MARCH 14, 1924, 3 COMP. GEN. 630

MARCH 14, 1924, 3 COMP. GEN. 630

STORAGE OF PUBLIC PROPERTY WHERE A PERSON, TO WHOM GOVERNMENT PROPERTY HAD BEEN LOANED FOR THE PURPOSE OF MAKING CERTAIN TESTS AND WHEN REQUESTED TO RETURN IT, HAD, INSTEAD OF COMPLYING WITH THE REQUEST, PLACED ON THE PROPERTY IN PUBLIC STORAGE WITHOUT AUTHORITY FROM THE GOVERNMENT, THE GOVERNMENT IS NOT LIABLE FOR THE STORAGE CHARGES ARISING THEREFROM. THE WAREHOUSEMAN'S LAW OF A STATE IS NOT APPLICABLE TO PROPERTY OF THE UNITED STATES STORED IN A WAREHOUSE WITHOUT AUTHORITY OF THE FEDERAL GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 14, 1924:

THE WEIMAR STORAGE AND TRUCKING CO. APPLIED FEBRUARY 14, 1924, FOR REVIEW OF SETTLEMENT NO. M-21514 DATED JANUARY 21, 1924, DISALLOWING ITS CLAIM FOR $185 FOR STORAGE AND HANDLING CHARGES ON 17 CASES OF AIRPLANE ENGINES AND SPARE PARTS, THE PROPERTY OF THE UNITED STATES, PLACED IN STORAGE BY ALBERT L. JUDSON, NOW DECEASED, TO WHOM THEY HAD BEEN LOANED BY THE NAVY DEPARTMENT.

THE FACTS IN THE CASE MAY BE SUMMARIZED AS FOLLOWS:

THE ENGINES WERE LOANED TO ALBERT L. JUDSON, PRESIDENT AMERICAN POWER BOAT ASSOCIATION, FOR INSTALLATION IN SPEED BOATS TO CONDUCT CERTAIN TESTS. THE ENGINES WERE LATER OFFERED FOR SALE TO MR. JUDSON, WHO REFUSED TO CONSIDER THEIR PURCHASE AT THE PRICE NAMED BY THE NAVY DEPARTMENT.

UPON RECEIPT OF THE INFORMATION THAT MR. JUDSON DID NOT DESIRE TO PURCHASE THE ENGINES, IT WAS REQUESTED THAT THEY BE RETURNED TO THE NAVY DEPARTMENT, AND SHIPMENT ORDERS WERE ISSUED ACCORDINGLY. THE REQUEST FOR THEIR RETURN NOT BEING COMPLIED WITH, AFTER A CONSIDERABLE LAPSE OF TIME, MR. JUDSON WAS AGAIN REQUESTED TO RETURN THE ENGINES AND TO EXPLAIN THE CAUSE OF DELAY. ADVICE WAS THEN RECEIVED OF HIS DEATH, WITH THE INFORMATION THAT THE ENGINES WERE IN STORAGE AT THE WEIMAR STORAGE AND TRUCKING CO.'S WAREHOUSE AT ELIZABETH, N.J. UPON RECEIPT OF THIS INFORMATION STEPS WERE IMMEDIATELY TAKEN TO RECOVER THE PROPERTY FROM THE WAREHOUSE, AND THE WEIMAR STORAGE AND TRUCKING CO. WAS REQUESTED TO ADVISE THE OFFICER IN CHARGE OF THE NAVY SUPPLY DEPOT AS TO WHEN IT WOULD BE CONVENIENT FOR THE NAVY DEPARTMENT'S REPRESENTATIVE TO CALL FOR THE PROPERTY.

THE FOLLOWING REPLY WAS MADE BY THE CLAIMANT TO THIS REQUEST:

NAVY SUPPLY DEPOT,

29TH ST. AND 3RD AVE., SO. BROOKLYN, N.Y.

ATTENTION OF T. H. HICKS, CAPT. SUPPLY CORPS.

DEAR SIR: REPLYING TO YOUR LETTER OF APRIL 10TH YOUR FILE 223-12, BEG TO ADVISE THAT WE HAVE IN STORAGE FOR THE ACCOUNT OF MR. JUDSON, 17 CASES IN ALL.

TWO CASES WILL WEIGH ABOUT 2,800 POUNDS EACH, AND MEASURE 144 CU.FT.

THREE CASES WEIGH 1,600 POUNDS EACH; CU.FT. 54 EACH.

THE REMAINING 12 BOXES WILL AVERAGE FROM 8 TO 20 CUBIC FEET AND WILL WEIGH FROM 100 TO 500 POUNDS EACH.

THE STORAGE DUE TO MAY 1ST WILL BE $160, AND THE LABOR NECESSARY TO HANDLE THESE HEAVY CASES FROM THE STORAGE TO OUR ELEVATOR AND THEN TO LOAD ON YOUR TRUCKS WILL BE $25 ADDITIONAL.

WE WOULD BE VERY GLAD TO HAVE YOU CALL ANY TIME BEFORE THE 25TH OF APRIL OR AFTER MAY 3RD, AS WE WILL BE VERY BUSY BETWEEN THESE DATES WITH OUR SPRING MOVING RUSH.

KINDLY ADVISE US A FEW DAYS IN ADVANCE, FORWARD CHECK FOR THE STORAGE AND LABOR CHARGES, AND ALSO RETURN OUR WAREHOUSE RECEIPT ISSUED WHEN THE GOODS WERE RECEIVED.

VERY TRULY YOURS,

WEIMAR STORAGE AND TRUCKING CO.,

(S) CHAS. SEBOLD, SECRETARY.

UPON RECEIPT OF THIS LETTER THE CLAIMANT WAS ADVISED AS FOLLOWS:

REFERRING TO YOUR LETTER OF 11 APRIL, YOU ARE ADVISED THAT THE NAVY DEPARTMENT CONTENDS THAT THE ENGINES IN QUESTION ARE THE PROPERTY OF THE UNITED STATES AND THAT YOU HAVE NO LEGAL RIGHT OF LIEN AGAINST THEM. (U.S. COMP. STAT., SEC. 6950; 6951. R.S., SEC. 3753; 3754.)

THE COMMANDANT REQUESTS THAT YOU INFORM THIS OFFICE WHETHER OR NOT YOU WILL DELIVER THESE ENGINES TO THE REPRESENTATIVE OF THE NAVY DEPARTMENT, WHO WILL CALL FOR THEM PROMPTLY UPON RECEIPT OF A FAVORABLE REPLY FROM YOU.

YOU ARE INFORMED THAT SHOULD YOUR REPLY BE UNFAVORABLE, THE NAVY DEPARTMENT WILL BE FORCED TO TAKE THE NECESSARY LEGAL ACTION TO OBTAIN POSSESSION OF THE ENGINES IN QUESTION.

UPON DELIVERY OF THESE ENGINES TO THE REPRESENTATIVE OF THE NAVY DEPARTMENT CALLING FOR THEM, SUCH CLAIM FOR STORAGE AND LABOR CHARGES AS YOU MAY DESIRE TO MAKE WILL BE FORWARDED TO THE NAVY DEPARTMENT, WASHINGTON, D.C., FOR ACTION IN CONSIDERATION OF THE SAME.

THE CLAIMANT DELIVERED THE PROPERTY TO THE FREIGHT STATION, USING ITS OWN TRUCKS FOR SUCH DELIVERY, AND HAS BEEN PAID THE PRICE AGREED UPON FOR THIS SERVICE. A CLAIM WAS THEN PRESENTED TO THE NAVY DEPARTMENT IN WASHINGTON FOR STORAGE AMOUNTING TO $160 AND HANDLING CHARGES AMOUNTING TO $25, THE LATTER AMOUNT BEING CLAIMED FOR HANDLING THE PROPERTY IN THE WAREHOUSE AND LOADING IT ON THE TRUCKS. THE CLAIMANT ALLEGES THAT AN AGREEMENT WAS MADE TO PAY THE AMOUNT OF $25 FOR HANDLING CHARGES, WHICH THE OFFICER WITH WHOM SUCH AGREEMENT IS ALLEGED TO HAVE BEEN MADE, DENIES. THIS DENIAL, TOGETHER WITH THE TRADE CUSTOM THAT NO CHARGE IS MADE FOR STORAGE ARE DELIVERED TO THE WAREHOUSEMAN'S TRUCKS AND THE HAULING DONE BY HIM, PRECLUDES AN ALLOWANCE OF THIS ITEM.

THE CLAIMANT ADMITS THAT IT WAS INFORMED BY MR. JUDSON THAT THE GOODS BELONGED TO THE GOVERNMENT AND BY ITS LETTER OF APRIL 11, 1923, QUOTED ABOVE, THAT THEY WERE HELD IN STORAGE "FOR THE ACCOUNT OF MR. JUDSON.'

IT DOES NOT APPEAR THAT MR. JUDSON CLAIMED TO BE ACTING AS AN AGENT OF THE UNITED STATES WHEN THE PROPERTY WAS STORED WITH THE CLAIMANT, BUT EVEN IF SUCH REPRESENTATIONS WERE MADE THE CLAIMANT WAS CHARGED WITH THE DUTY OF ASCERTAINING THE AUTHORITY OF JUDSON TO SO ACT IN THE MATTER. THAT HE HAD NO AUTHORITY TO INCUR A LIABILITY FOR WHICH THE UNITED STATES WOULD BE RESPONSIBLE IS CLEAR. THE AGREEMENT FOR STORAGE WAS MADE BY HIM ON HIS PERSONAL RESPONSIBILITY, AND ANY CLAIM THEREUNDER IS FOR ASSERTION AGAINST HIM OR HIS ESTATE.

IT IS CONTENDED THAT AS THE ESTATE OF MR. JUDSON IS INSOLVENT AND SINCE BY SURROUNDING POSSESSION OF THE PROPERTY THE CLAIMANT LOST THE PROTECTION OF THE WAREHOUSEMAN'S LAW, WHICH GIVES THE WAREHOUSEMAN A FIRST LIEN ON GOODS HELD BY HIM, THE GOVERNMENT IS LIABLE FOR THE CHARGES. SUCH CONTENTION IS UNTENABLE. THE FACT THAT THE CHARGES CAN NOT BE COLLECTED FROM THE PARTY LIABLE THEREFOR DOES NOT RENDER THE GOVERNMENT LIABLE FOR THE AMOUNT, NOR DID THE CLAIMANT HAVE AN ENFORCEABLE LIEN AGAINST THE PROPERTY OF THE GOVERNMENT.

PUBLIC PROPERTY CAN BE SUBJECTED TO CLAIMS AGAINST IT ONLY WHEN IT IS IN THE POSSESSION OF THE COURTS BY THE ACT OF THE GOVERNMENT SEEKING TO HAVE ITS RIGHTS ESTABLISHED. 21 OP.ATTY.GEN., 19.

FURTHERMORE, ANY PROCEEDING AGAINST THE UNITED STATES OR ITS PROPERTY FOR THE ENFORCEMENT OF A LIEN AUTHORIZED BY THE WAREHOUSEMAN'S LAW OF THE STATE WOULD HAVE INVOLVED A SUIT AGAINST THE FEDERAL GOVERNMENT IN A STATE COURT, AND THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT---

NO STATE CAN PASS A LAW WHICH WOULD HAVE ANY VALIDITY FOR MAKING THE GOVERNMENT SUABLE IN ITS COURTS. CARR V. UNITED STATES, 98 U.S., 437.

THE STORING OF THE PROPERTY BY THE CLAIMANT WAS NOT DONE BY THE AUTHORITY, REQUEST, OR DIRECTION OF AN OFFICER OR AGENT OF THE UNITED STATES, AND THE GOVERNMENT IS UNDER NO OBLIGATION TO MAKE PAYMENT THEREFOR.