A-2853, JULY 5, 1924, 4 COMP. GEN. 14

A-2853: Jul 5, 1924

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A CLAIM FOR THE RENTAL OF AN AUTOMOBILE HIRED BY AN OFFICER OR EMPLOYEE OF THE INTERIOR DEPARTMENT WITHOUT A FORMAL WRITTEN CONTRACT IS PAYABLE. ONLY ON A QUANTUM MERUIT BASIS AND CONSEQUENTLY INVOLVES DOUBTFUL QUESTIONS OF LAW AND FACT CONSTITUTING A CLAIM WHICH A DISBURSING OFFICER IS NOT AUTHORIZED TO PAY BUT SHOULD BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. WITH INCLOSURES REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO DIRECT PAYMENT OF $132 TO THE MAGRUDER MOTOR CAR CO. OF AN AUTOMOBILE AT $12 A DAY FOR THE USE OF AN AGENT OF THE GENERAL LAND OFFICE AND WHICH AUTOMOBILE IS STATED TO HAVE BEEN SECURED AFTER PERSONAL SOLICITATION OF BIDS AT VARIOUS GARAGES IN GLASGOW AND IN WILLISTON.

A-2853, JULY 5, 1924, 4 COMP. GEN. 14

INTERIOR DEPARTMENT-FORMAL EXECUTION OF CONTRACTS AN OFFICER OF THE DEPARTMENT OF THE INTERIOR APPOINTED OR DESIGNATED AS A CONTRACTING OFFICER CAN NOT IGNORE THE MANDATORY REQUIREMENTS OF SECTION 3744, REVISED STATUTES, ON THE GROUND OF EXPEDITION AND DISPATCH OF THE PUBLIC BUSINESS OR THAT IT WOULD SERVE NO USEFUL PURPOSES OR WORK A HARDSHIP IN A PARTICULAR CASE. A CLAIM FOR THE RENTAL OF AN AUTOMOBILE HIRED BY AN OFFICER OR EMPLOYEE OF THE INTERIOR DEPARTMENT WITHOUT A FORMAL WRITTEN CONTRACT IS PAYABLE, IF AT ALL, ONLY ON A QUANTUM MERUIT BASIS AND CONSEQUENTLY INVOLVES DOUBTFUL QUESTIONS OF LAW AND FACT CONSTITUTING A CLAIM WHICH A DISBURSING OFFICER IS NOT AUTHORIZED TO PAY BUT SHOULD BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 5, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER DATED MAY 15, 1924, WITH INCLOSURES REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO DIRECT PAYMENT OF $132 TO THE MAGRUDER MOTOR CAR CO. (INC.), GLASGOW, MONT., FOR 11 DAYS' HIRE IN APRIL, 1924, OF AN AUTOMOBILE AT $12 A DAY FOR THE USE OF AN AGENT OF THE GENERAL LAND OFFICE AND WHICH AUTOMOBILE IS STATED TO HAVE BEEN SECURED AFTER PERSONAL SOLICITATION OF BIDS AT VARIOUS GARAGES IN GLASGOW AND IN WILLISTON, N.DAK., BUT IN THE ABSENCE OF A WRITTEN CONTRACT FOR THE USE OF THE MACHINE. IT APPEARS TO BE CONTENDED THAT THE HIRE OF THE AUTOMOBILE IS WITHIN AN EXCEPTION TO SECTION 3744, REVISED STATUTES, REQUIRING ALL CONTRACTS OF THE DEPARTMENT OF THE INTERIOR TO BE REDUCED TO WRITING AND SIGNED BY THE PARTIES WITH THEIR NAMES AT THE END.

SO MUCH OF THE ACT OF JUNE 2, 1862, 12 STA. 411, ENTITLED "AN ACT TO PREVENT AND PUNISH FRAUD ON THE PART OF OFFICERS INTRUSTED WITH MAKING OF CONTRACTS FOR THE GOVERNMENT," AS WAS CARRIED INTO THE REVISED STATUTES AS SECTION 3744 PROVIDES, SO FAR AS IS HERE MATERIAL, THAT:

IT SHALL BE THE DUTY OF THE SECRETARY OF WAR, OF THE SECRETARY OF THE NAVY, AND OF THE SECRETARY OF THE INTERIOR, TO CAUSE AND REQUIRE EVERY CONTRACT MADE BY THEM SEVERALLY ON BEHALF OF THE GOVERNMENT, OR BY THEIR OFFICERS UNDER THEM APPOINTED TO MAKE SUCH CONTRACTS TO BE REDUCED TO WRITING, AND SIGNED BY THE CONTRACTING PARTIES WITH THEIR NAMES AT THE END THEREOF; * * *

THE REQUIREMENT OF SAID SECTION HAS BEEN HELD TO BE MANDATORY AND IMPERATIVE, CLARKE V. UNITED STATES, 98 U.S. 539; MONROE V. UNITED STATES, 194 ID. 524. SECTION 3709, REVISED STATUTES, REQUIRES ADVERTISING FOR SUPPLIES OR SERVICES WHEN THE PUBLIC EXIGENCY DOES NOT REQUIRE IMMEDIATE DELIVERY OF THE ARTICLES OR PERFORMANCE OF THE SERVICE, BUT EVEN WHERE ADVERTISING MAY BE DISPENSED WITH ON ACCOUNT OF AN EXIGENCY, THE REQUIREMENT THAT A CONTRACT THEREFORE BE SIGNED BY THE PARTIES WITH THEIR NAMES AT THE END MUST BE COMPLIED WITH IN THE ABSENCE OF SPECIFIC STATUTORY EXCEPTION TO SUCH REQUIREMENT. THE MANDATORY AND IMPERATIVE REQUIREMENT OF THE LAW OBTAINS WHETHER THE PURCHASE BE AN EMERGENCY ONE OR NOT, AND DELIVERY OF SUPPLIES OR THE PERFORMANCE OF SERVICES UNDER AN AGREEMENT WHICH FAILS TO COMPLY THEREWITH IMPOSES NO CONTRACTUAL OBLIGATION ON THE UNITED STATES. SEE EXPORT OIL CORPORATION V. UNITED STATES, 57 CT.CLS. 519. AS TO THE DEPARTMENT OF THE INTERIOR, THE ACT OF MAY 18, 1916, 39 STAT. 126, WAIVED ADVERTISING FOR SMALL PURCHASES NOT EXCEEDING $50 EACH FOR THE INDIAN FIELD SERVICE; THE ACT OF JUNE 12, 1917, 40 STAT. 144, FOR THE GEOLOGICAL SURVEY, THE ACT OF JULY 1, 1918, 40 STAT. 672, FOR THE BUREAU OF MINES, AND THE ACT OF JULY 1, 1918, 40 STAT. 675, FOR THE RECLAMATION SERVICE, WAIVED ADVERTISING FOR THE RESPECTIVE FIELD SERVICES FOR PURCHASES NOT EXCEEDING $50 EACH AND AUTHORIZED THEM TO BE MADE "IN THE MANNER COMMON AMONG BUSINESS MEN.' BOTH THE REQUIREMENT OF ADVERTISING AND EXECUTION OF CONTRACTS AS TO TRANSACTIONS NOT TO EXCEED $100 IN ANY INSTANCE IN ANY BUREAU OR OFFICE IN THE DEPARTMENT OF THE INTERIOR ARE WAIVED BY AN EXPRESS STATUTORY PROVISION IN THE ACT OF JUNE 5, 1924, 43 STAT. 392, BUT PRIOR TO SAID ENACTMENT THERE APPEARS NO WAIVER APPLICABLE TO THE DEPARTMENT OF THE INTERIOR FIELD SERVICE GENERALLY, OR TO THE GENERAL LAND OFFICE SPECIFICALLY. BY RECOGNIZED CANONS OF STATUTORY CONSTRUCTION THAT WHICH IS NOT EXCEPTED IS WITHIN THE REQUIREMENT; AND CONTRACTS FOR THE GENERAL LAND OFFICE FIELD SERVICE ENTERED INTO FOR ANY AMOUNT PRIOR TO JUNE 5, 1924, OR IN EXCESS OF $100 ON OR AFTER SAID DATE ARE REQUIRED BY LAW TO BE REDUCED TO WRITING AND SIGNED BY THE CONTRACTING PARTIES WITH THEIR NAMES AT THE END WHETHER THE PURCHASE OR SERVICE BE AN EMERGENCY ONE OR NOT, UNLESS THE DELIVERY OF THE PURCHASE OR PERFORMANCE OF THE SERVICE AND PAYMENT THEREFOR WERE SIMULTANEOUS TRANSACTIONS WHICH HAVE BEEN HELD TO BE NOT WITHIN THE REQUIREMENT. 3 COMP. GEN. 314.

THE ONLY OFFICERS OR EMPLOYEES IN THE DEPARTMENT OF THE INTERIOR, OTHER THAN THE SECRETARY OF THE INTERIOR, AUTHORIZED TO CONTRACT ON BEHALF OF THE UNITED STATES, ARE THE OFFICERS UNDER THE SECRETARY OF THE INTERIOR "APPOINTED TO MAKE SUCH CONTRACTS.' IN OTHER WORDS, AN OFFICER OF THE DEPARTMENT OF THE INTERIOR, EXCEPT THE HEAD OF THE DEPARTMENT, CAN NOT BIND THE UNITED STATES BY CONTRACT, UNLESS APPOINTED OR DESIGNATED BY THE SECRETARY OF THE INTERIOR FOR THAT PURPOSE. SEE BALTIMORE AND OHIO RAILROAD CO. V. UNITED STATES, 261 U.S. 592, AS TO THE EFFECT OF THE ABSENCE OF AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES. WHERE THE OFFICER HAS BEEN APPOINTED OR DESIGNATED AS A CONTRACTING OFFICER HE CAN NOT IGNORE THE MANDATORY AND IMPERATIVE REQUIREMENTS OF SECTION 3744, REVISED STATUTES, ON THE GROUND OF "EXPEDITION AND DISPATCH OF THE PUBLIC'S BUSINESS," OR THAT IT COULD "SERVE NO FURTHER USEFUL PURPOSE WHATEVER FOR THE ECONOMICAL ADMINISTRATION AND EXPEDITIOUS EXECUTION OF GOVERNMENT AFFAIRS," AS APPEARS TO BE URGED IN THIS CASE. THE CONGRESS, WITH THE APPROVAL OF THE PRESIDENT OF THE UNITED STATES, HAD DEEMED IT NECESSARY, WITH THE EXCEPTIONS HEREINBEFORE CITED, FOR THE PREVENTION OF FRAUD ON THE PART OF OFFICERS INTRUSTED WITH THE MAKING OF ALL CONTRACTS FOR THE DEPARTMENT OF THE INTERIOR, TO REQUIRE CERTAIN FORMALITIES TO BE OBSERVED IN THE ACQUISITION OF SUPPLIES OR SERVICES, INCLUDING THE REDUCTION OF THE CONTRACT TO WRITING AND THE SIGNING BY THE PARTIES WITH THEIR NAMES AT THE END. AS WAS SUCCINCTLY STATED BY CHIEF JUSTICE MARSHAL IN DIXON V. UNITED STATES, 1 BROCKENBROUGH, 177, THE CONTRACTING OFFICER--

* * * IS A MINISTERIAL OFFICER, WHOSE BUSINESS IT IS TO PURSUE THE STATUTE, AND IF HE FAILS TO DO SO, THE STATUTE WILL NOT SANCTION HIS ACT * * *. THAT IN THIS PARTICULAR CASE, THE CONDITION INSERTED MAY NOT BE IN HOSTILITY TO THE GENERAL VIEWS OF THE LEGISLATURE, CAN NOT MATERIALLY VARY THE QUESTION, FOR IT IS NOT WARRANTED BY THE STATUTE; AND IF THE OFFICER BE AT LIBERTY, UNDER THE COLOR OF OFFICE, TO INTRODUCE SUCH CONDITIONS AS HIS OWN JUDGMENT MAY APPROVE THEN HIS JUDGMENT AND NOT THE STATUTE BECOMES THE DIRECTOR OF HIS CONDUCT.

THE FACT THAT THE REQUIREMENTS OF A STATUTE MAY WORK A HARDSHIP IN A PARTICULAR CASE DOES NOT JUSTIFY EXCEPTING SAID CASE THEREFROM. CORONA COAL CO. V. UNITED STATES, 263 U.S. 537.

IT IS NOT UNDERSTOOD HOW IT COULD BE SERIOUSLY CONTENDED AT THIS LATE DAY AND IN VIEW OF THE DECISIONS OF THE COURTS AND OF THE ACCOUNTING OFFICERS OF THE UNITED STATES AS TO THE MANDATORY AND IMPERATIVE REQUIREMENTS OF SECTION 3744, REVISED STATUTES, THAT THERE IS ANY DISCRETION WHATEVER IN ANY OFFICER OF THE DEPARTMENT OF THE INTERIOR AS TO WHETHER CONTRACTS FOR THE PURCHASE OF SUPPLIES OR SERVICES OTHER THAN PERSONAL, WITH THE EXCEPTIONS NOTED, SHOULD BE REDUCED TO WRITING AND SIGNED BY THE PARTIES WITH THEIR NAMES AT THE END.

THE QUESTION OF WHETHER CONTRACTS INVOLVING MORE THAN $100 FOR THE HIRE OF AUTOMOBILES FOR THE USE OF EMPLOYEES OF THE FIELD SERVICE OF THE VARIOUS BUREAUS OF THE DEPARTMENT OF THE INTERIOR SHOULD BE EXCEPTED FROM THE REQUIREMENTS OF SECTION 3744, REVISED STATUTES, IS FOR THE CONSIDERATION OF THE CONGRESS, AND UNLESS AND UNTIL SUCH AN EXCEPTION IS MADE THE REQUIREMENT EXISTS AND SHOULD BE COMPLIED WITH, AND WHERE SUCH REQUIREMENTS ARE NOT OBSERVED THIS OFFICE MUST REFUSE DISBURSING OFFICERS CREDIT FOR PAYMENTS OF SUCH HIRE AND REPORT THE MATTER TO THE CONGRESS AS AN EXPENDITURE MADE IN VIOLATION OF LAW.

IF CONTRACTS ARE NOT EXECUTED FOR THE HIRE OF AUTOMOBILES FOR THE FIELD SERVICE OF THE DEPARTMENT OF THE INTERIOR FOR THE REASON THAT THE FIELD SERVICE EMPLOYEE CONCERNED HAS NOT BEEN DESIGNATED AS A CONTRACTING OFFICER, THE RENTAL VOUCHERS BEARING THE WRITTEN APPROVAL OF THE CHIEF OF THE BUREAU CONCERNED, TOGETHER WITH WRITTEN STATEMENTS FROM ONE OR MORE PERSONS ENGAGED IN THE SAME VICINITY IN THE HIRE OF AUTOMOBILES AS TO WHAT THEY CONSIDER A REASONABLE RENTAL FOR THE MACHINE USED SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT AS CLAIMS. THE REASON WHY SUCH CLAIMS FOR RENTAL IN THE ABSENCE OF A PROPERLY EXECUTED CONTRACT SHOULD NOT BE PAID BY DISBURSING OFFICERS IS THAT THEY INVOLVE DOUBTFUL QUESTIONS OF LAW AND FACT, ESPECIALLY FACT AS TO WHAT IS A REASONABLE RENTAL ON A QUANTUM MERUIT BASIS FOR THE AUTOMOBILE. SEE IN THIS CONNECTION LETTER TO YOU DATED APRIL 16, 1924, IN THE MATTER OF PAYMENT BY DISBURSING OFFICERS OF CLAIMS FOR LIQUIDATED DAMAGES.

PAYMENT BY A DISBURSING OFFICER OF THE VOUCHER HEREWITH RETURNED IS UNAUTHORIZED. WHEN IT HAS BEEN ADMINISTRATIVELY ACTED UPON BY THE COMMISSIONER OF THE GENERAL LAND OFFICE, OR THE SECRETARY OF THE INTERIOR, IT SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT AS A CLAIM, TOGETHER WITH EVIDENCE AS TO REASONABLE RENTALS IN THE VICINITY OF GLASGOW, MONT., FOR AN AUTOMOBILE SUCH AS WAS USED.