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money as he may deem just, reasonable, and necessary for expenditure upon the repair and operation of such roads, pavements, streets, lights, sewerage, and general police, as, in the opinion of the Secretary of War, should be constructed and maintained in order to protect the interests of the United States and the interests, health, and general

welfare of the said nonmilitary interests now established or Use of receipts.

that may hereafter be established at Fort Monroe: Provided further, That all funds collected as above provided, or that may be received from other incidental sources from and after this date, be, and are hereby, made special contingent funds, to be collected and expended for the above purposes in accordance with rules and regulations to be prescribed by the Secretary of War, who will render annually to Congress a detailed account of all receipts and expenditures. Act of August 1, 1894 (28 Stat. L., 21.2).

THE UNITED STATES INFANTRY AND CAVALRY SCHOOLS AT FORT LEAVENWORTH, KANS.

*

Designation and purpose.

1518. To provide means for the theoretical and practical May 26, 1900, v. instruction at

the Infantry and Cavalry School 31, p. 205. at Fort Leavenworth, Kansas;

by the purchase of text-books, books of reference, scientific and professional papers, and for all other absolutely necessary expenses, to be allotted in such proportions as may, in the opinion of the Secretary of War, be for the best interest of the military service, eight thousand dollars. Act of May 26, 1900 (31 Stat. L., 205).

1 The act of August 1, 1894 (28 Stat. L., 212), had contained the requirement that “the owners of hotels and other nonmilitary buildings now at Fort Monroe, Virginia, shall bear one-half of the expense of constructing said sewer,” and the Secretary of War was authorized to “equitably and justly apportion among, assess against, and collect from the said owners and expend in construction of said sewer the moiety of the estimated cost thereof."

2 Regulations for the apportionment and collection of assessments under this statute have been prepared and promulgated by the Secretary of War. Under the provision in the act of June 11, 1896 (29 Stat.L., 414), making an appropriation for a post-office building at Fortress Monroe, “that the building shall be erected upon plans, specifications, etc., to be approved by the Secretary of War," the building was placed, for the purpose of erection, under the control of the War Department, but upon the completion of the building it will pass by operation of law into the custody of the Treasury Department. (IV Compt. Dec., 521.).

3 The Infantry and Cavalry School was established at Fort Leavenworth, Kans., in pursuance of General Orders, No. 42, Adjutant-General's Office, of May 7, 1881. Although not created by statute, its existence has been recognized by Congress in several acts of appropriation. See acts of March 2, 1889, 25 Stat. L., 966;. August 30, 1890, 26 Stat. L., 462; March 3, 1891, ibid., 979; August 5, 1892, 27 Stat. L., 379; March 3, 1893, ibid., 601; August 18, 1894, 28 Stat. L., 400; March 2, 1895, ibid., 951; and June 11, 1896, 29 Stat. L., 414; and subsequent acts of appropriation, including those of May 26, 1900, 31 Stat. L., 205, and March 2, 1901, ibid, 895.

THE CAVALRY AND LIGHT ARTILLERY SCHOOL' AT FORT RILEY, KANS.

Instruction estab

1519. That the Secretary of War be, and he is hereby, School of Cav:

alry and Light authorized and directed to establish

upon the military res- Artillery ervation at Fort Riley, a permanent school of instruction ished at Fort for drill and practice for the cavalry and light artillery 24.01:22

, 1887, v. service of the Army of the United States, and which shall be the depot to which all recruits for such service shall be sent; and for the purpose of construction of such quarters, barracks, and stables as may be required to carry into effect the purposes of this act the sum of two hundred thousand dollars, or so much thereof as may be necessary, is hereby appropriated out of any money in the Treasury not otherwise appropriated. Act of January 29, 1887 (24 Stat. L., 372).

The Cavalry and Light Artillery School was established in pursuance of the act of January 29, 1887, by General Orders, No. 17, Adjutant-General's Office of March 14, 1882. See also in connection with this school the acts of October 2, 1888, 25 Stat. L., 534, and March 2, 1889, ibid., 966; and subsequent acts of appropriation, including those of May 26, 1900, 31 Stat. L., 205, and March 2, 1901, ibid, 896.

CHAPTER XXXII.

CONTRACTS AND PURCHASES.

Par.

Par.

1520–1528. General provisions respecting 1567-1570. The Returns Office. contracts and purchases.

1571. Copy of contract to Auditor for 1529–1533. Advertising.

War Department. 1534–1538. Bids and proposals.

1572-1575. The Eight-Hour law. 1539–1541. Preparation and execution of 1576, 1577. Bonds to secure payment for contracts.

labor and materials. 1542–1556. Miscellaneous requirements. 1578–1580. Inspection of fuel in the Dis1557. Assignments.

trict of Columbia. 1558-1566. Penal offenses in connection

with contracts and purchases.

GENERAL PROVISIONS,

1520. Contracts to be made under direc- 1524. The same, building sites.

tion of the Secretary of War. 1525. Acceptance of volunteer service. 1521. Unauthorized contracts prohibited. 1526. Contracts, how made. 1522. Erection and repair of public 1527. The same, advertisements. buildings.

1528. The same, restriction. 1523. Purchases of land.

Contracts for the military serv.

1520. All purchases and contracts for supplies or servicted to baremtide ices for the military and naval service shall be made by or of Secretary of under the direction of the chief officers of the Departments

July 16, 1798c: of War and of the Navy, respectively. And all agents or Feb. 27. 1977, c.contractors for supplies or service as aforesaid shall render

Sec. 3714,R.s. their accounts for settlement to the accountant of the

The United States in its political capacity may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the departments to which those powers are intrusted, enter into contracts not prohibited by law and appropriate to the just exercise of these powers; no legislative authorization is required, such power being incident to the general right of sovereignty. Dugan r. U. S., 3 Wheaton, 172; U.S. 2. Tingey, 5 Peter-, 114; U.S. 2. Bradley, 10 ibid., 343; U.S. 1. Linn, 15 ibid., 290; Cotton 1. Ľ. S., 11 Howard, 229; Fowler *. U. S., 3 Ct. Cls., 43; Allen v. U. S., ibid., 91.

2 Under this statute the Secretary of War is the source of all authority to make contracts or purchases in all branches of the military establishment. “Whether he makes the contracts himself, or confers the authority upon others, it is his duty to see that they are properly and faithfully executed; and if he becomes satisfied that contracts which he has made himself are being fraudulently executed, or those made by others were made in disregard of the rights of the Government, or with the intent to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest

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proper department for which such supplies or services are required, subject, nevertheless, to the inspection and revision of the officers of the Treasury in the manner before prescribed.

1521. No contract or purchase on behalf of the United Unauthorized States shall be made, unless the same is authorized by law itera or is under an appropriation adequate to its fulfillment, ... 10, v. 12, p. except in the War and Navy Departments, for clothing, Sec. 3782, R.S. subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.

Mar. 2, 1861, c.

the execution, and adopt effectual measures to protect the Government against the dishonesty of subordinates.” U. S. t. Adams, 7 Wall., 463, 477; Parish v. U. 8 Wall., 489.

The head of an Executive Department may, when not prejudicial to the interests of the Government, or for its benefit, alter or modify the terms of a contract made under his direction, but his subordinates may not take such action without express authority from him. 2. Compt. Dec., 182.

The laws governing the purchase of supplies for the Army are equally applicable whether the purchases are made from funds received from the sale of stores or from the regular appropriations available therefor. 3 Dig. 2 Compt. Dec., 287.

It is only an express contract which in the absence of special authority from Congress) can legally be entered into by the Secretary of War, or a military officer, or can be recognized and acted upon as binding upon the United States. Claims against the United States arising upon alleged implied contract can not be entertained, but the claimants must be referred to the Court of Claims or Congress. Further, the contract, to be legally made or recognized as legal, must be in writing (a) (except only-according to the ruling in Cobb's Case (b) when entered into without previous advertisement by reason of the existence of a “public exigency;” see infra). So, in a case where the only evidence of an alleged contract of lease consisted of vouchers, setting forth accounts for rent claimed, approved by an assistant quartermaster, held, that there was no sufficient evidence of an express or written contract upon which payment could be authorized by the Secretary of War.(c) Dig. Opin. J. A. Gen., 275, par. 1.

The Secretary of War has authority to extend the time for the execution of a contract made on behalf of his Department when the interests of the Government are not thereby prejudiced, and particularly when its noncompletion within the time limited is not due to the negligence of the contractor. 2 Compt. Dec., 242; Solomon r. U. S., 19 Wall., 17; U. S. 7. Corliss Steam Engine Co., 91 U. S., 321; XVIII Opin. Att. Gen., 101; 2 Compt. Dec., 635.

Approval of contract by superior authority.—Where a contract in terms “is subject to the approval of the Quartermaster-General," approval is a condition precedent to the legal effect of the agreement. Darragh 1. U.S., 33 Ct. Cls., 377; Monroe & Richardson r. U. S., 35 ibid., 199. The refusal of the Quartermaster-General to approve a contract after work has been begun by the contractor is not a rescission. The contractor who begins work before approval does so at his own risk; and if he is paid for the work done, he can not recover profits as if there had been a breach. Ibid. Such approval need not be in writing. Speed's Case, 8 Wallace, 77. Though the failure of the Quartermaster-General to act within a reasonable time might validate a contract made subject to his approval, he is nevertheless entitled to time for inquiry and investigation and the discharge of the ordinary business of his department. Darragh v. U. S., 33 Ct. Cls., 377.

1 For statutes in respect to accounting, see the title The Accounting Officers,” in the chapter entitled THE DEPARTMENT OF THE TREASURY.

2 The United States when it enters into a contract with an individual relinquishes its sovereign character quoad that transaction, is subject to the rules of right and justice between man and man, and is controlled by the same laws that govern individuals with respect to such contract. Clark v. U.S., 6 Wallace, 546; U. S. 1. Smoot,

a See Henderson r. U. S., 4 Ct. Cls., 75; XIV Opin. Att. Gen., 229: Clark 1. U. S., 95 V. S., 539. b Cobb v. U.S., 7 Ct. Cls., 470, and 9 ibid., 291. And see Thompson v. U. S., ibid., 198. cSee XIV Opin. Att. Gen., 230.

Erection of buildings, etc. c. 177.

of

Purchases land.

1522. No contract shall be entered into for the erection, July 2, 1865 repair, or furnishing of any public building, or for any Sec. 3783.R.s, public improvement whih shall bind the Government to

pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.'

1523. No land shall be purchased on account of the May 1, 1820, c. United States, except under a law authorizing such purSec. 3736, R.S. chase.?

1524. No money shall be paid nor contracts made for 8,915:13 : 1875, v. payment for any site for a public building in excess of the

amount specifically appropriated therefor. Act of March 3, 1875 (18 Stat. L., 371).

Sites for buildings.

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15 ibid., 47; Cooke v. U. S., 91 U, S., 398; U. S. v. Bostwick, 94 U. S., 592; Mann v. U.S., 3 Ct. Cls., 404; Chic. R. R. Co. v. U. S., 104, U. S., 680; U. S. x. No. Am. Com. Co., 74 Fed. Rep., 145. The United States is liable in damages for breach of contract to the same extent as an individual. Chicago R. R. Co. v. U.S., 104 U.S., 680; Eastern R. R. Co. v. U. S., 129 U. S., 396. Such right of action against the United States, however, is subject to the limitation that the Government can not be be sued without its consent. U. S. 1. McLemore, 4 Howard, 286; Hill v. Clarke, 8 Peters, 444; U. S. v. Clarke, 8 Peters; DeGroot v. U. S., 5 Wallace, 419; C. S. v. Eckford, 6 ibid., 484; U. S. ». Lee, 106 U. S., 204; Nock v. U. S., 2 Ct. Cls., 451. Such consent to be sued, in respect to certain causes of action, has been given by the establishment of the Court of Claims. For the jurisdiction of this court, see chapter VII, ante.

The restrictions of section 3732, Revised Statutes, are in the alternative, prohibiting a contract or purchase on the part of the United States unless authorized by law” or unless such contract or purchase is made “under an appropriation adequate to its fulfillment." Contracts to be valid must be shown to come under one or the other of these provisions. Shipman r. U. S., 18 Ct. Cls., 138.

When the authority to enter into a contract for a parlicular work in behalf of the United States depends wholly upon an appropriation of money made for that purpose, no officer of the Government has power to create a liability therefor beyond the amount of the appropriation, and a contractor can not recover more than the money appropriated, whatever may be the extent of his work. When an alleged liability rests wholly upon the authority of an appropriation they must stand or fall together, so that when the latter is exhausted the former is at an end, to be revived, if at all, only by subsequent legislation by Congress. Shipman r. U.S., 18 Ct. Cls., 138, 147; MěCullom v. U. S., 17 ibid., 92, 103; Trenton Co. v. U.S., 12 ibid., 147, 157.

If an officer is clothed with authority to do a piece of work without limitation as to cost, the contracts made by him therefor are binding upon the Government whether money is appropriated for the purpose or not. Shipman r. U. S., 18 ibid., 138; Collins 1. l'. S., 15 ibid., 22, 35; XIII Op. Att. Gen., 315; XV ibid., 236.

Acknowledgments and promises made by executive officers of the Government do not bind the United States when they are not made under express or implied authority of Congress. Leonard et al. 1. U. S., 18 Ct. Cls., 382.

Authority to contract for the completion of an entire structure, the plan of which has been determined on, can not be inferred from the mere fact that an appropriation of a certain sum, to be expended on the structure, has been made. Hence a contract, though it be good to the extent of such appropriation, could not affix itself to future appropriations and control their expenditure. A contract of this character would be in violation of the spirit of section 3, act of July 25, 1868, sec. 3733, R. S., if not of its express terms. XV Op. Att. Gen., 236.

Under section 5 of the act of June 20, 1874, 18 Stat. L., 111, all appropriations for “public buildings are available until otherwise ordered by Congress. 3 Dig. 2 Comp. Dec., 29. A subappropriation for a public building must, under the act of June 20, 1874, 18 Stat. L., 110, 111, remain available until its object has been accomplished or until it has been exhausted, unless otherwise ordered by Congress. Ibid. See also 2 Comp. Dec., 365; 3 ibid., 487.

2 The act of Congress does not prohibit the acquisition by the United States of the legal title to land, without express legislative authority, when it is taken by way of security for debt. Neilson 1. Lagow, 12 How., 98.

3 See, also, for additional restrictions the act of March 3, 1875 18 Stat. L., 371).

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