taxes which were due by him to the District of Columbia in a check for four hundred and ninety dollars on a bank in Washington, which bank was open on the day the check was delivered and on the next day. The third day, however, it suspended payment; and the Collector of Taxes, not having presented the check, it was claimed, therefore, by the complainant, that he should be credited with the amount of the check by reason of the default of the Collector in not presenting the check in due season, according to the mercantile law, for payment at that bank.

In disposing of this contention Mr. Justice MERRICK said: The doctrine which expands an agency by reason of the acts and dealings of the parties from time to time has no application whatsoever to the official acts of a public officer. Everybody knows the public law or is charged with knowledge of it; the extent of the powers of that officer and his superior officers so to speak cannot qualify except so far as the law has delegated to them a power to control or modify or expand his legal obligations. Hence, there can be no such thing as a presumption of agency growing out of the dealings of a public officer in respect to his public duties; because whatever presumption might arise in favor of a delegated authority from an outward act of dealing, so far as the public officer is concerned that presumption is repelled by the known law of the land, which known law of the land limits, defines and bounds his power, and qualifies and corrects any presumption of agency which might otherwise arise out of those facts and dealings. This is so because the authority of a

public officer must be derived directly or indirectly from some law or other.57

$ 75. Implication.

In any question of interpretation, general legal notions must be used. The determination whether a cer tain action is or is not within the authority of a public agent depends to a large extent, therefore, upon the ordinary legal conception of the scope of a defined authority. The general principles of agency are of much use here because the problem in the large is the same both for public agencies and for private agencies. The difference of importance at this point between the law governing public agency and the law governing private agency is the one that was insisted upon at the outset. No implication can give an officer power to bind the state, but implication may give an agent power to bind his principal. However, the question as to the extent to which an express authority goes is a question of construction which is the same for both cases.

A distinction is to be taken at this point which is well brought out in Thompson's Case, 9 Ct. of Cl. 187 (1873). During the winter of 1864 the Quarter-Master's Department at Nashville, Tennessee, did not ad

57 LIMITATION.-Floyd Acceptances, 7 Wall. 666; Coler v. Cleburne, 131 U. S. 173; Fluty v. School District, 49 Ark. 94; Sutro v. Pettit, 74 Cal. 332; Mulnix v. Ins. Co., 23 Colo. 71; Koones v. District of Columbia, 4 Mackey, 339; Penitentiary Co. v. Gordon, 85 Ga. 160; Hull v. Marshall Co., 12 Ia. 142; Van Dusen v. People, 78 Ill. 645; Clark v. Des Moines, 19 Ia. 199; Baltimore v. Eschbach, 18 Md. 276; Murray v. Carothers, 1 Met. (Ky.) 71; Mitchell v. County Com'rs, 24 Minn. 459; State v. Hays, 52 Mo. 578; Lebscher v. Custer Co. Com'rs, 9 Mont. 315; Brumfield v. Douglas Co. Com'rs, 2 Nev. 65; Backman v. Charlestown, 42 N. H. 125; McDonald v. New York, 68 N. Y. 23; Sooy v. State, 39 N. J. L. 135; Day L. & C. Co. v. State, 68 Tex. 526.

vertise for proposals, but bought mules in the open market. The Chief Quarter-Master was in constant communication with the Commanding General, but no formal order was ever issued declaring that an emergency existed. According to statute then in force, there must be held a public letting of all contracts except in the case of actual exigency. The Quarter-Master's Department in this case had contracted for one thousand mules, of which two hundred had been delivered when the war came to an end. Thereupon, the United States refused to take the other eight hundred mules.

NOTT, Judge of the Court of Claims, held the United States liable: A contractor dealing with the government is chargeable with notice of all limitations of authority which the statutes place upon the powers of public officers. But there is a difference between those powers which are expressly defined by statute and those which rest upon the discretion confided by law to an officer. The distinction should be made between the case where a statute expressly defines the powers,―there it is notice to all the world; but where a statute confides a discretion to an officer, a party dealing with him in good faith may assume that the discretion is properly exercised. And if the discretion is vested in a superior officer, while the transaction is with his subordinate, the contractor may assume that the discretion in like manner has been properly exercised, and that the subordinate is acting in accordance with his superior's orders and carrying out the exercise of the superior's discretion.

An obvious case along this line is Myerle v. United States, 33 Ct. of Cl. 1 (1897). The claimant had en

tered into a contract with the Secretary of the Navy to do important work of construction. There were various modifications and changes from time to time. In the end, the part of the appropriation that had been assigned by the department to this part of the naval construction ran out. The contractor acted in good faith from first to last under the assumption that the Secretary of the Navy had due authorization of the law and without knowledge of any deficiency that had resulted from the changes in the appropriation. The issue was whether the United States was liable for the work that had been done, which could only be if the Secretary had authority.

The judgment of the Court of Claims was given by DAVIS: It appears that the contract, whether authorized at its inception or not, had been brought repeatedly to the attention of Congress; that that body had authorized payments to be made upon the contract, and that the Navy Department had made payments from time to time upon it. The work was done. The contract we hold was made by competent authority and was binding upon the parties. The services performed by this contractor were under general appropriations covering several vessels; he was not therefore chargeable with knowledge as to the Secretary's apportionment of the appropriation between him and other contractors for other vessels built from the same fund. It has been heretofore decided that persons contracting with the government for partial service under general appropriations are not bound to know the condition of the appropriation account at the treasury.

The extent of the authority of an officer then depends

upon the law which defines his authority. This law may be general or specific. If general, the authority of the officer is general; if special, the authority of the officer is special. That is, this law may give the officer discretionary powers, or it may impose upon the officer ministerial duties. If discretionary, the officer has actual authority to do in behalf of the state anything that is within the scope of that authority; if ministerial, the officer has no authority to do anything not within the scope of the authority. There is no difference in the law here. It is only a difference in fact. The whole problem, then, is the application by construction of the law giving the authority in any particular course of action.58

§ 76. Liability.

For the reasons discussed before, the government is not liable for torts done by officers in the course of employment. No government today, as has been shown, holds itself liable for the misfeasance of officers in the course of administration. It would be the ruin of the state if it held itself liable for failure in administration of any sort. A case which shows the extent to which this principle will go is Maxmilian v. The Mayor, 62 N. Y. 169 (1875). The plaintiff while attempting to enter a street car in the city of New York was struck and killed by an ambulance which was driven by an

58 IMPLICATION.—Myerle v. United States, 33 Ct. of Cl. 1; Thompson's Case, 9 Ct. of Cl. 187; Barton v. Swepston, 44 Ark. 437; Harris v. Gibbins, 114 Cal. 418; Wright v. Nagle, 48 Ga. 367; State v. Haworth, 122 Ind. 467; Commissioners v. Smith, 50 Kan. 350; Backman v. Charlestown, 42 N. H. 125; Richmond Co. Sup'rs v. Ellis, 509 N. Y. 620; Silliman v. Fredericksburg R. R., 27 Grat. 119.