B-8022, JANUARY 26, 1940, 19 COMP. GEN. 679

B-8022: Jan 26, 1940

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1940: I HAVE YOUR LETTER OF JANUARY 11. MANY ARMY AIRCRAFT HAVE EXPERIENCED CONSIDERABLE DIFFICULTY IN THE VICINITY OF THE GULF OF DULCE. RECENTLY THREE AIRPLANES WERE LOST AND ONE FATALITY OCCURRED IN THIS AREA BECAUSE OF DANGEROUS WEATHER CONDITIONS. THIS COMPANY AND ENTA OF COSTA RICA HAVE SHOWN A WILLINGNESS TO COOPERATE IN THE IMPROVEMENT OF THE FIELD. WHICH IS ON AN AUTHORIZED. THE FURTHER DEVELOPMENT OF THIS EMERGENCY FIELD WILL BE OF GREAT BENEFIT TO THE AIR FORCE OF THE CANAL ZONE. WHILE IT IS A WELL-ESTABLISHED RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR PERMANENT IMPROVEMENTS TO PRIVATE PROPERTY OCCUPIED BY AN AGENCY OF THE UNITED STATES. A DISTINCTION WAS MADE BETWEEN SUCH PERMANENT IMPROVEMENTS AND TEMPORARY REPAIRS IN DECISION OF THE COMPTROLLER OF THE TREASURY DATED APRIL 8.

B-8022, JANUARY 26, 1940, 19 COMP. GEN. 679

APPROPRIATIONS - AVAILABILITY - IMPROVEMENT OF PRIVATE LANDING FIELD IN FOREIGN COUNTRY FOR EMERGENCY USE BY ARMY AIRPLANES FUNDS APPROPRIATED UNDER THE HEADING " AIR CORPS, ARMY" IN THE CURRENT MILITARY ESTABLISHMENT APPROPRIATION ACTS OF APRIL 26, 1939, 53 STAT. 605, AND JULY 1, 1939, 53 STAT. 995, MAY NOT BE USED FOR IMPROVEMENT OF A PRIVATE LANDING FIELD IN A FOREIGN COUNTRY FOR UTILIZATION AS AN EMERGENCY LANDING FIELD FOR UNITED STATES ARMY AIRPLANES, THE PROVISION FOR "OPERATION OF AIRSHIPS" NOT BEING AUTHORITY FOR THE ESTABLISHMENT OF LANDING BASES; THE PROVISION FOR "ESTABLISHMENT OF LANDING AND TAKE-OFF RUNWAYS" CLEARLY NOT REFERRING TO RUNWAYS ON SUCH PRIVATELY OWNED PROPERTY; AND THE USE OF SUCH FUNDS IN CONNECTION WITH THE ESTABLISHMENT IN A FOREIGN COUNTRY OF A MILITARY LANDING BASE, EVEN OF AN EMERGENCY NATURE, REQUIRING A CLEAR EXPRESSION OF THE INTENTION OF THE CONGRESS TO PROVIDE THEREFOR. 5 COMP. DEC. 673, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JANUARY 26, 1940:

I HAVE YOUR LETTER OF JANUARY 11, 1940, AS FOLLOWS:

THE COMMANDING GENERAL, PANAMA CANAL DEPARTMENT, HAS SUBMITTED TO THIS DEPARTMENT A REQUEST FOR AUTHORITY TO USE APPROPRIATED FUNDS TO ASSIST IN THE IMPROVEMENT OF AN EMERGENCY LANDING FIELD AT PUERTO JIMENEZ BORDERING THE GULF OF DULCE ON THE OSA PENINSULA, COSTA RICA, UNDER THE CONDITIONS SET FORTH BELOW.

PRACTICALLY ALL AIR TRAFFIC BETWEEN PANAMA AND POINTS IN CENTRAL AMERICA PASSES IN THE VICINITY OF THE GULF OF DULCE. BECAUSE OF EXCEPTIONALLY BAD WEATHER PECULIAR TO THIS LOCALITY DURING THE RAINY SEASON EXTENDING OVER APPROXIMATELY EIGHT MONTHS OF EACH YEAR, MANY ARMY AIRCRAFT HAVE EXPERIENCED CONSIDERABLE DIFFICULTY IN THE VICINITY OF THE GULF OF DULCE. RECENTLY THREE AIRPLANES WERE LOST AND ONE FATALITY OCCURRED IN THIS AREA BECAUSE OF DANGEROUS WEATHER CONDITIONS. THE UNITED FRUIT COMPANY HAS DEVELOPED A VERY SMALL LANDING FIELD AT PUERTO JIMENEZ WHOLLY UNSUITED FOR USE BY THE HEAVIER AND FASTER AIRCRAFT USED BY THE ARMY. THIS COMPANY AND ENTA OF COSTA RICA HAVE SHOWN A WILLINGNESS TO COOPERATE IN THE IMPROVEMENT OF THE FIELD, WHICH IS ON AN AUTHORIZED, REGULAR, OVERLAND AIR ROUTE FOR MILITARY AIRPLANES FROM THE UNITED STATES TO THE PANAMA CANAL ZONE. THE COSTA RICAN GOVERNMENT HAS SENT AN ENGINEERING PARTY TO THE FIELD TO LENGTHEN THE PRESENT RUNWAY. THE FURTHER DEVELOPMENT OF THIS EMERGENCY FIELD WILL BE OF GREAT BENEFIT TO THE AIR FORCE OF THE CANAL ZONE. THE COMMANDING GENERAL ACCORDINGLY REQUESTS AUTHORITY TO EXPEND AIR CORPS FUNDS IN THE AMOUNT OF $2,000.00 FOR REMOVAL OF TREE OBSTRUCTIONS AT ONE END OF THE RUNWAY AND SIMILAR IMPROVEMENTS TO MAKE THE FIELD USABLE BY ARMY AIRCRAFT IN EMERGENCY.

WHILE IT IS A WELL-ESTABLISHED RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR PERMANENT IMPROVEMENTS TO PRIVATE PROPERTY OCCUPIED BY AN AGENCY OF THE UNITED STATES, A DISTINCTION WAS MADE BETWEEN SUCH PERMANENT IMPROVEMENTS AND TEMPORARY REPAIRS IN DECISION OF THE COMPTROLLER OF THE TREASURY DATED APRIL 8, 1899, 5 COMP. DEC. 673, WHICH HELD IN PART AS FOLLOWS:

"IT MAY BE CONTENDED THAT THERE IS PRECEDENT, AND NO DOUBT AUTHORITY, TO MAKE TEMPORARY REPAIRS TO A PUBLIC ROAD IN ORDER TO FACILITATE A MOVEMENT OF THE ARMY OR ITS SUPPLIES, THE SAME AS ANY PRIVATE TRAVELER MIGHT DO TO MEET THE EXIGENCY OF A PARTICULAR CASE. THIS IS JUSTIFIED BY THE EXIGENCY WHICH IS IMPERATIVE, BUT I DO NOT THINK IT CAN BE USED AS A JUSTIFICATION FOR A LARGE OUTLAY IN A PERMANENT IMPROVEMENT OF A ROAD, WHICH IMPROVEMENT COULD ONLY BE MADE WITH THE CONSENT OF THE STATE AUTHORITIES AND MIGHT BE DESTROYED BY THEM WHENEVER IT SUITED THEIR CONVENIENCE.'

THE OBJECT OF THE PROPOSED EXPENDITURE IN THE INSTANT CASE IS TO IMPROVE THE EXISTING LANDING FIELD SO THAT IT CAN BE USED BY MILITARY AIRPLANES OF THE UNITED STATES AS AN EMERGENCY LANDING FIELD IN A PARTICULARLY DANGEROUS AREA AS PART OF THE AUTHORIZED OVERLAND ROUTE FROM THE UNITED STATES TO THE PANAMA CANAL ZONE. CONSIDERING, THEREFORE, THAT THE PURPOSE AND OBJECT SOUGHT TO BE ACCOMPLISHED AND THE NATURE OF THE IMPROVEMENTS INTENDED TO BE MADE ARE AS THUS OUTLINED, IT IS BELIEVED PROPER TO INVOKE IN THIS CASE THE SAME PRINCIPLE WHICH AUTHORIZES THE TEMPORARY REPAIR OF ROADS TO THE EXTENT NECESSARY FOR THE MOVEMENT OF TROOPS AND SUPPLIES. WHEN TROOPS AND SUPPLIES ARE MOVED ON THE GROUND THEIR ROUTE IS DEFINITELY KNOWN AND FIXED, AND FOR ANY PARTICULAR MOVEMENT OF TROOPS NECESSARY TEMPORARY REPAIRS TO ROADS CAN BE DETERMINED AND MADE IN ADVANCE. IN THE CASE OF OVERLAND TRAVEL BY AIRCRAFT, THE ROUTE IS ONLY GENERALLY FIXED AND THERE IS NO WAY OF DETERMINING IN ADVANCE WHEN TEMPORARY USE OF AN EMERGENCY FIELD WILL BE NECESSARY, BUT, WHEN NECESSARY, IT IS ESSENTIAL. SINCE THE LANDING FIELD IN QUESTION IS NOW ADEQUATE FOR THE USE OF THE UNITED FRUIT COMPANY WHICH MAINTAINS THE FIELD FOR ITS OWN SMALL AIRPLANES AND SINCE THE PROPOSED EXPENDITURES ARE INTENDED TO MAKE THE FIELD AVAILABLE FOR USE BY THE HEAVIER AND FASTER ARMY AIRCRAFT, IT CANNOT BE SAID THAT THE EXPENDITURE IS FOR THE BENEFIT OF THE UNITED FRUIT COMPANY. ON THE CONTRARY IT CLEARLY APPEARS THAT THE EXPENDITURES ARE DESIRED FOR THE SOLE PURPOSE OF ENABLING ARMY AIRPLANES TO USE THE FACILITIES OF THE UNITED FRUIT COMPANY TO SAFEGUARD THE LIVES OF MILITARY PERSONNEL AND TO PREVENT LOSS OF, OR DAMAGE TO, EXPENSIVE ARMY AIRPLANES FLYING A ROUTE WHICH IS HAZARDOUS.

IT IS THE VIEW OF THIS DEPARTMENT THAT THERE IS LEGAL AUTHORITY FOR THE EXPENDITURE.

YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER FUNDS APPROPRIATED FOR THE AIR CORPS, ARMY, MAY BE USED FOR THE PAYMENT OF THE PROPOSED IMPROVEMENTS AS A TEMPORARY EMERGENCY MEASURE, UNDER THE CONDITIONS SET FORTH ABOVE.

THE FUNDS PROVIDED BY CONGRESS UNDER THE APPROPRIATION " AIR CORPS, ARMY," MAY BE USED ONLY FOR THE OBJECTS FOR WHICH THEY ARE APPROPRIATED, AND FOR NO OTHERS. SECTION 3678, REVISED STATUTES. THEREFORE, IF ANY PART OF AIR CORPS, ARMY, FUNDS MAY BE USED TO PAY FOR THE IMPROVEMENT OF AN EMERGENCY LANDING FIELD AT PUERTO JIMENEZ, COSTA RICA, AUTHORITY THEREFOR MUST BE FOUND IN THE APPROPRIATION ACTS, WHEN GIVEN A REASONABLE APPLICATION CONSISTENT WITH THE WORDS USED AND WITH THE LEGISLATIVE INTENTION.

THE PURPOSES FOR WHICH AIR CORPS, ARMY, FUNDS MAY BE USED ARE SET FORTH IN SOME DETAIL IN THE CURRENT MILITARY ESTABLISHMENT APPROPRIATION ACTS. SEE THE ACTS OF APRIL 26, 1939, PUBLIC, NO. 44, 53 STAT. 605, AND JULY 1, 1939, PUBLIC, NO. 164, 53 STAT. 995. HOWEVER, THERE HAS NOT BEEN FOUND AMONG THE VARIOUS AUTHORIZATIONS UNDER THE APPROPRIATION INVOLVED, AS CONTAINED IN THESE ACTS, ANY PROVISION WHICH EITHER EXPRESSLY OR BY REASONABLE IMPLICATION AUTHORIZES THE USE OF SUCH FUNDS FOR THE IMPROVEMENT OF A PRIVATE LANDING FIELD IN THE REPUBLIC OF COSTA RICA FOR UTILIZATION AS AN EMERGENCY LANDING FIELD FOR UNITED STATES ARMY AIRPLANES. IT IS NOTED, IN THIS CONNECTION, THAT WHILE THE BELIEF IS EXPRESSED IN YOUR LETTER THAT THERE IS AUTHORITY FOR USING AIR CORPS, ARMY, FUNDS FOR THE PROPOSED IMPROVEMENTS AT PUERTO JIMENEZ, NO STATEMENT IS MADE OR INDICATION GIVEN AS TO THE PRECISE TERMINOLOGY FOUND IN THE APPROPRIATION ACTS WHICH IS BELIEVED TO INCLUDE OR AUTHORIZE SUCH USE. THAT CONNECTION THERE HAS BEEN CONSIDERED IN PARTICULAR THE PROVISIONS IN THE ACT OF APRIL 26, 1939, UNDER THE HEADING " AIR CORPS, ARMY," THAT FUNDS PROVIDED THEREIN ARE AVAILABLE FOR "OPERATION OF AIRSHIPS * * * AND THE ESTABLISHMENT OF LANDING AND TAKE-OFF RUNWAYS" BUT IT IS NOT BELIEVED SUCH LANGUAGE COVERS AN EXPENDITURE SUCH AS HERE INVOLVED.

THE ESTABLISHMENT OF LANDING BASES, EVEN OF AN EMERGENCY CHARACTER, OR THE IMPROVEMENT OF PRIVATELY OWNED PROPERTY SO THAT IT MAY BE USED FOR THAT PURPOSE, IS NOT CONSIDERED TO BE WITHIN THE COMMONLY UNDERSTOOD OR ACCEPTED MEANING OF THE TERM "OPERATION OF AIRSHIPS.' SIMILARLY, IT SEEMS CLEAR THAT THE LANDING AND TAKE-OFF RUNWAYS REFERRED TO ARE NOT RUNWAYS ON PRIVATELY OWNED PROPERTY SUCH AS ARE HERE UNDER CONSIDERATION. FURTHERMORE, IT SHOULD NOT BE OVERLOOKED THAT THE PROPOSED LANDING FIELD IS LOCATED IN A FOREIGN COUNTRY. TO JUSTIFY THE CONCLUSION THAT AIR CORPS, ARMY, FUNDS ARE AVAILABLE FOR USE IN CONNECTION WITH THE ESTABLISHMENT IN A FOREIGN COUNTRY OF A MILITARY LANDING BASE, EVEN OF AN EMERGENCY NATURE, IT WOULD APPEAR THAT THE INTENTION OF THE CONGRESS TO PROVIDE THEREFOR SHOULD BE CLEARLY EXPRESSED.

THIS CASE IS NOT CONSIDERED TO BE ANALOGOUS TO THAT CONSIDERED BY THE COMPTROLLER OF THE TREASURY IN HIS DECISION OF APRIL 8, 1899, FROM WHICH QUOTATION IS MADE IN YOUR LETTER. IN THAT CASE THERE WAS INVOLVED AN APPROPRIATION FOR "TRANSPORTATION OF THE ARMY AND ITS SUPPLIES," AND IT WAS INDICATED IN THE DECISION, ALTHOUGH NOT DECIDED, THAT THE MAKING OF TEMPORARY ROAD REPAIRS TO FACILITATE ARMY OR ARMY SUPPLY MOVEMENTS MIGHT BE REGARDED AS A NECESSARY INCIDENT OF THE MAIN PURPOSE FOR WHICH THE MONEY WAS APPROPRIATED. IN THE PRESENT CASE THERE IS INVOLVED AN APPROPRIATION TO PROVIDE FUNDS FOR A NUMBER OF ENUMERATED AIR CORPS ACTIVITIES, BUT, AS ABOVE NOTED, THE IMPROVEMENT OF A PRIVATELY OWNED AIRPORT IN PUERTO JIMENEZ FOR USE AS AN EMERGENCY LANDING FIELD DOES NOT APPEAR TO BE A NECESSARY INCIDENT OF ANY OF THEM. IN OTHER WORDS, EVEN IF IT BE CONCEDED THAT AN EMERGENCY LANDING BASE AT PUERTO JIMENEZ IS URGENTLY NEEDED; THAT IMPROVEMENT OF THE UNITED FRUIT CO.'S FIELD AT THAT POINT WOULD BE IN THE INTEREST OF THE UNITED STATES; AND THAT THE PROPOSED CHANGES IN SAID FIELD ARE NOT IN THE NATURE OF PERMANENT IMPROVEMENTS, THE FACT WOULD STILL REMAIN THAT THERE IS INVOLVED A PROPOSED EXPENDITURE OF PUBLIC FUNDS ON PRIVATE PROPERTY AND FOR A PURPOSE FOR WHICH NO PROVISION IS MADE IN THE APPROPRIATION ACTS INVOLVED.

FOR THE FOREGOING REASONS THE QUESTION YOU SUBMIT MUST BE, AND IS, ANSWERED IN THE NEGATIVE.