#### THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. THE UNITED STATES.

[No. 34119.

Decided May 10, 1920.]

*On the Proofs.*

*Army; transportation of moimts.*— In the absence of a statute authorizing payment for the transportation of mounts which are the private property of officers of the Army, the Secretary of War has no authority, by the promulgation of a regulation, to bind the Government for such transportation, and section 220, Revised Statutes, confers no authority upon the Secretary to incur such liability on behalf of the Government.

*The Ref or lev’s*statement of the case:

*Mr. Alexander Britton*for the plaintiff. *Britton & Gray*were on the briefs.

*340The question for decision in this case is: Is the United States liable as a matter of law for the cost of transporting the private mounts of officers changing station?

In *Illinois Central B. B. (Jo.*v. *United*States, 52 C. Cls., 53, this court held that two horses belonging to Lieut. Qualls were not the property of the United States, and although shipped upon a Government bill of lading, under express authority of the War Department and as authorized by paragraph 1098 of the Army Regulations, there was no authority of law shown for obligating the United States to pay for their transportation.

On February 21, 1917, the Comptroller of the Treasury considered the opinion and judgment of the court in the Illinois Central case, supra, and after stating that the transportation was specifically authorized by the Army Regulations at Government expense, referred to the act of April 27,1914, 38 Stat., 351-365, as a recognition by Congress that the cost of transporting authorized mounts of Army officers was payable by the Government and concluded that there was ample authority of law for the payment of such accounts by the Government. *Boston do Albany B. B.,*23 Comp. Dec., 480.

Again, on January 31, 1919, the Comptroller reconsidered the question as controlled by the act of August 24, 1912, 37 Stat., 576, in applying to shipments of private mounts of officers to the Canal Zone. In the comptroller’s decision he refers to paragraph 1098 of the Army Eegulations, the acts of March 23, 1910, 36 Stat., 254-255; the act of April 27,1914, 38 Stat., 365; the act of July 9,1918, 40 Stat., 859; and General Orders 35 and 89 of the War Department, and finds therefrom not only express authority under the regulations, but recognition by Congress of the liability of the Government for such service. 25 Comp. Dec., 538.

In addition to the authorities cited by the comptroller, we refer the court to section 220, E. S., which provides:

“The transportation of troops, munitions of war, equipments, military property, and stores, throughout the United States, shall be under the immediate control and supervision of the Secretary of War and such agents as he may appoint.”

*341This section confers upon the Secretary of War broad discretion and authority over the transportation of all troops, munitions of war, equipments, military property and stores, without limiting it to the ownership of the United States, and acting thereon for many years it has been and still is the practice of the War Department to authorize the transportation of privately owned mounts and to pay for such transportation.

Section 2092, E. S., act of May 11,1908, provides:

“Hereafter the United States shall furnish mounts and horse equipments for all officers of the Army below the grade of major, required to be mounted, but in case any officer below the grade of major required to be mounted provides himself with suitable mounts at his own expense, he shall receive an addition to his pay of $150 per annum if he provides for one mount and $200 per annum if he provides two mounts.”

The appropriation act of August 29, 1916, 39 Stat.,'619-629, makes specific provision for the additional pay to officers below the grade of major required to be mounted and who furnish their own mounts. It will be seen from this that it has been and is the custom and practice to pay for the transportation of such private mounts, the use of which is thus specifically authorized by law.

Even though there had been'no specific recognition of the action of the War Department by appropriating funds to carry such orders into effect, sec. 220, E. S., is in itself sufficient for all the purposes of this case, and where it has been so long and uniformly applied as authority for paying for such transportation, more specific authority would seem to be unnecessary.

In *United States*v. Macdaniel, 7 Pet., 1, 13, the Supreme Court held:

“A practical knowledge of the action of any one of the great departments of the Government must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his 'discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show statutory provision for everything he does. No Government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the *342complicated machinery of Government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the Government.”

We have in this case a statute conferring broad authority upon the Secretary of War over transportation; departmental general orders permitting such transportation at Government expense; laws authorizing allowance for officers using their own private mounts in Government service, and repeated rulings of the accounting officers that pay for such transportation is a proper charge against the Government.

There never has been any dispute between the administrative branch of the Government and the carriers as to the fact that these private mounts are not the property of the United States, and under the repeated rulings of this court, affirmed by the Supreme Court of the United States, the Government is only entitled to impose land-grant deductions upon the transportation of troops and property of (belonging to) the United States.

There remains but one question to be answered, to wit: Can the United States be held liable for the payment of such transportation of private property and not be held entitled to apply land grants? This question seems to have been fully answered by the numerous decisions of this court awarding judgments against the United States for land-grant deductions made on account of transportation of various people and things not falling within the technical description of “ troops or property of the United States.”

In *United, States*v. *Union Pacific R. R. Go.,*249 U. S., 354, the Supreme Court affirmed a judgment of this court, holding the Government bound to pay, without land-grant deduction, the transportation of discharged soldiers, etc., saying that “ under recent acts of Congress and Army Kegula-tions the transportation of persons of some of these classes is paid for by the Government,” but they were in no sense “ troops ” of the United States.

*Mr. Horace S.*"Whitman, with whom was *Mr. Assistant Attorney General Franh*Davis, jr., for the defendants.

*343Graham, Judge,

delivered the opinion of the court.

This is a claim for the transportation on Government bill of lading at certain periods during the years of 1917, 1918, and 1919, of horses or mounts of officers of the Army which were the private property of these officers. The plaintiff presented a claim for payment on the basis of commercial rates. The accounting officers allowed it payment only on the basis of land-grant rates. The facts as to the points of shipment and delivery have not been shown. In the oral argument it seemed to be assumed that the shipment was from one Army station to another. For present purposes it will be assumed that these were the facts.

It is the province of Congress to prescribe the powers and authority of the head of a department, and his actions whether in the form of regulation or practice are only legal when they embody the exercise of power and authority so given, either specifically or by implication. It is the province of Congress to appropriate money, and the head of a department can not legally expend money or enter into contracts creating liability on the part of the Government for its expenditure without authority from Congress so to do. When a contract has been entered into incurring a liability on the part of the Government, it devolves upon the party asserting the claim to show the necessary authority in the head of the department making the contract, and such authority must be clearly shown and not rest in doubt or uncertainty.

It is fundamental that the power to incur liability or to expend money by officers of the Government must be given by law. An officer of the Government can not by promulgating a regulation or creating a practice in his department incur liability or take money out of the Treasury for the expenditure of which there has been no appropriation.

No authority in the Secretary of War to expend money or create a liability for the transportation of private mounts of officers has been shown in this case, nor has any been found.

The plaintiff in its supplemental brief states:

> “ There never has been and is not now any dispute as to the ownership of the horses carried by this claim. They *344were the private property of certain officers of the Army and in no sense property of the United States. Whatever conclusion may be forced or reached, must be upon this undisputed and admitted fact.”

Being private property “ and in no sense property of the United States,” there must be some specific authority of law shown to render the Government liable for the expense of the transportation. The plaintiff relies upon the practice of the War Department and the accounting officers through a series of years of authorizing the transportation of privately owned mounts under the authority of‘section 220, of the Revised Statutes, which is as follows:

> “ The transportation of troops, munitions of war, equipments, military property, and stores throughout the United States shall be under the immediate control and supervision of the Secretary of War and such agents as he may appoint.”

This provision of the statutes plainly was intended to confer only administrative power. It does not authorize the Secretary of War to incur liabilities on behalf of the Government not authorized by law or to spend money for which there has been no appropriation. It does not authorize him to take money out of the Treasury in any connection that he may see fit. If it did authorize him to do these things his authority is clearly limited to Government property. It is admitted in this case that these mounts were “ in no sense property of the United States.”

Assuming that the construction given to- this act by the Secretary of War, and the practice of the War Department thereunder and the alleged recognition of this practice by Congress, would be justification for the payment for this service, that practice, it must be conceded, was based upon payment at land-grant rates. It does not appear anywhere that it was upon any other than land-grant rates, and upon this basis the plaintiff has already been paid all that it could legally demand.

This case was remanded for reargument upon the following questions propounded by the court':

> “(1) What authority of law is there for the transportation of officers’ private mounts at Government expense?

> *345“(2) If the appropriation for 4 transportation of the Army and its supplies,’ the long-continued construction thereof by the War Department and the accounting officers, and recognition of that construction by Congress is relied on, is not the application of land-grant rates required?

> “(3) Can officers’ private mounts be construed to be the property of the Army for the purpose of fixing Government liability and as private property for the purpose of determining the amount of the liability?

> *“*(4) If the theory that officers’ mounts are private property is adopted, will the conclusion be forced that there is no authority of law for their transportation at Government expense? ”

The reargument has furnished no satisfactory reply to the conclusion suggested by these questions.

The principle involved in this case was decided by this court in the case of *Illinois Central R. R. Co.*v. *United States,*52 C. Cls. 53, *57,*in which this court, in substance, held as follows:

In the case of the shipment of an officer’s mount, which was the property of an officer required to be mounted, transferred from any Army station to the residence of the officer, in the absence of any statute authorizing the payment for the transportation of horses which are the property of officers of the Army and not the property of the United States, and in the absence of any provision in the appropriation acts, the Secretary of War can not, by the promulgation of a regulation, bind the Government for the payment of the transportation of horses which are the private property of Army officers.

While this case is decided on the foregoing conclusions, it is proper to call- attention to the fact that the facts contained in this case only show a shipment of private mounts of officers on Government bills of lading. There is nothing to show the circumstances of any particular shipment, whether from station to station, or otherwise. The case was verbally argued upon the basis that the shipments were from station to station.

■ It follows from the foregoing that the petition should be, and it is hereby, dismissed. It is so ordered.

Hat, *Judge;*DowNev, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.