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A-65985, OCTOBER 30, 1935, 15 COMP. GEN. 359

A-65985 Oct 30, 1935
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AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED REGARDING THE FOLLOWING PROBLEM WHICH HAS ARISEN IN CONNECTION WITH THE REFORESTATION PROGRAM OF THE PUERTO RICO RECONSTRUCTION ADMINISTRATION. IT IS NOW PROPOSED TO PURCHASE SOME OF THIS ACREAGE IN ORDER TO COMMENCE THE REFORESTATION WORK IN PUERTO RICO. THE LAND TO BE PURCHASED IS UNDERSTOOD TO BE HELD IN INNUMERABLE SMALL PARCELS. THE TASK OF CLEARING TITLE FOR ALL THIS LAND WILL OBVIOUSLY BE A LENGTHY ONE WHATEVER METHOD IS ADOPTED. IF IT WERE NECESSARY TO HAVE THE TITLE TO EACH PARCEL CLEARED THROUGH THE DEPARTMENT OF JUSTICE IN WASHINGTON. THAN IF IT WERE POSSIBLE TO HAVE CLEARANCE MADE BY OUR OWN ATTORNEYS IN PUERTO RICO. IT IS BELIEVED THAT IT IS UNNECESSARY.

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A-65985, OCTOBER 30, 1935, 15 COMP. GEN. 359

PURCHASES OF LAND - TITLE CLEARANCE - PUERTO RICO RECONSTRUCTION ADMINISTRATION SINCE THE DUTY OF DEFENDING THE TITLE TO LANDS OF THE UNITED STATES, SHOULD THE VALIDITY THEREOF BE QUESTIONED IN THE COURTS ORDINARILY WOULD DEVOLVE UPON THE DEPARTMENT OF JUSTICE, 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. PRELIMINARY WORK MAY BE DONE ON LAND TO BE ACQUIRED BY THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, INCIDENT TO ITS PROGRAM OF REFORESTATION BEFORE FINAL APPROVAL OF TITLE BY THE ATTORNEY GENERAL, PROVIDED THE PURCHASE OF THE LAND HAS BEEN CONTRACTUALLY FIXED, BASED UPON TITLE INFORMATION DISCLOSING NO HINDRANCE TO CONVEYANCE IN DUE COURSE, AND THE GOVERNMENT HAS BEEN PLACED IN POSSESSION ACCORDINGLY, BUT THERE SHOULD BE OBTAINED IN ADVANCE FORMAL PERMISSION OF THE SELLER TO SO EMPLOY THE LANDS AND WAIVER OF ANY CLAIM FOR DAMAGES SHOULD THE PURCHASE NOT BE CONSUMMATED.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, PUERTO RICO RECONSTRUCTION ADMINISTRATION, OCTOBER 30, 1935:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 1, 1935, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED REGARDING THE FOLLOWING PROBLEM WHICH HAS ARISEN IN CONNECTION WITH THE REFORESTATION PROGRAM OF THE PUERTO RICO RECONSTRUCTION ADMINISTRATION.

THE LETTER OF THE PRESIDENT, DATED AUGUST 15, 1935, REQUESTING THE SECRETARY OF THE TREASURY TO ALLOCATE FUNDS FOR THE REFORESTATION PROGRAM SPECIFICALLY MENTIONS THE FACT THAT THE PROGRAM INCLUDES "THE PURCHASE OF 20,000 ACRES OF TIMBER LANDS * * *.' IT IS NOW PROPOSED TO PURCHASE SOME OF THIS ACREAGE IN ORDER TO COMMENCE THE REFORESTATION WORK IN PUERTO RICO. THE LAND TO BE PURCHASED IS UNDERSTOOD TO BE HELD IN INNUMERABLE SMALL PARCELS. THE TASK OF CLEARING TITLE FOR ALL THIS LAND WILL OBVIOUSLY BE A LENGTHY ONE WHATEVER METHOD IS ADOPTED. IT WOULD DELAY THE PROGRAM MUCH LONGER, HOWEVER, IF IT WERE NECESSARY TO HAVE THE TITLE TO EACH PARCEL CLEARED THROUGH THE DEPARTMENT OF JUSTICE IN WASHINGTON, THAN IF IT WERE POSSIBLE TO HAVE CLEARANCE MADE BY OUR OWN ATTORNEYS IN PUERTO RICO. IT IS BELIEVED THAT IT IS UNNECESSARY, UNDER PRESENT STATUTES, TO SECURE THE ATTORNEY GENERAL'S CLEARANCE OF TITLE TO LAND ACQUIRED BY THIS ADMINISTRATION FOR REFORESTATION PURPOSES.

APPARENTLY THE ONLY STATUTE WHICH MIGHT REQUIRE THE ATTORNEY GENERAL'S CLEARANCE OF TITLE TO LANDS ACQUIRED BY THE PUERTO RICO RECONSTRUCTION ADMINISTRATION IS REVISED STATUTES, SECTION 355, AS AMENDED, 46 STAT. 828 (40 U.S.C., SEC. 255). THE RELEVANT PORTION OF THAT STATUTE IS CONTAINED IN THE FIRST SENTENCE OF THE SECTION AND READS AS FOLLOWS:

"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, CUSTOM HOUSE, 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, NOR UNTIL THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE LAND OR SITE MAY BE, TO SUCH PURCHASE, HAS BEEN GIVEN.'

IT SEEMS CLEAR THAT THIS STATUTE HAS NO APPLICATION TO THIS PARTICULAR PROGRAM OF THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, ALTHOUGH IT MAY APPLY TO OTHER PROGRAMS OF THE ADMINISTRATION IF THE ERECTION OF "PUBLIC BUILDINGS," AS A PART OF SUCH OTHER PROGRAMS, IS CONTEMPLATED. THE REFORESTATION PROGRAM OBVIOUSLY INVOLVES ERECTION OF NO PUBLIC BUILDINGS.

IT WOULD SEEM THAT THIS CONCLUSION ACCORDS WITH YOUR OPINION AS EXPRESSED IN YOUR LETTER NO. A-63140, DATED JULY 31, 1935, ADDRESSED TO THE ADMINISTRATOR OF THE RESETTLEMENT ADMINISTRATION. IN THE LAST PARAGRAPH OF THAT LETTER, IN DISCUSSING THE QUESTION OF NECESSITY OF SECURING THE ATTORNEY GENERAL'S CLEARANCE OF TITLES TO LAND ACQUIRED FOR RESETTLEMENT PURPOSES, YOU SAID:

"WITH REFERENCE TO YOUR SECOND QUESTION, AS THE PROPERTY TO BE ACQUIRED FOR THE PURPOSES INDICATED IN YOUR LETTER WOULD NOT APPEAR TO BE PROPERTY ACQUIRED FOR THE ERECTION OF PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES, IT WILL NOT BE NECESSARY WITH RESPECT TO USES OF THE APPROPRIATION, THAT THE TITLES THERETO BE APPROVED BY THE ATTORNEY ERAL.'

IT MIGHT, PERHAPS, BE POINTED OUT, AS MILITATING AGAINST THE ABOVE CONCLUSION, THAT THERE IS A DIFFERENCE BETWEEN THE USE TO WHICH THE LAND ACQUIRED BY THE RESETTLEMENT ADMINISTRATION IS TO BE DEVOTED AND THE USE OF THE LAND CONTEMPLATED IN THIS ADMINISTRATION'S REFORESTATION PROGRAM. AS DESCRIBED IN THE LETTER FROM THE RESETTLEMENT ADMINISTRATION, THE LAND IT WAS ACQUIRING WAS TO BE HELD ONLY TEMPORARILY BY THE GOVERNMENT, AND THEN SOLD TO PERSONS RESETTLED UPON IT. IN THE CASE OF LAND ACQUIRED FOR REFORESTATION, TITLE IS EXPECTED TO BE RETAINED BY THE UNITED STATES PERMANENTLY OR FOR A CONSIDERABLE LENGTH OF TIME. THERE IS NO QUESTION BUT THAT THIS DIFFERENCE EXISTS. IT MAY BE A DIFFERENCE WHICH SHOULD INFLUENCE CONGRESS IN PROVIDING FOR A POSSIBLE EXTENSION OF THE PROVISIONS OF REVISED STATUTES, SECTION 355. AS THE STATUTE NOW STANDS, HOWEVER, THE DIFFERENCE SEEMS TO BE ENTIRELY IRRELEVANT. THE ONLY LAND, TITLE TO WHICH MUST BE APPROVED BY THE ATTORNEY GENERAL UNDER THE PRESENT STATUTE, IS LAND ON WHICH A PUBLIC BUILDING IS TO BE ERECTED. THERE IS NO MENTION IN THE STATUTE OF THE FACTOR OF TIME DURING WHICH THE GOVERNMENT IS EXPECTED TO RETAIN TITLE.

CONSEQUENTLY, IT SEEMS CLEAR THAT TITLE TO LAND ACQUIRED BY THIS ADMINISTRATION FOR REFORESTATION PURPOSES, ON WHICH NO PUBLIC BUILDINGS ARE TO BE ERECTED, NEED NOT BE APPROVED BY THE ATTORNEY GENERAL. I SHOULD APPRECIATE RECEIVING YOUR OPINION AS TO THE CORRECTNESS OF THIS CONCLUSION.

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. AT THE TIME SAID PROVISIONS WERE ENACTED THE UNITED STATES DID NOT ACQUIRE LANDS FOR THE MANY PURPOSES FOR WHICH IT TODAY ACQUIRES LANDS, AND, NO DOUBT, THE PROVISIONS AS THEN ENACTED WERE INTENDED TO INCLUDE EVERY PURPOSE FOR WHICH LANDS WOULD BE ACQUIRED BY THE UNITED STATES. THE OTHER HAND IT IS REALIZED THAT AT THE TIME THE REVISED STATUTES WERE ENACTED THE ATTORNEY GENERAL WAS THE ONLY HEAD OF AN ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AUTHORIZED TO EMPLOY ATTORNEYS OR COUNSEL WHEREAS AT THE PRESENT TIME MANY DEPARTMENTS AND ESTABLISHMENTS AUTHORIZED BY LAW TO ACQUIRE LANDS HAVE IN THEIR EMPLOY ATTORNEYS AND COUNSEL CAPABLE OF EXAMINING LAND TITLES AND ASCERTAINING WHETHER THEY ARE VALID AND CLEAR. HENCE, IT MIGHT BE ARGUED THAT THERE DOES NOT NOW EXIST THE NEED THAT THE ATTORNEY GENERAL RENDER AN OPINION WITH RESPECT TO THE VALIDITY OF TITLE IN THE CASE OF EVERY PURCHASE OF LAND BY THE UNITED STATES.

HOWEVER, SINCE THE DUTY OF DEFENDING THE TITLE TO LANDS OF THE UNITED STATES, SHOULD THE VALIDITY THEREOF BE QUESTIONED IN THE COURTS ORDINARILY WOULD DEVOLVE UPON THE DEPARTMENT OF JUSTICE, 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.

HOWEVER, IT IS REALIZED THAT THERE MUST NECESSARILY BE SOME DELAY IN COMMUNICATIONS, ETC., BETWEEN THE DEPARTMENTS AND ESTABLISHMENTS HERE IN WASHINGTON AND PUERTO RICO AND THAT IT IS DESIRABLE IN THE INTEREST OF THE EMERGENCY RECONSTRUCTION PROGRAM IN PUERTO RICO THAT THERE BE NO UNNECESSARY DELAY IN PROCEEDING THEREWITH. ACCORDINGLY, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PUERTO RICO RECONSTRUCTION ADMINISTRATION DOING PRELIMINARY WORK INCIDENT TO ITS PROGRAM OF REFORESTATION BEFORE FINAL APPROVAL OF TITLE BY THE ATTORNEY GENERAL PROVIDED THE PURCHASE OF THE LAND HAS BEEN CONTRACTUALLY FIXED, BASED UPON TITLE INFORMATION DISCLOSING NO HINDRANCE TO CONVEYANCE IN DUE COURSE, AND THE GOVERNMENT HAS BEEN PLACED IN POSSESSION ACCORDINGLY, WITH THE UNDERSTANDING THAT THE TITLE PAPERS WILL IN DUE COURSE BE SUBMITTED TO THE ATTORNEY GENERAL OF THE UNITED STATES FOR APPROVAL BY HIM, OR FOR SUCH ACTION AS MAY BE NECESSARY TO PERFECT THE TITLE. BUT IN SUCH CASES THERE SHOULD BE SECURED IN ADVANCE OF ANY ACTUAL WORK ON THE LAND FORMAL PERMISSION OF THE SELLER TO SO EMPLOY THE LANDS AND WAIVER OF ANY CLAIM FOR DAMAGES SHOULD, FOR ANY REASON, THE PURCHASE NOT BE CONSUMMATED.

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