A-18481, JULY 8, 1927, 7 COMP. GEN. 14

A-18481: Jul 8, 1927

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OFFICERS AND AGENTS OF THE UNITED STATES THERE IS NO AUTHORITY FOR A REFUND OF MONEY PAID BY A CONCESSIONAIRE TO THE UNITED STATES COMMISSIONER OF THE NATIONAL SESQUICENTENNIAL EXPOSITION UNDER A CONTRACT BETWEEN SUCH COMMISSIONER. WHERE IT APPEARS THAT A FORMER ALLEGED AGREEMENT WHEREBY THE UNITED STATES WAS TO FURNISH SUCH LABOR AND MATERIAL WITHOUT COST TO THE CONCESSIONAIRE WAS PROPERLY REVOKED. THERE IS NO LIABILITY ON THE PART OF THE UNITED STATES TO RESPOND IN DAMAGES FOR AN ALLEGED TORTIOUS SEIZURE BY THE UNITED STATES COMMISSIONER OF THE NATIONAL SESQUICENTENNIAL EXPOSITION OF MATERIAL BELONGING TO A CONCESSIONAIRE. AS THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS.

A-18481, JULY 8, 1927, 7 COMP. GEN. 14

CONTRACTS, REVOCATION - TORTS, OFFICERS AND AGENTS OF THE UNITED STATES THERE IS NO AUTHORITY FOR A REFUND OF MONEY PAID BY A CONCESSIONAIRE TO THE UNITED STATES COMMISSIONER OF THE NATIONAL SESQUICENTENNIAL EXPOSITION UNDER A CONTRACT BETWEEN SUCH COMMISSIONER, THE CONCESSIONAIRE, AND THE EXPOSITION ASSOCIATION PROVIDING THAT PAYMENTS SHOULD BE MADE AS REIMBURSEMENT TO THE UNITED STATES FOR LABOR AND MATERIALS USED IN FURNISHING MEDALS AND ENGRAVINGS TO BE SOLD BY THE CONCESSIONAIRE, WHERE IT APPEARS THAT A FORMER ALLEGED AGREEMENT WHEREBY THE UNITED STATES WAS TO FURNISH SUCH LABOR AND MATERIAL WITHOUT COST TO THE CONCESSIONAIRE WAS PROPERLY REVOKED, AS EXPRESSLY PROVIDED THEREIN, FOR FAILURE ON THE PART OF THE CONCESSIONAIRE TO ABIDE BY THE TERMS OF SUCH AGREEMENT. THERE IS NO LIABILITY ON THE PART OF THE UNITED STATES TO RESPOND IN DAMAGES FOR AN ALLEGED TORTIOUS SEIZURE BY THE UNITED STATES COMMISSIONER OF THE NATIONAL SESQUICENTENNIAL EXPOSITION OF MATERIAL BELONGING TO A CONCESSIONAIRE, AS THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF SPECIFIC LEGISLATION, OR AN EXPRESS AGREEMENT AUTHORIZED BY LAW PROVIDING THEREFOR.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 8, 1927:

THERE IS FOR CONSIDERATION THE REQUEST OF FRED B. RHODES, DATED MAY 10, 1927, FOR REVIEW OF SETTLEMENT NO. 0168336, DATED APRIL 23, 1927, WHEREBY THERE WAS DISALLOWED HIS CLAIM FOR REFUND OF $1,800 ALLEGED TO HAVE BEEN PAID THE UNITED STATES COMMISSIONER, NATIONAL SESQUICENTENNIAL EXPOSITION, UNDER THE TERMS OF A CONTRACT DATED SEPTEMBER 1, 1926, AND FOR DAMAGES IN THE AMOUNT OF $2,000 AS THE VALUE OF CERTAIN METAL SLUGS AND STAMPED MEDALS ALLEGED TO HAVE BEEN WRONGFULLY SEIZED BY SAID COMMISSIONER AT THE EXPIRATION OF THE EXPOSITION.

THE SESQUICENTENNIAL EXHIBITION ASSOCIATION, HEREINAFTER REFERRED TO AS THE "ASSOCIATION" AND THE "EXPOSITION ASSOCIATION," IS NOT A GOVERNMENT ESTABLISHMENT OR ORGANIZATION BUT AN OUTSIDE CORPORATION OR ORGANIZATION, AND SHOULD NOT BE CONFUSED WITH THE NATIONAL SESQUICENTENNIAL EXHIBITION COMMISSION CREATED BY THE JOINT RESOLUTION OF MARCH 3, 1925, 43 STAT. 1253, AND HEREINAFTER REFERRED TO AS THE "COMMISSION.' THE UNITED STATES COMMISSIONER OF THE SESQUICENTENNIAL EXPOSITION PROVIDED FOR UNDER JOINT RESOLUTION OF FEBRUARY 26, 1926, 44 STAT. 133, WAS APPOINTED BY THE NATIONAL SESQUICENTENNIAL EXHIBITION COMMISSION AND REPRESENTED THE GOVERNMENT--- NOT THE SESQUICENTENNIAL EXHIBITION ASSOCIATION--- AT THE EXPOSITION.

IT APPEARS THAT UNDER THE AUTHORITY OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 133, THE TREASURY DEPARTMENT ARRANGED TO HAVE AMONG ITS EXHIBITS AT THE EXPOSITION A DEMONSTRATION OF THE ACTUAL OPERATION OF THE PRESSES OF THE BUREAU OF ENGRAVING AND PRINTING AND OF THE UNITED STATES MINT. LETTER OF MARCH 22, 1926, FROM F. A. BIRGFELD, CHIEF CLERK AND REPRESENTATIVE OF THE TREASURY DEPARTMENT AT THE EXPOSITION, TO H. O. STICKNEY, UNITED STATES COMMISSIONER AND OFFICIAL UNITED STATES REPRESENTATIVE IN CHARGE OF THE GOVERNMENT EXHIBITS, THE SCOPE OF THE PROPOSED EXHIBIT OF SUCH PRESSES WAS OUTLINED. AN ESTIMATE WAS CONTAINED IN THE LETTER OF THE EXPENSE TO THE GOVERNMENT OF SETTING UP AND OPERATING THE PRESSES, INCLUDING SERVICES OF PRINTERS, PRESS OPERATORS, AND ASSISTANTS FOR ALL PRESSES AND EXPENDABLE SUPPLIES FOR THE BUREAU PRESS. IT WAS STATED IN THE LETTER THAT IT WAS ASSUMED THAT THE EXPOSITION AUTHORITIES WOULD PROVIDE FREE OF EXPENSE TO THE GOVERNMENT SUCH ITEMS AS WATER, GAS, AND ELECTRICITY FOR ALL PRESSES, AND DIES AND METAL FOR THE COINING PRESS, WHICH COULD BE PROCURED AT COST FROM THE MINT, AND WOULD ALSO ASSUME OTHER INCIDENTAL EXPENSES SUCH AS SUPPORT FOR THE FLOORS, RAILS ABOUT THE EXHIBIT AND RENTAL SPACE. AS TO THE DISPOSITION OF THE OUTPUT OF THE PRESSES IT WAS SUGGESTED THAT AT FORMER EXPOSITIONS CONCESSIONS HAD BEEN SOLD FOR VENDING THE OUTPUT OF THE PRESSES, THE MONEY RECEIVED FOR SUCH CONCESSIONS BEING USED FOR THE REDUCTION OF THE EXPENSE OF THE EXHIBITS. IN LETTER OF APRIL 7, 1926, MR. BIRGFELD SUGGESTED TO THE COMMISSIONER THAT THE TREASURY DEPARTMENT BE AUTHORIZED TO PROCEED TO HANDLE THE SITUATION AS HAD BEEN DONE THERETOFORE, BY SECURING COMPETITIVE BIDS UNDER PROPER SPECIFICATIONS FOR THE AWARD OF THE CONCESSIONS FOR THE SALE OF THE OUTPUT OF THE PRESSES.

AFTER SOME CORRESPONDENCE BETWEEN THE COMMISSIONER, THE EXPOSITION AUTHORITIES, AND THE TREASURY DEPARTMENT, IN WHICH IT WAS DEVELOPED THAT AT CERTAIN FORMER EXPOSITIONS THE OUTPUT OF THE TREASURY PRESSES HAD BEEN TURNED OVER TO THE EXPOSITION AUTHORITIES FOR DISPOSITION INSTEAD OF CONCESSIONS BEING AWARDED PRIVATE INDIVIDUALS BY THE GOVERNMENT, THE COMMISSIONER, ON APRIL 20, 1926, ADVISED S. H. MARKS, ACTING CHIEF CLERK AND CONTACT OFFICER FOR THE TREASURY DEPARTMENT AT THE EXPOSITION, THAT HE UNDERSTOOD THAT THE EXPOSITION ASSOCIATION DESIRED TO HAVE CONTROL OF THE CONCESSIONS, THAT IN A SENSE HE FELT "WE ARE MORALLY OBLIGATED TO GIVE IT TO THEM" AND AUTHORIZED THE TREASURY DEPARTMENT TO DEAL DIRECTLY WITH THE EXPOSITION AUTHORITIES RELATIVE TO THE DETAILS OF DISPOSING OF THE OUTPUT OF THE PRESSES, IT TO BE "UNDERSTOOD THAT THE COST OF THE MEDALS, MANUFACTURE OF ALL DIES, THE DESIGN OF THE MEDALS, COST OF THE ELECTRIC CURRENT AND ANY OTHER ADDITIONAL EXPENSE FOR OPERATION WILL BE TAKEN CARE OF BY THE EXPOSITION ASSOCIATION.'

APPARENTLY WITHOUT ANY FURTHER DEFINITE ARRANGEMENT OR FORMAL AGREEMENT AS TO THE TERMS UNDER WHICH THE EXPOSITION ASSOCIATION WAS TO HAVE CONTROL OF THE SALE OF THE OUTPUT OF THE GOVERNMENT PRESSES,THE ASSOCIATION (NOT THE GOVERNMENT) ON MAY 3, 1926, AWARDED TO FRED B. RHODES, THE CLAIMANT HERE, A LICENSE IN ACCORDANCE WITH HIS APPLICATION OF THE SAME DATE, TO OPERATE A CONCESSION TO BE KNOWN AS "THE OFFICIAL SOUVENIR MEDAL," TO BE "LOCATED WITH GOVERNMENT PRESS OF THE UNITED STATES MINT" FOR THE SALE OF THE OFFICIAL SOUVENIR MEDAL STAMPED ON SUCH PRESS. IT WAS PROVIDED THAT THE MEDALS WOULD BE SOLD AT RETAIL FOR 25 CENTS EACH AND THAT THE CONCESSIONAIRE WAS ALSO TO HAVE THE RIGHT TO SELL A SET OF GOVERNMENT ENGRAVINGS AT RETAIL FOR 50 CENTS OR LESS PER SET, AS MUTUALLY AGREED UPON. IN RETURN FOR THIS CONCESSIONAIRE WAS "TO PAY ALL COSTS OF MANUFACTURE AND MARKETING, INCLUDING THE COST OF DIES, AND TO PAY THE SESQUICENTENNIAL EXHIBITION ASSOCIATION 50 PERCENT OF THE GROSS RECEIPTS FROM SALES OF SAID ARTICLES.' BY STRIKING OUT A SENTENCE IN THE PRINTED "CONDITIONS," INCORPORATED INTO AND MADE A PART OF THE CONTRACT BETWEEN THE PARTIES, PROVIDING THAT THE APPLICANT SHOULD PAY FOR ALL ELECTRICITY CONSUMED, IT WAS APPARENTLY AGREED THAT THE ASSOCIATION SHOULD FURNISH SUCH ELECTRICITY WITHOUT COST TO THE CONCESSIONAIRE. THESE CONDITIONS FURTHER PROVIDED THAT THE APPLICATION WAS AN OFFER; THAT THE ACCEPTANCE OF THE OFFER BOUND THE APPLICANT TO MAKE, DO, AND PERFORM EACH AND ALL OF THE THINGS THEREIN OFFERED IN ACCORDANCE WITH THE CONDITIONS; THAT THE APPLICANT SHOULD PROVIDE A CORPORATE SURETY BOND IN PRESCRIBED FORM; THAT THE LICENSE, WHEN ISSUED,"TOGETHER WITH SAID BOND, THESE CONDITIONS AND THE APPLICATION, SHALL EVIDENCE THE ENTIRE CONTRACT ON THE PART OF THE ASSOCIATION WITH THE CONCESSIONAIRE; " THAT THE PROVISIONS THEREOF SHOULD BE STRICTLY CONSTRUED IN FAVOR OF THE ASSOCIATION; AND THAT A BREACH OF ANY OF THE CONDITIONS OF SAID CONTRACT ON THE PART OF THE CONCESSIONAIRE SHOULD ENTITLE THE ASSOCIATION AT ITS OPTION TO REVOKE SAID LICENSE AND TAKE OVER OR DISCONTINUE THE OPERATION OF SAID CONCESSION. IT IS ALSO TO BE NOTED THAT THE CONTRACT FURTHER PROVIDED THAT NO ORAL STATEMENT OR REPRESENTATION MADE BY ANY OFFICER OR AGENT OF THE ASSOCIATION AND NO ADVERTISEMENT OR WRITTEN STATEMENT OR PROMISE IN CONFLICT WITH ANY OF THE CONDITIONS OF THE CONTRACT SHOULD BE CONSIDERED AS BINDING THE ASSOCIATION EXCEPT BY EXPRESS AUTHORIZATION OF ITS BOARD OF DIRECTORS.

IN SO FAR AS THE MATTER HERE UNDER CONSIDERATION IS CONCERNED, ALL THAT CAN BE SAID AS TO THE EFFECT OF THIS CONTRACT IS THAT, TO THE EXTENT THE EXPOSITION ASSOCIATION HAD ANY RIGHTS IN CONTROLLING THE DISPOSITION OF THE OUTPUT OF THE GOVERNMENT PRESSES, RHODES WAS AUTHORIZED TO SELL MEDALS STAMPED THEREON FOR 25 CENTS APIECE AND TO SELL ENGRAVINGS FOR 50 CENTS OR LESS A SET.

THIS APPARENTLY NOT BEING A SUFFICIENTLY DEFINED WORKING ARRANGEMENT FOR RHODES, NEGOTIATIONS WERE ENTERED INTO BETWEEN HIM AND THE TREASURY DEPARTMENT, WHICH CULMINATED IN THE FOLLOWING LETTER OF JUNE 17, 1926:

JUNE 17, 1926. MR. FRED B. RHODES,

ALBEE BUILDING, WASHINGTON, D.C.

SIR: THE RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JUNE 14, 1926, TRANSMITTING COPY OF CONTRACT ENTERED INTO, WITH THE APPROVAL OF THIS DEPARTMENT, BY AND BETWEEN THE NATIONAL SESQUICENTENNIAL EXPOSITION ASSOCIATION AND YOURSELF, COVERING THE SALE OF THE OUTPUT OF THE PRESSES OF THE U.S. MINT AND THE BUREAU OF ENGRAVING AND PRINTING.

IT IS UNDERSTOOD AND AGREED BETWEEN US THAT THE TREASURY DEPARTMENT WILL FURNISH ALL LABOR AND MATERIALS NECESSARY FOR THE OPERATION OF THE PRESSES, EXCEPT THE MEDAL BLANKS, BUT THAT ANY ALTERATIONS OR CHANGES IN THE PLATES OF THE BUREAU WILL BE PAID FOR BY YOU; THAT THE EXPOSITION ASSOCIATION WILL FURNISH CURRENT FOR THE OPERATION OF THE BUREAU AND MINT PRESSES FREE OF EXPENSE TO THE TREASURY DEPARTMENT; THAT THE MASTER AND WORKING DIES WILL BE PROVIDED BY YOU WITHOUT EXPENSE TO THE TREASURY DEPARTMENT; THAT THE METAL AND MANUFACTURE OF THE BLANKS FOR SOUVENIR MEDALS SHALL BE AT YOUR EXPENSE; AND THAT ANY MATERIALS FOR ENGRAVED PRODUCTS, OTHER THAN PAPER, 7 INCHES X 10 INCHES, WILL BE SUPPLIED BY YOU, WITHOUT COST TO THE TREASURY. IT IS FURTHER UNDERSTOOD AND AGREED THAT THE DEPARTMENT WILL PERMIT YOU TO INSTALL A TABLE IN BOTH THE SPACES OF THE BUREAU OF ENGRAVING AND PRINTING AND THAT OF THE U.S. MINT FOR THE DISPLAY AND SALE OF THE PRODUCTS OF THE PRESSES. IT IS UNDERSTOOD THAT THE PRESSES WILL BE OPERATED ONLY DURING SUCH HOURS AS THE BUILDING MAY BE OFFICIALLY OPEN, NOT EXCEEDING THE REGULAR GOVERNMENT HOURS OF SERVICE, AND THAT THE ENTIRE CONCESSION IS TO BE OPERATED IN SUCH MANNER AS NOT TO INTERFERE WITH THE CONDUCT OF THE EXHIBIT OR ITS DEMONSTRATION TO THE PUBLIC; AND, FURTHER, THAT THE TREASURY EXHIBIT AS A WHOLE WILL NOT BE COMMERCIALIZED IN ANY IMPROPER MANNER.

IT IS FURTHER UNDERSTOOD AND AGREED THAT THE GENERAL OPERATION OF THE CONCESSION IS TO BE CONDUCTED IN SUCH MANNER AS TO MEET THE APPROVAL OF THE UNDERSIGNED OR HIS DULY AUTHORIZED AGENT AT THE EXPOSITION AND WILL BE SUBJECT TO REVOCATION BY HIM IN THE EVENT OF FAILURE ON THE PART OF THE CONCESSIONAIRE TO CONDUCT THE CONCESSION TO THE SATISFACTION OF THE TREASURY DEPARTMENT OR ACCORDING TO THE TERMS OF THE CONCESSIONAIRE'S CONTRACT WITH THE EXPOSITION ASSOCIATION.

RESPECTFULLY,

F. A. BIRGFELD,

CONTACT OFFICER, TREASURY DEPARTMENT EXHIBIT,

NATIONAL SESQUICENTENNIAL EXPOSITION.

BIRGFELD'S ONLY APPARENT AUTHORITY TO SIGN THIS LETTER WAS THAT OF AN AGENT OF THE COMMISSIONER UNDER THE COMMISSIONER'S LETTER OF APRIL 20, 1926, AUTHORIZING THE TREASURY DEPARTMENT TO DEAL DIRECTLY WITH THE EXPOSITION AUTHORITIES RELATIVE TO THE DETAILS OF DISPOSING OF THE OUTPUT OF THE PRESSES. SAID LETTER OF JUNE 17, 1926, WAS NOT IN THE COURSE OF DIRECT DEALING WITH THE EXPOSITION AUTHORITIES, AND, AT MOST, CAN BE TAKEN ONLY AS A RECOGNITION AND A FORMAL STATEMENT OF THE CONDITIONS UNDER WHICH THE EXPOSITION AUTHORITIES WERE TO HAVE CONTROL OF THE DISPOSITION OF THE OUTPUT OF THE PRESSES, RATIFYING, IN SO FAR AS IT WAS NECESSARY FOR THE GOVERNMENT TO RATIFY, THE AGREEMENT BETWEEN THE EXPOSITION ASSOCIATION AND RHODES, RESERVING, HOWEVER, THE RIGHT TO REVOKE THE CONCESSION UNLESS CONDUCTED TO THE SATISFACTION OF THE TREASURY DEPARTMENT AND ACCORDING TO THE TERMS OF THE CONCESSIONAIRE'S CONTRACT WITH THE EXPOSITION ASSOCIATION.

WITH THESE PRELIMINARIES RHODES BEGAN OPERATION OF THE CONCESSION ON JULY 4, 1926. IT IS NOT CONTROVERTED THAT FROM THE VERY BEGINNING OF THE OPERATION HIS PRINCIPAL BUSINESS WAS NOT THE SALE OF SOUVENIR MEDALS AT 25 CENTS APIECE AND ENGRAVINGS FOR 50 CENTS OR LESS A SET BUT WAS THE SALE OF SILK HANDKERCHIEFS STAMPED ON THE BUREAU OF ENGRAVING PRESS AT PRICES FROM 50 CENTS TO $2.50 EACH, AND VANITY CASES, CONTAINING THE SOUVENIR MEDAL, AT VARIOUS PRICES. IT ALSO APPEARS THAT THE MEDAL ALONE AND PAPER PRINTS WERE SOLD REGULARLY AT PRICES IN EXCESS OF THOSE STIPULATED IN HIS CONTRACT WITH THE ASSOCIATION. ON JULY 27, 1926, THE COMMISSIONER, HAVING RECEIVED COMPLAINTS AS TO THE CONDUCT OF THE CONCESSION, DIRECTED AN INVESTIGATION INTO THE ACTIVITIES OF RHODES WITH A VIEW TO PUTTING AN END TO ANY OBJECTIONABLE PRACTICES.

IN THE ENSUING CONTROVERSY RHODES MAINTAINED THAT BY REASON OF ALLEGED INFORMAL AGREEMENTS AND UNDERSTANDINGS WITH THE EXPOSITION ASSOCIATION AND TREASURY DEPARTMENT REPRESENTATIVES HE WAS AUTHORIZED TO SELL THE HANDKERCHIEFS AND VANITY CASES AND THAT THE LETTER OF JUNE 17 BOUND THE GOVERNMENT TO FURNISH LABOR, ETC., FOR THE PRESSES. THE COMMISSIONER ASSERTED THAT BIRGFELD WAS UNAUTHORIZED IN SUCH LETTER OF JUNE 17, TO OBLIGATE THE GOVERNMENT TO FURNISH THE LABOR OR ANY MATERIAL FOR THE OPERATION OF THE PRESSES IN VIEW OF THE COMMISSIONER'S LETTER OF APRIL 20 SPECIFYING THAT IT WAS TO BE UNDERSTOOD IN TURNING THE DISPOSITION OF THE OUTPUT OF THE PRESSES OVER TO THE EXPOSITION ASSOCIATION THAT THEY WOULD TAKE CARE OF "THE COST OF THE MEDALS, MANUFACTURE OF ALL DIES, THE DESIGN OF THE MEDALS, COST OF THE ELECTRIC CURRENT AND ANY OTHER ADDITIONAL EXPENSE FOR OPERATION.'

HAVING FAILED TO COME TO AN AGREEMENT WITH RHODES, THE COMMISSIONER ON AUGUST 27, 1926, DIRECTED THAT THERE---

BE NO FURTHER PRODUCTION OF ANY MATERIAL WHATEVER FOR MR. FRED B. RHODES UNDER HIS CONTRACT WITH THE EXPOSITION ASSOCIATION (EXPOSITION NO. 91), UNLESS AND UNTIL AN ARRANGEMENT SATISFACTORY TO THE COMMISSIONER OF SESQUICENTENNIAL EXPOSITION IS MADE BY WHICH THE UNITED STATES GOVERNMENT WILL BE REIMBURSED TO THE EXTENT OF ALL EXPENSE, BOTH LABOR AND MATERIAL, FOR OPERATION OF THIS CONCESSION. PRODUCTION FOR RHODES WAS ACCORDINGLY STOPPED. ON SEPTEMBER 1, 1926, A TRIPARTY AGREEMENT WAS ENTERED INTO BETWEEN RHODES, THE COMMISSIONER, AND THE EXPOSITION ASSOCIATION WHEREBY THE OPERATION OF THE CONCESSION WAS TO BE RESUMED UNDER CERTAIN RESTRICTIONS, RHODES TO REIMBURSE THE GOVERNMENT FOR THE EXPENSES OF LABOR AND MATERIALS THEREAFTER USED IN PRODUCING MATERIALS FOR THE CONCESSION. OPERATION OF THE CONCESSION UNDER THIS NEW AGREEMENT WAS BEGUN ABOUT SEPTEMBER 8 AND IT IS FOR THE MONEY PAID BY RHODES TO THE COMMISSIONER UNDER THIS AGREEMENT THAT THE $1,800 CLAIM IS NOW MADE, A RIGHT TO MAKE SUCH CLAIM HAVING BEEN EXPRESSLY RESERVED BY RHODES IN THE AGREEMENT ON THE BASIS THAT THE REQUIREMENT OF SUCH PAYMENTS WAS IN VIOLATION OF HIS EXISTING CONTRACT RIGHTS UNDER BIRGFELD'S LETTER OF JUNE 17, 1926.

THE QUESTION AS TO THE COMMISSIONER'S LEGAL AUTHORITY OR JUSTIFICATION FOR HOLDING THAT BIRGFELD WAS UNAUTHORIZED TO OBLIGATE THE GOVERNMENT TO FURNISH LABOR AND MATERIAL IN HIS LETTER OF JUNE 17, 1926, IS NOT HERE INVOLVED OR DECIDED. RHODES'S CLAIM FOR REFUND IS BASED ON ALLEGED RIGHTS UNDER THE LETTER OF JUNE 17, WHICH WERE EXPRESSLY MADE SUBJECT TO REVOCATION "IN THE EVENT OF FAILURE ON THE PART OF THE CONCESSIONAIRE TO CONDUCT THE CONCESSION TO THE SATISFACTION OF THE TREASURY DEPARTMENT OR ACCORDING TO THE TERMS OF THE CONCESSIONAIRE'S CONTRACT WITH THE EXPOSITION ASSOCIATION.' THERE CAN BE NO QUESTION THAT THE CONCESSION WAS NOT OPERATED ACCORDING TO THE TERMS OF THE CONCESSIONAIRE'S CONTRACT WITH THE EXPOSITION ASSOCIATION, THE CONCESSIONAIRE HAVING FAILED TO SHOW THAT THERE WAS ANY VALID SUPPLEMENTAL AGREEMENT AUTHORIZING HIM TO SELL HANDKERCHIEFS AND VANITY CASES, OR TO ALLOW HIM TO ADVANCE HIS PRICES ON MEDALS AND ENGRAVINGS. ON SEPTEMBER 1, 1926, THE FOLLOWING LETTER WAS ADDRESSED TO RHODES BY COMMISSIONER STICKNEY:

REFERRING TO LETTER CC-SHM OF JUNE 17, 1926, ADDRESSED TO YOU AND SIGNED BY F. A. BIRGFELD AS CONTACT OFFICER FOR THE TREASURY DEPARTMENT.

IN VIEW OF THE FACT THAT YOU HAVE VIOLATED THE TERMS OF YOUR CONTRACT WITH THE EXPOSITION ASSOCIATION DATED MAY 3, 1926 (CONCESSION NO. 91), AND HAVE SOLD, WITHIN THE TREASURY DEPARTMENT EXHIBIT SPACE PROPER, ARTICLES NOT AUTHORIZED BY THAT CONTRACT, TO WIT, HANDKERCHIEFS AND VANITY CASES, AND HAVE REFUSED TO CEASE SUCH PRACTICES WHEN CALLED UPON TO DO SO, AND SAID F. A. BIRGFELD HAVING ACTED AS AN AGENT OF THE U.S. COMMISSIONER TO THE SESQUICENTENNIAL EXPOSITION IN GRANTING YOU THE PRIVILEGES ENUMERATED IN SAID LETTER, AND FURTHERMORE, HE HAVING EXCEEDED HIS AUTHORITY AS MY AGENT IN GRANTING SAID PRIVILEGE, I HEREBY NOTIFY YOU THAT ALL PRIVILEGES GRANTED YOU BY SAID LETTER OF JUNE 17, 1926, ARE HEREBY REVOKED, AND ALL THE PROVISIONS OF SAID LETTER ARE HEREBY CANCELLED EXCEPT IN SO FAR AS THEY ARE PRESERVED BY THE CONTRACT ENTERED INTO BETWEEN THE U.S. COMMISSIONER, THE DIRECTOR OF CONCESSIONS OF THE SESQUICENTENNIAL EXPOSITION ASSOCIATION, AND YOURSELF ON THE 1ST DAY OF SEPTEMBER, 1926.

THIS WAS FOLLOWED ON SEPTEMBER 7, 1926, BY THE FOLLOWING LETTER FROM BIRGFELD TO RHODES: MR. FRED B. RHODES,

CARE U.S. MINT EXHIBIT, NATIONAL SESQUICENTENNIAL EXPOSITION,

PHILADELPHIA, PENNSYLVANIA.

SIR: BY DIRECTION OF THE SECRETARY, YOU ARE HEREBY ADVISED THAT IN VIEW OF THE DIFFICULTIES WHICH HAVE ARISEN IN CONNECTION WITH YOUR RELATIONS TO THE U.S. TREASURY EXHIBIT AT THE NATIONAL SESQUICENTENNIAL EXPOSITION, IN PHILADELPHIA, PENNSYLVANIA, AND AT THE REQUEST OF COMMISSIONER H. O. STICKNEY, THE INSTRUCTIONS AND CONDITIONS SET FORTH IN MY LETTER DATED JUNE 17, 1926, ARE HEREBY TERMINATED.

YOU ARE FURTHER ADVISED THAT THE TREASURY DEPARTMENT WILL DELIVER THE OUTPUT OF THE PRESSES IN THE TREASURY EXHIBIT, IN ACCORDANCE WITH WRITTEN INSTRUCTIONS OF COMMISSIONER STICKNEY, TO WHOMSOEVER HE AUTHORIZES US TO MAKE SUCH DELIVERY.

ANY FUTURE QUESTIONS IN REGARD TO THE OUTPUT OF THE PRESSES IN THE TREASURY EXHIBIT MUST BE TAKEN UP WITH COMMISSIONER STICKNEY, WITH WHOM YOU WILL FROM NOW ON DEAL DIRECTLY.

RESPECTFULLY,

(SIGNED) F. A. BIRGFELD,

CONTACT OFFICER, TREASURY DEPARTMENT EXHIBIT,

NATIONAL SESQUICENTENNIAL EXPOSITION.

WITHOUT DECIDING AS BETWEEN THE COMMISSIONER OR THE TREASURY DEPARTMENT OFFICIALS WHICH LEGALLY HAD THE RIGHT OF REVOCATION RESERVED IN LETTER OF JUNE 17, 1926, IT IS CLEAR THAT SUCH RIGHT ACTUALLY EXISTED IN ONE OR BOTH. SUFFICIENT REASON EXISTED FOR REVOCATION AND THE RIGHT WAS DULY EXERCISED BY THE ONE OR THE OTHER ENTITLED TO REVOKE, IN ACCORDANCE WITH THE RESERVATION. IT MUST BE HELD, THEREFORE, THAT SUBSEQUENT TO SEPTEMBER 7, 1926, ANY RIGHTS CLAIMANT MAY HAVE HAD WERE MEASURED BY OR DETERMINED UNDER THE CONTRACT OF SEPTEMBER 1, 1926; AND AS IT APPEARS THE $1,800 PAID BY RHODES WAS REQUIRED BY AND IN ACCORDANCE WITH THE TERMS OF SAID CONTRACT, THERE IS NO LEGAL BASIS FOR THE REFUND CLAIMED.

AS TO THE CLAIM FOR $2,000 FOR DAMAGES ON ACCOUNT OF THE ALLEGED SEIZURE BY THE COMMISSIONER ON THE LAST DAY OF THE EXPOSITION OF MATERIAL BELONGING TO RHODES, IT NEED ONLY BE SAID THAT IF SUCH SEIZURE WAS UNLAWFUL AND UNAUTHORIZED, THE CLAIM IS ONE FOR AN INJURY SOUNDING IN TORT, FOR WHICH THIS OFFICE CAN GIVE NO RELIEF IN THE ABSENCE OF SPECIFIC LEGISLATION, OR AN EXPRESS AGREEMENT AUTHORIZED BY LAW, PROVIDING THEREFOR. 1 COMP. GEN. 178: 5 ID. 461. SEE ALSO GIBBONS V. UNITED STATES, 8 WALL. 269; HART V. UNITED STATES, 95 U.S. 316; BIGBY V. UNITED STATES, 188 U.S. 400.