
    CALEB W. SPOFFORD v. THE UNITED STATES.
    [No. 16824.
    Decided June 14, 1897.]
    
      On the Proofs.
    
    Congress authorize the National Board of Health to procure offices in the city of Washington at a rental not to exceed the sum of $1,800 per annum. The hoard rents a building at a monthly rent of $100, no term being prescribed. For some years Congress appropriate specifically for the rent. During one year they appropriate only for nine months. In 1885 they appropriate generally ‘' for salaries and expenses,” and the rent is paid out of that appropriation. In 1886 a general appropriation is made for the month of July out of which the rent is paid. For August and September, 1886, no appropriation is made. No notice of an intention to vacate the building is given till the 31st of August, 1886. The law in the District of Columbia requires that such a tenancy be terminated by one month’s notice.
    I.When Congress authorize the renting of property in a designated place it must be assumed, in the absence of provisions to the contrary, that the intent is that the property be acquired for the use and occupation of the Government in accordance with the law and custom of the place.
    II.It is well settled that when the Government goes into the real-estate market to acquire property by lease with no statutory restrictions upon its agents, it is bound by the law of landlord and tenant.
    III. The Government can terminate a lease of property m the District of Columbia only in the manner prescribed by local law — by giving one month’s notice, and removing from the premises.
    IV. Notice to terminate a tenancy may come from Congress, the principal, as well as from an executive board, the agent.
    V.Where Congress expressly authorize an executive board to rent offices with no restriction except as to the amount of rent to be paid, a failure to appropriate is not notice.
    VI.A mere failure to appropriate does not affect a legal right, and a trivial, exceptional failure to appropriate evinces no purposes on the part of Congress.
    VII.Where members of an executive board advance a portion of the rent on the failure of an appropriation, it is res inter alios acta and no defense in a suit against the Government,
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. Under the act of July 1,1879, entitled «An act to provide office rooms for the National Board of Health and for the publication of its reports and papers, and for other purposes” (21 Stat. L., 46), section 1, “that the National Board of Health is hereby authorized and empowered to procure suitable and sufficient offices in the city of Washington for the transaction of its business, at a rental not to exceed the sum of $1,800 per annum,” said board, in October, 1879, by verbal arrangement, leased from Caleb W. Spofford, the claimant in this case, the building known as No. 1410 G street NW., in the city of Washington, as its offices, and continued to occupy the same as its offices till the 31st day of August, 1886. The rent then agreed upon was $100 a month; no term was specified.
    II. Said board, out of the appropriations made by Congress, paid rent to the claimant at the rate of one hundred dollars ($100) a month to the 31st day of March, 1885. For the months of April, May, and June, 1885, no rent was paid by the United States, but the same was advanced by private parties out of their own funds, for whose use and reimbursement the claimant sues. From and after the 1st day of July, 1885, rent was paid him by the United States out of the appropriation for the National Board of Health to the 31st day of July, 1886, at the rate of $115 a month. No rent subsequent to that date has been paid him from any source.
    III. No notice of intention to vacate said building was given till the 31st day of August, 1886, when the secretary of said board, after taking all Government property out of the building, sent the keys thereof to the hotel known as the Biggs House, of which the claimant was proprietor, and they were left on the counter with the clerk in charge. The claimant, upon receiving them, sent them back to the secretary of the board at his residence, and the secretary upon receiving them again returned them to the claimant, who again sent them back to the secretary of the board, by whom they were retained till the last day of September, or a few days later, when the claimant sent for and obtained them.
    Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to recover judgment in the sum of $530.
    
      Mr. George A. King for the claimant:
    The payment was by strangers to the United States, and under familiar principles constituted no discharge of the debt. {Smith v. Gwines, 93 U. S., 341, 344.) The parties who paid the money are in equity entitled to it, and the claimant brings the suit for their use, and, should he fail to pay it to them, they can recover in equity, as in the case of Hobbs v. McLean (117 U. S., 567).
    For the month of August, 1886, it is clear there can be no possibility of defense to this action. The Government was in actual occupation of the building, and the claimant has never received any rent from any source. At the close of the month he declined to receive the keys and twice returned them to the secretary of the board, who retained them till the close of the month of September, when the claimant sent for and received them.
    By the law of the District of Columbia all leases, without express agreement as to duration, constitute a tenant at sufferance, terminable by notice in writing to quit of thirty days. (Rev. Stat. D. C., §§ 680, 681.) This subject of a Government lease of real property in the District of Columbia was fully considered by this court in Semmes v. United States (14 C. Cls. R., 493).
    The question of appropriations can not be raised in this case to control its determination. The original entry of the National Board of Health upon the premises was in virtue of the most ample statutory authority, and the occupation was continuous to the 31st of August, 1886. Until that date the Government neither vacated nor offered to vacate. Under these circumstances, the Government would be liable, even in the absence of express statutory authority, for the occupation. (Rives v. United States, 28 C. Cls. R., 249.)
    The case of Huniooody v. United States (22 O. Cls. R., 269; 23 C. Cls. R., 82; 143 U. S., 578), cited on behalf of the United States, can not control the disposition of the present case.
    In the present case the entry upon the real estate was under ample statutory authority. Its continuance was voluntary oniy on the side of the Government. The claimant could not, as lessor, retake possession of his property, by either personal reentry or legal process. He had to wait till the Government gave it up to him. Until then he was powerless in the matter.
    Rules, therefore, which might very properly prevail in the case of an officer who is at liberty to lay down his work at any time, and who is not entitled, either by common or statutory law, to notice that his services are no longer desired, can not with any justice be applied to the lessor of real property, who lias parted with the possession of his land under the protection not only of a statute authorizing the lease, but also of another statute fixing the period of notice to be given on either side, without which notice the landlord may neither eject the tenant nor be deprived of rent by the tenant undertaking on his side summarily to terminate the lease by removing from the property.
    
      Mr. George JT. Gorman (with whom was Mr. Assistant Attorney- General Dodge) for the defendants:
    I submit that the petition in this case must be dismissed:
    1. Every legal issue here presented has already been presented to this court and the Supreme Court, and by both tribunals decided in favor of the Government and adverse to the contention of the claimant. It is therefore res judicata et est pro veritate accipitur. The matter first came up in Dunwoody v The United States (22 0. 01s. B.,269), wherein, the court held it to be the intention of the Congress to place this board, its salary list, and all its expenses within the limit of the annual appropriation bills; that the annual appropriation bills were the sole measure of the Government’s responsibility for the expenses and salaries of this board, and that no recovery could be had beyond the sum so appropriated.
    The same case again came up and was elaborately .argued on a motion for a new trial for errors of law which were alleged. (23 C. 01s. It., 82.) The court again considered the case at length (opinion by Davis, J.), and reaffirmed its former decision, overruling the motion for a new trial, and reaffirming the doctrine that no recovery could be had beyond the sum appropriated, for any salary or expense of the board. The case then went to the Supreme Court on claimant’s appeal (143 U. S., 578), where it was affirmed on the same grounds, the Supreme Court holding that this board had no authority to incur any liability upon the part of the Government for salaries or any other expenses in excess of the amounts appropriated by Congress for such purposes.
    Even if we admit, for the sake of argument, that this rent was due from the United States to Spofford, and that the United States would have been liable in an action by Spofford, the voluntary payment of it by the member of the board extinguished the debt to Spofford, but, on the other hand, did not create a debt in their favor from the Government.
    
      If one wbo is not a surety nor bound in any way pays a debt due from another without that other’s express request, he can not recover from the other unless there be a subsequent ratification and promise in fact, which the law will not imply. Of course, if there is a subsequent ratification the law will imply the previous request; but the law will never imply (for a volunteer) both the previous request and the subsequent promise. The reason is that the debtor shall not be compelled .to accept another party as his creditor. He may have partial defenses or other reasons for wishing to arrange the debt with him to whom it Avas due and not with another; and if another comes in without request and pays the debt the debtor is not obliged to substitute him in the place of his original creditor unless he chooses. (1 Parsons Cont., 8 ed., 489.)
    The cases of Smith & Gaines (93 U. S., 341) and Hobbs (& McLean (117 U. S., 567), cited in claimant’s brief, have no bearing whatever on the case and are utterly foreign to the points for Avhich they are cited.
    And, under the decisions of this court and the Supreme Court in the Dunwoody cases, it is equally clear that Spofford can not recover for the rent of August and September, 1886. This rent was a part of the expenses of the board, and those decisions inhibit the board from incurring expenses, the payment of salaries — the creation of any liability of any sort beyond the appropriated sum. The decisions are just as applicable to and conclusive of the claim at bar as they were of the claim of Dunwoody.
    Being without authority to bind the United States beyond the appropriated amount, no implied contract or promise exists upon which the demand can be enforced against the Government in the courts, and his only remedy is an appeal to Congress, as is expressly said by the Supreme Court in Dunwoody’s Case.
    . The agreement of rental had between Spofford and the members of this board, nor yet the occupancy of the building by the board, can not operate to bind the United States to pay the rent thereof under any contract, express or implied. No contract or promise made by any officer or agent of the Government in excess of his authority is binding upon the United States. (Stansbury v. United States, 8 Wall., 33; JDun-u'oody’s Gase, supra; Peeden’s Case, 21 C. Cls. B.., 189.)
   Nott, Cb. J.,

delivered tbe opinion of tbe court:

Tbe law of real estate is a tiling by itself; conveyances, leases, and devices are regulated by tbe lex rei sitie. In tbe District of Columbia tbe law provides, as between landlord and tenant, that when a tenant bolds over, or when a lease does not prescribe tbe term, it shall continue until one party or tbe other brings it to an end by a month’s notice. That is to say, where tbe parties do not prescribe a term tbe law supplies one, and they adopt it as tbe term intended by tlieir agreement.

In 1879 Congress, by tbe Act 1st July, 1879 (21 Stat, L., 46), expressly “authorized and empowered” tbe National Board of Health “to procure suitable and sufficient offices m tbe city of Washington for tbe transaction of its business, at a rental not to exceed tbe sum of $1,800 per annum.” Tbe authorization to pay an annual rent imported an authorization to rent by tbe year, and tbe amount of tbe rent was tbe only limitation set upon tbe board. When Congress authorized tbe renting of property in a designated place and with no limitation express or implied, except that tbe rent must not exceed a specified amount, it must be assumed, m the absence of other provisions to tbe contrary, that Congress intended tbe property should be acquired for tbe use and occupancy of tbe Government m accordance with tbe law and custom' of tbe place. When tbe Government goes into tbe commercial market it is bound by tbe lex mercatoria. (United States v. Bank of Metropolis, 15 Peters, 377.) And when it goes into the real-estate market to acquire property by lease, with no statutory restriction upon its agents, it is bound by tbe law of landlord and tenant. Chief Justice Waite said, in a case where there was no written lease, but where tbe Government was held liable on an implied covenant against waste, “ Tbe United States, when they contract with their citizens, are controlled by tbe same laws that govern tbe citizen in that behalf. All obligations which would be implied against citizens under tbe same circumstonces will be implied against them. No lease in form was ever executed in this case, but the contract, followed by tbe delivery of possession and occupation under it, is equivalent, for tbe purposes of this action, to a lease duly executed, containing all tbe stipulations agreed upon.” (Bostwick, administrator of Lovett, 94 U. S., 53.)

Under the authority of the statute the National Board of Health, in October, 1879, leased from the claimant the building known as 1410 G street N. W., in the city of Washington, and continued to occupy the same until the 31st August, 1886, at a monthly rent of $100, no term being prescribed. The contract, then, which the defendants entered into in October, 1879, was this: That the Government should occupy the premises at a monthly rent, and that the terms should continue until it should be terminated by thirty days’ notice from either party. (Semmes & Barbour's Case, 14 C. Cls. R., 493.)

Subsequent statutes operated expressly and impliedly to restrain the National Board of Health from incurring liabilities for salaries and expenses in excess of the amounts appropriated by Congress. The history of this legislation is given in Dunwoody's Case (22 C. Cls. R., 269; 23 id., 82; 143 U. S., 578). But statutes are not repealed by implication unless implication be necessary, and a restriction upon the board as to salaries and expenses was not a repeal, in any sense, of an authority to procure offices at a rental not to exceed $1,800 per annum; and the restrictions upon salaries and expenses in excess of the amounts appropriated did not mean that the board was to leave the authorized rent unpaid, but rather that it was to reduce its salaries and incidental expenses so that the rent might be paid without exceeding in the sum total the amounts appropriated by Congress. On the 1st day of October, 1885, when the seventh year of the Government’s occupancy began, there was nothing in any statute which invalidated the lease already made or which restrained the board from contracting for a building at an annual rent not to exceed $1,800, or which required the board to terminate the lease as it then and for six years had existed.

When this last year of occupancy began, the statutory condition of the case was this:

On the 3d March, 1885 (23 Stat. L., 496), Congress had appropriated $5,000 for the “ salaries and expenses ” of the board for the fiscal year ending June 30,1886. No restriction was set upon the board prohibiting it from occupying offices or requiring it to terminate the lease for which Congress had repeatedly appropriated. On the contrary, Congress left the board free to continue the occupancy as it then and for a long time had existed, and the statute was notice to all the world that the National Board of Health would continue to exist at least during the ensuing fiscal year. At that time the only way known to the law by which the existing lease could be terminated and the liability of the Government for the rental be brought to au end was by the tenant giving one month’s notice and removing from the premises. (Morgan & Rhine-hart’s Case, 14 C. Cls. R., 319.) A notice without vacating would be valueless. The notice might come from Congress, the principal, as well as from the board, the agent, but it must contemplate finality. Notice that the tenant would vacate the premises if he should not happen to want them any longer would be no notice at all within the intent of the law. If Congress on the 3d March, 1885, had enacted that the lease should terminate at the end of the next fiscal year, the 30th June, 1886, and that the board should then remove from the premises, that enactment, considered as a notice, would have been effective. If after such an euactment the board had continued to occupy, their action would have been ultra vires, and the members of the board would have been mere trespassers whom the landlord might eject. But Congress made no such enactment and gave no such notice. They left the law in force which authorized the board to rent offices in the city of Washington at a rental not to exceed $1,800 per annum, and they left the law in force which provided that in the District of Columbia such a tenancy should be terminated only by notice and the surrender of the leasehold, and they left the board in the unquestioned occupancy of the premises, and they authorized a continuation of the occupancy after the expiration of the fiscal year by the Joint Resolutions 1st July, 1886,15th July, 1886 (24 Stat. L., 343, 345), which continued “all appropriations for the necessary operations of the Government under existing laws” to and including the 31st day of July, 1886. The first intimation given by the tenant to the landlord of an intent to vacate the premises and terminate the lease was by the Sundry Civil Appropriation Act 4th August, 1886 (24 Stat. L., 222), which failed to appropriate for the existing or future expenses of the board. Then the first day on which the tenancy could be terminated according to the law of the District of Columbia was the 30th September next ensuing.

The case then stands in this plight: Congress authorized a. renting of the premises and from time to time specifically appropriated, for the payment of the rent. These appropriations for rent as rent continued until the 31st March, 1885. For the three months, April, May, and June, 1885, no appropriation was made and no rent was paid. For the fiscal year ending- June 30,1886, and for the month of July, 1886, a general appropriation “for salaries and expenses” was made and the rent was paid. For the months of August and September, 1886, there was no appropriation, and the rent remains unpaid. All the way through the period of occupany, from the 1st October, 1879, to the 30th September, 1886, there was a statute unrepealed which authorized the board to rent a building for one year at a rental not to exceed $1,800 per annum, On the 4th August, 1886, that authority may be said to have expired. But its cessation then could not operate retroactively nor affect the legal rights of a party who had contracted on the faith of the statute and whose contract was within its limitations.

This case is neither identical with nor similar to that of Dunwoody (supra), though both are founded on statutes relating to the National Board of Health, for in Hun woody’s Case there was no statute expressly authorizing the contract; i. e., there was no statute which authorized the Board of Health to contract with the claimant for his services at a specified salary and for a specified period. The outlay for expenses, of which his remuneration was an item, was limited to specified amounts. The claimant was the responsible officer of the board, directly chargeable with knowledge of the limitations set upon its expenditures by Congress and of the condition of the fund, and he was bound thereby. In this case the claimant parted with an estate in real property upon the faith of an act of Congress, the statute continued unrepealed, possession continued undisturbed, the rental was within the authorized terms of the statute, and the liability of the defendants was established as well as limited by the law which Congress made.

And between the statutory bases of the two cases there is also a wide difference. In the Dunwoody Case the question was whether the National Board of Health had authority to continue a salary at a rate previously fixed, irrespective of the intent of Congress to diminish and limit the expenditures of the board. The Supreme Court answered the question by saying that the subsequent “ enactments evinced the purpose upon tbe part of Congress not to create any liability upon tbe part of tbe United States in respect to work of tbe National Board of Health beyond tbe amounts specifically appropriated by it from time to time for that work.” In tbis case there is no sucb question. On tbe contrary, Congress have “ specifically appropriated from time to time ” for tbis rent, and have never evinced a purpose to diminish tbe rent or during the existence of tbe board to terminate tbe tenancy. During a period running from tbe 1st of October, 1879, to tbe 1st of October, 1886, they have appropriated money for tbe payment of rent, generally by specific appropriations, once by a fund out of which it could be and was paid. Tbe only exceptions to tbis during tbe seven years of tbe tenancy was a failure to appropriate for three months’ rent in 1885 and for two months’ rent in 18S6. A failure to appropriate does not affect a legal right, and a trivial, exceptional failure to appropriate evinces no purpose on tbe part of Congress. In tbe case of United States v. Langston (118 U. S., 389), tbe Supreme Court said: * * Tbe court is of opinion that, according to tbe settled rules of interpretation, a statute fixing tbe annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular fiscal years and which contained no words that expressly, or by clear implication, modified or repealed tbe previous law.” Much less can it be said here that Congress intended to annul a valid contract because they failed to appropriate for tbe fourth part of tbe annual rent in one year and for tbe sixth part of it in another.

Tbe payment or advancement of tbe rent for tbe three months in 1885 by members of tbe board seems to tbe court to be res inter alios acta. If there bad been a fund provided by Congress out of which tbe rent could have been paid, and tbe members of tbe board bad expended it for other purposes, it might be maintained that they could not in tbis indirect way exceed tbe amount appropriated by Congress; but there is no basis for that contention, inasmuch as in that fiscal year Congress appropriated specifically for rent and did not provide a fund out of which tbe rent for these three months could properly have been paid.

Tbe judgment of tbe court is that tbe claimant recover $530.  