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? 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. Is that a higher site? 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 that particular statute, but upon the general authority of the Secretary of the Army as set forth above. It is pertinent to point out further that the act of May 16, 1946, directed the Secretary of War to return remains of World War II dead to their homeland for interment "at places designated by the next of kin or in national cemeteries provided such remains are entitled to interment therein." Unless the national cemeteries required for this purpose are in existence, the act cannot be carried out. It is believed that the authority to perform a task of this kind carries with it the authority to do such things as are necessary to carry it out. The statute requiring the return of World War II dead and their burial in national cemeteries cannot be carried out unless cemeteries of the size and capacity required are made available under the law. It is not reasonable to assume that Congress passed a law requiring the return and interment of World War II dead without intending that such law make possible the performance of those functions. asmuch as the statute pertaining to return of World War II dead and requiring an expansion in the size and use of national cemeteries was passed after the act of November 21, 1941, relating to the establishment of a cemetery in Hawaii, it appears that the later statute had the effect of superseding the earlier statute even if the earlier statute be regarded as restrictive at the time of passage. Therefore, the amount of $50,000 specified in the 1941 statute can no longer be regarded as applicable because of the enactment of the 1946 statute greatly increasing the scope of national cemetery use. In The act of May 16, 1946, also authorized the appropriation of sums necessary to carry out the provisions of the act. The establishment of national cemeteries at the locations and of the size required for the repatriation program is a necessary incident to that program. The authorization of a function has always been considered to constitute authorization for necessary expenses incident to the function. In this reference is made to Cannon's Precedents, volume 7, section 1235, which states "Statutory authorization for maintenance of a governmental service authorizes essential expenses incident thereto." Mr. ENGEL. What I want is this: if this committee puts the money in for a cemetery at Guam and somebody makes a point of order in the House against it, I want to have the complete legal authority for it. MOVEMENT OF BODIES TO GUAM CEMETERY Mr. CASE. Why did you move those bodies to Guam rather than maintain the cemetery where they were? General HORKAN. In the first place the majority are Navy and Marine bodies. The question of the suitability of a cemetery for the burials was discussed with the American Battle Monuments Commission of which General Vandegrift was the Navy representative-he was a former Commandant of the Marine Corps and he was favorable to Guam. We had bodies in many islands in and around Guam, and Guam itself is a centrally located point; it is on the direct route from Hawaii to the Philippine Islands; we have troops in Guam and people visiting those cemeteries at later dates would have a place to stay. Those were controlling factors that influenced the Navy Department to have the cemetery at Guam. Mr. CASE. Does the concentration of those bodies at Guam mean that you are abandoning all of the other island cemeteries? General HORKAN. That is correct. Mr. CASE. What about Tarawa? General HORKAN. Yes, the only cemeteries we will have in the Pacific will be at Manila for the Philippines, Guam, and Hawaii. Mr. CASE. There is no sentimental reason that I can think of why those who fell at Tarawa or on some of these other islands which more or less marked the historical progress of the war should be buried at Guam; if they are going to be moved from those islands where they fell I would think that they should be moved to either the mainland of the United States or to a place like Hawaii where you have much more in the way of facilities for the visitors and the next of kin and for the servicing of the cemetery in various ways. General HORKAN. Guam is centrally located for this concentration, and if the next of kin wanted the burial overseas Guam would be the closest to the place where they fell. Mr. CASE. If they wanted them buried overseas they could be just as well placed in a cemetery in Hawaii as Guam. General HORKAN. There is a cemetery at Guam, and the one at Hawaii is going to have to take a certain number of War II dead plus the veterans who will die later on in Hawaii; we have to have a cemetery in Hawaii for future dead. Mr. MAHON. Will you pardon an interruption, Mr. Case? Mr. MAHON. I am just wondering if the people were notified that you were going to move the body of a soldier from Tarawa; for instance, to Guam if they were aware of the fact that they could have been buried at a cemetery in Hawaii; whether they had any decision in the matter. General HORKAN. We originally asked them for their wishes, and whether the body was to be brought home or remain overseas. Now after we move them and bury them we notify them where they are located. Mr. MAHON. You did not notify them before? General HORKAN. No, not in the first place, during the concentration phase, but they were notified after they were newly buried. Now they have the opportunity to decide if they want the body to be brought home; they can change their original decision, and that quite a few are doing. Mr. CASE. I would think so. Mr. MAHON. Have you had any complaints that you did not notify them? General HORKAN. We have had some complaints that they should have been notified, but when you consider there were 454 cemeteries and burial places on VJ-day, and that they were scattered in some 80 countries Mr. MAHON. I agree with you that concentration should have been made, but it would seem to me that the people ought to have been notified that the concentration was necessary and asked whether they still wanted the remains to stay overseas, and that was not done until after their location. General HORKAN. That was done after the concentration. Mr. CASE. Why was it not done sooner; there was no request by the next of kin to have them moved to Guam; apparently none? General HORKAN. Not originally; they were notified after they were brought in. Mr. CASE. All the arguments that had been advanced by various people against the removal of bodies have rested upon the feeling or suggestion that if the bodies are to stay over they they ought to remain on the area where they fell. If now they are to be moved out of such historical places as Leyte or Tarawa or from any other island, that argument is pretty well destroyed, is it not? General LARKIN. We had some 450 temporary cemeteries; we could not leave the bodies in all of these temporary cemeteries. We had to assemble them in the major cemeteries. General HORKAN. It was one of the questions which makes the program difficult. Mr. CASE. What about the cemetery at Guadalcanal? Are the bodies going to be moved out, or have the bodies been moved out of Guadalcanal. General HORKAN. They are going to be moved out. Mr. CASE. At Guadalcanal I was very much impressed-it was either Guadalcanal or Tarawa-I was very much impressed by the fact that the natives had already built a memorial chapel. General HORKAN. Yes. Mr. CASE. To go along with the cemetery that had been established. General HORKAN. Yes. It is a question of maintenance, too; and Guam is a United States possession; the other islands are mandates. General LARKIN. The Battle Monuments Commission and the War Department decided how many permanent cemeteries there would be and decided there would be 16 permanent cemeteries. Mr. CASE. Was there any suggestion ever made to the British that it might be fitting if they were to transfer such islands as Tarawa to the United States so they might become a permanent historical site? General LARKIN. No. SELECTION OF OVERSEAS CEMETERY SITES General HORKAN. No, that was not done, but in the over-all study of this problem of bringing the bodies back to the location of these cemeteries, the question was gone into very thoroughly by the Battle Monuments Commission, the Department of the Army, and everyone concerned. Commanders of various armies wanted certain cemeteries kept. Other people who had loved ones in cemeteries wanted those cemeteries kept, but the thing was thrashed out over a period of some 6 months and was decided by the Battle Monuments Commission, with General Marshall, General Vandegrift, a great many Senators and Congressmen, and with the Navy and the Army and the Marine Corps. Mr. CASE. What Senators and Members of the House were members of the Commission? General HORKAN. Senator Maybank; I do not know whether there was anyone from the House, but Mr. Leslie Biffle was on that Committee. The matter was thrashed back and forth with a view to determining the location of the permanent cemeteries for the bodies buried in temporary cemeteries and decision was made that those that were to remain overseas would be concentrated at the 16 cemeteries. DESCRIPTION OF NEW CEMETERY SITE AT GUAM Mr. CASE. What is the elevation of the cemetery at Guam? Mr. KRUSE. It ranges anywhere from 110 up. At the highest point it is 149 feet above water. Mr. CASE. Is that above sea level or above ground water? |