#### BALTIMORE & OHIO RAILROAD COMPANY v. THE UNITED STATES.1

[No. 39-A.

Decided March 6, 1922.]

*On the Proofs.*

*Dent Act; informal contract; authority to malee.*— Where a railroad company converts and fits up an old transfer shed for temporary quarters for United States troops guarding its property and that of others, without an express contract between authorized parties, and such troops occupy said quarters for several months, the company can not maintain an action under the Dent Act for the cost of converting and fitting up said shed for quarters.

*Permanent liármeles; approval of Secretary of War.*— The construction of permanent barracks for United States troops requiring the expenditure of more than $5,000 must have the approval of the Secretary of War.

*The Reporter''s*statement of the case:

*Messrs. John F. MeCarron*and *George E. Hamilton*for the plaintiff.

*Mr. Crowley*Wentworth, with whom was- *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts, of the case as found by the court:

I. The plaintiff, the Baltimore & Ohio Railroad Company, is, and was during the transactions hereinafter described, a corporation duly incorporated under the laws of the State of Maryland, and was the owner of a system of railroads engaged in interstate commerce.

II. About September 1, 1917, Lieut. Col. Amos W. Kim-ball, was ordered for duty at Baltimore, Md., to establish an expeditionary depot and to take charge of all supplies arriving at that place for transportation to New York and other ports for shipment to Europe. In working out his plans he visited Canton, a suburb of Baltimore, on the Chesapeake Bay, and succeeded in securing from the Canton Railroad Company an option on the largest pier at that place, known as Pier No. 3. He afterwards visited Mr. Willard, the president of the Baltimore & Ohio Railroad *141Company, who promised to lease to the Government Pier No. 6, which was then under construction, for $150,000 a year. The deal was closed about September 15, 1917, but the lease was not executed until October, 1917, after which the pier was rushed to completion. Pier No. 6 was located at Locust Point, another suburb of Baltimore on the Chesapeake Bay, across the river from Canton. The Baltimore &. Ohio Bailroad Company owned eight piers at Locust Point, numbered from 1 to 9, No. 7 never having been constructed. These piers and the property on and around them were guarded at that time by civilian employees of the railroad companies.

III. On October 30, 1917, Pier No. 9 was destroyed and Pier No. 8 damaged, and much other property belonging to the Baltimore & Ohio Bailroad Company was destroyed by a fire supposed to be of incendiary origin. Pier No. 9 was afterwards rebuilt and completed and Pier No. 8. was repaired early in January, 1918, and both piers were leased by the Government prior to January 10, 1918.

On October 31,. 1917, Col. Kimball reported the occurrence to Washington officially by telephone, and requested that a guard be sent to Locust Point immediately. Shortly afterwards, on the same day, he visited Mr. Thompson, the acting president of the Baltimore & Ohio Bailroad Company, and told him of his request for a military guard and learned that Mr. Willard, the president of the company, who was at that time head of the Committee on National Defense, had already requested the Secretary of War to furnish a guard. Mr. Thompson offered to supply a wrecking train, with a kitchen, plenty of bunks for the men, and a car for the officers, as quarters for the guard.

IY. On the night of November 3, 1917, Maj. Charles L. Lanham, of the Coast Artillery Corps, stationed at Fort Howard, and commanding the coast defense of Baltimore, received a telephone message from the commander of the Eastern Department to send at once two companies of Coast Artillery of the Maryland National Guard, which had been mustered into the United States service and was then at Fort Howard, to Baltimore, one company to Locust Point and one to Canton, and to get in touch with Col. Amos W. Kimball, quartermaster of the expeditionary depot at Bal*142timore, who would advise as to the details of their duties. The order was for the troops to have sufficient tentage, and it was carried. He was informed by Col. Kimball that officials of the Baltimore & Ohio Railroad Company had arranged to quarter the guard on a construction train at Locust Point. One of the companies was dispatched about midnight of the same day to Locust Point. The next day Maj. Carrol Edgar, Coast Artillery Corps, who was in command of the First Battalion of Coast Artillery of the Maryland National Guard, was directed by Maj. Lanbam to proceed with the other company to Locust Point to take command of the detachment and to advise with Col. Kimball as to the proper distribution of the troops for guarding the piers at Locust Point and Canton.

V. The troops were quartered in the wrecking train that had been placed in Baltimore & Ohio Railroad yard at Locust Point on November 3, 1917. After a conference with Col. Kimball and Maj. Brady, executive officer of the ex"peditionary depot, Maj. Edgar arranged the guard, reduced-by sickness and absence to 150 men, so that a part would guard the pier at Canton and a part the piers and property at Locust Point. The troops were quartered at Locust Point and the guard for Canton was sent over the river daily. The primaiy duty of the troops was to protect Government property and the piers leased by the Government, but generally to guard the whole water front, especially Pier No. 6, and to send patrols at various times throughout the railroad yard at Locust Point to guard cars containing property that might be used by the Government, and generally to guard all the piers and all the property at that place. The company also maintained civilian guards for its own property and a fire department for all of its property, whether leased or not.

VI. The detachment was quartered on the wrecking train until November 9, 1917, when use of the train became necessary for some railroad purpose and it was moved away bjr the company. The troops then moved into tents.

The weather during the fall and winter of 1917-18 was very cold and inclement. The soldiers of the guard were for the most part Baltimoreans and their parents and other *143i’elatives visited them frequently. There was some sidoiess among the troops. Their relatives complained to the railroad officials of The hardships the soldiers had to undergo living in tents during such cold weather. The railroad officials were anxious to make them as comfortable as possible.

There was a transfer shed and platform at Locust Point near Pier No. 6 on land belonging to the company and not leased to the Government, built by the Baltimore & Ohio Bailroad Company about 30 years before, but which had not been used for several years. It was in sound condition, however. The agent of the company in charge at Locust Point was Mr. William T. Moore, who was also a member of an advisory committee, his duty being to confer with Col. Kimball on railroad matters, and Mr. Moore and Col. Kimball met often in conference on such subjects. On a number of occasions when the weather was very cold, Col. Kimball had remarked that the troops ought to have better quarters. Mr. Moore suggested fitting up the old unused transfer shed near Pier No. 6, and Col. Kim-ball agreed that it would be a fine thing to make the men as comfortable as possible. Nothing was said about compensation. Col. Kimball did not ask that this work be done.

Mr. Moore afterwards saw the vice president of the company, Mr. Davis, about fitting up the transfer shed for quarters, who referred him to Mr. Begien, the general manager of the Baltimore & Ohio eastern lines. He saw Mr. Begien about the matter, who, after a short talk with the chief engineer, directed Mr. Biley, the chief draftsman in the chief engineer’s office, to accompany Mr. Moore to Locust Point to look over the adaptability of the transfer shed for barracks. They visited the place together, and the next day Mi*. Biley visited the shed again and took some measurements, made some pencil sketches, and after-Avards got up blue-print plans for remodeling the shed for barracks. The plans provided for inclosing the north end and the east side of the shed and placing an extension on the west side with a lean-to roof, which more than doubled the capacity of the original shed, and a room for the officers to be built on the south end of the shed and extension.

*144The building was partitioned off into a mess hall, kitchen, guard room, sleeping room with bunks for the men, and officers’ room, and suitable windows and doors were placed. The building was fitted with lights, steam heat, and water, seven toilets, nine basins, four shower baths, and a wash trough.

The blue print of the plans for changing the transfer shed into temporary barracks was shown to Maj. Edgar to learn from him whether or not the plans, in his opinion, would satisfactorily' house the troops. He did not undertake to approve the plans, but did, however, suggest to Mr. Kiley, who brought the plans to him, the amount of the facilities that would be required. This was about December 1, 1917. Nothing was said to Maj. Edgar about expense- or compensation for the work.

VII. The construction of barracks out of the old transfer shed began in the early part of December, 1917, and was completed on or about December 22, 1917, on which date the first company of the guard moved in, and on December 26, 1917, the second company moved in. The troops occupied this building until May, 1919. The piers were returned to the company in June, 1919.

No Government officials connected with the work at Locust Point in 1917 had any authority to order the construction of the temporary barracks in question, and no orders were given by them, or any of them, for the construction of such building. The subject of compensation was not mentioned in any conversations between Army officers and railroad officials until over a week after the building had been completed, when Mr. Moore told Maj. Edgar-that he thought the Government ought to reimburse him for some of his trouble in the matter.

VTII. On January 10, 1918, Col. Kimball addressed a request to the Quartermaster General for four additional companies of 105 men each to protect the vast amount of Government property stored on the piers and in the warehouses at Locust Point and Canton and en route to that port, and for immediate authority to construct two barrack buildings. with proper facilities to accommodate three companies of *145105 men each, one at Locust Point and one at Canton, of the type recently constructed at the various cantonments.

On February 4, 1918, the first indorsement on said request by the Acting Quartermaster General, addressed to The Adjutant General, requested authority for the construction of said barracks if the additional guard should be furnished.

On February 8, 1918, the third indorsement on said request was made by The Adjutant General advising that the request for guards should be made to the commanding general of the Eastern Department, and stating that “ It is not the policy of the War Department to build a set of barracks for each and every guard. Companies will be quartered in tents where buildings are not available.”

IX. After the barracks made from the old transfer shed were evacuated by the two companies of Coast Artillery, the bunks, toilets, and plumbing were removed, and later part of the building was used by the Dominick, Scandinavian, and Oriole lines of steamships for different purposes, and the collector of internal revenue was also allowed to establish a branch office in the building without paying-rent. The building is still standing and partly occupied.

The Canton Bailroad Company at a cost of about $5,000 provided comfortable accommodations for the guard sent over daily from Locust Point to protect Government and railroad property at Canton and has presented no claim therefor.

X. The plaintiff, on June 27, 1919, presented its first claim for construction of the temporary barracks at Locust Point, to the War Department, under the provisions of the act of March 2, 1919, 40 Stat. 1272, commonly known as the “ Dent Act,” for $44,678.98. It was amended on March 11, 1920, by reducing the amount claimed to $27,117.25.

The heading of the account rendered reads: “United States Government — War Department to The Baltimore and Ohio Bailroad — Federal Administration, Drs. (as their interests may appear), for labor and material furnished in connection with construction and maintenance of barracks adjacent to Pier No. 6, Locust Point, Baltimore, Maryland, for housing the armed guard of the U. S. Quartermaster *146Corps, used in patrolling the water front and protecting Government property in that vicinity.”

Part of the heading of the account quoted above has been omitted from the account attached to plaintiff’s petition as Exhibit No. 1; the balance of the account is the same as that presented to the board, and is made part of this finding by reference thereto.

The plaintiff has submitted no evidence to the court to establish the different items of the claim for constructing or restoring the temporary barracks.

On June 7, 1920, the War Department Claims Board, Transportation Service, rendered its decision, which consisted of findings of fact and the following conclusion:

“ *Jurisdiction.*— That the Claims Board, Transportation Service, has jurisdiction of this claim.

“ *Failure of yroof.*— That claimants have failed to present sufficient evidence to establish any agreement, either express or implied, obligating the United States to pay to claimants, or to either of them, the amount of this claim, or any portion thereof, or any other or different sum whatever.

“ *Reconimendaüon.*— The board recommends that this claim, and each and every item thereof, be disallowed.”

On June 17, 1920, the plaintiff appealed to the appeal section of the War Department Claims Board, which, on July 21, 1920, affirmed the decision of the Claims Board.

On August 9,1920, the plaintiff appealed to the Secretary of War, who, on October 29, 1920, rendered the following decision:

“ Upon consideration of the record in the matter, the decision of the Board of Contract Adjustment is hereby affirmed in accordance with the accompanying recommendation of the special advisers.”

1

 Appealed.

Oampkeix, *Chief*Justice,

delivered the opinion of the court:

The plaintiff, Baltimore & Ohio Railroad Company, sues for a large sum alleged to have been laid out and expended in the construction of barracks for United States troops at Locust Point, Md.

The claim was first presented to the War Department Claims Board under what is known as the Dent Act. 40 *147Stat. 1272, in the names of two parties, “ as their interests may appear,” but it comes to this court upon the petition of the railroad company alone. The board held that no contract, express or implied, was shown by the proof; this ruling was sustained by the appeal section of the board, and upon appeal taken to the Secretary of War the decision was affirmed. The only evidence adduced is that which was before the board, it having been brought into this record by stipulation of the parties.

The Dent Act empowered the Secretary of War to “ adjust, p;ijr. or discharge any agreement, express or implied, * * * entered into in good faith, * * * by any officer or agent, acting under his authority, direction, or instruction, or that of the President, with any person * * * for equipment or supplies or for service or for facilities, or other purposes connected with the prosecution of the' Avar when such agreement has been performed, in whole or in part, or expenditures have been made * * * ■ upon faith of the same by any such person * * * , and such agreement has not been executed in the manner prescribed by law.” The act contains several provisos not material here. By its terms it deals with agreements, express or implied, which so far as affects the Government shall have been entered into by a duly authorized officer or agent, and referring to agreements, express or implied, “ entered into in good faith,” between authorized persons, there should appear the essential element of “ a meeting of the minds.” *Lord & Hewlett*case, 217 U. S. 340 (43 C. Cls. 282). It is, of course, necessary that the claim itself be established by proof. The plaintiff does not claim under an express contract, but alleged that an implied agremeent arose out of certain negotiations in December, 1917, between its own agent, Mr. Moore, and Col. Kimball, who is alleged to haAre been “ an officer or agent acting under the authority, direction, or instruction of the Secretary of War” for the conversion of a transfer shed belonging to plaintiff into barracks and equipping the same for the accommodation of troops of the United States, and the building of an additional structure for the accommodation of officers. The amount claimed is $27,117.25.

*148The railroad company had leased a pier to the Government at Locust Point for $150,000 per annum, and owned a number of piers there in addition, some six or eight. Vast stores were assembled in and about these piers. On the night of October 30, 1917, a fire, supposed to have been of incendiary origin, destroyed one of the. company’s piers and greatly damaged another. Lieut. Col. Kimball, Quartermaster Corps, in charge of expeditionary depot at Baltimore, communicated the fact the next morning to the War Department and requested that troops be dispatched immediately to guard the Government’s property at Locust Point. He told the acting president of the company of this request, and learned from him that Mr. Willard, president of the company, who was head of the Committee of National Defense, had made a similar request of the Secretary of War. Mr. Thompson, in that ■ conversation, offered the use of a train in the yards at Locust Point which he said was suitable for housing the troops. Two companies of troops from Camp Howard were ordered to Locust Point. They were part of the Maryland National Guard that had been mustered into service and were composed largely, if not entirely, of men whose local residences were at Baltimore. The order directed that tentage be carried with the troops, and it was carried. When the companies arrived at Locust Point, one on November 3 and the other November 4, they were quartered in the cars of the wrecking train of which Mr. Thompson had spoken to Col. Kimball, and remained there until November 9, when the train was moved away and the troops went into the tents. These troops were intended to guard property at Locust Point as well as at Canton across the river, and they protected the property of the Government and the railroad company as well. The weather was very cold and severe during the winter of 1917. Some of the soldiers became sick, their relatives and friends complained repeatedly to officials of the company of the hardships the troops had to undergo in tents, and the want of accommodations. The troops had been in tents several weeks before the alleged negotiations between Mr. Moore and Col. Kimball, and it was during the period of the com*149plaints above mentioned that the agreement is alleged to have been made. Mr. Moore suggested that a transfer shed belonging to the company could be converted into barracks. Col. Kimball approved the suggestion, but Mr. Moore was not authorized by the company to make the necessary alterations, nor was Col. Kimball authorized to incur the expense on the part of the Government. Mr. Moore took up the matter with his superiors, and they issued the necessary orders to convert the shed into living quarters and it was done. The shed was on the company’s land and its property. At no time was there a statement or suggestion that the expense of the structure was to be charged against the Government. What the cost would be was not submitted to Col. Kimball. He positively denies that he incurred or authorized the expense. He was not authorized, instructed, or directed by the Secretary of War to construct temporary barracks. The War Department was not communicated with on the subject. The statutes have regulated the expenditures for permanent barracks and buildings. See Rev. Stat., sec. 1136; act February 27, 1877, 19 Stat. 242; act February 27, 1893, 27 Stat. 484; act June 25, 1910, 36 Stat. 721. The Army appropriation act of May 12, 1917, 40 Stat. 74, contains a provision that “ hereafter no expenditure exceeding $5,000 shall be made upon any building or military post or grounds, about the same, without the approval of the Secretary of War, upon detailed estimates, submitted to him.” And if it may be said that these statutes do not in terms affect a structure such as that in question here, they at least indicate the policy that authority for expenditures shall be vested in a responsible head, who, generally speaking, is the Secretary of War. Assuming, however, there may be cases of exigency when an officer, to properly care for the troops under his command, may incur unusual, or at the time unauthorized expenses, that can not be the case where there is plenty of time before incurring the expense to ask for and to receive the necessary authority. At all times of the day communication between Baltimore and Washington was open; the troops remained in tents from November 9 to December 22; the president of the railroad company *150was at the head of one of the most important war boards, and could readily have conferred with the War Department.

In these circumstances there was no reason why authoiity to incur the unusual expenditure should not have been sought at Washington; there was no present exigency justifying the building of barracks without *fix•st*definitely ascertaining the question of liability or seeking instructions with regard to it. The limited authority of an officer is a. matter that all persons dealing with him must take notice of, and there is nothing in the occui'rences that took place in this case that relieved the plaintiff from the duty to act advisedly in making outlays if it expected the Government to make reimbursement therefor. The evidence falls short of showing an agreement that would bind the Government to pay for altering or improving and adding to a structure on the company’s land that remained the company’s property after the alterations were made, and yet remains its property, even though it was used for a period to house United States troops. The duties of these troops involved in part the guarding of the company’s valuable properties.

The foregoing considerations are sufficient to dispose of the case, but there is an implication in plaintiff’s brief that tends to an erroneous conclusion on the question of proof. The implication is that because the Government does not “ disapprove ” the claim the plaintiff is entitled to judgment. It would seem from the record before the Claims Board that the matter of proof as to the amount or items of the claim itself, was passed over pending a determination of legal liability. The general traverse puts in issue all material elements in a plaintiff’s case in this court, and such a practice as that suggested before the board does not obtain here.

The petition should be dismissed, and it is so ordered.

Graham, *Judge;*Hat, *Judge;*Dowhey, *Judge;*and Booth, Judge, concur.