B-29924, NOVEMBER 12, 1942, 22 COMP. GEN. 462

B-29924, NOVEMBER 12, 1942, 22 COMP. GEN. 462

APPROPRIATIONS - COAST GUARD - AVAILABILITY FOR CONSTRUCTION OF BUILDINGS IN LIEU OF THOSE RELINQUISHED BY ANOTHER AGENCY THE APPROPRIATION " ACQUISITION OF VESSELS AND SHORE FACILITIES, COAST GUARD," CONTAINED IN THE NAVAL APPROPRIATION ACT, 1943, IS NOT AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS FOR THE DEPARTMENT OF AGRICULTURE TO REPLACE THOSE RELINQUISHED TO THE COAST GUARD, AND, THEREFORE, A TRANSFER OF FUNDS FROM SAID APPROPRIATION TO THE DEPARTMENT OF AGRICULTURE FOR THAT PURPOSE IS NOT AUTHORIZED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, NOVEMBER 12, 1942:

I HAVE YOUR LETTER OF OCTOBER 28, 1942, AS FOLLOWS:

THERE ARE SUBMITTED HEREWITH COPIES OF CORRESPONDENCE RELATING TO AN ARRANGEMENT BETWEEN THE U.S. COAST GUARD, NAVY DEPARTMENT AND THE U.S. FOREST SERVICE, DEPARTMENT OF AGRICULTURE, PURSUANT TO WHICH THE COAST GUARD HAS AGREED TO REIMBURSE THE FOREST SERVICE IN AN AMOUNT EQUAL TO THE VALUE OF CERTAIN BUILDINGS ON GOVERNMENT ISLAND, ALAMEDA, CALIFORNIA, WHICH WERE VACATED BY THAT SERVICE IN ORDER THAT THEY MIGHT BE UTILIZED BY THE COAST GUARD.

TITLE TO THE FEDERAL RESERVATION ON GOVERNMENT ISLAND WAS ACQUIRED IN THREE PARCELS. TWO PARCELS WERE CONVEYED TO THE UNITED STATES BY THE CITY OF ALAMEDA, CALIFORNIA, AND WERE ACCEPTED ON BEHALF OF THE UNITED STATES BY EXECUTIVE ORDER 5722 OF SEPTEMBER 22, 1931, AND EXECUTIVE ORDER 8470 OF JULY 8, 1940. TITLE TO THE THIRD PARCEL WAS ACQUIRED BY THE UNITED STATES FOR COAST GUARD PURPOSES BY CONDEMNATION ON JULY 15, 1942.

AS PROVIDED IN THE EXECUTIVE ORDERS REFERRED TO THE RESERVATION ON GOVERNMENT ISLAND WAS, UNTIL RECENTLY, USED JOINTLY BY THE PUBLIC ROADS ADMINISTRATION, FEDERAL WORKS AGENCY; THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE; THE UNITED STATES MARITIME COMMISSION AND THE COAST GUARD.

DUE TO THE RAPID EXPANSION OF THE COAST GUARD AS THE RESULT OF THE WAR THE EXTENSION OF EXISTING COAST GUARD FACILITIES ON GOVERNMENT ISLAND BECAME IMPERATIVE. THE COOPERATION OF THE ABOVE AGENCIES WAS REQUESTED, AND ARRANGEMENTS WERE EFFECTED WHEREBY THE COMPLETE CONTROL OVER THE RESERVATION WAS OBTAINED BY THE COAST GUARD. THE ACTIVITIES OF THE PUBLIC ROADS ADMINISTRATION ON THE RESERVATION WERE COMPLETELY CURTAILED; THE FOREST SERVICE VACATED ITS BUILDINGS AND MOVED INTO SPACE LEASED FOR THAT PURPOSE BY THE COAST GUARD. THE MARITIME COMMISSION HAS ACQUIRED A SITE IN ALAMEDA, CALIFORNIA, TO WHICH THE MERCHANT MARINE TRAINING STATION IS TO BE REMOVED AS SOON AS NEW FACILITIES ARE CONSTRUCTED, SUCH ARRANGEMENT HAVING BEEN MADE PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 9198 OF JULY 11, 1942, IT HAVING BEEN DETERMINED THAT THE FACILITIES ON GOVERNMENT ISLAND THERETOFORE USED IN THE TRAINING OF MERCHANT MARINE PERSONNEL WERE PRIMARILY USED FOR COAST GUARD PURPOSES.

THE SPACE LEASED BY THE COAST GUARD FOR THE FOREST SERVICE IS COVERED BY LEASE DATED MARCH 24, 1942, TCG.-34330, WHICH WAS RENEWED FOR THE FISCAL YEAR 1943 ON JULY 10, 1942.

SUBSEQUENT TO THE REMOVAL OF THE FOREST SERVICE FROM GOVERNMENT ISLAND AN INFORMAL AGREEMENT WAS ENTERED INTO BETWEEN THE COAST GUARD AND THAT AGENCY PURSUANT TO WHICH IT WAS AGREED THAT FUNDS IN THE AMOUNT OF $200,000, THE VALUE OF THE BUILDINGS RELINQUISHED TO THE COAST GUARD, WOULD BE RESERVED FOR TRANSFER TO THE FOREST SERVICE TO COVER THE COST OF CONSTRUCTION OF NEW FACILITIES TO REPLACE THOSE RELINQUISHED BY THE FOREST SERVICE.

YOUR DECISION IS REQUESTED WHETHER ANY LEGAL OBJECTION EXISTS TO THE PROPOSED TRANSFER OF FUNDS NOW OR AT A LATER DATE AS PROVIDED IN THE AFOREMENTIONED AGREEMENT.

THE ENCLOSED PAPERS CONTAIN FULL INFORMATION RELATIVE TO THE AGREEMENT REFERRED TO HEREIN. A PROMPT REPLY TO THIS REQUEST WILL BE APPRECIATED.

IT APPEARS FROM THE PAPERS TRANSMITTED WITH YOUR LETTER THAT THE FUNDS PROPOSED TO BE TRANSFERRED HAVE BEEN RESERVED UNDER THE APPROPRIATION " ACQUISITION OF VESSELS AND SHORE FACILITIES, COAST GUARD.' THE LANGUAGE UNDER THIS TITLE IN THE NAVAL APPROPRIATION ACT, 1943, 56 STAT. 73, IS AS FOLLOWS:

FOR THE PURCHASE OR CONSTRUCTION OF ADDITIONAL AND REPLACEMENT VESSELS AND THEIR EQUIPMENT, AND THE CONSTRUCTION, REBUILDING OR EXTENSION OF SHORE FACILITIES, INCLUDING THE ACQUISITION OF SITES AND IMPROVEMENTS THEREON WHEN SPECIFICALLY APPROVED BY THE SECRETARY OF THE NAVY, $13,256,550, TO BE IMMEDIATELY AVAILABLE AND TO REMAIN AVAILABLE UNTIL EXPENDED, OF WHICH AMOUNT NOT TO EXCEED FOUR PERCENTUM SHALL BE AVAILABLE FOR ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA;

THE LEGALITY OF THE PROPOSED TRANSFER WOULD APPEAR TO DEPEND PRIMARILY UPON THE AVAILABILITY OF THE FUNDS FOR THE PURPOSE CONTEMPLATED BY THE ARRANGEMENT BETWEEN THE NAVY DEPARTMENT AND THE DEPARTMENT OF AGRICULTURE, I.E., FOR THE CONSTRUCTION OF FACILITIES FOR THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, TO REPLACE THOSE TAKEN OVER BY THE COAST GUARD- -- IT BEING WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY APPROPRIATED FUNDS CANNOT BE MADE AVAILABLE BY MEANS OF A TRANSFER TO ANOTHER AGENCY OR ANOTHER APPROPRIATION FOR OBJECTS OR PURPOSES FOR WHICH SUCH FUNDS WOULD NOT BE AVAILABLE UNDER THE APPROPRIATION FROM WHICH THE TRANSFER IS MADE. 9 COMP. GEN. 89; 16 ID. 545; 17 ID. 73; ID. 900; 18 ID. 489. THEREFORE, CONSIDERATION OF THE INSTANT MATTER NECESSARILY INVOLVES SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, WHICH PROVIDES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

THUS NARROWED, THE QUESTION SEEMS SUBSTANTIALLY THE SAME AS THAT CONSIDERED IN DECISION OF JULY 7, 1942, B-27024, TO YOU. THE FACTS THERE INVOLVED WERE, BRIEFLY: THE NAVY HAD FOUND IT NECESSARY TO UTILIZE FACILITIES UNDER THE JURISDICTION OF THE PUBLIC HEALTH SERVICE FOR USE AS A QUARANTINE STATION AND HAD ASSURED THE FEDERAL SECURITY AGENCY THAT SUCH FACILITIES WOULD BE RELOCATED ON ANOTHER SITE BY THE NAVY DEPARTMENT. THE QUESTION WAS WHETHER ANY FUND OR APPROPRIATION OF THE NAVY DEPARTMENT WAS LEGALLY AVAILABLE FOR EXPENDITURE IN CONNECTION WITH SUCH RELOCATION, PARTICULAR REFERENCE BEING MADE TO THE NAVAL EMERGENCY FUND. IT WAS HELD:

* * * THE APPROPRIATIONS UNDER THE NAVAL EMERGENCY FUND ARE AVAILABLE ONLY FOR NAVAL OBJECTS AND PURPOSES, AND THE CONSTRUCTION OF A UNITED STATES QUARANTINE STATION DOES NOT FALL WITHIN EITHER OF THESE CATEGORIES. I FIND NO OTHER APPROPRIATION UNDER THE CONTROL OF THE NAVY DEPARTMENT WHICH APPEARS TO CONTEMPLATE CONSTRUCTION WORK OF SUCH A NATURE.

IT MIGHT BE ARGUED THAT THE FUNDS PROPOSED TO BE TRANSFERRED IN THE PRESENT MATTER ARE IN FACT TO BE EXPENDED IN CONNECTION WITH THE "ACQUISITION OF SHORE FACILITIES" FOR THE COAST GUARD IN THAT THEY ARE TO BE USED TO CONSTRUCT FACILITIES WHICH ARE TO BE EXCHANGED PURSUANT TO AN AGREEMENT WITH THE DEPARTMENT OF AGRICULTURE FOR FACILITIES OF THAT DEPARTMENT ALREADY EXISTING AND DESIRED FOR COAST GUARD OCCUPATION AND USE. HOWEVER, THE FALLACY OF SUCH AN ARGUMENT IS CLEARLY POINTED OUT IN THE DECISION OF JULY 7, 1942, SUPRA, WHEREIN IT WAS STATED:

THE FACT THAT THE FEDERAL SECURITY AGENCY HAS COOPERATED WITH THE NAVY DEPARTMENT UPON THE DEPARTMENT'S ASSURANCE THAT THE QUARANTINE STATION WOULD BE REPLACED AFFORDS NO BASIS FOR PAYMENT FROM APPROPRIATIONS MADE FOR THE NAVY DEPARTMENT OR THE NAVAL SERVICE FOR THE REPLACEMENT IN KIND OF BUILDINGS AND FACILITIES OF THE PUBLIC HEALTH SERVICE WHICH WERE RENDERED UNAVAILABLE TO THE SERVICE BECAUSE OF THE CONSTRUCTION OF THE SECTION BASE BY THE NAVY DEPARTMENT. THE BUILDINGS AND FACILITIES OF THE QUARANTINE STATION WERE NOT THE PROPERTY OF THE PUBLIC HEALTH SERVICE, BUT OF THE UNITED STATES. THE CASE DOES NOT INVOLVE THE TAKING OF PROPERTY OF OTHERS FOR THE USE OF THE UNITED STATES BUT, RATHER, IT IS MORE IN THE NATURE OF A TRANSFER OF PROPERTY OF THE UNITED STATES FROM ONE OF ITS AGENCIES TO ANOTHER. CF. 10 COMP. GEN. 288, AND CASES THERE CITED AND DISCUSSED. WHETHER THE QUARANTINE STATION WHICH HAS BEEN LOST TO THE PUBLIC HEALTH SERVICE BY THE EXIGENCIES OF WAR SHOULD BE REPLACED IN KIND, OR BY A MORE ELABORATE STATION, OR WHETHER THE STATION SHOULD BE DISCONTINUED, ARE QUESTIONS PROPERLY FOR THE CONSIDERATION OF THE CONGRESS. * *

CONSEQUENTLY, IT MUST BE CONCLUDED THAT SINCE FUNDS APPROPRIATED TO THE COAST GUARD MAY NOT BE CONSIDERED AVAILABLE FOR THE CONSTRUCTION OF FACILITIES FOR THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, THERE IS NO AUTHORITY FOR THE TRANSFER OF FUNDS, AS CONTEMPLATED, FOR SUCH PURPOSE, UNLESS AND UNTIL SUCH TRANSFER BE SPECIFICALLY PROVIDED FOR BY LAW.