1. Acts appropriating specific amounts for the improvement of a
navigable channel and for "completing" the improvement, with
provision for using the fund in the prosecution of the work if
insufficient
Page 256 U. S. 576
to complete it (River and Harbor Act, c. 253, § 8, 37 Stat.
233), do not authorize the Secretary of War to contract to expend
more than the amounts appropriated, and his contract to do so would
not bind the government. (Rev.Stats., § 3733; Act of June 30, 1906,
c. 3914, § 9, 34 Stat. 764.) P.
256 U. S.
578.
2. An appropriation for the preservation and maintenance of
existing river and harbor works and for the prosecution of work
previously authorized is not applicable to pay for work theretofore
done under and in excess of a prior appropriation, and, when so
misapplied, the amount paid may be deducted from a balance owing
the contractor under another contract. P.
256 U. S.
579.
3. A contract for dredging and excavating at unit rates
specified the materials to be removed at estimated amounts which,
if correctly estimated, would have been covered by the
appropriation, and provided that government inspectors should keep
a record of the work done, which was to be within the limits of the
funds available. Relying upon erroneous estimates of an inspector,
the contractor did more work than the appropriation would pay for
before the error was discovered and the operations stayed.
Held that, there being no authority to contract in excess
of the appropriation, no contract of the government to pay the fair
value of the excess work could be implied, either because the
contractor was thus misled into doing it or from the subsequent use
of the excavation by the government. P.
256 U. S.
580.
4. If, through mistake of the government's representatives, more
work is done, and work is continued for a longer period than was
contracted for or authorized, the cost of government
superintendence incident to the mistake should not be taken from
the appropriation at the expense of the contractor. P.
256 U. S.
581.
55 Ct.Clms.193 affirmed with modification.
The case is stated in the opinion.
Page 256 U. S. 577
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The River and Harbor Act of July 25, 1912, c. 253, 37 Stat. 201,
209, made this appropriation: "Improving channel from Clearwater
Harbor through Boca Ceiga Bay to Tampa Bay, Florida. Completing
improvement and for maintenance, twenty thousand dollars."
Sealed proposals were solicited, and on January 21, 1913, a
contract was made by the War Department with the Hillsboro Dredging
Company to do work at unit rates for dredging soft material and for
excavating rock. The appropriation was ample to defray the cost at
these rates, assuming that the quantities of material to be removed
did not greatly exceed the estimates presented by the
specifications. It was provided by the contract that United States
"inspectors will keep a record of the work done" and also that,
"within the limits of available funds, the United States
reserves the right to require the removal of such yardage as will
complete the work, . . . be it more or less than the quantities
above estimated. . . ."
Work was begun under the contract in June, 1913, and payments
were made monthly on estimates of the government inspector. Upon
these estimates both the government and the contractor relied.
About May 15, 1914, it was discovered that, through a mistake of
the inspector, so much work had already been done that, if paid for
at the unit rates, it would call for an amount far in excess of the
appropriation available. The government engineer in charge ordered
operations discontinued immediately, and this contractor had no
further connection with the work. The work already done amounted at
the unit price to $25,032.31. The aggregate appropriation available
for the improvement -- including an additional $3,000 made by Act
of March 4, 1913, c. 144, 37 Stat. 801, 809 -- was $23,000. Against
this appropriation, the government
Page 256 U. S. 578
charged $1,732.90 for superintendence and office expenses. The
balance -- $21,267.10 -- it paid to the contractor, leaving
unsatisfied a claim at the unit rates, of $3,042.74, for material
dredged or excavated, and as further claim of $1,551 for the cost
of blasting rock which was not removed because of the order to
cease work. To recover these sums, the assignee in bankruptcy of
the Hillsboro Company brought this suit in the Court of Claims.
That court entered judgment for the government, 55 Ct.Cls.193, and
the case is here on appeal.
First. It is urged that the Secretary of War was
authorized by Congress to make, and that he did make, a contract
with the Hillsboro Company not only to proceed with the work, but
for its completion, and that the United States is therefore liable
even though the appropriation proved to be insufficient. Two
appropriations had been made for this project before the Act of
1912 above referred to -- one by Act of June 25, 1910, c. 382, 36
Stat. 630, 644, of $29,500, for "improving channel from Clearwater
Harbor," the other by Act of February 27, 1911, c. 166, 36 Stat.
933, 941, of a like amount for "completing improvement." The Act of
1912 provided by § 8 (37 Stat. 233) that
"whenever the appropriations made, or authorized to be made, for
the completion of any river and harbor work shall prove
insufficient therefor, the Secretary of War may, in his discretion,
on the recommendation of the Chief of Engineers, apply the funds so
appropriated or authorized to the prosecution of such work. But by
none of these acts was any authority conferred upon the Secretary
of War to complete the improvement or to contract to expend more
than the amount then appropriated. On the other hand, § 3733 of the
Revised Statutes provides that no contract 'for any public
improvement shall bind the government to pay a larger sum than the
amount in the treasury appropriated for the specific purpose.'
See
Page 256 U. S. 579
also §§ 3732 and 5503. And the Act of June 30, 1906, c.
3914, provides by § 9 (34 Stat. 697, 764) that"
"No act of Congress hereafter passed shall be construed . . . to
authorize the execution of a contract involving the payment of
money in excess of appropriations made by law unless such act shall
in specific terms declare an appropriation to be made or that a
contract may be executed. The Secretary of War was therefore
without power to make a contract binding the government to pay more
than the amount appropriated.
See Bradley v. United
States, 98 U. S. 104,
98 U. S.
113-114. Those dealing with him must be held to have had
notice of the limitations upon his authority. But there is nothing
in the contract indicating a purpose to bind the government for any
amount in excess of the appropriation. On the contrary, it limits
to the amount of the appropriation the work which may be done."
By Act of October 2, 1914, c. 313, 38 Stat. 725, Congress
appropriated the sum of $20,000,000
"to be expended under the direction of the Secretary of War and
the supervision of the Chief of Engineers, for the preservation and
maintenance of existing river and harbor works, and for the
prosecution of such projects heretofore authorized as may be most
desirable in the interests of commerce and navigation, and most
economical and advantageous in the execution of the work."
Out of the sum so appropriated $12,000 was allotted by the
Secretary for completing the Clearwater Harbor improvement, and out
of this sum there was paid to the contractor in November, 1914,
$3,046.44, being the unpaid balance at unit prices for the material
removed prior to May 15, 1914. This payment was later disallowed by
the Comptroller of the War Department and the Comptroller of the
Treasury, and was deducted from payments made to the contractor
under a wholly different contract for work in North and South
Carolina. It is clear that the Act of 1914 did not
Page 256 U. S. 580
authorize the application of any part of the appropriation to
work theretofore done. The payment therefrom, having been
unauthorized, did not bind the government, and if it was entitled
to recover the money, the method pursued in doing so was proper.
Wisconsin Central Railroad Co. v. United States,
164 U. S. 190;
Grand Trunk Western Railway Co. v. United States,
252 U. S. 112.
Second. It is contended that, since the contract
provided that the government "inspectors will keep a record of the
work done," since their estimates were relied upon by the
contractor, and since, by reason of the inspector's mistake, the
contractor was led to do work in excess of the appropriation, the
United States is liable as upon an implied contract for the fair
value of the work performed. But the short answer to this
contention is that, since no official of the government could have
rendered it liable for this work by an express contract, none can,
by his acts or omissions, create a valid contract implied in fact.
The limitation upon the authority to impose contract obligations
upon the United States is as applicable to contracts by implication
as it is to those expressly made. Nor did the subsequent use of the
excavation by the government imply a promise to pay for it if at
any time thereafter Congress should appropriate money to be applied
in completing the improvement.
"Whenever a structure is permanently affixed to real property
belonging to an individual without his consent or request, he
cannot be held responsible because of its subsequent use. It
becomes his by being annexed to the soil, and he is not obliged to
remove it to escape liability. He is not deemed to have accepted it
so as to incur an obligation to pay for it merely because he has
not chosen to tear it down, but has seen fit to use it."
United States v. Pacific Railroad, 120 U.
S. 227,
120 U. S. 240.
And the work here in question was not done with the consent or at
the request of the United States, for neither the government
inspectors
Page 256 U. S. 581
nor the Secretary of War had authority either to obligate the
government or accept voluntary services.
See Rev.Stats. §
3679, as amended by Act March 3, 1905, c. 1484, § 4, 33 Stat. 1257,
and Act February 27, 1906, c. 510, § 3, 34 Stat. 48.
There is no necessity to consider what may be the equitable rule
where there is a claim of unjust enrichment through work done upon
the land of another under a mistake of fact.
See Bright v.
Boyd, 1 Story, 478, Fed.Cas. No. 1,875; 2 Story, 608, Fed.Cas.
No. 1,876;
Williams v.
Gibbes, 20 How. 535,
61 U. S. 538;
Canal Bank v. Hudson, 111 U. S. 66,
111 U. S. 82-83;
Armstrong v. Ashley, 204 U. S. 272,
204 U. S. 285.
Nor need we consider whether the doctrine is ever applicable to
transactions with the government. For the right to sue the United
States in the Court of Claims here invoked must rest upon the
existence of a contract express or implied in fact.
United
States v. North American Co., 253 U.
S. 330,
253 U. S.
335.
Third. While the contractor cannot recover for work
done in excess of the appropriation, he is entitled to payment to
the extent of the available appropriation. The amount appropriated
was $23,000. The contractor received only $21,267.10. It appears
that the balance, $1,732.90, was applied to superintendence and
office expenses, and the findings of fact state that the contractor
"was charged with expenses of inspection during an extension of
time beyond the contract period amounting to $722.47." The
appropriate expense of superintendence is clearly chargeable
against the appropriation. But if, through mistake of the
government's representatives, more work is done, and work is
continued for a longer period, than was contracted for or
authorized, the expenses of superintendence incident to the mistake
should be borne by the government, and the contractor should not be
made to suffer by the depletion of the appropriation. The fund
otherwise available for work actually performed should be applied
to that purpose.
Page 256 U. S. 582
The findings of fact leave us in doubt whether there has been
charged against this appropriation any sum for superintendence in
excess of amounts properly chargeable, and counsel were unable to
remove these doubts, to which attention was called at the argument.
Unless the parties can agree as to the facts, the case should be
remanded to the Court of Claims to determine what, if any, amount
was erroneously charged against the appropriations aggregating
$23,000, and for the amount of such improper charges, if any,
judgment should be entered for the petitioner. Except as stated the
judgment is
Affirmed.