OPINIONS

OF

HON. HOMER CUMMINGS, OF CONNECTICUT

APPOINTED MARCH 4, 1933

AVAILABILITY TO STATE AUTHORITIES OF INFORMATION FURNISHED SOCIAL SECURITY BOARD BY EMPLOYEES SUBJECT TO SOCIAL SECURITY ACT

The Social Security Board may make available to State unemployment compensation authorities information received from employees on Form SS-5 regarding name, address, age, sex, color, etc. Sec. 3167 R. S., as amended, relating to income tax returns, is not applicable here.

The PRESIDENT.

MARCH 8, 1937.1

MY DEAR MR. PRESIDENT: On February 27, 1937, you transmitted to me a letter from the Chairman of the Social Security Board and requested that if I saw no objection I render an opinion upon the question presented therein.

With his letter the Chairman of the Social Security Board submits a specimen of Treasury Form SS-5, and in the letter he states that "The Board is now receiving urgent requests from State unemployment compensation authorities asking that it furnish them with the information contained in Forms * ** SS-5." The Chairman further states that "The Board feels that this information is required by the States in the administration of their unemployment compensation laws and wishes to comply with their requests, subject to certain safeguards against misuse of the information." The safeguards to be so employed are outlined in the letter.

The question presented is whether the Social Security Board may make available to State unemployment compensation authorities, subject to the safeguards set forth in the Chairman's letter, the information received upon said Form SS-5. My answer to that question is in the affirmative.

1 Opinions Oct. 14, 1933, and Mar. 6, 1936, post, pp. 541, 547.

(1)

Form SS-5 is a form prescribed by the Treasury Department, under the authority of title VIII of the Social Security Act (49 Stat. 636), for use by employees subject to the provisions of that act in applying for account numbers. The form provides for the furnishing by the employee of his full name and address, his age and the date and place of his birth, the full name of his father and mother, and the business name and address of his present employer. It also provides for the furnishing of information as to the sex and color of the employee.

It seems clear that there can be no objection to the Board's furnishing the information requested unless it is prohibited from so doing by some statute or statutes. I find no such prohibiting statutes and none has been called to my attention.

It has been suggested that section 3167 of the Revised Statutes, as amended (U. S. C., title 18, sec. 216), is such a prohibiting statute, but I do not so construe that section. Insofar as here pertinent, it relates only to income tax returns; and Form SS-5, when filled out and filed by an employee, not an income tax return. Moreover, it is a penal statute and must be construed strictly. Its evident purpose is to prohibit the divulging of information connected with a taxpayer's private business and affairs, which information the taxpayer is required to furnish on his income tax returns, and the divulging of which might be a source of annoyance, embarrassment, or injury to the taxpayer.

It is true that Form SS-5 gives a source of the employee's income-the name and address of his present employer-and that this information must also be given in a return filed by the employer in connection' with the income tax imposed upon the employee by section 801 of the act. It can hardly be contended, however, that the divulging of information obtained from sources other than an income tax return and which is already generally known-such as the information furnished on Form SS-5-would be a violation of the criminal provisions of the statute, even though such information might also be contained in an income tax return.

Respectfully,

HOMER CUMMINGS.

EFFECT OF RECONVEYANCE TO UNITED STATES OF PORTION OF LAND GRANTED TO STATE OF IOWA

A condition subsequent may be waived by the grantor, by acts as well as by express release.

A grantor participating in a breach of condition, or rendering compliance impossible, cannot take advantage of the breach. The United States granted to the State of Iowa certain land comprising a part of the Upper Mississippi River Wild Life and Fish Refuge upon certain conditions and limitations, one of which is that "In the event the State shall fail to maintain the aforesaid granted land as a State park under the conditions and limitations herein prescribed, or upon abandonment of the park by the State, said land and all improvements thereon shall revert to the United States."

Held: Reconveyance by the State of Iowa of a portion of such land for use in carrying out an authorized river and harbor project did not violate the conditions and limitations imposed by said act and did not affect the interest of the State in the remainder of the land.

MARCH 24, 1937.

The SECRETARY OF WAR.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 10, 1936, in which you request my opinion upon the question hereinafter stated.

By act of June 4, 1936, 49 Stat. 1464, the United States granted to the State of Iowa certain land comprising a part of the Upper Mississippi River Wild Life and Fish Refuge in Clayton County, Iowa, for State park purposes. The grant was made upon certain conditions and limitations, which are expressed in the act as follows (p. 1471):

"The State shall improve and maintain the said land for such purpose, and not otherwise, and shall provide adequate conveniences for the public. No fee or other charge shall ever be imposed or exacted for admission of the public to the park or for use and enjoyment of the park by the public under such reasonable regulations as may be prescribed by the State or its authorized officials. The State shall sedulously safeguard the wildlife in the park from molestation and destruction, and shall do everything reasonably necessary to safeguard the park from injury by fire, or otherwise, and shall preserve the timber and other natural

growth in the park from depredation and destruction. In the event the State shall fail to maintain the aforesaid granted land as a State park under the conditions and limitations herein prescribed, or upon abandonment of the park by the State, said land and all improvements thereon shall revert to the United States." [Italics supplied.]

The War Department has found that a portion of this land, 77.7 acres, is necessary for use in carrying out a river and harbor project, referred to as Lock and Dam No. 10, Mississippi River. The State of Iowa is willing to reconvey this portion of the land to the United States, provided that in my opinion such reconveyance will not constitute an abandonment by the State of the rest of the land within the meaning of the reverter clause of the granting act. You request my opinion accordingly.

By act of April 24, 1888, c. 194, 25 Stat. 94 (U. S. C., title 33, sec. 591), it is provided as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of War may cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings, for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, however, That when the owner of such land, right of way, or material shall fix a price for the same, which in the opinion of the Secretary of War, shall be reasonable, he may purchase the same at such price without further delay: And provided further, That the Secretary of War is hereby authorized to accept donations of lands or materials required for the maintenance or prosecution of such works."

It is apparent that the Congress has by this statute fully empowered the Secretary of War to acquire by condemnation, purchase, or gift, lands required for river and harbor

projects which have been authorized by law. From the facts recited in the opinion of your Judge Advocate General it appears that the project here involved, along with numerous other projects, is specifically authorized by the River and Harbor Act of August 30, 1935 (49 Stat. 1028, 1034). There is nothing in the act of June 4, 1936, to indicate an intention on the part of the Congress to deprive the Secretary of War of authority to reacquire on behalf of the United States, under the act of April 24, 1888, the granted lands if such lands should be found necessary for an improvement such as that authorized under the act of August 30, 1935. It is to be noted, also, that this land, in large part at least, was originally acquired by the United States by gift to form a part of the wildlife and fish refuge established pursuant to the Upper Mississippi River Wild Life and Fish Refuge Act of June 7, 1924 (43 Stat. 650), section 13 of which provides:

"Nothing in this Act shall be construed as exempting any portion of the Mississippi River from the provisions of Federal laws for the improvement, preservation, and protection of navigable waters, nor as authorizing any interference with the operations of the War Department in carrying out any project now or hereafter adopted for the improvement of said river."

From the foregoing it would seem clear that you are authorized to reacquire the land for the United States under the act of April 24, 1888, for the purpose indicated.

The act of June 4, 1936, provides that the land "is hereby granted to the State of Iowa, upon the conditions and limitations hereinafter expressed * *". The effect of the grant is to convey to the State of Iowa a fee simple title to the land subject to a condition subsequent, breach of which can be taken advantage of only by the United States. Schulenberg v. Harriman, 21 Wall. 44. Under the terms of the grant the land may revert to the United States only in case the State shall fail to maintain the land as a State park under the conditions prescribed or shall abandon the park. The question, then, is whether a reconveyance of a part of the land by the State to the United States would