
    EDMONIA SEMMES AND JAMES L. BARBOUR v. THE UNITED STATES.
    [No. 16600.
    Decided January 12, 1891.]
    
      On the Proofs.
    
    The Post-Office Department rents a building in the city of Washington as a post-office at $5,000 a year. After the expiration of the term the owners notify the Postmaster-General that the rent will he raised, to $8,000. The Department continues to use it as a post-office and to pay $5,000 a year.
    I. The statutes restricting expenditures to appropriations, and forbidding public officers to rent buildings in the District of Columbia until an appropriation be made therefor (Rev. Stat., §§ 3679, 3732, Act Zd March, 1877, 19 Stat.,L., 363,370), do not relate to implied contracts arising from the acts of public officers in the performance of their duties.
    II. The Postmaster-General being authorized by law to establish post-offices, may procure buildings for them, and while he can not bind the Government by an express contract, his action will render it liable to the owner for just compensation.
    
      HI. A notice from tile owner of a building to the Postmaster-General that if the Department continues to occupy a building after the expiration of a lease the rent will be $8,000 instead of $5,000 may not create an express contract, nor legally fix the rent at that amount, but will render the Government liable for the reasonable value of the occupancy, although it may exceed the rent of a previous lease under which it entered into possession.
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court:
    I. On the 27th day of June, 1879, the defendants made a lease with the plaintiffs for the basement, first and second stories, of the building known as the Seaton House, located on Louisiana avenue and O street, between Sixth and Seventh streets, northwest, city of Washington, District of Columbia; said lease was dated 25th day of September, 1879, its terms were for five years “from the date the same shall be occupied by the United States,” which was on the 15th day of November, 1879; the rent was paid quarterly at the agreed rate of $5,000 per annum up to November 15,1884. The lease is as follows:
    
      " This indenture, made on the twenty-fifth day of September, 1879, between James L. Barbour and Edmonia Semmes, of the city of Washington, District of Columbia, of the first part, and the United States of America, by David M. Key, Postmaster-General, Charles W. Jones, chairman of the Senate Joint Committee on Public Buildings and Grounds, and Philip Cook, chairman of the House Committee on Public Buildings and Grounds, commissioners, of the second part, witnesseth: That whereas, by joint resolution passed by the Congress of the United States and approved June 27th, 1879, the Postmaster-General, the chairmen of the Senate and House Committees on Public Buildings ánd Grounds, were constituted a Commission, with authority to lease such building in the city of Washing- * ton, District of Columbia, for the purpose of a city post-office, as in their judgment the good of the public service might require :
    “Provided, That said lease should be for a term not less than three, nor exceeding five years, at an annual rental not to exceed five thousand dollars ($5,000) per annum :
    “ Therefore, in pursuance of authority vested in said commis- ' sioners by the resolution aforesaid, they have entered into the following agreement with the parties of the first part, to wit:
    
      
      “ Tbe said parties of tbe first, part, in consideration of tbe rents and covenants herein contained on tbe part of tbe party of tbe second part, to be paid, kept, and performed, have granted, demised, and leased unto tbe said party of tbe second part, and by these pfesents do grant, demise, and lease unto the party of tbe second part tbe basement, first and second floors, of all those certain buildings on lot number seven (7) and parts of lots numbers four (4) and five (5), in square 459, in tbe city of Washington, District of Columbia, known as tbe Beaton House. Baid buildings containing 10,344 square feet of floor for surface to each story, independent of tbe vaults under tbe pavement in each front (which said vaults are included in this lease under tbe term basement), to be used as a city post-office, for a term of five years irorn tbe date tbe same shall be occupied by th'e United States in pursuance of this agreement. And the entire control over tbe leasing and subleasing of the remaining stories of said building, and each and every room or space within said building; and no such room or space to be rented or leased except upon tbe written approval of tbe postmaster at Washington, D. C., for tbe time being, and such approval if withdrawn at any time to render such lease or renting void, and entitle tbe United States to exclude the lease or tenant from- such room or space. The said pai ty of the second part yielding and paying therefor unto the said parties of tbe first part, or their assigns, a yearly rent of five thousand dollars ($5,000), in quarterly payments, to be made at tbe post-office in said city of Washington, D. C., aforesaid, on the last day of each and every quarter. And the said party of the second part shall and will well and truly pay, or cause to be paid, unto said parties of the first part, their agents, attorneys, representatives, or assigns, the said,rent above reserved, on the days herein provided for the payment thereof, according to the true intent and meaning of these presents. The said parties of the first part hereby agree, as a condition precedent to the obligatory force of this lease upon tbe party of the, second part, that they will make all the necessary repairs proper or suitable to render said buildings comfortable and tenantable for the purposes of a post-office, and will complete the same at a date not later than the 15th day of November.
    “ They further agree to expend the sum of two thousahd dollars ($2,000), or such part of said sum as may be necessary, to place in said buildings such fixtures and furnitures as may be necessary or suitable for a city post-office within the date above fixed. The repairs and fixtures and furniture herein provided for to be done and furnished to the satisfaction of the disbursing officer and superintendent of the post-office building in said city of Washington, D. C.
    
      “Tlie party of the second party agrees to take possession of said buildings so soon as the said repairs and fixtures are provided as aforesaid; and the said parties of the first part hereby further agree to pay all taxes and assessments of whatever character that may be assessed or imposed upon said premises during the term aforesaid, and that they will keep said buildings during said term in proper repair to the satisfaction of said postmaster, then and there at said post-office, at his reasonable request in writing, and in default thereof, or in case said buildings shall by fire or other casualty be rendered unfit for the use of the post office, the said party of the second part shall have the right 1o quit the same without uotice, and terminate said lease without waiving any legal remedies which the said party of the second part may otherwise have for breach of this covenant to repair. It is further agreed that at the expiration of said term of five years this lease may be renewed, at the option of the then Postín aster-Gen eral, for a period not to exceed five years; but in the event such loaseis not renewed, the,said party of the second part covenants and agrees, at the expiration of said term of five years, to peaceably and quietly leave said premises, and surrender the same to the parties of the first part, theit- heirs, representatives, or assigns.
    “ In witness whereof the parties of the first and second part have hereunto set their hands and affixed their seal on the day and year first above written.
    “James L. Barbour.
    “Edmonia Semmes.
    “D. M. Key,
    
      “Postmaster- General.
    
    “Chas. W. Jones,
    “ Chairman Committee of Public Buildings and Grounds,
    “ Senate.
    
    “Philip Cook,
    “ Chairman Committee on Public Buildings and Grounds,
    
    
      "House of Representatives.
    
    Since that time, November 15, 1884, the said defendants have continued to hold such portion of said premises, paying as part compensation for the use and occupancy of the same the sum of $5,000, up to June 30, 1888, since which time nothing has been paid. After the expiration of said lease the value of the rent of said premises was more than $5,000, as hereinafter shown. On said last-mentioned date Alexander EL. Semmes became a joint owner of said premises with said claimants.
    
      II. On the 30th day of November, 1886, the owners gave notice to the city postmaster, which he, on the same day transmitted to the Postmaster-General, which said notice reads as follows:
    “Washing-ton, D. 0., November 30, 1886.
    “ Frank Congee, Esq.,
    “ Postmaster, Washington, D. 0.
    
    “Dear Sie: .You are hereby notified that after the 31st day of December, 1886, the rent of the property now occupied by the present city post-office will be at the rate of $8,000 per annum.
    “ The rental of the property up to July last was at the rate of $5,000 per annum, or less than 5 per cent, gross on the investment, and since the 30th of June last no rent at all has been paid, and the owners of the property, after December 31,1886, are unwilling to any longer rent it for a less sum than $8,000 per annum.
    “ If the above terms are unsatisfactory you are hereby notified to vacate the piemises by the 31st day of December, 1886; a failure to do which on the part of the Department will be understood to be an acceptance of the terms above mentioned, namely, $8,000 per annum. The rent from June 30, 1886, to December 31, 1886, will be as heretofore, namely, $5,000 per annum.
    “(Signed) Respectfully,
    “A. H. Semmes,
    
      " Attorney for JE. Semmes and Jas. L. BarbourP
    
    III. The defendants refused to surrender said premises and continued to hold and use the same, but failed to pay the rental value thereof as herein stated.
    IY. Since the date of the lease (September, 1879), this portion of the city has been substantially improved, both by the character of the business, as well as by the erection of many costly and handsome structures. In the vicinity of the city post-office property has enhanced in value, and rents have advanced.
    Y. When the petitioners rented their property as aforesaid, they had the hope and expectation of selling the premises to the Government for the permanent location of the city post-office.
    YI. The rental value of the basement, first, and second stories, from January 1, 1887, to June 30,1888, was $12,000, and on account whereof $7,500 has been paid.
    
      YII. On or about November 15, 1879, defendants rented three rooms on the third floor for the Bail way Mail Service at the rate of $10 per month each, and paid therefor $90 quarterly up to July, 1888, which was the reasonable value of said rooms.
    January 1, 1883, the said defendants took possession and used two other rooms on the third floor of said building for the purpose of a mail-bag repair shop to July 1st, 1888. No rent has been paid for said rooms; said rooms were, during said time, worth at the rate of $25 per month.
    
      Mr. William E. Earle, for the claimants.
    
      Mr. Felix Brannigan (with whom v as Mr. Assistant Attorney-Ceneral Cotton) for the defendants:
    The express contract in this case was made on the 25th of September, 1879, for the lease of the parts of claimants’ buildings therein described, for a term of 5 years, at a rental of $5,000 per annum, and the term commenced ou November 15, 1879. At the time the contract was made it does not appear that there was an appropriation for the payment of the rent reserved; hence, in the absence of express authority from Congress, the contract would have been void as against the general prohibition of section 3079 of the Bevised Statutes and the special prohibitions of the acts of June 22, 1874, and March 3, 1877 (18 Stat. L., 133,144; 19 Stat. L.,363,370). The last-mentioned act forbids the making of any contract by officers or agents bf the Government “ for the rent of any building or part of any building, to be used for the purposes of the Government in tire District of Columbia, until an appropriation therefor shall have been made in terms by Congress.” It says, in addition to the words above quoted, that “ this clause [shall] be regarded as notice to all contractors or lessors of any such building or any part of building” (Bradley v. United States, 13 C. Gis. B., 166; affirmed by Supreme Court, 98 U. S. B., 104). Congress has ratified an occupation of claimants’ buildings which would otherwise have been unlawful, and at no time prior to the tiling of the petition in this suit (March 12, 1889) has that body admitted any measure of liability for rent of the buildings in excess of the rate of $5,000 per annum. We insist, therefore, that there can be no judgment in favor of the claimants in excess of that rate. The Bradley case, above cited, sustains this position.
    In the present suit the objection against an implied contract is strong, because before the occupation commenced Congress had given the claimants express notice, by the act of 1877, that no contract could be made for the use or occupation of any buildings ill Washington for the purposes of the Government until an appropriation therefor should be made in terms by Congress. The effect of that legislation was to incorporate this provision into any contract, express or implied, founded on the use or occupation of private buildings in Washington for the purposes of the Government.
    In the course of the argument in the case at bar, it was suggested by the court that the Bradley Case was decided before the jurisdiction of the Court of Claims had been extended to “claims founded upon the Constitution of the United States” (Act of March 3, 1887, 24 Stat. L., 505], and that by Article V of the Amendments it is provided that private property shall not be taken for public use without just compensation.
    Our answer to that suggestion is this: That the Court of Claims had jurisdiction of “all claims founded * * * upon any contract, expressed or implied, with the Government of the United States,” as well before the passage of the act of 1887 as thereafter, excepting only certain classes of claims expressly withheld pr removed from its jurisdiction. The language of section 1059 of the Bevised Statutes is broad enough to include jurisdiction of an implied contract founded on the provisions of Article Y; and if there could be a question as to the existence of such jurisdiction it would be settled in the affirmative by the provisions of section 1063, which authorizes the Executive .Departments to refer claims to this court “when any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States,” and provides that “no case shall be referred by any head of a Department unless it belongs to one of the several classes of cases which by reason of its subject-matter and character the said court might, under existing laws, take jurisdiction of on such voluntary action of the claimant.”
    Here we have an express recognition of the right of a claimant to commence a voluntary action in this court on a claim of the class of implied contracts involving just compensation for the appropriation of private property to public use. (Grant v. The United States, 1 O. 01s. B., 4L, 50; Russell vs. The United States, 5 0. 01s. R., 12L; 13 Wall., 623.) Yet this court held in the Bradley case that not only could the claimant not re-cot or on an express contract for the rent of his building, but it declined to give judgment as upon an implied contract for its use and occupation; and the'Supreme Court affirmed the judgment and left the claimant to his remedy before Congress.
    If, notwithstanding the prohibitions of Congress against making contracts for the rent of private buildings in Washington for the purposes of the Government in the absence of appropriations, officers or agents of the Government and parties dealing with them may create a liability for the reasonable rent of such buildings in the absence of an appropriation, made in terms for its fulfillment, it would seem that Congress has done a vain thing by forbidding its officers and agents to enter into such contracts and by notifying the contractors aud lessors of that express prohibition, if the statutes may be evaded on the theory of an implied contract.
    We think that Congress did not contemplate any such evasion of its will, nor that a liability which could not be maintained against the Government on an express contract for rent could be created by an implied contract for the same thing. (Filor’s Case, 7 C. Cls. It., 119; 9 Wall., 45; Sprott’s Case, 10 0. Ols. R., 1; 20 Wall., 459.)
    Ror do we think that the Constitution would be violated by the denial to the claimants in this suit of any compensation for the appropriation of their property to public use. It can not be disputed that Congress may enact rules respecting the appropriation of private property, nor, when such rules are violated by a public officer or agent, that the officer or agent exceeds his powers, and that he and the parties dealing with him become wrongdoers.
    Congress is the judge of the necessity of providing a building for the use of the post office in this city, and when it has expressly prohibited executive officers and agents from entering into a contract for such a building in the absence of an appropriation to meet the liability of rent, the law of necessity cannot be invoked to sustain what the statute has prohibited.
    In cases of this kind there is no hardship imposed on claimants which has not been incurred by their own voluntary action or neglect, hence there can be no injustice in measuring their relief at the rate which has been deemed just and proper by the tribunal whose rules they have violated. Their case involves no such hardship as that which has been imposed by Congress upon claimants in loyal States whose real property was appropriated under the most urgent necessity for the use of the Army during the late rebellion. Unquestionably there was an implied contract for the payment of just compensation to such claimants, yet Congress, by the act of July 4, 1864, took their claims out of the jurisdiction of this court and reserved them to its own jurisdiction. (Grant v. United States, 1 C. Ols. B. 41; Ciarle v. United States, ib., 145; Bogert v. United States, 2 O. Ols. B., 159; Ayres v. United States, 3 C. Ols. B., 1.)
    In respect to such claims there was no law forbidding the express or implied contracts on which they were founded when they accrued, and an appropriation did exist for their payment when the obligations were incurred.
    Now, we submit that, even though there be an implied contract in the case at bar, the jurisdiction of the claim founded upon it has been as effectually removed' from this court by the prohibitory legislation above cited as its former jurisdiction of claims “growing out of the destruction or appropriation of or damage to property by the Army or Navy engaged »in the suppression of the rebellion ” (Bev. Stats., sec. 1059) has been taken away by the act of July 4, 1864.
    In point of equity what comparison can there be between the claim at bar and the claim of the church at Sharpsburgh, which was rejected by this court at its last term [the building had been occupied as a hospital for our wounded soldiers after the battle of Antietam and damaged by the appropriation to this use], or to the claim of a loyal farmer in Maryland or Pennsylvania whose farm was occupied as a military camp during the whole period of the rebellion by our troops ? In justice and equity there can be no comparison; yet no one will assert that this court has had jurisdiction of such war claims since July 4,1864, as of claims founded on an implied contract for just compensation under the Constitution of the United States. (Corbett v. United States, 1 C. Cls. B., 139.)
    We consider that whatever may have been intended by the act of March 3,1887, in respect of claims founded upon the Constitution, Congress did nob mean to confer jurisdiction here of claims founded on an implied contract in a case where no liability could have been created by an unauthorized express contract. (Pitcher v. United States, 1 O. Cls. B., 7.)
    Indeed, we can see no difference in principle between the case at bar and one in which the Government has had the benefit of a patented invention with the consent of its owner where a Government officer or agent appropriated it to the public use without authority of law. In that class of cases there would seem to be an appropriation of private property to public use. Nevertheless it has always been held that the claims of the owners of the patent as against the United States were founded in tort and hence excluded from the jurisdiction of this court. {Pitcher’s Case, supra, to Palmer v. United States, 20 G. 01s. B., 432; 128 U. S., 202.)
    However strongly the case at bar may appeal to our sense of justice, we cannot be authorized to fritter away the prohibitions of Congress by strained construction and create supposed exceptions which the plain words of the law exclude. It is a rule of construction that even in respect of penal statutes the plainly expressed intention of the legislature can nob be allowed to be defeated by construction or interpretation, and that courts are bound to give full effect to their provisions without regard tQ the hardship of particular cases. Therefore we insist that the acts of 1874 and 1877 above cited should not be defeated by a construction based on aD evasion of their prohibitions and their expressed intention to guard against the incurring of unauthorized liabilities on the part of the Government.
   Weldon, J.,

delivered the opinion of the court.

This is an action, to recover for the use of certain premises in the city of Washington, occupied by the defendant as the city post-office.

. On the 25th of September, 1879, the Postmaster-General, the chairman of Committee of Public Buildings and Grounds of the Senate, the chairman of Committee of Public Buildings and Grounds of the House of Bepreseutatives, and the plaintiffs exécuted a lease for said premises, as set forth in finding one.

By the stipulations of the lease the term commenced in fact od the 15th day of November, 1879, and continued for the space of five years at an annual rental of five thousand dollars. The lease provides for the occupation upon the part of the defendants of the basement, first, and second floors of tbe premises. During the term of said lease the defendants occupied three rooms in the third story at an agreed rental of $90 a quarter, which rent was paid to June 30, 1888. Possession of the premises was taken on the 15th of November, 1S79, and the five years provided for in the lease expired on the 15th of November, 1884; but the defendants continued in the possession until the bringing of this suit.

The defendants have paid for the leased property at the rate of $5,000 per annum until the first of July, 1888, and also for the three rooms occupied by them in the third story. On Nov. 30th, 1886, the claimants notified the postmaster of the city of Washington, that after the 31st-day of December, 1886, the rent of the property would be at the rate of $8,000 per an-num, as shown by finding two. Since the date of the lease in 1879, rents in the city of Washington in that vicinity have materially advanced, and from Jany. 1st, 1887, to the 30th day of June, 1888, the findings show that the property embraced in the lease was worth an annual rental of $8,000.

On January 1,1883, the defendants took possession of two other rooms, in the third story of the building occupied by the post-office, and continued to use them from that time until the 30th of June, 1888, at which time, the said property became the common property of claimants and Alexander H. Semmes. The said rooms during said time were worth the sum of $25 per month. The contention of law relates to two charges. As to the rental value of the demised property after the first day of January, 1887, to the 30th of June, 1888, and the unpaid rent of the two rooms in the third story.

It is insisted by the counsel for the defendants that for the demised premises for said time there can be no recovery in this proceeding. To sustain that theory our attention is called to the following provisions of statutes :

“ It shall not be lawful for any department of the Government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the Government in any contract for the future payment of money in excess of such appropriations. {Rev. Stats., § 3679.)
“ No contract or purchase shall hereafter be made, unless the same be authorized by law or be under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for elotiling', subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year. (Rev. Stat., § 3732.)
“ Hereafter no contract shall be made for the rent of any building or part of any building, to be used for the purposes of the Government in the District of Columbia, until an appropriation therefor shall have been made in terms by Congress, and that this clause shall be regarded as notice to all contractors or lessors of any such building or any part of building.” (Act of 1877, March 3, ch. 106,19 Stat. L., 363,370, and 1 Supplement to Rev. Stat., p. 289.)

These provisions undoubtedly apply to express contracts, and prohibit the making of such contracts except as therein provided. They have no application to that class of implied contracts which arise from the acts of public officers, in the performance of their duties, in carrying on the business of the Government intrusted to them by law in their respective spheres.

The Postmaster-General is required by statutes “To superintend generally the business of the Department, and to execute all laws relative to the postal service ” (Rev. Stat., § 396, par. 9.) Again, he is required to “ establish post-offices at all such places or post-roads established by law as he may deem expedient.” (Rev. Stat., § 3829.)

It can not be doubted that the Postmaster-General has authority to establish a post-office in the city of Washington, and to provide a place for conducting the business of the office.

While no contract that he can make for the use of a building would be binding on the Government, as to the time of occupying or price to be paid, or any other matters whatever, he may undoubtedly take possession of any building, suitable and necessary for the exigencies of the office, and leave the owner to his remedy in the courts for compensation on an implied assumpsit, which would arise under the Constitution whenever private property as such is taken for public use.

The Bradley Case (13 C. Cls., R. 166; 98 U. S., 104), affirmed on appeal relied upon by defendants, is wholly unlike the present one. In that case there was a lease made for three years, containing the following clause:

“ And it is hereby mutually understood and agreed, by and between the parties hereto, that this lease is made subject to an appropriation by Congress for the payment of tbe rental herein stipulated for, and that no payment shall be made to said party of the first part on account of such rental until such appropriation shall be available, and that as soon as practicable alter such appropriation shall become available the arrears of the rent then due shall be paid in full, and thereafter payment shall be made at the times and in the manner hereinbefore stipulated.”

Congress appropriated money to make payment for the first two years, in conformity with the terms of the lease, but without reference thereto. More than three months before the end of the second year Congress appropriated a less sum for the nest year’s rent, and directed the Postmaster-General to deliver up the possession of the premises at the end of the second year to the lessor upon demand. The lessor never did demand the premises, and it was held that he accepted the terms offered by Congress.

Since the first day of January, 1887 (that being the time from which the claimants date their right of recovery) the defendants have held the leased property against the demand of the claimants without any express contract as to tenure or compensation. The Postmaster-General has not violated any statute, because he has not attempted, since the execution of the contract made in September, 1879, to lease any the premises for the use of and occupation of the Department. We do not hold that the failure to vacate the premises as demanded in the communication of November 30, 1886, created an express contract and subjected the defendants to the payment of the sum of $8,000 from the first of January, 1887; but we find that the rental value of the premises, from that time until the 30th of June, 1888, was worth at the rate of $8,000 per annum.

It is shown in the seventh finding that the defendants occupied two rooms in the third story, with a rental of $25 per month; that such oecujration continued from the 1st day of January, A. D. 1883, to the 30th of June, 1888, when Alexander H. Semmes acquired an interest in the property. For such use and occupation during said time, excluding what is embraced in the statute of limitations, the rent amounts to the sum of $1,512, which, being added to the amount due for the use and occupation of the demised premises, amounts to the sum of $6,012; and for that amount a judgment is ordered.

Dayxs, J., did not sit in this case.  