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eral Government with respect to the clause of the Fifth Amendment prohibiting the taking of private property without just compensation [Italics supplied.]
"While the legislative history of the Act of December 28, 1922, contains no discussion of the meaning of the words 'privately owned property,' the broad purpose of the Act-to relieve the Congress of the burden of passing upon numerous small meritorious claims against the Government not within the jurisdiction of the courts-as indicated by such history (H. R. No. 342, 67th Cong., 1st Sess.) is consonant with the view that claims of municipalities may properly be considered under its provisions."
The only reference cited in support of the decision on the point in question is 14 Comp. Gen. 139. It was there held that "There is no authority of law or appropriations available for the authorization of contracts for the rental of motor vehicles containing stipulations for the payment of damages resulting to the motor vehicles operated by the Government under rental agreements." In discussing the possibility that the claim might be considered either under section 9 of the act of June 5, 1920 (41 Stat. 1015), or under the act of Decembe 28, 1922 (42 Stat. 1066), it was stated that "both the 1920 and 1922 statutes contemplate the damaged property shall have been in the control, etc., of persons and not leased to the United States when it is damaged." It is desired to emphasize that no reason is given to support this conclusion and no authority is cited.
The decision of August 25, 1941, appears to be directly in conflict with a decision in 4 Comp. Gen. 1028. In that case two horses were hired from their owner by the United States Geological Survey pursuant to the provisions of a written contract, wherein the Government was bound to use reasonable care. Although the claim under the contract was disallowed for the reason that it was not shown that the Government failed to exercise reasonable care for the protection of the animals, the Comptroller General suggested that "the only relief which could be afforded the owner in case of negligence would be under the act of December 28, 1922, 42 Stat. 1066, which is a matter for administrative determination and certification to Congress and not for payment by or through the General Accounting Office." There appears no logical or legal distinction between property such as a horse and other property, and under this decision the remedy afforded by the act of December 28, 1922, should be made available on an equal basis to all owners regardless of the particular kind of property involved.
There would seem to exist no better proof of the intent of Congress regarding the meaning of the term "privately owned property" than the action taken by the Congress in connection with appropriating monies to pay the claims submitted to it under the act of December 28, 1922. A casual search of the deficiency appropriation acts and accompanying reports will disclose that the various Executive departments have submitted numerous claims to the Congress for consideration under that act, covering damage caused by the negligence of Government employees to equipment and property rented to the Government and in its custody. In not one single instance did the Congress refuse to make an appropriation on the ground that such property was not privately owned. This is valid and unmistakably clear example of the real intent of Congress which must be considered, inasmuch as the courts give great weight to an administrative interpretation long and consistently followed, particularly when the Congress, presumably with that construction in mind, has taken action consistent with that interpretation. (See U. S. v. Chicago N. S. & M. R. Co., 288 U. S. 1, 77 L. Ed. 583, 53 S. Ct. 245; Dismuke v. U. S., 297 U. S. 167, 80 L. Ed. 561, 56 S. Ct. 400, rehearing denied in 297 U. S. 728, 80 L. Ed. 1011, 56 S. Ct. 594; Koshland v. Helvering, 298 U. S. 441, 80 L. Ed. 1268, 56 S. Ct. 767; Poe v. Seaborn, 282 U. S. 101, 75 L. Ed. 239, 51 S. Ct. 58; McCaughn v. Hershey Chocolate Co., 283 U. S. 488, 75 L. Ed. 1183, 51 S. Ct. 510; Costanzo v. Tillinghast, 287 U. S. 341. 77 L. Ed. 350. 53 S. Ct. 152; Murphy Oil Co. v. Burnet. 287 U. S. 299, 77 L. Ed. 318, 53 S. Ct. 161.)
On April 8, 1937, there was forwarded, for direct settlement to the General Accounting Office by the Commissioner of Accounts and Deposits, United States Treasury, a claim submitted by C. R. McLean, Room 10, Spaulding Hotel, Duluth, Minnesota, in the sum of $1,000, covering damage to two locomotives while in the custody of the Works Progress Administration pursuant to the provisions of contract No. ER-TPS-71-3934. On September 29, 1937, a settle
ment certificate was addressed to claimant by the Claims Division of the General Accounting Office disallowing the claim and stating that "such claim as there may have been in this case was for consideration by the administrative offices under the act of December 28, 1922, 42 Stat. 1066, and the administrative action on claims coming within the provis on of said act is not subject to review by this office." On May 3, 1938, the acting Comptroller General returned the claim to the Works Progress Administration stating that the above-quoted sentence "is not to be viewed as suggesting any determination by this office that the claim is entitled to favorable action, that being the matter for determination by the head of the establishment concerned under the terms of the cited act." The Works Progress Administrator, finding that the damage was caused by the negligence of employees of the Administration, reported the claim to the Congress under the provisions of the act of December 28, 1922. An appropriation was made by the Congress for payment of the claim in the First Deficiency Appropriation Act, fiscal year 1939 (53 Stat. 512). Reference is made to this claim in Senate Document No. 9, 76th Cong., 1st Sess., page 10. Further comment on this point appears unnecessary.
The second method of reasoning which can be drawn from the decision is that such claims as those in question cannot be considered under the cited statutes for the reason that there is a remedy under the provisions of the rental contract or the bailment contract for use, and there is no authority to "impose upon the Government any liability or obligation aside from and in addition to such as may be imposed under the provisions of the contract." This line of reasoning presupposes, first, that the rental contract contains adequate provisions for compensating the owner for the damages incurred, or that there is an adequate remedy under the bailment contract for use and the legal principles applicable thereto; and, secondly, that the cited statutes constitute a liability or obligation "aside from and in addition to" the contract provisions. In connection with the first assumption, it should be stated that the Work Projects Administration, on the basis of the decision in 14 Comp. Gen. 139, wherein it was held that "instructions should be issued to all contracting officers of your Department to the effect that there should not be incorporated in agreements for lease of motor equipment any stipulations attempting to impose on the United States (any responsibility for) damages to the equipment while in use under the agreement," has refrained from attempting to provide any contractual relief for damages to rented property or equipment, other than the usual duty to return in as good condition as when received, ordinary wear and tear excepted. Thus, there is reached an anomalous situation whereby vendors of rented property or equipment, on the basis of that ruling in 14 Comp. Gen. 139, have been deprived of a remedy which it is not stated is the only one that exists in the circumstances. Although it may be contended that a remedy exists under the bailment contract for use and the legal principles applicable thereto, it is submitted that such is illusory, inasmuch as the Comptroller General has consistently held that appropriated funds are not available for the payment of damage claims.
However, it is not believed that the remedy afforded by the cited statutes can be said to be "aside from and in addition to" the obligations imposed by the provisions of the contract. The effect of the decision on this point is to overrule the well-established doctrine that, in the case of a bailor-bailee relationship, whether imposed by a special contract or by law, the bailor has, in the event of a violation of a duty by the bailee, the option of bringing an action ex contractu for the breach of the contractual duty, or, waiving this right, by suing ex delicto for negligence in the performance of the contractual duties. (In re Coe, 169 F. 1002; Hackney v. Perry, 44 So. 1209; H. J. Keith Co. v. Booth Fisheries Co., 87 A. 715; La Plante v. Du Pont. 193 N. W. 820; White Swan Laundry v. Blue, 137 So. 898; Devinne Hallenbeck Co. v. Autotyre Co., 154 A. 170; Christensen v. Pugh, 36 F. (2d) 100; 6 American Jurisprudence 428, and cases cited therein; Annotation in 12 L. R. A. (N. S.) 925). In the Keith case, the court went so far as to state that "When the relation of bailor and bailee is once shown by contract or otherwise, the usual and appropriate remedy is tort, although the plaintiff may at his election sue in tort or for breach of the contract. There is ample authority to sustain such conclusion."
1 Missing words supplied.
Inasmuch as your opinion went beyond the scope of the original question submitted in the Administrator's letter of July 28, 1941, and held that the term "privately owned property" as used in the applicable statutes, did not contemplate property rented to the Government, it is requested that the matter be reconsidered.
Section 20 of the Emergency Relief Appropriation Act, fiscal year 1942, 55 Stat. 396, 405, provides:
The Commissioner is authorized to consider, ascertain, adjust, determine, and pay from the appropriation in section 1 hereof any claim on account of damage to or loss of privately owned property caused by the negligence of any employee of the Works Progress Administration or the Work Projects Administration while acting within the scope of his employment. No claim shall be considered hereunder which is in excess of $500, or which is not presented in writing within one year from the date of accrual thereof. Acceptance by a claimant of the amount allowed on account of his claim shall be deemed to be in full settlement thereof, and the action upon such claim so accepted by the claimant shall be conclusive.
The act of December 28, 1922, 42 Stat. 1066, mentioned in the abovequoted letter, reads, in part, as follows:
SEC. 2. That authority is hereby conferred upon the head of each department and establishment acting on behalf of the Government of the United States to consider, ascertain, adjust, and determine any claim accruing after April 6, 1917, on account of damages to or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment. Such amount as may be found to be due to any claimant shall be certified to Congress as a legal claim for payment out of appropriations that may be made by Congress therefor, together with a brief statement of the character of each claim, the amount claimed, and the amount allowed: Provided, That no claim shall be considered by a department or other independent establishment unless presented to it within one year from the date of the accrual of said claim.
SEC. 3. That acceptance by any claimant of the amount determined under the provisions of this act shall be deemed to be in full settlement of such claim against the Government of the United States.
There can be no doubt that section 20 of the Emergency Relief Appropriation Act, supra, relates to the same class of claims as those covered by the act of December 28, 1922, and this point appears to be conceded in the above-quoted letter. The only material difference between the two statutes is that under section 20 of the Emergency Relief Appropriation Act, supra, the Commissioner of Work Projects is authorized to pay claims not in excess of $500 from the current appropriation rather than to certify them to the Congress for its consideration. Otherwise the two statutes confer administrative authority to "consider, ascertain, adjust," and determine any claim "on account of damages to or loss of privately owned property" caused by the "negligence" of an officer or employee of the Government while acting within the scope of his employment. No such claim is to be considered unless presented within one year from the date of accrual thereof; and acceptance by a claimant of the amount allowed under either statute is to be deemed in full settlement. Section 20 of the Emergency Relief Appropriation Act, supra,
appears, therefore, to be no more than supplemental to the 1922 statute. Authority substantially identical to that considered in said section 20 first appeared in section 20 of the Emergency Relief Appropriation Act of 1938, 52 Stat. 815, and was explained by the House of Representatives Committee on Appropriations, in Report No. 2317, Seventy-fifth Congress, third session, as follows:
Section 20, a new section, authorizes the Administrator of the Works Progress Administration to consider, ascertain, adjust, determine and pay from the appropriation to the Works Progress Administration in this title claims arising out of operations occurring after the date of the joint resolution on account of damage to or loss of property caused by neglect of an employee of the Works Progress Administration or the National Youth Administration while acting within the scope of his employment. The authority is limited to claims not in excess of $500 presented in writing within 1 year from the date of accrual thereof and any allowance by the Administrator to be accepted in full settlement. Under existing law the Administrator has this authority up to $1,000 but must certify all such adjudications to Congress for appropriation prior to payment. Under this section many small claims can be expeditiously handled to the great advantage of the Government and to the satisfaction of the claimants in receiving prompt payment. Claims between $500 and $1,000 will continue to be adjudicated by the Administrator and certified to Congress for appropriation. [Italics supplied.]
Since section 20 of the Emergency Relief Act, fiscal year 1942, relates to the same class of claims as the 1922 statute it necessarily follows that the intention of the Congress as expressed in the 1922 statute is controlling as to the class of claims covered by said section 20. In ascertaining that intention it is appropriate to consider the circumstances occasioning passage of the act, the object or purpose which the Congress had in mind, the title of the act, etc. United States v. Katz, 271 U. S. 354; Bullard v. United States, 81 Ct. Cls. 939; United States v. Tod, 285 F. 847; and In re Martin, 283 F. 833.
It is a fundamental principle of public law, affirmed by a long series of decisions of the Supreme Court, that no suit can be maintained in any court against the United States without express authority of the Congress. United States v. Clarke, 8 Pet. 436; The Siren, 7 Wall, 152; Belknap v. Schild, 161 U. S. 10; and Stanley v. Schwalby, 162 U. S. 255. However, by successive acts of Congress, the United States has consented to be sued upon its contracts either in the Court of Claims or in the district courts of the United States. (See 28 U. S. C. A. 41 (20), 250 (1).) And by section 305 of the Budget and Accounting Act, 1921, this office is authorized to settle and adjust claims and demands against the United States. But the United States has not consented, generally, to be liable in suits, founded in tort, for wrongs done by its officers, though in the discharge of their official duties. Gibbons v. United States, 8 Wall. 269; Morgan v. United States, 14 Wall. 531; Langford v. United States, 101 U. S. 341; United States v. Jones, 131 U. S. 1; German Bank v. United States, 148 U. S. 573; and Hill v. United States, 149 U. S. 593. Therefore, persons who have suffered damage as a result
of torts committed by officers and employees of the Government generally have had no enforceable rights against the United States. Consequently, it became the common practice in such cases for persons to seek the aid of their representatives in Congress in obtaining enactment of a private bill for their relief. Such was the state of the law at the time the bill H. R. 7912, which became the act of December 28, 1922, was considered by the Sixty-seventh Congress and the legislative history of said bill shows that its primary purpose was to relieve the Congress of the necessity of considering and determining the merits of the numerous claims for relief being presented to the Congress by persons who had been damaged as a result of torts committed by officers and employees of the Government but who had no claims legally enforceable against the Government. In the Attorney General's opinion of August 12, 1936 (38 Op. Atty. Gen. 514), cited in the above-quoted letter, it is stated that the purpose of the act of December 28, 1922, was "to relieve the Congress of the burden of passing upon numerous small meritorious claims against the Government not within the jurisdiction of the courts" and such statement is completely supported by the committee reports and congressional debates on the bill.
Thus, in House Report No. 342, Sixty-seventh Congress, First Session, the bill H. R. 7912 was explained, in part, as follows:
While in the case of a few of the departments there is authority of law for the settlement of claims in the nature of torts, there is no general law under which all of the departments and independent establishments can settle claims of the character of those contemplated in the bill.
Nearly one-third of the bills filed with the Committee on Claims are for amounts less than $1,000, and the majority of these are claims for damages arising from accidents involving Government-owned trucks. Claimants have necessarily been told that there is no appropriation for the payment of such claims and that the Government cannot be sued upon any cause of action sounding in tort. (Robertson v. Sichel, 127 U. S., 505; Belknap v. Schild, 161 U. S., 10; Stanley v. Schwalby, 162 U. S., 255).
Legislation provided for in this bill will relieve Congress of the necessity in passing upon claims that could be easily settled by the departments, etc.
As there is no fund from which these claims can be paid, it is provided that when settled they shall be reported to Congress for appropriation.
And as indicating that the act of December 28, 1922, does not apply to claims which are legally enforceable against the Government are the following statements made by members of the House of Representatives in explanation of the bill during the debate thereon (Congressional Record, vol. 62, pt. 3, pp. 2283–2299):
Mr. BLANTON. I want my colleagues to remember this fact concerning this bill, that any legal claim does not need this legislation.
Mr. SNELL. If you had a legal claim of $75 against this Government, what would you do with it?