A-98408, OCTOBER 24, 1938, 18 COMP. GEN. 372

A-98408, OCTOBER 24, 1938, 18 COMP. GEN. 372

LAND ACQUISITION - BANKHEAD-JONES FARM TENANT ACT OF 1937 - TITLE VALIDITY REQUIREMENTS NOTWITHSTANDING ABSENCE OF PRESENT STRUCTURE ERECTION INTENTIONS PURCHASE OF LAND UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT OF JULY 22, 1937, 50 STAT. 525, WHICH ALSO AUTHORIZES THE ERECTION OF SUCH STRUCTURES THEREON AS MAY AT ANY TIME THEREAFTER BE CONSIDERED NECESSARY TO ADAPT IT TO ITS MOST BENEFICIAL USE, IS NOT AUTHORIZED IN THE ABSENCE OF A SHOWING THAT TITLE TO THE LAND PROPOSED TO BE ACQUIRED IS SATISFACTORY TO THE ATTORNEY GENERAL PURSUANT TO SECTION 355, REVISED STATUTES, NOTWITHSTANDING THERE IS NO PRESENT ADMINISTRATIVE INTENTION TO ERECT STRUCTURES THEREON.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, OCTOBER 24, 1938:

IN MY LETTER TO YOU OF AUGUST 11, 1938, A-51626, IT WAS STATED THAT THE LANGUAGE IN MY PRIOR LETTER TO YOU OF JULY 12, 1938, APPROVING A PROPOSED LAND PURCHASE VOUCHER FORM SUBJECT TO CERTAIN COMMENTS AND CHANGES INDICATED THEREIN, WAS NOT TO BE UNDERSTOOD AS INDICATING A VIEW OF THIS OFFICE THAT ANY LANDS MAY BE ACQUIRED UNDER TITLE III OF THE BANKHEAD- JONES FARM TENANT ACT, APPROVED JULY 22, 1937, 50 STAT. 525, WITHOUT REGARD TO SECTION 355, REVISED STATUTES, OR AS MODIFYING ANY FORMER DECISION OF THIS OFFICE RELATIVE TO THE APPLICABILITY OF SAID SECTION 355, CITING IN THAT CONNECTION 9 COMP. GEN. 75; 15 ID. 359; 16 ID. 856; AND OPINION OF THE ATTORNEY GENERAL DATED JULY 6, 1937, ADDRESSED TO YOU.

THERE HAS NOW BEEN RECEIVED FOR PREAUDIT A VOUCHER STATED IN FAVOR OF ELDON T. ALVORD, C/O R. L. SPURLOCK, PROJECT MANAGER, BUREAU OF AGRICULTURAL ECONOMICS, DOUGLAS, WYOMING, FOR $870, AS THE PURCHASE PRICE OF 640 ACRES OF LAND IN WESTON COUNTY, WYOMING, UNDER SAID TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT. IT DOES NOT APPEAR THAT THERE HAS BEEN OBTAINED THE ATTORNEY GENERAL'S APPROVAL OF THE TITLE TO THE LAND PURSUANT TO SAID SECTION 355, REVISED STATUTES, WHICH PROVIDES 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, CUSTOM-HOUSE, LIGHT-HOUSE, 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, * * *

BUT, APPARENTLY IN LIEU OF SUCH APPROVAL BY THE ATTORNEY GENERAL, THERE IS ATTACHED TO THE TITLE PAPERS SUBMITTED WITH A VOUCHER A "CERTIFICATE RELATIVE TO SECTION 355, REVISED STATUTES," SIGNED BY JAMES M. GRAY, IN CHARGE, DIVISION OF LAND ACQUISITION, BUREAU OF AGRICULTURAL ECONOMICS, DEPARTMENT OF AGRICULTURE, CERTIFYING THAT THE LAND---

* * * WHICH IS BEING ACQUIRED PURSUANT TO SUBSECTION (A), SECTION 32, TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, IS NOT BEING PURCHASED FOR THE PURPOSE OF ERECTING THEREON ANY ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY-YARD, CUSTOM-HOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER.

ON THIS RECORD, PAYMENT OF THE VOUCHER IS NOT AUTHORIZED. THE CITED SUBSECTION (A), SECTION 32, TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, 50 STAT. 526, AUTHORIZES THE SECRETARY OF AGRICULTURE TO ACQUIRE BY PURCHASE, GIFT, DEVISE, ETC., SUBMARGINAL LAND AND LAND NOT PRIMARILY SUITABLE FOR CULTIVATION. SUBSECTION (B) AUTHORIZES THE SECRETARY OF AGRICULTURE "TO PROTECT, IMPROVE, DEVELOP, AND ADMINISTER ANY PROPERTY SO ACQUIRED AND TO CONSTRUCT SUCH STRUCTURES THEREON AS MAY BE NECESSARY TO ADAPT IT TO ITS MOST BENEFICIAL USE.' SECTION 41, TITLE IV OF THE ACT PROVIDES THAT---

FOR THE PURPOSES OF THIS ACT, THE SECRETARY SHALL HAVE POWER TO---

(F) ACQUIRE LAND AND INTERESTS THEREIN WITHOUT REGARD TO SECTION 355 OF THE REVISED STATUTES, AS AMENDED. THIS SUBSECTION SHALL NOT APPLY WITH RESPECT TO THE ACQUISITION OF LAND OR INTERESTS IN LAND UNDER TITLE III.

THUS WHILE TITLE III EXPRESSLY AUTHORIZES THE ERECTION OF STRUCTURES, WHICH WOULD INCLUDE BUILDINGS, ON THE LAND PURCHASED THEREUNDER, AND TITLE IV EXPRESSLY PROVIDES THAT THE EXEMPTION FROM COMPLIANCE WITH THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, SHALL NOT APPLY TO LAND PURCHASED UNDER TITLE III, THE DEPARTMENT'S VIEW APPEARS TO BE, NEVERTHELESS, THAT SECTION 355 DOES NOT APPLY TO PURCHASES OF LAND UNDER TITLE III WHERE THERE IS NO PRESENT ADMINISTRATIVE PURPOSE TO ERECT STRUCTURES THEREON AUTHORIZED BY THE STATUTE. A SIMILAR ARGUMENT CONCERNING THE PURCHASE OF LANDS BY YOUR DEPARTMENT UNDER TITLE VII OF THE ACT OF JUNE 15, 1935, 49 STAT. 378, 384, FOR THE RESTORATION, ETC., OF MIGRATORY WATERFOWL AND OTHER WILDLIFE WAS ANSWERED BY THE OPINION OF THE ATTORNEY GENERAL OF JULY 6, 1937, TO YOU, SUPRA, IN PART AS FOLLOWS:

THE TERM "BUILDING" AS HERE USED HAS BEEN CONSTRUED BROADLY TO COVER ANY PUBLIC BUILDING. 9 COMP. GEN. 75. SEE ALSO TITLE GUARANTY AND TRUST CO. V. CRANE CO., 219 U.S. 24, 33; UNITED STATES V. TUCKER, 122 FED. 518, 522. A BUILDING ERECTED AND USED TO ASSIST IN PROVIDING "FOR THE RESTORATION, REHABILITATION, AND PROTECTION OF MIGRATORY WATERFOWL AND OTHER WILDLIFE" MUST OF NECESSITY BE A PUBLIC BUILDING, AND IT MAY WELL BE HELD THAT DIKES, DAMS, CANALS, AND OTHER WORKS CONSTRUCTED TO CARRY OUT THIS PUBLIC PURPOSE WOULD ALSO COME WITHIN THE PROVISIONS OF SECTION 355.

YOU DO NOT SO STATE, BUT I ASSUME FROM A STATEMENT CONTAINED IN THE OPINION OF YOUR SOLICITOR, TRANSMITTED WITH YOUR LETTER, THAT YOU DO NOT PRESENTLY INTEND ANY CONSTRUCTION UPON THE LANDS INVOLVED. YOUR SOLICITOR STATES:

"GENERALLY SPEAKING, A GOVERNMENT AGENCY IS REQUIRED TO SUBMIT A TITLE TO THE ATTORNEY GENERAL FOR APPROVAL ONLY WHEN THE AGENCY INTENDS TO ERECT A PUBLIC BUILDING UPON THE PARTICULAR TRACT OF LAND (REVISED STATUTES SEC. 355). WITH RESPECT TO THOSE TRACTS ON WHICH NO PUBLIC BUILDINGS ARE TO BE ERECTED, THE APPROVAL OF THE TITLES BY THE ATTORNEY GENERAL IS NOT REQUIRED (26 OPS.ATT-Y.GEN. 380).'

AS I CONSTRUE THE STATUTE AND THE OPINION OF THE ATTORNEY GENERAL CITED BY YOUR SOLICITOR, THEY DO NOT SUPPORT HIS STATEMENT. SECTION 355, REVISED STATUTES, DOES NOT REFER TO LANDS UPON WHICH THE ACQUIRING AGENCY "INTENDS TO ERECT A PUBLIC BUILDING" BUT TO LANDS "PURCHASED BY THE UNITED STATES FOR THE PURPOSES OF ERECTING" BUILDINGS THEREON. THE OPINION OF THE ATTORNEY GENERAL CITED REFERS TO LANDS NOT CHARGED BY THE STATUTE AUTHORIZING THEIR PURCHASE WITH THE PURPOSE OF ERECTING BUILDINGS THEREON.

THE PURPOSE FOR WHICH THE LANDS HERE INVOLVED ARE TO BE USED IS FIXED BY TITLE VII, WHICH SAYS THAT SUCH LANDS ARE TO BE USED, AMONG OTHER THINGS,"TO ERECT AND CONSTRUCT THEREON AND IN CONNECTION THEREWITH SUCH BUILDINGS, DIKES, DAMS, CANALS, AND OTHER WORKS AS MAY BE NECESSARY.' THIS PURPOSE, FIXED BY CONGRESS, CANNOT BE CHANGED BY THE INTENTION, PRESENT OR FUTURE, OF THE PURCHASING AUTHORITY. WHATEVER SUCH INTENTION MAY BE IT DOES NOT CHANGE THE FACT THAT THE LANDS WHEN PURCHASED ARE CHARGED WITH THE PURPOSES SET FORTH IN TITLE VII, THUS BRINGING THEM WITHIN THE PROVISIONS OF SECTION 355, REVISED STATUTES.

WHAT WAS SAID THERE APPLIES WITH EQUAL FORCE TO THE PRESENT MATTER. THE STATUTE HAVING EXPRESSLY AUTHORIZED THE CONSTRUCTION OF BUILDINGS ON THE LAND, IT IS IMMATERIAL, SO FAR AS THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, ARE CONCERNED, THAT THERE IS NO PRESENT ADMINISTRATIVE INTENTION TO SO USE THE LAND. ONCE PURCHASED THE LAND WILL CONTINUE TO BE AVAILABLE UNDER THE STATUTE FOR THE ERECTION OF SUCH STRUCTURES AS MAY AT ANY TIME THEREAFTER BE CONSIDERED NECESSARY TO ADAPT IT TO ITS MOST BENEFICIAL USE, AND, OBVIOUSLY, IT CANNOT BE ESTABLISHED AT THIS TIME THAT PRESENT OR FUTURE ADMINISTRATIVE OFFICIALS WILL NOT, SOONER OR LATER, DECIDE THAT SOME BUILDING ON THE LAND, AS AUTHORIZED BY THE STATUTE, IS NECESSARY TO ITS MOST BENEFICIAL UTILIZATION.

ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT TITLE TO THE LAND IN QUESTION IS SATISFACTORY TO THE ATTORNEY GENERAL PURSUANT TO SECTION 355, REVISED STATUTES, PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED. THE SAID VOUCHER, TOGETHER WITH ANY OTHERS SUBJECT TO THE SAME OBJECTION, WILL BE RETURNED IN DUE COURSE, WITHOUT PREAUDIT APPROVAL, AND YOU ARE ADVISED THAT THE APPROPRIATION INVOLVED IS NOT AVAILABLE FOR THE PURCHASE OF LANDS UNDER TITLE III OF THE SAID BANKHEAD-JONES FARM TENANT ACT WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 355, REVISED STATUTES.