B-34578 July 24, 1943

B-34578: Jul 24, 1943

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I have your letter of June 22. It is stated in your letter. That the said rights-of- way have been reserved on the records of the General Land Office for no consideration and no further questions exist as to the rights-of-way. That the Oregon and California Revested Lands Administration and the General Land Office are of the view that payment should be made for the said timber by the Bonneville Power Administration. There is then discussed the question of the legality of such payment in view of certain opinions of the Attorney General and decisions of the accounting officers to the effect that "there is no justification for the payment by one Federal agency to another Federal agency of a consideration for the transfer of land or property under the control of such Federal agency.".

B-34578 July 24, 1943

R. E. Nance, Chief, Accounting Division, Bonneville Power Administration, Portland 8, Oregon.

Dear Mr. Nance,

I have your letter of June 22, 1943, requesting an advance decision as to your authority to certify for payment a voucher (Form 1080) for adjustment between appropriations an/or funds, which voucher, in the total amount of $334.56, covers the agreed value of timer cut by the Bonneville Power Administration on and near rights-of-way for its power transmission lines across lands under the jurisdiction of Oregon and California Revested Lands Administration, part of the said timber having been on the rights- of-way and part having been "danger trees" new the rights-of-way.

It is stated in your letter, among other things, that the said rights-of- way have been reserved on the records of the General Land Office for no consideration and no further questions exist as to the rights-of-way, but that the Oregon and California Revested Lands Administration and the General Land Office are of the view that payment should be made for the said timber by the Bonneville Power Administration. There is then discussed the question of the legality of such payment in view of certain opinions of the Attorney General and decisions of the accounting officers to the effect that "there is no justification for the payment by one Federal agency to another Federal agency of a consideration for the transfer of land or property under the control of such Federal agency."

You state further:

"It is apparent in the subject case that the removal of the trees above described was for the sole benefit of the Bonneville Power Administration, and that compensation should be made therefor***",

and you suggest that the proposed payment might be supported on the ground that--

"***while legal title is vested in the United States and the property is under the control of the Oregon and California Revested Lands Administration, an agency of the United States, the property is actually held in trust for the repayment to the United States Treasury of funds advanced for the reclaiming of the property and for the payment to the counties of a sum in lieu of taxes. ***"

Copies of correspondence transmitted with your letter indicate that there was a somewhat indefinite agreement that the Bonneville Power Administration should pile the involved timber at convenient places satisfactory to the Chief Forester, Oregon and California Revested Lands Administration, to be sold by him, but that no mutually satisfactory arrangement with respect to disposition of the timber was made and that much of the timber has been burned or otherwise has become practically valueless. There were enclosed, also, Timber Cruises signed by a representative of each of the involved agencies, setting the value of the said timber at $334.56, the amount shown on the voucher.

Title II of the act of August 28, 1937, 50 Stat. 874, referred to in your letter, provides:

"That on and after March 1, 1938, all moneys deposited in the Treasury of the United States in the special fund designated the 'Oregon and California land-grant fund' shall be distributed annually as follows:

"(a) Fifty per centum to the counties in which the lands revested under the Act of June 9, 1916 (39 Stat. 218), are situated, to be payable on or after June 30, 1938, and each year thereafter to each of said counties in the proportion that the total assessed value of the Oregon and California grant lands in each of said counties for the year 1915 bears to the total assessed value of all of said lands in the State of Oregon for said year, such moneys to be used as other county funds.

"(b) Twenty-five per centum to said counties as money in lieu of taxes accrued or which shall accrue to them prior to March 1, 1938, under the provisions of the Act of July 13, 1926 (44 Stat. 915), and which taxes are unpaid on said date, such moneys to be paid to said counties severally by the Secretary of the Treasury of the United States, upon certification by the Secretary of the Interior, until such tax indebtedness as shall have accrued prior to March 1, 1938, is extinguished.

"From and after payment of the above accrued taxes said 25 per centum shall be accredited annually to the general funds in the Treasury of the United States until all reimbursable charges against the Oregon and California land-grant fund owing to the general fund in the Treasury have been paid: Provided, That if for any year after the extinguishment of the tax indebtedness accruing to the counties prior to March 1, 1938, under the provisions of Forty-fourth Statutes, page 925, the total amount payable under subsection (a)of this title is less than 78 per centum of the aggregate amount of tax claims which accrued to said counties under said Act for the year 1934, there shall be additionally payable for such year such portion of said 25 per centum (but not in excess of three-fifths of said 25 per centum), as may be necessary to make up the deficiency. When the general fund in the Treasury has been fully reimbursed for the expenditures which were made charges against the Oregon and California land-grant fund said 25 per centum shall be paid annually, on or after June 30, to the several counties in the manner provided in subsection (a) hereof.

"(a) Twenty-five per centum to be available for the administration of this Act, in such annual amounts as the Congress shall from time to time determine. Any part of such per centum not used for administrative purposes shall be covered into the general fund of the Treasury of the United States: Provided, That moneys covered into the Treasury in such manner shall be used to satisfy the reimbursable charges against the Oregon and California land-grant fund mentioned in subsection (b) so long as any such charges shall exist."

It seems clear that both the Bonneville Power Administration and the Oregon and California Revested Land Administration are agencies of the United States, both being within the Department of the Interior.

As suggested in your letter, it has been held consistently that, in the absence of specific statutory authority, payment of rent or compensation by one Government department or agency for the use of real or personal property under the administrative control of another department or agency is unauthorized. 21 Comp. Dec. 528; 22 id. 684; 20 Comp. Gen. 581; id. 699. The reasons underlying this rule are obvious. The ownership of public property is in the Government and not in a department or branch thereof having possession of the property. 22 Comp. Dec. 390. Also, a so-called contract between two agencies of the Government would result in the anomalous situation of a one-party agreement--the Government, represented by the agencies involved, being both the contractor and the contractee. It is a fundamental principle of law that one cannot make a valid contract with himself. Moreover, Government property usually is not acquired for the purposes of obtaining revenue; and as between different branches of the Government, their operation generally is not for profit and there is no authority to demand a return or compensation based on t the use of property or facilities by another branch of the Government. 25 Comp. Dec. 682; id. 961; 22 id. 390.

However, the foregoing rule does not necessarily preclude agreements or arrangements involving compensation between Government agencies in all cases. 20 Comp. Gen. 699; id. 581; see, also, 16 Comp. Gen. 887. The above-quoted provisions of the act of August 28, 1937, 50 Stat. 874, indicates a Congressional intention that lands under the control of the Oregon and California Revested Lands Administration should produce revenue for payment to the several countries in which the land is situated, as well as to reimburse the Government for its expenses in connection with the acquisition and administration of the property. See Comp. Gen. 699, supra. Although payment to the Oregon and California Revested Lands Administration by another Government agency would result in no net benefit generally to the Government, such payment would benefit the said counties. Taking such view of the matter, I concur in your suggestion that the involved lands and timber thereon properly may be regarded as being held in trust for the purpose specified in the said act of August 28, 1937, 50 Stat. 874, above quoted in part, and that payment should be made for the timber destroyed by the Bonneville Power Administration, from such funds as may be available therefor. 20 Comp. Gen. 581; compare 22 Comp. Gen. 462.

Section 2(b) of the act of August 20, 1937, 50 Stat. 731, 732, (16 U.S.C. 832b), authorizing the completion, maintenance and operation of the Bonneville project, provides:

"(b) In order to encourage the widest possible use of all electric energy that can be generated and marketed and to provide reasonable outlets therefor, and to prevent the monopolization thereof by limited groups, the administrator is authorized and directed to provide, construct, operate, maintain, and improve such electric transmission lines and substations, and facilities and structures appurtenant thereto, as he finds necessary, desirable, or appropriate for the purpose of transmitting electric energy, available for sale, from the Bonneville project to existing and potential markets, and, for the purpose of interchange of electric energy, to interconnect the Bonneville project with other Federal projects and publicly owned power systems now or hereafter constructed."

The appropriation account sought to be charged in the instant matter, as shown on the Schedule of Adjustments enclosed with you letter, is "14X1225.001 Construction, Operations, and Maintenance, Bonneville Power Transmission System", which is based on the Interior Department Appropriation Act, 1942, approved June 28, 1941, 55 Stat. 303, 308. The said act provides, in pertinent part:

"For all expenses necessary to enable the Bonneville Power Administrator to exercise and perform the powers and duties imposed upon him by the Act 'To authorize the completion, maintenance, and operation of the Bonneville Project, for navigation and for other purposes', approved August 20, 1937 (50 Stat. 731), including personal services, ***to remain available until expended, $22,858,500, of which amount *** $885,600 shall be available for expenses of marketing and transmission facilities, and administrative costs in connection therewith.***"

See also, the Third Supplemental National Defense Appropriation Act, 1942, 55 Stat. 810, 826, and the Interior Department Appropriation Act, 1943, 56 Stat. 506, 510. Inasmuch as the acquisition and preparation of rights-of- way for transmission lines is a necessary incident to the construction of the transmission system, the said appropriation reasonably may be considered available for payment of expenses of such acquisition and preparation. 17 Comp. Gen. 637, and decisions therein cited.

For the reasons above set out, you are advised that payment on said voucher, is authorized, if otherwise correct. The voucher and related papers are returned herewith. It is noted that in the Schedule of Adjustments, there is a slight inaccuracy in the designation of the appropriation to be credited, in that the comma following the word "Oregon" should follow the parenthesis and the period within the parenthesis should be omitted.

Respectfully,

Lindsay C. Warren Comptroller General of the United States

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