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A79508 1 (1914-11-20)

handle is hein.gao/gaobadadv0001 and id is 1 raw text is: 326 DECISIONS OF THE COMPTROLLER. that it does not support but on the contrary raises a doubt as to the existence of an exigency which will not admit of delay. The voucher should not be paid as presented. In connection with the voucher of Lamb & Tilden for rubber hand stamp, I think the nature of the purchase and our knowledge of the daily needs of the service, coupled with the fact that this bureau was just coming into being and such needs could not have been an- ticipated, sufliciently corroborates the formal certification. It ap- pears that Lamb & Tilden were not contractors for such articles and that the stamp was within a contract of the general supply com- mittee, but upon inquiry as to why this purchase was not made under the general supply committee contract, I am advised that said con- tract.does not provide for immediate delivery, but allows 10 days' time in which to make delivery on such. orders, and that Lamb & Tilden's price for immediate delivery was lower than the price the regular contractor would make for immediate delivery. In view of these facts, payment of this voucher is authorized. PURCHASE OF LAND. Certain proceeds of sale of- ndian lands which the Secretary of the Interior Is authorized by law to apply to the construction of school buildings and to such other improvements as he may deem for the public welfare are not available, because of the prohibition found in section 3786, Revised Statutes, for the purchase-of city lots, or of a right of way through them, in connection with sewer construction. Comptroller Downey to the Secretary of the Interior, November 20, 1914: I have your letter of the 14th instant in which you ask whether vou are authorized to apply any part of an unexpended balance of proceeds arising from the sale, uinder the act of March 27, 1908 (35 Stat., 49), of certain lots in Lawton, Okla., to the purchase of four lots, or of a right of way through them, in connection with.the con- struction of a storm-sewer system in that city. In the act of March 27, 1908, above mentioned, the Secretary of the Interior was authorized and directed to plat and sell (subject to certain reservations not here material) a certain tract of Indian land, the proceeds of which sale were to be applied, among other things, to the erection of two suitable school buildings in Lawton. The act of February 18, 1909 (35 Stat., 637), provided as follows: * * * Provided further, That not exceeding one-half of the amount which may be set aside by the Secretary of the Interior, under the act above referred to (act of Mar. 27, 1908), for the con- struction of two school buildings, may be applied by the Secretary of the Interior to such other improvements as he may deem for the public welfare. In a decision of this office of May 7, 1914 (69 MS. Comp. Dec., 760), referred to. by you, it was held that the provision above quoted a authorized the Secretary of the Interior to set apart from the pro- ceeds of sale of the lots referred to in the act of March 27, 1908, a sum equal to one-half of that set aside and used for school purposes, and to apply said sum to improvements other than schools; and that the balance remaining of said sum, after providing for a sanitary sewer system might be used for the construction of a storm sewer system in Lawton. It is this unexpended balance of the sum above referred to from which it is now sought to make the purchase here in question. With your letter you inclose a copy of one from the commissioner of public property, of Lawton, which contains the following state- ment relative to the purchase of the four lots in question: If all the sewer as planned can't be built with the funds on hand a sufficient amount can be built to be of material advantage. For instance, if all west of Eighth Street were omitted the water could be caught at that place where there is chance for surface drainage. Again, if lots mentioned hereafter were purchased outright so as to prevent flood damage all of the 72-inch sewer might be left for future construction. The right of way mentioned by Mr. Keys is across lots 11, 12, 13, and 14, block 22, north addition. These lots can 4e. purchased outright for $100 each, and it might be better to buy them and omit the 72 inch (if necessary), or build the sewer, fill them with surplus dirt, aftd resell them. The difference between the selling and cost price would doubtless be less than the cost of right of way. It would appear frofn the statement quoted that the purchase of the lots mentioned, or of a right of wa through them, .is not abso- lutely necessary to the construction of the sewer system, but is sug- gested merely as one of a number of precautionary measures men- tioned, in view of the possible contingency that the fnds available will prove insufficient to construct the entire system as planned. The provision quoted above from the act of February 18, 1909, is quite broad in its terms, and, in the absence of restrictive legislation, would appear to authorize the purchase of the lots in question if the purchase were necessary to the cbnstruction of the sewer system. However, section 3736, Revised Statutes, provides as follows: SEC. 3736. No land shall be purchased on account.of the United States, except under a law authorizing such purchase. - The prohibition found in the section above quoted relates not only to purchases of fee simple estates in land but also to those of lesser estates or interests in land, including rights of way of the character involved in the case now under consideration. It has even been held by the Attorney General in an opinion of October 24, 1910 (28 Op. Atty. Gen., 464), that the acquiring, by the Government, of a lease- hold interest in land is a purchase of land within the meaning of this statute. DECISIONS OF T11B COMPTROLLER. 327

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