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authority, as the power of requiring them to discharge the public trust imposed upon them.

The law on this point is somewhat elaborate; but it represents without doubt the present rule of administrative law upon this vexed subject. Without such a superintendence in the head of the administration there would be no centralism. At the same time, without order in the process by which the President is reached, all the business of administration might be thrown upon the President in first instance. The precise rule, then, in centralized administration is that if appeal is allowed it must go through the regular order of advancement from inferior to superior at every step in the administrative hierarchy.55 $ 71. Conclusion.

Centralism and decentralism are but modes of administration, after all. The methods used in administration are about the same in any administration of any sort. It is to these methods of administration to which attention is directed henceforward. It is without doubt impossible to make perfect distinctions in the varieties of administrative action; but the attempt will not be without advantage in gaining a near view of the administration at its work. Upon such a near view the methods are various. What arrests attention in such an examination is that the administration seems at one time or another to act as a complete governmental body in the enforcement of the law.

55 HIGHER.–Chisholm v. McGehee, 41 Ala. 192; Hawkins v. Governor, 1 Ark. 570; Fremont v. Crippen, 10 Cal, 212; State v. Crawford, 28 Fla. 441; State v. Welsh, 109 Ia. 19; State v. Wrotnowski, 17 La. Ann. 156; People v. McClay, 2 Neb. 7; People v. Roosevelt, 168 N. Y. 488; State v. Staley, 38 Oh. St. 259; Commonwealth v. Perkins, 7 Pa. St. 42.

CHAPTER IX.

THE AUTHORITY OF THE ADMINISTRATION.

$ 72. Introduction.

73. The State as Principal.
74. Limitation.
75. Implication.
76. Liability.
77. Relation.
78. The Officer as Agent.
79. Authorization.
80. Interpretation.
81. Responsibility.
82. Subjection.
83. Conclusion.

$ 72. Introduction.

The one central fact in the law governing administration is that the officer is an agent. That is the general situation. The state may be regarded as the principal in behalf of which the agent acts. The officer may be regarded, then, as the agent when he acts as an officer. To a certain extent, then, the law of agency is applicable to the processes of the administration. That indeed was remarked in the discussion of the theory of the administration. It is true, that this public agency is different from private agency; but in so far as there is a difference, it exists because of the policy in the situation.

$ 73. The state as principal.

In the eye of the law, when the officer acts in behalf of the state he is an official; when an officer acts in his

own behalf, he is a person.

In so far as an officer exercises public functions, the theory is he does so by order of the state as the agent of the state; in so far as the officer purports to exercise public functions, the theory is he does nothing unless he has the explicit authority of the state to fall back upon. That is, it is all a question of actual authority. If an officer has authority he acts in behalf of the state, not otherwise ; if he has no authority he subjects the state to no liability.

The rule in private agency is that the agent may bind his principal within the scope of his authorityexpress or implied. Whether the whole of that rule is applicable to public agency is the question. It is in the nature of things that if an officer has express authority the state will be bound as his principal. But how if the officer has in fact no express authority? Can the parties who have dealt with him show that what he did seemed to be within his authority? This is not clear; there is a policy here for the protection of the state against liabilities which it has not expressly submitted itself to. This policy to a certain extent abro- · gates the rule of implied authority that is found in private agency. The problem for discussion in this chapter is how far the state will be made liable by the action of its officers. That involves an examination of the position of the state as a principal in relation to the position of the officer as an agent.56

56 THE STATE AS PRINCIPAL.-Musgrave v. Pulido, 5 App. Cas. 102; O'Brien v. Reg., 4 Can. Sup. Ct. 529; Lee v. Munroe, 7 Cranch 366; Hawkins v. United States, 96 U. S. 691; Comer v. Bankhead, 70 Ala. 493; Fluty v. School District, 49 Ark. 94; Butler v. Bates, 7 Cal. 136; State v. Hartford, 50 Conn. 89; Koones y. District of Columbia,

$ 74. Limitation.

The principle of law governing in public agencies that one is confronted with at this stage is somewhat startling. In Baltimore v. Eschbach, 18 Md. 276 (1861), that special rule is laid down in its most extreme form. Under the ordinances of the city of Baltimore the City Commissioner could make contracts for grading and paving and assess taxes therefor in two classes of cases : First upon the application of a majority of front feet where the street had been condemned; second upon the like application of all of the front feet where the street had not been condemned. A contractor made a contract with the City Commissioner for grading and paving a certain street. As a matter of fact the street had not been condemned, and only a majority of the front feet had applied. The city, upon that defense, now refused to pay for the work that had been done upon that contract.

The court by (OCHIRAN held the city not liable: The fact that the contract made, related to a subject within the scope of the powers of the Commissioner does not make it obligatory upon the city, if there was want of specific power to make it. Although a private agent acting in violation of specific instructions, yet within the scope of general authority, may bind his principal, the rule as to the like act of a public agent is otherwise. The City Commissioner, upon whose determination to grade and pave, the contract was made, was the public agent of a municipal corporation clothed with powers and duties especially defined and limited by ordinances bearing the character and effect of public laws, ignorance of which can be presumed in favor of no one dealing with him. As this contract was entered into by the Commissioner on behalf of the city under circumstances which gave him no power to bind it, we think it cannot be held liable in any action.

4 Mackey 339; Hawkins v. Mitchell, 34 Fla. 405; Penitentiary Co. v. Gordon, 85 Ga. 160; Van Dusen v. People, 78 Ill. 645; McCaslin v. State, 99 Ind. 428; Clark v. Des Moines, 19 Ia. 199; Commissioners v. Smith, 50 Kan. 350; Baltimore v. Eschbach, 18 Md. 276; Klein v. Pipes, 43 La. Ann. 359; Hubbard v. Woodsum, 87 Me. 88; Thomas v. Owens, 4 Md. 189; Vose v. Deane, 7 Mass. 280; Benalleck v. People, 31 Mich. 200; Sanborn v. Neal, 4 Minn. 126; State v. Hays, 52 Mo. 578; State v. Weston, 6 Neb. 16; Sargent V. Gilford, 66 N. H. 543; Dock Co. v. Trustees, 32 N. J. Eq. 434; McDonald v. New York, 68 N. Y. 23; Clodfelter v. State, 86 N. C. 51; State v. Hancock Co. Com’rs, 11 Oh, St. 183; Snow y. Deerfield, 78 Pa. St. 181; In re State House Fund, 19 R. I. 393; Morton v. Comptroller General, 4 S. C. 430; State v. Strickland, 3 Head, 644; Silliman v. Fredericksburg R. R., 27 Grat. 119; Boyers v. Crane, 1 W. Va. 176; State v. Hastings, 10 Wis. 525.

This rule is stated repeatedly in this extreme form. No government can be estopped from denying the valid. ity of unauthorized acts of its officers. Again, officers cannot dispense with a requirement of law by any waiver. Every person, it is the theory, is bound at his peril to know the extent of the authority of public officers. Contracts thus made without the authority of law are no more than void; and such void agreement is ineffectual to fix any liability upon the government. Just as much as a contract made by an officer in direct violation of a law is void, so a contract that is made in a way not authorized by law is held void. To a certain extent this is the law governing the authority of public officers—that they only have in effect such authority as they may show in fact. Another instance is Koones v. District of Columbia, 4 Mackey, 339 (1886). The appellant averred that on a certain day he paid the

Adm. Law—16.

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