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River in accordance with the provisions of the Flood Control Acts approved March 1, 1917, and March 4, 1923, are hereby made available for expenditure under the provisions of this Act, except section 13." (45 Stat. 534.)

From an examination of the foregoing section there can be no question but that a project is contemplated, and that such project is identified as the engineering plan set forth and recommended in the report submitted by the Chief of Engineers to the Secretary of War, dated December 1, 1927, and known as House Document 90, Seventieth Congress, First Session.

The fact that a board is therein created to consider the engineering differences between the above project and the plan recommended by the Mississippi River Commission in a special report dated November 28, 1927, such board to make recommendations thereon to the President, the President being empowered to decide all recommendations or questions submitted to him by such board, does not alter the fact that the Act of Congress made the engineering plan referred to, dated December 1, 1927, and printed in House Document 90, the project to be thereafter excuted, as provided in the Act.

The Act refers to such project several times as "the project," ," "the adopted project," "such project," "project herein adopted," "this project," showing that Congress contemplated and intended authorizing a specific project, which is identified by the Act as the aforesaid engineering plan dated December 1, 1927, and printed in House Document 90.

In my opinion the project thus authorized by the Act of May 15, 1928, is thus identified and now fixed and is not subject to change save by future congressional action.

It appears from Section 1 of the Act quoted above that in addition to the plan submitted by the Chief of Engineers under date of December 1, 1927, another plan had been recommended by the Mississippi River Commission in its special report dated November 28, 1927, and that there were certain engineering differences between it and the plan of December 1, 1927. It is evident that Congress did not wish to pass upon these engineering differences, and therefore created a special board which "is authorized and directed to consider the engineering differences between the adopted project and

the plans recommended by the Mississippi River Commission in its special report dated November 28, 1927." It is made the duty of the board, after giving such engineering differences due consideration, "to recommend to the President such action as it may deem necessary to be taken in respect to such engineering differences." The Act then provides that the foregoing function on the part of such special board was the limit of its authority.

We have then the adoption of a particular project by Congress. We have certain engineering differences existing between that project and another distinct plan. A board is created to examine into these engineering differences and report its recommendation to the President, thus completing the full duty of such special board.

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It must be kept in mind that only "the engineering differences are to be inquired into, all other differences between the plans, if any, having been definitely resolved by Congress in favor of the plan of December 1, 1927, so that the field of review on the part of the special board was specifically limited, and while the special board undoubtedly had some latitude in connection with its consideration of such engineering differences, nevertheless the function of the board was required to result in a recommendation to be finally made to the President, after which "the decision of the President upon all recommendations or questions submitted to him by such board shall be followed in carrying out the project herein adopted." This power of decision is only on "engineering differences," not on questions of legal rights, duties, or liabilities. Questions such as the obligation to provide flowage rights, or to make compensation in connection therewith, do not fall within the term "engineering differences."

The further language of the Act specifically stating that "the board shall not have any power or authority in respect to such project except as hereinbefore provided "necessitates. the conclusion that when the board shall have made its recommendation to the President, and the President shall have acted thereon, the full function of the board will have been fulfilled, and the board will have no further power, and therefore no further reason for existence. I am advised that

this is precisely the construction placed upon the Act by Executive authority, inasmuch as the compensation to be paid the civil member of the board was apportioned so that the final payment thereof was to be made upon action by the President on the findings of the Board.

It further appears that President Coolidge received the recommendations of the special board, considered them, and acted upon each and all of them, and that various steps have been taken by the officials in charge of the project, based upon the decisions of President Coolidge just referred to. In some instances surveys have been made; in some instances contracts have been let; in some instances bids have been advertised for.

Nowhere in the Act does it appear that any latitude whatever is permitted with respect to the project covered by the Act, save and except as is provided for in connection with the recommendations of the special board and the decision of the President thereunder. As pointed out heretofore, the board having acted and completed its duties and the President having made his decision upon such recommendations of such special board, and such decision having been acted upon to a greater or less extent by the officers in charge of the project, it would seem that the project covered by the Act has now become fixed and definite with no power of modification or change, except as provided in the project itself, by any authority save the Congress.

The Flood Control Act requires the President, upon receiving the report from the special board, to decide upon the recommendations of the special board. The decisions thus made by the President are evidently intended under the Act to become a part of the project authorized by the Act. Former Attorney General Bates in 10 Op. 469 held that

"Where an Act of Congress, establishing a general system, confers on the President the authority to do a specific act for the purpose of perfecting the means by which that system shall be carried into effect, the act of the President, when performed according to the terms of the statute, has all the validity and authority of the statute itself. It has the same force and sanction as if it had been directly embodied in the law which authorized it.

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"If, then, the act of the President, in a case of this kind, has the same force and authority as if it were embodied in the statute, it follows, in my opinion, that after that act is completed and made part of the system established by the statute, it can only be altered or annulled by the same power which originally gave it validity, viz: the legislative power." The point involved was a statute which left to the President the power of modifying the arrangement of collection districts. The Attorney General held that the act of the President, when performed, had all the validity and authority of the statute itself, and that the system established by the President under such power became the system established by the Act, and the power of the President was exhausted.

In such circumstances, it has been frequently ruled by this Department that final action taken by the President or head. of a Department is not subject to modification or review by his successor. See, for example, 17 Op. 76; 16 Op. 489; 13 Op. 387; 6 Op. 603.

For the above reasons, I am of the opinion that the project set forth in House Document No. 90, 70th Congress, 1st Session, is the legal project to be executed in accordance with the law, and that this project is fixed and not subject to review or change by this administration.

II

In respect to your remaining inquiry as to the necessity of providing compensation for flowage rights in the Boeuf and Atachafalaya Basins, I beg to advise you that there are now pending in the Federal courts having proper jurisdiction, various suits against the Secretary of War and others, involving the judicial determination of the precise question thus presented by you, and in accordance with a rule of long standing in this Department I must respectfully decline to express any opinion on your question with respect to the purchase of flowage rights, that being one of the precise issues in the pending litigation above referred to.

Respectfully,

TO THE SECRETARY OF WAR.

WILLIAM D. MITCHELL.

ACQUISITION BY THE UNITED STATES OF LAND WITHIN THE STATE OF NEW YORK

The Act of New York of April 17, 1896 (Laws 1896, c. 391), and the Act of New York of April 5, 1899 (Laws 1899, c. 242), as they have been respectively amended, express the consent of the legislature of the State of New York to the acquisition of land by the United States within their respective limitations.

The Act of April 5, 1899, supra, should be complied with in the matter of sites, not exceeding 2 acres in extent, for "post offices and other governmental offices" in cities or villages, as has been done in the past; and the Act of April 17, 1896, supra, should be complied with in the matter of other acquisitions of land embraced within the scope of its language.

DEPARTMENT OF JUSTICE,

August 26, 1929.

SIR: I have the honor to acknowledge receipt of your letter of July 1, 1929, requesting my opinion upon the proredure to be followed in obtaining the consent of the Legislature of the State of New York to acquisitions of land therein by the United States, in accordance with the direction of section 355 R. S. (U. S. C. Tit. 40, sec. 255).

The Act of April 17, 1896, of the Legislature of New York (Laws 1896, c. 391), gave such consent to the acquisition by the United States of parcels of land within the State, "situate upon or adjacent to the navigable waters thereof, for the purpose of erecting thereon lighthouses, beacons, lighthouse keepers' dwellings, works for improving navigation, post offices, customhouses, fortifications." This became Article IV, Chapter LVII, of the Consolidated Laws (Laws 1909, c. 59). It was amended by Laws 1910, c. 109; Laws 1911, c. 527; Laws 1917, c. 819; Laws 1922, c. 14; and now reads as follows (the underscored words having been added by the various amendments and the bracketed words having been eliminated by the amendment of April 19, 1910).

"The consent of the State of New York is hereby given to the purchase by the Government of the United States, and under the authority of the same, of any tract, piece or parcel of land from any individual or individuals, bodies politic or corporate within the boundaries of this State, [situate upon or adjacent to the navigable waters thereof] for the purpose of parade or manoeuver grounds, aviation fields, navy yards and naval stations, or for the purpose of

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