B-140124, SEPTEMBER 4, 1959, 39 COMP. GEN. 166

B-140124, SEPTEMBER 4, 1959, 39 COMP. GEN. 166

APPROPRIATIONS - CONDEMNATION PROCEEDINGS - CONDITIONS IN PUBLIC WORKS DOCUMENTS - PERMANENT APPROPRIATIONS FOR JUDGMENTS WHILE COSTS OF A JUDGMENT AGAINST THE UNITED STATES IN A CONDEMNATION PROCEEDING INSTITUTED BY THE UNITED STATES UNDER 33 U.S.C. 593 INCIDENT TO THE GULF INTRACOASTAL WATERWAY PROJECT MAY NOT BE PAID FROM A PUBLIC WORKS APPROPRIATION FOR "PROJECTS AUTHORIZED BY LAW" IN VIEW OF THE SPECIFIC CONDITION IN THE SENATE DOCUMENT DETAILING THE GULF PROJECT WHICH PROVIDED THAT THE UNITED STATES SHOULD NOT BEAR ANY OF THE COSTS OF LAND EASEMENTS AND RIGHTS-OF-WAY, SUCH JUDGMENT COSTS (INTEREST) ARE FOR PAYMENT FROM THE PERMANENT APPROPRIATIONS FOR PAYMENT OF JUDGMENTS IN 31 U.S.C. 724A.

TO E. J. COOK, DEPARTMENT OF THE ARMY, SEPTEMBER 4, 1959:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12, 1959, REQUESTING OUR ADVANCE DECISION AS TO WHETHER YOU MAY PROPERLY DISBURSE THE SUM OF $31,099.21 AS PAYMENT OF A PORTION OF THE DAMAGES AWARDED TO LANDOWNERS IN CONDEMNATION PROCEEDINGS INSTITUTED BY THE UNITED STATES UNDER THE CIRCUMSTANCES RELATED BELOW.

THE CONDEMNATION AWARDS INVOLVED AROSE OUT OF PROCEEDINGS INITIATED, PURSUANT TO THE PROVISIONS OF SECTIONS 593 AND 594 OF TITLE 33, U.S.C. TO OBTAIN INTERESTS IN CERTAIN LANDS FOR THE GULF INTRACOASTAL WATERWAY, A WORK OF RIVER AND HARBOR IMPROVEMENT. SECTION 593 AUTHORIZES THE SECRETARY OF THE ARMY TO CAUSE CONDEMNATION PROCEEDINGS TO BE INSTITUTED IN THE NAME OF THE UNITED STATES WHERE ANY STATE OR STATE AGENCY CANNOT OBTAIN VALID TITLE TO LANDS OR INTERESTS THEREIN FOR THE PURPOSE OF CONVEYING SAME TO THE UNITED STATES FREE OF COST IN CONNECTION WITH WORKS OF RIVER AND HARBOR IMPROVEMENT DULY AUTHORIZED BY CONGRESS; PROVIDED, ALL EXPENSES OF SUCH PROCEEDINGS AND ANY AWARDS THEREUNDER BE PAID BY SUCH STATE OR STATE AGENCY. THE SECRETARY MAY REQUIRE EXECUTION OF A PROPER BOND, BEFORE PROCEEDINGS ARE COMMENCED, TO SECURE SAID PAYMENT.

SECTION 594 GIVES THE SECRETARY THE RIGHT OF IMMEDIATE POSSESSION UPON FILING OF A PETITION; PROVIDED, THAT CERTAIN AND ADEQUATE PROVISION SHALL HAVE BEEN MADE TO SECURE THE PAYMENT OF JUST COMPENSATION TO THE PARTIES ENTITLED THERETO.

THE POLICE JURY OF PLAQUEMINES PARISH, A PUBLIC AGENCY IN THE STATE OF LOUISIANA, WAS OBLIGATED TO FURNISH FREE OF COST TO THE UNITED STATES CERTAIN INTERESTS IN LAND NECESSARY FOR A PORTION OF THE INTRACOASTAL WATERWAY. APPARENTLY, BECAUSE THIS AGENCY WAS UNABLE TO OBTAIN THE REQUIRED INTERESTS FOR CONVEYANCE TO THE UNITED STATES, THE SECRETARY OF THE ARMY CAUSED CONDEMNATION PROCEEDINGS TO BE INSTITUTED IN THE NAME OF THE UNITED STATES IN ACCORDANCE WITH THE PROVISIONS OF 33 U.S.C. 593. FEBRUARY 5, 1952, THE GOVERNMENT FILED THESE PROCEEDINGS AND ON FEBRUARY 7, 1952, AN ORDER OF IMMEDIATE POSSESSION WAS SIGNED. AS ASSURANCE THAT JUST COMPENSATION WOULD BE PAID TO THE PARTIES ENTITLED THERETO, THE POLICE JURY DEPOSITED $100,000 INTO THE REGISTRY OF THE COURT WHEN THE PROCEEDINGS WERE FILED AND, ON JANUARY 19, 1953, PURSUANT TO A COURT ORDER PREDICATED UPON 33 U.S.C. 594, POSTED A BOND IN THE AMOUNT OF $150,000 IN ADDITION THERETO. ON MARCH 10 AND APRIL 16, 1958, THE POLICE JURY MADE ADDITIONAL DEPOSITS OF $101,945.75 AND $20,675, RESPECTIVELY.

FINAL JUDGMENT WAS ENTERED IN THE CONDEMNATION PROCEEDINGS ON SEPTEMBER 12, 1958, CONDEMNING THE INTERESTS IN LAND REQUIRED BY THE UNITED STATES; ENTERING AWARDS COMPENSATING THE OWNERS THEREFOR, INCLUDING INTEREST IN THE AMOUNT OF $31,302.21; AND FIXING THE FEES OF THE COMMISSIONERS WHO CONDUCTED THE HEARINGS IN THE CONDEMNATION PROCEEDINGS AT $21,500. AS THE SUMS ON DEPOSIT IN THE REGISTRY OF THE COURT WERE INSUFFICIENT TO PAY THE INTEREST AND COMMISSIONERS' FEES, THE UNITED STATES WAS ORDERED TO CAUSE TO BE DEPOSITED THE SUM OF $52,802.21 TO COVER THESE ITEMS. THE POLICE JURY OF PLAQUEMINES PARISH REFUSED TO PAY THE $52,802.21 INTO COURT WHEREUPON THE UNITED STATES MOVED TO FORFEIT SUCH PORTION OF THE $150,000 BOND WHICH HAD BEEN POSTED AS ADDITIONAL SECURITY. THIS MOTION WAS SUSTAINED.

THE POLICE JURY AND THE NATIONAL SURETY CORPORATION, SURETY ON THE BOND, UNSUCCESSFULLY RESISTED THE MOTION TO FORFEIT THE BOND AND HAVE APPEALED THE COURT'S HOLDING THAT THE POLICE JURY OF PLAQUEMINES PARISH IS OBLIGATED TO PAY THE DEFICIENCY OF $52,599.21 (INTEREST OF $31,302.21 PLUS COMMISSIONERS' FEES OF $21,500 LESS $203 WHICH WAS FOUND REMAINING ON DEPOSIT IN THE REGISTRY OF THE COURT AFTER PAYMENT OF ALL AWARDS EXCLUDING INTEREST). IT MAY TAKE CONSIDERABLE TIME BEFORE THE APPEAL IS FINALLY DETERMINED; AND MEANWHILE, THE LANDOWNERS HAVE NOT BEEN PAID AS PROVIDED BY JUDGMENT.

THE DEPARTMENT OF JUSTICE HAS PAID THE $21,500 DUE THE COMMISSIONERS AND, LACKING AUTHORITY TO PAY THE $31,099.21 DUE THE LANDOWNERS AS INTEREST ON THEIR AWARDS, HAS REQUESTED THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, TO MAKE SAID SUM AVAILABLE FOR IMMEDIATE PAYMENT.

YOUR DOUBT IN THE MATTER CONCERNS THE PROPRIETY OF MAKING IMMEDIATE PAYMENT OF THE INTERESTS WHICH THE COURT ORDERED THE UNITED STATES TO PAY AS AGAINST AWAITING FINAL DECISION ON THE APPEAL OF THE POLICE JURY OF PLAQUEMINES PARISH AND THE NATIONAL SURETY CORPORATION. YOU POINT OUT THAT THE HOLDING IN IN RE CONDEMNATIONS FOR IMPROVEMENT OF ROUGE RIVER, 266 F. 105, WOULD APPEAR TO REQUIRE THAT IMMEDIATE PAYMENT BY THE UNITED STATES BE MADE AND THAT THE OFFICE OF THE CHIEF OF ENGINEERS AND THE DEPARTMENT OF JUSTICE ARE OF THE OPINION THAT THE ROUGE RIVER CASE IS, IN FACT, AUTHORITY FOR SUCH PAYMENT.

WE AGREE THAT THE UNITED STATES IS LIABLE FOR PAYMENT OF THE JUST COMPENSATION AWARDED IN THESE CONDEMNATION PROCEEDINGS. AS STATED BY THE COURT IN THE ROUGE RIVER CASE:

* * * BY INSTITUTING SUCH PROCEEDINGS THE GOVERNMENT HAS PLEDGED ITS FAITH, AND HAS ABSOLUTELY OBLIGATED ITSELF, TO MAKE JUST COMPENSATION AT THE PROPER TIME; THAT IS, UPON THE ACTUAL TAKING OF THE PROPERTY SOUGHT, IN THE SAME MANNER, AND TO THE SAME EXTENT, AS IF IT WERE PROCEEDING WITHOUT REFERENCE TO THE STATUTE IN QUESTION.

HOWEVER, IT IS A FUNDAMENTAL PRINCIPLE OF OUR GOVERNMENT THAT "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW.' ARTICLE 1, SECTION 9, CLAUSE 7, CONSTITUTION OF THE UNITED STATES. AND SECTION 3678 OF THE REVISED STATUTES, 31 U.S.C. 628, PROVIDES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND NO OTHERS.

THE APPROPRIATION SOUGHT TO BE CHARGED WITH THE EXPENSE IN QUESTION, SYMBOL 96X3122 AS SHOWN ON THE VOUCHER ACCOMPANYING YOUR REQUEST FOR DECISION, IS CONTAINED IN THE PUBLIC WORKS APPROPRIATION ACT, 1959, 72 STAT. 1572. UNDER THE HEADING " CONSTRUCTION GENERAL" THE ACT PROVIDES:

FOR THE PROSECUTION OF RIVER AND HARBOR, FLOOD CONTROL, SHORE PROTECTION, AND RELATED PROJECTS AUTHORIZED BY LAW. * * *

THE GULF INTRACOASTAL WATERWAY WAS AUTHORIZED BY THE ACT OF MARCH 2, 1945, 59 STAT. 10, SECTION 2 OF WHICH PROVIDES THAT:

THE FOLLOWING WORKS OF IMPROVEMENT ARE HEREBY ADOPTED AND AUTHORIZED * * * AND SHALL BE PROSECUTED * * * IN ACCORDANCE WITH THE PLANS IN THE RESPECTIVE REPORTS HEREINAFTER DESIGNATED AND SUBJECT TO THE CONDITIONS SET FORTH THEREIN * * *

INTRACOASTAL WATERWAY IN THE VICINITY OF ALGIERS AT NEW ORLEANS, LOUISIANA; SENATE DOCUMENT NUMBERED 188, SEVENTY-EIGHTH CONGRESS;

IF THE CONDITIONS SET FORTH IN SENATE DOCUMENT NO. 188 ARE SUCH AS TO PRECLUDE PAYMENT OF THE AWARDS IN QUESTION, IT MUST BE CONCLUDED THAT AN APPROPRIATION MADE SUBJECT TO THOSE CONDITIONS IS NOT AVAILABLE FOR THE PAYMENT. IN THIS REGARD, A LETTER, ON PAGE ONE OF SAID DOCUMENT, FROM THE CHIEF OF ENGINEERS, UNITED STATES ARMY, TO THE CHAIRMAN, COMMITTEE ON COMMERCE, UNITED STATES SENATE, STATES IN PARAGRAPH TWO:

AFTER FULL CONSIDERATION OF THE REPORT FROM THE DIVISION ENGINEER, THE BOARD RECOMMENDS MODIFICATION OF THE EXISTING PROJECT FOR THE GULF INTRACOASTAL WATERWAY * * * SUBJECT TO THE CONDITION THAT RESPONSIBLE LOCAL AGENCIES FURNISH ASSURANCES SATISFACTORY TO THE SECRETARY OF WAR THAT THEY WILL (A) PROVIDE WITHOUT COST TO THE UNITED STATES ALL NECESSARY LANDS, EASEMENTS, RIGHTS-OF-WAY, AND SPOIL DISPOSAL AREAS FOR THE NEW WORK AND SUBSEQUENT MAINTENANCE WHEN AND AS REQUIRED, (B) BEAR THE COST OF MAINTENANCE AND OPERATION OF ALL NECESSARY BRIDGES, AND (C) HOLD AND SAVE THE UNITED STATES FREE FROM DAMAGES DUE TO CONSTRUCTION AND MAINTENANCE OF THE IMPROVEMENT. ( ITALICS SUPPLIED.)

WE CANNOT ESCAPE THE CONCLUSION, AFTER CAREFUL REVIEW OF SENATE DOCUMENT NO. 188, THAT THIS PROJECT WAS PROPOSED AND AUTHORIZED ON THE BASIS THAT THE COST OF ALL NECESSARY LANDS AND INTERESTS IN LAND WOULD NOT BE BORNE BY THE UNITED STATES. SINCE THE APPROPRIATION SOUGHT TO BE CHARGED IS FOR "PROJECTS AUTHORIZED BY LAW" AND AUTHORITY FOR THE PROJECT INVOLVED IS BASED UPON THE PLANS AS SET FORTH IN SENATE DOCUMENT NO. 188 AND SUBJECT TO THE CONDITIONS THEREIN, IT FOLLOWS THAT SAID APPROPRIATION MAY NOT BE HELD TO EMBRACE ANY EXPENSE OF OBTAINING LAND OR INTERESTS IN LAND IN CONNECTION WITH THE PROJECT.

ACCORDINGLY, THE VOUCHER PRESENTED WITH YOUR REQUEST FOR DECISION MAY NOT BE PAID AND IS RETURNED.

HOWEVER, WHILE THE APPROPRIATION " FOR THE PROSECUTION OF RIVER AND HARBOR, FLOOD CONTROL, SHORE PROTECTION, AND RELATED PROJECTS" MAY NOT BE USED TO PAY THE CONDEMNATION AWARDS INVOLVED, IT MUST BE RECOGNIZED THAT THE UNITED STATES IS LIABLE THEREFOR AND THAT A FINAL JUDGMENT AGAINST THE UNITED STATES HAS BEEN ENTERED. SECTION 1 OF THE ACT OF JUNE 25, 1948, 62 STAT. 974, 28 U.S.C. 2414, PROVIDES THAT:

PAYMENT OF FINAL JUDGMENTS RENDERED BY A DISTRICT COURT AGAINST THE UNITED STATES SHALL BE MADE ON SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE.

WHENEVER THE ATTORNEY GENERAL DETERMINES THAT NO APPEAL SHALL BE TAKEN FROM A JUDGMENT AGAINST THE UNITED STATES OR THAT NO FURTHER REVIEW WILL BE SOUGHT FROM A DECISION AFFIRMING THE SAME, HE SHALL SO CERTIFY AND THE JUDGMENT SHALL BE DEEMED FINAL.

AND SECTION 1302 OF THE ACT OF JULY 27, 1958, 70 STAT. 694, 31 U.S.C. 724A, PROVIDES IN PERTINENT PART AS FOLLOWS:

THERE ARE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, AND OUT OF THE POSTAL REVENUES, RESPECTIVELY, SUCH SUMS AS MAY ON AND AFTER JULY 27, 1956 BE NECESSARY FOR THE PAYMENT, NOT OTHERWISE PROVIDE (SIC) FOR, AS CERTIFIED BY THE COMPTROLLER GENERAL, OF JUDGMENTS (NOT IN EXCESS OF $100,000 IN ANY ONE CASE) RENDERED BY THE DISTRICT COURTS AND THE COURT OF CLAIMS AGAINST THE UNITED STATES WHICH HAVE BECOME FINAL, TOGETHER WITH SUCH INTEREST AND COSTS AS MAY BE SPECIFIED IN SUCH JUDGMENTS OR OTHERWISE AUTHORIZED BY LAW: * * *

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT THE JUDGMENT OF SEPTEMBER 12, 1958, BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS DIVISION, ORDERING THE UNITED STATES TO CAUSE TO BE DEPOSITED IN THE REGISTRY OF THE COURT THE SUM OF $52,802.21 WILL NOT BE APPEALED. THAT PORTION OF THE ORDER REPRESENTING COMMISSIONERS' FEES IN THE AMOUNT OF $21,500 HAVING BEEN DEPOSITED AS STATED ABOVE, THE REMAINING PORTION, REPRESENTING INTEREST IN THE AMOUNT $31,302.21, IS FOR SETTLEMENT BY THIS OFFICE FROM THE APPROPRIATION PROVIDED BY 31 U.S.C. 724A, IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. 2412, IT HAVING BEEN DETERMINED THAT APPROPRIATIONS OF THE CORPS OF ENGINEERS ARE NOT AVAILABLE FOR SUCH PURPOSE. PAYMENT OF $31,099.21 ($31,302.21 MINUS $203 ALREADY IN THE REGISTRY OF THE COURT) WILL BE MADE ACCORDINGLY.