Treasury in the matter of partial payments on account of a contract to manufacture and sell powder for the use of the Army. (17 Comp. Dec. 231.) The general rule would therefore seem to be well recognized that, in the absence of statutory prohibition, partial payments may be made on account of work done in the construction of vessels for the Navy if (1) title to the vessel shall have passed to the United States at the time of such payments, or (2) a lien shall have been created by law or contract upon the unfinished vessel to the amount of such partial payments. I am, respectfully, yours, GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY. ACQUISITION BY THE UNITED STATES OF A SITE FOR THE ARANSAS LIFE-SAVING STATION. Under the provision in the act of March 3, 1875 (18 Stat. 372), which authorizes the Secretary of the Treasury to acquire, by donation or purchase, the right to use and occupy sites for life-saving stations, the fee-simple title to land may be purchased for the Aransas lifesaving station provided for by the act of June 18, 1878 (20 Stat. 163). DEPARTMENT OF JUSTICE, April 20, 1911. SIR: I return herewith your correspondence with the governor of Texas with respect to the acquisition by the United States of a piece of land on Mustang Island, Nueces County, Tex., as a site for the Aransas life-saving station. I have carefully examined the question which was raised by the Comptroller of the Treasury respecting the authority of the Secretary of the Treasury to acquire or purchase the fee-simple title to this land. This question arises out of the following legislation: Section 3736, Revised Statutes, provides: "No land shall be purchased on account of the United States, except under a law authorizing such purchase." The act of March 3, 1875 (18 Stat. 372), authorizes the Secretary of the Treasury: "Whenever he shall deem it advisable, to acquire, by donation or purchase in behalf of the United States, the right to use and occupy sites for life-saving or life-boat stations, house of refuge and sites for pier-head beacons the establishment of which has been, or shall hereafter be, authorized by Congress." The act of June 18, 1878 (20 Stat. 163), empowered the Secretary of the Treasury "to establish additional life-saving and life-boat stations at or near the following-named points upon the sea and lake coasts of the United States, namely, * * at or near Aransas Pass." Pursuant to this authority, the Secretary of the Treasury has negotiated with the State of Texas for the acquisition of a site for the life-saving station above referred to. The price has been agreed upon and a patent prepared and tendered by the State of Texas to the United States which purports to convey the fee simple in the land to be so acquired. This deed is issued under the provisions of article 372, revised civil statutes of Texas of 1895, and is specifically authorized by the act of the legislature of Texas approved April 24, 1907. (Session acts of 1907, p. 320.) The Comptroller of the Treasury raises the question whether or not, under the statutory authority to acquire the right to use and occupy sites for the purposes indicated, the Secretary of the Treasury may lawfully acquire and pay for the fee to the land. It will be observed that there is no limit in the act of 1875 to the term of the use and occupation, the right to which may be acquired. Clearly the Secretary of the Treasury would be authorized, within the express language of this act, to accept a lease on the land for 999 years. Such a lease, however, is for all imaginable purposes a fee-simple estate. (Montague v. Smith, 13 Mass. 396, 403.) In the very recent case of J. W. Perry Co. v. City of Norfolk (220 U. S. 472), decided by the Supreme Court of the United States, Mr. Justice Lamar says: "The court of appeals held that in Virginia the general rule that the landlord is responsible for the taxes ‘has no application to the case of a perpetual leaseholder where the tenant is in effect the virtual owner of the property and 89760°-VOL 29-13- 4 entitled to its use forever. For the purposes of taxation the mere legal title remaining in the landlord will be disregarded.' It adopted that part of the language in Wells v. Savannah (87 Ga. 397), affirmed in 181 U. S. 531, where, in speaking of the liability of one who had a perpetual lease and a right to convert it at will into a fee, Judge Bleckley said: "The value of property consists in its use, and he who owns the use forever, though it be on condition subsequent, is the true owner of the property for the time being.' Inasmuch, therefore, as by the language of the statute quoted, the Secretary of the Treasury might acquire in the form of a lease what is in effect and to all imaginable purposes a fee, it is not perceived why he can not accept conveyance of the fee directly without resorting to a circum locution which would accomplish the same thing. The purpose in view is the acquisition of a site for a life-saving station. The term of necessity for such use is indefinite and uncertain. The grant of the fee will secure the right to use and occupy the site so long as the Government may find it necessary to do so. The acquisition of the right for a shorter time might be entirely inadequate to the needs of the Government. The State of Texas has provided for the conveyance of a fee, and the purpose to be served under the act of Congress is, to say the least, as fully advanced by acquiring the right to perpetual use and occupation through the conveyance of the fee as it would be by the acquisition of the right to use and occupy for some restricted period. The general principle of law is that, "whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied." (1 Kent, 464.) The appropriation act of March 3, 1875 (18 Stat. 458), provided that $100,000 shall be used for and applied toward the construction of a removable dam, or a dam with adjustable gates. Attorney General Devens advised the Secretary of War with respect to that provision: "In my opinion that provision impliedly authorized the purchase, with the approval of the Secretary of War, of such land as is necessary for the construction of the dam. This view rests upon the well-established rule of interpretation, that whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied." (15 Op. 213.) The act making appropriations for the support of the Army for the fiscal year ending June 30, 1899 (30 Stat. 323), under the head of "Transportation of the Army and its supplies," authorized the expenditure of a specified sum for certain purposes named under the said head, and among others "in opening roads and building wharves." In 22. Opinions, Assistant Attorney General Boyd advised the Secretary of War that the said provision of said act "impliedly authorizes the Secretary of War to purchase, on account of the United States, such land as in his judgment may be necessary for the erection of a wharf or wharves, as contemplated by the appropriation, and that land so purchased on account of the United States can be lawfully paid for from the said appropriation." (22 Op. 667.) Upon the foregoing considerations I am of the opinion that the Secretary of the Treasury is fully authorized to accept the conveyance tendered by the State of Texas of the fee to the tract to be occupied by the Aransas lifesaving station, and to pay the consideration fixed therefor, viz, the sum of $750. Respectfully, The PRESIDENT. GEORGE W. WICKERSHAM. ACQUISITION BY THE UNITED STATES OF A SITE FOR THE ARANSAS LIFE-SAVING STATION-APPROPRIATION. The language of the provision in the sundry civil appropriation act of June 25, 1910 (36 Stat. 711), out of which payment must be made for the acquisition of land for the Aransas life-saving station, justifies the purchase of said land from that appropriation. DEPARTMENT OF JUSTICE, SIR: Since addressing you under date of 20th instant with respect of the power of the Secretary of the Treasury to acquire from the State of Texas land for the Aransas Pass Life-Saving Station, my attention has been called to the language of the current appropriation act out of which payment must be made. In the sundry civil act for 1911 (act of June 25, 1910, 36 Stat. 703, 711), appropriation is made, among other things, under the head of "Life-Saving Service" for "fuel for stations and houses of refuge; repairs and outfits for same; rebuilding and improvement of same, including use of additional land where necessary * * * "For establishing new life-saving stations and lifeboat stations on the sea and lake coasts of the United States, authorized by law, to be available until expended * * *” The proposed acquisition of additional land at Aransas Pass is for the purpose of affording a site for an additional building or additions to the existing buildings of the lifesaving station at that point, and the expense of the acquisition of the right to use the additional land made necessary by such rebuilding is payable out of the appropriation of $2,037,040, made by the act above referred to, and must be justified by the appropriation in the language above quoted. It is not perceived that there is any material difference between the right to acquire "use and occupation" for the particular purposes under consideration, and the right to acquire "use of additional land where necessary" for the particular purpose mentioned, and the same reasoning which led to the conclusion expressed with regard to the general language referred to in my opinion dated April 20 would apply with equal force to the expenditure out of the current appropriation above referred to. Respectfully, The PRESIDENT. GEORGE W. WICKERSHAM. COMMEMORATION OF THE FIFTIETH ANNIVERSARY OF THE ISSUANCE OF THE EMANCIPATION PROCLAMATION. It is within the power of the President to issue a general proclamation calling the attention of the people of the country to the fiftieth anniversary of the issuance of the emancipation proclamation and inviting them to unite in an appropriate celebration of that event. |