B-8585, FEBRUARY 27, 1940, 19 COMP. GEN. 758

B-8585, FEBRUARY 27, 1940, 19 COMP. GEN. 758

LEASES - LONG TERM - APPROPRIATION AVAILABILITY AND ADVANCE PAYMENTS A LEASE EXECUTED BY OR ON BEHALF OF THE UNITED STATES FOR A TERM OF YEARS, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, IS BINDING UPON THE UNITED STATES ONLY TO THE END OF THE FISCAL YEAR FOR WHICH THE APPROPRIATION INVOLVED WAS AVAILABLE AT THE BEGINNING OF THE TERM WITH AN OPTION IN THE GOVERNMENT OF RENEWAL FROM YEAR TO YEAR UNTIL THE END OF THE TERM. AN APPROPRIATION FOR THE "PURCHASE OF LANDS, INTERESTS THEREIN, AND TEMPORARY USE THEREOF AS AUTHORIZED BY LAW," WOULD BE INEFFECTIVE, INSOFAR AS THE ACQUISITION OF LANDS OR INTERESTS THEREIN IS CONCERNED, UNLESS THERE BE ELSEWHERE SPECIFIC STATUTORY AUTHORITY FOR SUCH ACQUISITIONS. THE PROVISION FOR "PURCHASE OF LANDS AND RIGHTS-OF-WAY" IN THE CURRENT ANNUAL WAR DEPARTMENT APPROPRIATION UNDER THE TITLE " SEACOAST DEFENSES," DOES NOT MAKE THE APPROPRIATION AVAILABLE FOR PAYMENTS IN ADVANCE UNDER A LEASE, OR AUTHORIZE THE MAKING OF LEASES FOR A LONGER TERM THAN ONE YEAR, AND FOR ANY ADVANCE PAYMENT IT WOULD BE NECESSARY TO HAVE IN THE APPROPRIATION OR ELSEWHERE A SPECIFIC EXEMPTION FROM THE ADVANCE PAYMENT PROHIBITION OF SECTION 3648, REVISED STATUTES. APPROPRIATE LANGUAGE SUGGESTED FOR INCORPORATION IN SAID APPROPRIATIONS TO AUTHORIZE THE PURCHASE OF LEASEHOLD ESTATES IN LANDS WHERE A FEE SIMPLE TITLE CANNOT BE ACQUIRED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, FEBRUARY 27, 1940:

I HAVE YOUR LETTER OF FEBRUARY 16, 1940, AS FOLLOWS:

IN THE EXECUTION OF THE PROJECTS WHICH ARE ANNUALLY APPROPRIATED FOR UNDER THE TITLE " SEACOAST DEFENSES" IN THE MILITARY APPROPRIATION ACTS, IT IS FREQUENTLY NECESSARY TO PURCHASE LAND TO ACCOMMODATE CERTAIN DEFENSIVE WORKS OR THEIR ACCESSORIES. THE ACQUISITION OF THIS LAND IS AUTHORIZED BY THE WORDS QUOTED BELOW FROM THE REGULARLY RECURRING LANGUAGE OF THE ANNUAL APPROPRIATIONS:

"FOR ALL EXPENSES INCIDENT TO THE * * * CONSTRUCTION * * * OF FORTIFICATIONS AND OTHER WORKS OF DEFENSE, AND THEIR ACCESSORIES, INCLUDING * * * PURCHASE OF LANDS AND RIGHTS-OF-WAY AS AUTHORIZED BY LAW,

UNDER THE TREATY NOW IN FORCE BETWEEN THE UNITED STATES AND THE REPUBLIC OF PANAMA, THE ACQUISITION OF THE FEE-SIMPLE TITLE TO ADDITIONAL LAND UNDER THE JURISDICTION OF THAT REPUBLIC IS NOT IN GENERAL CONSIDERED DESIRABLE. LEASES FOR 999 YEARS OR SIMILAR LONG PERIODS ARE, HOWEVER, FEASIBLE UNDER THE TREATY AND MEET THE ESSENTIAL REQUIREMENTS OF THE SEACOAST DEFENSES.

IN ORDER THAT FUNDS TO BE APPROPRIATED IN THE FUTURE FOR SEACOAST DEFENSES MAY BE AVAILABLE FOR THE ACQUISITION OF SUCH LEASEHOLD INTERESTS IN THE REPUBLIC OF PANAMA AS THE NECESSITY THEREFOR MAY ARISE, IT BECOMES NECESSARY FOR THIS DEPARTMENT TO RECOMMEND TO CONGRESS SUCH CHANGES IN WORDING, IF ANY, AS SHOULD BE MADE FROM THAT CARRIED IN PREVIOUS ANNUAL APPROPRIATIONS FOR THE ACQUISITION OF LAND FOR SEACOAST DEFENSES. DECISION IS ACCORDINGLY REQUESTED WHETHER THE WORDING PREVIOUSLY CARRIED IN THIS ANNUAL APPROPRIATION AS INDICATED IN THE ABOVE-QUOTED LANGUAGE WOULD BE SUFFICIENTLY SPECIFIC TO PERMIT PAYMENT THEREFROM FOR THE ACQUISITION OF SUCH LONG-TERM LEASES.

SHOULD YOUR DECISION ON THIS MATTER BE IN THE NEGATIVE, INFORMATION WILL BE APPRECIATED WHETHER SUCH LONG-TERM LEASES MAY NOT BE ACQUIRED UNDER THE FOLLOWING WORDING:

"FOR ALL EXPENSES INCIDENT TO THE * * * CONSTRUCTION * * * OF FORTIFICATIONS AND OTHER WORKS OF DEFENSE, AND THEIR ACCESSORIES, INCLUDING * * * PURCHASE OF LANDS, INTERESTS THEREIN, AND TEMPORARY USE THEREOF AS AUTHORIZED BY LAW, * * *"

IN THIS CONNECTION, ATTENTION IS INVITED TO THE PROVISION CONTAINED IN THE THIRD DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1939, APPROVED AUGUST 9, 1939, UNDER THE TITLE " ACQUISITION OF LAND, REPUBLIC OF PANAMA.' THE LANGUAGE OF THIS PROVISION WAS ENACTED IN ACCORDANCE WITH THE RECOMMENDATION OF THE WAR DEPARTMENT, BUT IT IS DESIRABLE TO RESTRICT ANY ADDITIONAL LANGUAGE TO BE PROPOSED TO CONGRESS IN FUTURE ANNUAL APPROPRIATION ACTS TO THE MINIMUM. FOR THIS REASON, YOUR DECISION IS ALSO SPECIFICALLY REQUESTED AS TO THE NECESSITY FOR THE INCLUSION OF ANY SUSPENSION OF THE PROVISIONS OF R.S. 3648 IN CONNECTION WITH THE ABOVE LANGUAGE ON WHICH YOUR DECISION IS REQUESTED.

AS THE HEARINGS BEFORE THE HOUSE COMMITTEE ON APPROPRIATIONS UPON THE ESTIMATES FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1941 WILL BEGIN DURING THE CURRENT MONTH, AN EARLY DECISION UPON THIS MATTER WILL BE APPRECIATED.

SECTION 3648, REVISED STATUTES, PROVIDES:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE WHATEVER. AND IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR DELIVERY OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES, PAYMENT SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE ARTICLES DELIVERED PREVIOUSLY TO SUCH PAYMENT. * * *

SECTION 3679, REVISED STATUTES, AS AMENDED AND RESTATED IN 31 U.S.C. 665, PROVIDES:

NO DEPARTMENT OF THE GOVERNMENT SHALL EXPEND, IN ANY ONE FISCAL YEAR, ANY SUM IN EXCESS OF APPROPRIATIONS MADE BY CONGRESS FOR THAT FISCAL YEAR, OR INVOLVE THE GOVERNMENT IN ANY CONTRACT FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF SUCH APPROPRIATIONS.

IT HAS BEEN REPEATEDLY HELD BOTH BY THIS OFFICE AND BY THE COURTS THAT A LEASE EXECUTED BY OR ON BEHALF OF THE UNITED STATES FOR A TERM OF YEARS, IN ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, IS BINDING UPON THE UNITED STATES ONLY TO THE END OF THE FISCAL YEAR FOR WHICH THE APPROPRIATION INVOLVED WAS AVAILABLE AT THE BEGINNING OF THE TERM WITH AN OPTION IN THE GOVERNMENT OF RENEWAL FROM YEAR TO YEAR UNTIL THE END OF THE TERM. 1 COMP. GEN. 10; 5 ID. 355; CHASE V. UNITED STATES, 155 U.S. 489; BRADLEY V. UNITED STATES, 98 U.S. 104; UNITED STATES V. DOULLUT, 213 FED. REP. 729; AND REED SMOOT V. UNITED STATES, 38 CT. CLS. 418.

IT IS NOT STATED IN YOUR SUBMISSION WHETHER THE PAYMENTS UNDER THE CONTEMPLATED LONG-TERM LEASES ARE TO BE MADE YEARLY IN ARREARS OR IN ADVANCE, OR IN A LUMP SUM IN ADVANCE FOR THE ENTIRE TERM. FOR ANY ADVANCE PAYMENT IT WOULD BE NECESSARY TO HAVE IN THE APPROPRIATION OR ELSEWHERE A SPECIFIC EXEMPTION FROM THE PROVISIONS OF SAID SECTION 3648, REVISED STATUTES.

THE PROVISION IN THE CURRENT ANNUAL APPROPRIATION FOR "PURCHASE OF LANDS AND RIGHTS-OF-WAY" WOULD NOT MAKE SAID APPROPRIATION AVAILABLE FOR PAYMENTS IN ADVANCE UNDER A LEASE. NEITHER WOULD IT AUTHORIZE THE MAKING OF LEASES FOR A LONGER TERM THAN 1 YEAR.

AN APPROPRIATION FOR THE "PURCHASE OF LANDS, INTERESTS THEREIN, AND TEMPORARY USE THEREOF AS AUTHORIZED BY LAW" WOULD BE INEFFECTIVE, INSOFAR AS THE ACQUISITION OF LANDS OR INTERESTS THEREIN IS CONCERNED, UNLESS THERE BE ELSEWHERE SPECIFIC STATUTORY AUTHORITY FOR SUCH ACQUISITIONS.

THE PROVISION IN THE THIRD DEFICIENCY ACT FOR THE FISCAL YEAR 1939, APPROVED AUGUST 9, 1939, REFERRED TO IN YOUR SUBMISSION, IS AS FOLLOWS:

ACQUISITION OF LAND, REPUBLIC OF PANAMA: SO MUCH OF THE APPROPRIATION FOR THE ACQUISITION OF LAND IN THE REPUBLIC OF PANAMA CONTAINED IN THE SUPPLEMENTAL MILITARY APPROPRIATION ACT, 1940, AND SO MUCH OF THE APPROPRIATION FOR SEACOAST DEFENSES, PANAMA CANAL, CONTAINED IN THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1939, AS MAY BE REQUIRED THEREFOR, ARE HEREBY MADE AVAILABLE, IN ADDITION TO THE ACQUISITION OF FEE SIMPLE TITLE TO LANDS, FOR LEASEHOLD OR OTHER REFERENCE TO SECTION 3648, REVISED STATUTES (31 U.S.C., 529): PROVIDED, THAT THE SECRETARY OF WAR IS AUTHORIZED TO ACCEPT DONATIONS OF SUCH LAND, TEMPORARY USE THEREOF, OR OTHER INTEREST THEREIN, OR RIGHT PERTAINING THERETO.

A SITUATION SIMILAR TO THAT REFERRED TO IN YOUR LETTER AROSE IN CONNECTION WITH THE USE OF THE FOREIGN SERVICE BUILDING FUND UNDER THE DEPARTMENT OF STATE AND WAS TAKEN CARE OF BY A PROVISION IN SECTION 6 OF THE ACT OF MAY 7, 1926, 44 STAT. 403, AS FOLLOWS:

THE AUTHORITY GRANTED TO ACQUIRE SITES AND BUILDINGS BY PURCHASE SHALL, IN CASES WHERE IT IS IMPOSSIBLE TO ACQUIRE TITLE, BE CONSTRUED AS AUTHORITY TO ACQUIRE THE PROPERTY BY LEASE FOR A TERM SUFFICIENTLY LONG,IN THE JUDGMENT OF THE COMMISSION, TO BE PRACTICALLY EQUIVALENT TO THE ACQUISITION OF TITLE.

A SIMILAR GENERAL PROVISION FOR LAND ACQUISITIONS BY THE WAR DEPARTMENT IN PANAMA WOULD APPEAR TO ACCOMPLISH THE DESIRED PURPOSE, BUT SINCE NO SUCH GENERAL PROVISION NOW EXISTS FOR SUCH ACQUISITIONS AND IT BEING UNDERSTOOD THAT WHAT IS DESIRED IS A PROVISION IN THE APPROPRIATION FOR SEACOAST DEFENSES WHICH WILL AUTHORIZE THE PURCHASE OF LEASEHOLD ESTATES IN THE LANDS WHERE A FEE SIMPLE TITLE CANNOT BE ACQUIRED, THERE IS SUGGESTED FOR CONSIDERATION INSERTING IN THE APPROPRIATION, IN LIEU OF THE LANGUAGE SUGGESTED IN YOUR LETTER, LANGUAGE AS FOLLOWS:

* * * INCLUDING * * * ACQUISITION OF LANDS, LEASEHOLDS AND OTHER INTERESTS THEREIN, AND TEMPORARY USE THEREOF: PROVIDED, THAT IN THE ACQUISITION OF LEASEHOLD INTERESTS PAYMENT MAY BE MADE IN ADVANCE FOR THE ENTIRE TERM NOTWITHSTANDING THE PROVISIONS OF SECTION 3648, REVISED STATUTES, * * * ..END :