A-98408, MARCH 20, 1939, 18 COMP. GEN. 727

A-98408, MARCH 20, 1939, 18 COMP. GEN. 727

LAND ACQUISITION - BANKHEAD-JONES FARM TENANT ACT OF 1937 - TITLE VALIDITY REQUIREMENTS NOTWITHSTANDING ABSENCE OF PRESENT STRUCTURE ERECTION INTENTIONS IN THE LIGHT OF THE LONG ESTABLISHED ADMINISTRATIVE INTERPRETATION OF SECTION 355, REVISED STATUTES, REQUIRING APPROVAL BY THE ATTORNEY GENERAL OF LAND TITLES BEFORE PAYMENT OF THE PURCHASE PRICE, AND IN THE INTEREST OF RESOLVING ANY DOUBT IN FAVOR OF THE GENERAL LEGISLATIVE POLICY FOR THE PROTECTION OF THE GOVERNMENT IN SUCH MATTERS, THE CONCLUSION OF THE DECISION PUBLISHED IN 18 COMP. GEN. 372, IS AFFIRMED, THAT IS, THAT PURCHASES OF LAND UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT OF JULY 22, 1937, 50 STAT. 525, ARE 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. WORDS "PUBLIC BUILDING" AS USED IN SECTION 355, REVISED STATUTES; DISTINCTION BETWEEN NONAVAILABILITY OF APPROPRIATED MONEYS FOR LAND PURCHASES BEFORE TITLE APPROVAL BY ATTORNEY GENERAL AND AVAILABILITY OF SUCH MONEYS FOR SUCH PURPOSES BEFORE THE OBTAINING OF STATE CONSENT TO THE PURCHASE; AND NONAPPLICABILITY OF ACT OF MARCH 2, 1889, REQUIRING FURNISHING OF TITLE ABSTRACTS WITHOUT EXPENSE TO THE GOVERNMENT, TO PURCHASES OF LAND NOT ACQUIRED AS A SITE FOR PUBLIC BUILDINGS UNDER CONTROL OF THE TREASURY DEPARTMENT; DISCUSSED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MARCH 20, 1939:

CAREFUL CONSIDERATION HAS BEEN GIVEN THE MATTERS CONTAINED IN YOUR LETTER OF NOVEMBER 16, 1938, AND IN THE SUPPORTING MEMORANDUM BY THE SOLICITOR, DEPARTMENT OF AGRICULTURE, SUBMITTED FEBRUARY 27, 1939, BUT THEY ARE NOT FOUND TO REQUIRE OR WARRANT A MODIFICATION OF DECISION OF OCTOBER 24, 1938, 18 COMP. GEN. 372, HOLDING THAT APPROPRIATIONS FOR THE PURCHASE OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, APPROVED JULY 22, 1937, 50 STAT. 525, ARE NOT AVAILABLE FOR PAYMENT FOR SUCH LANDS IN THE ABSENCE OF A SHOWING THAT THE ATTORNEY GENERAL, PURSUANT TO THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, HAS FOUND THE TITLE SATISFACTORY.

YOUR LETTER IS AS FOLLOWS:

YOUR DECISION DATED OCTOBER 24, 1938 (A-98408), RELATIVE TO THE DISAPPROVAL OF A VOUCHER FOR PREAUDIT WHICH INVOLVES THE PURCHASE OF LAND UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, APPROVED JULY 22, 1937 (50 STAT. 525), HAS BEEN RECEIVED. IT IS NOTED THAT YOUR PRESENT HOLDING IS TO THE EFFECT THAT ALL PURCHASES OF LAND UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT MUST BE IN CONFORMITY WITH THE PROVISIONS OF SECTION 355 OF THE REVISED STATUTES, REGARDLESS OF WHETHER PUBLIC BUILDINGS ARE TO BE ERECTED UPON THE PARTICULAR TRACTS OF LAND.

BECAUSE OF THE ADMINISTRATIVE DIFFICULTIES WHICH WOULD RESULT FROM YOUR LATEST DECISION, A RECONSIDERATION IS REQUESTED.

TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT AUTHORIZES AND DIRECTS THE SECRETARY OF AGRICULTURE "TO DEVELOP A PROGRAM OF LAND CONSERVATION AND LAND UTILIZATION, INCLUDING THE RETIREMENT OF LANDS WHICH ARE SUBMARGINAL OR NOT PRIMARILY SUITABLE FOR CULTIVATION * * *.' SECTION 41 (F) EMPOWERS THE SECRETARY TO:

"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.'

IN THE CONFERENCE REPORT TO THE HOUSE OF REPRESENTATIVES ON THE FARM TENANT ACT (REPORT NO. 1198, 75TH CONGRESS, 1ST SESSION) MR. JONES, SPEAKING FOR THE COMMITTEE OF CONFERENCE, MADE THE FOLLOWING STATEMENT (P. 15):

"UNDER THE HOUSE BILL, LAND COULD BE ACQUIRED WITHOUT REGARD TO SECTION 355 OF THE REVISED STATUTES UNDER WHICH VARIOUS RESTRAINTS ARE PUT UPON LAND ACQUISITION. THE CONFERENCE AGREEMENT LIMITS THAT EXCEPTION SO THAT ACQUISITION OF SUBMARGINAL LAND MUST BE IN ACCORDANCE WITH SECTION 355 WHENEVER THAT SECTION BY ITS TERMS APPLIES.'

IT SEEMS OBVIOUS, THEREFORE, THAT CONGRESS DID NOT INTEND TO DIRECT THAT ALL PURCHASES OF LAND UNDER TITLE III SHOULD CONFORM TO THE REQUIREMENTS OF SECTION 355 OF THE REVISED STATUTES, BUT ONLY INTENDED TO MAKE COMPLIANCE WITH THAT SECTION A PREREQUISITE IF THE SECTION, BY ITS OWN TERMS, APPLIES TO THE PURCHASE OF PARTICULAR TRACTS.

SECTION 355 OF THE REVISED STATUTES (40 U.S.C.A. 255) PROVIDES:

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

SECTION 355 HAS BEEN SUPPLEMENTED BY THE PROVISIONS OF THE ACT OF MARCH 2, 1889 (25 STAT. 941, 40 U.S.C.A. 256), TO THE EFFECT THAT:

"THAT HEREAFTER ALL LEGAL SERVICES CONNECTED WITH THE PROCUREMENT OF TITLES TO SITE FOR PUBLIC BUILDINGS, OTHER THAN FOR LIFE-SAVING STATIONS AND PIERHEAD LIGHTS, SHALL BE RENDERED BY UNITED STATES DISTRICT ATTORNEYS: PROVIDED FURTHER, THAT HEREAFTER IN THE PROCUREMENT OF SITES FOR SUCH PUBLIC BUILDINGS, IT SHALL BE THE DUTY OF THE ATTORNEY GENERAL TO REQUIRE OF THE GRANTORS IN EACH CASE TO FURNISH, FREE OF ALL EXPENSES TO THE GOVERNMENT, ALL REQUISITE ABSTRACTS, OFFICIAL CERTIFICATIONS, AND EVIDENCES OF TITLE THAT THE ATTORNEY GENERAL MAY DEEM NECESSARY.'

SECTION 355, BY ITS EXPRESS TERMS, APPLIES ONLY TO PURCHASES OF LAND BY THE UNITED STATES FOR THE ERECTION OF PUBLIC BUILDINGS THEREON. WHERE PURCHASES OF LAND DO NOT FALL WITHIN THE PURVIEW OF THIS SECTION, THE EXECUTIVE OFFICER WHO IS AUTHORIZED TO MAKE SUCH PURCHASES MAY, IF HE WISHES TO DO SO, DETERMINE THE SUFFICIENCY OF THE TITLE TO SUCH LANDS, WITHOUT SUBMITTING THE TITLES TO THE ATTORNEY GENERAL FOR APPROVAL. COMP. DEC. 691; 5 COMP. GEN. 953. SIMILARLY, SUCH PURCHASES MAY BE MADE WITHOUT THE CONSENT OF THE LEGISLATURES OF THE STATES IN WHICH THE LANDS ARE LOCATED. (HOWEVER, SOME STATUTES AUTHORIZING THE ACQUISITION OF LAND SPECIFICALLY REQUIRE THE CONSENT OF THE STATE LEGISLATURES, AND THE APPROVAL OF TITLE BY THE ATTORNEY GENERAL, AS PREREQUISITES TO THE MAKING OF PURCHASES PURSUANT TO SUCH AUTHORITY; E.G., MIGRATORY BIRD CONSERVATION ACT (45 STAT. 1222) SEE KOHL ET AL. V. UNITED STATES, 91 U.S. 367, 374; FORT LEAVENWORTH R.R. CO. V. LOWE, 114 U.S. 525, 530-531. ALSO, IT IS NOT NECESSARY, IN CONNECTION WITH SUCH PURCHASES, TO REQUIRE THE GRANTORS TO FURNISH THE NECESSARY EVIDENCES OF TITLE FREE OF EXPENSE TO THE GOVERNMENT, BUT THE GOVERNMENT AGENCY WHICH IS ACQUIRING THE LAND MAY DEFRAY THE COST OF PREPARING OR PROCURING EVIDENCES OF TITLE. 8 COMP. DEC. 212; 8 COMP. GEN. 308.

IT IS NOTED THAT YOUR LATEST DECISION WITH RESPECT TO THE APPLICABILITY OF SECTION 355 OF THE REVISED STATUTES TO THE PURCHASE OF LAND UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT IS BASED UPON AN OPINION OF THE ATTORNEY GENERAL TO THE SECRETARY OF AGRICULTURE, UNDER DATE OF JULY 6, 1937 (39 OPS.ATTY.GEN., ADVANCE SHEET OP.NO. 16). THE OPINION OF THE ATTORNEY GENERAL IS TO THE EFFECT THAT, IN THE ACQUISITION OF LANDS UNDER TITLE VII OF THE ACT OF JUNE 15, 1935 (39 STAT. 378), NO PAYMENTS SHALL BE MADE FOR THE TRACTS ACQUIRED UNTIL AFTER APPROVAL OF THE TITLES BY THE ATTORNEY GENERAL. THE BASIS OF THE OPINION IS THAT TITLE VII OF THE ACT OF JUNE 15, 1935, MUST BE READ IN CONNECTION WITH, AND CONSIDERED AS AN APPROPRIATION FOR THE PURPOSES OF, THE MIGRATORY BIRD CONSERVATION ACT, WHICH SPECIFICALLY REQUIRES THE APPROVAL BY THE ATTORNEY GENERAL OF TITLES TO ALL LAND PURCHASED UNDER THE AUTHORITY OF THE LATTER ACT. ALTHOUGH IT WAS NOT NECESSARY FOR THE DETERMINATION OF THE QUESTION BEFORE HIM, THE ATTORNEY GENERAL WENT ON TO STATE THAT, INASMUCH AS TITLE VII "SAYS THAT SUCH LANDS ARE TO BE USED, AMONG OTHER THINGS,"TO ERECT AND CONSTRUCT THEREON AND IN CONNECTION THEREWITH SUCH BUILDINGS * * * AS MAY BE NECESSARY," " SUCH PURPOSE,"FIXED BY CONGRESS, CANNOT BE CHANGED BY THE INTENTION, PRESENT OR FUTURE, OF THE PURCHASING AUTHORITY; " THEREFORE, THE APPROVAL OF TITLE BY THE ATTORNEY GENERAL IS ALSO REQUIRED BY SECTION 355 OF THE REVISED STATUTES. IT IS UPON THIS PORTION OF THE ATTORNEY GENERAL'S OPINION THAT YOUR DECISION OF OCTOBER 24 IS BASED.

THIS DEPARTMENT IS UNABLE TO FIND ANY PROVISION IN THAT PORTION OF TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT AUTHORIZING THE PURCHASE OF SUBMARGINAL LAND WHICH WOULD WARRANT A CONSTRUCTION TO THE EFFECT THAT THIS STATUTE "SAYS THAT SUCH LANDS ARE TO BE USED" TO CONSTRUCT PUBLIC BUILDINGS THEREON, AND THAT SUCH PURPOSE HAS BEEN "FIXED BY CONGRESS.' WILL BE NOTED THAT THE SECRETARY IS MERELY AUTHORIZED, IN ONE SUBSECTION, TO ACQUIRE LAND, AND IN ANOTHER SUBSECTION TO CONSTRUCT UPON ANY PROPERTY SO ACQUIRED SUCH "STRUCTURES" AS MAY BE NEEDED.

ACTUALLY, NO BUILDING OF ANY SORT WILL CONSTRUCTED UPON THE GREAT MAJORITY OF THE TRACTS OF LAND ACQUIRED PURSUANT TO THE AUTHORITY CONTAINED IN TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT. HOWEVER, RECREATIONAL BUILDINGS, LODGES, CABINS, BATHHOUSES, AND BOATHOUSES WILL BE CONSTRUCTED UPON SOME OF THESE TRACTS. IT IS THE VIEW OF THIS DEPARTMENT THAT NONE OF THESE STRUCTURES IS A "PUBLIC BUILDING," AS THAT TERM IS USED IN SECTION 355 OF THE REVISED STATUTES ALTHOUGH THE DEPARTMENT HAS PLANNED TO SUBMIT THE TITLES TO THESE TRACTS TO THE ATTORNEY GENERAL FOR APPROVAL. SECTION 355 OF THE REVISED STATUTES SPECIFICALLY ENUMERATES "ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY YARD, CUSTOMHOUSE, LIGHTHOUSE," AND THEN ADDS "OR OTHER PUBLIC BUILDING OF ANY KIND WHATEVER.' OBVIOUSLY, CONGRESS DID NOT INTEND THAT THIS SECTION SHOULD APPLY TO ALL CONSTRUCTION. THE SPECIFIC ENUMERATION OF CERTAIN BUILDINGS LIMITS THE SUCCEEDING GENERAL EXPRESSION,"OTHER PUBLIC BUILDING OF ANY KIND WHATEVER," IN ACCORDANCE WITH THE FAMILIAR PRINCIPLE OF EJUSDEM GENERIS, TO BUILDINGS OF A KIND SIMILAR TO THOSE SPECIFICALLY ENUMERATED. THIS VIEW IS SUPPORTED BY THE FACT THAT SECTION 355 OF THE REVISED STATUTES WAS INSERTED, AS SECTION 255, IN THE U.S.C. IN TITLE 40, CHAP. 3, ENTITLED "PUBLIC BUILDINGS AND WORKS GENERALLY," AND THAT THE REMAINING SECTIONS OF CHAPTER 3, TITLE 40, DEAL WITH PUBLIC BUILDINGS OF THE TYPE SPECIFICALLY ENUMERATED IN SECTION 255 (R.S. 355).

IN THIS CONNECTION, REFERENCE IS MADE TO SECTION 1 OF THE ACT OF JULY 1, 1898 (30 STAT. 614), PERTAINING TO PUBLIC BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA, WHICH PROVIDES:

"THAT ALL COURTHOUSES, CUSTOMHOUSES, POST OFFICES, APPRAISER'S STORES, BARGE OFFICES, SUBTREASURIES, AND OTHER PUBLIC BUILDINGS OUTSIDE OF THE DISTRICT OF COLUMBIA AND OUTSIDE OF MILITARY RESERVATIONS WHICH HAVE BEEN HERETOFORE PURCHASED OR ERECTED, OR ARE AT PRESENT IN THE COURSE OF CONSTRUCTION, OR WHICH MAY HEREAFTER BE ERECTED OR PURCHASED OUT OF ANY APPROPRIATION UNDER THE CONTROL OF THE TREASURY DEPARTMENT, TOGETHER WITH THE SITE OR SITES THEREOF, ARE HEREBY EXPRESSLY DECLARED TO BE UNDER THE EXCLUSIVE JURISDICTION AND CONTROL AND IN THE CUSTODY OF THE SECRETARY OF THE TREASURY, WHO SHALL HAVE FULL POWER TO TAKE POSSESSION OF AND ASSIGN AND REASSIGN ROOMS THEREIN TO SUCH FEDERAL OFFICIALS, CLERKS, AND EMPLOYEES AS IN HIS JUDGMENT AND DISCRETION SHOULD BE FURNISHED WITH OFFICES OR ROOMS THEREIN.'

IT WOULD APPEAR THAT, IN ENACTING THE QUOTED LEGISLATION, CONGRESS HAD IN MIND TYPES OF BUILDINGS SIMILAR TO THOSE ENUMERATED IN SECTION 355 OF THE REVISED STATUTES, AND INTENDED TO PLACE UNDER THE CONTROL OF THE TREASURY DEPARTMENT ALL PUBLIC BUILDINGS, AS THAT TERM IS USED IN SECTION 355, EXCEPT PUBLIC BUILDINGS IN THE DISTRICT OF COLUMBIA AND INSIDE MILITARY RESERVATIONS. CONGRESS HAVING ENUMERATED AS PUBLIC BUILDINGS CERTAIN SIMILAR TYPES OF BUILDINGS IN BOTH SECTION 355 AND SECTION 1 OF THE ACT OF JULY 1, 1898, QUOTED ABOVE, AND HAVING PROVIDED THAT PUBLIC BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA AND OUTSIDE MILITARY RESERVATIONS SHALL BE UNDER THE CONTROL OF THE TREASURY DEPARTMENT, IT WOULD ORDINARILY SEEM THAT, WHEN CONGRESS AUTHORIZES AN AGENCY OF THE GOVERNMENT, OTHER THAN THE TREASURY DEPARTMENT, TO ERECT AND CONTROL STRUCTURES OUTSIDE THE DISTRICT OF COLUMBIA AND OUTSIDE OF MILITARY RESERVATIONS, IT IS THE INTENTION OF CONGRESS THAT SUCH STRUCTURES ARE NOT TO BE REGARDED AS PUBLIC BUILDINGS, AS THAT TERM IS USED IN SECTION 355 OF THE REVISED STATUTES AND IN SECTION 1 OF THE ACT OF JULY 1, 1898.

THIS VIEW IS STRENGTHENED BY SECTIONS 35 AND 33 OF THE ACT OF JUNE 25, 1910 (36 STAT. 699; 40 U.S.C.A., SECTIONS 265 AND 267), WHICH PROVIDE AS FOLLOWS:

"PLANS BY TREASURY DEPARTMENT FOR BUILDINGS UNDER OTHER EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS.--- THE SECRETARY OF THE TREASURY MAY, IN HIS DISCRETION, UPON THE REQUEST OF THE HEAD OF ANY OTHER EXECUTIVE DEPARTMENT, OR ESTABLISHMENT OF THE GOVERNMENT NOT UNDER ANY EXECUTIVE DEPARTMENT, CAUSE THE PLANS, DRAWINGS, DESIGNS, SPECIFICATIONS, AND ESTIMATES TO BE PREPARED IN THE OFFICE OF THE SUPERVISING ARCHITECT, FOR ANY BUILDING OR BUILDINGS FOR GOVERNMENT ALL PURPOSES WHICH THE HEAD OF ANY OTHER EXECUTIVE DEPARTMENT OR ESTABLISHMENT NOT UNDER AN EXECUTIVE DEPARTMENT MAY BE AUTHORIZED TO HAVE CONSTRUCTED * * *.'

"RESTRICTIONS ON BUILDINGS; APPROVAL OF SKETCH PLANS; CHANGES; LIMIT OF COST.--- NO MONEY SHALL BE EXPENDED UPON ANY PUBLIC BUILDING UNTIL AFTER SKETCH PLANS SHOWING THE TENTATIVE DESIGN AND ARRANGEMENT OF SUCH BUILDING, TOGETHER WITH OUTLINE DESCRIPTION AND DETAILED ESTIMATES OF THE COST THEREOF SHALL HAVE BEEN MADE BY THE SUPERVISING ARCHITECT OF THE TREASURY DEPARTMENT (EXCEPT WHEN OTHERWISE AUTHORIZED BY LAW) AND SAID SKETCH PLANS AND ESTIMATES SHALL HAVE BEEN APPROVED BY THE SECRETARY OF THE TREASURY AND THE HEAD OF EACH EXECUTIVE DEPARTMENT WHO WILL HAVE OFFICIALS LOCATED IN SUCH BUILDING; BUT SUCH APPROVAL SHALL NOT PREVENT SUBSEQUENT CHANGES IN THE DESIGN, ARRANGEMENTS, MATERIALS, OR METHODS OF CONSTRUCTION OR COST WHICH MAY BE FOUND NECESSARY OR ADVANTAGEOUS * * *.'

HERE CONGRESS HAS SPECIFICALLY DIFFERENTIATED BETWEEN BUILDINGS WHICH ARE UNDER THE CONTROL OF THE DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT OTHER THAN THE TREASURY DEPARTMENT, ON THE ONE HAND, AND PUBLIC BUILDINGS, ON THE OTHER HAND. IN THE FIRST INSTANCE, THE PLANS AND SPECIFICATIONS ARE NOT REQUIRED TO BE DRAWN BY THE SUPERVISING ARCHITECT OF THE TREASURY, ALTHOUGH THIS SERVICE MAY BE REQUESTED BY THE DEPARTMENT OR ESTABLISHMENT THAT IS ERECTING A STRUCTURE, AND THE SECRETARY OF THE TREASURY MAY GRANT OR DENY THE REQUEST. IN THE CASE OF PUBLIC BUILDINGS, PLANS MUST BE PREPARED BY THE SUPERVISING ARCHITECT AND APPROVED BY THE SECRETARY OF THE TREASURY. ATTENTION IS CALLED TO THE LAND PROGRAM WHICH WAS INAUGURATED AND CARRIED ON BY THE FORMER FEDERAL EMERGENCY RELIEF ADMINISTRATION UNDER SECTION 203 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT (48 STAT. 195). IN ACCORDANCE WITH THE STATUTORY AUTHORITY TO ACQUIRE LAND AND TO CONSTRUCT THEREON PUBLIC-WORKS PROJECTS, THE FEDERAL EMERGENCY RELIEF ADMINISTRATION ACQUIRED LARGE ACREAGES OF LAND IN VARIOUS PARTS OF THE UNITED STATES AND, UPON SOME OF THE TRACTS SO ACQUIRED, CONSTRUCTED RECREATIONAL BUILDINGS, LODGES, CABINS, BATHHOUSES, BOATHOUSES, AND OTHER SIMILAR BUILDINGS. THIS PROGRAM WAS SUBSEQUENTLY TRANSFERRED TO AND CARRIED ON BY THE FORMER RESETTLEMENT ADMINISTRATION. (SEE THE COMPTROLLER GENERAL'S DECISION DATED FEBRUARY 28, 1936, A-67175, TO THE ADMINISTRATOR OF THE RESETTLEMENT ADMINISTRATION.) IN OTHER WORDS, THE PROGRAM INSTITUTED BY THE FORMER FEDERAL EMERGENCY RELIEF ADMINISTRATION AND LATER CONTINUED BY THE FORMER RESETTLEMENT ADMINISTRATION WAS SIMILAR TO THE PROGRAM WHICH THIS DEPARTMENT IS NOW CONDUCTING UNDER THE AUTHORITY OF TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, EXCEPT THAT, UNDER THE FORMER PROGRAM, LAND COULD ONLY BE PURCHASED TO THE EXTENT THAT IT WAS NEEDED FOR THE CONSTRUCTION OF PUBLIC-WORKS PROJECTS, WHEREAS NO SUCH LIMITATION EXISTS WITH RESPECT TO THE PRESENT PROGRAM. HENCE, UNLESS THE REQUIREMENTS CONTAINED IN SECTION 355 OF THE REVISED STATUTES AND RELATED LEGISLATION WERE APPLICABLE TO THE FORMER PROGRAM, THEY CERTAINLY WOULD NOT BE APPLICABLE TO THE PRESENT PROGRAM.

IN THIS CONNECTION, IT WILL BE RECALLED THAT THE PROGRAM OF THE FEDERAL EMERGENCY RELIEF ADMINISTRATION AND THE RESETTLEMENT ADMINISTRATION WAS CARRIED ON WITHOUT REGARD TO CERTAIN LIMITATIONS CONTAINED IN SECTION 355 OF THE REVISED STATUTES AND RELATED LEGISLATION. FOR EXAMPLE, THE GENERAL ACCOUNTING OFFICE PASSED FOR PAYMENT LARGE NUMBERS OF VOUCHERS, TRANSMITTED BY THE FEDERAL EMERGENCY RELIEF ADMINISTRATION AND THE RESETTLEMENT ADMINISTRATION, COVERING THE PURCHASE OF ABSTRACTS OF TITLE BY THESE AGENCIES NOTWITHSTANDING THE PROVISIONS OF THE ACT OF MARCH 2, 1889, PREVIOUSLY QUOTED, TO THE EFFECT THAT GRANTORS OF SITES FOR PUBLIC BUILDINGS SHALL BE REQUIRED TO FURNISH, FREE OF EXPENSE TO THE GOVERNMENT, ALL REQUISITE ABSTRACTS OR OTHER EVIDENCES OF TITLE. THE GENERAL ACCOUNTING OFFICE ALSO APPROVED FOR PAYMENT VOUCHERS COVERING THE PURCHASE PRICE OF THE VARIOUS TRACTS OF LAND ACQUIRED DURING THE PROGRAM, WITHOUT REQUIRING PROOF THAT THE VARIOUS STATES HAD CONSENTED TO THE ACQUISITION OF THESE LANDS BY THE UNITED STATES, WHICH WOULD HAVE BEEN A PREREQUISITE IF SECTION 355 OF THE REVISED STATUTES HAD BEEN APPLICABLE TO SUCH PURCHASES. AS A MATTER OF FACT, THE DEPARTMENT OF JUSTICE, IN CONDEMNATION ACTIONS TO ACQUIRE LANDS IN CONNECTION WITH THE PROGRAM, SUCCESSFULLY ARGUED TO THE COURTS THAT STATE CONSENT WAS NOT NECESSARY. UNITED STATES V. 546.03 ACRES, MORE OR LESS OF LAND, ETC., 22 F.SUPP. 775; UNITED STATES V. 458.95 ACRES OF LAND, ETC., 22 F.SUPP. 1017. HENCE IT IS APPARENT THAT BOTH THE GENERAL ACCOUNTING OFFICE AND THE DEPARTMENT OF JUSTICE WERE OF THE OPINION THAT THE LIMITATIONS CONTAINED IN SECTION 355 OF THE REVISED STATUTES AND RELATED LEGISLATION WERE NOT APPLICABLE TO THE LANDS ACQUIRED PURSUANT TO THE PROGRAM OF THE FEDERAL EMERGENCY RELIEF ADMINISTRATION AND THE RESETTLEMENT ADMINISTRATION, DESPITE THE SPECIFIC PREREQUISITE THAT LANDS COULD ONLY BE PURCHASED IN CONNECTION WITH PUBLIC- WORKS PROJECTS.

RETURNING TO A CONSIDERATION OF THE SUBMARGINAL LAND PROGRAM AUTHORIZED BY TITLE III OF THE BANKHEAD-JONES FARM-TENANT ACT, ATTENTION IS CALLED TO THE FACT THAT MORE THAN 3,000 ACCEPTED OPINIONS FOR THE ACQUISITION OF LANDS PURSUANT TO TITLE III HAVE BEEN FILED WITH THE GENERAL ACCOUNTING OFFICE. THESE OPTIONS UNIFORMLY CONTAIN A PROVISION TO THE EFFECT THAT THE ABSTRACT OF TITLE SHALL BE PROCURED AT THE EXPENSE OF THE GOVERNMENT. YOUR OFFICE HAS NEVER QUESTIONED THE VALIDITY OF THIS PROVISION OF THE CONTRACT AND HAS ALREADY APPROVED THE PAYMENT OF NUMEROUS VOUCHERS SUBMITTED BY COMMERCIAL ABSTRACTORS COVERING ABSTRACTS OF TITLE PREPARED FOR THE GOVERNMENT WITH RESPECT TO LAND ACQUISITIONS UNDER TITLE III. THE LIMITATIONS CONTAINED IN SECTION 355 OF THE REVISED STATUTES AND RELATED LEGISLATION WERE APPLICABLE TO THE ACQUISITION OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM-TENANT ACT, THE PAYMENT OF THESE VOUCHERS WOULD HAVE BEEN IMPROPER. IN ADDITION, BOTH THE ATTORNEY GENERAL AND THE GENERAL ACCOUNTING OFFICE HAVE APPROVED ACQUISITIONS UNDER TITLE III WITHOUT REGARD TO THE QUESTION OF STATE CONSENT TO SUCH ACQUISITIONS. STATE CONSENT WOULD HAVE BEEN ESSENTIAL IF SECTION 355 OF THE REVISED STATUTES WERE APPLICABLE TO THESE ACQUISITIONS.

PURSUANT TO THE AUTHORIZATION AND DIRECTION OF CONGRESS "TO DEVELOP A PROGRAM OF LAND CONSERVATION AND LAND UTILIZATION, INCLUDING THE RETIREMENT OF LANDS WHICH ARE SUBMARGINAL OR NOT PRIMARILY SUITABLE FOR CULTIVATION," THIS DEPARTMENT HAS MADE PLANS FOR PROJECTS THROUGHOUT THE UNITED STATES WHICH WILL INVOLVE SEVERAL MILLION ACRES OF SUBMARGINAL LAND. IN THE FURTHERANCE OF THESE PROJECTS, OPTIONS TO PURCHASE LAND HAVE BEEN OBTAINED AND CONTRACTS OF PURCHASE HAVE BEEN ENTERED INTO. SINCE THE DEPARTMENT DOES NOT DESIRE TO OBTAIN EXCLUSIVE JURISDICTION OVER THESE LANDS, THE PROJECTS HAVE BEEN PLANNED WITHOUT REGARD TO THE CONSENT OF THE LEGISLATURES OF THE SEVERAL STATES IN WHICH THE PROJECTS ARE LOCATED. ALSO, SINCE THE OWNERS OF THESE SUBMARGINAL LANDS ARE, FOR MOST PART, FINANCIALLY UNABLE TO FURNISH ABSTRACTS OR OTHER EVIDENCES OF TITLE WITHOUT EXPENSE TO THE GOVERNMENT, THE OPTIONS TO PURCHASE LAND AND THE CONTRACTS OF PURCHASE CONTEMPLATE THAT THE GOVERNMENT WILL DEFRAY THIS COST. THEREFORE, THE CARRYING OUT OF THIS IMPORTANT PROGRAM WOULD BE GREATLY HANDICAPPED BY YOUR DECISION OF OCTOBER 24, 1938, TO THE EFFECT THAT ALL LAND ACQUISITIONS UNDER TITLE III OF THE BANKHEAD-JONES FARM- TENANT ACT MUST BE HANDLED ON THE ASSUMPTION THAT PUBLIC BUILDINGS ARE TO BE ERECTED UPON ALL THE TRACTS PURCHASED.

IT IS REQUESTED, THEREFORE, THAT YOU REAFFIRM THE POSITION TAKEN IN YOUR DECISION DATED JULY 12, 1938 (A-51626), TO THE EFFECT THAT SECTION 355 OF THE REVISED STATUTES IS ONLY APPLICABLE TO THESE TRACTS UPON WHICH PUBLIC BUILDINGS ARE ACTUALLY TO BE ERECTED, AND THAT YOU FURTHER HOLD THAT, AS STRUCTURES OF THE SORT MENTIONED HEREIN AS BEING PLANNED UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT (RECREATIONAL BUILDINGS, LODGES, CABINS, BATHHOUSES, AND BOATHOUSES) ARE NOT PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355 OF THE REVISED STATUTES, PURCHASES UNDER TITLE III OF PARTICULAR TRACTS UPON WHICH SUCH STRUCTURES ARE TO BE ERECTED NEED NOT BE IN CONFORMITY WITH THE PROVISIONS OF SECTION 355 OF THE REVISED STATUTES AND RELATED LEGISLATION.

RESPECTING A-51626, JULY 12, 1938, MENTIONED IN THE LAST PARAGRAPH OF YOUR LETTER, YOU WERE ADVISED UNDER DATE OF AUGUST 11, 1938, THAT WHAT WAS THERE SAID RESPECTING THE USE OF A PROPOSED VOUCHER FORM WAS NOT TO BE UNDERSTOOD AS INDICATING A VIEW THAT ANY LANDS MIGHT BE ACQUIRED UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT WITHOUT REGARD TO SECTION 355, REVISED STATUTES.

SECTION 355, REVISED STATUTES, WAS DERIVED FROM THE JOINT RESOLUTION OF SEPTEMBER 11, 1841, 5 STAT. 468, AND OVER THE PERIOD OF ITS EXISTENCE--- ALMOST A CENTURY--- THE LEGISLATION HAS GENERALLY BEEN REGARDED AS REQUIRING THE ATTORNEY GENERAL'S APPROVAL OF LAND TITLES BEFORE PURCHASE BY THE UNITED STATES, EXCEPT WHEN THE CONGRESS INDICATED OTHERWISE, IRRESPECTIVE OF THE CHARACTER OF THE IMPROVEMENTS CONTEMPLATED OR AUTHORIZED TO BE PLACED ON THE LAND, AND ALTHOUGH STATE CONSENT WAS NOT REGARDED AS REQUIRED BEFORE PURCHASE BUT ONLY TO OBTAIN EXCLUSIVE JURISDICTION, WHERE THAT WAS REQUISITE, BEFORE IMPROVEMENT OF THE PROPERTY.

IN THIS CONNECTION, ATTORNEY GENERAL BATES, IN HIS OPINION OF OCTOBER 4, 1862, 10 OP.ATTY.GEN. 353, HELD IN A CASE INVOLVING THE VALIDITY OF TITLE OF LAND PROPOSED TO BE PURCHASED THAT THE SAID JOINT RESOLUTION OF SEPTEMBER 11, 1841, REQUIRED THE APPROVAL OF TITLE BY THE ATTORNEY GENERAL BEFORE PAYMENT OF THE PURCHASE MONEY, ALTHOUGH HE HAD HELD THE YEAR BEFORE, 10 OP.ATTY.GEN. 34, IN A CASE WHERE THE TITLE TO A POST-OFFICE SITE HAD ALREADY BEEN APPROVED BY THE ATTORNEY GENERAL, THAT THE SAID JOINT RESOLUTION DID NOT FORBID THE PAYMENT OF THE PURCHASE PRICE PRIOR TO THE CONSENT OF THE STATE LEGISLATURE TO CONFER EXCLUSIVE JURISDICTION ON THE UNITED STATES, BUT DID PROHIBIT THE EXPENDITURE OF PUBLIC MONEY FOR THE ERECTION OF BUILDINGS UPON THE SITE UNTIL SUCH STATE CONSENT WAS OBTAINED. IN THE OPINION OF 1862, INVOLVING THE MATTER OF TITLE VALIDITY, AND NOT STATE CONSENT, IT WAS SAID, 10 OP.ATTY.GEN. 353, 354, RESPECTING THE PROVISION IN THE JOINT RESOLUTION OF 1841 REQUIRING APPROVAL OF TITLES BY THE ATTORNEY GENERAL THAT---

THE PURPOSE OF THIS PROVISION WAS TO PROTECT THE UNITED STATES AGAINST THE EXPENDITURE OF MONEY IN THE PURCHASE OR IMPROVEMENT OF LAND TO WHICH IT ACQUIRED A DOUBTFUL OR INVALID TITLE. NO MONEY IS TO BE PAID UNTIL, IN THE METHOD DESIGNATED, THE TITLE IS ASCERTAINED TO BE VALID. * * *

IN 15 OP.ATTY.GEN. 212, MARCH 27, 1877, INVOLVING A QUESTION SUBMITTED BY THE SECRETARY OF WAR, WHETHER,"UPON THE TITLE BEING DECLARED PERFECT BY THE ATTORNEY GENERAL, CAN PAYMENT OF THE PURCHASE MONEY BE LEGALLY MADE, IN THE ABSENCE OF THE CONSENT TO THE PURCHASE BY THE LEGISLATURE OF THE STATE" FOR A SITE FOR A MOVABLE DAM ON THE OHIO RIVER, THE ATTORNEY GENERAL, CITING 10 OP.ATTY.GEN. 35, SUPRA, HELD THAT SECTION 355, REVISED STATUTES, WHEN CONSIDERED IN CONNECTION WITH SECTION 1838, REVISED STATUTES, DOES NOT REQUIRE CONSENT OF THE STATE PRIOR TO THE PURCHASE, BUT ONLY PRIOR TO EXPENDITURES FOR IMPROVEMENTS.

TWENTY YEARS LATER, IN 1897, THE QUESTION WAS BEFORE THE COMPTROLLER OF THE TREASURY WHETHER MONEY APPROPRIATED FOR THE CONSTRUCTION OF A RIPRAP WALL ON LANDS AT SANDY HOOK, N.J; THERETOFORE PURCHASED BY THE GOVERNMENT, COULD BE EXPENDED FOR THAT PURPOSE PRIOR TO OBTAINING STATE CONSENT TO THE PURCHASE. IN HOLDING THE EXPENDITURE UNAUTHORIZED UNDER SUCH CONDITIONS, THE COMPTROLLER OF THE TREASURY, 3 COMP.DEC. 530, 531, RESPECTING THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, DERIVED FROM THE JOINT RESOLUTION OF 1841, SAID---

UNDER THAT SECTION IT HAS BEEN HELD THAT NO MONEY CAN BE EXPENDED FOR THE PURCHASE OF LAND UNTIL THE OPINION AS TO THE VALIDITY OF THE TITLE HAS BEEN GIVEN (10 OPIN.A.G., 353, 354), ALTHOUGH IT HAS BEEN HELD THAT SUCH PURCHASE CAN BE MADE, NOTWITHSTANDING THE CONSENT OF THE LEGISLATURE THERETO HAS NOT BEEN GIVEN (10 OPIN.A.G., 35; 15 ID., 212; 4 LAWRENCE'S COMP. DEC. 152). IN THIS LATTER OPINION COMPTROLLER LAWRENCE CONSIDERED THE QUESTION AT LEAST DOUBTFUL, BUT CONCLUDED THAT THE CONSTRUCTION PLACED UPON THIS SECTION BY THE ATTORNEYS GENERAL IN THE OPINION ABOVE CITED SHOULD NOT BE CHANGED.

THE LAND PURCHASED IN 1892 WAS NO DOUBT PURCHASED WITHOUT FIRST OBTAINING THE CONSENT OF THE LEGISLATURE THERETO, BECAUSE OF THESE OPINIONS. IF THE MATTER WERE AN ORIGINAL ONE, I SHOULD HAVE SERIOUS DOUBTS AS TO THE LEGALITY OF THIS PRACTICE, BUT CONCUR IN THE CONCLUSION REACHED BY COMPTROLLER LAWRENCE THAT IT IS NOW TOO LATE TO CHANGE THE CONSTRUCTION HERETOFORE PLACED UPON THIS STATUTE.

THUS MORE THAN 40 YEARS AGO IT WAS TAKEN THAT THIS CONSTRUCTION OF THE LEGISLATION HAD EVEN THEN BECOME SO WELL FIXED IN THE LAW AS TO REQUIRE THAT IT BE FOLLOWED, IRRESPECTIVE OF THE DOUBTS WHICH MIGHT BE ENTERTAINED WERE THE MATTER ONE OF ORIGINAL IMPRESSION. RESPECTING THE CHARACTER OF THE IMPROVEMENTS THERE CONTEMPLATED AS BEING WITHIN THE PURVIEW OF THE STATUTE, THE COMPTROLLER SAID, AT PAGE 532---

THE EXACT PURPOSES FOR WHICH THE LAND IN QUESTION WAS PURCHASED AND IS TO BE USED ARE NOT STATED BY THE CHIEF OF ENGINEERS. AS, HOWEVER, THE APPROPRIATION HAS BEEN MADE IN THE FORTIFICATIONS APPROPRIATION ACT, IT IS APPARENT THAT THE LAND IS TO BE USED FOR FORTIFICATION PURPOSES, EVEN IF THE WORDS "PUBLIC BUILDING OF ANY KIND WHATEVER," IN SECTION 355, ARE NOT TO BE CONSTRUED IN A LIBERAL SENSE, SO AS TO INCLUDE PUBLIC WORKS OF ALL KINDS. IT IS BELIEVED THAT THIS SECTION HAS BEEN THUS BROADLY CONSTRUED IN PRACTICE BY ALL THE EXECUTIVE DEPARTMENTS.

COMING DOWN TO MORE RECENT TIMES, BUT FOLLOWING THE DISTINCTION MADE BY ATTORNEY GENERAL BATES MORE THAN 70 YEARS BEFORE BETWEEN THE REQUIREMENT FOR APPROVAL OF TITLE BY THE ATTORNEY GENERAL BEFORE PURCHASE OF THE LAND AND THE REQUIREMENT FOR STATE CONSENT, THE SECRETARY OF THE INTERIOR WAS ADVISED IN THE ATTORNEY GENERAL'S OPINION OF AUGUST 23, 1934, 38 OP.ATTY.GEN. 31, IN PART AS FOLLOWS--

AS POINTED OUT BY ATTORNEY GENERAL BATES (10 OP. 34, 38), CONSENT BY THE STATES IS NOT NECESSARY TO THE ACQUISITION OF VALID TITLE BY THE UNITED STATES, AND IS IMPORTANT ONLY IN THE MATTER OF JURISDICTION BECAUSE OF THE CONSTITUTIONAL PROVISION THAT THE UNITED STATES SHALL EXERCISE EXCLUSIVE JURISDICTION "OVER ALL PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCKYARDS, AND OTHER NEEDFUL BUILDINGS.' THIS PRINCIPLE WAS RECOGNIZED IN THE OPINIONS TO YOU OF OCTOBER 4, 1933 (37 OP. 288), AND JULY 18, 1934, IN WHICH IT WAS EXPRESSLY CONCLUDED THAT CONGRESS DID NOT CONTEMPLATE THE ASSUMPTION OF EXCLUSIVE JURISDICTION OVER LAND PURCHASED FOR RESALE TO PRIVATE PERSONS AS SUBSISTENCE HOMESTEADS SITES, YET, OF COURSE, CONGRESS DID AUTHORIZE THE PURCHASE OF SUCH LAND AND DID AUTHORIZE THE EXPENDITURE OF MONEY THEREON; AND SUCH AUTHORITY, TO THE EXTENT OF ANY CONFLICT, MUST PREVAIL OVER EARLIER GENERAL REQUIREMENTS.

IN THE OPINION TO YOU OF FEBRUARY 7, 1934 (37 OP. 437), CONCERNING THE ACQUISITION OF LANDS BY THE PUBLIC WORKS EMERGENCY HOUSING CORPORATION, IT WAS CONCLUDED THAT SECTION 355 R.S. APPLIED AND REQUIRED "THE WRITTEN OPINION OF THE ATTORNEY GENERAL * * * IN FAVOR OF THE VALIDITY OF THE ITLE; " AND BOTH YOUR DEPARTMENT AND MINE HAVE ACTED UPON THE ASSUMPTION THAT SUCH APPROVAL OF TITLE IS REQUIRED ALSO IN CONNECTION WITH LANDS PURCHASED FOR THE ERECTION OF SUBSISTENCE HOMESTEADS, AS INDICATED IN THE OPINION OF JULY 18, 1934. THIS, HOWEVER, PRESENTS NO CONFLICT WITH THE VIEW THAT CONSENT BY THE STATES IS NOT REQUIRED. VALID TITLE IS NO LESS IMPORTANT BECAUSE RESALE TO PRIVATE INDIVIDUALS IS CONTEMPLATED AND THERE IS NO APPARENT REASON FOR IMPLYING IN THE NATIONAL INDUSTRIAL RECOVERY ACT AN INTENT TO DEPART FROM THE PROVISION OF SECTION 355 R.S. RELATING TO APPROVAL OF TITLE BY THE ATTORNEY GENERAL AS DISTINGUISHED FROM THE SEPARABLE PROVISION RELATING TO CONSENT BY THE STATES.

IT THUS SEEMS CLEARLY ENOUGH SETTLED BY A GREAT MANY YEARS OF ADMINISTRATIVE INTERPRETATION AND PRACTICE THAT THE STATUTE DOES NOT REQUIRE STATE CONSENT PRIOR TO THE PURCHASE OF LAND, ALTHOUGH APPROVAL OF THE TITLE BY THE ATTORNEY GENERAL IS REQUIRED BEFORE PAYMENT OF THE PURCHASE PRICE. IT WOULD TAKE FAR MORE COMPELLING REASONS THAN ARE APPARENT IN THE PRESENT MATTER TO JUSTIFY AT THIS LATE DATE A REVERSAL OF THIS LONG ESTABLISHED RULE TO HOLD, AS URGED, THAT THE PRIOR APPROVAL OF TITLES BY THE ATTORNEY GENERAL IS NOT REQUIRED BECAUSE STATE CONSENT TO THE PURCHASE IS NOT DEEMED ESSENTIAL. IT IS TRUE THAT SUCH REASONING APPEARS TO HAVE BEEN RELIED ON IN 13 OP.ATTY.GEN. 131, WHERE, IN 1869, ATTORNEY GENERAL HOAR ADVISED THE SECRETARY OF WAR THAT---

THE JOINT RESOLUTION OF SEPTEMBER 11, 1841, CONTEMPLATES PURCHASES OF LANDS FOR ALL PUBLIC PURPOSES, AND ESTABLISHES AS A GENERAL RULE APPLICABLE TO THEM, THAT NO PUBLIC MONEY SHALL BE EXPENDED IN THE PURCHASE UNTIL THE OPINION OF THE ATTORNEY GENERAL ON THE VALIDITY OF THE TITLE SHALL BE OBTAINED, AND THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE LANDS ARE SITUATED IS GIVEN. * * * BUT THAT IN THE MATTER THERE INVOLVED, AS THE SECRETARY OF WAR WAS AUTHORIZED BY STATUTE TO ACQUIRE LANDS FOR NATIONAL CEMETERIES EITHER BY PURCHASE OR APPROPRIATION UNDER THE POWER OF EMINENT DOMAIN, THE PRIOR CONSENT OF THE STATE WAS NOT REQUIRED, AND THAT IT FOLLOWED THAT THE OPINION OF THE ATTORNEY GENERAL AS TO THE VALIDITY OF THE TITLE TO BE ACQUIRED, WAS NOT, IN HIS OPINION,"ABSOLUTELY REQUIRED BY LAW," ALTHOUGH HE THOUGHT "IT WOULD BE HIGHLY EXPEDIENT AND PROPER FOR THE SECRETARY OF WAR TO SUBMIT THE TITLE TO BE ACQUIRED TO LANDS DESIGNATED AS NATIONAL CEMETERIES TO THE ATTORNEY GENERAL FOR HIS OPINION" AND THAT "FOR THE SAFETY OF THE GOVERNMENT, AND TO AVOID POSSIBLE CONTROVERSIES AMONG DIFFERENT CLAIMANTS, IT WOULD SEEM TO BE EXPEDIENT THAT THE USUAL COURSE OF INVESTIGATING TITLES SHOULD BE ADOPTED.'

THE CONCLUSION THERE, HOWEVER, THAT APPROVAL OF THE TITLES BY THE ATTORNEY GENERAL IN THAT INSTANCE WAS NOT ABSOLUTELY REQUIRED BY LAW, WAS BASED SQUARELY ON THE PREMISE THAT THE JOINT RESOLUTION OF 1841, REQUIRED STATE CONSENT BEFORE THE PURCHASE OF THE LANDS. BUT THIS WAS NOT THE RULE THERETOFORE OR THEREAFTER FOLLOWED AS TO STATE CONSENT, AND THE CONCLUSION FAILS WITH THE PREMISE. IN LATER CASES IT WAS HELD THAT WHERE THE STATUTE AUTHORIZED THE ACQUISITION OF LAND EITHER BY PURCHASE OR CONDEMNATION, IT WAS UNNECESSARY TO OBTAIN THE ATTORNEY GENERAL'S APPROVAL OF TITLES, BUT THIS WAS PUT ON THE GROUND THAT SUCH STATUTES VESTED IN THE ACQUIRING AGENCIES THE DISCRETION TO DETERMINE WHETHER TO PURCHASE OR TO CONDEMN, AND, AS INCIDENTAL TO THAT DISCRETION, THE AUTHORITY TO DETERMINE WHETHER TITLE WAS SUFFICIENTLY CLEAR TO WARRANT PURCHASE WITHOUT CONDEMNATION, THE VIEW APPARENTLY BEING TAKEN THAT IF TITLE PROVED AT ALL QUESTIONABLE THE DEFECTS WOULD OR COULD BE CURED BY CONDEMNATION PROCEEDINGS, AND THE GOVERNMENT THEREBY PROTECTED. SEE 12 COMP. DEC. 691; 5 COMP. GEN. 953; 10 COMP. GEN. 115. WHILE THERE IS ROOM FOR THE DISTINCTION MADE, SUCH EXCEPTION TO THE GENERAL RULE DOES NOT APPEAR TO BE TOO STRONGLY SUPPORTED BY REASON, AND WERE THE MATTER ONE OF ORIGINAL INTERPRETATION, IT MIGHT WELL BE DOUBTED WHETHER SUCH EXCEPTION IS CLEARLY JUSTIFIED. AT LEAST IT SHOULD NOT BE EXTENDED.

AS HAS ALREADY BEEN POINTED OUT, THE ATTORNEY GENERAL STATED IN 10 OP.ATTY.GEN. 353 (1862) THAT THE PURPOSE OF THIS LEGISLATION WAS TO PROTECT THE UNITED STATES AGAINST THE EXPENDITURE OF MONEY ,IN THE PURCHASE OR IMPROVEMENT OF LAND TO WHICH IT ACQUIRED A DOUBTFUL OR INVALID TITLE; " IN 13 OP.ATTY.GEN. 131 (1869) THAT THE LEGISLATION CONTEMPLATES "PURCHASE OF LANDS FOR ALL PUBLIC PURPOSES; " IN 37 OP.ATTY.GEN. (1934), TO THE SECRETARY OF THE INTERIOR, THAT "BOTH YOUR DEPARTMENT AND MINE HAVE ACTED UPON THE ASSUMPTION THAT SUCH APPROVAL OF TITLE IS REQUIRED (BY 355 R.S.) ALSO IN CONNECTION WITH LANDS PURCHASED FOR THE ERECTION OF SUBSISTENCE HOMESTEADS, AS INDICATED IN THE OPINION OF JULY 18, 1934; " AND THE COMPTROLLER OF THE TREASURY STATED IN 3 COMP. DEC. 530 (1897) THAT "IT HAS BEEN HELD THAT NO MONEY CAN BE EXPENDED FOR THE PURCHASE OF LAND UNTIL THE OPINION (OF THE ATTORNEY GENERAL) AS TO THE VALIDITY OF THE LAND HAS BEEN GIVEN" AND THAT HE BELIEVED THAT THE WORDS "PUBLIC BUILDING OF ANY KIND WHATEVER" IN SECTION 355, REVISED STATUTES, HAD BEEN "BROADLY CONSTRUED IN PRACTICE BY ALL THE EXECUTIVE DEPARTMENTS" SO AS TO "INCLUDE PUBLIC WORKS OF ALL KINDS.'

MOREOVER, IN 28 OP.ATTY.GEN. 413 (1910) AS AMPLIFIED IN 28 OP.ATTY.GEN. 463, THE ATTORNEY GENERAL INFORMED THE SECRETARY OF THE INTERIOR THAT ALTHOUGH DOUBTFUL WHETHER LEASES FOR A NOMINAL CONSIDERATION OF SITES FOR TEMPORARY STRUCTURES FOR MINE RESCUE EXPERIMENTATION WORK WERE PURCHASES WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES, IT WAS ADVISABLE THAT THE TITLES BE SUBMITTED TO THE ATTORNEY GENERAL FOR HIS OPINION SO THAT THE STATUTORY REQUIREMENT "MIGHT BE COMPLIED WITH IN CASE SECTION 355 DID APPLY, AND, SECOND, BECAUSE INDEPENDENT OF THE STATUTE IT WAS DEEMED A WISE PRECAUTION THAT THE TITLE TO THE LANDS SHOULD BE EXAMINED BEFORE IMPROVEMENTS SHOULD BE PLACED THEREON.'

IN 32 OP.ATTY.GEN. 582 (1921) THE ATTORNEY GENERAL APPARENTLY VIEWED THE OPINION 10 OP.ATTY.GEN. 39 SUPRA, AS HOLDING THAT PAYMENT OF THE PURCHASE PRICE COULD BE MADE WITHOUT APPROVAL OF THE TITLE BY THE ATTORNEY GENERAL. AS SHOWN ABOVE, THAT QUESTION WAS NOT INVOLVED IN 10 OP.ATTY.GEN.. 39, THE TITLE THERE HAVING ALREADY BEEN APPROVED BY THE ATTORNEY GENERAL, AND IT WAS DECIDED ONLY THAT CONSENT OF THE STATE WAS NOT REQUIRED BEFORE CONSUMMATING THE PURCHASE. BUT VIEWING THE PRIOR OPINION OTHERWISE, THE ATTORNEY GENERAL SAID, NEVERTHELESS, AT 32 OP.ATTY.GEN. 582, 584---

* * * IF THE VIEW FIRST SET FORTH IS CORRECT, IT IS HARD FOR ME TO CONCEIVE WHAT MOTIVE SHOULD PROMPT CONGRESS TO INSIST THAT THE ATTORNEY GENERAL MUST REPORT IN FAVOR OF THE VALIDITY OF THE TITLE BEFORE IMPROVEMENTS MAY BE ERECTED, AND AT THE SAME TIME THROW AWAY THIS SAFEGUARD IN THE ACQUISITION OF THE LAND ITSELF. * * *

WHATEVER THE TRUE INTERPRETATION OF THIS SECTION MAY BE, I THINK THE PRACTICE HAS BEEN, FOR MANY YEARS AT ANY RATE, TO HAVE THE TITLE PASSED UPON BY THE ATTORNEY GENERAL BEFORE PAYING THE PURCHASE PRICE. IF FEEL DISINCLINED TO DISREGARD THIS PRACTICE, AND I AM UNWILLING TO DISPOSE OF YOUR INQUIRY ON THE NARROW GROUND THAT THIS SECTION, OR MORE ACCURATELY SPEAKING, THE JOINT RESOLUTION OUT OF WHICH IT GREW, WAS AT ONE TIME INTERPRETED TO MEAN THAT THE OPINION OF THE ATTORNEY GENERALIN SUPPORT OF THE TITLE IS NOT AN ESSENTIAL PREREQUISITE TO THE PAYMENT OF THE PURCHASE PRICE.

IF, THEN, I ASSUME, AS I THINK I MUST, THAT UNDER THE SECTION JUST MENTIONED MY OPINION ON THE TITLE MUST PRECEDE THE PAYMENT OF THE PURCHASE PRICE, * * *

IN 37 OP.ATTY.GEN. 95 (1933), AT PAGE 97, THE ATTORNEY GENERAL QUOTED FROM AN OPINION OF THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE, IN PART AS FOLLOWS:

SINCE THE ESTABLISHMENT OF THE UNITED STATES DEPARTMENT OF AGRICULTURE IN 1862, IT HAS ALWAYS BEEN THE CUSTOM FOR THE HEAD OF THE DEPARTMENT, BEFORE PAYING FOR LANDS OBTAINED FOR THE USE OF THE UNITED STATES UNDER THE PROVISIONS OF THE SEVERAL ACTS OF CONGRESS REQUIRING HIM TO ACQUIRE THE SAME, TO FORWARD TO THE ATTORNEY GENERAL FOR EXAMINATION AN ABSTRACT OF THE TITLE THERETO. THEREAFTER, UPON RECEIPT OF AN OPINION FROM THE ATTORNEY GENERAL APPROVING SUCH TITLES, THE DISBURSING CLERK OF THE DEPARTMENT, BY DIRECTION OF THE SECRETARY, HAS THEN MADE SETTLEMENT FOR THE LANDS ACQUIRED, * * *

IN 37 OP.ATTY.GEN. 437 (1934), THE ATTORNEY GENERAL ADVISED THE SECRETARY OF THE INTERIOR IN PART AS FOLLOWS (P. 444):

* * * IN VIEW OF THE BROAD PROVISIONS OF SECTION 355, HOWEVER, AND SINCE THE LANDS TO BE PURCHASED ARE TO BE USED FOR THE ERECTION THEREON OF BUILDINGS ERECTED AT PUBLIC COST AND, THEREFORE, AFFECTED WITH A PUBLIC INTEREST, AND BECAUSE THE STATUTE IS SILENT IN THE MATTER, IT IS MY JUDGMENT THAT THE OPINION OF THE ATTORNEY GENERAL IS REQUIRED WHEN LAND IS PURCHASED FOR USE IN CONNECTION WITH THE PROPOSED SLUM CLEARANCE PROJECT BEFORE PAYMENT THEREFOR CAN BE MADE.

IN OPINION OF JULY 6, 1937, ADDRESSED TO YOU, THE ATTORNEY GENERAL SAID:

CONGRESS HAS FROM TIME TO TIME ENACTED STATUTES AUTHORIZING THE ACQUISITION OF LANDS FOR PARTICULAR PURPOSES WITHOUT REGARD TO THE PROVISIONS OF SECTION 355. SUCH STATUTES, HOWEVER, HAVE SUSPENDED THE OPERATION OF SECTION 355 BECAUSE OF EXISTING EMERGENCIES. IN THE ABSENCE OF EMERGENCIES, THE CONGRESS HAS SHOWN EXTREME RELUCTANCE, IN THE MATTER OF LAND ACQUISITION, TO DISPENSE WITH THE OPINION OF THE ATTORNEY GENERAL UPON THE VALIDITY OF THE TITLE.

IN 17 COMP. DEC. 252 (1910) IT WAS POINTED OUT THAT BEFORE PAYMENT COULD BE MADE FOR LAND PURCHASED FOR MILITIA RIFLE RANGES THE TITLE MUST BE APPROVED BY THE ATTORNEY GENERAL "AS REQUIRED BY SECTION 355 OF THE REVISED STATUTES.'

IN 1 COMP. GEN. 625 (1922), COMPTROLLER GENERAL MCCARL, CITING 28 OP.ATTY.GEN. 413, STATED BROADLY THAT "THE PROVISIONS OF THIS SECTION (355 R.S.) ARE APPLICABLE TO ALL LAND PURCHASED BY THE UNITED STATES FOR WHATEVER PURPOSE," AND REPEATED THIS STATEMENT IN 9 COMP. GEN. 421 (1930).

IN 15 COMP. GEN. 359 (1935) IT WAS SAID:

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. * * *

* * * 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.

AND IT WAS HELD, IN EFFECT, THAT TITLES TO LAND PURCHASED IN PUERTO RICO FOR REFORESTATION PURPOSES SHOULD BE APPROVED BY THE ATTORNEY GENERAL BEFORE PAYMENT OF THE PURCHASE PRICE. THIS DECISION IS NOT REGARDED AS RESTING ON CONSIDERATIONS MERELY OF ADMINISTRATIVE POLICY, AS MIGHT BE INFERRED, BUT IN THE LIGHT OF MANY YEARS OF INTERPRETATION AND PRACTICE, THAT THE MATTER WAS NOT PROPERLY FOR DECISION ON A "STRICT TECHNICAL" BASIS, AND THAT DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE BROAD LEGISLATIVE POLICY OF THE STATUTE.

THAT THERE HAS BEEN NO CHANGE IN THE LONG-ESTABLISHED GENERAL POLICY OF THE CONGRESS TO HAVE THE ATTORNEY GENERAL EXAMINE LAND TITLES FOR ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT IS CLEARLY SHOWN BY THE PROVISION INCLUDED IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR, 52 STAT. 269, AS FOLLOWS:

FUNDS AVAILABLE TO ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR OTHER FEDERAL AGENCY FOR THE ACQUISITION OF LANDS SHALL BE AVAILABLE, IN SUCH AMOUNTS AS THE DIRECTOR OF THE BUREAU OF THE BUDGET MAY DETERMINE TO BE NECESSARY, FOR TRANSFER TO THE DEPARTMENT OF JUSTICE FOR PAYMENT OF SALARIES AND OTHER EXPENSES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE NECESSARY FOR THE EXAMINATION OF TITLE AND PROSECUTION OF CONDEMNATION PROCEEDINGS WITH RESPECT TO SUCH LANDS, * * * AND, FURTHER, BY THE PROVISION IN SECTION 1 (8) OF THE EMERGENCY RELIEF ACT OF JUNE 21, 1938, 52 STAT. 810, FOR THE CURRENT FISCAL YEAR, APPROPRIATING DIRECTLY TO THE DEPARTMENT OF JUSTICE THE AMOUNT OF $1,250,000 FOR ADMINISTRATIVE EXPENSES IN CARRYING OUT THE PROVISIONS OF SECTION 5 OF THE EMERGENCY RELIEF ACT OF APRIL 8, 1935, 49 STAT. 118, AUTHORIZING THE PRESIDENT TO ACQUIRE ANY REAL PROPERTY, OR INTERESTS THEREIN, FOR THE BROAD PURPOSES OF THAT EARLIER ACT. BUT EVEN IF ALL THESE CONSIDERATIONS OF ALMOST A CENTURY OF ADMINISTRATIVE INTERPRETATION AND PRACTICE AND OF LEGISLATIVE POLICY MIGHT PROPERLY BE DISREGARDED AND THE PRESENT MATTER DECIDED SOLELY ON THE NARROW GROUND OF WHETHER THE STRUCTURES AUTHORIZED OR CONTEMPLATED TO BE ERECTED ON THE LANDS IN QUESTION, OR SOME OF THEM, FALL STRICTLY WITHIN THE WORDS "OR OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER," APPEARING IN SECTION 355, REVISED STATUTES, THERE WOULD BE NO SOUND REASON TO DEPART FROM THE PRINCIPLES APPLIED BY THE FORMER COMPTROLLER GENERAL IN HIS DECISION OF AUGUST 15, 1929, 9 COMP. GEN. 75, ADDRESSED TO THE SECRETARY OF AGRICULTURE, OR THOSE ENUNCIATED BY THE ATTORNEY GENERAL IN HIS OPINION OF JULY 6, 1937, ADDRESSED TO YOU. IN THE SAID DECISION OF AUGUST 15, 1929, IT WAS HELD THAT THE PURCHASE OF LAND BY THE FOREST SERVICE FOR A RANGER STATION WAS WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES, AND THAT PAYMENT FOR THE LAND WAS NOT AUTHORIZED UNTIL THE ATTORNEY GENERAL HAD APPROVED THE TITLE. IT WAS SAID:

YOU EXPRESS THE VIEW ALSO, THAT THE BUILDINGS ERECTED UPON A RANGER STATION, BY REASON OF THEIR UNSUBSTANTIAL OR CHEAP CONSTRUCTION AND THE NECESSITY OF MOVING THE STATIONS FROM TIME TO TIME, ARE OF SUCH CHARACTER AS NOT TO BE CONSIDERED PUBLIC BUILDINGS WITHIN THE PURVIEW OF SAID SECTION 355, WHICH SECTION, YOU SUGGEST, SHOULD BE LIMITED TO PERMANENT BUILDINGS. SAID SECTION, HOWEVER, SPECIFICALLY REFERS TO PUBLIC BUILDINGS "OF ANY KIND WHATEVER," WHICH LANGUAGE DOES NOT PERMIT OF THE CONSTRUCTION SUGGESTED BY YOU. IN CONSTRUING THE TERM "PUBLIC BUILDINGS" AS USED IN SECTION 3733, REVISED STATUTES, IT HAS BEEN HELD REPEATEDLY THAT THE DETERMINATION OF WHETHER STRUCTURES ARE PUBLIC BUILDINGS WITHIN THE PURVIEW THEREOF DOES NOT DEPEND UPON THE CHARACTER OF THEIR CONSTRUCTION, AND THAT ANY STRUCTURE IN THE FORM OF A BUILDING NOT CLEARLY OF A TEMPORARY CHARACTER IS A PUBLIC BUILDING WITHIN THE MEANING OF SAID SECTION. 10 COMP. DEC. 683; 13 ID. 355; 2 COMP. GEN. 14; ID. 477; 6 ID. 619. * * *

IN THE OPINION OF JULY 6, 1937, THE ATTORNEY GENERAL SAID:

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 WILD LIFE" 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 URGE THAT THE PART OF THIS OPINION DEALING WITH THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, WAS NOT NECESSARY TO THE CONCLUSION REACHED, AND THE SOLICITOR OF YOUR DEPARTMENT ARGUES IN HIS MEMORANDUM OF FEBRUARY 23, 1939, THAT THE DECISION IN 9 COMP. GEN. 75 SHOULD BE DISREGARDED BECAUSE IT "WAS NOT BASED ON SECTION 355 OF THE REVISED STATUTES, BUT ON SECTION 3733 OF THE REVISED STATUTES, WHICH IS MUCH BROADER IN ITS TERMS THAN SECTION 355" IN THAT "SECTION 3733 IS SPECIFICALLY APPLICABLE TO "ANY PUBLIC IMPROVEMENT.'" INSOFAR AS THESE MATTERS MAY BE MATERIAL, IT NEED ONLY BE POINTED OUT THAT THE CONCLUSION IN THE OPINION OF JULY 6, 1937, APPEARS TO HAVE BEEN RESTED AS MUCH ON THE REQUIREMENTS OF SECTION 355, REVISED STATUTES, AS ON THE PROPOSITION THAT TITLE VII OF THE ACT OF JUNE 15, 1935, 49 STAT. 384, THERE UNDER CONSIDERATION, SHOULD BE VIEWED AS BEING SO RELATED TO THE PURPOSES OF THE MIGRATORY BIRD CONSERVATION ACT AS TO BE SUBJECT TO THE PROVISIONS THEREIN EXPRESSLY REQUIRING THE ATTORNEY GENERAL'S APPROVAL OF LAND TITLES, AND THAT A CASUAL EXAMINATION OF THE EXCERPT QUOTED, SUPRA, FROM THE DECISION 9 COMP. GEN. 75, SHOWS THAT IT WAS SQUARELY A CONSTRUCTION OF 355, REVISED STATUTES, AND NOT OF 3733, REVISED STATUTES, AS THE SOLICITOR APPEARS TO SUGGEST. IT IS TRUE THAT THE CONCLUSION THERE WAS SUPPORTED BY REFERENCE TO DECISIONS INVOLVING THE MEANING OF THE TERM "PUBLIC BUILDINGS" IN 3733, REVISED STATUTES, WHICH OBVIOUSLY, IS A NARROWER TERM THAN "PUBLIC BUILDING, OF ANY KIND WHATEVER" USED IN 355, REVISED STATUTES. THE SOLICITOR SAYS THAT SECTION 3733 IS MUCH BROADER IN ITS TERMS THAN SECTION 355, IN THAT IT IS SPECIFICALLY APPLICABLE TO "ANY PUBLIC IMPROVEMENT," BUT THE DECISIONS REFERRED TO WERE CONCERNED WITH THAT PART OF SECTION 3733 PROHIBITING CONTRACTS "FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING" IN EXCESS OF APPROPRIATIONS, AND THERE WAS NOT INVOLVED THAT PART OF SECTION 3733, MENTIONED BY THE SOLICITOR, PROHIBITING, ALSO, CONTRACTS ,FOR ANY PUBLIC IMPROVEMENT" IN EXCESS OF APPROPRIATIONS.

THE SOLICITOR FURTHER RELIES ON A STATEMENT IN DECISION OF MARCH 14, 1901, 7 COMP. DEC. 533, HOLDING THAT A WHARF AT SITKA, ALASKA, WAS NOT A PUBLIC BUILDING WITHIN THE MEANING OF APPROPRIATIONS FOR THE REPAIR OF PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT, IN PART AS FOLLOWS:

THE TERM "BUILDING" IN ITS BROADEST SENSE INCLUDES ANY ARTIFICIAL STRUCTURE ERECTED ON LAND, BUT I DO NOT THINK IT IS USED IN THIS BROAD SENSE IN THE STATUTES RELATING TO PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT. IN 6 COMP. DEC. 877 IT WAS HELD THAT A SMALL TEMPORARY BUILDING FOR THE SHELTER OF A KEEPER OF A POST LIGHT IS NOT A PUBLIC BUILDING WITHIN THE MEANING OF SECTION 355, 1136, AND 3734 OF THE REVISED STATUTES. * * *

HOWEVER, AN EXAMINATION OF THE CITED 6 COMP. DEC. 877 SHOWS THAT IT WAS PROPOSED TO ERECT THE TEMPORARY SHELTER ON LEASED LAND AND IT WAS STATED THAT NEITHER SECTION 355 NOR SECTION 1136, REVISED STATUTES, APPLIES TO THE ERECTION OF PUBLIC BUILDINGS OR OTHER STRUCTURES "UPON LAND LEASED TO THE UNITED STATES" BUT ONLY TO LAND "PURCHASED BY THE UNITED STATES," AND THAT, FURTHER, SUCH A TEMPORARY SHELTER WOULD NOT APPEAR TO BE A PUBLIC BUILDING WITHIN THE MEANING OF OTHER CITED STATUTES RELATING TO PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT. HENCE, THOSE DECISIONS ARE NO AUTHORITY FOR THE PROPOSITION THAT SUCH STRUCTURES ARE NOT PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355, REVISED STATUTES. AND EVEN WERE THE MATTER NOW ONE OF FIRST IMPRESSION IT COULD NOT REASONABLY BE MAINTAINED THAT THE BROAD TERM "OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER," IN SECTION 355, IS LIMITED BY THE PRINCIPLE OF EJUSDEM GENERIS TO BUILDINGS OF A MORE FORMAL CHARACTER, PARTICULARLY AS THE PRECEDING LANGUAGE BROADLY INCLUDES SUCH IMPROVEMENTS AS FORTS, FORTIFICATIONS, AND NAVY YARDS.

RESPECTING THE PROVISO FOUND IN THE SUNDRY CIVIL APPROPRIATION ACT OF MARCH 2, 1889, 25 STAT. 941, THAT IN THE PROCUREMENT OF SITES FOR PUBLIC BUILDINGS THE GRANTOR SHOULD BE REQUIRED TO FURNISH ALL REQUISITE ABSTRACTS, ETC., FREE OF ALL EXPENSES TO THE GOVERNMENT, THE FORMER COMPTROLLER GENERAL IN DECISION OF MARCH 3, 1924, 3 COMP. GEN. 569, AFTER POINTING OUT THAT SUCH PROVISO "IS PART OF GENERAL LEGISLATION RELATING TO PUBLIC BUILDINGS FOLLOWING IMMEDIATELY AFTER APPROPRIATIONS FOR PUBLIC BUILDINGS UNDER CONTROL OF THE TREASURY DEPARTMENT," THAT "THE COMPTROLLER OF THE TREASURY HELD THAT THE EXACT PUBLIC BUILDINGS TO WHICH IT REFERS WERE NOT FREE FROM DOUBT, 2 COMP. DEC. 392," THAT "IT WOULD APPEAR TO BE CLEAR THAT IT HAS NO APPLICATION WHATEVER TO SITES THROUGHOUT THE COUNTRY FOR HOSPITALS UNDER THE UNITED STATES VETERANS' BUREAU," HELD THAT THE DIRECTOR OF THAT BUREAU WAS AUTHORIZED TO PROCURE THE REQUISITE EVIDENCE UNDER THE APPROPRIATION FOR THE PURCHASE OF THE LAND. THAT DECISION WAS CITED IN 9 COMP. GEN. 75, SUPRA, IN SUPPORT OF THE STATEMENT THAT---

* * * THE DETERMINATION THAT THE BUILDINGS NECESSARILY ERECTED UPON A RANGER STATION ARE PUBLIC BUILDINGS WITHIN THE PURVIEW OF SECTION 355 WOULD NOT NECESSARILY MEAN, AS SUGGESTED BY YOU, THAT THEY WOULD BE CONSIDERED PUBLIC BUILDINGS WITHIN THE MEANING OF THAT TERM WHEREVER IT MAY BE FOUND IN THE FEDERAL STATUTES. WITH RESPECT TO THE STATUTES CITED BY YOU AS IN PARI MATERIA, IT MAY BE STATED THAT SUCH OF THE STATUTES CITED AS REQUIRE ACTION BY THE SECRETARY OF THE TREASURY OR THE SUPERVISING ARCHITECT OF THE TREASURY ARE APPLICABLE ONLY TO PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT. * * *

SEE, ALSO, DECISION OF DECEMBER 17, 1928, 8 COMP. GEN. 308, WHERE THE FORMER COMPTROLLER GENERAL POINTED OUT THAT WHERE THE SAID ACT OF MARCH 2, 1889, DID NOT APPLY "IT HAS BEEN THE UNIVERSAL PRACTICE FOR YEARS TO PAY THE COSTS OF ABSTRACTS OF TITLE FROM THE APPROPRIATION FOR THE PURCHASE OF THE LAND PROVIDED SUCH EXPENSES ARISE IN CONNECTION WITH THE PURCHASE AND NOT IN CONNECTION WITH CONDEMNATION PROCEEDINGS.'

WHILE THE MEANING OF THE TERM "SUCH PUBLIC BUILDINGS" IN THE SAID APPROPRIATION ACT OF 1889 MAY NOT BE FREE FROM DOUBT, AS HAS BEEN REPEATEDLY STATED, IT CLEARLY IS NOT DETERMINATIVE OF THE MEANING OF THE TERM "OTHER PUBLIC BUILDING, OF ANY KIND WHATEVER" IN SECTION 355, REVISED STATUTES, NOR, IN THE PRESENT MATTER, DOES THERE APPEAR ANY REASON REQUIRING ME TO DIFFER FROM THE CONCLUSIONS REACHED BY MY PREDECESSOR THAT THE 1889 ACT DOES NOT APPLY TO LAND NOT PURCHASED AS A SITE FOR A PUBLIC BUILDING UNDER THE CONTROL OF THE TREASURY DEPARTMENT, AND THAT WHERE SUCH ACT DOES NOT APPLY THE COST OF ABSTRACTS, ETC., REQUIRED BY THE ATTORNEY GENERAL IN PASSING ON THE VALIDITY OF TITLE MAY BE PAID FROM THE LAND- PURCHASE APPROPRIATION.

I BELIEVE WHAT HAS BEEN SAID HEREIN ANSWERS THE VARIOUS CONTENTIONS AND ARGUMENTS WHICH HAVE BEEN MOST STRONGLY PRESSED. THE MATTER HAS BEEN DISCUSSED AT THIS LENGTH TO ATTEMPT TO SET AT REST SOME OF THE DOUBTS AND MISAPPREHENSIONS RESPECTING THE STATUTE AS IT HAS BEEN INTERPRETED AND APPLIED. IT IS NOT APPARENT WHY THERE SHOULD BE AT THIS TIME SUCH INSISTENT OBJECTION--- CONTRARY TO PAST PRACTICE--- TO ALLOWING THE ATTORNEY GENERAL TO EXAMINE TITLES OF LANDS BEING CURRENTLY PURCHASED BY YOUR DEPARTMENT. BUT REGARDLESS OF WHAT MAY BE THE CAUSE FOR SUCH OBJECTION, IT SEEMS ONLY REASONABLE TO CONCLUDE THAT WHEN THE CONGRESS IN THE BANKHEAD-JONES FARM TENANT ACT EXPRESSLY PROVIDED THAT THE AUTHORIZATION THEREIN GIVEN TO PURCHASE LAND WITHOUT REGARD TO SECTION 355 OF THE REVISED STATUTES "SHALL NOT APPLY WITH RESPECT TO THE ACQUISITION OF LAND OR INTERESTS IN LAND UNDER TITLE III" OF THE SUBJECT, IT WAS LEGISLATING IN THE LIGHT OF THE LONG ESTABLISHED ADMINISTRATIVE INTERPRETATION OF THE STATUTE REQUIRING APPROVAL BY THE ATTORNEY GENERAL OF LAND TITLES BEFORE PAYMENT OF THE PURCHASE PRICE. IF THIS CONCLUSION GOES BEYOND THE ACTUAL LEGISLATIVE INTENT, IT ERRS ONLY IN RESOLVING THE DOUBT IN FAVOR OF THE GENERAL LEGISLATIVE POLICY FOR THE PROTECTION OF THE GOVERNMENT IN SUCH MATTERS. IN THIS CONNECTION THERE MAY BE REPEATED WHAT THE FORMER COMPTROLLER GENERAL SAID IN HIS DECISION OF FEBRUARY 27, 1935, 14 COMP. GEN. 648, 652:

IF IN DECIDING QUESTIONS INVOLVING THE LEGAL AVAILABILITY OF AN APPROPRIATION FOR A PROPOSED USE THIS OFFICE SHOULD BECOME TOO LIBERAL AND PERMIT USES OF AN APPROPRIATION BEYOND THE INTENT OF THE CONGRESS IN MAKING THE MONEYS AVAILABLE THE DAMAGE WOULD LIKELY BE IMMEDIATE AND IRREPARABLE; AND THUS, WHEN THE INTERESTED DEPARTMENT OR ESTABLISHMENT BELIEVES THIS OFFICE HAS THROUGH ITS DECISIONS UNDULY RESTRICTED THE USE OF AN APPROPRIATION (AND SUCH DECISIONS ARE ALWAYS IN WRITING AND STATE THE REASON FOR THE CONCLUSION REACHED) THE PROPER AND ORDERLY PROCEDURE, AND THE ONLY PROCEDURE SHOWING A PROPER DEGREE OF RESPECT FOR THE AUTHORITY OF THE CONGRESS, IS TO APPLY TO THE CONGRESS FOR CLARIFICATION OF THE LAW. IF THE CONGRESS WISHES DONE WHAT THE DEPARTMENT OR ESTABLISHMENT DESIRES TO DO, IT IS NO DIFFICULT MATTER FOR IT TO SO EXPRESS ITS WILL, AND THEREBY THE MATTER IS SETTLED.

SO HERE, IF THE CONCLUSION IN THE DECISION OF OCTOBER 24, 1938, AS HERE AMPLIFIED, BE ADMINISTRATIVELY CONSIDERED AS TOO RESTRICTIVE, I CAN ONLY SAY THAT IT APPEARS REQUIRED BY THE LAW AS I FIND IT, AND THAT ANY MODIFICATION OF THE LAW IS A MATTER FOR SUBMISSION TO THE CONGRESS. THE CONGRESS WROTE THE PROVISION HERE IN QUESTION INTO THE BANKHEAD-JONES FARM TENANT ACT, AND IT IS NOT FOR THIS OFFICE, BY INTERPRETATION, TO READ IT OUT OR NULLIFY IT. ..END :