exclusive jurisdiction over such land.368 The State may not so exercise its authority, however, as to interfere with the United States in carrying out the public purposes for which the property was acquired. 369 Until recently changed, a long-standing clause 370 of Revised Statutes, sec. 355, as authoritatively interpreted, in effect forbade the expenditure of public money on lands acquired for any public purpose until such consent or cession by the State had been obtained as to confer upon the United States exclusive jurisdiction.371 This frequently involved much delay 372 and led to other inconveniences.373 As now amended, this statute expressly dispenses with the former long-standing requirement of exclusive jurisdiction, but permits the acquiring agencies if they so desire in any case to take steps required for securing exclusive jurisdiction in the United States.374 A further complex and varied problem also arises where large governmental land acquisitions seriously deplete the sources of local revenue.374a 3. Broad Authority for Acquisition for War Purposes under the Second War Powers Act, 1942 * * Under Title II of the Second War Powers Act 375 the Secretary of War, the Secretary of the Navy, or any other officer, board, commission, or governmental corporation authorized by the President "may acquire, by purchase, donation, or other means of transfer, or may cause proceedings to be instituted * to acquire by condemnation, any real property, temporary use 75 thereof, or other interest therein, together with any personal property located thereon or used therewith, that shall be deemed necessary for military, naval, or other war purposes * * *" Title VI and Title XI of the same 375a 368 Constitution, art. 1, sec. 8, cl. 17. See discussion of exclusive jurisdiction in Surplus Trading Co. v. Cook, 281 U. S. 647 (1930). See also, opinions of Frankfurter. J.. and Murphy, J., dissenting, in Pacific Coast Dairy v. Department of Agriculture, 318 U. S. 285 (1943). 369 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525 (1885). 370 See footnote 365 above. The clause referred to in this connection was derived from Joint Res. Sept. 11, 1841, No. 6, 5 Stat. 468, its substance remaining unchanged for almost 100 years. 371 See, for example, 20 Op. A. G. 611 (1893). That the Constitution itself does not invalidate reservations by a State in its consent or cession of jurisdiction see James v. Dravo Contracting Co., 302 U. S. 134, 148 (1937); The Silas Mason Co. v. Tax Commission, 302 . U. S. 186, 203-204 (1937). 372 To avoid such delay statutory exemption from sec. 355 has in certain instances been specially provided. See footnote 367 above. 373 Uncertainties growing out of questions regarding the sufficiency of the State's qualified cr conditional consent or cession of jurisdiction are illustrated in 36 Op. A. G. 86 (1929); 38 Op. A. G. 341 (1935); 39 Op. A. G. 73 (1937); 39 Op. A. G. 99 (1937); 39 Op. A. B. 155 (1938); 39 Op. A. G. 285 (1939). See also Collins v. Yosemite Park Co., 304 U. S. 518 (1938); footnotes 369 and 371 above. The Congressional Act of June 5, 1942, 56 Stat. 321, relating to jurisdiction for Shenandoah National Park, within the boundaries of Virginia, touches crime, alcoholic liquor, service of civil process, taxation, and voting residence. See generally, Barrett, Functions of the Judge Advocate General with regard to Military Reservations (1942), 4 Fed. Bar Assn. Jl. 37 at pp. 374-375. 374 40 U. S. C. A. 255, 54 Stat. 19, 54 Stat. 1083. In Adams v. United States, 319 U. S. 312 (1943), it was held that in the absence of acceptance of jurisdiction in the manner required by this statute federal criminal jurisdiction was inapplicable and that consequently a federal district court was without jurisdiction over a crime (rape) violating the state criminal law, committed by a soldier within the limits of a military camp, within the state, title to the land of which had been acquired by the United States. The Supreme Court in this case also indicated that under this statute acceptance of jurisdiction by the United States is now required as well for securing concurrent as for securing exclusive jurisdiction in the United States. 374a Legislation has provided in certain limited instances for payments to the States in lieu of taxes. The subject is too varied and complex to yield to any single formula. See Simpson and Wilson, Federal Land Acquisitions (1943), 31 Geo. L. J. 315; Report by the Federal Real Estate Board on Federal Contributions to States and Local Governmental Units with Respect to Federally Owned Real Estate, House Document No. 216, 78th Congress, 1st Session (1943). 375 Approved March 27, 1942, 50 U. S. C. A. App. sec. 632; 56 Stat. 177. See also footnotes 590-594 below, with accompanying text. 375a See footnote 590 below. statute contain additional provisions covering the power to requisition and the acceptance of conditional gifts to further the war program. The broad language of this statute provides basic statutory authority for acquisition by the United States of a very wide range of property for war purposes by any of the statutory methods of acquisition. For the time being, therefore, in new acquisitions for war purposes if this statute is applicable it is unnecessary to rely on more limited statutes, the adequacy of which to cover the desired transaction may be more questionable. 4. Presence of General Legal Problems Acquisition of property by the United States, whether of land, chattels, or choses in action, by the various available methods of acquisition can raise almost the same multitude of general legal problems that may arise when such property is acquired by other parties. It is therefore in all such matters highly desirable that legal advice be taken at the outset, before commitments have been made and liabilities have been incurred. Distinctive problems may arise, moreover, by reason of special requirements in such cases for acquisition by the United States. Some of these distinctive problems are dealt with in the discussion that follows. B. Direct Purchase 877 379 376 378 Since authority conferred upon an officer of the United States to purchase real estate carries with it the right to condemn, the United States can to a considerable extent protect itself against exorbitant charges for needed land through resort to condemnation. To the extent that authority to requisition "" is applicable the United States can similarly protect itself in acquiring needed personal property. Certain applicable constitutional and statutory restrictions regarding appropriations and authorization, already dealt with above, must, of course, be observed in direct purchase of property. Further, the purchase must be made on behalf of the United States by an official who is properly authorized.380 The requirement that no land shall be purchased on account of the United States, except under a law authorizing such purchase," is applicable to purchase of leaseholds and other interests in land as well as to the purchase of a fee simple absolute. This requirement is not applicable, however, where the United States buys at foreclosure sale encumbered property on which it already holds mortgage or lien security for debt. Statutory au 382 316 See footnotes 412-417 below, with accompanying text. 380 Specific authority for individual officials thus to act in this general field is derived through statutes and executive orders pursuant thereto. In recent years this has culminated in broad statutory authority for reorganization of executive and administrative departments by Executive order. See 41 U. S. C. A.. sec. 7-7d, and 5 U. S. C. A., secs. 124133w, with annotations of Executive orders issued thereunder. See also Title I of the First War Powers Act, 1941; 55 Stat. 838. 50 U. S. C. A. App. sec. 601, approved December 18, 1941. Under Title II of the Second War Powers Act of March 27, 1942, 50 U. S. C. A. App., sec. 632, 56 Stat. 177, such authority to acquire property for military, naval, or other war purposes is conferred upon the Secretary of War, the Secretary of the Navy, or any other officer, board, commission, or governmental corporation authorized thereto by the President. 381 Revised Statutes, sec. 3736; 41 U. S. C. A., sec. 14. 382 (1910) 28 On. A. G. 463; (1927) Op. A. G. 183. 383 (1928) 35 Op. A. G. 474. thority to purchase land should preferably be conferred in express language, as it will not readily be implied. 384 385 A general statute requires that except as otherwise provided by law purchases of supplies for the Government must be made pursuant to competitive bids.386 Other provisions, however, obviate needless delay on this account in purchases for war purposes. The statute excepts cases when immediate delivery or performance is required by the public exigency. 387 Further exception is made for various Governmental departments and agencies.388 Among recent special statutes, the act of June 28, 1940,389 to expedite and strengthen the national defense, specifically provides that purchases falling within its range may be made by the Secretary of the Navy without advertising or competitive bidding whenever deemed by the President of the United States to be in the best interests of national defense during the emergency. 390 Under Title II of the First War Powers Act, 1941,390a the President may authorize any department or agency of the government exercising functions in connection with the prosecution of the war effort to enter into contracts in accordance with regulations prescribed by the President but dispensing with the earlier required statutory formalities, provided, however, that a cost-plus-a-percentage-of-cost system of contracting is not authorized, and provided no authority is conferred for contracts in violation of an existing law relating to limitation of profits. Under Title III of the Second War Powers Act, 1942 390b too, authority is granted the Secretary of the Navy to dispense with competitive bidding in connection with the acquisition or construction of naval vessels or aircraft. Other special statutes provide for renegotiation of certain types of war contracts in order to eliminate excessive profits.391 At the close of the war in 1918, large stocks of unused materials, supplies, and equipment acquired for war purposes were on hand. The President therefore by executive order 392 provided that no Gov 384 (1865) 11 Op. A. G. 201; (1887); 19 Op. A. G. 79. 385 For a situation where such authority was implied, see (1899) 22 Op. A. G. 665 (only possible way to carry out express authority found to involve acquisition of land on which to do it). 386 41 U. S. C. A., sec. 5; Revised Statutes, sec. 3709. That in the absence of more specific Congressional enactment to that effect this provision does not immunize Government contractors from local price-fixing regulations which would otherwise be applicable, see Penn Dairies v. Milk Control Commission, 318 U. S. 261 (1943) (milk for consumption by troops at military camp). 387 41 U. S. C. A., sec. 5; Revised Statutes, sec. 3709. 388 Id. secs. 6, 6a, and 6b. 389 54 Stat. 676. See, however, Public Law 289-78th Congress. 390 This covers naval vessels, aircraft, parts or equipment therefor, machine tools, etc. Somewhat similar powers were conferred upon the Secretary of War under the act of July 2, 1940, to expedite the strengthening of the National Defense (54 Stat. 712, 714). 3901 50 U. S. C. A. App. sec. 611, 55 Stat. 839. Many other statutes either directly waive or authorize the President under given circumstances to waive various statutory requirements. Among these are 50 U. S. C. A. App. sec. 635, 56 Stat. 180 (authorizing waiver of navigation and inspection laws); 50 U. S. C. A. App. sec. 767, 56 Stat. 316 (waiving R. S. secs. 355, 1136, and 3648); 50 U. S. C. A. App. sec. 5 (a), 40 Stat. 415 (authority to suspend the Trading with the Enemy Act as to allies of enemies): 56 Stat. 247 (waiving 47 Stat. 412 and 47 Stat. 1517); 56 Stat. 316 (waiving R. S. secs. 355, 1126, 3648, and 3734); 56 Stat. 393 (waiving R. S. sec. 3709). Pursuant to statutory authority, therefore, the President has often by Executive order waived or suspended certain statutory requirements. See, for instance, Executive Orders 9188 and 9189, 7 F. R. 5071 and 7 F. R. 5101 (waiving provisions relating to employment in the Canal Zone), and Executive Order 8976, 6 F. R. 6441 (waiving compliance with inspection and navigation laws), and Executive Order 9112, 7 F. R. 2367 (waiving on a large scale competitive bidding and other statutory formalities in cases of war contracts). 390b 50 U. S. C. A. App. sec. 633, 56 Stat. 177. 391 56 Stat. 245, 56 Stat. 982. 392 Executive Order No. 3019, December 3, 1918, quoted in annotation to 40 U. S. C. A. 311a. 597410- -44- -6 ernment departments or agencies in Washington should purchase supplies, office materials, or equipment in the general market when their needs could be supplied from unneeded excess stock of other departments or agencies. Under a system of transactions operated through the Secretary of the Treasury it was arranged to transfer such articles from one department or agency where they were in surplus to another where they were needed. With but minor changes this arrangement was later embodied in congressional statute 393 of general and continuing application for the governmental departments and agencies in Washington. C. Exchange Exchange of property must generally conform to the legal requirements for purchase. That the consideration is paid in other property instead of in cash does not preclude the transaction's amounting to a purchase of the property acquired.39* An exchange, however, introduces additional problems relating to authority to dispose of the property already in hand. Authority to officers of the Executive Department to dispose of property belonging to the United States ordinarily is to be derived from acts of Congress.395 Peacetime legislation is apt to confine such authority to relatively narrow limits.396 If the exchange exceeds the bounds of authority to dispose granted by Congress the transaction is nugatory.397 Emergency wartime legislation, however, has for the time being greatly enlarged the authority to dispose of property acquired for war purposes.398 Authority for making exchanges of property may also, in appropriate circumstances, be supported on the independent constitutional 393 40 U. S. C. A., sec. 311 and 311a; 41 Stat. 67, and 45 Stat. 1030. See also footnote 462 below, and accompanying text. 294 (1927) 35 Op. A. G. 183. Among recent instances of statutes specifically authorizing certain officers to make certain designated exchanges of Government property are the following: 56 Stat. 725 (Secretary of Agriculture); 56 Stat. 780 (Secretary of the Navy); 56 Stat. 782 (Secretary of War): 56 Stat. 1042 (Secretary of the Interior). 395 The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States." Constitution, art. IV, sec. 3, cl. 2. Special statutes thus authorizing the disposal of particular items of property to designated grantees, etc., abound in congressional legislation. A very recent illustration is 56 Stat. 1027. Under 43 U. S. C. A., sec. 931a, 55 Stat. 183, the Attorney General is authorized within indicated limitations to grant easements in and rights of way over lands belonging to the United States which are under his supervision and control. 396 See, for instance, as to exchange of Indian Lands, 25 U. S. Č. A., secs. 463c, 463e, and 464; 50 Stat. 536, and 48 Stat. 985. See also (1903) 24 Op. A. G. 600, and footnote 397 below. As to the exchange of deteriorated, obsolescent, unserviceable, naval or military equipment, supplies, or munitions, see 54 Stat. 681; 10 U. S. C. A., sec. 1262a. As to extent of statutory authority to the Secretary of Agriculture to quitclaim on behalf of the United States certain lands under his control where titles prove defective, see 57 Stat. 388, 42 U. S. C. A. sec. 1553. 397 Pan-American Petroleum and Transport Co. v. United States, 273 U. S. 456 (1927) (Teapot Dome Scandal-authority to exchange property held not to justify trading oil for construction work). See also footnote 458 and 552 below with accompanying text. 388 Under the act of July 2, 1940 (54 Stat. 712), and under Title II of the Second War Powers Act of March 27, 1942 (50 U. S. C. A. App., sec. 632. 56 Stat. 177) property in question may be disposed of by sale, lease. or otherwise. See also legislation of 1918 and 1919 (10 Stat. 850 and 40 Stat. 1173, now appearing in 40 U. S. C. A., sec. 314, and 40 Stat. 849, now appearing as 10 U. S. C. A.. sec. 1272). Among the most far reaching of the wartime statutes is the so-called "lease-lend" statute. 55 Stat. 31, approved Mar. 11, 1941, under the terms of which the President may authorize the Secretary of War, the Secretary of the Navy. or the head of any other department or agency of the Government, within the limits of amounts authorized by Congress, to manufacture or procure war materials and "to sell, transfer title to. exchange, lease, lend, or otherwise dispose of" the same to the government "of any country whose defense the President deems vital to the defense of the United States." The policy thus adopted has been carried into effect through various subsequent enactments, among which are 55 Stat. 54:55 Stat. 682: 55 Stat. 745:55 Stat. 813; 56 Stat. 82: 56 Stat. 130: 56 Stat. 229: 56 Stat. 994. Broad continuing authority for disposal of surplus government property was eventually provided for in Public Law 457, 78th Congress, 2d Session. approved Oct. 3, 1944. See also footnotes 584 and 585 below, with accompanying text. power of the President. Thus, in the well-known transaction in 1940 involving the exchange of overage destroyers for outlying naval and air bases, the authority invoked was rested not merely upon the congressional statute which was regarded as applicable, but also upon the independent constitutional authority of the President as Chief Executive and Commander in Chief of the armed forces.399 Similar support presumably sustains authority granted by executive order for disposal of certain products growing on the public domain when material or products to be made there from are substituted for strategic or critical. or otherwise essential war material.399a D. Gifts, Donations, Devises and Bequests When gifts of property are made to the United States, whether inter vivos or by will, one question to be met is whether the transaction involves financial commitments by the United States. Contracts to pay money ordinarily may not be made on behalf of the United States beyond the amounts of available appropriations therefor unless otherwise authorized by Congress.400 If a gift is so conditioned as to involve expenditures, its acceptance, even though it be called a gift, involves the substance of a contract. Accordingly, it must comply with the requirements in that regard for contracts by the United States. 401 Administrative officers of the United States have no power to accept gifts on behalf of the United States unless such authority has been conferred pursuant to law. 402 The Federal statutes contain a large array of enactments specifically authorizing designated Federal officials to accept certain specified gifts or types of gifts.403 Authority for the acceptance of gifts for war purposes, whether of realty, of money, or of other personal property, is conferred quite broadly in existing statutes.404 Where direct congressional authority to accept the gift in question is not apparent the question arises whether the United States is competent to accept gifts independently of express congressional authorization and, if so, in what manner. Federal legislation does not prohibit the United States from accepting gifts.405 It prohibits the purchase of land and the making of contracts without statutory authority.40 The presumption of acceptance which applies in the 406 399 (1940) 39 Op. A. G. 484. 399a Executive Order No. 9180, 7 F. R. 4317 (Yucca) 400 40 U. S. C. A., sec. 261, 33 Stat. 545; 41 U. S. C. A., sec. 11, R. S. 3732, 34 Stat. 255. Sce also footnote 281 above, with accompanying text. 401 (1916) 30 Op. A. G. 527 (proposed Grover Cleveland Memorial). 402 (1939) 39 Op. A. G. 373. 403 See index to U. S. C. A. under the heads of Gifts; United States, Gifts to Government; and Bequests. These specific statutes in the aggregate cover a great variety of purposes for which gifts may be received. A recent example is 53 Stat. 1062, providing for the establishment and maintenance of the Franklin D. Roosevelt Library. As to whether such authority to accept gifts involves also authority to acquire by condemnation, see footnote 548 below. with accompanying text. 40: Title II of the Second War Powers Act of March 27, 1942, 50 U. S. C. A. App., sec. 632, 56 Stat. 177, covers all interests in land together with any personal property located thereon or used therewith. Title XI of the Second War Powers Act authorizes the Secretary of the Treasury to accept or reject on behalf of the United States any gift of money or other property, real or personal, or services, made on condition that it be used for a particular war purpose. Other statutes cover gifts of lands for aviation fields and remount stations (10 U. S. C. A., sec. 1342: 39 Stat. 622), encouragement of breeding horses for army (10 C. S. C. A., sec. 1318: 43 Stat. 901), and gifts for Veterans' hospitals, etc. (21 U. S. C. A., sec. 2; R. S. sec. 4801; 24 U. S. C. A., sec. 45; 35 Stat. 110; 24 U. S. C. A., sec. 111: R. S. sec. 4831; 38 U. S. C. A., secs. 11 to 11f; 46 Stat. 1016; 38 U. S. C. A., sec. 438]: 46 Stat. 1550). 405 (1910) 28 Op. A. G. 413; (1927) 35 Op. A. G. at p. 185. 406 As to purchase of land, 10 U. S. C. A., sec. 14. R. S. sec. 3736; as to making of contracts, 10 C. S. C. A., sec. 11. R. S. sec. 3732, 34 Stat. 235. |