B-117120, MAR 5, 1954

B-117120, MAR 5, 1954

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1953, REQUESTING RECONSIDERATION OF THE CONCLUSION IN DECISION OF OCTOBER 15, 1953, B 117120, TO YOU, TO THE EFFECT THAT PUBLIC LAW 910, 81ST CONGRESS (64 STAT. 1221) MAY NOT BE REGARDED AS GENERAL AUTHORITY FOR THE ACQUISITION OF LAND.

THE COMMITTEES ON ARMED SERVICES APPEAR TO BE DEFINITELY OF THE VIEW THAT THE ARMED SERVICES DO NOT HAVE GENERAL AUTHORITY TO ACQUIRE LAND. SEE IN THIS CONNECTION THE DISCUSSION CONCERNING THE ADDITIONAL LAND DESIRED AT THE WOLTERS AIR FORCE BASE ON PAGES 484 AND 485 OF REPORT NUMBER 11 OF THE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON ACQUISITIONS AND DISPOSALS ON PROJECT NO. 126. WHILE THESE HEARINGS OCCURRED SUBSEQUENT TO THE ENACTMENT OF PUBLIC LAW 910, THE MEMBERS OF THE COMMITTEE CLEARLY INDICATED THAT NOTWITHSTANDING THE EXISTENCE OF SECTION 401 OF THAT ACT, THE AIR FORCE DID NOT HAVE AUTHORITY TO ACQUIRE LAND NOT INCLUDED IN THE JUSTIFICATIONS PRESENTED PRIOR TO THE ENACTMENT OF PUBLIC LAW 910. MR. HARDY - REFERRING TO THE 26 ACRE TRACT - STATED THAT SINCE THE AIR FORCE HAD ALREADY ACQUIRED THE ACREAGE AUTHORIZED BY PUBLIC LAW 910, NAMELY 7,737 ACRES, THE DEPARTMENT HAD NO AUTHORITY TO ACQUIRE ANY ADDITIONAL ACREAGE. IN THE SAME DISCUSSION, MR. VINSON STATED:

"MR. CHAIRMAN, IF HE ACQUIRED THE 7,000 ACRES THAT WE AUTHORIZED BY THE PUBLIC WORKS ACT (PUBLIC LAW 910) HE HASN'T ANY AUTHORITY OF CONGRESS TO ACQUIRE ANY MORE LAND. SO THEREFORE HE WOULD HAVE TO GET THE AUTHORITY OF THE CONGRESS TO ACQUIRE THE 23 ACRES OF LAND."

LATER ON MR. VINSON SAID "PUT IT IN THE NEXT PUBLIC WORKS BILL. HAVEN'T ANY AUTHORITY, MR. CHAIRMAN, TO AUTHORIZE IT."

AS A FURTHER INDICATION OF THE COMMITTEES' VIEWS ON THE SUBJECT, THE CHAIRMAN OF THE HOUSE COMMITTEE ON ARMED SERVICES, 82ND CONGRESS, DURING THE HEARINGS ON H. R. 4524 - A RELATED BILL TO H. R. 4914, WHICH BECAME PUBLIC LAW 155, 82ND CONGRESS (65 STAT. 336) AND WHICH CONTAINS IN SECTION 501 PROVISIONS SUBSTANTIALLY IDENTICAL TO SECTION 401 OF PUBLIC LAW 910 - STATED:

"THE CHAIRMAN. WELL, IT DOESN'T MAKE A BIT OF DIFFERENCE WHAT IT IS. YOUR ITEMS MUST SHOW THAT THE MONEY IS GOING TO BE SPENT FOR WHAT THE ITEM SAYS IN THE BOOK. NOW I CERTAINLY HOPE THAT IT DOESN'T RUN THROUGH OTHER ITEMS, THAT THE ITEM SAYS ONE THING BUT IT INCLUDES OTHERS. YOU WOULDN'T BE AUTHORIZED LAND THERE. THERE IS NOTHING IN THE LAW IN REFERENCE TO ACQUIRING ANY LAND. SO IF YOU HAVE TO HAVE ANY LAND, YOU BETTER PUT IT IN THE LAW. DON'T TRY TO TAKE ANY WAREHOUSE MONEY AND BUY SOME LAND, BECAUSE THE ACT WILL READ, 'AIRFIELD PAVEMENTS, OPERATIONAL FACILITIES, AIRCRAFT MAINTENANCE FACILITIES, UTILITIES, AND STORAGE FACILITIES, $11,380,000.' WE COULDN'T EVEN INTERPRET THAT OPERATING FACILITIES WOULD JUSTIFY LAND AFTER YOU HAVE BROKEN DOWN LIKE YOU HAVE IN THIS BOOK. SO IF YOU HAVE TO HAVE ANY LAND, WE BETTER WRITE IT IN THE BILL THAT YOU HAVE TO HAVE SOME LAND, INSTEAD OF MAKING YOU USE ITEMS FOR ONE PURPOSE IN THE BOOK AND ACTUALLY APPLYING IT TO SOME OTHER PURPOSE. NOW WE MUST NOT HAVE ANY KIND OF DOINGS LIKE THAT.

"THE CHAIRMAN. I SEE. IT IS NOT EVEN STATED IN THE BOOK. IF YOU WANT TO BUY THIS LAND, THE COMMITTEE WOULD SAY, 'WHERE DID YOU GET THE AUTHORITY?' WELL, YOU WOULD SAY, 'WE DIDN'T HAVE THE AUTHORITY. WE TOOK A LITTLE WAREHOUSE MONEY AND BOUGHT IT.' YOU MUST NOT DO THAT. WE MUST PUT THE CARDS ON THE TABLE. IF THERE ISN'T ANY OBJECTION, WE WILL INCLUDE THE WORD 'LAND' IN THAT ITEM.

"THE CHAIRMAN. NOW LET THAT BE THOROUGHLY UNDERSTOOD. BECAUSE WE ARE RELYING UPON EACH ONE OF THESE SERVICES WHEN THEY BREAK THIS DOWN TO USE THE MONEY EXCLUSIVELY FOR THAT PURPOSE. THEN IF THEY HAVE TO CHANGE, THEY MUST COME BACK TO THIS COMMITTEE AND TELL US ABOUT THESE VARIOUS THINGS. BECAUSE THE FLEXIBILITY IS NOT GIVEN TO BUY SOMETHING THAT IS NOT SET OUT, UNLESS WE WRITE IT IN THE BILL. WITHOUT OBJECTION, WE APPROVE $11,380,000 FOR THIS AIR MATERIAL BASE."

CONCERNING YOUR STATEMENT THAT THE ONLY AUTHORITY FOR LAND ACQUISITION BY THE AIR FORCE IN PUBLIC LAW 910 IS CONTAINED IN SECTION 401, IT MAY BE STATED THAT SECTION 401 IS NOT THE AUTHORIZATION FOR SUCH ACQUISITION. WHILE IT WAS STATED IN THE PRIOR DECISION THAT SECTION 301 OF PUBLIC LAW 910 DID NOT SPECIFICALLY INCLUDE AUTHORITY TO ACQUIRE LAND, IT WAS INDICATED THEREIN THAT THE JUSTIFICATIONS PRESENTED TO THE CONGRESS IN SUPPORT OF THE PUBLIC WORKS REQUESTED THEREIN, AND THE APPROVAL OF THE PUBLIC WORKS SO PRESENTED DID FURNISH AUTHORITY TO ACQUIRE THE SPECIFIC AMOUNT OF LAND SET FORTH IN SUCH JUSTIFICATIONS. THE VIEWS JUST EXPRESSED SEEM CONFIRMED BY THE STATEMENTS OF THE COMMITTEE QUOTED ABOVE.

NOTWITHSTANDING YOUR CONTENTION TO THE EFFECT THAT CONGRESS HARDLY COULD HAVE INTENDED THAT SECTION 401 SHOULD BE VIEWED AS GRANTING AUTHORITY TO ACQUIRE LAND BY DONATION OR EXCHANGE WHILE ONLY PROVIDING A RELEASE FROM OTHER STATUTORY RESTRICTIONS IN THE CASE OF PURCHASE OR LEASE, THE STATEMENTS OF THE COMMITTEE MEMBERS SET OUT ABOVE APPEAR TO CLEARLY INDICATE THAT SUCH WAS THEIR INTENT. THE WORDS "DONATIONS" AND "EXCHANGE OF GOVERNMENT-OWNED LANDS" PRESUMABLY WERE INCLUDED IN THIS SECTION SOLELY TO PERMIT THE ACQUISITION OF LAND BY SUCH MEANS WHERE THE ACQUISITION THEREOF OTHERWISE WAS AUTHORIZED.

THE CASE OF UNITED STATES V. CITY OF CHESTER, 144 F. 2D 415, REFERRED TO IN YOUR LETTER HAS BEEN EXAMINED BUT IT IS BELIEVED THAT THE FACTS IN THAT CASE ARE DISTINGUISHABLE FROM THE FACTS IN THE INSTANT MATTER. IN ANY EVENT, IT IS CLEAR THAT THE CONGRESS DOES NOT REGARD SECTION 401 AND SIMILAR STATUTORY PROVISIONS AS GENERAL AUTHORITY TO ACQUIRE LAND.

IN CONCLUSION SINCE NO REPORT WAS FURNISHED CONCERNING THE AVAILABILITY OF FUNDS APPROPRIATED BY PUBLIC LAW 911 FOR THE ACQUISITION OF THE 7737 ACRE TRACT AT WOLTERS AIR FORCE BASE AS REQUESTED IN THE AFORESAID DECISION OF OCTOBER 13, 1953, IT IS PRESUMED THAT SUCH REPORT WILL BE FURNISHED AT A LATER DATE.