as by the terms of the contract, of which claimant and his agent had full knowledge, he had the right, after May 25, to deliver his coal upon the wharf. The fact that in the letter to the naval officer at Sitka the date was changed to June 5 can not be held to vary the express terms of his contract. It appears by letter of the Paymaster-General, United States Navy, of February 23, 1895, that the Bureau of Equipment returned the following indorsement:

"There was no change in the date of the contract. A letter was written by the Bureau of Equipment to the senior naval officer at Sitka giving him the conditions of the contract, and by an error the date June 5 was mentioned instead of May 25. So far as the action of this Bureau has any bearing on the case it is the result of the accidental clerical error men. tioned."

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The Paymaster-General further states:

"It will be observed that the change in date was not intended as a formal modification of the terms of the contract, which change was not in the interest of the Government, but owing to which the vessel was detained at Sitka so many days longer."

The power vested in the head of an Executive Department to make contracts for work or materials does not imply the power to rescind or alter such contracts when made (9 Opin. A. G., 80) unless the change is for the benefit of the Government (15 Opin. A. G., 481; 18 Opin. A. G., 101). Moreover, it is the duty of all persons entering into contracts with the United States to scrupulously inquire into the authority of the agent to make the contract in contemplation, as the rules in respect to the acts and declarations of public agents differ from those which ordinarily govern in the case of mere private agents.

"Principals in the latter category are in many cases bound by the acts and declarations of their agents even where the act or declaration was done or made without any authority, if it appear that the act was done or the declaration was made by the agent in the course of his regular employment; but the Government or public authority is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he has been held out as having authority to do the act or make the declaration for or on behalf of the public authority." (Hawkins v. United States, 96 U. S., 689, 691. Lee v. Munroe, 7 Cranch, 366.)

This rule seems especially applicable where a subordinate attempts to vary the terms of a contract already made. While it has been decided that the head of an Executive Department

may vary the terms of the contract where the interests of the Government will not be prejudiced, certainly none of his subordinates have power to modify a contract made under his direction without express authority so to do.

In this case the so-called variation of the contract arose through mere inadvertence, being a clerical error. Knowles might have properly insisted upon delivering his coal on the wharf after May 25, and he can not sustain his claim for demurrage based upon the direction of a subordinate officer of the Navy not to deliver it until after June 5. Such direction to the officer was improper and admittedly a mistake. If the claimant had declined to follow this direction, as he had a right to do, and the naval officer had still insisted upon it, thus preventing claimant from completing his contract in accordance with its terms, he could have maintained an action for damages. While he waived his rights under the contract, and may have been willing to vary the contract, this does not bind the Government. Mutual consent is required to modify a contract; and the directions of the naval officer at Sitka were not obligatory for two reasons: First, because in contemplation of law this officer was not a party to the contract, and second, because such officer had no authority to act in behalf of the United States in this matter.

When it is considered that the claimant did not complete his discharge until June 29, a reasonable doubt arises as to whether he was in fact detained at all by the order of the naval officer at Sitka.

Therefore, upon both the law and the facts in this case, I am satisfied that the Auditor's decision was correct, and accordingly sustain the same.

EDW. A. BOWERS,

Acting Comptroller.

ADVERTISING UNDER SECTION 3709, REVISED

STATUTES.

Where the essential part of a contract is for personal services, advertising for proposals under section 3709 is not required.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 2, 1895.

SIR: I am in receipt of your letter of October 1, 1895, asking for a ruling upon the objection raised by the Auditor for the

State and other Departments in connection with the expenditure of a portion of the appropriation of $25,000 for investigations in forestry.

You state that

"A series of tests of the strength of commercial timbers has been carried on by Prof. J. B. Johnson, of Washington University, at St. Louis, under contracts annually renewed, under which the payment for the service has been made by a stipulated price per test, such price including not only the mechanical work done, but also the scientific computations and discussion of results."

The Auditor states:

"The policy of the Government as indicated by section 3709, Revised Statutes, is that publicity by advertisement shall be given when services are to be contracted for or purchases to be made, in order that competition be invited." would respectfully urge that for the ensuing year advertisement by newspaper or circular be made for these services in obedience to section 3709 above referred to."

From your statements it appears that this work is so peculiar and of such a special character that there is no probability of there being any competition for it in case bids were advertised for, and that his work is largely in the nature of personal services, which are expressly excluded from the operation of section 3709, which reads:

"All purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previ ously for proposals respecting the same, when public exigencies do not require the immediate delivery of the articles or the performance of the service."

This was originally in the tenth section of the act of March 2, 1861 (12 Stat., 220).

In construing it, Attorney-General Bates said (10 Opin. A. G., 262):

"The purpose of the tenth section of the act of 1861 is to prevent official favoritism in letting the public contracts, and to secure the needed supplies or services at the lowest possible price, and it does this by requiring advertisements for pro posals to be published, thus throwing open the door to public notice and competition. But although this policy is certainly desirable in all cases, there are yet some to which it can not well be applied. Such are contracts for services which require special skill and experience. In these cases it may be of more importance to the Government to secure ability and knowledge competent to the work to be done than to have that work

done cheaply. It would not do, for instance, when the Government needs a lawyer to aid in the trial of one of her lawsuits, to advertise for proposals from gentlemen of the bar of the terms on which they would agree to be retained. To accept the cheapest offer in such a case would probably be much the dearest bargain in the end. In all contracts for service which presupposes trained skill and experience, the public officer who employs the service must be allowed to exercise a judicious discrimination, and to select such as, in his judgment, possess the required qualifications."

Attorney-General McVeagh held that the provisions of section 3709 were not applicable where competition as to the article needed is impossible (17 Opin. A. G., 84).

Inasmuch as it clearly appears that the essential part of the services to be performed in connection with these timber tests is of a scientific character, for which the personal services of Professor Johnson are necessary, I am of the opinion that in expending this money, so far as his expenditures are concerned, no advertisement as provided in section 3709 is required. Respectfully, yours,

EDW. A. BOWERS,
Acting Comptroller.

The SECRETARY OF AGRICULTURE.

HIRE OF QUARTERS FOR OFFICERS OF THE ARMY. An officer of the Army is not entitled to reimbursement for the amount paid for quarters when serving at a post where there are public quarters to which he could have been assigned by the Quartermaster's Department.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 3, 1895.

SIR: I have received your communication of the 1st instant, requesting my decision as to whether, under the law of June 18, 1878 (20 Stat., 151), the Quartermaster's Department can legally reimburse officers for hire of rooms, or legally hire additional rooms for the use of officers serving with troops at military posts where the number of assignable rooms belonging to the United States is in excess of the number authorized by law.

The case upon which this request for decision is based is that of Lieut. L. B. Lawton, Ninth Infantry, for reimbursement for amount paid by him for quarters at Madison Bar

racks, Sackett Harbor, N. Y., from July 5 to August 13, 1895, amounting to $23.20.

The record in this case shows that the officers on duty at Madison Barracks, N. Y., are entitled to seventy rooms, while the number of assignable rooms at that post is two hundred and four, or nearly three times that allowed by law.

In considering the questions presented by you, attention is invited to the act of July 15, 1870 (16 Stat., 320), which provides.

"That the pay of the officers of the Army shall be as follows: and these sums shall be in full of all commutation of quarters, fuel, forage, servant's wages, and clothing, longevity rations, and all allowances of every name and nature whatever, and shall be paid monthly by the paymaster: Provided, That quarters in kind may be furnished to officers by the Quartermaster's Department, as now provided by law."

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Section 9 of the Army appropriation act of June 18, 1878 (20 Stat., 151), provides:

"That at all posts and stations where there are public quarters belonging to the United States, officers may be furnished with quarters in kind in such public quarters, and not elsewhere, by the Quartermaster's Department, assigning to the officers of each grade, respectively, such number of rooms as is now allowed to such grade by the rules and regulations of the Army: Provided, That at places where there are no public quarters, commutation therefor may be paid by the Pay Department to the officer entitled to the same at a rate not exceeding ten dollars per room per month.”

The former act authorized the Quartermaster's Department to furnish quarters in kind to officers, as then allowed by law and regulations, and has been construed to authorize that Department to hire quarters for that purpose where there are no public quarters belonging to the United States. The latter act is clearly a modification of the former, which imposed upon the Department in question the duty of furnishing quarters to officers and confined that duty to furnishing them in public quarters belonging to the United States, and not elsewhere.

The distribution of quarters at stations where there are public quarters belonging to the United States appears to be governed by Army Regulations, paragraph 1078, as amended by General Orders, No. 38, Adjutant General's Office, of 1890. The authority of the Quartermaster's Department in the premises is governed by the provisions of the act of June 18,