IN THE MATTER OF THE RIGHT OF THE LEGAL REPRESENTATIVES OF A DECEASED ATTORNEY, TO RECEIVE THE TREASURER'S DRAFT ISSUED IN PAYMENT OF A CLAIM PROSECUTED TO ALLOWANCE BY SUCH ATTORNEY, WHILE LIVING, UNDER A POWER OF ATTORNEY AUTHORIZING HIM TO DO SO, AND TO RECEIVE SUCH DRAFT.— DECEASED-ATTORNEY CASE.

1. A claimant gave a power of attorney to his attorney, employed at a reasonable compensation, to prosecute, in the Treasury Department, a claim against the United States, and to receive the Treasury draft to be issued in payment thereof. Such power of attorney did not contain any provision declaring, that, in case of the death of the agent, his legal representatives should be authorized to receive the draft. After successfully prosecuting the claim, and after the issue of a draft by the Treasurer of the United States, payable to the order of the claimant for the amount of the claim, the attorney died before receiving such draft. Held: (1). That the power of attorney did not vest in the attorney a power coupled with an interest in, nor give him any lien upon, the draft, or the money thereon payable. (2). That the death of the attorney terminated his agency. (3). That the legal representatives of the deceased attorney have no authority to receive the draft. (4). That a power might be executed in terms which would give the legal representatives of an attorney the right to receive the draft in such case. A claimant gave a power of attorney to his attorney-at-law, employed at a reasonable compensation, to prosecute a claim against the United States before the Treasury Department, and to receive the Treasury draft to be issued in payment thereof, but without any provision in such power of attorney that, in the event of the death of the agent, his legal representatives should have a right to receive the draft. The attorney successfully prosecuted the claim, and a warrant on the Treasurer of the United States was granted by the Secretary of the Treasury, and countersigned by the First Comptroller, authorizing payment to the claimant of a specified sum. The Treasurer accordingly issued a draft on an assistant treasurer, payable to the order of the claimant; but, before its delivery to the attorney, he died. The First Comptroller is asked to decide, whether, under the power of attorney, the draft can be delivered to the legal representatives of the deceased attorney.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The power of attorney did not vest in the attorney a power coupled with an interest in, nor give him any lien upon, the draft or the money thereon payable (McAllister's case, 2 Lawrence, Compt. Dec., 2d ed., 179). The death of the attorney terminated his agency. Thus, in Wharton on Agency (109), it is said, that:

"Agency necessarily ceases on the death of the agent, and so rigorously is this rule applied, that, where a firm is appointed to an agency, such agency ceases upon the death of one of the members of the firm,

and the principal is not bound by the subsequent acts of a surviving member."

The Secretary of the Treasury "is authorized to prescribe regulations, not inconsistent with law, for the performance of" the business of the Department (Rev. Stat., 161). The regulation on the present subject declares that:

"In every case to be finally adjudicated in this Department, the attorney shall present a letter of attorney from the claimant to prosecute the case, and shall be regarded as the attorney in such case, with the right to receive any draft therein" (Di Cesnola's case, 2 Lawrence, Compt. Dec., 2d ed., 146; Clift's case, Id., 193).

This cannot literally apply to a deceased attorney, because he can not receive a draft. The regulation does not, in terms, give his legal representatives a right to receive the draft. It is to be construed with reference, and in subordination, to general common law principles, except so far as the latter are expressly, or by necessary inference, repealed thereby. The common law, so far as not repealed by an authorized regulation, enters into, operates upon, and controls it. (Martin's case, 2 Lawrence, Compt. Dec., 2d ed., 335; Keyser's case, ante, 261). In the classes of cases now being considered an attorney is chosen for his peculiar aptitude in the exercise of a particular discretion and for his trustworthiness, and cannot hand over such trust to a substitute. (Whar ton, Agency, 28, 579, 645, 709, 756.) The relation between client and attorney is that of a personal confidence and trust. If the attorney cannot act by a substitute in such case, how can his executor or administrator act without the authority of the principal? An executor or administrator may not be a suitable person to execute such trust relations as existed between the deceased attorney and his clients. The legal representatives of a deceased attorney, who while living, acted under a naked power, as in this case, have no authority to complete the unexecuted agency. Their only jurisdiction is over the estate of the decedent. (1 Williams, Executors, 474, [409], note; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, 89, 96.) It seems probable that a power might be executed in such terms as to provide that, if the attorney should die after the successful prosecution of a claim, his legal representatives should have a right to receive a draft issued in payment thereof.

The draft cannot be delivered to the legal representatives of the decedent.

TREASURY DEPARTMENT,

First Comptroller's Office, November 19, 1883.

IN THE MATTER OF THE AUTHORITY OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, UNDER AN ACT APPROPRIATING MONEY FOR THE EXPENSES OF PUBLIC WORKS FOR A DESIGNATED FISCAL YEAR, TO MAKE CONTRACTS FOR THE CONTINUATION OF SUCH PUBLIC WORKS IN A SUBSEQUENT FISCAL YEAR CONTINGENT UPON AN APPROPRIATION BY CONGRESS.-COYLE'S CASE.

1. The construction of the act of June 11, 1878 (20 Stat., 102), "providing a permanent form of government for the District of Columbia," may be aided by the history of the legislation relating to the District.

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2. The act of March 3, 1881 (21 Stat., 458), "making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, eighteen hundred and eighty-two," appropriates "for Boundary street auxiliary sewer, fifty thousand dollars." May 12, 1882, the Commissioners of the District made a contract with B. J. Coyle to construct "so much of the sewer as will amount to a total cost of $50,000", at rates of compensation specified. The contract recites that, "the Commissioners have presented to Congress an estimate of $85,000 to be expended during the fiscal year ending June 30, 1883. Whatever amount may be appropriated for this purpose will be expended under this contract." The contract also provides that, "all work must be commenced within sixty days." The contractor gave bond with sureties for the performance of the work "in accordance with the stipulations of the contract." The act of July 1, 1882 (22 Stat., 135), “making appropriations for the fiscal year ending June thirtieth, eighteen hundred and eighty-three," appropriates $85,000 for the sewer. Held: (1) The contract is absolutely void so far as it professes to provide that whatever amount may be appropriated to be expended during the fiscal year ending June 30, 1883, will be expended under this contract, because in violation (a) of that provision of the act of June 11, 1878, which declares that the Commissioners "shall make no contract other than such shall be approved by Congress" (20 Stat., 103-4, sec. 3); (b) of that provision of said act requiring contracts to be made, after published notice, upon "the lowest responsible proposal" (20 Stat., 105, sec. 5); (c) of sections 81 and 83 of the Revised Statutes relating to District of Columbia, and sections 1813, 3690, 3732, 3733, 5503 of the Revised Statutes of the United States; and (d) of other provisions cited of acts relating to said District, all of which provisions are mandatory and not merely directory. (2) Such contract is not capable of ratification by the parties to it, because of the provision of the statute requiring contracts to be inade after public newspaper notice and upon the "lowest responsible proposal", which is mandatory. (3) Congress, with the assent of the contractor, Coyle, and his sureties, could ratify said attempted contract, but it did not do so by the appropriation made by act of July 1, 1882. (4) The Commissioners of the District having failed to make any contract during the fiscal year ending June 30, 1883, for the expenditure of said appropriation of $85,000, there is no lawful mode by which it can now be expended. (5) The sureties in the bond of the contractor did not, and could not by the terms of their contract, become liable for the performance of any work done under the appropriation of $85,000. (6) A contract for the construction of a public work under the government of the District of Columbia made during the fiscal year in which an appropriation is available to pay therefor, and which contract provides that the work shall commence after such fiscal year, and be paid out of such appropriation is absolutely void, because the providing of an appropriation expressly for the expenses of a designated fiscal year necessarily negatives the idea of its use for another fiscal year. (7) Quære, Whether the contract mentioned is absolutely void, because it gave the contractor, Coyle, an option to com

mence work under it after the fiscal year for which the appropriation was made! (8) Quare, Whether an appropriation made for a designated fiscal year for the expenses of public works constructed under the authority of the Commissioners of the District of Columbia, can be applied to the payment of any part of the work performed after the expiration of such year under a contract made during such fiscal year, and requiring the work to be performed during such year? 3. Under an annual appropriation act, an appropriation for personal services can only be used in paying for such services rendered during the proper fiscal year.

4. Under an annual appropriation act for supplies for the service of a designated fiscal year, payment can generally be made for only those supplies delivered during the year for use in such year.

5. Construction given to: (1) Sections 1813, 3690, 3732, 3733, 5503 of the Revised Statutes. (2) Sections 81 and 83 of the Revised Statutes relating to District of Columbia. (3) The acts June 20, 1874 (18 Stat., 116), and June 11, 1878 (20 Stat., 102). 6. The case of Strong v. the District of Columbia (1 Mackey, Supreme Court, D. C., 265), followed and approved.

By the District of Columbia appropriation act for the fiscal year ending June 30, 1882, approved March 3, 1881 (21 Stat., 458), there was appropriated "for Boundary street auxiliary sewer, fifty thousand dol lars."

On the 12th day of May, 1882, the Commissioners of the District executed a contract, No. 389, with Bernard J. Coyle, by which he agreed

"To furnish all necessary labor and materials, and in a good, firm, and substantial manner, in strict accordance with plans on file in the engineer's department of the District of Columbia, and the printed specifications as modified in writing hereunto attached, and made a part of this contract, execute the following described work, viz:

"Construct the fourth section of Boundary street (intercepting) auxiliary sewer, twenty (20) feet interior diameter, from the terminus of the third section of this sewer, westwardly."

Then follow the specifications, giving approximate estimates of the quantities of the several kinds of work, and it is then stated that

"The above quantities are approximate only, and may be increased or diminished; the intention being to contract for so much of the sewer as will amount to a total cost of $50,000, which is the amount now available. "For the completion of this section there remains about 1,600 linear feet of sewer. 20 feet internal diameter, the construction of which is contingent upon obtaining the necessary appropriation.

"The Commissioners have presented to Congress an estimate of $85,000, to be expended during the fiscal year ending June 30, 1883. Whatever amount may be appropriated for this purpose will be expended under this contract."

Then follows an estimate of the quantities of work required for the completion of this 20 foot section.

No. 2 of the general conditions of the contract provided:

"If, in the opinion of the Commissioners, the work shall at any time be unnecessarily delayed or improperly performed, the Commissioners reserve the right to suspend the contractors from performing said work, and to place other parties upon the work to complete it; and the additional cost and expense of the same, if any, shall be charged to the contractors and their sureties, who will each and severally be held fully liable for such cost and expense."

No. 5. "All work must be commenced within sixty days after the date of the execution of the contract, and prosecuted at an average rate of 10 lineal feet per diem thereafter."

The contractor gave bond with sureties to the United States of the same date as the contract, May 12, 1882, which bond is in the penal sum of $50,000, and is conditioned that the said Bernard J. Coyle shall strictly and faithfully perform, to the satisfaction and acceptance of the Commissioners of the District of Columbia, the work to be done by him in accordance with the stipulations of the contract, and in every respect fully comply with the provisions and requirements therein contained. See act June 11, 1878 (20 Stat., 106, sec. 5).

The district appropriation act for 1883, approved July 1, 1882 (22 Stat., 135), appropriated "for Boundary street intercepting sewer, eighty-five thousand dollars."

At the time Mr. Coyle submitted his proposal for the work, he stated on the back thereof in writing: "I am prepared to furnish the additional bond that may be required when the pending appropriation applicable to the fourth section is made." The contractor commenced work under his contract prior to June 30, 1882.

September 18. 1883, Mr. Coyle notified the Commissioners that he declined to go on with the performance of the work beyond the amount of $50,500, first provided for in the contract.

September 21, 1883, the Commissioners of the District, by virtue of No. 2 of the general conditions of the contract, suspended Mr. Coyle from prosecuting the work, and called on his sureties to complete the contract.

October 9, 1883, the Commissioners asked the views of the First Comptroller on the following questions:

1st. Was the contract so far void that the contractor may lawfully refuse to perform any work in excess of the $50,000 upon request, or was it merely voidable in case Congress failed to make the appropriation?

"2d. The bond being only for $50,000 instead of $135,000, is the contract a nullity for that reason, and may the contractor for that reason refuse lawfully to execute the whole work? Or, should the contractor perform fully according to the letter of the contract, may he rely upon being paid the contract price?”

The sureties request an opinion as to whether they are bound, after the exhaustion of the appropriation of $50,000, to proceed with the work under the further appropriation of $85,000.

Hon. Walter D. Davidge and Hon. James B. Fullerton submitted an argument for the sureties, claiming that they are responsible for the performance of the contract only to the extent of $50,000.

OPINION BY WILLIAM LAWRENCE, First Comptroller.

1. The act of Congress of February 21, 1871 (16 Stat., 419; Revised Statutes Relating to District of Columbia), provided a government for the District of Columbia, having a legislative assembly and board of public works, with large powers.