716. Selection of superintendents of national cemeteries.-The superintendents of the national cemeteries shall be selected from meritorious and trustworthy soldiers, either commissioned officers or enlisted men of the Volunteer or Regular Army, who have been honorably mustered out or discharged from the service of the United States, and who may have been disabled for active field service in the line of duty. R. S. 4874. 717. Pay of superintendents of national cemeteries.-The superintendents of the national cemeteries shall receive for their compensation from sixty dollars to seventy-five dollars a month each, according to the extent and importance of the cemeteries to which they may be respectively assigned, to be determined by the Secretary of War, except the superintendent of the Arlington, Virginia, Cemetery, whose compensation may be one hundred dollars per month, at the discretion of the Secretary of War; and they shall also be furnished with quarters and fuel at the several cemeteries. R. S. 4875, as amended by act of July 30, 1912 (37 Stat. 240). For pay of seventy-six superintendents of national cemeteries, including not to exceed $1,500 for the superintendent at Mexico City, $63,720. For pay of superintendent of Antietam battle field, said superintendent to perform his duties under the direction of the Quartermaster Corps and to be selected and appointed by the Secretary of War, at his discretion, the person selected and appointed to this position to be an honorably discharged Union soldier, $1,500. Act of Mar. 4, 1921 (41 Stat. 1385–1386), making appropriations for sundry civil expenses: Quartermaster Corps. 718. Supervision of the Chief of Staff.the Quartermaster Corps shall be subject to the supervision of the Chief of Staff to the extent the departments hereby consolidated into said corps have heretofore been subject to such supervision under the terms of the existing law: ** Sec. 3, act of Aug. 24, 1912 (37 Stat. 593), making appropriations for the support of the Army. * Provided further, That The Quartermaster Gen 719. Duties of the Quartermaster Corps.eral, under the authority of the Secretary of War, shall be charged with the purchase and procurement for the Army of all supplies of standard manufacture and of all supplies common to two or more branches but not with the purchase or the procurement of special or technical articles to be used or issued exclusively by other supply departments; with the direction of all work pertaining to the construction, maintenance, and repair of buildings, structures, and utilities other than fortifications connected with the Army; with the storage and issue of supplies; with the operation of utilities; with the acquisition of all real estate and the issue of licenses in connection with Government reservations; with the transportation of the Army by land and water, including the transportation of troops and supplies by mechanical or animal means; with the furnishing of means of transportation of all classes and kinds required by the Army; and with such other duties not otherwise assigned by law as the Secretary of War may prescribe: Sec. 9, act of June 3, 1916 (39 Stat. 170), * * * as amended by sec. 9, act of June 4, 1920 (41 Stat. 766). The above appears to supersede R. S. 1133: "It shall be the duty of the officers of the Quartermaster's Department, under the direction of the Secretary of War, to purchase and distribute to the Army all military stores and supplies, requisite for its use, which other corps are not directed by law to provide; to furnish means of transportation for the Army, its military stores and supplies, and to provide for and pay all incidental expenses of the military service which other corps are not directed to provide for and pay." So much of R. S. 1133 and of sec. 9, act of June 3, 1916 (39 Stat. 170), as restricted the purchase and distribution of military stores and supplies to officers of the Quartermaster Corps was suspended "for the period of the present war" by Ch. VII, act of July 9, 1918 (40 Stat. 881), which provision also appears to be superseded by the above section. The Quartermaster General and his officers were required to receive and transport property turned over to them by the officers or agents of any Government survey for the National Museum, or for the civil or naval departments of the Government, in Washington or elsewhere, by a further provision of act July 5, 1884, post, 1212. Notes of Decisions. Civilian purchasing agents.-A com. manding general can not appoint a civilian purchasing agent of the Government, nor invest him with discretion to make express contracts, nor transfer to him the responsi bility which the law imposes on quartermasters; neither has such agent power to bind the Government by express contract. Reeside v. U. S. (1866), 2 Ct. Cl. 1. 720. Duties of regimental, battalion and squadron quartermasters.—* Provided further, That whenever the Secretary of War shall decide that it is necessary and practicable, regimental, battalion, and squadron quartermasters and commissaries shall be required to perform any duties that junior officers of the Quartermaster Corps may properly be required to perform, and regimental and battalion quartermaster and commissary sergeants shall be required to perform any duties that noncommissioned officers or pay clerks of the Quartermaster Corps may properly be required to perform, but such regimental, battalion and squadron quartermasters and commissaries shall not be required to receipt for any money or property which does not pertain to their respective regiments, battalions, or squadrons, and they shall not be separated from the organization to which they belong: Sec. 3, act of Aug. 24, 1912 (37 Stat. 592-593), making appropriations for the support of the Army. * * No further appointments of pay clerks were to be made by a further provision of act Mar. 2, 1913 (37 Stat. 708). But see 497, ante. * * 721. Receipting for money or property by regimental, battalion and squadron quartermasters.-* Provided further, That regimental, battalion, and squadron quartermasters and commissaries shall hereafter be required to perform the duties of officers of the Quartermaster Corps, including the receipting for any money or property pertaining to said corps, when no officer of the Quartermaster Corps is present for such duties, and nothing contained in the Army appropriation Act approved August twenty-fourth, nineteen hundred and twelve, shall hereafter be held or construed so as to prevent competent authority from requiring any officers of the Army to act temporarily as quartermasters wherever there shall be no officers of the Quartermaster Corps and no regimental, battalion, or squadron quartermasters or commissaries present for such duty. Act of Mar. 2, 1913 (37 Stat. 706), making appropriations for the support of the Army. 722. Vacant. 723. Agents of disbursing officers, Quartermaster Corps.-Hereafter, under such regulations as may be prescribed by the Secretary of War, officers of the Quartermaster Corps accountable for public moneys may intrust such moneys to other officers for the purpose of having them make disbursements as their agents, and the officers to whom the moneys are intrusted, as well as the officers who intrust it to them, shall be held pecuniarily responsible therefor to the United States. Act of May 12, 1917 (40 Stat. 50), making appropriations for the support of the Army. But see 497, ante. CHAPTER 20. Procurement: PUBLIC PROPERTY. Directed by the Secretary of War, 724. Accounts of contractors rendered to department concerned, 725. Unauthorized contracts prohibited, 726. By officers outside the Quartermaster By one bureau for another, 730. By one department for another, 731. Near locality where used, 732. Advertising for bids: When required, 733. By the Secretary of the Treasury, 734. Through a general supply committee, 735. Army supplies, 736. Means of transportation, 737. Steel, 738. Medicines and medical supplies, 739. Written authority, 740. Rates, 741. In the District of Columbia, 742. Near the Pacific Coast, 743. Proposals: Period allowed for entering, 744. Bidders' bonds, 746. Separate proposals, 747. Opening bids, 748. Report to Congress, 749. Purchases in the open market: Compulsory orders, 750. In an exigency, 751. Aggregating under $500, 752. Exceptional subsistence stores, 754. Pecuniary interest in contracts: Stipulation against, 757. Service without compensation, 759. Officer punished for contracting with, 761. Exception as to corporations, 762. Agent of corporations acting as agent of United States, 763. Officers in Quartermaster's Department, 764. Written contracts required: In the Returns Office, 770. With Auditors of the Treasury, 771. Copies with Commissioner of Internal Revenue, 772. Oath of contracting officer, 773 Failure to make return, 774. Instructions and forms, 775. Bond of a contractor, 776. Transfer of a contract, 777. Production : Name of contractor on supplies, 778. American material and labor preferred, Captured or abandoned property: Trading in, 805. Delaying or defrauding captor, 806. Accountability of officers: Certificate of loss, 807. Opportunity for officer to relieve himself of liability, 808. Regulations for accounting, 809. Loss of vouchers or company books, 810. Offenses involving public property: Military stores, etc., 812. Sale by soldier, 815. Purchase or receipt in pledge, 816. Arms, etc., in the possession of persons not soldiers, 817. 724. Contracts under direction of Secretary of War.-All purchases and contracts for supplies or services for the military and naval service shall be made by or under the direction of the chief officers of the departments of War and of the Navy, respectively. R. S. 3714. ** Under the direction of the Secretary of War chiefs of branches of the Army charged with the procurement of supplies for the Army shall report direct to the Assistant Secretary of War regarding all matters of procurement. * * Sec. 5a, added to the act of June 3, 1916, by scc. 5, act of June 4, 1920 (41 Stat. 765). For amendment of R. S. 3714, see 725, post. Provisions for administrative examination of accounts before transmission to the Treasury Department for settlement were made by the Dockery Act of July 31, 1894, sec. 12, ante, 263, 265, 266. Notes of Decisions. Powers and duties of officers in general. The War Department by its proper officers may make a valid contract for the slaughtering, curing, and packin of pork. U. S. v. Speed (1868), 8 Wall. 77, 82, 19 L. Ed. 449. Until approved by the ar tory of War, a contract by a surgeon and medical purveyor in a military department with parties for furnishing ice for the Government hospitals was invalid. Parish v. U. S (1869), 8 Wall. 489. 490, 19 L. Ed. 172. The President's power is limited by the legislation of Congress, and, that legisla tion existing, the discharg of the duty devolving on the Secretary necessarily requires him to enter into numerous contracts for the public service; and the power to suspend work contracted for, whether in the construction, armament, or equipment of vessels of war, when from any cause the public interest requires such suspension, must necessarily rest with him. When contracts are suspended by him he is authorized to agree on the compensation for their partial perforria..ce, and when a settlement in such case is made on a full knowledge of all the tacts, without concealment, misrepresentation, or fraud, it must be equall, binding on the Government as on the contractor. U. S. v. Corliss Steam Engine Co. (1875), 91 U. S. 321, 322, 323, 23 L. Ed. 397. The Secretary of the Navy may direct or consent to a change in a contract for the construction of a dry dock for the United States, which he was authorized by law to construct, although such contract provides that chang s can only be made upon written order of the Bureau of Yards and Docks, as, under R. S. sec. 420, the duties of the bureaus of the Navy Department are performed under his control, and their orders are considered as emanating from him, and have "full force and effect as such." U. S. v. Barlow (1902), 22 Sup. Ct. 468, 473, 184 U. S. 123, 46 L. Ed. 463, affirming judgment (1900), 35 Ct. Cl. 514. Where the Secretary of the Navy in the exercise of inherent power veste in him by virtue of his office and the statute relating thereto modified, extended, or enlarged a contract, his action volved an obligation to pay any sums at might have been expended in making the modification. U. S. v. Newport News Shipbuilding & Dry Dock Co. (1910), 178 Fed. 194, 101 C. C. A. 514. The Quartermaster General can not arbitrarily change the terms of a written contract, nor order a retroactive reduction of the charter rate of a vessel, without the consent of the contracting parties. But where he issues such an order of reduction, in a case where he has the right to discharge the vessel at any time, and the owners permit the Quartermaster's Department to remain under the false impression that they acquiesced in the reduction, they are estopped from claiming the original charter rate, both before and after notice. And they are so estopped, although they sell their vessel immediately after notice of reduction. Clyde v. U. S. (1869), 5 Ct. Cl. 134, citing and approving Pratt's Case (1867), 3 Ct. Cl. 105, and Emery and Blake's Case (1868), 4 Ct. Cl. 401; Thorne v. U. S. (1869), 5 Ct. Cl. 242. An officer of Volunteers neither mustered into the United States service nor specially empowered to make contracts for subsisting his troops can not bind the United States by express contract: nor are vouchers given by him evidence to bind the Government. Kirkham & Brown υ. U. S. (1868), 4 Ct. Cl. 223. Where a party applies to a public officer for his vessel's discharge from the military service because of a reduction on her charter rate, the demand must be clear, positive, and unequivocal. If it is argumentative merely, so that the officer is misled and does not discharge the vessel, the owner will be deemed to have left her in the service at the reduced rate. Cobb v. U. S. (1869), 5 Ct. Cl. 176. Where in a contract for the furnishing of flour to the Army it was stipulated that the commanding officer of the post should reject all or any part of the flour tendered, when pronounced by the inspectors as not being in accordance with the contract, it was held that the decision of the officer commanding the post was subject to review by the War Department. (1859) 9 Op. Atty. Gen. 389, The lowest bidder who complies with the requirements as to security, etc., is entitled to an award of the contract for certain supplies for the Navy, but the Secretary of the Navy is charged with the duty of ascertaining the facts in this regard, and his decision is not reversible by any court. (1894) 21 Op. Atty. Gen. 56. The Secretary of War has authority to refrain from compelling full performance of a contract for the delivery of 300,000 pairs of men's gloves, to be made in Germany, where, after a partial performance of the contract, an act of Congress increased the duty on the gloves 120 per cent. He should not, however, relieve the contractor with regard to gloves delivered or which should have been delivered prior to the taking effect of that act. The Attorney General does not concur in the view that executive officers are limited in matters of this kind wholly to considerations affecting the pecuniary interests of the Government. (1909) 28 Op. Atty. Gen. 121. The Secretary of the Navy may insert in the contracts for vessels constructed under authority of the act of Mar. 4, 1911 (36 Stat. 1265), a provision for making changes in said contracts and for determining the amount of increased or diminished compensation arising therefrom, whether such compensation be of the nature of liquidated or unliquidated damages. (1911) 29 Op. Atty. Gen. 285. 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 be ing 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 the execution, and adopt effectual measures to protect the Government against the dishonesty of subordinates." U. S. v. Adams, 7 Wall. 463, 477; Parish v. 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 Comp. 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. 2d Comp. Dec. 287. 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 Comp. Dec. 242; Salomon v. U. S., 19 Wall, 17; U. S. v. Corliss Steam Engine Co., 91 U. S. 321; 18 Op. Atty. Gen. 101; 2 Comp. 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 id. 199; Cathell v. U. S., 46 id. 368; Monroe v. U. S., 184 U. S. 524. 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. Id. Such approval need not be in writing. Speed's Case, 8 Wall. 77 |