B-149993, MAY 1, 1964, 43 COMP. GEN. 711

B-149993, MAY 1, 1964, 43 COMP. GEN. 711

CLAIMS - MILITARY ACTIVITIES - PROPERTY DAMAGE, LOSS, ETC. - INCIDENT TO TROOPS MAINTAINING ORDER THE USE AND OCCUPANCY OF PREMISES AT THE UNIVERSITY OF MISSISSIPPI BY ARMY TROOPS PURSUANT TO PRESIDENTIAL PROCLAMATION 3497 AND EXECUTIVE ORDER NO. 11053 UNDER WHICH THE TROOPS WERE SENT TO MAINTAIN ORDER, ENFORCE ORDERS OF THE UNITED STATES COURTS AND TO REMOVE OBSTRUCTIONS TO JUSTICE, IS NOT AN OCCUPANCY WHICH ESTABLISHED A LANDLORD AND TENANT RELATIONSHIP UNDER AN IMPLIED LEASE FOR PAYMENT OF CLAIMS FOR THE FAIR RENTAL VALUE AND FOR RESTORATION OF PREMISES, BUT RATHER, SUCH USE AND OCCUPANCY, WHICH WAS BASED IN PART ON THE ACTION OR LACK OF ACTION OF STATE OFFICIALS, IS CONSIDERED AN INCIDENT TO THE EXERCISE OF THE RIGHT OF THE FEDERAL GOVERNMENT IN THE NATURE OF A POLICE POWER PRECLUDING RIGHT OF RECOVERY, AND, THEREFORE, CLAIMS BASED ON SUCH USE AND OCCUPANCY MAY NOT BE ALLOWED ABSENT A JUDICIAL DETERMINATION.

TO THE SECRETARY OF THE ARMY, MAY 1, 1964:

BY SECOND INDORSEMENT DATED OCTOBER 4, 1963, THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT, PURSUANT TO 31 U.S.C. 71, THE CLAIMS FOR DAMAGES FILED BY THE UNIVERSITY OF MISSISSIPPI, UNIVERSITY, MISSISSIPPI, RESULTING FROM THE USE AND OCCUPANCY OF ITS PREMISES BY THE ARMY DURING THE PERIOD SEPTEMBER 30, 1962, TO MAY 20, 1963.

WHILE THERE ARE FOUR CLAIMS OF THE UNIVERSITY, ONLY THREE OF THE CLAIMS HAVE BEEN SUBMITTED FOR SETTLEMENT AT THIS TIME. THE TOTAL AMOUNT OF THESE THREE CLAIMS IS $104,544.90. THE AMOUNT RECOMMENDED FOR ALLOWANCE IS $66,913 AND THE UNIVERSITY HAS AGREED TO ACCEPT THIS AMOUNT IN FULL SETTLEMENT OF THE THREE CLAIMS.

THE RECORD INDICATES THAT ARMY TROOPS OCCUPIED AND USED THE PREMISES OF THE UNIVERSITY UNDER THE AUTHORITY OF PRESIDENTIAL PROCLAMATION 3497, 76 STAT. 1506, AND EXECUTIVE ORDER NO. 11053, BOTH ISSUED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 30, 1962 (SEE 27 CFR 9681, 9693). THE PROCLAMATION AND EXECUTIVE ORDER RECITE THAT THEY WERE ISSUED BY THE PRESIDENT PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE CONSTITUTION AND LAWS OF THE UNITED STATES, INCLUDING CHAPTER 15 OF TITLE 10 OF THE U.S.C. PARTICULARLY SECTIONS 332, 333 AND 334. THE CITED CODE SECTIONS PROVIDE AS FOLLOWS:

SEC. 332. USE OF MILITIA AND ARMED FORCES TO ENFORCE FEDERAL AUTHORITY.

WHENEVER THE PRESIDENT CONSIDERS THAT UNLAWFUL OBSTRUCTIONS, COMBINATIONS, OR ASSEMBLAGES, OR REBELLION AGAINST THE AUTHORITY OF THE UNITED STATES, MAKE IT IMPRACTICABLE TO ENFORCE THE LAWS OF THE UNITED STATES IN ANY STATE OR TERRITORY BY THE ORDINARY COURSE OF JUDICIAL PROCEEDINGS, HE MAY CALL INTO FEDERAL SERVICE SUCH OF THE MILITIA OF ANY STATE, AND USE SUCH OF THE ARMED FORCES, AS HE CONSIDERS NECESSARY TO ENFORCE THOSE LAWS OR TO SUPPRESS THE REBELLION.

SEC. 333. INTERFERENCE WITH STATE AND FEDERAL LAW.

THE PRESIDENT, BY USING THE MILITIA OR THE ARMED FORCES, OR BOTH, OR BY ANY OTHER MEANS, SHALL TAKE SUCH MEASURES AS HE CONSIDERS NECESSARY TO SUPPRESS, IN A STATE, ANY INSURRECTION, DOMESTIC VIOLENCE, UNLAWFUL COMBINATION, OR CONSPIRACY, IF IT---

(1) SO HINDERS THE EXECUTION OF THE LAWS OF THAT STATE, AND OF THE UNITED STATES WITHIN THE STATE, THAT ANY PART OR CLASS OF ITS PEOPLE IS DEPRIVED OF A RIGHT, PRIVILEGE, IMMUNITY, OR PROTECTION NAMED IN THE CONSTITUTION AND SECURED BY LAW, AND THE CONSTITUTED AUTHORITIES OF THAT STATE ARE UNABLE, FAIL, OR REFUSE TO PROTECT THAT RIGHT, PRIVILEGE, OR IMMUNITY, OR TO GIVE THAT PROTECTION; OR

(2) OPPOSES OR OBSTRUCTS ANE THE EXECUTION OF THE LAWS OF THE UNITED STATES OR IMPEDES THE COURSE OF JUSTICE UNDER THOSE LAWS.

IN ANY SITUATION COVERED BY CLAUSE (1), THE STATE SHALL BE CONSIDERED TO HAVE DENIED THE EQUAL PROTECTION OF THE LAWS SECURED BY THE CONSTITUTION.

SEC. 334. PROCLAMATION TO DISPERSE.

WHENEVER THE PRESIDENT CONSIDERS IT NECESSARY TO USE THE MILITIA OR THE ARMED FORCES UNDER THIS CHAPTER, HE SHALL, BY PROCLAMATION, IMMEDIATELY ORDER THE INSURGENTS TO DISPERSE AND RETIRE PEACEABLY TO THEIR ABODES WITHIN A LIMITED TIME.

BY THE EXECUTIVE ORDER THE SECRETARY OF DEFENSE WAS AUTHORIZED AND DIRECTED TO TAKE APPROPRIATE STEPS TO ENFORCE ALL ORDERS OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI AND THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, AND TO REMOVE ALL OBSTRUCTIONS OF JUSTICE FROM THE STATE OF MISSISSIPPI. THE EXECUTIVE ORDER ALSO AUTHORIZED THE SECRETARY OF DEFENSE TO CALL INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES ANY AND ALL UNITS OF THE ARMY NATIONAL GUARD AND THE AIR NATIONAL GUARD OF THE STATE OF MISSISSIPPI.

THE RECORD DISCLOSES THAT PURSUANT TO THE EXECUTIVE ORDER ALL MEMBERS OF THE MISSISSIPPI NATIONAL GUARD WERE FEDERALIZED AND REGULAR ARMY TROOPS ORDERED INTO THE AREA. SEVERAL THOUSANDS OF TROOPS WERE IMMEDIATELY ORDERED TO DUTY ON THE CAMPUS OF THE UNIVERSITY OF MISSISSIPPI TO ESTABLISH AND MAINTAIN ORDER. THE TROOPS WERE QUARTERED IN TENTS OVER CERTAIN AREAS OF THE CAMPUS. EXTENSIVE ARMED PATROLS WERE MAINTAINED ON A 24-HOUR BASIS. ARMY VEHICLES CROSSED OVER AND PARKED ON SODDED AREAS OF THE CAMPUS, WHICH RESULTED IN EXTENSIVE DAMAGE TO THESE OPEN AREAS.

TO BRING THESE TROOPS IN AND TO SUPPORT THEM, A CONSIDERABLE NUMBER OF MILITARY AIRCRAFT MADE EXTENSIVE USE OF THE UNIVERSITY'S AIRPORT. THE TYPE OF AIRCRAFT CONSISTED OF C-47, C-130, C-54, C-123, C-124, BC 140 (JET STAR), AND SEVERAL HELICOPTERS OF THE TYPE U6, L23A, AND CCO8/V2. APPROXIMATELY 95 PERCENT OF THE FIXED WING AIRCRAFT WEREC-130 S. AS THE RUNWAY AND TAXIWAY OF THE AIRPORT WERE NOT DESIGNED TO SUPPORT THE WEIGHT OF AIRCRAFT OF THIS NATURE, CONSIDERABLE CRACKING AND RUTTING OF THE RUNWAY AND TAXIWAY RESULTED FROM THE USE THEREOF.

WE UNDERSTAND THAT THE QUARTERING AND USE OF ARMY TROOPS ON THE UNIVERSITY PROPERTY WERE WITHOUT BENEFIT OF A VERBAL OR WRITTEN AGREEMENT WITH THE UNIVERSITY. THE ABOVE FACTS AND CIRCUMSTANCES GAVE RISE TO THE THREE CLAIMS FORWARDED FOR SETTLEMENT AS WELL AS THE ONE ADDITIONAL CLAIM.

BY LETTER DATED DECEMBER 19, 1963, THE FORMER GENERAL COUNSEL, DEPARTMENT OF THE ARMY, FORWARDED A "MEMORANDUM OF LAW" ON THE JURISDICTIONAL QUESTIONS INVOLVED IN MAKING PAYMENT OF THE CLAIMS. THE FORMER GENERAL COUNSEL STATES THAT THE MEMORANDUM CONCLUDES THAT THE CLAIMS OF THE UNIVERSITY MAY PROPERLY BE SETTLED BY THE GENERAL ACCOUNTING OFFICE UNDER 31 U.S.C. 71, AND THAT HE AGREES WITH THAT CONCLUSION.

THE POSITION IS TAKEN IN THE MEMORANDUM THAT THE CLAIMS OF THE UNIVERSITY HAVE THEIR ORIGIN IN CONTRACT AND, THEREFORE, ARE NOT COGNIZABLE UNDER THE MILITARY CLAIMS ACT (10 U.S.C. 2733), BUT ARE PROPERLY FOR SETTLEMENT BY THIS OFFICE UNDER 31 U.S.C. 71. ALSO, THE VIEW IS EXPRESSED THAT THE CLAIMS OF THE UNIVERSITY ARE NOT CLAIMS FOR DAMAGES INCIDENT TO NONCOMBAT ACTIVITIES OF THE ARMY.

WE DO NOT AGREE THAT THE CLAIMS ARE NOT COGNIZABLE UNDER 10 U.S.C. 2733, OR THAT SUCH CLAIMS ARE NOT CLAIMS ARISING INCIDENT TO NONCOMBAT ACTIVITIES OF THE ARMY. IN THIS CONNECTION WE NOTE THAT YOUR DEPARTMENT HAS SETTLED AT LEAST EIGHT CLAIMS ARISING INCIDENT TO THE ACTIVITIES OF THE ARMY ACTING UNDER THE AUTHORITY CONTAINED IN THE ABOVE-CITED EXECUTIVE ORDER. SEVERAL OF THOSE CLAIMS WERE CLAIMS FOR LAND DAMAGES INCIDENT TO TROOP BIVOUAC. WE SEE NO SIGNIFICANT DISTINCTION BETWEEN THOSE CLAIMS AND THE INSTANT CLAIMS FOR PURPOSES OF CONSIDERATION UNDER 10 U.S.C. 2733. HOWEVER, ASSUMING ARGUENDO THAT THE GENERAL ACCOUNTING OFFICE HAS AUTHORITY TO CONSIDER THE CLAIMS UNDER 31 U.S.C. 71, WE ARE OF THE OPINION THAT ALLOWANCE OF THE CLAIMS BY OUR OFFICE WOULD NOT BE WARRANTED FOR THE REASONS HEREINAFTER STATED.

IT IS STATED IN THE MEMORANDUM THAT THE CLAIMS AS ASSERTED BY THE UNIVERSITY ARE FOR THE FAIR RENTAL VALUE OF A CERTAIN PART OF ITS PREMISES OCCUPIED BY THE ARMY AND FOR DAMAGES TO OTHER PARTS OF ITS PREMISES INCIDENT TO THEIR USE AND OCCUPANCY. IT IS CONTENDED THAT THESE CLAIMS ARE THE TYPE OF CLAIMS OF WHICH THE COURTS HAVE TAKEN COGNIZANCE AND ON WHICH THEY HAVE GIVEN RELIEF.

IT IS ALSO STATED IN THE MEMORANDUM THAT AT THE TIME OF ITS OCCUPANCY OF PARTS OF THE PREMISES OF THE UNIVERSITY, THE ARMY HAD NO TITLE TO SUCH PREMISES NOR ANY OTHER RIGHT OR INTEREST THEREIN AND THAT THE ARMY COULD NOT AND WOULD NOT MAKE ANY SUCH CLAIM. IT IS FURTHER STATED THAT ALL THE ARMY WOULD CLAIM IS THAT ITS OCCUPANCY UNDER THE CIRCUMSTANCES WAS PROPER AND NOT WRONGFUL AND THAT THE UNIVERSITY DOES NOT ASSERT THAT THE ARMY'S OCCUPANCY WAS WRONGFUL OR UNLAWFUL CONDUCT. THE MEMORANDUM DISCLOSES THAT THE UNIVERSITY'S CLAIM IS MERELY THAT, HAVING OCCUPIED PREMISES OF THE UNIVERSITY IN WHICH IT HAD NO RIGHT, TITLE, OR INTEREST, THE ARMY, AS ANYONE ELSE UNDER SIMILAR CIRCUMSTANCES, MUST PAY THE UNIVERSITY THE FAIR RENTAL VALUE THEREOF AND RESTORE THE PREMISES TO THEIR ORIGINAL CONDITION, FAIR WEAR AND TEAR EXCEPTED.

THE MEMORANDUM DISCLOSES THAT THE DAMAGE CLAIMS ARE CLAIMS FOR THE AMOUNTS REASONABLY NECESSARY TO RESTORE THE PREMISES TO THE CONDITION THEY WERE IN PRIOR TO THEIR OCCUPANCY BY THE ARMY. IT IS CONTENDED THEREIN THAT AS AN INCIDENT OF THE RELATIONSHIP OF LANDLORD AND TENANT, ALTHOUGH ARISING FROM THE OCCUPANCY OF ANOTHER'S PREMISES WITHOUT A LEASE, THE OCCUPANT IS UNDER AN IMPLIED OBLIGATION TO RETURN THE PREMISES IN THE SAME CONDITION THEY WERE IN WHEN OCCUPANCY BEGAN, FAIR WEAR AND TEAR THEREOF EXCEPTED. THE VIEW IS EXPRESSED THAT THIS IMPLIED OBLIGATION IS CONTRACTUAL IN NATURE AND FOR A BREACH THEREOF AN ACTION LIES.

IT IS CLEAR FROM THE MEMORANDUM THAT YOUR DEPARTMENT IS OF THE VIEW THAT THE UNIVERSITY'S CLAIMS ARE FOR SETTLEMENT BY THIS OFFICE UNDER 31 U.S.C. 71 ON THE BASIS THAT THERE WAS AN IMPLIED CONTRACT OF LEASE BETWEEN THE UNIVERSITY OF MISSISSIPPI AND THE UNITED STATES FOR THE USE AND OCCUPATION BY FEDERAL TROOPS OF THE PROPERTY OF THE UNIVERSITY. IN OTHER WORDS IT IS CONTENDED THAT A LANDLORD AND TENANT RELATIONSHIP EXISTED IN FACT BETWEEN THE UNIVERSITY OF MISSISSIPPI AND THE UNITED STATES.

THE UNIVERSITY OF MISSISSIPPI IS ONE OF THE "STATE INSTITUTIONS OF HIGHER LEARNING" OF THE STATE OF MISSISSIPPI. SECTION 6719, MISSISSIPPI CODE, 1942, ANNOTATED, RECOMPILED, VOLUME 5--- 1952. WHILE THE BOARD OF TRUSTEES OF THE STATE INSTITUTIONS OF HIGHER LEARNING, APPOINTED BY THE GOVERNOR, WITH THE CONSENT OF THE MISSISSIPPI SENATE, IS VESTED WITH THE MANAGEMENT AND CONTROL OF THE UNIVERSITY OF MISSISSIPPI, AS WELL AS ALL OTHER STATE INSTITUTIONS OF HIGHER LEARNING, THE UNIVERSITY WAS ESTABLISHED BY THE STATE AND IS AN INSTRUMENTALITY OF THE STATE.

THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT THE UNITED STATES CONTEMPLATED PAYING RENT FOR THE USE AND OCCUPANCY OF THE PROPERTY IN QUESTION. THE "FINDINGS" IN THE "REPORT OF CLAIMS OFFICER" OF YOUR DEPARTMENT DISCLOSES THAT FEDERAL TROOPS WERE "ORDERED TO DUTY ON THE CAMPUS OF THE UNIVERSITY OF MISSISSIPPI TO ESTABLISH AND MAINTAIN ORDER.' FURTHER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE FEDERAL TROOPS OCCUPIED AND USED THE UNIVERSITY PROPERTY WITH THE CONSENT OR PERMISSION OF EITHER THE RESPONSIBLE STATE OR UNIVERSITY OFFICIALS. THE CONTRARY, IT IS OUR UNDERSTANDING THAT STATE OFFICIALS WERE OPPOSED TO FEDERAL TROOPS USING AND OCCUPYING THE UNIVERSITY PROPERTY. ALSO, THE PRESIDENTIAL PROCLAMATION AND EXECUTIVE ORDER INDICATE THAT OBSTRUCTION OF THE COURTS' ORDERS WAS CONSIDERED TO BE DUE TO THE ACTIONS OF THE GOVERNOR OF MISSISSIPPI, CERTAIN LAW ENFORCEMENT OFFICERS, OTHER OFFICIALS OF THE STATE AND OTHER INDIVIDUALS. THUS, IT APPEARS THAT THE DECISION TO CALL OUT FEDERAL TROOPS AND TO USE AND OCCUPY UNIVERSITY PROPERTY WAS BASED IN PART ON THE ACTION, OR LACK OF ACTION, AS THE CASE MAY BE, OF RESPONSIBLE STATE OFFICIALS. IT IS NOT APPARENT FROM THE CIRCUMSTANCES OF THE OCCUPANCY OF THE UNIVERSITY PROPERTY, AS INDICATED BY THE TEXT OF THE PRESIDENTIAL PROCLAMATION AND EXECUTIVE ORDER, THAT SUCH OCCUPANCY SUPPORTS AN INTENT TO ESTABLISH A LANDLORD AND TENANT RELATIONSHIP. NOR CAN WE RECONCILE THE EXISTENCE OF ANY SUCH INTENT WITH THE REPORTED OPPOSITION OF STATE OFFICIALS TO THE USE AND OCCUPANCY OF UNIVERSITY PROPERTY, THEIR ATTRIBUTED RESPONSIBILITY FOR CONDITIONS NECESSITATING THE USE, AND THE SECRETARY OF DEFENSE'S INSTRUCTIONS TO TAKE ALL APPROPRIATE STEPS TO ENFORCE ALL ORDERS OF CERTAIN UNITED STATES COURTS AND TO REMOVE ALL OBSTRUCTIONS OF JUSTICE IN THE STATE OF MISSISSIPPI AND TO USE SUCH OF THE ARMED FORCES OF THE UNITED STATES AS HE MAY DEEM NECESSARY.

ON THE CONTRARY, IT SEEMS TO US THAT IF THE ORDER UNDER WHICH THE MILITARY ACTED WAS LEGAL AND PROPER (AND WE DO NOT QUESTION ITS VALIDITY) THEN THE USE AND OCCUPANCY OF UNIVERSITY PROPERTY WAS INCIDENT TO THE EXERCISE OF A PARAMOUNT RIGHT OF THE FEDERAL GOVERNMENT IN THE NATURE OF A POLICE POWER, FOR WHICH THE PARTY AGAINST WHOM THE ACTION WAS AIMED HAS NO RIGHT OF RECOVERY. SEE FRANCO-ITALIAN PACKING CO. V. UNITED STATES, 130 CT.CL. 736, 745, 746.

THE FACTS IN THE COURT CASES CITED IN THE MEMORANDUM IN SUPPORT OF PAYMENT OF THE CLAIMS ARE CLEARLY DISTINGUISHABLE FROM THOSE PRESENT IN THE INSTANT CASE IN THAT IN NONE OF THE CASES CITED WAS THERE INVOLVED THE EXERCISE OF A RIGHT OF THE FEDERAL GOVERNMENT OF THE TYPE INVOLVED HERE. IN OUR OPINION IT IS AT BEST DOUBTFUL THAT THE CLAIMS OF THE UNIVERSITY ARE ALLOWABLE ON THE BASIS OF AN IMPLIED CONTRACT (LEASE) BETWEEN THE UNITED STATES AND THE UNIVERSITY. THERE IS PRESENT HERE THE USE AND OCCUPANCY OF UNIVERSITY PROPERTY UNDER CIRCUMSTANCES WHICH, SO FAR AS WE ARE AWARE, ARE NOVEL AND UNPRECEDENTED. UNDER THE CIRCUMSTANCES WE ARE OF THE OPINION THAT WE WOULD NOT BE WARRANTED IN ALLOWING SUCH CLAIMS AGAINST THE GOVERNMENT BASED ON SUCH USE AND OCCUPANCY ABSENT A JUDICIAL DETERMINATION IN THE MATTER. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 228, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319. THE CLAIMS ARE RETURNED FOR SUCH FURTHER ACTION AS YOU MAY DEEM APPROPRIATE.