p. 242The defendants then moved the court to instruct the jury, “ that upon the whole evidence, the plaintiff could not recover,” which instruction was refused.
The defendants, by their counsel, moved the court for a new trial; for a repleader ; in arrest of judgment; and for judgment for the defendants, non obstante veredicto; all which motions were overruled. They then prosecuted this writ of error.
The case was argued by Geyer and Benton, for the plaintiffs in error ; and by Berrien, Attorney-General, for the United States.
For the plaintiffs in error it was contended :
1. That the judgment is erroneous. 2. That the act of congress requiring surveyors-general to give bond and security, does not apply to Rector, who was not a surveyor-general. 3. That the bond sued upon is not such a one as the act of congress prescribes. 4. That it was no part of the duties of the office filled by Rector, to disburse moneys. 5. That the money alleged to have been put into his hands was before he had been commissioned, and before the bond in question was given. 6. That the treasury transcript of Rector’s account, admitted on the trial, was not in this case evidence under any act of congress. 7. That the appellants had a right to have proved that Rector had applied the money put into his hands to the public use. 8. That the court below erred upon all these points, as set forth in the record and bill of exceptions ; and also erred in refusing a new trial, and overruling the motion in arrest of judgment.Geyer and Benton, for the plaintiffs in error,
argued, that this was an action of debt on a penal bond ; judgment has *been rendered in dam-J ages, for an amount exceeding the penalty; and although the excess may bo corrected by a remittitur, there is error in the form of the judgment, which the statute referred to (authorizing breaches to be assigned and damages assessed) does not cure ; that statute expressly declares that the judgment is to be entered as theretofore had been usually done.A surveyor like Rector was not bound to give a bond with security. (Land Laws 698, 818, Acts of Congress, passed 6th February 1806, 7th May 1822.) He was a subordinate officer, and the law applies only to the surveyor-general ; and he only is required to give a bond. Nor was it a part of the duty of this officer to disburse public money ; it not being a part of the regular duties of this inferior officer to receive and pay the public funds his sureties are not answerable for any violation of a trust illegally or without authority cast upon him.Unless the bond sued on was authorized by some act of congress, it is not obligatory. Although the power of making contracts is inherent in every sovereignty, and may be exercised in every government which has a constituted agent authorized to exert that power, and an existing code of laws ascertaining the obligation of such contracts ; yet the United States not having by the constitution of their government committed the exercise of this attribute of sovereignty to any officer or agent, it cannot be exercised, in the absence of any expression of the legislative rule. The common law of England cannot be referred to, for the purpose of ascertaining the powers, or measuring the capacity, of this government or its agents. The
p. 243United States recognise no common law. To make a -valid contract, the party must not only have a capacity to contract, but the means of exercising that capacity, by expressing their assent to its stipulations. The power of this government to make contracts can only be exercised by an agent delegated for that purpose ; though inherent, it remains dormant, until it is called into action by law. It has been contended, that this portion of sovereignty has been delegated to the executive. This proposition is inadmissible. It accords to the president, as a part of his constitutional power, a right to contract in the name and to pledge the faith of the nation in any manner, for any purpose, and to an infinite extent, in the absence of all law. To this extent- is the power claimed. The authority to make one contract, p|. in the absence of *law, can only be defended by the assertion of the *- general right to 'make any contract whatever. This power is said to have been delegated to the president in that clause of the constitution which declares that “ he shall take care that the laws be faithfully executed but it is submitted, that before he can execute a law of the Union, it must have been enacted by the legislature; he cannot, in the absence of law, exercise the power of making contracts, and much less, as in this case, against the expression of the legislative will.Again, a contract can have no validity, in a legal sense, unless there be a law to ascertain and fix its obligation. If it be true, that this government has no common law, nor any general statute law, defining the obligation of contracts with the government; it follows, that every such contract must derive its obligation by an act authorizing it, or it has no obligation. We maintain, therefore, that no contract with the United States can be valid, which is not previously authorized by an act of congress appointing an agent to express the assent of the government, and referring the contract, when made, expressly, or by implication, to some law to govern its obligation.But the power of making contracts, thus admitted to be inherent in the government, whatever may be its incidents, is subject to be controlled, modified and regulated by the legislature of the Union. They have,,in the act of 1822, under consideration, exercised this controlling power ; they have-created an agent to take bonds of surveyors, and have prescribed the very terms in which it shall be drawn ; by the terms of art employed, and the form of the instrument to be executed, they refer to the law of its obligation. This expression of the legislative will cannot lawfully be departed from; it excludes the idea that any other officer than the secretary of the treasury should act in behalf of the United States, or that any other contract than that prescribed, should be entered into in the particular case. If the act has any force- as a law, it narrows the general power to contract; and implies a dissent on the part of the government, that any other than the bond prescribed should be taken. Any other construction of this act would deny its force as a law, by allowing a discretion in the executive officers to exercise their pleasure, notwithstanding the expression of the sovereign will. This bond, not being in Conformity with the act, is not only taken without authority, but against law.The surveyor of the public lands for the states of Illinois .and Missouri, and territory of Arkansas, was not, by law, a disbursing officer; consequently, the breach assigned is not within the condition of - the bond. Not one of the several acts of congress, defining the powers-and duties of this
p. 244officer, make it his duty to receive or disburse money; his salary and fees are fixed by law ; he is no where authorized to receive or pay out money; he receives no commission for any such service, nor is he authorized or required to do any act rendering it necessary that he should disburse money; nor do any regulations of the department' appear to have been before the jury, by which it became his duty to act as a disbursing officer. The legislature expressly required a condition for the faithful disbursement of moneys, to be inserted in the bond ; as well as the condition for the faithful performance of the duties of the officer. The bond sued on does not contain the first condition. The legislature did not suppose that the last would include the first, or they would not have required the double condition. The words in the bond are not more comprehensive than the last condition required by the law. The first condition being omitted, the other cannot now, by any fair construction, be held to comprehend both.The plaintiffs in error cannot be held liable for moneys received by their principal, before the date of their bond ; even if its obligation is admitted, and Rector be a disbursing officer. The condition of the bond is prospective, and the act of congress of 1822, declares, that the bond shall be given before the surveyor shall enter upon the duties of his office. No money could lawfully be placed in his hands, before the date of the bond; in the sense of the issue, he could not have received the money, as such surveyor, &e., until he was authorized; certainly, not while he was forbidden to act. Until the 7th of August, he was a debtor of the United States ; not an officer holding their money according to law. The credit had been given on his individual responsibility; and the subsequent execution of the bond, which is prospective, and provides for the faithful performance of future official duties, cannot be converted into a security for a pre-existing private . debt, to legalize the ^unlawful acts of the treasury officers, and con- ■ -* vert the past conduct of Rector into a breach of the bond, the moment it was signed.The treasury transcript of Rector’s account was improperly admitted in evidence. The account should contain every item of charge and discharge, so that the party should have full notice of every part of the claim. Revenue officers, or officers accountable for public money, are those against whom the transcripts from the treasury are evidence. The provisions of the law do not apply to sureties ; as to them, as they cannot be supposed to be cognisant of the accounts of their principal, there should be the usual mode of proof, and they should have all the means of defence which are known to the law. A contrary principle is pregnant with injustice as to the sureties; no notice is given to them of the settlement of the account, and they will be subjected to charges which they had no opportunity to repel or disprove. They cannot make the affidavit which the law demands, to enable them to resist, on the trial, the claims of the United States; or to maintain the right of their principal to credits which have been withheld by the treasury department.The first item in the account is for a balance of $14,000, ascertained on some previous settlement, before the 3d March 1823 ; consequently, before the date of the bond; a default ascertained, for which these sureties cannot be held liable. This evidence was not only improperly admitted, but the-court instructed the jury, that the whole amount of the account, including this item* must be presumed to have been in Rector’s hands at the date of
p. 245the bond : assuredly, a default (of which the ascertainment of a balance is evidence) happening before the date of the bond, cannot be charged on the sureties.The court erred in rejecting the evidence offered by the defendants below. The court presumed, that the money received by Rector, before the 4th June, remained in his hands on the 7th August 1823. The defendants ought to have been allowed to rebut this presumption, by proving the facts to show' that what had been placed in his hands on his individual responsibility, and against law, had been wasted or disbursed, ^lawfully or unlawfully, before ,he became entitled to have any money in his official t character; and that the default had actually happened before the date of the bond. The evidence was not offered, for the purpose of establishing credits ; but to show that the defendants ought never to have been debited ; that the money had passed out of Rector’s hands before, and consequently, was not in his hands on the 7th August 1823.The judgment ought to have been arrested. The breach assigned, and the facts found and admitted, do not amount to a breach of the bond. Money is alleged by the plaintiff to have been in Rector’s hands on the 7th of August 1823, to be applied and disbursed in the discharge of the duties of his office, and that he neither disbursed nor accounted for it. It is not averred, and consequently, neither found by the jury, nor admitted by the pleadings, that there ever Avas occasion to disburse money,- or that Rector ever Avas required to account. If there Avas any money in his hands, in his official character, he had a right to retain it, until demands which he was bound to pay were presented, or the government required him to account for it. The facts alleged in the replication were true, the moment before the execution of the bond, and the very moment it Avas signed. In fact, the court so instructed the jury. The substance of the instruction given is, that the money must be presumed to have been in Rector’s hands, undisbursed and unaccounted for, on the 7th of August. These sureties are then held liable, because the money committed to their principal remained, after the execution of the bond, in the very condition in which it was before, without the averment or proof of any duty requiring a change of that condition.jBerrien, Attorney-General, for the United States. —
This is an action of debt for the performance of covonants. The principal in the bond was a surveyor of public lands, bound to perform certain duties, under the laws of the United States, and by virtue of his commission. The judgment must, therefore, be in damages ; being for the amount which, by the breach of the obligations of the principal, was due to the United States. If the judgment is beyond the penalty of the bond, the difference may be, and will be released. This may be done in court. 2 Pet. 327 .*A bond voluntarily given to the United States by a public officer [*383 is good, although no law requires that such bond shall be executed. The absence of authority to take such a bond does not make the condition illegal. The cases establish the following principles :1. That a bond given by or to a public officer, or to the government, is not invalid, merely because there is no law Avhich specifically authorizes the pne to demand, or requires the other to give.it. That it is only void ivhere
p. 247by the court. The giving a bond and taking the oath of office was not necessary to authorize him to enter on the duties of the office.'By the settlement, it does not appear that he was in default at the date of the bond, nor until 1824. Conceding that the sureties are not bound for the acts of Rector, before the date of the bond, August 1823, yet the duty of the principal to pay continued afterwards; and unless the balance which was afterwards ascertained to be due was paid, they are liable. The default of Rector did not occur until he was called upon to “'account, and this -.¡, was after the execution of the bond, in 1824. The case of the United *• States v. Giles, 9 Cranch 212 , was cited and commented upon.delivered the opinion of the court. — This was a suit instituted below, against the plaintiffs here, to recover a debt of $30,000, for which they had become bound to the United States, as sureties for one Rector ; who is described in the bond as “ surveyor of the public lands in the states of Illinois and Missouri, and the territory of Arkansas.” The plea was performance, and the breach alleged in the replication is in these words : “that at the time of the execution of the bond, there were in the hands of the said William Rector, as such surveyor, to be by him, in the discharge of the duties of his office, applied and disbursed for the use and benefit of the plaintiffs, divers sums of money, amounting, &c., and that the said William Rector hath not applied and disbursed the same money, or any part thereof, for the use and benefit of the plaintiffs, as in the execution of the duties of his said offiee he ought to have done.” On this plea, issue was taken, and at the trial, a bill of exceptions was taken to sundry instructions of the court, given or refused, which will be considered in their proper place. Two questions of a more general character must first be disposed of.
The first arises on the form of the judgment; the jury having found for the plaintiffs below, on the breach assigned, assess the damages for breach of the condition, at $41,000 ; and the judgment rendered is “ quod recuperet,” the damages, not the debt aforesaid. The parties, plaintiffs in errror, are the sureties, and it is perfectly clear, that as to them, a judgment cannot be rendered beyond the penalty, to be discharged on payment of what is actually due; which, of course, can only be, where it is a sum less than the penalty. It is proposed, on behalf of the United States, to release the surplus, and such'is their right; but this still leaves the form of the judgment uncured and unamended. It would seem, that in adopting this form of rendering judgment, the court below has been misled by the application of the 26th section of the act of 1789 to this subject. If so, it is a clear misapprehension ; since that section, if it sanctions such *a judgment at r*oS(, all, is expressly confined to three cases — default, confession, or *- demurrer ; with neither of which is the present case affected. There is no doubt, then, that the judgment must be reversed on this ground; but as other points, as well as those made in the bill of exceptions, might again embarrass the cause in the court below, and would most probably bring it back again here, it becomes necessary to consider those points.
The seeond preliminary point alluded to is, whether the bond was not taken without law, or contrary to law, so as to be illegal and invalid. This turns on the official character assigned to Rector in the bond, or on that in
p. 248which, in fact, he is to be regarded in law. He is described as
“ surveyor of public land
” in certain districts, not as surveyor-general. And such, in fact, was his literal character, for the office of surveyor-general still exists, nominally unique, although a large proportion of his powers and duties have been transferred to the surveyors of public lands in certain districts, subsequently detached from the region over which his powers were originally extended. In deciding on this point, three questions are to be considered ; 1st, whether he was bound to give bond at
all; 2d, whether the words of the condition embrace the duties of a disbursing officer ; and 3d, whether those duties were incident to his office.
Upon looking through all the laws passed upon this subject, it can hardly be doubted, that this officer was intended to be included in the provision of the act of May 7th, 1822, requiring security of the surveyor-general. Literally, there was, at that time, provision made under the laws for only one surveyor-general; but it is abundantly evident, that the officer who gave this bond was intended to be included in the provisions of that act, under the description of a surveyor-general. The indiscriminate use of this appellation in the previous and subsequent legislation of congress on the subject, will lead us to this conclusion. Until the passing of the act of Febuary 28th, 1806, all the surveying for the United States was carried on under the provisions of the act of May 18th, 1796, as amended by the act of May 10th, 1800 ; and under the control and superintendence of the surveyor- general. * In the year 1806, after the ^purchase of Louisiana, the powers of that J officer were extended to the country newly acquired, and he was enjoined to appoint a sufficient nnmber of skilful surveyors, as deputies, one of whom, to be appointed with the approbation of the secretary of the treasury, rvas to assume the character of principal deputy, and to exercise over the co-deputies the general power vested in and exercised previously by the surveyor-general. The subordinate character of all these officers was distinctly marked by that act; and yet we find, that in the act of March 3d, 1807, in the second section of the act, the epithet of surveyor-general is expressly applied to that individual of them who should have been employed in surveying the public lands south of the Tennessee. (2 U. S. Stat. 440.) Tet at a subsequent day, to wit, March 3d, 1815 (3 Ibid. 229,) we find the same officer designated generally as a surveyor of that district of country. So also, when the act of April 29th, 1816, was passed, which abolished the appointment of these deputies, and conferred the appointment of their present substitutes upon the president, the latter are simply designated as a surveyor, and not surveyor-general. Tet when the act of May 7th, 1822, is passed, requiring bond to be given by these officers, it is expressed altogether in the plural number, as recognising the existence of more than one surveyor-general.
There were, then, no other officers in existence, besides the actual surveyor-general, who could come within the literal enactments of that statute ; unless we include a surveyor appointed under the provisions of the act of April 29th, 1816. That is the present obligor. And if further confirmation be required to establish the necessary extension of the provisions of that law to tho present cause, w.e have it in the act of May 26th, 1824, in the second section of that act; the language of which expressly recongises the existence of more tnan one surveyor-general. It is clear, then, that frmn the
p. 249time that the appointment of deputies by the surveyor-general was superseded by the appointment of surveyors by the treasury department, the independent character in which whose officers then acted, identified them with the surveyor-general, so far as to have led to the use of language by congress, adapted to confounding them with the surveyor-general. We, therefore, have no doubt, that they were included in the '^provisions of the act which required bonds to be taken on their accession to *- office. Nor do we think that there is any more doubt, that the law contemplates them as disbursing officers. It is express in requiring them to give bond for the faithful disbursement of public money
; and
cid bono do this, if they were not regarded as disbursing officers ?
But the words of the statute which relate to disbursements are omitted from the condition of this bond, and the only words inserted are, “ that he shall faithfully discharge the duties of his office.” The court feel no difficulty in maintaining that where the conditions are cumulative, the omission of one condition cannot invalidate the bond, so far as the other operates to bind the party. But the question is one of much more difficulty, whether, where the law is express that the condition shall be both for the faithful disbursement of money, and the general discharge of duty, and the latter only is inserted ; the former may still beheld to be comprised within the general words of the latter. But for the language used in the statute, the court has no doubt, that the case would have been open to proof, that the disbursement of money was one of the known and habitual duties of the office, and included-in the general words ; but whether the omission of the express words which imposed this liability does not preclude a resort to their restoration incidentally by proof, is a question on which the court have felt much difficulty, and which they will not now decide.
The next questions to be considered are those presented by the bill of exceptions, and of these, that which goes to the sufficiency of the certificate, has already been disposed of in the case of John Smith T. v. United States (ante, p. 233), in which the same form of certificate was held to be a substantial compliance with the law under which it was resorted to as proof.
The remaining questions grow out of this state of facts. Rector was appointed surveyor, or, at least, commissioned as such, on the 13th of June 1823 ; and this bond bears date the 1th of August 1823. Between the 3d of March and the 4th of June, in the same year, there had been paid to him from the treasury, the sum of money found by the jury. So that it was paid to him before the commission, and before the bond in proof. *On ., this state of facts, the bill of exceptions asserts three grounds of L defence : 1. That the sureties could not be made liable at all for the money so paid : 2. That if at all, they ought to be let into proof that Rector had appropriated the money to his own use before the date of the bond : or, 3. That he had paid it, or enough of it to cover the penalty of the bond, to the use of the United States, before they became bound for him.
On these points we feel no difficulty in affirming, that for any sums paid to Rector prior to the execution of the bond, there is but' one ground on which the sureties could be held answerable to the United States, and that is, on the assumption that he still held the money, in bank or otherwise. If still in his hands, he was, up to that time, bailee to the government ; but upon the contrai’v hypothesis, he had become a debtor or defaulter to the
p. 250government, and bis offence was already consummated. If intended to cover past dereliction, tbe bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct; they ought, therefore, to have been let into proof of the actual state of facts so vitally important to their defence ; and whether paid away in violation or in execution of the trust reposed in him; if paid away, he no longer stood in the relation of bailee. It was not, then, a case to which that act applies, which requires the submission of accounts to the treasury, before discounts can be given in evidence ; since this defence goes not to discharge a liability incurred, but to negative its ever existing. In giving instructions to the jury on these points, therefore, the court erred, as well as íd refusing to let the defendants into proof, as prayed ; since such testimony presents a direct negative to the breach alleged, which is, that the obligor then had the money in his hands.
Judgment reversed, and venire facias de novo awarded.