B-7284, FEBRUARY 21, 1940, 19 COMP. GEN. 739

B-7284: Feb 21, 1940

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TO BE ERECTED BY THE GOVERNMENT ON LANDS IN WHICH EASEMENTS ARE TO BE OBTAINED. ARE WITHIN THE TERM "OTHER PUBLIC BUILDING OF ANY KIND WHATEVER" AS USED IN SECTION 355. THE FACT THAT THE HEAD OF AN AGENCY IS EXPRESSLY AUTHORIZED TO ACQUIRE CERTAIN EASEMENTS BY CONDEMNATION AS WELL AS BY PURCHASE IS NOT SUFFICIENT TO INDICATE A LEGISLATIVE INTENT TO DISPENSE WITH THE REQUIREMENT OF SECTION 355. FOR THE ATTORNEY GENERAL'S APPROVAL OF TITLE WHERE THE EASEMENTS ARE PURCHASED. 13 OP. IN SUPPORT OF THE PROPOSITION THAT SUCH PROCEDURE IS AUTHORIZED THE ADMINISTRATOR SUBMITTED THE OPINIONS OF THE SOLICITOR. IS NOT APPLICABLE. ARE WITHIN THE CONTEMPLATION OF THE TERM . THE ACQUISITION OF THE EASEMENTS IS EXCEPTED FROM THE REQUIREMENTS OF SECTION 355.

B-7284, FEBRUARY 21, 1940, 19 COMP. GEN. 739

STATUTORY CONSTRUCTION - USE OF TITLE OF STATUTE; LAND PURCHASE TITLE APPROVAL REQUIREMENTS OF SECTION 355, REVISED STATUTES THE DECLARED SCOPE AND PURCHASE OF A STATUTE, AS EVIDENCED BY ITS TITLE, MAY BE CONSIDERED IN CASES OF DOUBT AND AMBIGUITY. POWER TRANSMISSION LINES, TOGETHER WITH THEIR TOWERS, POLES, AND APPURTENANCES, TO BE ERECTED BY THE GOVERNMENT ON LANDS IN WHICH EASEMENTS ARE TO BE OBTAINED, ARE WITHIN THE TERM "OTHER PUBLIC BUILDING OF ANY KIND WHATEVER" AS USED IN SECTION 355, REVISED STATUTES, WHICH REQUIRES THE ATTORNEY GENERAL'S APPROVAL OF TITLES TO LANDS ACQUIRED FOR THE PURPOSES OF THE STATUTE. THE FACT THAT THE HEAD OF AN AGENCY IS EXPRESSLY AUTHORIZED TO ACQUIRE CERTAIN EASEMENTS BY CONDEMNATION AS WELL AS BY PURCHASE IS NOT SUFFICIENT TO INDICATE A LEGISLATIVE INTENT TO DISPENSE WITH THE REQUIREMENT OF SECTION 355, REVISED STATUTES, FOR THE ATTORNEY GENERAL'S APPROVAL OF TITLE WHERE THE EASEMENTS ARE PURCHASED. 13 OP. ATTY. GEN. 131; UNPUBLISHED OPINION OF THE ACTING ATTORNEY GENERAL, MARCH 24, 1904; 12 COMP. DEC. 691; 5 COMP. GEN. 953; AND 10 ID. 115; ALL CITED IN SUPPORT OF THE THEORY THAT SUCH AUTHORITY FOR BOTH CONDEMNATION AND PURCHASE EXEMPTS THE SPECIFIC OFFICER SO AUTHORIZED FROM THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, HELD NEITHER TO JUSTIFY AN EXTENSION IN SCOPE OF THE SO- CALLED EXCEPTION NOR ITS RECOGNITION OR APPLICATION IN OTHER CASES. PAYMENTS FOR POWER TRANSMISSION LINE EASEMENTS FOR THE BONNEVILLE PROJECT MAY NOT LAWFULLY BE MADE WITHOUT OBTAINING THE ATTORNEY GENERAL'S APPROVAL OF TITLES PURSUANT TO SECTION 355, REVISED STATUTES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, FEBRUARY 21, 1940:

BY LETTER OF NOVEMBER 22, 1939, THE ADMINISTRATOR, BONNEVILLE PROJECT, PORTLAND, OREG., REQUESTED A DECISION AS TO WHETHER PAYMENTS LAWFULLY MAY BE MADE FOR TRANSMISSION LINE EASEMENTS WITHOUT OBTAINING THE ATTORNEY GENERAL'S APPROVAL OF TITLES PURSUANT TO SECTION 355, REVISED STATUTES, 40 U.S.C. 255. IN SUPPORT OF THE PROPOSITION THAT SUCH PROCEDURE IS AUTHORIZED THE ADMINISTRATOR SUBMITTED THE OPINIONS OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR, AND OF THE GENERAL COUNSEL, BONNEVILLE PROJECT. IN OPPOSITION, THE ATTORNEY GENERAL SUBMITTED, UNDER DATE OF DECEMBER 4, 1939, A COMPREHENSIVE MEMORANDUM, PREPARED IN THE DEPARTMENT OF JUSTICE, CHALLENGING THE ARGUMENTS MADE THAT SECTION 355, REVISED STATUTES, IS NOT APPLICABLE, AND UNDER DATE OF JANUARY 30, 1940, THE ADMINISTRATOR FORWARDED THE REPLY OF THE GENERAL COUNSEL OF THE BONNEVILLE PROJECT TAKING ISSUE WITH THE CONCLUSIONS OF THE DEPARTMENT OF JUSTICE.

THE CONTROVERSY BOILS DOWN TO TWO MAIN QUESTIONS: (1) WHETHER THE POWER TRANSMISSION LINES TO BE ERECTED, WITH THEIR TOWERS, POLES AND APPURTENANCES, ARE WITHIN THE CONTEMPLATION OF THE TERM ,OTHER PUBLIC BUILDING OF ANY KIND WHATEVER" AS USED IN SECTION 355, REVISED STATUTES, AS AMENDED AND REENACTED, AND (2) IF SO, WHETHER, NEVERTHELESS, THE ACQUISITION OF THE EASEMENTS IS EXCEPTED FROM THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, BECAUSE THE ADMINISTRATOR IS EXPRESSLY AUTHORIZED TO ACQUIRE SUCH EASEMENTS EITHER BY PURCHASE OR CONDEMNATION.

SINCE THE SUBMISSION OF THE QUESTION AND THE ARGUMENTS THEREON, SECTION 355, REVISED STATUTES, HAS BEEN AMENDED AND REENACTED BY PUBLIC, NO. 409, APPROVED FEBRUARY 1, 1940, 54 STAT. 19, TO OMIT THE REQUIREMENT OF THE ORIGINAL STATUTE RESPECTING STATE CONSENT TO LAND PURCHASES AND TO PROVIDE INSTEAD FOR ADMINISTRATIVE ACCEPTANCE FROM THE STATE OF SUCH CESSION OF JURISDICTION AS MAY BE DEEMED DESIRABLE. THERE WAS LEFT UNCHANGED, HOWEVER, THE PROVISION HERE INVOLVED THAT---

NO PUBLIC MONEY SHALL BE EXPENDED UPON ANY SITE OR LAND PURCHASED BY THE UNITED STATES FOR THE PURPOSES OF ERECTING THEREON ANY ARMORY,ARSENAL, FORT, FORTIFICATION, NAVY YARD, CUSTOMHOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING OF ANY KIND WHATEVER, UNTIL THE WRITTEN OPINION OF THE ATTORNEY GENERAL SHALL BE HAD IN FAVOR OF THE VALIDITY OF THE TITLE * * *

IN DECISION OF MARCH 20, 1939, 18 COMP. GEN. 727, THE SCOPE OF THIS STATUTORY REQUIREMENT AS THERETOFORE INTERPRETED AND APPLIED WAS REVIEWED AT LENGTH, SAID DECISION BEING IN PART AS FOLLOWS:

SECTION 355, REVISED STATUTES, WAS DERIVED FROM THE JOINT RESOLUTION OF SEPTEMBER 11, 1841, 5 STAT. 468, AND OVER THE PERIOD OF ITS EXISTENCE--- ALMOST A CENTURY--- THE LEGISLATION HAS GENERALLY BEEN REGARDED AS REQUIRING THE ATTORNEY GENERAL'S APPROVAL OF LAND TITLES BEFORE PURCHASE BY THE UNITED STATES, EXCEPT WHEN THE CONGRESS INDICATED OTHERWISE, IRRESPECTIVE OF THE CHARACTER OF THE IMPROVEMENTS CONTEMPLATED OR AUTHORIZED TO BE PLACED ON THE LAND, AND ALTHOUGH STATE CONSENT WAS NOT REGARDED AS REQUIRED BEFORE PURCHASE BUT ONLY TO OBTAIN EXCLUSIVE JURISDICTION, WHERE THAT WAS REQUISITE, BEFORE IMPROVEMENT OF THE PROPERTY.

AS HAS ALREADY BEEN POINTED OUT, THE ATTORNEY GENERAL STATED IN 10 OP. ATTY. GEN. 353 (1862) THAT THE PURPOSE OF THIS LEGISLATION WAS TO PROTECT THE UNITED STATES AGAINST THE EXPENDITURE OF MONEY "IN THE PURCHASE OR IMPROVEMENT OF LAND TO WHICH IT ACQUIRED A DOUBTFUL OR INVALID TITLE; " IN 13 OP. ATTY. GEN. 131 (1869) THAT THE LEGISLATION CONTEMPLATES "PURCHASE OF LANDS FOR ALL PUBLIC PURPOSES; " IN 37 OP. ATTY. GEN. 32 (1934), TO THE SECRETARY OF THE INTERIOR, THAT "BOTH YOUR DEPARTMENT AND MINE HAVE ACTED UPON THE ASSUMPTION THAT SUCH APPROVAL OF TITLE IS REQUIRED (BY 355 R.S.) ALSO IN CONNECTION WITH LANDS PURCHASED FOR THE ERECTION OF SUBSISTENCE HOMESTEADS, AS INDICATED IN THE OPINION OF JULY 18, 1934; " AND THE COMPTROLLER OF THE TREASURY STATED IN 3 COMP. DEC. 530 (1897) THAT "IT HAS BEEN HELD THAT NO MONEY CAN BE EXPENDED FOR THE PURCHASE OF LAND UNTIL THE OPINION (OF THE ATTORNEY GENERAL) AS TO THE VALIDITY OF THE LAND HAS BEEN GIVEN" AND THAT HE BELIEVED THAT THE WORDS "PUBLIC BUILDING OF ANY KIND WHATEVER" IN SECTION 355, REVISED STATUTES, HAD BEEN "BROADLY CONSTRUED IN PRACTICE BY ALL THE EXECUTIVE DEPARTMENTS" SO AS TO "INCLUDE PUBLIC WORKS OF ALL KINDS.'

MOREOVER, IN 28 OP. ATTY. GEN. 413 (1910), AS AMPLIFIED IN 28 OP. ATTY. GEN. 463, THE ATTORNEY GENERAL INFORMED THE SECRETARY OF THE INTERIOR THAT, ALTHOUGH DOUBTFUL WHETHER LEASES FOR A NOMINAL CONSIDERATION OF SITES FOR TEMPORARY STRUCTURES FOR MINE RESCUE EXPERIMENTATION WORK WERE PURCHASES WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES, IT WAS ADVISABLE THAT THE TITLES BE SUBMITTED TO THE ATTORNEY GENERAL FOR HIS OPINION SO THAT THE STATUTORY REQUIREMENT "MIGHT BE COMPLIED WITH IN CASE SECTION 355 DID APPLY, AND, SECOND, BECAUSE, INDEPENDENT OF THE STATUTE, IT WAS DEEMED A WISE PRECAUTION THAT THE TITLE TO THE LANDS SHOULD BE EXAMINED BEFORE IMPROVEMENTS SHOULD BE PLACED THEREON.'

IN 17 COMP. DEC. 252 (1910) IT WAS POINTED OUT THAT BEFORE PAYMENT COULD BE MADE FOR LAND PURCHASED FOR MILITIA RIFLE RANGES THE TITLE MUST BE APPROVED BY THE ATTORNEY GENERAL "AS REQUIRED BY SECTION 355 OF THE REVISED STATUTES.'

IN 1 COMP. GEN. 625 (1922), COMPTROLLER GENERAL MCCARL, CITING 28 OP. ATTY. GEN. 413, STATED BROADLY THAT "THE PROVISIONS OF THIS SECTION (355 R.S.) ARE APPLICABLE TO ALL LAND PURCHASED BY THE UNITED STATES FOR WHATEVER PURPOSE," AND REPEATED THIS STATEMENT IN 9 COMP. GEN. 421 (1930).

IN 15 COMP. GEN. 359 (1935) IT WAS SAID:

"WHETHER LANDS ARE TO BE ACQUIRED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS AND TO REMAIN IN POSSESSION OF THE GOVERNMENT INDEFINITELY OR WHETHER THEY ARE TO BE ACQUIRED FOR IMPROVEMENT AND RESALE OR OTHERWISE, IT IS NECESSARY THAT THERE BE ACQUIRED A GOOD TITLE THERETO, AND THAT WAS THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE ENACTMENT OF THE ACT OF SEPTEMBER 11, 1841, FROM WHICH THE PROVISIONS OF SECTION 355, REVISED STATUTES, WERE TAKEN. * * *

"* * * IT WOULD SEEM THAT, REGARDLESS OF WHAT MAY BE THE STRICT TECHNICAL REQUIREMENTS OF SECTION 355, REVISED STATUTES, THE PUBLIC INTERESTS WOULD BEST BE SERVED BY OBTAINING AN OPINION FROM THE ATTORNEY GENERAL AS TO THE VALIDITY OF TITLE IN THE CASE OF ALL LAND PURCHASED BY THE GOVERNMENT, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE.' AND IT WAS HELD, IN EFFECT, THAT TITLES TO LAND PURCHASED IN PUERTO RICO FOR REFORESTATION PURPOSES SHOULD BE APPROVED BY THE ATTORNEY GENERAL BEFORE PAYMENT OF THE PURCHASE PRICE. THIS DECISION IS NOT REGARDED AS RESTING ON CONSIDERATIONS MERELY OF ADMINISTRATIVE POLICY, AS MIGHT BE INFERRED, BUT IN THE LIGHT OF MANY YEARS OF INTERPRETATION AND PRACTICE, THAT THE MATTER WAS NOT PROPERLY FOR DECISION ON A "STRICT TECHNICAL" BASIS, AND THAT DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE BROAD LEGISLATIVE POLICY OF THE STATUTE.

THAT THERE HAS BEEN NO CHANGE IN THE LONG-ESTABLISHED GENERAL POLICY OF THE CONGRESS TO HAVE THE ATTORNEY GENERAL EXAMINE LAND TITLES FOR ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT IS CLEARLY SHOWN BY THE PROVISION INCLUDED IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR, 52 STAT. 269, AS FOLLOWS:

"FUNDS AVAILABLE TO ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR OTHER FEDERAL AGENCY FOR THE ACQUISITION OF LANDS SHALL BE AVAILABLE, IN SUCH AMOUNTS AS THE DIRECTOR OF THE BUREAU OF THE BUDGET MAY DETERMINE TO BE NECESSARY, FOR TRANSFER TO THE DEPARTMENT OF JUSTICE FOR PAYMENT OF SALARIES AND OTHER EXPENSES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE NECESSARY FOR THE EXAMINATION OF TITLE AND PROSECUTION OF CONDEMNATION PROCEEDINGS WITH RESPECT TO SUCH LANDS, * * *" AND, FURTHER, BY THE PROVISION IN SECTION 1 (8) OF THE EMERGENCY RELIEF ACT OF JUNE 21, 1938, 52 STAT. 810, FOR THE CURRENT FISCAL YEAR, APPROPRIATING DIRECTLY TO THE DEPARTMENT OF JUSTICE THE AMOUNT OF $1,250,000 FOR ADMINISTRATIVE EXPENSES IN CARRYING OUT THE PROVISIONS OF SECTION 5 OF THE EMERGENCY RELIEF ACT OF APRIL 8, 1935, 49 STAT. 118, AUTHORIZING THE PRESIDENT TO ACQUIRE ANY REAL PROPERTY, OR INTERESTS THEREIN, FOR THE BROAD PURPOSES OF THAT EARLIER ACT.

THUS IT APPEARS SETTLED THAT THE STATUTE HAS BEEN GENERALLY INTERPRETED AND APPLIED OVER ALMOST A CENTURY OF ADMINISTRATION AS EXTENDING TO LAND PURCHASES WHETHER THE CONTEMPLATED IMPROVEMENTS WERE "PUBLIC BUILDINGS," IN THE ORDINARY OR POPULAR SENSE, OR WERE PUBLIC WORKS. THIS CONSTRUCTION FINDS AMPLE SUPPORT IN THE PURPOSES OF THE LEGISLATION AND ANY DOUBT OTHERWISE IN THIS RESPECT IS OVERCOME BY REFERENCE TO THE JOINT RESOLUTION OF SEPTEMBER 11, 1841, 5 STAT. 468, WHICH WAS EXPRESSLY ENTITLED "A JOINT RESOLUTION MAKING IT THE DUTY OF THE ATTORNEY GENERAL TO EXAMINE INTO THE TITLES OF THE LANDS OR SITES FOR THE PURPOSE OF ERECTING THEREON ARMORIES AND OTHER PUBLIC WORKS AND BUILDINGS, AND FOR OTHER PURPOSES.' ( ITALICS SUPPLIED.) THAT THE DECLARED SCOPE AND PURPOSE OF A STATUTE AS EVIDENCED BY ITS TITLE MAY BE CONSIDERED IN CASES OF DOUBT AND AMBIGUITY, SEE WHITE V. UNITED STATES, 191 U.S. 545, AND CASES CITED.

IN JAMES V. DRAVO CONSTRUCTION COMPANY, 302 U.S. 134, 143, DECIDED DECEMBER 6, 1937, THE SUPREME COURT OF THE UNITED STATES IN DETERMINING THE EXTENT OF FEDERAL JURISDICTION OVER THE SITE OF CERTAIN LOCKS AND DAMS IN WEST VIRGINIA, AND IN THAT CONNECTION HAVING FOR DETERMINATION THE APPLICATION OF ARTICLE I, SECTION 8, CLAUSE 17, OF THE CONSTITUTION PROVIDING THAT CONGRESS SHALL HAVE POWER TO EXERCISE EXCLUSIVE LEGISLATION OVER "ALL PLACES PURCHASED BY THE CONSENT OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCKYARDS, AND OTHER NEEDFUL BUILDINGS" SAID:

* * * WE CONSTRUE THE PHRASE "OTHER NEEDFUL BUILDINGS" AS EMBRACING WHATEVER STRUCTURES ARE FOUND TO BE NECESSARY IN THE PERFORMANCE OF THE FUNCTIONS OF THE FEDERAL GOVERNMENT. SEE, ALSO, SILAS MASON CO. V. TAX COMMISSION, 302 U.S. 186, DECIDED THE SAME DAY.

THE GENERAL COUNSEL, BONNEVILLE PROJECT, URGES THAT THIS DEFINITION OF THE TERM "OTHER NEEDFUL BUILDINGS" IN THE CONSTITUTION DOES NOT CONTROL AND NEED NOT BE APPLIED TO THE TERM "OTHER PUBLIC BUILDING OF ANY KIND WHATEVER" IN SECTION 355, REVISED STATUTES, AND ARGUES IN THAT CONNECTION THAT THE ATTORNEY GENERAL RECOGNIZED IN HIS OPINION OF MAY 5, 1939, THAT THE REQUIREMENT OF STATE ,CONSENT" IN THE STATUTE WAS NOT THE SAME AS THE "CONSENT" CONTEMPLATED BY THE CONSTITUTION, AS CONSTRUED BY THE SUPREME COURT IN THE SAME CASE. AN EXAMINATION OF THAT OPINION SHOWS, HOWEVER, THAT IT WAS THE VIEW OF THE ATTORNEY GENERAL THAT THE LANGUAGE OF THE STATUTE IN SUCH CONNECTION HAD BEEN "REPEATEDLY INTERPRETED AND APPLIED" AS CONTEMPLATING THE "CONSENT" STIPULATED IN THE CONSTITUTION, BUT ON THE BASIS OF THE CONSTITUTIONAL LANGUAGE AS IT HAD BEEN UNDERSTOOD PRIOR TO JAMES V. DRAVO, AND AS IT WAS SUPPOSEDLY UNDERSTOOD BY THE CONGRESS WHEN THE 1841 STATUTE WAS ENACTED. IN OTHER WORDS, THAT WHILE THE STATUTE WAS ENACTED AND REENACTED IN CONTEMPLATION OF THE CONSTITUTIONAL PROVISION, THE CONGRESS HAD IN MIND THE MEANING OF THE CONSTITUTION AS IT WAS UNDERSTOOD PRIOR TO JAMES V. DRAVO. WHILE JAMES V. DRAVO PLACED A DIFFERENT CONSTRUCTION ON ,CONSENT" THAN THERETOFORE UNDERSTOOD, THE COURT'S DEFINITION OF "BUILDINGS" WAS NOT IN CONFLICT WITH THE PRIOR UNDERSTANDING AND INTERPRETATION OF THAT TERM UNDER EITHER THE CONSTITUTIONAL PROVISION OR THE STATUTE, AND AS IT APPEARS THE STATUTE HAD ALWAYS BEEN REGARDED AS FOLLOWING THE CONSTITUTIONAL PROVISION, THE SUPREME COURT'S DEFINITION OF THE TERM "BUILDINGS" IN THE CONSTITUTIONAL PROVISION MAY FAIRLY BE TAKEN AS CONFIRMING THE PRIOR INTERPRETATION OF THE STATUTORY PROVISION IN THAT RESPECT. AT LEAST, THE RELATION BETWEEN THE CONSTITUTIONAL PROVISION AND THE JOINT RESOLUTION OF 1841 IS TOO CLOSE TO DISREGARD THE COURT'S DEFINITION OF THE CONSTITUTIONAL TERM "BUILDINGS" IN THE ADMINISTRATIVE INTERPRETATION AND APPLICATION OF THE STATUTE. BOTH THAT DEFINITION AND THE LONG COURSE OF INTERPRETATION OF THE STATUTE REQUIRE THE CONCLUSION THAT THE BONNEVILLE PROJECT TRANSMISSION LINE STRUCTURES COME WITHIN THE SCOPE OF SECTION 355, REVISED STATUTES.

RESPECTING THE QUESTION OF EXEMPTION FROM THE REQUIREMENTS OF SAID SECTION 355 ON THE GROUND THAT THE ADMINISTRATOR, BONNEVILLE PROJECT, IS EXPRESSLY AUTHORIZED TO ACQUIRE THE EASEMENTS IN QUESTION EITHER BY PURCHASE OR CONDEMNATION, THE OPINION OF THE GENERAL COUNSEL CITES 13 OP. ATTY. GEN. 131; UNPUBLISHED OPINION OF THE ACTING ATTORNEY GENERAL, MARCH 24, 1904; 12 COMP. DEC. 691; 5 COMP. GEN. 953; AND 10 COMP. GEN. 115, IN SUPPORT OF THE STATEMENT THAT FOR 70 YEARS THE ATTORNEY GENERAL, THE COMPTROLLER OF THE TREASURY, AND THE COMPTROLLER GENERAL HAVE REPEATEDLY HELD THAT WHENEVER A STATUTE EMPOWERS A SPECIFIC OFFICER TO EXERCISE HIS OWN DISCRETION AS TO WHETHER LAND SHOULD BE CONDEMNED OR PURCHASED, THAT OFFICER IS EXEMPTED FROM THE PROVISIONS OF SECTION 355, REVISED STATUTES. IN THE DECISION OF MARCH 20, 1939, 18 COMP. GEN. 727, 734, IT WAS POINTED OUT THAT THE CONCLUSION OF THE ATTORNEY GENERAL IN THE CITED OPINION, 13 OP. ATTY. GEN. 131, THAT HIS APPROVAL OF TITLES OF LANDS THERE AUTHORIZED TO BE ACQUIRED BY PURCHASE OR CONDEMNATION FOR NATIONAL CEMETERIES WAS NOT ABSOLUTELY REQUIRED BY LAW WAS BASED SQUARELY ON THE PREMISE THAT THE JOINT RESOLUTION OF 1841 REQUIRED STATE CONSENT BEFORE THE PURCHASE (AS DISTINGUISHED FROM THE IMPROVEMENT) OF LANDS, AND THAT AS THE AUTHORITY TO CONDEMN WAS VIEWED AS INCONSISTENT WITH THE REQUIREMENT OF STATE CONSENT BEFORE PURCHASE, THE JOINT RESOLUTION WAS NOT STRICTLY APPLICABLE. AS TO THE EFFECT OF THIS OPINION IT WAS SAID "BUT THIS WAS NOT THE RULE THERETOFORE OR THEREAFTER FOLLOWED AS TO STATE CONSENT, AND THE CONCLUSION FAILS WITH THE PREMISE.' THE DECISION THEN WENT ON TO SAY, OBITER DICTUM, RESPECTING THE PRIOR DECISIONS, 12 COMP. DEC. 691, 5 COMP. GEN. 953, AND 10 COMP. GEN. 115, NOW CITED BY THE GENERAL COUNSEL.

* * * IN LATER CASES IT WAS HELD THAT WHERE THE STATUTE AUTHORIZED THE ACQUISITION OF LAND EITHER BY PURCHASE OR CONDEMNATION, IT WAS UNNECESSARY TO OBTAIN THE ATTORNEY GENERAL'S APPROVAL OF TITLES, BUT THIS WAS PUT ON THE GROUND THAT SUCH STATUTES VESTED IN THE ACQUIRING AGENCIES THE DISCRETION TO DETERMINE WHETHER TO PURCHASE OR TO CONDEMN, AND, AS INCIDENTAL TO THAT DISCRETION, THE AUTHORITY TO DETERMINE WHETHER TITLE WAS SUFFICIENTLY CLEAR TO WARRANT PURCHASE WITHOUT CONDEMNATION, THE VIEW APPARENTLY BEING TAKEN THAT IF TITLE PROVED AT ALL QUESTIONABLE THE DEFECTS WOULD OR COULD BE CURED BY CONDEMNATION PROCEEDINGS, AND THE GOVERNMENT THEREBY PROTECTED. SEE 12 COMP. DEC. 691; 5 COMP. GEN. 953; 10 COMP. GEN. 115. WHILE THERE IS ROOM FOR THE DISTINCTION MADE, SUCH EXCEPTION TO THE GENERAL RULE DOES NOT APPEAR TO BE TOO STRONGLY SUPPORTED BY REASON, AND WERE THE MATTER ONE OF ORIGINAL INTERPRETATION, IT MIGHT WELL BE DOUBTED WHETHER SUCH EXCEPTION IS CLEARLY JUSTIFIED. AT LEAST IT SHOULD NOT BE EXTENDED.

THE DEPARTMENT OF JUSTICE MEMORANDUM CONTENDS THAT ON PRINCIPLE THERE IS NO BASIS FOR SUCH AN EXCEPTION; THAT NUMEROUS STATUTES EXPRESSLY AUTHORIZE THE ACQUISITION OF LAND ALTERNATIVELY BY PURCHASE OR CONDEMNATION; THAT IF AUTHORITY TO CONDEMN IS NOT EXPRESSLY GRANTED, THE ACQUIRING OFFICER HAS SUCH AUTHORITY UNDER THE ACT OF AUGUST 1, 1888, 25 STAT. 357, 40 U.S.C. 257, SO THAT IN EVERY CASE SINCE 1888 WHERE THE PURCHASE OF LAND HAS BEEN AUTHORIZED THE ELECTION TO ACQUIRE IT EITHER BY PURCHASE OR CONDEMNATION IS VESTED IN EVERY OFFICER AUTHORIZED TO PROCURE IT; THAT THERE IS NO BASIS FOR A DISTINCTION WHERE THE PARTICULAR ACT EXPRESSLY AUTHORIZES CONDEMNATION BECAUSE CONGRESS BY THE SAID ACT OF AUGUST 1, 1888, HAS INVESTED ACQUIRING OFFICIALS WITH THE DISCRETION TO DETERMINE WHETHER TO PURCHASE OR CONDEMN TO THE SAME EXTENT THAT IT HAS DONE SO WHEN INSERTING THE ALTERNATIVE IN THE AUTHORIZING ACT; THAT THE UNPUBLISHED OPINION OF ACTING ATTORNEY GENERAL PURDY OF MARCH 24, 1904, GIVES NO REASONS FOR THE STATEMENT THAT LAND ACQUISITION BY THE BUREAU OF RECLAMATION IN PURSUANCE OF THE ACT OF JUNE 17, 1902, 32 STAT. 388, DID NOT COME WITHIN THE TERMS OF SECTION 355, REVISED STATUTES; THAT THE ARGUMENT DEVELOPED BY THE COMPTROLLER OF THE TREASURY IN 12 COMP. DEC. 691 SHOULD NOT BE FOLLOWED BECAUSE IT RELIES ON NO OTHER AUTHORITY THAN THE SAID UNPUBLISHED OPINION OF MARCH 24, 1904; THAT THE DECISION OF THE COMPTROLLER GENERAL IN 5 COMP. GEN. 953 ADVANCED NO ADDITIONAL VALID REASON FOR THE DOCTRINE AND SEEMS TO REST UPON THE FACT THAT THE LANDS WERE TO BE ACQUIRED SOLELY FOR PARK PURPOSES AND WITH NO INTENTION OF ERECTING ANY PUBLIC BUILDINGS THEREON; AND THAT THE DECISION 10 COMP. GEN. 115 INVOLVED ACQUISITIONS OF LAND BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA FOR MUNICIPAL PURPOSES AND NOT PURCHASES "BY THE UNITED STATES.'

IRRESPECTIVE OF THE WEIGHT TO BE GIVEN THESE MATTERS--- AND IT MUST BE CONCEDED THAT THEY WEIGH HEAVILY AGAINST THE EXCEPTION URGED--- IT SEEMS CLEAR THAT THE CONGRESS HAS NOT RECOGNIZED OR ADOPTED ANY SUCH EXCEPTION TO THE REQUIREMENTS OF SECTION 355, REVISED STATUTES. BY THE ACT OF FEBRUARY 26, 1931, 46 STAT. 1421, ENACTED SUBSEQUENT TO THE CITED DECISIONS, IT WAS PROVIDED:

THAT IN ANY PROCEEDING IN ANY COURT OF THE UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA WHICH HAS BEEN OR MAY BE INSTITUTED BY AND IN THE NAME OF AND UNDER THE AUTHORITY OF THE UNITED STATES FOR THE ACQUISITION OF ANY LAND OR EASEMENT OR RIGHT-OF-WAY IN LAND FOR THE PUBLIC USE, THE PETITIONER MAY FILE IN THE CAUSE, WITH THE PETITION OR AT ANY TIME BEFORE JUDGMENT, A DECLARATION OF TAKING SIGNED BY THE AUTHORITY EMPOWERED BY LAW TO ACQUIRE THE LANDS DESCRIBED IN THE PETITION, DECLARING THAT SAID LANDS ARE THEREBY TAKEN FOR THE USE OF THE UNITED STATES. * *

UPON THE FILING SAID DECLARATION OF TAKING AND OF THE DEPOSIT IN THE COURT, TO THE USE OF THE PERSONS ENTITLED THERETO, OF THE AMOUNT OF THE ESTIMATED COMPENSATION STATED IN SAID DECLARATION, TITLE TO THE SAID LANDS IN FEE SIMPLE ABSOLUTE, OR SUCH LESS ESTATE OR INTEREST THEREIN AS IS SPECIFIED IN SAID DECLARATION, SHALL VEST IN THE UNITED STATES OF AMERICA, AND SAID LANDS SHALL BE DEEMED TO BE CONDEMNED AND TAKEN FOR THE USE OF THE UNITED STATES, AND THE RIGHT TO JUST COMPENSATION FOR THE SAME SHALL VEST IN THE PERSONS ENTITLED THERETO;

SEC. 5. IN ANY CASE IN WHICH THE UNITED STATES HAS TAKEN OR MAY TAKE POSSESSION OF ANY REAL PROPERTY DURING THE COURSE OF CONDEMNATION PROCEEDINGS AND IN ADVANCE OF FINAL JUDGMENT THEREIN AND THE UNITED STATES HAS BECOME IRREVOCABLY COMMITTED TO PAY THE AMOUNT ULTIMATELY TO BE AWARDED AS COMPENSATION, IT SHALL BE LAWFUL TO EXPEND MONEYS DULY APPROPRIATED FOR THAT PURPOSE IN DEMOLISHING EXISTING STRUCTURES ON SAID LANDS AND IN ERECTING PUBLIC BUILDINGS OR PUBLIC WORKS THEREON, NOTWITHSTANDING THE PROVISIONS OF SECTION 355 OF THE REVISED STATUTES OF THE UNITED STATES; PROVIDED, THAT IN THE OPINION OF THE ATTORNEY GENERAL, THE TITLE HAS BEEN VESTED IN THE UNITED STATES OR ALL PERSONS HAVING AN INTEREST THEREIN HAVE BEEN MADE PARTIES TO SUCH PROCEEDING AND WILL BE BOUND BY THE FINAL JUDGMENT THEREIN. ( ITALICS SUPPLIED.)

IN VIEW OF THIS LEGISLATIVE RECOGNITION THAT SECTION 355, REVISED STATUTES, WOULD OTHERWISE APPLY IN SUCH CONDEMNATION MATTERS, AND THE EXPRESS REQUIREMENT, UNDER THE PROVISO, FOR THE OPINION OF THE ATTORNEY GENERAL AS TO VESTING OF TITLE, OR THAT ALL INTERESTED PERSONS WILL BE BOUND, BEFORE MONEY MAY BE EXPENDED UPON THE LAND FOR PUBLIC BUILDINGS OR PUBLIC WORKS, IT WOULD BE HIGHLY INCONSISTENT TO HOLD--- ON GROUND NO MORE FIRM THAN THAT THERE WAS ALTERNATIVE AUTHORITY TO CONDEMN--- THAT CONGRESS HAS INTENDED TO DISPENSE WITH THE REQUIREMENT OF THE ATTORNEY GENERAL'S APPROVAL OF TITLE WHERE THE LAND IS PURCHASED. IT WAS SAID, OBITER DICTUM, IN THE DECISION 18 COMP. GEN. 727, RESPECTING SUCH EXCEPTION APPARENTLY MADE IN THE PRIOR CITED DECISIONS, THAT "AT LEAST IT SHOULD NOT BE EXTENDED.' THE QUESTION BEING HERE SQUARELY PRESENTED, IT MUST BE HELD, PARTICULARLY IN VIEW OF THE ACT OF FEBRUARY 26, 1931, SUPRA, AND THE REENACTMENT FEBRUARY 1, 1940, OF SECTION 355, REVISED STATUTES, WITHOUT CHANGE IN THE REQUIREMENT FOR THE ATTORNEY GENERAL'S APPROVAL OF TITLES, THAT NEITHER AN EXTENTION IN SCOPE OF THE SO-CALLED EXCEPTION NOR ITS RECOGNITION OR APPLICATION IN OTHER CASES WOULD APPEAR TO BE JUSTIFIED BY LAW. THE CIRCUMSTANCES THAT THE BUREAU OF RECLAMATION HAS OPERATED FOR MANY YEARS ON THE BASIS OF SUCH EXEMPTION RECOGNIZED BY THE ACTING ATTORNEY GENERAL IN 1904, AND APPARENTLY ACQUIESCED IN BY THE COMPTROLLER OF THE TREASURY IN 1906, 12 COMP. DEC. 691, FOR WHAT WOULD NOW APPEAR TO BE INSUFFICIENT REASONS, OR THAT THE TENNESSEE VALLEY AUTHORITY WITH ITS BROAD AUTHORITY AS A SEPARATE CORPORATE ENTITY HAS PURCHASED LAND WITHOUT THE ATTORNEY GENERAL'S APPROVAL OF TITLES, CAN PROVIDE NO LEGAL BASIS FOR THE RECOGNITION OF LIKE AUTHORITY IN THE BONNEVILLE PROJECT, OR OTHER AGENCIES, IN THE ABSENCE OF A CLEAR EXPRESSION OF THE LEGISLATIVE WILL IN THAT RESPECT. IF PRACTICAL CONSIDERATIONS APPEAR TO DICTATE THE ACQUISITION OF POWER/LINE EASEMENTS OR OTHER LAND FOR THE BONNEVILLE PROJECT WITHOUT THE APPROVAL OF TITLES BY THE ATTORNEY GENERAL--- WHICH ALSO IS CONTESTED BY THE DEPARTMENT OF JUSTICE MEMORANDUM--- THE MATTER IS ONE FOR SUBMISSION TO THE CONGRESS FOR EXPRESS EXEMPTION FROM THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, AS HAS BEEN GRANTED IN OTHER CASES. I DO NOT FIND SUFFICIENT BASIS FOR RECOGNIZING ANY PRESENT EXISTENCE OF SUCH AN EXEMPTION.