A-82908, MARCH 3, 1937, 16 COMP. GEN. 803

A-82908: Mar 3, 1937

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ARE ILLEGAL AND VOID NOT ONLY BECAUSE OF INDEFINITENESS AND UNCERTAINTY AS TO WHETHER APPROPRIATIONS INVOLVED ARE ADEQUATE TO THEIR FULFILLMENT. 1937: YOUR ATTENTION IS INVITED TO LICENSE AGREEMENT "LEASE AUDIT NO. 63920. THE UNITED STATES IS PERMITTED TO "LAY. UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT. WAS AUTHORIZED "TO CONSTRUCT A TELEPHONE LINE KNOWN AS THE ANIMAS-RODEO TELEPHONE LINE AND SECURE THE PRIVILEGE FROM THE SOUTHERN PACIFIC RY. IT IS WELL SETTLED THAT THE UNITED STATES IS NOT RESPONSIBLE FOR THE NEGLIGENCE OF ITS OFFICERS. EVEN IF THE PROVISIONS OF THE AGREEMENT WERE OTHERWISE LEGAL. THERE IS NO PROVISION AS TO HOW THE AMOUNT OF DAMAGES TO BE PAID IS TO BE DETERMINED.

A-82908, MARCH 3, 1937, 16 COMP. GEN. 803

CONTRACTS - DAMAGES - GOVERNMENT INDEMNIFICATION OF PRIVATE LICENSOR PROVISIONS IN A LICENSE AGREEMENT TO "LAY, MAINTAIN, AND OPERATE A LINE OF WIRE OR WIRES FOR TELEGRAPH OR TELEPHONE PURPOSES BENEATH THE TRACK OR TRACKS AND PROPERTY OF LICENSOR," INDEMNIFYING THE LICENSOR AGAINST ANY AND ALL LOSS, DAMAGE, LIABILITY, ETC., OF WHATSOEVER CHARACTER, DIRECT OR CONSEQUENTIAL, INJURIES TO EMPLOYEES OF LICENSOR OR TO THIRD PERSONS, ETC., ARE ILLEGAL AND VOID NOT ONLY BECAUSE OF INDEFINITENESS AND UNCERTAINTY AS TO WHETHER APPROPRIATIONS INVOLVED ARE ADEQUATE TO THEIR FULFILLMENT, AND INDEFINITE AS TO THE MANNER OF DETERMINING THE AMOUNT TO BE SO PAID, BUT ALSO BECAUSE THERE EXISTS NO LEGAL AUTHORITY TO SO BIND THE UNITED STATES UNLESS SO PROVIDED BY STATUTE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MARCH 3, 1937:

YOUR ATTENTION IS INVITED TO LICENSE AGREEMENT "LEASE AUDIT NO. 63920," DATED NOVEMBER 30, 1935, BETWEEN THE SOUTHERN PACIFIC CO., LICENSOR, AND THE "UNITED STATES OF AMERICA, DEPARTMENT OF INTERIOR, DIVISION OF GRAZING," LICENSEE WHEREBY FOR A CONSIDERATION, INTER ALIA, OF $5, THE UNITED STATES IS PERMITTED TO "LAY, MAINTAIN, AND OPERATE A LINE OF WIRE OR WIRES FOR TELEGRAPH OR TELEPHONE PURPOSES BENEATH THE TRACK OR TRACKS AND PROPERTY OF LICENSOR AT OR NEAR ANIMAS, COUNTY OF HIDALGO, STATE OF NEW MEXICO" AT ENGINEER STATION NO. 3661-19 AS SHOWN BY DRAWING NO. 2-L- 151, RIO GRANDE DIVISION.

ARTICLES 6 AND 7 OF THE AGREEMENT PROVIDE AS FOLLOWS:

LICENSEE SHALL INDEMNIFY AND SAVE HARMLESS THE LICENSOR FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, LIABILITY, EXPENSE, CLAIMS, AND DEMANDS, OF WHATSOEVER CHARACTER, DIRECT OR CONSEQUENTIAL, INCLUDING INJURIES TO EMPLOYEES OF LICENSOR OR TO THIRD PERSONS, DAMAGE TO PROPERTY BELONGING TO OR IN THE CUSTODY OR POSSESSION OF LICENSOR OR THIRD PERSONS, WHETHER UPON THE PROPERTY OR RIGHT OF WAY OF LICENSOR, OR ELSEWHERE, CAUSED DIRECTLY OR INDIRECTLY BY THE CONSTRUCTION, REPAIR, RENEWAL, RELOCATION, OPERATION, MAINTENANCE, OR REMOVAL OF SAID WIRE OR WIRES, CONDUITS, OR THEIR APPURTENANCES.

THE LICENSEE SHALL ASSUME ALL RISK OF DAMAGE TO SAID WIRE OR WIRES, CONDUITS, OR THEIR APPURTENANCES AND TO ANY OTHER PROPERTY OF SAID LICENSEE, OR ANY PROPERTY UNDER THE CONTROL OR CUSTODY OF THE LICENSEE,WHILE UPON THE PROPERTY OR RIGHT OF WAY OF LICENSOR, OR IN PROXIMITY THERETO, CAUSED BY OR CONTRIBUTED TO IN ANY WAY BY THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE LINE OR LINES OF RAILROAD OF THE LICENSOR OR ITS OR THEIR PRESENT OR FUTURE ADJUNCTS OR APPURTENANCES, AND DOES HEREBY RELEASE AND AGREES TO INDEMNIFY AND SAVE HARMLESS THE LICENSOR FROM AND AGAINST ANY AND ALL LIABILITY FOR INJURIES SUFFERED BY LICENSEE OR THE AGENTS OR THE REPRESENTATIVES OF THE LICENSEE, OR ANY OTHER PERSON OR PERSONS WHILE ENGAGED IN THE CONSTRUCTION, MAINTENANCE, OPERATION, REPAIR, OR REPLACEMENT OF SAID WIRE OR WIRES, CONDUITS, OR THEIR APPURTENANCES, CAUSED BY OR CONTRIBUTED TO IN ANY WAY BY THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE LINE OR LINES OF RAILROAD OF THE LICENSOR OR ITS OR THEIR PRESENT OR FUTURE ADJUNCTS OR APPURTENANCES, OR CAUSED IN ANY OTHER RESPECT WHATSOEVER.

SECTION 3732, REVISED STATUTES, PROVIDES AS FOLLOWS:

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, OR TRANSPORTATION, WHICH, HOWEVER, SHALL NOT EXCEED THE NECESSITIES OF THE CURRENT YEAR. (SEE, ALSO, ACT OF JUNE 12, 1906, 34 STAT. 255.)

THE QUOTED PORTIONS OF THE AGREEMENT INVOLVED PURPORT TO IMPOSE ON THE UNITED STATES OBLIGATIONS SO INDEFINITE AND UNCERTAIN AS TO BRING THEM WITHIN THE CLASS OF PROHIBITED CONTRACTS UNDER SECTION 3732, REVISED STATUTES, SUPRA.

IT APPEARS THAT BY LETTER OF NOVEMBER 15, 1935, FROM HENRY PRAGER, ADMINISTRATIVE ASSISTANT, E.C.W., DIVISION OF GRAZING, DEPARTMENT OF THE INTERIOR, MR. FRANK W. JONES, PROJECT SUPERINTENDENT, CAMP DG-43-N, ANIMAS, N.MEX., WAS AUTHORIZED "TO CONSTRUCT A TELEPHONE LINE KNOWN AS THE ANIMAS-RODEO TELEPHONE LINE AND SECURE THE PRIVILEGE FROM THE SOUTHERN PACIFIC RY. CO. TO CONSTRUCT A CONDUIT UNDER THE TRACKS OF THIS RAILROAD.' HOWEVER, IN EXECUTING THE AGREEMENT WITH THE INDEMNITY PROVISIONS, SUPRA, THEREIN, MR. JONES EXCEEDED HIS AUTHORITY, THE INDEMNITY PORTION OF SAID AGREEMENT NOT BEING AUTHORIZED BY LAW OR APPROPRIATION. IT IS WELL SETTLED THAT THE UNITED STATES IS NOT RESPONSIBLE FOR THE NEGLIGENCE OF ITS OFFICERS, EMPLOYEES, OR AGENTS AND SUCH LIABILITY CANNOT BE IMPOSED UPON IT BY AN ATTEMPT ON THE PART OF THE CONTRACTING OFFICER TO MAKE IT A PART OF THE CONSIDERATION OF A CONTRACT.

EVEN IF THE PROVISIONS OF THE AGREEMENT WERE OTHERWISE LEGAL, THERE IS NO PROVISION AS TO HOW THE AMOUNT OF DAMAGES TO BE PAID IS TO BE DETERMINED. NO EXECUTIVE DEPARTMENT IS AUTHORIZED TO DETERMINE SUCH DAMAGES EXCEPT IN THE LIMITED CASES SPECIFICALLY PROVIDED FOR BY STATUTE AND NEITHER THIS OFFICE NOR THE COURTS HAVE JURISDICTION OVER CLAIMS IN TORT AGAINST THE GOVERNMENT EXCEPT WHERE SPECIAL JURISDICTION IS CONFERRED BY SPECIFIC LEGISLATION.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE QUOTED PORTIONS OF THE AGREEMENT, INSOFAR AS THEY PURPORT TO MAKE THE GOVERNMENT LIABLE FOR DAMAGES, ARE NULL AND VOID, THE CONTRACTING OFFICER HAVING BEEN WITHOUT AUTHORITY TO IMPOSE SUCH INDEMNITY OBLIGATIONS ON THE UNITED STATES. SEE 7 COMP. GEN. 507, A-25163, JANUARY 30, 1928; A-26841, JUNE 13 1929.