2, 214 World War II dead to be returned and available cemeteries-Continued Towa: Keokuk. Mansas: Fort Leavenworth.. Fort Scott... Kentucky: Camp Nelson.. South Carolina: LEGAL AUTHORITY FOR NATIONAL CEMETERIES Mr. ENGEL. We were confronted last year with a situation on three cemeteries, namely, at Alaska, Hawaii, and Puerto Rico, where, with the exception of Hawaii, the cemeteries had not been authorized by law. I understand the budget officer has made a ruling that the Department of the Army has authority to establish national cemeteries without further authorization, under the Repatriation Act. Is that a ruling you have made? General LARKIN. Not by the Repatriation Act; no, sir. Mr. ENGEL. By what act? General LARKIN. By a previous act. Mr. ENGEL. When was that act passed? Colonel MARSHALL. It is under the general act found in the provisions of sections 4870, 4871, and 4872 of the Revised Statutes, 24 United States Code, 271-273. Mr. ENGEL. In what year was that act passed? Colonel MARSHALL. That was in 1877. An opinion was rendered by the Judge Advocate General based on that act. I think it is in the testimony of last year. Mr. ENGEL. You mean under your interpretation of that act you can buy land and establish a new cemetery in any State of the Union Colonel MARSHALL. No, sir. Mr. ENGEL. What are the limitations? Colonel MARSHALL. The limitations are that Congress must firs appropriate the necessary funds. Mr. ENGEL. But if the land is donated, then you can? General HORKAN. You can either purchase it or get it by donation Mr. ENGEL. Then why this new cemetery act that they are talking about passing? Congress has not been aware of your authority apparently; because we have been arguing in here for the last 5 or i years about establishing a new cemetery in every State. Mr. MAHON. I think perhaps the point is this, that under existing law if you had appropriations and if the Army was willing to tak the initiative, they have the authority to construct new cemeteries but they hesitate to do that when the matter is being considered by Congress and without a direct expression on the current will o Congress. That is my recollection. General LARKIN. That is correct. Mr. ENGEL. What I do not want to see done is this: We passed ar act for a new national cemetery in Oregon several years ago, pu through by itself on unanimous consent, as I recall. I do not want to have a situation where the Department of the Army is pressured by politics into putting a new cemetery somewhere. I think Congress ought to say where it goes. General HORKAN. That is correct. We will not put in any new national cemetery until Congress has approved it. We are not asking anything Mr. ENGEL. Has the Attorney General ruled on that, or the Comp troller General? Colonel MARSHALL. No, sir. Mr. ENGEL. Could you get a ruling of the Comptroller General or that? Colonel MARSHALL. We are in process of getting a ruling of the Comptroller General on that. Mr. CASE. Mr. Chairman, this opinion which has been handed me was rendered by the Judge Advocate General of the Army on November 30, 1934. General HORKAN. We are not asking for any national cemeteries without approval of Congress. Mr. ENGEL. I would like to get an opinion from the Attorney General and the Comptroller General sources outside the Armyas to whether or not you have authority. I would like to get that settled once and for all. I think the committee is going to appropriate any money that is required to bury the dead, and you will get that from us, but I would like to get that point settled. General LARKIN. Yes, sir. Mr. ENGEL. The national cemetery you expect to establish in Guam will be established in accordance with the authority you have nder that ruling of the Judge Advocate General? General LARKIN. And with the approval of Congress in appropriating the necessary funds to do so. You see, we cover it specifically in the justifications. CEMETERY AT GUAM Mr. ENGEL. Are you going to utilize the present cemetery at Guam for a national cemetery? General LARKIN. No, sir; because that place is not suitable. It is too low, and there is too much ground water in it. But we have selected a site there, in conjunction with the Navy and Air Forces, which has been entirely agreed to. VETERANS BURIED IN PRESENT CEMETERY AT GAUM Mr. ENGEL. How many men are buried in the present cemetery at Guam? General HORKAN. Approximately 11,000 are to be permanently buried in Guam. Mr. ALBEE. 12,930 are buried there now. Mr. ENGEL. Soldiers? Mr. ALBEE. Yes, sir. Mr. ENGEL. How many men do you expect to bury in the new cemetery? Mr. ALBEE. Approximately 11,000 Mr. ENGEL. Do you expect to move these 12,000 bodies to the new Cemetery? Mr. ALBEE. They are in Guam now. They have been moved from Iwo Jima, and the ones who were killed at Saipan are already there. Mr. ENGEL. They are already in the new cemetery site? General LARKIN. No, sir; not in the new cemetery site. Mr. ENGEL. But you have moved them to the present cemetery site? Mr. ALBEE. At Guam. General LARKIN. They have been moved to Guam, but not to the new site. Mr. ENGEL. I mean they are buried in the present cemetery that we visited there? General LARKIN. They are stored above ground there now. Mr. ALBEE. Yes, sir. In addition to that, there will be some. 10,000 moved from Okinawa to Guam, of which approximately 40 percent will be moved to the new site for permanent burial. Mr. ENGEL. I asked you how many veterans' bodies were buried at the present cemetery in Guam. General LARKIN. You mean actually buried? Mr. ENGEL. Actually buried. NUMBER TO BE BURIED AT GUAM General HORKAN. 11,000 is the figure, and there are 10,000 others over there in that area-approximately 22,000. Mr. ENGEL. There are approximately 22,000? Mr. ALBEE. That is right. Mr. ENGEL. And you are going to disinter 11,000 and move them to the new site? Mr. ALBEE. Yes, sir. General HORKAN. Plus those buried in Guam now. Mr. ENGEL. Or about 20,000 more? General HORKAN. Yes. Mr. ENGEL. 30,000 all told? General HORKAN. A large percentage of those are coming home. There will be eventually buried in the cemetery created at Guam about 11,000. Mr. ENGEL. I thought that cemetery at Guam was a pretty good cemetery. General HORKAN. It has been surveyed very carefully by the engineers in conjunction with the Army, Navy, and Air Corps, and the water table is very high. They have gone over the thing very carefully and want to move it to Tumon Bay, which is a higher site and the best site on Guam for a permanent cemetery. The water table is too high at the other place. Mr. ENGEL. How near the surface is the water table? General HORKAN. We do not have that figure, but borings were made by the engineers at Guam, in conjunction with the Navy, Army, and Air Corps and were surveyed very carefully. NEW CEMETERY AT GUAM Mr. ENGEL. How much money is in this budget for the new cemetery; how much is it going to cost at Guam? Colonel MARSHALL. The amount in this estimate is $815,402. That is the initial cost. Mr. ENGEL. What will be the total cost? Mr. ENGEL. For how many acres of land? Mr. ENGEL. For how many graves? General HORKAN. There will be 11,000 finally in this permanent cemetery at Guam. The initial development is 55 acres. Mr. ENGEL. About 11,000 bodies will be buried there? General HORKAN. Yes, sir. Mr. ENGEL. And the rest of them will be brought back? General HORKAN. The rest of them will be brought back. Mr. ENGEL. And, of course, you will disinter some of the bodies in the present cemetery, about 50 percent, and bring them back? General LARKIN. Yes, sir; depending on the desire of the next of kin. Mr. ENGEL. In other words, of the 12,000 bodies, 50 percent will be disinterred from the present cemetery whether you have the new cemetery or not? General LARKIN. That is right. Mr. ENGEL. Then you will move the other 50 percent from the present cemetery? General HORKAN. To Tumon Bay. Mr. ENGEL. What is the soil there? General HORKAN. It has a coral subsoil, but you have quite a bit of topsoil above it. Mr. MAHON. Does anyone present know where the present cemetery is with respect to the main harbor at Guam? Mr. KRUSE. This is the location in regard to the naval hospital and here is the Guam National Cemetery, and this is Tumon Bay, and this is Harmon Field [exhibiting map]. This is an extension of the east-west runway of Harmon Field. Mr. MAHON. Is this the southern part of Guam? Mr. KRUSE. No; This is the northern part of Guam. Mr. MAHON. Harmon Field is north; is it not? Mr. KRUSE. It is right adjacent. It is in the north central part of the island. LEGAL AUTHORITY FOR CONSTRUCTION OF NATIONAL CEMETERIES Mr. ENGEL. Mr. Case has called my attention to the fact the authorization to construct cemeteries is based upon, first, the Judge Advocate General's opinion dated November 30, 1934, and the act of May 16, 1946, and the Department of the Army has taken the position, apparently, that Congress authorized the appropriation in that act. Then they quote Cannon's Precedents to the effect that-statutory authorization for maintenance of a governmental service authorizes essential expenses incident thereto. I think that is rather far-fetched, because if the authorization of the service of a building would authorize some new building, that is a rather broad authorization. Nevertheless, we will place this in the record at this point and get the opinion of the Attorney General and Comptroller General. (The matter above referred to is as follows:) Legislative authority. The authority upon which this estimate is based is founded upon an interpretation of the provisions of sections 4870, 4871, and 4872 of the Revised Statutes (24 U. S. C. 271-373) rendered by the Judge Advocate General of the Army in an opinion dated 30 November 1934. In his opinion, the Judge Advocate General held as follows: "(a) The Secretary of War is authorized to acquire necessary land for the purpose of national cemeteries, either by purchase or condemnation proceedings, and the sum necessary for such purposes may be taken from any moneys appropriated for the purposes of national cemeteries. (b) The provisions of section 4870 Revised Statutes constitute sufficient authority of law upon which to base a request for an appropriation for the purpose of acquiring lands for national cemeteries. However, such request if initiated by the War Department, must be included in the budget.' A logical extension of this interpretation is considered to lead to the conclusion that national cemeteries may also be etablished upon donated lands under this authority, since the authority is sufficiently broad to permit the expenditure of public funds for the acquisition of lands for the same purpose. The request for funds for the three proposed national cemeteries in the Territories and possessions is based upon the general authority outlined above. There appears to be no question as to the legislative authority for the establishment of the national cemeteries in Alaska and Puerto Rico. However, some question has been raised as to the establishment of the cemetery in Honolulu, Hawaii, because of the existence of Public Law 298, Seventy-seventh Congress, which authorized the appropriation of $50,000 to establish a national cemetery at that point. In this connection, it may be pointed out that some doubt exists that the latter statute constitutes a limitation upon the amount which may be appropriated for a cemetery in Hawaii since the funds now being requested are based not upon |