UNITED STATES v. DOULLUT, 213 F. 729

PARDEE, Circuit Judge (after stating the facts as above). Assuming that the findings of fact made by the trial judge substantially cover the issues made by the pleadings, the effect thereof, properly construed, is that the contract of lease as alleged was entered into between Doullut and the United States in so far as the Secretary of the Treasury was authorized to enter into such a lease, and the question is presented whether Doullut is entitled to have judgment against the United States for darqages as found resulting from breach of the contract.

By demurrer, and in the answer, contention is made that the contract upon which the plaintiff below bases his suit was unauthorized by law, and that the United States is not bound thereby nor liable for any damages growing out of the breach thereof. No law authorizing the Secretary of the Treasury to make any contract of lease for a period of five years is pointed out or even suggested.

Section 3732 of the Revised Statutes (U. S. Comp. St. 1901, p. 2504) provides: . “See. 3732. 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.”

Section 3679 of the Revised Statutes (U. S. Comp. St. 1901, p, 2454) provides: “Sec. 3679. No department of the government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the government in any contract for the future payment of money in excess of such appropriations.” In the act approved June 17, 1910, making appropriations for the executive, legislative, and judicial expenses of the government for the fiscal year ending June 30, 1911, there was appropriated as follows: “For rent of buildings, $59,286.00.” See 36 St.

L. pt. 1, 468-493, c. 297. In the act approved March 4, 1911, there was appropriated to the expenses of the Treasury Department, for the fiscal year ending June 30, 1912, as follows: “And for rent of buildings $52,486.00.” See Act March 4, 1911, c. 237, 36 Stat. p. 1195. And we do not- find, nor are we referred to, any law authorizing the Secretary of the Treasury to make for the United States any contract for a lease, for a term of five years, of any building for the United States customs service. In Chase v. United States, 155 U. S. 489, 15 Sup. Ct. 174, 39 L.

Ed. 234,- the Supreme Court held a contract with the Postmaster General for a lease of a post office for a term of 20 years was without authority, and created no liability against the United States. In the opinion of the court Mr. Justice Harlan said: “By the law in force when the lease sued on was executed, it was made the duty of the Postmaster General ‘to establish post offices.’ By

section 3732 of the Revised Statutes it is provided, as did, substantially, the statutes in force when the lease was made, that ‘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.’ Act March 3, 1825, c. 64, § 1, 4 Stat. 102; Act March 2, 1861, c. 84, § 10, 12 Stat. 220. “Much stress is placed by counsel for the plaintiff upon the clause making it the duty of the Postmaster General to establish post offices; the contention being that the power to establish a post office carries with it authority to lease rooms or a building in which the postmaster may conduct the business of his office.

In support of this position Ware v. United States, 4 Wall. 617 [18 L. Ed. 389] is cited. But that case does not justify any such

interpretation of the act of Congress. The question there was as to the power of the Postmaster General to discontinue a post office that had once been established by him under the authority conferred by the act of 1835 (4 Stat. 102) ‘to .establish post offices.’ This court, observing that the power to discontinue post offices is incident to the power to establish them, unless there was some provision in the acts of Congress restraining its exercise, said: ‘Undoubtedly, Congress might discontinue a post office which they had previously established by law, and it is difficult to see why the Postmaster General may not do the same thing when acting under

an act of Congress, expressed in the very words of the Constitution from which Congress derives its power.’ Again: ‘Power to establish post offices and post roads is conferred upon Congress, but the policy of the government from the time the general post office was established has been to delegate the power to designate the places where the mail shall be received and delivered to the Postmaster General.’ P. 632. “There was no issue in that case as to the extent of the authority of the Postmaster General to bind the government by contract for the payment of money or for the lease of a building for a post office.

That * * * did not call for any consideration of the general question, whether the words in the statute, ‘to establish post offices,’ had the full meaning of the same words found in the

section of the Constitution enumerating the powers of Congress. “Nor is it necessary to determine all that may be done by the Postmaster General under the power ‘to establish post offices’ conferred upon that officer; for those words are to be interpreted in connection with the above statutory provision forbidding the making, except in the War and Navy Departments, and in those departments only for certain things and under specified conditions, of any contract or purchase on-behalf of the United States unless the same be authorized by law, or is under an appropriation adequate to its fulfillment.

There is no claim that the lease in question was made under any appropriation whatever, much less one adequate to its fulfillment. So that the only inquiry is, whether the contract of lease was ‘authorized by law’ within the meaning of the statute relating to contracts or purchases on behalf of the government. * *********** • “We have considered the case in the light of the statutes in force when the lease of May 1, 1870, was executed.

Shortly after that date, by Act July 12, 1870, c. 251, § 7, 16 Stat. 251, it was provided that no department of the government should expend, in any one year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the government in any contract for the future payment of money in excess of such appropriations. And that provision is reproduced in

section 3679 of the Revised Statutes.” In Abbott v. United States (C. C.) 66 Fed. 448, Chase v. United States, supra, was followed and a contract to lease a post office to be erected, for a term of five years, entered into by the Postmaster General, was held to be without authority, and not binding upon the United States. In Hooe v. United States, 218 U. S. 322, 334, 31 Sup. Ct. 85, 88 (54 L.

Ed. 1055), a case involving the same question the Supreme Court said: “If an officer, upon his own responsibility and without the authority of Congress, assumes to bind the government, by express or implied contract, to pay a sum in excess of that limited by Congress for the purposes of such a contract, the contract is a. nullity, so far as the government is concerned, and no legal obligation arises upon its part to meet its provisions.

If the circumstances justify such a course, Congress in its discretion can intervene and do justice to the owner of private property used by officers of the government in good faith for public purposes, although without direct legislative authority. The plaintiffs’ remedy is in that direction.” Following these decisions, we are constrained to hold that the contract sued on in this case was without authority of law and not binding upon the United States. The judgment of the District Court is reversed, and the cause is remanded, with instructions to dismiss the suit. .