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20 to 30 per cent more than similar battle ships built in private shipyards, assuming, of course, that the present low contract prices for such work will continue to hold good.”

A tabulated statement of the cost of battle ships and cruisers furnished Mr. Foss by Chief Constructor Capps and set forth in the Congressional Record (ib. 7839) is in part as follows:

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It thus appears that at the time the House receded, as it did (45 Cong. Rec. 7840), from its disagreement to the Senate amendment providing for the construction of one of the battle ships at a government navy-yard, it was advised of the view of the chairman of the Committee on Naval Affairs and of the Navy Department that it would cost considerably more to construct a battle ship there than in a private shipyard. It was also advised that the battle ship Florida, which was then being constructed at New York, and which was to be the prototype of the battle ships authorized by the bill under discussion, would cost about $300,000 in excess of the $6,000,000 authorized by the act of May 13, 1908.

In my judgment, however, these facts are not sufficient to authorize you to proceed with the construction of battle ship No. 34 at the New York Navy-Yard in disregard of the limitation as to cost imposed by the act. The only inference that can properly be drawn from the action of

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the House in accepting the Senate amendment without raising the limitation as to cost, notwithstanding the protest that was made, would seem to be that the Congress as a body thought that the vessel could be constructed at a government navy-yard within the limit of cost fixed by the act; and it is to be observed that some of the Members dissented from the views expressed by Mr. Foss as to the great increase in cost caused by the construction of such vessels at government navy-yards.

It is further to be observed that the act does not require the battle ships authorized to be built identically like the Florida and Utah, but only similar to those vessels. This would seem to afford some latitude in their construction, and might enable you to keep within the limit of cost fixed by the act. If, however, to observe the limitation as to cost would require any serious departure from the standard of the Florida and Utah, that course should not be pursued.

The conclusions stated are in line with such authorities as I have been able to find that are directly in point.

In 9 Comp. Dec. 638, the Comptroller of the Treasury held that where it had been ascertained that the cost of a certain improvement in the Passaic River, New Jersey, would exceed the limit fixed by Congress in appropriating therefor, there was no authority to enter into a contract for the partial completion of the work, or to expend the money in doing a portion of the work. In the course of that opinion the Comptroller refers to another opinion rendered by him, in which it was held, reviewing a prior decision, that a partial appropriation for certain river and harbor improvements could be used notwithstanding the work could not be completed within the limit of cost fixed by the act, this conclusion being reached by considering facts developed in Congress affecting the particular case not before the Comptroller when his first decision was rendered. In that case, however, it appeared that there were two acts, the first authorizing the work and limiting the cost, and the second, passed a year later, authorizing the continuance of the work. The circumstance referred to by the Comptroller was the statement of the chairman of the House Committee on Appropriations that the purpose of the second act was to enable the Secretary of War to go on with the work without reference to the limitation as to cost made in the prior act.

Here we have one and the same act imposing the condition as to place of construction and fixing the limitation as to cost.

In 8 Comp. Dec. 326, it was held that the provision in an act of Congress directing the Secretary of the Treasury to cause to be erected a substantial, commodious, and fireproof building for the purpose of a custom-house, at a cost not exceeding $3,000,000, required the erection of a building of the character described, complete in all particulars that were necessary and appropriate to the purpose for which it was intended, within the limit of cost specified, and that the expenditure of the whole amount provided for in the erection of an incomplete building was not authorized.

So, in 20 Op. 653, Attorney-General Olney held that, under the terms of a joint resolution of Congress authorizing the construction of a wharf of a certain character, the Secretary of State was not authorized to accomplish the purpose of Congress by constructing a wharf of a different character, although the construction of the sort of wharf authorized with the appropriation made had become impracticable. The only appropriate remedy for this state of things, said Mr. Olney, was additional legislation by Congress.

It follows, therefore, that if you are of opinion that a battle ship of the character contemplated by Congress can not be built at a government navy-yard within the limitation as to cost fixed by the act, it would be improper to proceed further in the matter without additional legislation by Congress. Respectfully,





In leasing lands for the purpose of locating permanent monuments

thereon to define the boundary line between the United States and Canada, under Article IV of the treaty between the United States and Great Britain, proclaimed July 1, 1908, the lessee should be described

as "The United States of America." The Government has the right to lease lands in a State without the con

sent of the State, and since the leases contemplated constitute substantially fee simple estates, being for nine hundred and ninety-nine years and the consideration therefor merely nominal, they do not come within the operation of Article I, section 14, of the constitution of New York of 1894, which prohibits the leasing of agricultural lands for a greater period than twelve years.


November 30, 1910. Sir: I have the honor to acknowledge the receipt of a letter from your department, dated the 23d instant, together with its inclosures, relating to certain questions connected with leasing lands upon which to locate permanent monuments defining the boundary line between the United States and Canada, to be ascertained under Article IV of the treaty between the United States and Great Britain, proclaimed July 1, 1908, relating to the Canadian international boundary line.

My opinion is asked as to the form of lease submitted, whether said lease should run either directly to the Government of the United States or to the Secretary of State; the right of the Government to lease land without the consent of the State; and if lands in the State of New York (and perhaps in other States) can be leased for a longer term than twelve years.

The form of lease submitted with said letter is sufficient for all of the purposes contemplated except as I have noted thereon with pencil.

The lessee should be described as "The United States of America,” as it is the universal practice of this department, except where Congress has otherwise provided, not to accept deeds, leases, or other instruments of similar character wherein the name of an official of the United States is used as lessee, for all property acquired or interest therein should vest, not in any person on behalf of the Government, but in the United States itself.

There is nothing in the Constitution which prohibits the United States purchasing land within a State without the consent of the state legislature, for "undoubtedly, the United States may purchase lands within the States and build and use public structures upon them without the consent of the legislature of the State," as "the United States, being a legal person, is capable as any other person is to purchase and hold lands” (10 Op. 35, 38), and “payment of the purchase money for the land may be made, though the legislature of the State has not consented to the purchase." (15 Op. 212.)

Under article 1, section 14, of the constitution of New York, 1894, page 128 (New York Annotated Constitution)

“No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.”

The leases proposed to be entered into are for "the term of nine hundred and ninety-nine years computed from the date hereof." They are “to all imaginable purposes, a fee simple estate" (Montague et al. v. Smith, 13 Mass. 403); and as a nominal consideration is to be paid for each lease taken, the same would not come within the operation of said constitution, for by that instrument “there must be a reservation of rent or service. A reservation is defined to be a keeping aside, or providing, as where a man lets or parts with his land but reserves or provides himself a rent out of it for his own livelihood." (Stephens v. Reynolds, 6 N. Y. 458.) “The evil aimed at

, by the constitution is long leases of farming lands for farming purposes,” and “it is not provided that no lease shall be valid for a longer term than twelve years; but provision is that the kind of lease described shall be invalid; which is, as we think, a lease of agricultural lands for agricultural purposes.” (Mass. Nat. Bank v. Shinn, 163 N. Y. 366.)

In my opinion the corrected form of lease herewith returned to you will be satisfactory when properly executed, and the grantee to be named therein is "The United States of America;" that the Government has the right

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