THE CAVALRY AND LIGHT ARTILLERY SCHOOL AT FORT RILEY, KANS. alry and Light In Riley, Kans. 1519. That the Secretary of War be, and he is hereby, School of Cavauthorized and directed to establish upon the military res- Artillery struction estabervation at Fort Riley, a permanent school of instruction lished at Fort for drill and practice for the cavalry and light artillery 24, 2 service of the Army of the United States, and which shall be the depot to which all recruits for such service shall be sent; and for the purpose of construction of such quarters, barracks, and stables as may be required to carry into effect the purposes of this act the sum of two hundred thousand dollars, or so much thereof as may be necessary, is hereby appropriated out of any money in the Treasury not otherwise appropriated. Act of January 29, 1887 (24 Stat. L., 372). The Cavalry and Light Artillery School was established in pursuance of the act of January 29, 1887, by General Orders, No. 17, Adjutant-General's Office of March 14, 1882. See also in connection with this school the acts of October 2, 1888, 25 Stat. L, 534, and March 2, 1889, ibid., 966; and subsequent acts of appropriation, including those of May 26, 1900, 31 Stat. L., 205, and March 2, 1901, ibid, 896. 1539-1541. Preparation and execution of 1576, 1577. Bonds to secure payment for the military serv under direction War. 1524. The same, building sites. 1527. The same, advertisements. Contracts for 1520. All purchases and contracts for supplies or service to be made ices for the military and naval service shall be made by or of Secretary of under the direction of the chief officers of the Departments July 16, 1798. c. of War and of the Navy, respectively. And all agents or Feb. 27, 1877, c. contractors for supplies or service as aforesaid shall render Sec. 3714, R.S. their accounts for settlement to the accountant of the 85, s. 3, v. 1, p. 610; 69, v. 19, p. 249. 1The United States in its political capacity may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the departments to which those powers are intrusted, enter into contracts not prohibited by law and appropriate to the just exercise of these powers; no legislative authorization is required, such power being incident to the general right of sovereignty. Dugan v. U. S., 3 Wheaton, 172; U. S. v. Tingey, 5 Peters, 114; U. S. v. Bradley, 10 ibid., 343; U. S. v. Linn, 15 ibid., 290; Cotton v. U. S., 11 Howard, 229; Fowler v. U. S., 3 Ct. Cls., 43; Allen v. U. S., ibid., 91. 2 Under this statute the Secretary of War is the source of all authority to make contracts or purchases in all branches of the military establishment. "Whether he makes the contracts himself, or confers the authority upon others, it is his duty to see that they are properly and faithfully executed; and if he becomes satisfied that contracts which he has made himself are being fraudulently executed, or those made by others were made in disregard of the rights of the Government, or with the intent to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest proper department for which such supplies or services are required, subject, nevertheless, to the inspection and revision of the officers of the Treasury in the manner before prescribed.1 contracts prohib ited. 84, s. 10, v. 12, p. 1521. No contract or purchase on behalf of the United Unauthorized States shall be made, unless the same is authorized by law Mar. 2, 1861, c. or is under an appropriation adequate to its fulfillment, 20 except in the War and Navy Departments, for clothing, Sec. 3782, R.S. subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year." the execution, and adopt effectual measures to protect the Government against the dishonesty of subordinates." U. S. v. Adams, 7 Wall., 463, 477; Parish e. U. S., 8 Wall., 489. The head of an Executive Department may, when not prejudicial to the interests of the Government, or for its benefit, alter or modify the terms of a contract made under his direction, but his subordinates may not take such action without express authority from him. 2 Compt. Dec., 182. The laws governing the purchase of supplies for the Army are equally applicable whether the purchases are made from funds received from the sale of stores or from the regular appropriations available therefor. 3 Dig. 2 Compt. Dec., 287. It is only an express contract which (in the absence of special authority from Congress) can legally be entered into by the Secretary of War, or a military officer, or can be recognized and acted upon as binding upon the United States. Claims against the United States arising upon alleged implied contract can not be entertained, but the claimants must be referred to the Court of Claims or Congress. Further, the contract, to be legally made or recognized as legal, must be in writing (a) (except only-according to the ruling in Cobb's Case (b) when entered into without previous advertisement by reason of the existence of a "public exigency;" see infra). So, in a case where the only evidence of an alleged contract of lease consisted of vouchers, setting forth accounts for rent claimed, approved by an assistant quartermaster, held, that there was no sufficient evidence of an express or written contract upon which payment could be authorized by the Secretary of War. (c) Dig. Opin. J. A. Gen., 275, par. 1. The Secretary of War has authority to extend the time for the execution of a contract made on behalf of his Department when the interests of the Government are not thereby prejudiced, and particularly when its noncompletion within the time limited is not due to the negligence of the contractor. 2 Compt. Dec., 242; Solomon v. U. S., 19 Wall., 17; U. S. r. Corliss Steam Engine Co., 91 U. S., 321; XVIII Opin. Att. Gen., 101; 2 Compt. Dec., 635. Approval of contract by superior authority.—Where a contract in terms "is subject to the approval of the Quartermaster-General," approval is a condition precedent to the legal effect of the agreement. Darragh v. U. S., 33 Ct. Cls., 377; Monroe & Richardson v. U. S., 35 ibid., 199. The refusal of the Quartermaster-General to approve a contract after work has been begun by the contractor is not a rescission. The contractor who begins work before approval does so at his own risk; and if he is paid for the work done, he can not recover profits as if there had been a breach. Ibid. Such approval need not be in writing. Speed's Case, 8 Wallace, 77. Though the failure of the Quartermaster-General to act within a reasonable time might validate a contract made subject to his approval, he is nevertheless entitled to time for inquiry and investigation and the discharge of the ordinary business of his department. Darragh v. U. S., 33 Ct. Cls., 377. 1For statutes in respect to accounting, see the title "The Accounting Officers," in the chapter entitled THE DEPARTMENT OF THE TREASURY. 'The United States when it enters into a contract with an individual relinquishes its sovereign character quoad that transaction, is subject to the rules of right and justice between man and man, and is controlled by the same laws that govern individuals with respect to such contract. Clark v. U. S., 6 Wallace, 546; U. S. v. Smoot, a See Henderson r. U. S., 4 Ct. Cls., 75; XIV Opin. Att. Gen., 229; Clark v. U. S., 95 U. S., 539. b Cobb c. U. S., 7 Ct. Cls., 470, and 9 ibid., 291. And see Thompson v. U. S., ibid., 198. c See XIV Opin. Att. Gen., 230. buildings, etc. c. 233, s. 3, v. 15, p. 177. Erection of 1522. No contract shall be entered into for the erection, July 25, 1868, repair, or furnishing of any public building, or for any Sec. 3733,R.S. public improvement whih shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose. Purchases land. of 1523. No land shall be purchased on account of the May 1, 1820, c. United States, except under a law authorizing such pur 52, s. 7, v. 3. p. 568. Sec. 3736, R.S. chase.* Sites for build ings. 18, p. 371. 1524. No money shall be paid nor contracts made for Mar. 3, 1875, v. payment for any site for a public building in excess of the amount specifically appropriated therefor." Act of March 3, 1875 (18 Stat. L., 371). 15 ibid., 47; Cooke v. U. S., 91 U. S., 398; U. S. v. Bostwick, 94 U. S., 592; Mann v. U. S., 3 Ct. Cls., 404; Chic. R. R. Co. v. U. S., 104, U. S., 680; U. S. v. No. Am. Com. Co., 74 Fed. Rep., 145. The United States is liable in damages for breach of contract to the same extent as an individual. Chicago R. R. Co. v. U. S., 104 U. S., 680; Eastern R. R. Co. v. U. S., 129 U. S., 396. Such right of action against the United States, however, is subject to the limitation that the Government can not be be sued without its consent. U. S. v. McLemore, 4 Howard, 286; Hill v. Clarke, 8 Peters, 444; U. S. v. Clarke, 8 Peters; DeGroot v. U. S., 5 Wallace, 419; U. S. v. Eckford, 6 ibid., 484; U. S. v. Lee, 106 U. S., 204; Nock v. U. S., 2 Ct. Cls., 451. Such consent to be sued, in respect to certain causes of action, has been given by the establishment of the Court of Claims. For the jurisdiction of this court, see chapter VII, ante. The restrictions of section 3732, Revised Statutes, are in the alternative, prohibiting a contract or purchase on the part of the United States unless authorized by law" or unless such contract or purchase is made "under an appropriation adequate to its fulfillment." Contracts to be valid must be shown to come under one or the other of these provisions. Shipman v. U. S., 18 Ct. Cls., 138. When the authority to enter into a contract for a parlicular work in behalf of the United States depends wholly upon an appropriation of money made for that pur pose, no officer of the Government has power to create a liability therefor beyond the amount of the appropriation, and a contractor can not recover more than the money appropriated, whatever may be the extent of his work. When an alleged liability rests wholly upon the authority of an appropriation they must stand or fall together, so that when the latter is exhausted the former is at an end, to be revived, if at all, only by subsequent legislation by Congress. Shipman v. U. S., 18 Ct. Cls., 138, 147; McCullom v. U. S., 17 ibid., 92, 103; Trenton Co. v. U. S., 12 ibid., 147, 157. If an officer is clothed with authority to do a piece of work without limitation as to cost, the contracts made by him therefor are binding upon the Government whether money is appropriated for the purpose or not. Shipman v. U. S., 18 ibid., 138; Collins v. U. S., 15 ibid., 22, 35; XIII Op. Att. Gen., 315; XV ibid., 236. Acknowledgments and promises made by executive officers of the Government do not bind the United States when they are not made under express or implied authority of Congress. Leonard et al. v. U. S., 18 Ct. Cls., 382. 1Authority to contract for the completion of an entire structure, the plan of which has been determined on, can not be inferred from the mere fact that an appropriation of a certain sum, to be expended on the structure, has been made. Hence a contract, though it be good to the extent of such appropriation, could not affix itself to future appropriations and control their expenditure. A contract of this character would be in violation of the spirit of section 3, act of July 25, 1868, sec. 3733, R. S., if not of its express terms. XV Op. Att. Gen., 236. Under section 5 of the act of June 20, 1874, 18 Stat. L., 111, all appropriations for "public buildings" are available until otherwise ordered by Congress. 3 Dig. 2 Comp. Dec., 29. A subappropriation for a public building must, under the act of June 20, 1874, 18 Stat. L., 110, 111, remain available until its object has been accomplished or until it has been exhausted, unless otherwise ordered by Congress. Ibid. See also 2 Comp. Dec., 365; 3 ibid., 487. 2 The act of Congress does not prohibit the acquisition by the United States of the legal title to land, without express legislative authority, when it is taken by way of security for debt. Neilson v. Lagow, 12 How., 98. See, also. for additional restrictions the act of March 3, 1875 (18 Stat. L., 371). voluntary serv exceptions. 23, p. 17. 1525. Hereafter no Department or officer of the United Acceptance of States shall accept voluntary service for the Government ice prohibited; or employ personal service in excess of that authorized May 1, 1884, V. by law, except in cases of sudden emergency involving the loss of human life or the destruction of property.1 Act of May 1, 1884 (23 Stat. L., 17). 3 Contracts and made; advertis 220. Supplies for Ex ecutive Depart Sec. 3709, B. S. 1526. All purchases and contracts for supplies or serv- purchases, how ices in any of the Departments of the Government, except ing: public exifor personal services, shall be made by advertising a suf-gencies, Mar. 2, 1861, c. ficient time previously for proposals respecting the same 1, s. 10, v. 12, p. when the public exigencies do not require the immediate delivery of the articles or performance of the service. When immediate delivery or performance is required by the public exigency the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold or such services engaged between individuals." 'Denison v. U. S., 168 U. S. 241. The word "supplies." as used in section 3709 of the Revised Statutes evidently has reference to those things which the well-known needs of the public service will from time to time require in its different branches for its successful and efficient administration, and the statute was intended to afford the Government the pecuniary benefits, as well as the protection against fraud and favoritism, which open and honest competition is always likely to secure. It could not have been in the mind of the lawmaking power to require that purchases could only be made after advertisement of small articles which may occasionally be needed, and where in many cases the cost of advertising itself would exceed the value of the article purchased. It can not be said that such cases are governed by the emergency provision in the statute, for there may be, and are, many instances where the officer could not truthfully certify that immediate delivery was necessary. 3 Dig. 2 Compt. Dec., 288. The act of March 2, 1861, sec. 3709, R. S., while requiring such advertisement as the general rule, invests the officer charged with the duty of procuring supplies or services with a discretion to dispense with advertising if the exigencies of the public service require immediate delivery or performance. It is too well settled to admit of dispute at this day that where there is a discretion of this kind conferred on an officer or board of officers, and a contract is made in which they have exercised that discretion, the validity of the contract can not be made to depend on the degree of wisdom or skill which may have accompanied its exercise. U. S. r. Speed, 8 Wall., 77, 83; Child v. U. S., 4 Ct. Cls., 176; Mason v. U. S., 4 Ct. Cls., 495; Wentworth v. U. S., 5 Ct. Cls., 302. See, also, III Compt. Dec., 175, 314, 470. 'Section 3709, Revised Statutes, provides, generally, that the making of public contracts for supplies, etc., shall be preceded by an advertising for proposals "when the public exigencies do not require the immediate delivery of the articles or performance of the service." Exigencies growing out of a state of war, or hostilities with Indians, were probably mainly had in view, and it is exigencies of this class which have been considered in the adjudged cases in the Supreme Court and Court of Claims. (a) It is clear, however, that other exigencies may exist requiring that contracts or purchases be made at once or without the delay incident to advertising for proposals. Thus a loss of stores, structures, etc., on hand, caused by an actus Dei or vis major, as fire, storm, freshet, or a sudden riot or violent disorder; or a loss of supplies occasioned by the neglect of military subordinates in charge; or a failure of a contractor to fulfill a contract for supplies, transportation, or other service, might properly be a See U. S. v. Speed, 8 Wallace, 83; Reeside v. U. S., 2 Ct. Cls., 1; Mowry e. U. S., ibid., 68; Stevens C. S., ibid., 95; Floyd v. U. S., ibid., 429; Crowell v. U. S., ibid., 501; Baker. U.S., 3 ibid., 343; Henderson e. U. S., 4 ibid., 75; Childs v. U. S., ibid., 176; Wentworth v. U. S., 5 ibid., 302; Wilcox v. U. S., Ibid., 386: Cobb v. U. S., 7 ibid., 471, and 9 ibid., 291; Thompson v. U. S., ibid., 187; McKee v. U. S., 12 ibid., 505. |