necessary furniture, text-books, paper and equipments of of the enlisted men of the Army. Act of June 13, 1890 (26 1174. That hereafter no money appropriated for the support of the Army shall be expended for post gardens or exchanges, but this proviso shall not be construed to prohibit the use by post exchanges of public buildings or public transportation when, in the opinion of the Quartermaster General, not required for other purposes. Act of July 16, 1892 (27 Stat. L., 178). Post gardens and exchanges. July 16, 1892, v. 27, p. 178. subsistence sup 1175. Contracts for subsistence supplies for the Army, Contracts for made by the Commissary General, on public notice, shall plies. provide for a complete delivery of such articles, on inspec- 61. 8.7.v. 3, p. 427; tion, at such places as shall be stipulated. Mar 2, 1861, c. 84, s. 10, v. 12, p. 220. 1176. That hereafter so much of section thirty-seven hundred and nine,' Revised Statutes, as requires advertise ment before purchase shall not apply to the purchase of medicines and medical supplies. Act of February 27, 1893 (27 Stat. L., 485). Apr. 14, 1818, c. Mar. 3, 1835, c. 49, 8. 1, v. 4. p. 780; Sec. 3715, B. S. medicines, etc. Feb. 27, 1893, v. 27, p. 485. tion. Aug. 6, 1894, v. 28, p. 242. 1177. Purchase of ordnance and ordnance stores and Purchases of ordnance in open supplies may be made by the Ordnance Department in open market; limitamarket, in the manner common among business men, when the aggregate of the amount required does not exceed two hundred dollars, but every such purchase shall be immediately reported to the Secretary of War. Act of August 6, 1894 (28 Stat. L., 242). Name of con tractor to appear on supplies. 596. 1178. Every person who shall furnish supplies of any kind to the Army or Navy shail be required to mark and July 17, 1862, c. distinguish the same with the name of the contractor fur-200, s. 15, v. 12, p. nishing such supplies, in such manner as the Secretary of War and the Secretary of the Navy may, respectively, direct; and no supplies of any kind shall be received, unless so marked and distinguished. 1 Paragraphs 1151–1153, ante. Sec. 3731, B. S. MISCELLANEOUS PROVISIONS. Contracts for stationery, etc., 1179. Contracts for stationery, etc., 1184. The same; penalty. 1180. Transfers of contracts pro hibited. 1181. Members of Congress not to 1185. Contracts to be filed with auditors. 1186. Inspection of fuel in the District of Columbia. Appointments of weighers, etc., to be certified to accounting officers. be interested in contracts. 1187. 1183. Stipulation that no Member 1188. No payments for fuel without certificate. 1179. It shall not be lawful for any of the Executive Delimited to one partments to make contracts for stationery or other supJan. 31, 1868, plies for a longer term than one year from the time the contract is made. year. Res. No. 8, v. 15, p. 246. Sec.3735, R. S. 200, s. 14, v. 12, p. 596. Transfers of 1180. No contract or order, or any interest therein, shall contracts prohibited. be transferred by the party to whom such contract or order July 17, 1862, is given to any other party, and any such transfer shall Sec.3737, R. S. Cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.1 * This clause is imperative and bars any action by the assignor as well as the assignee. Wanless v. U. S., 6 C. Cls. R., 123. The purpose of the act of July 17, 1862 (sec. 3737, R. S.), prohibiting the transfer of Government contracts, was to secure the personal attention and services of the contractor and to render him liable to punishment under section 16 of the same act. * No formal or written transfer is necessary to bring the case within the prohibition of the act. It is sufficient to annul the contract that the facts disclose a substantial transfer. Francis v. U. S., 11 C. Cls. R., 638; Wheelan v. U. S., 5 C. Cls. R., 504; McCord's Case, 9 C. Cls. R., 155. In view of the positive prohibition of section 3737, Revised Statutes, that no contract or interest therein shall be transferred by the contractor, and the further provision that any such transfer shall operate as an annulment of the contract, “so far as the United States are concerned," held that an othcer of the Army representing the United States in a contract for military transportation would not be authorized, of his own discretion, to consent or waive objection to an assignment, in whole or in part, of a contract, by the contractor, so as to admit the assignee to perform the service.(a) (Dig. Opin. J. A. G., 284, par. 18.) Where a contract has been once formally entered into with a certain party, for the officer representing the United States to assume to admit additional parties into the agreement and undertaking (thus in fact consenting to a transfer by the con. a That an assignment of a contract transfers no legal claim or right of action to the assignee, and that a contract when assigned is no longer binding upon the United States, see Wheeler v. U. S., 5 C. Cls. R., 504; Wanless v. U. S., 6 ibid., 123; Gill v. U.S., 7 ibid., 523; McCord v. U. S., 9 ibid., 156; Francis v. U. S., 11 ibid., 638; 10 Opin. Att. Gen., 523. But it has been held by the Attorney General that the statute on the subject (sec. 3737, R. S.) is intended simply for the benefit and protection of the United States, which, therefore, is not compelled to avail itself of a transfer by the contractor to annul the contract, but may recognize the same and accept and pay the assignee. "Were it to be held," observes the Attorney-General, “that a transfer of an interest would absolutely avoid the contract, it would enable any party making a contract with the United States to avoid it by simply transferring an interest therein, which is a construction manifestly inadmissible. Opinion in the case of the Fif teen per cent contracts" (15 Opins.. 235). And similarly held by the same authority in a later opinion, in 16 Opins., 277, that while the United States may avail itself of an assignment to declare the contract annulled, it is not required to do so, but, if deemed to be for its interests, may recognize the assignee. But it is clear that an officer of the Army could not properly assume to treat an assignment of a contract (or interest therein) as valid without the authority and direction of the Secretary of War. That for a mail contractor to contract with another person to transport the mail for him, and as his servant or employee, was not an assignment of his contract with the United States, was held in the recent case of Frye v. Burdick, 67 Maine, 408. 1181. No member of or Delegate to Congress shall directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his account, undertake, execute, hold, or enjoy, in whole or in part, any contract or agreement made or entered into in behalf of the United States, by any officer or person authorized to make contracts on behalf of the United States. Every person who violates this section shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced on the part of the United States, in consideration of any such contract or agreement, it shall be forthwith repaid; and in case of refusal or delay to repay the same, when demanded, by the proper officer of the Department under whose authority such contract or agreement shall have been made or entered into, every person so refusing or tractor of an interest in the contract), would be wholly unauthorized. (Ibid., 285, Under no circumstances can the United States permit or recognize the transfer of a contract to a third party, for the reason that such transfers are prohibited by section 3737 of the Revised Statutes, and that, if the United States could permit any such transfer, its assent would release the sureties on the contractor's bond. (3 Dig. Compt. Dec., 113.) Under section 3737, Revised Statutes, the assignment of a contr. et wholly invalidates it, unless the Government elects to treat it as still in force. Where the Government accepts from the assignee work or materials under the contract, or permits a part performance, it ratifies the assignment. (b) Where the War Department assented to the transfer of a contract for the manufacture of ordnance from one iron works to another, and accepted deliveries from the latter, held that the contract remained in full force. (Dig. J. A. Gen.. p. 299, par. 61.) An assignment, to have the effect of invalidating a contract, need not be express, nor need it be technical, formal, or written. (c) It may be evidenced by the various facts or circumstances illustrating the relations and intention of the parties. (Ibid., par. 62.) This provision is intended only for the protection of the United States. The Government may avail itself of the assignment or transfer to annul the contract, but it is not compelled to do so. (16 Opin. Att. Gen., 278; 15 ibid., 236.) There is a distinction between the assignment of a Government contract and an assignment of a claim for money due under a contract. The former is void under the act of July 17, 1862 (sec. 3737, R. S.), and passes no title, legal or equitable; the latter passes title to the money due, as though it were the sale of a chattel. McCord t. U. S., 9 C. Cls. R., 155; Lawrence v. U. S., 8 ibid., 252. The sale of a quartermaster's voucher by a contractor to a third party works a transfer of his claim against the Government, or of so much of it as is represented by the voucher. But such vouchers are in no sense negotiable paper, and the purchaser will take them subject to all the equities that may exist against a contractor. Lawrence & Crowell v. U. S., 8 ibid., 252. An officer purchasing an article is without authority of law to issue a voucher for the purchase money to a third person, at the vendor's request, there being no privity of contract between the United States and such third person. Johnston v. U. S., 13 ibid., 217. It has, however, been held that section 3477, which prohibits or makes null and void all transfers and assignments of claims against the Government, does not apply to involuntary assignments in bankruptcy (Erwin v. United States, 97 U.S., 392), or even to voluntary assignments for the benefit of creditors (Goodman v. Niblack, 102 U. S., 556). It seems to me that the reasoning of these cases applies with equal force to section 3737. (2 Compt. Dec., 50.) a See authorities above cited, 15 Opin. Att. Gen., 235; 16 ibid., 277; Francis v. U. S., 11 C. Cls. R., 638. b Wheeler v. U. S., 5 C. Cls. R., 504. e Francis v. U. S., 11 ibid., 638. Members of Congress not to be interested in contracts. Apr. 21, 1868. c. June 22, 1874, c. 48, s. 1, v.2, p. 484; 389, v. 18, p. 177. Sec.3739, R. S. What interest allowable. 48, s. 2, v.2, p. 484; delaying, together with his surety or sureties, shall be forthwith prosecuted at law for the recovery of any such sum of money so advanced.1 1182. Nothing contained in the preceding section shall Apr. 21, 1808, c extend, or be construed to extend, to any contract or agreeFeb. 27,1877, v.19, ment, made or entered into, or accepted, by any incorpoSec.3740, R. S. rated company, where such contract or agreement is made p. 249. Stipuiation that no Member of interest. for the general benefit of such incorporation or company; nor to the purchase or sale of bills of exchange or other property by any member of or delegate to Congress, where the same are ready for delivery, and payment therefor is made, at the time of making or entering into the contract or agreement. 1183. In every such contract or agreement to be made or Congress has an entered into, or accepted by or on behalf of the United Apr. 21. 1808, c. States, there shall be inserted an express condition that no Feb. 27,1877, c.69, member of [or delegate to] Congress shall be admitted to Sec. 3741, B. S. any share or part of such contract or agreement, or to any benefit to arise thereupon.' 48,8. 3. v. 2. p. 484; v. 19, p. 249. The same. v. 19, p. 249. 1184. Every officer who, on behalf of the United States, Apr. 21, 1808, c. directly or indirectly makes or enters into any contract, Feb. 27. 1877,c.69. bargain, or agreement in writing or otherwise, other than Sec. 3742, R. S. such as are hereinbefore excepted, with any member of or delegate to Congress, shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars.1 Contracts to be filed with audi. tors. 1185. All contracts to be made, by virtue of any law, and requiring the advance of money, or in any manner connected July 31, 1894, 8. 18, v. 28, p. 210. with the settlement of public accounts, shall be deposited Sec. 3743, R. S. promptly in the offices of the Auditors of the Treasury, according to the nature of the contracts: Provided, That this section shall not apply to the existing laws in regard to the contingent funds of Congress.2 Act of July 31, 1894 (28 Stat. L., 210). Under sections 3739-3742, Revised Statutes, it is illegal for an officer of the United States to enter into a contract or make a purchase of a firm or association (not incorporated) of which a Member of or Delegate to Congress is a member or in which one is pecuniarily interested. (a) (Dig. Opin. J. A. Gen., 284, par. 16.) Paragraph 589 of the Army Regulations of 1895 prohibits purchases by officers of the Army from any other person in the military service." Held that this prohibition did not embrace civilians employed in the public service under the War Department, or in connection with the military administration, and therefore did not preclude the making of a contract by an ordnance officer, as representing the United States, with a civil employee at an arsenal, for the use of an invention patented by the latter. (b) (Ibid. par. 17) The form of a proposed contract contained the stipulation that "no person belong. ing to or employed in the military service of the United States is or shall be admitted to any share or part of this contract." The description "person employed in" is understood to mean all such clerks, mechanics, laborers, or other civilians as are legally employed by the military authorities in or in connection with military works, operations, or other authorized transactions. So where a lowest bidder was a civilian laborer at the Springfield Armory, advised that the contract be made with the next lowest bidder, who was under no such incapacity. (Ibid., 296. par. 52.) 2 All formal written contracts connected with the settlement of public accounts a That section 3739, Revised Statutes, does not affect contracts made with persons who have been simply elected Members of or Delegates to Congress, but have not actually become such by being sworn in-see opinion of the Attorney-General of May 19, 1877 (15 Opins. Att. Gen.), citing 16 ibid., 406. b See U.S. v. Burns, 12 Wallace, 251, 252; 10 Opins. Att. Gen., 2; 20 ibid., 329. fuel in District July 11, 1870, s. of inspectors, Mar. 2, 1895, s. 1186. It shall not be lawful for any officer or person in Inspection of the civil, military, or naval service of the United States in of Columbia. the District of Columbia to purchase anthracite or bitumi- 1, v. 16, p. 229, nous coal or wood for the public service except on condition that the same shall, before delivery, be inspected and weighed or measured by some competent person to be Appointment appointed by the head of the Department or chief of the etc. branch of the service for which the purchase is made from 6, v. 28, p. 808. among the persons authorized to be employed in such Sec.3711, R. S. Department or branch of the service: Provided, That the weigher or measurer of the Navy Department may be appointed outside of said Department, and that such weigher and measurer shall give bond and be paid as heretofore provided by law. The person appointed under this section shall ascertain that each ton of coal weighed by him shall consist of two thousand two hundred and forty pounds, and that each cord of wood to be so measured shall be of the standard measure of one hundred and twentyeight cubic feet. Each load or parcel of wood or coal weighed and measured by him shall be accompanied by his certificate of the number of tons or pounds of coal and the number of cords or parts of cords of wood in each load or parcel.1 Act of March 2, 1895 (28 Stat. L., 808). accounting offi 1187. The proper accounting officer of the Treasury Appointments of weighers, etc., shall be furnished with a copy of the appointment of each to be certified to inspector, weigher, and measurer appointed under the preceding section. Sec. 2, ibid. should be placed, and should remain, on file in the offices designated by law as their proper depositories. (3 Dig. Compt. Dec., 112.) Under paragraph 554 of the Army Regulations of 1895 formal written contracts are to be executed in quintuplicate, one of which is to be filed, in accordance with section 3743 of the Revised Statutes, with the proper Comptroller of the Treasury, because they are connected with the settlement of public accounts. (Ibid., p. 111.) Under section 3743 of the Revised Statutes all contracts in any manner connected with the settlement of public accounts by the Second, Third, and Fourth Auditors and the Second Comptroller are to be deposited or filed in the Second Comptroller's Office within ninety days after their respective dates. This statutory requirement includes not only all formal written contracts or specialties in any manner connected with the settlement of accounts, but also all properly authorized extensions or other modifications of such contracts, every modification of a contract being in the nature of a new contract and connected with the settlement of accounts. (Ibid., p. 112.) Only formal written contracts are required under section 3743 of the Revised Statutes to be filed in the office of the Second Comptroller. Informal contracts and the papers pertaining thereto should be filed with the accounts or vouchers to which they relate, in order to facilitate the examination and revision of accounts and vouchers. (Ibid., 109.) A separate notification is required in each case of extension of a contract, so that it can be filed, with the contract to which it pertains, in the office of the Second Comptroller. Otherwise notifications of extensions of contracts will fail of the purpose contemplated in section 3743 of the Revised Statutes. (Ibid., 112.) Formal written contracts made and filed in the proper office in pursuance of law must be regarded as necessary in the settlement of public accounts or claims, and therefore can not properly be returned either for cancellation or amendment. (Ibid.) The Second Comptroller is not authorized to deliver to either of the parties to a contract, for any purpose whatever, any contract connected with the settlement of public accounts which has been properly placed in his custody under the provisions of section 3743 of the Revised Statutes. (Ibid.) See also, for further statutory provisions on this subject, the Act of June 14, 1878 (20 Stat. L., 131), and sections 12, 13, 14, and 15 of the act of March 2, 1895 (28 Stat. L., 813). 1919-27 cer. Sec. 2, ibid. |