B-130635, FEBRUARY 26, 1957, 36 COMP. GEN. 616

B-130635, FEBRUARY 26, 1957, 36 COMP. GEN. 616

REAL PROPERTY - ACQUISITION BY CONDITIONAL DONATION - TITLE VALIDITY PREREQUISITE TO FEDERAL EXPENDITURE THE ACQUISITION BY DONATION OF A MUNICIPAL BUILDING TO THE UNITED STATES FOR A POST OFFICE WITH THE PROVISO THAT THE PROPERTY REVEST IN THE MUNICIPALITY WHEN IT CEASES TO BE USED FOR POST OFFICE PURPOSES BRINGS IT WITHIN THE PURCHASE RESTRICTION IN 40 U.S.C. 255, WHICH PROHIBITS THE EXPENDITURE OF FEDERAL FUNDS FOR REMODELING THE BUILDING UNTIL A WRITTEN OPINION ESTABLISHING THE VALIDITY OF THE TITLE HAS BEEN OBTAINED FROM THE ATTORNEY GENERAL.

TO THE POSTMASTER GENERAL, FEBRUARY 26, 1957:

REFERENCE IS MADE TO LETTER OF FEBRUARY 5, 1957, FROM THE DEPUTY POSTMASTER GENERAL, REQUESTING A DECISION WHETHER A CONTRACT FOR REMODELING THE PROPERTY PROPOSED TO BE ACQUIRED FROM THE TOWN OF YORK, VIRGINIA, MAY BE ENTERED INTO AND MONIES EXPENDED THEREFOR NOTWITHSTANDING THAT THE PROPOSED DEED OF CONVEYANCE TO BE EXECUTED BY THE DONOR WOULD CONTAIN A REVERSIONARY CLAUSE TO THE EFFECT THAT IF THE PROPERTY SHOULD CEASE TO BE USED FOR POST OFFICE PURPOSES IT WOULD REVERT TO THE GRANTOR.

IT IS STATED THAT TEMPORARY QUARTERS AT YORK HAVE BEEN OCCUPIED UNDER A SPECIAL USE PERMIT FROM THE NATIONAL PARK SERVICE BUT THAT THESE QUARTERS ARE NOW REQUIRED BY THAT AGENCY INCIDENT TO THE CELEBRATION IN 1957 OF THE 350TH ANNIVERSARY OF THE LANDING AT JAMESTOWN THEREBY NECESSITATING VACATING THE PRESENT QUARTERS. IT APPEARS THAT IT IS DESIRED TO REMODEL A PORTION OF THE BUILDING KNOWN AS THE MUNICIPAL DOCK BUILDING WHICH BUILDING IS TO BE DONATED TO THE UNITED STATES. IT IS PROPOSED THAT THE REMODELING WOULD BE DONE BY THE GENERAL SERVICES ADMINISTRATION AT AN ESTIMATED COST OF $48,500, WHICH AMOUNT IS STATED TO INCLUDE A 10 PERCENT RESERVE FOR CONTINGENCIES AND ARCHITECTURAL AND ENGINEERING EXPENSES. IS STATED THAT FUNDS FOR THE PROPOSED PROJECT ARE AVAILABLE IN THE PROJECT ACCOUNT NO. 95847, APPROPRIATION NO. 1870215, FACILITIES, POST OFFICE, 1957.

IT IS REPORTED THAT THE PROPERTY DESIGNATED AS THE SITE FOR THE NEW QUARTERS WAS FORMERLY OWNED BY THE UNITED STATES AND THAT FORMERLY IT WAS UNDER CONTROL OF THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR. THE DEED UNDER WHICH THE PROPERTY WAS ACQUIRED IS STATED TO HAVE CONTAINED A REVERTER CLAUSE PROVIDING FOR THE RETURN OF THE PROPERTY TO THE TOWN OF YORK WHENEVER THE PROPERTY SHOULD CEASE TO BE USED FOR PARK PURPOSES AND THAT SUCH REVERSION HAS BECOME EFFECTIVE. IT IS STATED THAT FOLLOWING SUCH REVERSION THE TRUSTEES OF THE TOWN OF YORK BY RESOLUTION ADOPTED JUNE 22, 1956, ACTING IN CONFORMITY WITH THE PROVISIONS OF CHAPTER 712 OF THE ACTS OF ASSEMBLY, STATE OF VIRGINIA, APPROVED MARCH 31, 1956, AUTHORIZED CONVEYANCE OF THE SAME LAND AND APPURTENANCES TO THE UNITED STATES BY SUITABLE AND PROPER DEED WITH SPECIAL WARRANTY SUBJECT, HOWEVER, TO A REVERTER CLAUSE UNDER WHICH TITLE WOULD REVEST IN THE GRANTOR WHENEVER THE PROPERTY SHOULD CEASE TO BE USED FOR POST OFFICE PURPOSES. WHILE THE DEPARTMENT APPEARS TO BE OF THE VIEW THAT THE GENERAL ASSEMBLY OF THE STATE OF VIRGINIA DID NOT IMPOSE THE RESTRICTION AS TO THE REVERSION OF THE PROPERTY PROPOSED TO BE DONATED TO THE UNITED STATES FOR POST OFFICE PURPOSES, IT IS STATED THAT THE TRUSTEES OF THE TOWN OF YORK ARE ADAMANT IN THEIR REFUSAL TO DEED THE PROPERTY TO THE UNITED STATES IN THE ABSENCE OF SUCH A REVERTER CLAUSE.

IN CONCLUSION IT IS STATED, IN EFFECT, THAT RECENTLY THE GENERAL SERVICES ADMINISTRATION REQUESTED BIDS FOR THE PURPOSE OF AWARDING A CONTRACT FOR REMODELING THE PREMISES FOR POST OFFICE PURPOSES BUT THAT AN AWARD COULD NOT BE MADE DUE TO THE SITUATION NOW CONFRONTING YOUR DEPARTMENT IN RESPECT TO OBTAINING CLEAR TITLE TO THE PROPERTY.

WHILE SECTION 8 OF THE POST OFFICE DEPARTMENT FINANCIAL CONTROL ACT OF 1950, 64 STAT. 460, 39 U.S.C. 794 (F), AUTHORIZES THE POSTMASTER GENERAL TO ACCEPT GIFTS AND DONATIONS OF REAL PROPERTY IN AID OF THE ACTIVITIES OF THE POST OFFICE DEPARTMENT, THERE ARE FOR CONSIDERATION HERE THE PROVISIONS OF SECTION 355, REVISED STATUTES, AS AMENDED, 40 U.S.C. 255, WHICH ARE, IN PERTINENT PART, 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, 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.

SINCE THE WORD "PURCHASE" MEANS THE ACQUISITION OF REAL PROPERTY BY ANY MEANS WHATEVER, EXCEPT BY DESCENT, THE ACQUISITION OF THE LAND HERE INVOLVED BY DONATION WOULD CONSTITUTE A PURCHASE WITHIN THE MEANING OF THE ABOVE STATUTE. 5 COMP. DEC. 682, 684; BYRD V. ALLEN, 171 S.W.2D 691, 95; STRUDTHOFF V. YATES, 152 P.2D 845, 852. CF. 39 OP. ATTY. GEN. 99. IN THE CIRCUMSTANCES, MONIES MAY NOT BE EXPENDED FOR THE PROPOSED REMODELING OF THE BUILDING UNTIL THE WRITTEN OPINION OF THE ATTORNEY GENERAL BE HAD IN FAVOR OF THE TITLE. 18 COMP. GEN. 727; 15 ID. 359. AND, SINCE THE PROPOSED EXPENDITURE IS NOT AUTHORIZED UNTIL APPROVAL OF THE TITLE BY THE ATTORNEY GENERAL, EXECUTION OF A CONTRACT PRIOR TO SUCH APPROVAL LIKEWISE WOULD NOT BE AUTHORIZED.

SUBJECT TO APPROVAL OF THE TITLE BY THE ATTORNEY GENERAL, OUR OFFICE WOULD SEE NO OBJECTION TO THE REMODELING AS PROPOSED ON REIMBURSABLE BASIS, THE COST TO BE PAID FROM THE APPROPRIATION FACILITIES, POST OFFICE, 1957, AS THAT APPROPRIATION HAS BEEN MADE AVAILABLE BY SECTION 203 OF THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT, 1957, 70 STAT. 97, FOR PAYMENT TO THE GENERAL SERVICES ADMINISTRATION OF SUCH ADDITIONAL SUMS AS MAY BE NECESSARY FOR THE REPAIR, ALTERATION, PRESERVATION, RENOVATION, IMPROVEMENT OF FEDERALLY OWNED PROPERTY USED FOR POSTAL PURPOSES.