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office; what is incident to one office will not be incident to another office. That is, a law which grants the power to a public officer is rightly construed with reference to the object to be attained. If the subject matter of the office is general, the wider will be the radius of the authority of the officer; if the object of the office is a special one, the narrower will be the scope of the authority of the officer. Viewed in this light, the implication of authority depends upon the facts found in each case.63
$ 81. Responsibility.
In private agency, if there is an unauthorized contract made by an agent with a third person on behalf of a principal, if it prove that the agent did not have authority to bind the principal as he purported to do, the agent is himself liable to the third party. That sitnation is canvassed in the case of Macbeath v. Haldimand, 1 T. R. 172 (1786). The Governor of the Province of Quebec appointed one Sinclair to be Governor of a post, directing him to procure supplies and to draw bills therefor upon the government as the practice was. Later the Treasury disavowed these requisitions. The question was then whether the Governor himself was liable.
ASHHURST said: In great questions of policy we cannot argue from the nature of private agreements. But even in these cases the question must be, what was the
63 INTERPRETATION.—Thompson's Case, 9 Ct. of Cl. 187; Myerle v. United States. 33 Ct. of Cl. 1; Haynes v. Butler, 30 Ark. 69; Bate
v. Colgan, 111 Cal. 587; Huey V. Richardson, 2 Harr. 206; State v. Haworth, 122 Ind. 462; Vose v. Deane, 7 Mass. 280; Lynch v. Donnell, 104 Mo. 519; Armstrong v. Ft. Edward, 159 N. Y. 315; State v. Hudson, 44 Oh. St. 137.
meaning of the parties at the time of entering into the contract. In the present case, the government was made the debtor. Great inconvenience would result from considering a Governor as personally responsible in such cases as the present. For no person would accept of any office of trust under a government upon such conditions. And, indeed, it has been frequently determined that no individual officer is answerable for any engagement which he enters into in behalf of the government.
This law that the public agent is not to be held to warrant his authority as the private agent must, has been worked out in an exact manner of late in the case of Dunn v. MacDonald (1897] 1 Q. B. 555 (1897). The plaintiff alleged in his statement of claim that the defendant, who was her majesty's Commissioner for the Niger Protectorate in Africa, had engaged him to serve for a term of three years in his own service; alternately the plaintiff alleged that the defendant warranted that he was authorized to engage the plaintiff for three years in her majesty's service.
The judgment of Lord Justice LOPES was as follows: The liabilities of public agents on contracts made by them in their public capacity are on a different footing from the liabilities of ordinary agents on their contract. In the former case, unless there is something special which would evidence an intention to be personally liable, an agent acting in behalf of a government is not liable for the breach of a contract made in his public capacity, even though he would under the same circumstances of contract be bound if it were an agency of a private nature. That is the short answer to the plaintiff's case.64
64 RESPONSIBILITY.-Macbeath v. Haldimand, 1 T. R. 172; Dunn v. MacDonald (1897] 1 Q. B. 555; Hodgson v. Dexter, Cranch, 345; Davis v. Garland, 5 Cranch, C. C. 570; Peck v. Robinson, 4 New Br. 687; Comer v. Bankhead, 70 Ala. 493; Anderson v. Pearce, 36 Ark. 293; Dwinelle v. Henriquez, 1 Cal. 387; Ogden v. Raymond, 22 Conn. 379; Samuel's Ex'r v. McDowell, 1 Harr. 108; Tucker v. Shorter, 17 Ga. 621; Mann v. Richardson, 66 Ill. 481; Newman v. Sylvester, 42 Ind. 106; White v. Jones, 67 Ia. 241; Murray v. Carothers, 1 Metc. (Ky.) 71; Noyes v. Loring, 55 Me. 408; Cutler v. Ashland, 121 Mass. 588; Sanborn v. Neal, 4 Minn. 126; Copes v. Matthews, 10 Sm. & M. 398; Tutt v. Hobbs, 17 Mo. 486; Delano v. Goodwin, 48 N. H. 203; Paulding v. Cooper, 74 N. Y. 619; Providence v. Miller, 11 R. I. 272; Robinson v. Howard, 84 N. C. 151; Miller v. Ford, 4 Rich, L. 376; Syme v. Butler, 1 Call, 105.
The result of all of these cases, it would seem, is plain. The public agent cannot act to the prejudice of his principal as the private agent often may. A test case upon that is United States v. Kirkpatrick, 9 Wheaton, 720 (1824). This was a suit against the sureties of a Collector of Taxes. The defense of the sureties was that whereas the law required periodical accounts and settlement of them, the Collector had been left by his superiors in default, and that no summary measures had been taken to compel a settlement. In brief the defense against the government was based upon the laches of its officers.
Mr. Justice STORY delivered the opinion of the court: The general principle is that laches is not imputable to the government; and this maxim is founded not upon the notion of extraordinary prerogative but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various and its agencies so numerous and scattered that the utmost vigilance would not save the public from the most serious losses if the doctrine of laches were applied to its transactions. It would in effect work a repeal of all securities.
A much more extreme case is German Bank v. United States, 26 Ct. of Cl. 198 (1891). United States bonds belonging to a trust estate were in terms payable to one Cockran, executor. He died, and an administrator with the will annexed was appointed, who filed copies of his letters at the Treasury Department. He delivered the bonds to the German Bank to sell, which forwarded them to the Chemical Bank for sale. The Register of the Treasury, upon inquiry by this last bank, replied: There is on file in this office satisfactory power in favor of your bank to transfer the bonds. The bonds were sold and the proceeds paid over to the administrator, who absconded. The cestuis of the original trust brought suit against the bank and recovered. Has the first bank now any action against the United States ?
The Chief Justice, RICHARDSON, held not: The government is not responsible for erroneous opinions concerning the right of an administrator to transfer United States bonds, although an innocent party made the transfer on the faith of the opinion. To give advice and assistance in the transfer of bonds is an excess of authority by a public officer, and to transfer them without authority is a wrongful act, and for neither is the government responsible. The government is not responsible for the laches or wrongful acts of its officers. The scope of authority of the Register is to transfer only on proper authority the ownership of registered bonds from one person to another. It can go no further.65
65 SUBJECTION.-Dox V. Postmaster-General, 1 Pet. 318; United States v. Kirkpatrick, 9 Wheat. 720; Sharon v. Salisbury, 29 Conn. 113; German Bank v. United States, 26 Ct. of Ci. 198; State v. Haskell, 20 la. 276; Holten v. Lake Co. Com’rs, 55 Ind. 194; Mitchell v. Rockland, 41 Me. 363; People v. St. Clair Co. Sup’rs, 30 Mich. 388; State v. Olson, 55 Minn. 118; State v. James, 1 Cush. (Miss.) 300; Blackmore v. Boardman, 28 Mo. 420; McKecknie v. Ward, 58 N. Y. 541; Pittsburg R. R. v. Shaeffer, 59 Pa. St. 350; Commissioners v. Rose, 1 Desaus. 461; Crawn v. Commonwealth, 84 Va. 282.
In last analysis, then, this question of the authority of the officer is reduced to the distinction between discretionary powers and ministerial duties. If an officer has discretion he may do any act within that discretion; and all that he does will be held to have been done by express authorization of law. On the other hand, if the duty of the officer is ministerial only, that very act which he had been directed to do can be held to have been done with authorization of law. Therefore, if he acts beyond this express authorization, his acts will be held to be void. Every method of administration of every sort that may be found may be reduced in the last analysis to this distinction between discretionary powers and ministerial duties. Whatever form these may take, it is all administration.