thereof and prior to the entry of final judgment as necessary for such proceedings and hence as payable by the Department of Justice.

The procedure under the Flood Control Act differs from the Bonneville procedure in two important respects, either of which makes the decision inapplicable to the Bonneville procedure. In the first place, it does not appear that the War Department participated in the determination of necessary and proper parties defendant, the settlement of cases by negotiation, and the determination of the proper distribution of funds. No special right of participation is given to the War Department by the Flood Control Act or the Rivers and Harbors Act. approved July 18, 1918, Ch. 155, Secs. 5 and 6 (45 Stat. 536) [40 Stat. 911]. Under the act approved March 3, 1863, Ch. 76, Sec. 13 (12 Stat. 741), it was therefore the duty of the United States Attorney in the district in which the land was situated to prosecute the action and to incur any expenses incident thereto. Inasmuch as the War Department had no special authorization to participate in the proceeding, its appropriation could not be charged with such expenses. This is in marked contrast to the Bonneville cases, where the title evidence serves a function properly performed by Bonneville.

In the second place, the decision is inapplicable to the declaration of taking procedure used in the Bonneville cases because it expressly excludes from its rule any title evidence secured after final judgment. The decision indicates that any title evidence obtained after title has been transferred and has vested in the United States, e. g., after a final judgment has been entered, would not be required by the Department of Justice but would serve a War Department function in showing title to be vested in the Government. Under the declaration of taking procedure used in the Bonneville cases, however, title vests in the Government upon the filing of the declaration of taking, and supplementary title evidence obtained at any time thereafter, even though during the pendency of the proceeding, serves a Bonneville function and the cost thereof should therefore be regarded as chargeable against the Bonneville appropriation.

Although the statutory functions of Bonneville attorneys in condemnation proceedings and the difference in the declaration of taking condemnation procedure make the decision in 8 Comp. Gen. 308 inapplicable to the present question, we suggest that in any event the decision should be reconsidered in the light of sec. 355 of the Revised Statutes, which requires that the head of an acquiring department must, at the expense of the acquisition appropriation, procure evidence of title deemed necessary by the Attorney General. The decision does not refer to or discuss the provisions of this statute. However, the application of this and other provisions of section 355 to land acquisitions under the declaration of taking procedure is implied by the Act of February 26, 1931 (46 Stat. 1422, 40 U. S. C. 258e) which modifies the title opinion requirement of section 355, provided the Attorney General renders an opinion that title is vested in the Government or that all necessary parties have been joined in the proceeding and will be bound by the final judgment therein. See also opinion of Attorney General Cushing, 7 Ops. Atty. Gen. 114 (1855).

In light of these considerations, your views are requested with respect to whether Bonneville Power Administration appropriations are available to pay charges for title services secured after the institution of comdemnation proceedings under the declaration of taking procedure.

In the decision of December 18, 1928, of former Comptroller General McCarl, 8 Comp. Gen. 308, cited in your letter, there are discussed three different situations under which abstracts of title may be required, and the appropriations chargeable in each instance (1) where the abstracts are required prior to the institution of condemnation proceedings; (2) when they are required incident to and after the condemnation proceedings have been instituted; and (3) when required after the termination of the condemnation proceedings. With respect to (1) and (3) the decision holds that the appropriation available for the acquisition of the property is properly chargeable, but as to (2) it was held that the cost of such abstracts of title should

be charged to the applicable appropriations of the Department of Justice.

You question the applicability of said decision insofar as it relates to the payment for abstracts of title obtained after the commencement of, and for use in connection with, condemnation proceedings for the acquisition of lands or interests therein for the Bonneville Power Administration and urge that they should be paid for under the appropriations for carrying out the provisions of the Bonneville Act, approved August 20, 1937, 50 Stat. 731. In support of your view, you urge (1) that, unlike the circumstances appearing in that decision, the attorneys for the Bonneville Power Administration participate, under the provisions of section 12 of the Bonneville Act, in Bonneville condemnation proceedings and that the conduct of such proceedings is a joint duty and responsibility of the Department of Justice and the Bonneville Power Administration; and (2) that the condemnation proceedings are brought under the declaration of taking procedure provided by the act of February 26, 1931, 46 Stat. 1422, under which title to the property vests in the United States when the declaration of taking is filed.

Section 2 (c) of the Bonneville Act, 50 Stat. 732, authorizes the Administrator of the Bonneville Power Administration, in the name of the United States, to acquire by, among other methods of acquisition, condemnation such real and personal property, or any interest therein, as the Administrator finds necessary or appropriate to carry out the provisions of the act, and section 2 (d) empowers the Administrator to acquire any property or property rights, which in his opinion are necessary to carry out the purposes of the act, by the exercise of the right of eminent domain and to institute condemnation proceedings therefor in the same manner as is provided by law for the condemnation of real estate. Section 12 of the act, 50 Stat. 736, referred to in your letter, provides:

The administrator may, in the name of the United States, under the supervision of the Attorney General, bring such suits at law or in equity as in his judgment may be necessary to carry out the purposes of this act; and he shall be represented in the prosecution and defense of all litigation affecting the status or operation of Bonneville project by the United States attorneys for the districts, respectively, in which such litigation may arise, or by such attorney or attorneys as the Attorney General may designate as authorized by law, in conjunction with the regularly employed attorneys of the administrator. Also, the appropriation for the Bonneville project for the current fiscal year (Public Law No. 136, approved June 28, 1941, 55 Stat. 308), provides in part:

For all expenses necessary to enable the Bonneville Power Administrator to exercise and perform the powers and duties imposed upon him by the act "To authorize the completion, maintenance, and operation of the Bonneville project, for navigation and for other purposes," approved August 20, 1937 (50 Stat. 731),

It thus appears that the Administrator of the Bonneville Power Administration is authorized to acquire real estate or any interest therein for the purposes of the act by condemnation and that, unlike the handling of usual condemnation cases where the duty and responsibility of instituting and prosecuting them are ordinarily upon the Department of Justice after the matter has been placed in the hands of that Department by the acquiring agency, condemnation proceedings for the acquisition of property for the Bonneville project appear to be for handling jointly by the Department of Justice and the Bonneville Power Administration. Under such circumstances. the cost of abstracts of title required and obtained for use in connection with such condemnation proceedings properly may be regarded as expenses chargeable to the appropriation of the acquiring agency rather than under the usual rule as stated in 8 Comp. Gen. 308, to appropriations of the Department of Justice. Accordingly, the appropriation for the Bonneville Power Administration may be regarded as available for the payment of the cost of such abstracts of title to which you refer notwithstanding one of the uses for which they may be required and obtained is in connection with such condemnation proceedings.

As to the suggestion in the penultimate paragraph of your letter that, regardless of the conclusion reached with respect to the specific question you submit the decision in 8 Comp. Gen. 308, insofar as it holds that abstracts required and obtained for use in condemnation proceedings are to be regarded as part of the expenses of the proceedings and chargeable to the appropriations made for the Department of Justice rather than to those of the acquiring agency, be reconsidered in the light of the provision of section 355, Revised Statutes, to the effect that the head of an acquiring agency shall procure any evidence of title which the Attorney General shall deem necessary and that the expenses of procuring the same shall be charged to the acquiring agency, it may be said that no reason is apparent to me at this time why the rule should be changed. The provision referred to, as now contained in said section 355, as amended and reenacted by the act of October 9, 1940, 54 Stat. 1083, is as follows:

The head or other authorized officer of any department, independent establishment, or agency, shall procure any evidence of title which the Attorney General may deem necessary, and the expenses of procurement, except where otherwise authorized by law or provided by contract, may be paid out of the appropriations for the acquisition of land or out of the appropriations made for the contingencies of the acquiring department, independent establishment, or agency.

A comparable, though less comprehensive, provision was contained in section 355, Revised Statutes, as the latter existed at the time of the decision in 8 Comp. Gen. 308. There is nothing in such provision as it now appears in the law or in the act of February 26, 1931, 46

Stat. 1422, which would require or warrant that there be altered or modified the long established rule that abstracts necessitated by and obtained for use in connection with condemnation proceedings are to be regarded as expenses of such proceedings and paid from such appropriation of the Department of Justice as may be available therefor.

(B-23199)

DEPARTMENTS AND ESTABLISHMENTS-SERVICES BETWEENPERSONAL SERVICE EMPLOYMENT AUTHORITY

Where work can be performed by a department or agency with its own funds and facilities as well as it could be performed by another department or agency, funds may not legally be transferred under authority of section 601 of the act of June 30, 1932, to such other department or agency merely for the purpose of avoiding restrictions imposed upon the transferring agency in the employment of personnel. Where the Bureau of the Census, by reason of its equipment, specially trained personnel and exclusive possession of certain statistical data, is equipped to perform for another agency statistical work for which the funds of the latter agency would be available if the work were performed by it, employees of the said Bureau who are compensated without regard to the Classification Act may be used in performance of the work-whether the work be done on a reimbursement or advance-of-funds basis-even though the appropriations from which the funds are to be transferred in payment for the work require that employees of the transferring agency be paid in accordance with the Classification Act. 21 Comp. Gen. 254; 18 id. 489; 17 id. 900; 16 id. 3, distinguished.

Comptroller General Warren to the Secretary of Commerce, February 4, 1942:

I have your letter of January 17, 1942, as follows:

The Bureau of the Census has been called on from time to time during the past eight months to prepare from its records and furnish certain special and varied statistical information to several of the National Defense Agencies of the Federal Government. These necessary data can be obtained only with the use of the Bureau's files and records and are essential for the proper advance planning of many vital phases of the National Defense program and their successful execution.

The work completed, as well as that in progress, has been done with funds of the Bureau of the Census on a reimbursable basis and the personnel engaged on it were employees under Civil Service but not subject to the Classification Act, 1923, as amended.

A statement of the jobs in process and those contemplated in the near future, showing the agencies affected and the amounts made available, is attached.

The demands for additional data of a technical and specialized character have increased to such an extent that it will not be possible for the Bureau to continue to comply with them on the present basis as the limited amount of funds available in the Bureau's appropriation will not permit it to finance these special operations on a reimbursable basis, for which it has to wait for several months before receiving payment, and carry on its regular work.

The National Defense Agencies requesting the various data from the Bureau of the Census are willing to provide in advance funds from which the estimated cost of the work to be done can be paid. However, the use of working funds to finance the operations presents a problem which involves the personnel to be used on the assignments. It is understood that the appropriations from which the advance funds would be provided limit the payment of salaries to employees classified under the Classification Act, 1923, as amended. During the Sixteenth Decennial Census period all the Departmental employees of the Bureau are under Civil Service but only a relatively small proportion of them are classified under the Classification Act, 1923, as amended. Because of the fact that the Bureau is now engaged in editing, compiling, and publishing the results

of the Sixteenth Decennial Census, the largest statistical enterprise ever undertaken, it is not practicable for the Bureau to dispose its personnel so that only employees classified under the Classification Act, 1923, as amended, will be used on the work done for the National Defense Agencies.

It is absolutely essential that the National Defense effort shall not be delayed or hampered by the lack of necessary statistical data and the Bureau of the Census is ready and willing to furnish all information in its possession to the agencies requesting it provided the funds are available to finance the estimated cost of the work. You are requested, therefore, to advise me whether working funds established out of appropriations that require Civil Service employees to be classified under the Classification Act, 1923, as amended, can be used during the present national emergency to pay the salaries at per diem rates of Civil Service Departmental employees who are not subject to the Classification Act, 1923, as amended.

The services which the Bureau of the Census has been called upon to furnish, as shown by the statements attached to your letter, include the coding, tabulating, calculating, editing, and preparing of various mailing lists, questionnaires and surveys for the Selective Service System; the War Department, Office of the Quartermaster General; the Department of Justice, Bureau of Immigration and Naturalization; and various agencies established within the Office for Emergency Management. The estimated cost of the services which the Bureau is now rendering, and those listed as contemplated in the immediate future, is shown as more than 32 million dollars, of which more than 3 million dollars would be paid from funds transferred to the Bureau by the Office for Emergency Management.

In the absence of special statutory provisions, the performance of services by one Government department for another is governed by the general provisions of section 7 of the act of May 21, 1920, 41 Stat. 613, as amended by section 601 of the act of June 30, 1932, 47 Stat. 417, 31 U. S. C. 686. The amended section, insofar as here material, provides:

(a) Any executive department or independent establishment of the Government, or any bureau or office thereof, if funds are available therefor and if it is determined by the head of such executive department, establishment, bureau, or office to be in the interest of the Government so to do, may place orders with any other such department, establishment, bureau, or office for materials, supplies, equipment, work, or services, of any kind that such requisitioned Federal agency may be in a position to supply or equipped to render, and shall pay promptly by check to such Federal agency as may be requisitioned, upon its written request, either in advance or upon the furnishing or performance thereof, all or part of the estimated or actual cost thereof as determined by such department, establishment, bureau, or office as may be requisitioned; but proper adjustments on the basis of the actual cost of the materials, supplies, or equipment furnished, or work or services performed, paid for in advance, shall be made as may be agreed upon by the departments, establishments, bureaus, or offices concerned: Provided, however, That if such work or services can be as conveniently or more cheaply performed by private agencies such work shall be let by competitive bids to such private agencies. Bills rendered, or requests for advance payments made, pursuant to any such order, shall not be subject to audit or certification in advance of payment.

The Second Deficiency Appropriation Act, 1941, Public Law 150, approved July 3, 1941, 55 Stat. 543, appropriated $36,500,000 for all expenses necessary, in the discretion of the President, to enable the Office for Emergency Management, and subordinate or related