Mr. ENGEL. The national cemetery you expect to establish in Guam will be established in accordance with the authority you have under 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. ENGEL. The 12,000 are already there?

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?

Čolonel MARSHALL. The amount in this estimate is $815,402. That is the initial cost.

Mr. ENGEL. What will be the total cost?
General HORKAN. $1,350,000.

Mr. ENGEL. For how many acres of land?
General HORKAN. 120 acres, total.

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. Is that a higher site?
General HORKAN. Yes, sir.

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. Inasmuch 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.

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 representativehe 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. CASE. Yes.

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?