT THE CONGRESS, IN PROVIDING FOR SPECIAL TREATMENT OF ALASKA IN THE FEDERAL AIRPORT ACT, RECOGNIZED THAT UNUSUAL CONDITIONS EXISTED IN ALASKA WHICH WERE NOT PRESENT IN THE SEVERAL STATES AND THAT SPECIAL PROVISION FOR ALASKA WAS MADE IN THE FEDERAL AIRPORT ACT NOT BECAUSE OF ITS TERRITORIAL STATUS BUT BECAUSE OF THE DIFFERENT ECONOMIC CIRCUMSTANCES AND THE NEEDS OF AVIATION WHICH ARE PECULIAR TO THE AREA; THAT UNDER THIS THEORY, THE CHANGE OF THE STATUS OF ALASKA FROM A TERRITORY TO A STATE SHOULD NOT AFFECT THE AVAILABILITY OF THE FUNDS IN QUESTION BECAUSE THE REASON FOR WHICH THEY WERE PROVIDED REMAINS UNCHANGED BY THE TRANSFORMATION OF ALASKA FROM A TERRITORY TO A STATE; THAT THIS INTERPRETATION IS SUPPORTED BY THE FACT THAT SECTION 5 (B) REFERS TO "PROJECTS IN THE TERRITORY OF ALASKA," THUS DESCRIBING IT IN A GEOGRAPHIC SENSE WHICH IS NOT AFFECTED BY A CHANGE IN THE FORM OF GOVERNMENT, AND SECTION 10 (E) (C) AUTHORIZES MORE GENEROUS TREATMENT OF ALASKA AND THE VIRGIN ISLANDS THAN THAT AUTHORIZED FOR OTHER AREAS; AND FURTHER THAT SECTION 5 (B) ALSO PROVIDES THAT ONCE FUNDS BECOME AVAILABLE FOR OBLIGATION THEY "SHALL CONTINUE TO BE SO AVAILABLE UNTIL SO OBLIGATED.' THE FUNDS THUS HAVING BECOME AVAILABLE FOR PROJECTS IN ALASKA, THEY SHOULD REMAIN AVAILABLE EVEN THOUGH ALASKA BECOMES A STATE. YOU REQUEST OUR VIEWS AS TO THE COURSE OF ACTION WHICH YOU SHOULD FOLLOW IN THE ADMINISTRATION OF THE FEDERAL AIRPORT ACT.

AS STATED IN YOUR LETTER, IF ALASKA HAS TO BE TREATED AS ONE OF THE SEVERAL STATES AS THAT TERM IS USED IN THE FEDERAL AIRPORT ACT ONCE IT QUALIFIES AS A STATE UNDER THE ALASKA STATEHOOD ACT, PUBLIC LAW 85-508, 72 STAT. 339, THERE WOULD BE NO PART OF THE FUNDS AUTHORIZED TO BE APPORTIONED AMONG THE SEVERAL STATES AVAILABLE FOR APPORTIONMENT TO ALASKA AND THE UNCOMMITTED PORTION OF THE $1,350,000 PRESENTLY AVAILABLE TO THE TERRITORY OF ALASKA MIGHT LAPSE. THE AIRPORT PROGRAM IN ALASKA WOULD THEREBY BE CURTAILED TO THE EXTENT OF THE UNCOMMITTED FUNDS DURING THE BALANCE OF THE CURRENT FISCAL YEAR.

TO ADOPT THAT VIEW WOULD BE TANTAMOUNT TO SAYING THAT THE ALASKA STATEHOOD ACT REPEALED BY IMPLICATION THE SPECIFIC PROVISION OF LAW IN THE FEDERAL AIRPORT ACT RELATING TO ALASKA. IT IS A CARDINAL PRINCIPLE OF CONSTRUCTION, HOWEVER, THAT REPEALS BY IMPLICATION ARE NOT FAVORED AND THAT A STATUTE WILL NOT BE CONSTRUED AS REPEALING BY IMPLICATION PRIOR ACTS ON THE SUBJECT UNLESS THERE IS AN IRRECONCILABLE REPUGNANCY BETWEEN THEM, OR UNLESS THE NEW LAW IS EVIDENTLY INTENDED TO SUPERSEDE ALL PRIOR ACTS ON THE MATTER IN HAND AND TO COMPRISE IN ITSELF THE SOLE AND COMPLETE SYSTEM OF LEGISLATION ON THAT SUBJECT. WE CAN FIND NOTHING IN THE LEGISLATIVE HISTORY INDICATING THAT SUCH A RESULT WAS INTENDED. NEITHER DO WE BELIEVE THAT, IN THE ABSENCE OF A CLEAR DIRECTION IN THE STATUTE OR ITS LEGISLATIVE HISTORY, AN INTENT TO CUT OFF THE AIRPORT PROGRAM IN ALASKA CAN BE IMPUTED TO THE CONGRESS.

ON THE OTHER HAND, THERE APPEARS A SOUND BASIS FOR THE VIEW THAT THE PREFERENTIAL TREATMENT GIVEN TO ALASKA IN THE FEDERAL AIRPORT ACT WAS DUE TO ITS GEOGRAPHIC LOCATION RATHER THAN TO THE FACT THAT IT WAS A TERRITORY OF THE UNITED STATES. THE FACT THAT IT WAS GIVEN SUBSTANTIALLY MORE FINANCIAL AID THAN THE TERRITORY OF HAWAII ALSO INDICATES THAT ITS GEOGRAPHIC LOCATION WAS A PRIMARY FACTOR. THE HIGHER COSTS OF CONSTRUCTION, OPERATION AND MAINTENANCE OF AIRPORTS, THE SCARCITY OF INHABITANTS AND THE NATIONAL DEFENSE NEEDS COULD WELL HAVE BEEN THE MOTIVATING FACTORS RATHER THAN THE FORM OF GOVERNMENT IN THE DETERMINATION MADE BY THE CONGRESS TO GRANT FAVORED TREATMENT TO ALASKA. WHILE THE MATTER IS NOT FREE OF DOUBT, THE CONGRESS MAY HAVE INTENDED TO CONTINUE IN FORCE AND EFFECT THIS VERY TYPE OF LAW APPLYING SPECIFICALLY TO ALASKA WHEN IT DEFINED ,LAWS OF THE UNITED STATES" IN SECTION 8 (D) OF THE ALASKA STATEHOOD ACT, 72 STAT. 344.

IT THEREFORE IS OUR VIEW THAT THE FUNDS PRESENTLY APPORTIONED TO ALASKA SHOULD REMAIN AVAILABLE FOR OBLIGATION AND THAT THIS MATTER SHOULD BE CONSIDERED BY THE CONGRESS WHEN AND IF IT EXTENDS THE PROVISIONS OF SECTIONS 5 (A) AND (B) OF THE FEDERAL AIRPORT ACT BEYOND JUNE 30, 1959.