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Witness accepting bribe........ 1253
Officer, etc., accepting bribe... 1254

GENERAL PROVISIONS.

1189. Contracts under direction of Secretary of War.1-All purchases and contracts for supplies or services for the military and naval service shall be made by or under the direction of the chief officers of the Departments of War and of the Navy, respectively.2

'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 v. U. S., 3 Wheaton, 172; U. S. v. Tingey, 5 Peters, 114; U. S. v. Bradley, 10 id., 343; U. S. v. Linn, 15 id., 290; Cotton v. U. S., 11 Howard, 229; Fowler v. U. S., 3 Ct. Cls., 43; Allen v. U. S., id., 91.)

'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 the execution, and adopt effectual measures to protect the Government against the dishonesty of subordinates." (U. S. v. Adams, 7 Wall., 463, 477; Parish v. U. S., 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 Comp. 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. 2d Comp. Dec., 287.)

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 Comp. Dec., 242; Solomon v. U. S., 19 Wall., 17; U. S. v. Corliss Steam Engine Co., 91 U. S., 321; XVIII Opin. Att. Gen., 101; 2 Comp. 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 v U. S., 33 Ct. Cls., 377; Monroe & Richardson v. U. S., 35 id., 199; Cathell v. U. S., 46 id., 368; Monroe v. U. S., 184 U. S., 524.) The refusal of the Qartermaster 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. (Id.) Such approval need not be in writing. (Speed's Case, 8 Wallace, 77.)

Government contracts, by whom made, binding force, etc.-Where a public agent acts in the line of his duty and by legal authority, his contracts made

And all agents or contractors for supplies or service as aforesaid shall render their accounts for settlement to the accountant of the 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. Sec. 3714, R. S.

1190. Unauthorized contracts prohibited.-No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies,1 which, however, shall not exceed the necessities of the current year.2 Sec. 3732, R. S., as amended by Act of June 12, 1906 (34 Stat. 255).

on account of the Government are public and not personal. They inure to the benefit of and are obligatory on the Government, not the officer. (Hodgin v. Dexter, 1 Cranch, 345, 363; Parks v. Ross, 11 Howard, 362.) The Government is not bound by the act of its agent, unless it clearly appear that he acted within the scope of his authority, or was employed as a public agent to do, or was held out as having authority to do, such act. (Whiteside v. U. S., 93 U. S., 247; Lee v. Munroe, 7 Cranch, 366; Filer v. U. S., 9 Wall., 45.) Where service was performed under a general appropriation, the contractor is not bound to know the condition of the appropriation. (Myerle v. U. S., 33 Ct. Cls., 1.) See note to paragraph 1211, post.

The words "medical and hospital supplies" were added by act of June 12, 1906 (34 Stat. 255).

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. v. Smoot, 15 id., 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. v 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 sued without its consent. (U. S. v. McLemore, 4 Howard, 286; U. S. v. Clarke, 8 Peters, 436, 444; DeGroot v. U. S., 5 Wallace, 419; U. S. v. Eckford, 6 id., 484; U. S. v. 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 v. U. S., 155 U. S., 500.)

When the authority to enter into a contract for a particular 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 v. U. S., 18 Ct. Cls., 138, 147; McCullom v. U. S., 17 id., 92, 103; Trenton Co. v. U. S., 12 id., 147, 157.) A contract in excess of the appropriation would not bind future appropriations even if con

92061°-17-28

1191. Building contract not to exceed appropriation.-No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.1 Sec. 3733, R. S.

1192. Same-Penalty.-Whoever, being an officer of the United States, shall knowingly contract for the erection, repair, or furnishing of any public building, or for any public improvement, to pay a larger amount than the specific sum appropriated for such purpose, shall be fined not more than two thousand dollars and imprisoned not more than two years. Sec. 98 (Criminal Code) Act of Mar. 4, 1909 (35 Stat. 1106).

1193. Sites for buildings.-No money shall be paid nor contracts made for payment for any site for a public building in excess of the amount specifically appropriated therefor. Act of Mar. 3, 1875 (18 Stat. 395).

1194. Contracts for stationery.—It shall not be lawful for any of the Executive Departments to make contracts for stationary or other supplies for a longer term than one year from the time the contract is made. Sec. 3735, R. S.

1195. Voluntary service-Exceptions.-Hereafter no Department or officer of the United States shall accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. Act of May 1, 1884 (23 Stat. 17).

ditioned on such appropriations. (15 Op. Atty. Gen., 235); and if a future appropriation is made, this gives rise to a new power to contract. (3 Comp. Dec., 438; 4 id., 318; 5 id., 968; 9 id., 284; 13 id., 478; 14 id., 755; Chase v. U. S., 155 U. S. 500.)

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 v. U. S., 18 id., 138; Collins v. U. S., 15 id., 22, 35; XIII Op. Att. Gen., 315; XV id., 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. v. 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. 111), all appropriations for "public buildings' are available until otherwise ordered by Congress. (3 Dig. 2d Comp. Dec., 29.) A subappropriation for a public building must, under the act of June 20, 1874 (18 Stat. 110, 111), remain available until its object has been accomplished or until it has been exhausted, unless otherwise ordered by Congress. (Id. See also 2 Comp. Dec., 365; 3 id., 487.)

2 Denison v. U. S., 168 U. S., 241. See also par. 37, ante.

ADVERTISING.

1196. Advertising-Exceptions.-All purchases and contracts for supplies1 or services in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same when the public exigencies do not require the immediate delivery of the articles or performance of the service. When immediate delivery or performance is required by the public exigency the articles or

The word "supplies" as used in section 3709 of the Revised Statutes evidently has reference to those things which the well-known needs of the public service will from time to time require in its different branches for its successful and efficient administration, and the statute was intended to afford the Government the pecuniary benefits, as well as the protection against fraud and favoritism, which open and honest competition is always likely to secure. It could not have been in the mind of the lawmaking power to require that purchases could only be made after advertisement of small articles which may occasionally be needed, and where in many cases the cost of advertising itself would exceed the value of the article purchased. It can not be said that such cases are governed by the emergency provision in the statute, for there may be, and are, many instances where the officer could not truthfully certify that immediate delivery was necessary. (3 Dig. 2d Comp. Dec., 288.)

The act of March 2, 1861, sec. 3709, R. S., while requiring such advertisement as the general rule, invests the officer charged with the duty of procuring supplies or services with a discretion to dispense with advertising if the exigencies of the public service require immediate delivery or performance. It is too well settled to admit of dispute at this day that where there is a discretion of this kind conferred on an officer or board of officers, and a contract is made in which they have exercised that discretion, the validity of the contract can not be made to depend on the degree of wisdom or skill which may have accompanied its exercise. (U. S. v. Speed, S Wall., 77, 83; Child v. U. S., 4 Ct. Cls., 176; Mason v. U. S., 4 Ct. Cls., 495; Wentworth v. U. S., 5 Ct. Cls., 302. See, also, III Comp. Dec., 175, 314, 470.)

Exigencies growing out of a state of war, or hostilities with Indians, were probably mainly had in view, and it is exigencies of this class which have been considered in the adjudged cases in the Supreme Court and Court of Claims. (See U. S. v. Speed, 8 Wallace, 83; Reeside v. U. S., 2 Ct. Cls., 1; Mowry v. U. S., id., 68; Stevens v. U. S., id., 95; Floyd v. U. S., id., 429; Crowell v. U. S., id., 501; Baker v. U. S., 3 id., 343; Henderson v. U. S., 4 id., 75; Childs v. U. S., id., 176; Wentworth v. U. S., 5 id., 302; Wilcox v. U. S., id.. 386; Cobb v. U. S., 7 id., 471, and 9 id., 291; Thompson v. U. S., id., 187; McKee v. U. S., 12 id., 505.) It is clear, however, that other exigencies may exist requiring that contracts or purchases be made at once or without the delay incident to advertising for proposals. Thus a loss of stores, structures, etc., on hand, caused by an actus Dei or vis major, as fire, storm, freshet, or a sudden riot or violent disorder; or a loss of supplies occasioned by the neglect of military subordinates in charge; or a failure of a contractor to fulfill a contract for supplies, transportation, or other service, might properly be regarded as constituting an "exigency under the statute, if of such magnitude or injurious consequence to the Army as to necessitate an immediate making good of the deficiency. (McKee v. U. S., 12 Ct. Cls., 529.) The general rule, however, of the statute in requiring a notice and invitation to the public as a preliminary to the awarding of a contract, is founded upon a sound and well-considered public policy, and exceptions thereto, especially in time of peace, should be recognized as admissible only where, if the rule were strictly complied with, the public interests would manifestly be most seriously prejudiced. (Dig. Opin. J. A. G. (1912), 293 A.) As to the authority who is to decide whether there exists such an exigency as is contemplated by the statute, the Supreme Court, in the United States v. Speed, 8 Wallace, 83, has held that it is "the officer charged with the duty of procuring supplies or services who is invested with this discretion." This de scription is rather general, nor is the term "the purchasing officer," by which the Court of Claims explains it, in Thompson v. U. S. (9 Ct. Cls., 196), a much

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