But even assuming the remote possibility that in a few cases an interest paramount to the Government's interest would be asserted and proved, Bonneville could repurchase the easement at little more expense than the costs of a prior title examination. If the holder of the paramount interest refused to recognize the easement for a reasonable consideration, a new easement could always be condemned. If such a condemnation were brought, the defending landowner's damages would be measured by the value of the easement alone, without including the value of the Government's improvements. This is the general rule, and it has been adopted in both Oregon and Washington where Bonneville construction and acquisitions take place. Searl v. School District, 133 U. S. 553 (1890); Consolidated Co. v. Norfolk Co., 228 U. S. 596 (1913); State v. Mohler, 115 Ore. 562, 237 Pac. 690 (1925); Seattle & N. R. Co. v. Corbett, 22 Wash. 189, 60 Pac. 127 (1900).

Since it is particularly in the case of low-cost easements that Bonneville is seeking relief from high title costs, and since only in rare instances would Bonneville find it necessary to repurchase such an easement, it should be clear that the expense involved in repurchasing an occasional low-cost easement would be far less than the cost of securing complete title evidence and clearing all title defects to all such easements.

Considering the broad authority of the Bonneville Act and the absence of restrictions in any other statute provided the Attorney General has waived the requirement for his own opinion, it is submitted that the Bonneville Power Administrator may acquire and improve right-of-way easements with such title and upon such evidence as he determines to be in the best interests of the Government.

Your views with respect to these matters are respectfully requested.

In decision of February 21, 1940, 19 Comp. Gen. 739, it was held that payments for power transmission line easements for the Bonneville project could not lawfully be made without obtaining the Attorney General's approval of titles pursuant to section 355, Revised Statutes.

Section 355, Revised Statutes, was subsequently amended by the act of October 9, 1940, Public, No. 825 (54 Stat. 1083), to read in part as follows:

No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort. fortification, navy yard, customhouse, lighthouse, or other public building of any kind whatever, until the written opinion of the Attorney General shall be had in favor of the validity of the title.

Notwithstanding the provisions of this or any other law, whenever the average value of any lands or interests in land to be acquired by or on behalf of the United States under a single option or contract of sale does not exceed $10 per acre (hereinafter referred to as "low-value lands"), the title may be accepted subject to such infirmities as, in the opinion of the Attorney General, may, without jeopardizing the interests of the United States, be left for removal by condemnation or other appropriate proceedings, if and when necessary: Provided, That the total value of any lands or interests to be acquired under a single option or contract of sale subject to an infirmity does not exceed $3,500. No public money shall hereafter be expended for the acquisition of such low-value lands or interests in land by or on behalf of the United States for any purpose until the written opinion of the Attorney General has been had approving the title subject, if expedient, to infirmities as herein provided. However, no money in excess of $2,500 shall be expended for the construction of buildings, works, or other improvements (except roads, trails, and fire-protection improvements) on any site, tract, or parcel of land the title to which is subject to infirmities, until the written opinion of the Attorney General in favor of the validity of the title has been had as in the case of other lands. For the purpose of this act. values of lands and interests in land shall be determined by the consideration paid or to be paid.

The Attorney General is hereby authorized to approve the title to easements or rights-of-way to be acquired by or on behalf of the United States, subject to such infirmities as, in his opinion, will not jeopardize the interests of the United States.

The foregoing provisions of this section shall not be construed to affect in any manner any existing provisions of law which are applicable to the acquisition of lands or interests in land by the Tennessee Valley Authority; and nothing in this section shall be construed to affect in any manner any authority which the Secretary of War, the Chief of Engineers, or the Secretary of the Interior have under the provisions of law in force on the date this section as amended takes effect with respect to the approval by them of title to land or interests in land acquired by the War Department or the Department of the Interior, as the case may be. Nor shall the foregoing provisions of this section, or the provisions of any other law, be construed to require any opinion of the Attorney General in connection with the acquisition or improvement of easements and rights-of-way for military or naval purposes; or for the acquisition or improvement of easements and rights-of-way by the Department of Agriculture for forest and other conservation purposes where the cost of any such easement of right-of-way acquired under a single instrument of conveyance and the cost of any improvement thereon does not exceed $2,500; and the Attorney General may, in his discretion, waive the requirement for his opinion in connection with the acquisition or improvement of easements and rights-of-way for other purposes when, in his opinion, such waiver will not jeopardize the interests of the United States." [Italics supplied.]

The last paragraph quoted, finishing with the waiver clause here in question, was incorporated in the act as an amendment recommended by the House Committee on the Judiciary, the Committee Report, House Report No. 2514, Seventy-sixth Congress, third session, making the following explanation:

The amendment made by the Committee on the Judiciary was drafted by the Department of Justice to meet the requirements of the War Department, the Department of Agriculture, and the Tennessee Valley Authority. Under the amendment the existing provisions of law applicable to the acquisition of lands or interests in land by the Tennessee Valley Authority would not be affected. Nor would there be required an opinion of the Attorney General in connection with the acquisition or improvement of easements and rights-of-way for military or naval purposes; or for the acquisition or improvement of easements and rights-of-way by the Department of Agriculture for forest and other conservation purposes where the cost of any such easement or right-of-way acquired under a single instrument of conveyance and the cost of any improvement thereon does not exceed $2,500; and the Attorney General is empowered in his discretion to waive the requirement for his opinion in connection with the acquisition or improvement of easements and rights-of-way for other purposes when, in his opinion, such waiver will not jeopardize the interests of the United States. Thus the bill, as finally enacted, contained the provisions of the original bill, third paragraph quoted, supra, authorizing the Attorney General to approve the title to easements or rights-of-way to be acquired by or on behalf of the United States "subject to such infirmities as, in his opinion, will not jeopardize the interests of the United States," together with the provision subsequently added authorizing the Attorney General, in his discretion, to "waive the requirement for his opinion in connection with the acquisition or improvement of easements and rights-of-way for other purposes when, in his opinion, such waiver will not jeopardize the interests of the United States." The two provisions, while complementary in purpose to per

mit the acquisition of easements and rights-of-way without unnecessary restrictions, are different in scope and operation. Under the first, the Attorney General may approve the title to easements or rights-ofway subject to such infirmities as in his opinion will not jeopardize the interests of the United States. This, of course, contemplates that the actual condition of the title will be examined by the Attorney General to determine what infirmities exist and whether they safely may be waived. The second provision goes much further and permits the Attorney General to waive even the requirement of his opinion as to the condition of the title, where, in his discretion, he determines that such course safely may be followed. In contrast with the first provision, in effect authorizing a waiver of infirmities in titles to easements or rights-of-way, this second provision authorizing a waiver of the Attorney General's opinion on the validity of the title contemplates that no examination of the title need be made by the Attorney General in such cases. There would be no reason for the Attorney General to examine the title except to give his opinion thereon, and, consequently, the waiver of the title opinion connotes the elimination of the need for any title examination by him in such cases.

The question here presented is as to what administrative examination of titles by the acquiring agency is required in lieu of the Attorney General's examination and opinion in cases or classes of cases involving the acquisition of easements or rights-of-way, where the Attorney General, pursuant to the statute, has predetermined that a waiver of his title opinion will not jeopardize the interests of the United States. Clearly, if a strict examination of the title in such cases were required to protect the interests of the Government, there would be no occasion for the Attorney General to waive his opinion, nor reasonable basis for the statutory provision authorizing such waivers in the Attorney General's discretion. It is not to be assumed that the Congress intended by such provision merely to permit the transfer to the acquiring agency of the normal title examination duties of the Attorney General in such cases, with the resulting and unnecessary increase, if not duplication, of work, personnel, and expense. Rather, the provision is to be viewed as committing to the Attorney General the discretion to determine in what cases easements and rights-of-way safely may be acquired and utilized without the usual strict examination into the condition of the titles involved, and as thus leaving largely to the acquiring agency the determination of what evidence of title should be obtained in such cases to meet the requirements of its program under authorizing statutes. On the other hand, such discretion in the acquiring agency is a legal discretion, and, of course, may not transcend the limits imposed or contemplated by legislation authorizing the acquisition of the ease

ments or rights-of-way, or be exercised in an arbitrary or unreasonable manner. It would not justify payments to persons having no color of right, interest, or title in the land to convey.

Subsections (b), (c), and (f) of section 2 of the Bonneville Project Act of August 20, 1937, 50 Stat. 732-733, provide:

(b) In order to encourage the widest possible use of all electric energy that can be generated and marketed and to provide reasonable outlets therefor, and to prevent the monopolization thereof by limited groups, the administrator is authorized and directed to provide, construct, operate, maintain, and improve such electric transmission lines and substations, and facilities, and structures appurtenant thereto, as he finds necessary, desirable, or appropriate for the purpose of transmitting electric energy, available for sale, from the Bonneville project to existing and potential markets, and, for the purpose of interchange of electric energy, to interconnect the Bonneville project with other Federal projects and publicly owned power systems now or hereafter constructed.

(c) The administrator is authorized, in the name of the United States, to acquire, by purchase, lease, condemnation, or donation, such real and personal property, or any interest therein, including lands, easements, rights-of-way, franchises, electric transmission lines, substations, and facilities and structures appurtenant thereto, as the administrator finds necessary or appropriate to carry out the purposes of this act. Title to all property and property rights acquired by the administrator shall be taken in the name of the United States.

(f) Subject to the provisions of this act, the administrator is authorized, in the name of the United States, to negotiate and enter into such contracts, agreements, and arrangements as he shall find necessary or appropriate to carry out the purposes of this act.

In view of this broad statutory authority and the statutory purposes to be served, I think there can be no reasonable doubt of the legal authority of the Administrator to acquire easements and rightsof-way on the basis and under the conditions set forth in your letter in cases where the Attorney General, pursuant to section 355, Revised Statutes, as amended by the act of October 9, 1940, supra, has waived the requirement of his opinion in connection therewith. Accordingly, you are advised that this office will not be required to object to payments, otherwise correct and proper, made in connection with the acquisition of easements and rights-of-way on such basis where it is shown that the Attorney General has waived the requirement for his opinion, and where the payment is supported by an appropriate administrative statement of the payee's claimed interest in the land over which the easement or right-of-way is granted and of the evidence reasonably relied on by the Administrator in verification of such claim, e. g., actual occupancy of the land, tax rolls, last conveyance of record, etc. The requirement of such evidence in support of payments actually made in connection with the acquisition of easements and rights-of-way is not to be understood, however, as implying any requirement that all other possible outstanding interests in the land must be covered before payment is made, that being a matter primarily of administrative concern in determining what rights should be acquired safely to utilize the easements under all the circumstances involved.

It follows that insofar as the expenditure of public funds is concerned, the first part of the first question specifically stated in your letter may be answered in the negative, the second part of said question is answered in the affirmative, the first part of the second question is answered in the negative, and the second part thereof in the affirmative.

SELECTIVE

SERVICE

(B-18947)

SYSTEM-INSTRUCTION

OF REGISTRANTS UNABLE TO MEET EDUCATIONAL REQUIREMENTS FOR INDUCTION

Funds provided for the operation and maintenance of the Selective Service System are not available for educating registrants so that they may meet the educational requirements for induction into the armed forces of the United States. Funds provided by the Emergency Relief Appropriation Act, fiscal year 1942, may be used for the prosecution on a Federal basis of a project for educating Selective Service System registrants to a standard which conforms with the minimum educational requirements for induction into the armed forces of the United States, but the Selective Service System, as sponsor of the project, may not use moneys appropriated for its operation and maintenance to obtain any materials to be used in connection therewith.

Comptroller General Warren to the Director of Selective Service, August 15, 1941:

I have your letter of July 19, 1941 (your reference 7-7.17-53), as follows:

Subparagraph 61⁄2b [d] of MR 1-7 of the Army Regulations reads as follows: "No registrant in the continental United States will be inducted into the military service who does not have the capacity of reading and writing the English language as commonly prescribed for the fourth grade in grammar school. All registrants who have not completed the fourth grade in grammar school will be examined at induction stations prior to induction by means of tests to be prescribed by the War Department."

The Seventy-sixth Congress, in adopting the Selective Training and Service Act of 1940, declared that it is imperative to increase and train the personnel of the armed forces of the United States. Under this act, the Selective Service System may deliver and the Army may train not to exceed 900,000 men annually.

The educational requirements of the War Department are resulting and will continue to result in the rejection of large numbers of registrants who otherwise would be acceptable. The rate of rejection is such that it is becoming increasingly apparent that in some of the states, in order to meet their quotas, it may be necessary to select for induction some of the registrants who have heretofore been placed in a deferred classification as a result of dependency or occupation. In order to be fully prepared to meet any emergency and be in a position to comply with the defense needs of the nation, the Selective Service System feels a strong responsibility to assist in the removal of the remedial deficiencies of those registrants who, with some assistance, can be made acceptable to the armed forces of the nation. In many sections of the country, there are registrants who are willing and anxious to volunteer their services, but who cannot comply with the educational standards of the armed forces. In addition to the need for meeting the manpower requirements of the Selective Training and Service Act of 1940, it is our opinion that the maintenance of good public relations and morale demands that some effort be made to rehabilitate those able-bodied young men who are able to contribute nothing to the defense of their nation, solely because of some minor remedial deficiency. The Selective Service System has been offered an opportunity to initiate a