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ACQUISITION AND ACCOUNTABILITY.

1255. Power to acquire and dispose of the property of the United States vested in Congress.-The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Constitition, Art. IV, sec. 3.

The acquisition of property on behalf of the United States, unless the same be authorized by law, is prohibited by sections 3732 and 3736 Revised Statutes. (See paragraphs 1190 and 1192, ante, under chapter entitled Contracts and purchases.)

This fundamental rule of our public law is expressed by Attorney-General Hoar (13 Opins., 46) as follows: "I am clearly of opinion that the Secretary of War can not convey to any person any interest in land belonging to the United States, except in pursuance of an act of Cogress expressly or impliedly authorizing him to do so." (And see U. S. v. Nichols, 1 Paine, 646 (cited post); Seabury v. Field, McAllister, 1; U. S. v. Hare, 4 Sawyer, 653, 669.)

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See Friedman v. Goodwin (1 McAllister, 148), where a lease made by the post commander at San Francisco, of a part of a 'government reserve," though approved by the military governor of the then Territory, and also by the Secretary of the Interior, was held void because not authorized by Congress. The court declares the "utter impotency of any attempt by an officer of the Government to alien any land, the property of the United States, without the authority of an act of Congress;" adding that "the President, with the heads of the Departments combined," could not effect such an object. (And see 4 Opins. Atty. Gen., 480; 9 id., 476; 13 id., 46; U. S. v. Hare, 4 Sawyer, 670-671.) In the last case the court say: "The Secretary of the Treasury can not execute or approve of a lease of any property belonging to the United States without special authority of law."

The leading case on this point is United States v. Nichols (1 Paine, U. S. Circ. Ct. R., 646), in which it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to the United States, was illegal and invalid. The court say: "The Constitution declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' No public property can therefore be disposed of without the authority of law, either by an express act of Congress for that purpose, or by giving the authority to some Department or subordinate agent. No law has been shown authorizing the sale of this lead; nor is any such authority to be inferred from the general

PERSONAL PROPERTY.

1256. Charges for failure to account therefor to be certified to the accounting officers.-That instead of forwarding to the accounting officers of the Treasury Department returns of public property intrusted to the possession of officers or agents, the QuartermasterGeneral, the Commissary-General of Subsistence, the Surgeon-General, the Chief of Engineers, the Chief of Ordnance, the Chief Signal Officer, the Paymaster-General of the Navy, the Commissioner of Indian Affairs, or other like chief officers in any Department, by, through, or under whom stores, supplies, and other public property are received for distribution, or whose duty it is to receive or examine returns of such property, shall certify to the proper accounting officer of the Treasury Department, for debiting on the proper account, any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him. Sec. 1, Act of Mar. 29, 1894 (28 Stat. 47).

power vested in any of the Departments of the Government. The power, if lodged anywhere, would seem most appropriately to belong to the War Department. But there is no such express or implied power in that Department to sell the public property put under its management." And see the same principle recognized in an opinion of the Attorney-General (in 16 Opins., 477), in which it is held that the Secretary of War was not empowered to sell arms to a State in the absence of authority from Congress.

See Dig. Opin. J. A. G., pp. 901-906, edition 1912, for further and extended discussion of this subject.

'The effect of the above statute was to divest the Auditor of the jurisdiction theretofore possessed by him over the property accounts and transactions of officers of the Navy (and War) Department, and to relieve him of all responsibility in relation to the disposition of property intrusted to said officers, except in cases where the officer "whose duty it is to receive or examine returns of such property shall certify to the proper accounting officer of the Treasury Department (the Auditor), for debiting on the proper account any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him."

Under this act the duty and responsibility of determining questions relating to the correct disposition or loss of property in the Marine Corps have been transferred to and vested in the proper officer of the Navy Department, and it seems clear that the Auditor will have no authority over or in relation to the property mentioned in the cash voucher evidencing the purchase of forage under consideration until he has been furnished with a certificate required by section 1 of said act.

Jurisdiction over property accounts can not be given to the Auditor by injecting papers into cash accounts tending to show what disposition has been made of the property. Such evidence may well be excluded from the cash accounts, and the responsibility for determining questions relating to property accountability be left where it belongs, where the law has placed it. (2 Comp. Dec., 264, 267, 268; 4 id., 422.)

In the case of Isaac W. Patrick, Indian agent at the Great Nemaha Agency, upon a suit to recover on his bond for public property alleged to have been unaccounted for, such failure to account having been shown to be due to clerical errors, it was held by the circuit court of appeals for the Eighth circuit, in March, 1896, that "a Government agent is not to be held liable for property still in the possession of the agency and which has never been lost, merely because a careless clerk, appointed by the Government itself to keep the accounts of the agent, has omitted it from the return which he is required to make." (U. S. v. Patrick, 73 Fed. Rep., 800.)

The failure of an Indian agent, through clerical errors, to include in his accounts property which, in fact, remains at the agency, and which is not lost

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1257. Same-Nature and effect of certificates.—That said certificate shall set forth the condition of such officer's or agent's property returns, that it includes all charges made up to its date and not previously certified, that he has had a reasonable opportunity to be heard and has not been relieved of responsibility; the effect of such certificate, when received, shall be the same as if the facts therein set forth had been ascertained by the accounting officers of the Treasury Department in accounting. Sec. 2, id.

1258. Officer to have opportunity to relieve himself from liability.— That the manner of making property returns to or in any administrative bureau or department, or of ascertaining liability for property, under existing laws and regulations, shall not be affected by this act, except as provided in section one; but in all cases arising as to such property so intrusted the officer or agent shall have an opportunity to relieve himself from liability.1 Sec. 3, id.

1259. Regulations by heads of departments. The heads of the several Departments are hereby empowered to make and enforce regulations to carry out the provisions of this act. All laws or parts of laws inconsistent with the provisions of this act are hereby repealed. Secs. 4 and 5, id.

12591. Public property under Quartermaster General, system of accountability for.-The Quartermaster-General, under the direction of the Secretary of War, shall prescribe and enforce a system of accountability for all quartermaster's supplies to the Army or to officers, seamen, and marines. And he shall account to the Secretary of War at least once in three months for all property and money that may pass through his hands, or the hands of his subordinate officers. Sec. 1139, R. S., as amended by Act of Feb. 27, 1877 (19 Stat. 242).

1260. Accounts of company commanders therefor-Affidavits to be considered in case of loss.-In settling the accounts of the commanding officer of a company for clothing and other military supplies, the affidavit of any such officer may be received to show the loss of vouchers or company books, or any matter or circumstance tending to prove that any apparent deficiency was occasioned by unavoidable accident or lost in actual service, without any fault on his part, or that the whole or any part of such clothing and supplies had been properly and legally used and appropriated; and such affidavit may be considered as evidence to establish the facts set forth, with or withto the Government, does not entitle the United States to recover the value thereof in a suit on his bond; and he may show these facts in defense. The technical failure to account would authorize a recovery of no more than nominal damages. (Id.)

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1 Section 12 of the act of July 31, 1894 (28 Stat. 208), requiring certain quar terly accounts to be rendered within twenty days after the expiration of the quarter to which they relate, has no application to property returns, the rendition of which is regulated by the act of March 29, 1894. (3 Comp. Dec., 422.) 2 For regulations prepared and promulgated by the Secretary of War in exe cution of the above enactment, see paragraphs 693-703, Army Regulations of

1913.

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