apparently given, public agents bind only to the extent of the power actually conferred. But the Government can undoubtedly be bound by the ratification of a contract previously unauthorized. As if Congress should pass a special law to confirm the transaction. And wherever the United States accepts the articles sold, or receives other benefits from such contract, there is an implied promise to pay according to their value. This doctrine rests upon general principles of equity and justice. But in such cases the contractor must have acted in good faith, and it seems that the property received by the public officer must have been used for a lawful purpose, and not for his private benefit, the foundation of the action being the advantage actually accruing to the Government.1 And agency may be either expressly named, or necessarily implied. Among individuals, a sub-agent, if recognized by the principal, will bind him, though not in the first place constituted as such. But more difficulty arises where the Government is the principal. Supposing certain officers are designated by law to make purchases, can an agent, such as the head of a department, delegate a private person to perform such duty? Undoubtedly not in ordinary cases; else the appointing power would not be where the Constitution and the laws placed it. Still, high officials are vested with large discretionary powers in the choice of sub-agents, especially where a great emergency has arisen.. A case of this sort came before the Court of Claims not long since. General Fremont, called to take command of the Western Department soon after the outbreak of the Rebellion, was invested by the President with large and undefined powers, which he exercised to the fullest extent. One of his acts was to appoint a civilian purchasing agent for the wants of his army, with authority to contract for supplies. This agent, assuming the functions which rightfully belong to United States quartermasters, proceeded to procure the needful supplies with utter disregard of all precedents. Questions arose at the War Department as to the validity of these transactions, payment was stopped, and a commission appointed to examine the claims of the contractors. The commissioners reduced the amounts respectively claimed, refusing to allow the contract price, and compelled each claimant to give a receipt in full. 1 Reeside v. United States, 2 C. Cl. 1. They sued in the Court of Claims for the balances due. One of the questions at the outset was whether this civilian had power to bind the United States. This was practically decided in the affirmative by a majority of the court, though they held that his appointment was illegal. It appeared that the property thus purchased was used in the lawful service of the United States, and that the contractors' prices were not unreasonably large. It may be added that this case, favorably decided by the Court of Claims, has been recently before the Supreme Court on appeal, where judgment was ordered for the United States, on the ground that the award by the commissioners was final,1 although it seemed admitted that the contracts were authorized. The common law of general and special agents has, doubtless, its analogies in cases where the United States is the principal. A general in command of a department is a general agent, with large powers and duties. Cabinet officers are general agents with the largest discretion. Yet all these agents are subordinate to Congress, the law-making agent of the United States, whose duty it is to pledge the public credit, and provide for payment of the public debts. As the operations of the Government, become extended, the details of business fall more and more into the hands of sub-agents with limited authority. So far as a delegated authority is within the proper scope of the authority delegating, the United States will be bound. A contract made by an assistant quartermaster, and approved by the chief quartermaster of a department, would be good.2 And frequently a subaltern makes an agreement in behalf of the United States, "subject to the approval of" the superior officer, which is a conditional contract until actually approved. But this approval may be inferred from letters and acts, and need not be formally indorsed upon the contract. And when no legal necessity requires that the contract be submitted to a superior officer, it is binding without such submission. And it is incumbent upon the approving officer to disavow the contract within a reasonable time; for if injury is occasioned to the contractor by gross negligence in this respect, it seems that he has ground for action against the Government.4 1 Reeside v. United States, 2 C. Cl. 1, and other cases of the same class. United States v. Reeside, U. S. Supreme Court. (Unpublished.) 2 Livingston v. United States, 3 C. Cl. 131. 4 Latham v. United States, No. 291, old C. Cl. 1 C. Cl. 332. 3 Floyd v. United States, 2 C. Cl. 429. But see Mer. Ex. Co. v. United States, For the wrongful acts or the negligence of public officers, the United States is not ordinarily responsible. This principle of law has been constantly asserted. The Government can never be held guilty of a wrong to its own citizens; the foundation of all suits must be simply a contract. Hence, no action lies against the United States for failure of a paymaster to collect debts due a sutler. Nor where, through the mistake of an officer, a land patent is wrongfully issued. Nor in any case where unliquidated damages are claimed for a wrongful seizure. In all such cases the right of action, if it exists at all, is against the officer who renders himself personally liable for his misconduct, whether through malfeasance or non-feasance. There is a strong disposition in the courts to protect public agents who have endeavored faithfully to execute their trust; and probably they would not be held responsible for mistakes in doubtful points, where they had shown due diligence and reasonable skill. But it appears to be well settled that if an official makes a government contract without authority, and the Government is not bound, he is personally liable to the contracting party.2 The public agent may, if he choose, render himself personally liable on a contract. The ordinary rule of agency regards a contract as binding either upon principal or agent, according to the credit actually given; and this would be a mere question of evidence in ordinary cases. But the rule regarding a government officer is very strict. "It is too clear to be controverted," said Chief Justice Marshall in an early case, "that where a public agent acts in the line of his duty and by legal authority, his contracts made on account of the Government are public and not personal." And in this case a lease made to the Secretary of War and his successors, with covenants binding himself and his successors, was construed as a lease to the United States. The same principle was reaffirmed in a subsequent case, where an agent of the Cherokee Nation was sued for the value of services rendered in removing the Indians beyond the Mississippi River. And even where there is a domestic agent acting for a foreign principal — as if a French consul in this country accepts a bill drawn by his government, his official capacity shields him.5 But the rule laid down by Chief 1 Thistle v. United States, Dev. C. Cl. 112. Straughan v. United States, 1 C. Cl. 324. 22 Kent Com. 633 and notes. 7 Att. Gen. Opin. 88. 3 Hodgson v. Dexter, 1 Cr. 345. 5 Jones v. Le Tombe, 3 Dall. 384. 4 Parks v. Ross, 11 How. 362. Justice Marshall amounts only to a strong presumption in favor of public officers. The question in such cases is, after all, one of intent; for undoubtedly if an officer means to bind himself instead of the Government, he can do so. Such was the view entertained. by Attorney-General Cushing, as expressed in one of his opinions, where the whole subject is discussed with great vigor, with a full citation of both local and national authorities. As Kent observes, "the distinction terminates in a question of evidence," though he might have added, with a very decided presumption against personal liability.2 We are now brought to the consideration of those laws, amounting to general instructions, which Congress has prescribed for all public officers, and which enter as essential elements into all contracts with the United States. The first, and most important, is, that no contract shall be made by an officer of the government unless there is a law authorizing it, or an appropriation adequate to its fulfilment. This principle was laid down in the Act of May 1, 1820, ch. 52, and has ever since been part of the public policy. The Act of March 2, 1861, ch. 84, is still more explicit and to the same effect. The rule of Government is, therefore, that public contracts can be made only in two instances: first, where the contract is expressly authorized by a law; and, second, where there is an appropriation already made, large enough to fulfil it. In the first case, there is express power to contract for the work; in the second, there is an implied power to contract for as much work as the appropriation will pay for.3 By another section of the Act of 1820, it is provided that no land shall be purchased for the United States excepting under a law authorizing such purchase. But land may, nevertheless, come to Government under judicial proceedings, by way of seizure or as collateral security for debts due from its citizens.4 The liability of Government is sufficiently determined, therefore, if a law exists authorizing the contract, although the appropriation be insufficient. A familiar instance is that of an officer whose salary is fixed by law, and the appropriation fails. So, too, there may be a law which requires a certain building to be erected according to a specified plan, while the appropriation is inadequate. 17 Att. Gen. Opin. 88. 2 2 Kent Com. 633. Here the parties contracting with Government should be paid in part, and they may recover the balance due by petition to the Court of Claims. But if the appropriation be manifestly designed as a limitation upon the law, we apprehend the case would be different. Wherever the right to make a government contract is founded. upon an appropriation merely, the officer has no right to contract beyond the appropriation. If he does so, the contractor, no matter how fair the bargain or how faithful the work, cannot hold the United States liable for the excess. But such contracts are good to the extent of the appropriation. And it seems that the contract is at an end after the appropriation is exhausted, and that after a new appropriation there must be a new contract. 1 These salutary provisions of law have doubtless been disregarded in many instances, and it is by no means uncommon for department officers to award contracts beyond the extent of their authority: the parties concerned relying upon official influence to secure appropriations to cover the deficiency. Such reckless conduct cannot be too strongly condemned, and Congress has at length administered a sharp rebuke in a recent act, which provides that no contract for public buildings and improvements shall be entered into which shall bind the Government to pay a larger sum of money than the amount in the treasury appropriated for the specific purpose, and holds the officer knowingly concerned in such contracts guilty of a misdemeanor, punishable by fine or imprisonment.2 In the case of Curtis v. United States, the subject of relief, where a contract exceeded the sum limited by Congress, was fully considered in the Court of Claims. Congress, in 1852, enacted a law for establishing a branch mint at San Francisco; providing, however, that the contracts of the Secretary of the Treasury should not go beyond the sum of three hundred thousand dollars. A contract was made with the claimant for about two hundred and ninety-eight thousand dollars. But subsequent agreements were made for supplying additional machinery, and a "separating department" for convenience, in connection with the coinage. The aggregate cost was thus increased to more than three hundred and six 19 Att. Gen. Opin. 187. 2 Act July 25, 1868, ch. 233, § 3. |