B-6400 August 28, 1940

B-6400: Aug 28, 1940

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Sir: There was received your letter of July 6. As follows: "There is transmitted herewith for your reconsideration a voucher in the amount of $30.21 made payable to the Forestry Division of the States of Washington. This voucher is in payment of a claim for services rendered by the Forestry Division in extinguishing a forest fire on the right-of- way of the Bonneville Power Administration. Was free from negligence in carrying out his duties. That the evidence did not demonstrate that the fire was the result of activities of employees of the United States. "Transmitted herewith is additional evidence to clarify these matters. Were both free from negligence. "This evidence appears to establish that the Government is clearly liable for the services rendered by the State of Washington.

B-6400 August 28, 1940

The Honorable, The Secretary of the Interior.

Sir:

There was received your letter of July 6, 1940, as follows:

"There is transmitted herewith for your reconsideration a voucher in the amount of $30.21 made payable to the Forestry Division of the States of Washington. This voucher is in payment of a claim for services rendered by the Forestry Division in extinguishing a forest fire on the right-of- way of the Bonneville Power Administration. The fire originated as a result of the activities of a WPA crew utilized by the Bonneville Administration for clearing the right-of-way.

"In an opinion dated October 27, 1939, your office declined to approve payment of this voucher on the following grounds: First, that the evidence failed to demonstrate that Mr. George Herger, District Fire Warden of the State of Washington, was free from negligence in carrying out his duties, and, second, that the evidence did not demonstrate that the fire was the result of activities of employees of the United States.

"Transmitted herewith is additional evidence to clarify these matters, consisting of certified copies of letters signed by witnesses of the fire. These indicate unanimous agreement among the witnesses that the fire resulted from the operations of Government clearing crews on the right-of- way, being traceable to large beds of glowing embers left untended. These letters demonstrate also that Mr. Herger, District Fire Warden, and Mr. Jemtegaard, Assistant District Fire Warden, were both free from negligence. Mr. Herger, having noticed the embers, attempted unsuccessfully to warn the proper officials of the Government of the danger, and Mr. Jemtegaard responded promptly to a request for a assistance from the foreman of the clearing crew.

"This evidence appears to establish that the Government is clearly liable for the services rendered by the State of Washington. The evidence demonstrates that a forest fire of some size caused by Government employees was raging on Government property when the assistance of the State of Washington was sought, and that this fire threatened the property of landowners adjoining the right-of-way, as well as a large section of right-of-way to which it had not yet spread. An employee of the United States, the crew foreman, called the proper State official and asked assistance in bringing the fire under control. The assistance was promptly furnished and then a bill was submitted for the reasonable cost thereof.

"The laws of the State of Washington clearly authorize a charge for services rendered by the District Fire Wardens in the extinguishment of fires. Section 5806, (7 Rem. Rev. Stat. Supp. p. 44) provides:

"'Any fire on any forest land in the State of Washington burning uncontrolled and without proper precaution being taken to prevent its spread is hereby declared a public nuisance by reason of its menace to life or property. Any person, firm or corporation responsible for either starting or the existence of such a fire is hereby required to control or extinguish it immediately, * * * and if said responsible person, firm or corporation shall refuse, neglect or fail to do so, * * * any fire warden * * * may summarily abate the nuisance thus constituted by controlling or extinguishing the fire and the cost thereof may be recovered from said responsible person, firm or corporation by action for debt and, if the work is performed on the property of the offender shall constitute a lien upon said property.'

"Implicit in the Government foreman's request for assistance in fighting the fire was a promise that the services would be paid for. This promise to pay was not reduced to writing, as may possibly be required by 41 U.S.C. Sec. 16. But it has been often held that, despite that statute, persons who confer a benefit on the United States may recover on a parol agreement in quantum meruit for the reasonable value of the services rendered. E.g. Clark v. United States, 95 U.S. 539 (1877). And this rule has been applied to allow recovery for personal services rendered in an emergency. Davis v. United States, 120 Fed. 190 (D. C. Ala. 1903) (services of a physician rendered to a Government employee); Coffin v. United States, 37 Ct. Cl. 476 (1902) (same). The itemized bill rendered by the State of Washington to support its claim, enclosed herewith, indicates that the claim is made only for the out-of-pocket cost to the State, i.e., salaries at thirty cents an hour paid to the men hired to combat the blase. This out-of-pocket cost seems clearly to measure the reasonable value of the services rendered.

"But even though it be admitted that the Government is liable for these service, the question arises as to whether the claim is properly chargeable to the appropriations of t he WPA or to those of the Bonneville Power Administration, or to either. In considering this question, it is appropriate further to explain the relationship of the Bonneville Administration to the WPA crews whose activities caused the instant fire.

"Under the provisions of the Bonneville Act, (50 Stat. 731) the Bonneville Power Administrator is authorized to acquire right-of-way in the name of the United States, and to construct thereon electric transmission lines. In constructing these lines the Administrator requested WPA assistance in clearing the right-of-way, and the WPA assumed these clearing tasks as WPA projects. The men engaged in such work were employed by the WPA and worked under the direction of WPA foreman and supervisors. The Bonneville Power Administration prescribed neither the method in which the work was to be done nor the time schedule. The WPA was responsible to the Bonneville Administration only for the completion of each project.

"In conducting each of these operations, however, the WPA clearing crews used certain property belonging to the Bonneville Administration, such as sheds, trucks, tools, etc. In addition, in the vicinity of this particular operation, there were situated buildings containing other valuable property belonging to the Bonneville Power Administration, including survey equipment and pumps. The services of the Washington Division of Forestry were required to protect all of this property and its destruction was prevented by the prompt action of the fire warden.

"From what has been said it is clear that the WPA crew and its forman were in no sense agents of the Bonneville Administration in their ordinary clearing activities; as to such activities, they were responsible only to their own WPA superiors. It is nevertheless possible to consider the WPA foreman as an agent of the Bonneville Administration for the purpose of fastening liability upon the Bonneville Administration for the protection of its property in an emergency. It is not unreasonable to say the WPA foreman had implied authority to contract with third persons in the name of the Bonneville Power Administration for services necessary to save Bonneville property which the crew was using, another nearby Bonneville property, from danger of destruction. Especially would this be reasonable when, as in this case, the WPA crew were the only Government employees in the vicinity of the property at the time.

"It is therefore requested that authorization be given to pay the above claim from the appropriations of the Bonneville Power Administration, or, in the alternative, that an opinion be given as to the liability of the WPA for this claim."

The decision of this office dated October 27, 1939, with respect to the instant matter, did not hold, or purport to hold, as stated by you, "that the evidence failed to demonstrate that Mr. George Herger, District Fire Warden of the State of Washington, was free from negligence in carrying out his duties". It merely stated--

"* * * that it is not established that the fire in question was an extension of or caused by a fire or fires resulting from the operations of brush disposal crews or other Government agents or employees operating in connection with the project referred to, and, therefore, regardless of other considerations the Administrator may be advised that payment on the voucher, which is returned herewith together with related papers, is not authorized."

It appears to be your view as stated in your letter that the evidence now of record is sufficient to show that the forest fire here involved was the direct result of negligence of employees of the Federal Government, and that certain property of the United States would have been destroyed if one of its employees had not enlisted the aid of an Assistant District Fire Warden of Washington in bringing the fire under control; and you conclude that the United States is liable to the State for the amount of the expense incurred by it in complying with the request, because of the terms of section 5806 of the Revised Statutes of Washington providing for the recovery by the State of the cost of extinguishing a forest fire from "Any person, firm or corporation responsible for either starting or the existence of such a fire", and, also, upon a quantum meruit basis. I am unable to agree with that conclusion.

In the first place, as was succinctly stated by the Supreme Court of the United States in the case of German Bank of Memphis, et al. v. United States, 148 S. 573, 579, "It is a well settled rule of law that the government is not liable for the nonfeasances or misfeasances or negligence of its officers and that the only remedy to the injured party in such cases is by appeal to Congress" and there is, of course, no distinction between an "officer" of the United States and one of its "employees" in this connection.

Also, aside from the fundamental proposition that under the dual system of government existing in the United States a State can not impose an obligation upon the Federal Government without the consent of the Congress, it is a well-established canon of statutory interpretation that the general words of a statute do not include the Government unless the construction be clear and indisputable upon the text of the law; and even if the State of Washington can establish that the forest fire here involved resulted from the negligence of certain persons while functioning as employees of the United States and can recover from such persons under the terms of said section 5806 of the Revised Statutes of that State for the cost incurred by it in bringing the fire under control, such fact in nowise imposes any legal obligation upon the Federal Government with respect to the matter and there is no room for doubt but that the words "person, firm or corporation" appearing in the statute do not include the Federal Government and that said law is not for application here.

It is equally apparent that the circumstances in the instant case are not such that a payment of the claim may be authorized on a quantum meruit basis. It is true that the expense of the State of Washingtonm for which reimbursement is sought possibly would not have been incurred but for the action of an employee of the United States in soliciting the aid of an Assistant District Fire Warden of that State for the purpose of bringing the fire under control. However, it must not be overlooked that section 5786 of the Revised Statutes of Washington provides that it shall be the duty of District Fire Wardens, among other things, to "* * * patrol their districts * * * extinguish small or smoldering fires"; and "summon, impress or employ help to stop conflagrations * * *." Hence, it would appear that an obligation rested upon the Assistant District Fire Warden whose assistance was requeted to take such action as was necessary to bring the fire under control upon its existence being brought to his attention, regardless of the identify of the person from whom or the manner in which he acquired the information, and, such being the fact, it is difficult to perceive any sound basis for the view that the request that the State official perform his duty implied that the Federal Government would bear such expense as might be incurred by the State in bringing the fire under control.

Furthermore, while, as shown by the court decisions referred to by you, there is ample authority for the proposition that where services are rendered on the request or order of an officer or employee who is authorized to contract for the United States, there is recognized an implied contract to pay the reasonable value of the services actually rendered even though there be no valid express contract, nevertheless, it is also a well-established principle that if the officer or employee who makes the arrangement has no authority to contract for or to procure such services at the expense to the Federal Government--as undoubtedly was the case where--no contract, implied or otherwise, can be created by the rendition of services at his request, even though it appears that the Government may have been benefited thereby, for, as was said by the Supreme Court of the United States in the case of Beach v. United States, 226 U.S. 243m 260, "it is fundamental that he who is without authority to bind his principal by an express contract cannot be held to have done so by implication." Cf. 18 Comp. Gen. 568.

In view of the foregoing--even though the present record be accepted as establishing that the negligence of employees of the Federal Government in the performance of their duties as such was the proximate cause of the forest fire here involved and that certain property of the United States would have been destroyed if the fire had not been brought under control-- there appears to be no legal basis for the payment of the instant claim. Accordingly, since this office has no authority to allow claims on any other basis, you are advised that the previous holding of this office that there is no authority for payment on the voucher here involved must be and the same as affirmed. Said voucher, together with related papers, is returned herewith.

Respectfully,

(Signed) Frank L. Yates Acting Comptroller General of the United States