tion) of a ferry or of telephones for an indefinite period. XLII, 454, December, 1879; Card 4722, August, 1898.

But held that the provision of Sec. 3679, Rev. Sts., the main object of which was to protect the United States from arbitrary expenditures and improvident pecuniary obligations on the part of executive officials, would not preclude the taking from a citizen, by the authority of the Secretary of War, of a lease for five or more years, of land required for military purposes, where no rent whatever was reserved therein, or where the rent reserved was a mere nominal sum inserted by way of formal consideration-as one dollar per annum. XLII, 564, April, 1880.

887. Where an appropriation act for a certain fiscal year appropriated a certain sum for an arsenal, which was insufficient to complete the proposed edifice, held, in view of the provisions of Secs. 3679 and 3733, Rev. Sts., that the Secretary of War, or the ordnance officer in charge of the work, would not be authorized to enter into a contract for the building of the entire structure, but could legally contract only for the building of such portion as could be constructed for the amount appropriated.' XXXIX, 612, July, 1878.

888. Although public contracts cannot in general be made in advance of, or in the absence of, a proper appropriation for the purpose, or other special statutory authority, yet from this rule are expressly excepted, by Sec. 3732, Rev. Sts., military (and naval) contracts "for clothing, subsistence, forage, fuel, quarters, or transportation," which, however, it is added, "shall not exceed the necessities of the current year."" Such contracts may therefore be entered into irrespective of the adequacy of the appropriations, or entirely on credit, where Congress has omitted (as it did in the session ending March 4, 1877) to make any appropriations at all for the army for a fiscal year. But held that by the term "current year" was to be understood current fiscal year, and that, in the excepted cases, the military authorities could bind the Government by contracts only for necessary supplies for the fiscal year in which such contracts were made. XXXVIII, 504, March, 1877; XLII. 135, January, 1875.

89. In view of the provision of Sec. 3732, Rev. Sts. (and see Sec. 3679),—until an adequate appropriation applicable to the subject has been made by Congress, there can be (except as specified in Sec. 3732) no contract entered into with regard to such subject, and properly no award or acceptance of bid. L. 388, June, 1886.

See the opinion of the Attorney General in 15 Opins., 235.

As to the reason of this statute, see the opinion of Nelson, J., in the case of The Floyd Acceptances, 7 Wallace, 666, 685.

To a similar effect, see subsequent opinions of the Attorney General in 15 Opins., 124, 209.

890. Sec. 4 of the River and Harbor Appropriation Act of August 5, 1886, provides that "The Secretary of War shall prescribe such rules and regulations as may be necessary to secure a judicious and economical expenditure of the money herein appropriated." Regulations being inferior and subordinate to statute, this provision can authorize no departure from the statutory injunctions governing public contracts, as for example such as are contained in Secs. 3678, 3679, 3717 and 3732, Rev. Sts. And held particularly that such provision would not authorize a regulation permitting the aggregating in one contract of agreements for the supplying of the materials or labor required for a number of distinct works, since such a contract would be in contravention of Sec. 3717, Rev. Sts., prescribing a separate contract “for each class of material or labor for each work.”1 But remarked that sec. 5 of the act cited permitted a departure from the contract system whenever any other method is more economical and advantageous to the government. LIII, 7, September, 1886.

891. By the River and Harbor Act of September 19, 1890, the Secretary of War was authorized to enter into contract for a certain improvement of the Delaware River, "the work to be paid for as appropriations may from time to time be made by law." A contract was entered into for the whole work at a cost largely in excess of the appropriation available. It provided that when appropriations permitted, monthly payments should be made, ten per cent thereof to be "reserved,” and that if payment be discontinued for a period of one year owing to lack of funds, the total amount reserved from previous payments should be paid to the contractor. On the question whether the amounts so reserved could be used in paying for work not yet appropriated for, held that to do so would involve a violation of the contract entered into, and would operate indirectly as a payment for work in advance of an appropriation therefor. Card 620, November, 1894.

892. Sec. 3733, Rev. Sts., provides that-"No contract shall be entered into for the erection, &c., of any public building, &c., which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose." By an act of June 16, 1890, the Secretary of War was authorized to cause to be erected at the National Armory at Springfield, Mass., a building for machine shops, &c., not to cost over a specified total of about two hundred and twelve thousand dollars. By a subsequent appropriation act of the same year (of August 30, 1890) an appropriation was made of $100,000 "to commence the erection" of the same building. As it was thus quite evidently contemplated by Congress that the further 1 1 Such a contract is now permitted by sec. 2, act of Sept. 19, 1890 (26 Stats., 452).

cost of the building would be appropriated for in a succeeding year or years, held that a contract might (upon advisement, &c.) be legally entered into for the entire work of the erection of the building, for the full consideration named in the first act, without a contravention of the terms of Sec. 3733. 43, 375, October, 1890.

893. Held, that it would be legally authorized to enter into a contract for the construction, for the sum of $2,130, of quarters for hospital stewards at Jefferson Barracks; the limitation of contracts for such quarters to a less sum by the act of February 24, 1891, being confined to the fiscal year to which that act pertained, and therefore no longer in force. 61, 101, August, 1893.

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894. Sec. 3690, Rev. Sts., in providing that balances of appropriations for any fiscal year remaining unexpended at the end of such year shall not be applied to the "fulfillment" of any contracts except those "properly incurred during that year," expressly excepts "permanent or indefinite appropriations." The existing law (Sec. 1661, Rev. Sts.) makes a permanent appropriation of a certain sum annually for the purpose of providing arms and equipments for the militia." Held that a balance of this appropriation, remaining unexpended on the last day (June 30th) of a certain fiscal year, could legally be used for the payment of a contractor in December following, under a contract entered into, in November, with the Ordnance department for the manufacture of an arm intended to be issued to the militia. XXXI, 85, December, 1870.

895. Under Secs. 3739-3742, Rev. Sts., 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. XLII, 344, June, 1879.

2

3

896. The Army Regulations prohibit 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. XXI, 320, April, 1866; XLII, 308, May, 1879. (See $$ 956, 957, post.)

897. In view of the positive prohibition of Sec. 3737, Rev. Sts., that

1See 6 Comp. Dec., 815; id., 898.

That Sec. 3739, Rev. Sts., 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 in 15 Opins., 280.

*See A. R., 1002 of 1863; 1632 of 1881; 746 of 1889; 589 of 1895; 671 of 1901. *See United States v. Burns, 12 Wallace, 246, 251; 10 Opins. At. Gen., 2; 20 id., 329.

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 officer 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. XXXI, 436, June, 1871; XXXVII, 13, May, 1875.

898. 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 contractor of an interest in the contract) would be wholly unauthorized. XXXVI, 463, May, 1875. 899. A mere power of attorney given by a contractor to another person authorizing him to receive for the contractor moneys coming due under the contract, cannot of course operate as a transfer of an interest therein; but where, by a written agreement between a contractor and another party, the latter was empowered to receive the payments from the United States, in consideration of which he undertook to continue and complete the work contracted for, held that such agreement was a power coupled with an interest, and operated as a transfer within the meaning of Sec. 3737, Rev. Sts. XXVIII, 346, January,

1869.

900. Under Sec. 3737, Rev. Sts., the assignment of a contract does not render it absolutely void, but voidable at the option of the United

1 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. United States, 5 Ct. Cls., 504; Wanless v. United States, 6 id., 123; Gill v. United States, 7 id., 522; McCord v. United States, 9 id., 155; Francis r. United States, 11 id., 638; 10 Opins. At. Gen., 523. But it has been held by the Attorney General that the statute on the subject (Sec. 3737, Rev. Sts.) 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 "Fifteen per cent. contracts," (15 Opins., 235.) And similarly held by the same authority in a later opinion (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 interest, 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 Fryer. Burdick, 67 Maine, 408.

2 That a power coupled with an interest is irrevocable, see Hunt . Ennis et al., 2 Mason, 244; Wheeler . Knaggs, 8 Hammond, 169; McDonald v. Admr. of Black, 20 Ohio, 185; 7 Opins. At. Gen., 35.

States. Where the Government accepts from the assignee work or materials under the contract, or permits a part performance, it ratifies the assignment. 16, 1, April, 1887; Card 2933, February, 1897. 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. 16, 1, supra.

901. The expression in a contract that the contractor agrees "for heirs, executors and administrators" is not essential. The personal representatives of a deceased contractor are entitled to carry out his contracts, and the estate, both personal and real, of such contractor is liable for his debts and contracts independently of the provisions of the contracts. The provision that the transfer of the contract or any interest therein "shall cause the annulment of the contract so far as the United States is concerned," being the words of the statute (Sec. 3737, Rev. Sts.), may properly be incorporated in the contract, but it would be better to substitute therefor the provision that "in case of such transfer the United States may refuse to carry out this contract either with the transferor or the transferee," as more clearly expressing what is intended by the statute as construed by the courts. Card 2878, January, 1897.

902. An assignment, to have the effect of invalidating a contract, need not be express; nor need it be technical, formal, or written.3 It may be evidenced by the various facts or circumstances illustrating the relations and intention of the parties. 62, 211, November, 1893. 903. It has been held by the Supreme Court' that Sec. 3477, Rev. Sts., which prohibits or makes null and void all transfers and assignments of claims against the Government does not apply to involuntary assignments in bankruptcy or even to voluntary assignments for the benefit of creditors and the reasoning applies with equal force to Sec. 3737, Rev. Sts. So held that an assignment for the benefit of its creditors by the company under contract with the United States to build the Memorial Hall at West Point, N. Y., was not void under Sec. 3737, Rev. Sts. Card 2828, December, 1896. Card 2828, December, 1896. Further held that where there had been an assignment for the benefit of creditors, payments due or becoming due on the contract should be made to the duly appointed assignee and could not legally be made to the assignors, and

See 15 Opins. At. Gen., 235; 16 id., 277; 18 id., 88; also Francis r. United States, 11 Ct. Cls., 638; 2 Comp. Dec., 49; 4 id., 43; 6 id., 88.

"See Wheeler v. U. S., 5 Ct. Cls., 504; 2 Comp. Dec., 49.

'Francis r. U. S., 11 Ct. Cls., 638.

* Erwin c. U. S., 97 U. S., 392, and Goodman r. Niblack, 102 id., 556.

$2 Comp. Dec., 49.

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