chase land on account of the United States need not be conferred by express provision of statute but may be implied. 15 Op. A. G. 212; 22 Op. 665; 37 Op. 288; see also 28 Op. 413; but cf. 11 Op. 201; 19 Op. 79. Thus, in 15 Op. 212, an appropriation for "the construction of a movable dam, or a dam with adjustable gates, for the purpose of testing substantially the best method of improving permanently the navigation of the Ohio River and its tributaries," was held available for the purchase of such land as was necessary for the construction of the dam. In 22 Op. 665, an appropriation for "transportation of the Army and its supplies," including "opening roads and building wharves and for constructing roads and wharves," was held available for the purchase of necessary land on which to construct wharves. And in 37 Op. 288, an appropriation "for making loans for and otherwise aiding in the purchase of subsistence homesteads," was held available for the purchase of land upon which subsistence homesteads were to be constructed. * *k * The conclusions reached in the foregoing opinions are confirmed by the decision of the Circuit Court of Appeals for the Second Circuit in Burns v. United States, 160 Fed. 631, the only court decision dealing with this precise issue. In that case an appropriation "for erecting a mound or sea wall along the peninsula which separates Lake Erie from Buffalo Creek" was held to justify the purchase of the land necessary for construction. With respect to an objection based upon R. S. 3736 the court said: "If this strip was necessary to or proper for the protection of the sea wall we think that the act impliedly authorized the purchase. The power to build a sea wall implies the power to do whatever is necessary to that end." (p. 634) See, also, United States v. Threlkeld, 72 F. (2d) 464 (C. C. A. 10th), certiorari denied 293 U. S. 620. In the present case, as stated in your letter, the construction of migratory labor camps necessarily requires the use of land. I am of the opinion, therefore, that authority to acquire such land may be implied and that the funds available under the Emergency Relief Appropriation Act, 1941, may be used for that purpose. Respectfully, ROBERT H. JACKSON. USE OF AIRPORTS An exclusive right to use an airport for a particular aeronautical activity is forbidden by section 303 of the Civil Aeronautics Act of 1938. The term "exclusive right" as used in section 303 means a right excluding or debarring another or others from enjoying or exercising a like right. The SECRETARY OF COMMERCE. JUNE 4, 1941. MY DEAR MR. SECRETARY: Reference is made to the letter of the Acting Secretary dated April 30 requesting my interpretation of section 303 of the Civil Aeronautics Act of 1938 (June 23, 1938, c. 601, 52 Stat. 973, 986), which provides: "No Federal funds, other than those expended under this act, shall be expended, other than for military purposes (whether or not in cooperation with State or other local governmental agencies), for the acquisition, establishment, construction, alteration, repair, maintenance, or operation of any landing area, or for the acquisition, establishment, construction, maintenance, or operation of air navigation facilities thereon, except upon written recommendation and certification by the Administrator, made after consultation with the Authority, that such landing area, or facility is reasonably necessary for use in air commerce or in the interests of national defense. Any interested person may apply to the Administrator, under regulations prescribed by him, for such recommendation and certification with respect to any landing area or air navigation facility proposed to be established, constructed, altered, repaired, maintained, or operated by, or in the interests of, such person. There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended." The last sentence of this section declares that "there shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended." Funds for the construction, improvement and repair of not to exceed 250 "public airports and other public landing areas" have been appropriated by the act of October 9, 1940, c. 780, 54 Stat. 1030. The Acting Secretary states that these funds are being expended by the Administrator of Civil Aeronautics under the Civil Aeronautics Act of 1938, and that some airports which he desires to develop in his current program have "outstanding contracts and leases granting exclusive rights" to conduct at those airports particular "aeronautical activities, such as air carriers, charter operators and flying schools." It further appears that similar contracts and leases have also been found at airports subject to the provisions of section 303 upon which other Federal funds have been expended, or are being expended. The question which the Administrator is required to determine and upon which my advice is desired is whether an exclusive right to use an airport for a particular aeronautical activity, such as an air carrier, is an "exclusive right for the use of any landing area" within the meaning of section 303. The restrictions imposed by the provisions of section 303 of the Civil Aeronautics Act of 1938 upon the expenditure of Federal funds upon landing areas and air navigation facilities make it clear that the term "exclusive right” as used in the section was intended to describe a power, privilege, or other right excluding or debarring another or others from enjoying or exercising a like power, privilege, or right. This meaning is confirmed by the legislative history which shows that the purpose of the provision is to prohibit monopolies and combinations in restraint of trade or commerce and to promote and encourage competition in civil aeronautics in accordance with the policy of the act (sec. 2). Cong. Rec., v. 83, pp. 6729, 6730. See, also, section 302 (a) of the statute which, in respect of the powers and duties of the Administrator, provides that no exclusive rights shall be granted for the use of any civil airway, landing area, or other air navigation facility. It seems very doubtful that the term "exclusive right for the use of any landing area" was intended to apply only to the use of an airport for all aeronautical purposes or to the total of the aeronautical uses to which it is or may be devoted. Under such a construction the grant to one person of the exclusive right to use an airport for air carrier service would be permissible so long as another person or other persons used or were authorized to use it for other aeronautical activities. But this construction would give a monopoly at the airport to the air carrier operator and thus would frustrate the purpose of the limitation upon the use of Federal funds. I find nothing in the language of the statute or its history requiring such a construction. The provision is clearly applicable to any right for the use of a landing area or an airport in civil aeronautics which is exclusive in character. Accordingly, it is my opinion that the grant of an exclusive right to use an airport for a particular aeronautical activity, such as an air carrier, falls within the provision of section 303 of the Civil Aeronautics Act of 1938 proscribing any exclusive right for the use of any landing area. Other provisions of the statute are designed to insure the safety of the public and of persons engaged in air commerce. The above conclusion does not mean that in administering the provisions of section 303 it is necessary to permit such competition as would endanger the safety of the public and of persons engaged in air commerce. Any possible conflict between section 303 and the safety provisions of the statute is not presented by your present request for my opinion. Respectfully, ROBERT H. JACKSON. WITHDRAWAL OF PUBLIC LANDS The President is authorized to withdraw and reserve public lands for public uses freed of the operation of the mining laws notwithstanding the provisions of the Withdrawal Act of June 25, 1910. A proposed Executive order entitled "Withdrawal of Public Lands for Use in Connection with the Squaw Butte Experimental Station-Oregon" is approved as to legality. The SECRETARY OF THE INTERIOR. JUNE 4, 1941. MY DEAR MR. SECRETARY: Reference is made to your letter of February 13, 1941, and to the proposed Executive order* entitled "Withdrawal of Public Lands for Use in Connection with the Squaw Butte Experimental Station— Oregon" submitted by you and forwarded for my consideration by the Director of the Bureau of the Budget in accordance with the provisions of Executive Order No. 7298 of February 18, 1936. The proposed Executive order would withdraw certain *No. 8911, Sept. 27, 1941. lands of the public domain in the State of Oregon from all forms of appropriation under the public land laws, and reserve such lands for the use of the Secretary of the Interior as an experimental range for scientific research and other studies to provide basic information for the administration of the Taylor Grazing Act of June 28, 1934, c. 865, 48 Stat. 1269 (U. S. C., title 43, secs. 315, et seq.). You state that the lands now comprise part of a grazing district established under the said Taylor Grazing Act and are not subject to disposition under the public land laws generally but are open to location and entry under the Federal mining laws. The purpose of the proposed order is so to withdraw and reserve the lands that they will not be subject to such mining laws. In submitting the order you rely upon no express statutory authority for its execution but upon the general authority of the President to withdraw public land for public use freed of the operation of the mining laws, notwithstanding the provisions of the act of June 25, 1910, c. 421, 36 Stat. 847 (U. S. C., title 43, secs. 141-3), as amended by the act of August 24, 1912, c. 369, 37 Stat. 497. This act, generally referred to as the Withdrawal Act, reads in pertinent part as follows: "That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such. withdrawals or reservations shall remain in force until revcked by him or by an act of Congress. "Sec. 2. That all lands withdrawn under the provisions of this act shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals * Unless these provisions of the Withdrawal Act require a contrary conclusion, there is no doubt that the President has the power to withdraw and reserve public lands for public uses, freed of the mining laws which would be applicable except for such withdrawal. This was decided by the Su |