
    THE TRENTON COMPANY’S CASE.
    The Trenton Locomotive and Machine Manufacturing Company v. The United States.
    
      On the Proofs.
    
    
      Congress authorize the building of the marine hospital in New Orleans, but expressly limit the cost to $399,659.20. The Secretary of the Treasury contraéis with the claimants for the work, the price being within the designated limit. Subsequently he orders extra work, which the claimants do. Before the contract work is finished the limit is reached. The Seeretary notifies the claimant that the appropriation is exhausted and work must stop till Congress authorize its resumption. They express a willingness to proceed, and request tobe released from the obligations of the contract. The tear intervenes. Subsequently all that remains of the $399,659.20 is paid to them, and the building is sold by authority of Congress. The claimants seek damages for not being allowed to finish the ivork specified in the contract. The defendants plead the statute of limitations.
    
    Where Congress authorize the Secretary of the Treasury to erect a building, but expressly limit the cost to a fixed amount, and the whole of that amount is paid to one contractor, he cannot charge the defendants with any further liability." A contractor doing all the work under such a statute is chargeable with notice of the restriction set upon the cost of the building by Congress, and cannot set up a breach of contract which will in effect do away with the restriction.
    
      The Reporters’ statement of the case :
    The court found the following facts:
    1. By the Aet Congress August 4, 1854, section 4, (10 Stat. L., 571.,)’the Secretary of the Treasury was authorized to cause to be constructed a marine hospital at New Orleans, La., at a cost of not more than $248,000; and by section 5 (p. 572) that amount, together with 10 per cent, thereon to cover the compensation of architects, superintendents, advertising, and other contingent expenses, and as much as might be required to purchase a suitable site for the same, was appropriated therefor.
    By Act August 18, 1850, (11 Stat. L., 85,) Congress made a further appropriation of $151,659.20 for the completion of said hospital, in addition to the appropriation previously made. These two appropriations, amounting together to $399,659.20, were made before the contract hereinafter mentioned was en-teréd into.
    After the making of said contract, Congress by Act June 12 1858, (11 Stat. L., 323,) made a further appropriation of $85,000 for the completion of said hospital, including filling up site, grading, introducing gas and water pipes and fixtures, and fencing.
    2. On the 14th of January, 1857, the contract sec forth in the claimants’ petition was entered into by the Secretary of the Treasury, on behalf of the United States, and by the claimants, as therein alleged.
    3. The claimants proceeded to furnish the materials and perform the work under said contract until May, 1860, when the following correspondence took place between the parties:
    “Treasury Department, May 10, 1860.
    “Sir : You are hereby notified that the balance of the appropriation for the construction of the New Orleans marine hospital remaining in the Treasury at this date is...$30, 987 33
    “The portion of this amount represented by your retained qmreentage is... 12,046 24
    “Leaving available for construction. 18,941 06
    “ When, therefore, this sum of $18,941.06 is exhausted, the work upon the building must stop.
    “If, however, you desire its continuance as much longer as the amount of your retained percentage will continue it, the Department will interpose no objection to so doing, provided you meanwhile file with this Department your written request to that effect, and your agreement to wait for the payment thereof until Congress shall make further appropriation for the purpose, together with the full and complete assent of your se-eurities to such continuance, without prejudice to their obligations to Government for the full and faithful completion of the work.
    “ Very respectfully,
    “HOWELL COBB,
    
      “Secretary of the Treasury.
    
    “A. H. Vancleve, Esq.,
    
      “Prest. Trenton L. & M. Mg. Go., Trenton, N, J.”
    
    “The Trenton Locomotive and
    “Machine Manueacturing Company,
    
      “Office, Trenton, N. J., May 18, 1860.
    “Dear Sir: I have the honor to acknowledge the receipt of your favor to our president, Mr. Vancleve, under date of the 10th instant, informing us that the available balance remaining of the appropriation for erecting the new marine hospital at New Orleans is $18,941.06, and that when this sum is exhausted by work upon the building it must stop, unless we desire to continue it upon such new terms and conditions as you suggest.
    “In reply, I am instructed by the'president to say that this company have not the necessary capital which would be re-' quired to pursue the work, where no certain period of payment could be predicated. We will, therefore, at once direct that our bills for work done up to the close of the present month shall be made out, in order to keep ourselves, as far as possible, within the limits indicated by the Department.
    “Very truly,
    “JOS. C. POTTS,
    “ Vice-President.
    
    “Hon. Howell Cobb,
    
      “Secretary Treasury United States.”
    “ May 21,1860.
    “I acknowledge the receipt of your letter of the 18th instant, notifying me that your resources will not permit you to assent to the use of your retained percentage upon the contract for the New Orleans marine hospital in the completion of the building. The superintendent is, therefore, this day notified that, when the appropriation is exhausted, the work upon the building must stop.
    “HOWELL COBB.
    “ J. C.Potts, Esq.,
    “ Vice-President Trenton Locomotive and Machine
    
    “ Manufacturing Company, Trenton, N. J.”
    
    
      “Oeeice, Teenton, N. J.,May 22,1860.
    “Deae Sie: I have the honor to acknowledge the receipt of your favor of the 21st, giving to this company the information that you had notified the United States superintendent at New Orleans that when the appropriation is exhausted the work upon the marine-hospital building must stop.
    “With this notice before us, and in view of the very small amount remaining of the appropriation unexpended, we shall at once take steps to meet the views of the Department, and bring the work to a close.
    “Yery truly,
    “JOS. 0 POTTS,
    “ Vice-President.
    
    “Hon. Howell Cobb,
    “ Secretary of the Treasury United, States.”
    
    “Oeeice, Teenton, N. J., May 30, 1860.
    “Deae Sie : By letters from New Orleans, under date of the 24th instant, we learn that the work done'at and materials furnished for the marine hospital at New Orleans, and such further materials for that building as have been contracted for, and which we are bound to take, will considerably exceed the amount of the balance of the appropriation remaining on hand in the Treasury, of which you have given us notice.
    “We have, therefore, given directions to suspend all further work and purchase of material, to hasten the delivery of such material as has been purchased, and to briDg the whole to a close at as early a day as practicable. This done, we propose to deliver the custody of the entire property over to the superintendent of the hospital, Major Beareguard, if our so doing meets with your approval.
    “Yery truly,
    “JOS. O. POTTS,
    “ Vice-President.
    
    “Hon. Howell Cobb,
    “ Secretary of the Treasury, United, States?
    
    “Mat 31,1860.
    “I acknowledge the receipt of your letter of the 30bh instant, saying that you had' given directions to suspend all further work and purchase of material for the New Orleans marine hospital, to bring the work to a close, and deliver the custody of the entire property to the superintendent, and to say in reply that the contract does riot require the surrender of the building to the Government until it is fully completed.
    “ HOWELL COBB.
    “Joseph C. Potts, Esq.,
    “ Vice-President Trenton Locomotive and Machine
    
    
      “Manufacturing Company, Trenton, W. J.
    
    “Opeice, Trenton, N. J., June 14, I860.
    “Dear Sir: In your favor of the 10th May last you notify us that—
    “‘The balance of the appropriation for the construction of the New Orleans marine hospital remaining in the Treasury at this day is.$30, 987 33
    “‘The portion of this amount represented by your retained per centum is..-. 12,046 24
    “‘Leaving available for construction. 18,941 06
    “‘When, therefore, this sum of $18,941.06 is exhausted, the work upon the building must stop.’
    “We immediately took the necessary steps to fulfill this instruction, and soon ascertained that the amount of work at that time done and materials furnished would more than exhaust this balance. The work was therefore at once stopped, and the accounts therefor are now in course of settlement at the agency at New Orleans.
    “In this state of the case, we suppose it is legitimate for us to ask for, and for the United States to make, payment of the balance of percentage remaining on hand, to wit, $12,046.24. Will you be kind enough to send me a draft on New York or Philadelphia for that amount, and oblige,
    “Very truly,
    “JOS. C. POTTS,
    “ Vice-President.
    
    “S. M. Clark, Esq.,
    
      “Acting Engineer in charge Bureau of Construction.”
    “Office, Trenton, N. J., June 30,1860.
    “ Dear Sir : On the 14th instant I had the honor of addressing you a letter, of which I inclose a copy. Not having heard from you in reply, and knowing your great punctuality in official matters, I am confident my letter bas miscarried.
    “As I believe Congress adjourned without having made any further appropriation for completing the marine hospital at New Orleans, that consummation is, of course, indefinitely postponed, and we have only to be patient under the present disappointment.
    “ Will you have the goodness to send us a draft for the amount of percentage reserved, by early mail, and very greatly oblige, “ Yery truly,
    “JOS. C. POTTS,
    “ Vice-President.
    
    “ S. M. Clark, Esq.,
    
      “Acting Engineer in charge of Bureau of ConstructionP
    
    4. In accordance with the directions of the Secretary of the Treasury, as set forth in the foregoing corre spondence, and for the reasons therein stated, the claimants thereupon brought the work under said contract to a close, and in July, 1860, the defendants took possession of said hospital-building in its unfinished condition, and retained the same until, by authority of the act of Congress of March 3,1873, (17 Stat. L., 511,) it was sold by the Secretary of the Treasury soon after the passage of said act, without any more work having been done thereon.
    5. At the time said work was brought to a close the claimant had performed work and furnished materials under the contract, according to the specifications for completing the hospital, to the amount of $315,145.74, all of which had been, or thereupon was, paid by the defendants, excepting a portion of the retained percentage mentioned in the contract.
    6. By request of the claimants, the Secretary of the Treasury, on the 31st of July, 1860, ordered the unpaid balance of said retained percentage to be paid over upon the claimants procuring and filing the consent of the sureties on said contract ; which said consent was thereupon filed in the form hereinafter set forth, and said balance was paid to the claimants:
    “Geeice, TreNTON, N. J., July 30, 1860.
    “Sir: We, the undersigned, assignees and sureties of the Trenton Locomotive and Machine Manufacturing Company, contractors for the erection of the new marine hospital at New Orleans, do hereby consent that the remaining percentage unpaid upon the contract for building said hospital should be paid over to said company, and that said payment or payments, so to be made, shall in nowise impair or change our present relations to or liability under said contract as sureties or assignees.
    “A. H. YANCLEYE.
    “JOS. C. POTTS.
    “JOS. G. BREASLEY.
    “B. W. TITUS.
    “WM. H. POTTS.
    “A. R.. TITUS.
    “ Hon. Howell Cobb,
    “ Secretary Treasury United States.”
    7. In November, 1862, the claimants sent to the Secretary of the Treasury the following letter:
    “Trenton, November 21, 1862.
    “ Dear Sir : Permit me to inquire of you whether the time has not, in the opinion of the Department, arrived for taking the proper steps to cancel the contract for building the new marine hospital at New Orleans, and to finally settle with the contractors. Some eighteen months ago I had the honor, personally, to call your attention to the subject, but in the then condition of the country you thought it had better be deferred, in which opinion we have acquiesced. Now that the Government is again recognized at New Orleans, it seems but right that the Department should ask of Congress a sufiicient appropriation to enable the contractors to go on and finish the building, or for authority to discharge them and settle their equitable damages.
    “ May I hope for the favor of a reply ?
    “ Yery truly,
    “JOS. C. POTTS,
    “ Vice-President.
    
    “ Hon, S. P. Chase,
    “ Secretary of the Treasury.”
    8. At the time said work was brought to a close the claimants had also furnished materials, and performed work for said hospital-building not specified in said contract, but required by the Secretary of the Treasury, under the power given him by the contract to make alterations, additions, or curtailments; for all of which said claimants had been paid in 1860 and previously out of the appropriations specified in the first finding, except an unadjusted balance claimed by the contractors. For this balance the claimants, at different times thereafter, requested payment; and in July, 1863, the defendants, upon examination and restatement of the account, paid the amount by them found to be due, and the claimants gave the following receipt:
    “ The United States to Joseph C. Potts, vice president Trenton Locomotive Machine Mfg. Go., Dr. On account of the appropriation for the construction of the marine hospital at New Orleans, La.
    
      
    
    
      “ July 21. — Eeceived of the United States the sum of nineteen thousand five hundred forty-two T209p dollars, ($19,542.29,) being-in full of all demands against the United States for work or materials furnished or performed under the contract for the construction of the marine hospital at New Orleans, La., or for extras thereon, according to the decision of the Secretary of the Treasury dated July 10th, 1863.
    “ JOS. C. POTTS,
    “ y, prest, Trenton Iron M. M. Co?
    
    9. The whole amount paid to the claimants for materials and work on said building, out of said appropriations, was $410,737.01; of which the sum of $95,591.27 was for extra work and materials required by the Secretary of the Treasury, as set forth in the eighth finding.
    10. Had the claimants been permitted to go on and finish the work under the contract, without stoppage or interruption in 1860, their net profits at that time, upon the materials remaining to be furnished and the work to be done, making reasonable deduction for the less time engaged and for release from the care, trouble, risk, and responsibility attending a full execution of the contract, would have been $4,485.42.
    
      Mr. Joseph C. Potts and Mr. P. L. Stanton for the claimants :
    The Act 1st May, 1820, (3 Stat., L. 567,) is entitled “An act in addition to the several acts for the establishment and regulation of the Treasury, War, and Navy Departments.”
    
      It relates to the duties of the heads of Departments therein named. Section 6 provides, among other things, that no contract shall be made by the heads of those Departments except under a law authorizing the same, or under an appropriation adequate to its fulfillment. (Potter’s Dwarris on Statutes, 222.)
    This provision is merely directory. Moreover, the contract by its terms came within the two appropriations; the first being for $248,000, and the second for $151,659.20, making $399,659.20.
    The appropriations were exhausted by expenditures for work extra to the contract, but found to be necessary, directed by Government officers, performed satisfactorily, and accepted by the Government. This extra work was long ago paid for, and in part by Secretary Chase. The legality of paying for what the Government ordered and got extra to the contract cannot be questioned; still less can it be maintained that a contract originally within the limits of the appropriation became, in respect of what is within the original terms of the instrument, illegal, because the Government required and paid for certain extra work. This would not be so even if the orders under which the extra work was done, but on which no demand is now made, had been illegal. [Memphis v. Brown, 20 Wall., 312.)
    Recovery is here sought only for breach of the original provisions of the contract which were within the first appropriation.
    The contractor is not driven to a quantum meruit, because he has a right to rely on the provisions of the special contract between the Government and himself, which contract the Government has broken. The contractor was not bound to go on with the work after the Government told him he would not be paid according to the contract, nor until there should be a further appropriation. Ro estoppel upon claimant results from the transaction as to the retained percentage, unless the contractor by his representations or conduct therein induced the Government to give him an advantage which it would be against equity and good conscience for him to assert. Where something is procured by one party from another by such representations or conduct as would render it contrary to equity or good conscience for the procuring party to use or rely on what he has so procured, then the doctrine of equitable estoppel, or estoppel in pais, applies, and the procuring party is estopped from using or relying on what he has procured. (Willdnson v. Insurance 
      
      Co., 13 Wall., 233-236.) Here the claimant does not rely on the pay ment of the retained percentage. Nor was there in the application for or receipt of it any conduct precluding claimant from asking for or obtaining damages for breach of the contract.
    
      Mr. Joseph K. McOammon (with whom was the Assistant Attorney-General) for the defendants-:
    The appropriations for the construction of the marine hospital at New Orleans, La., were exhausted before the completion of the hospital. The contract came to an end^after the last payment. For work remaining to be done under the contract there is no remedy, as the authority to contract as to amount extended no further than the sum appropriated for the specific purpose. {Act May 1,1820,3 Stat. L., 568; 4 Opin., 490, 600; 9 ibid., 18.) The Act August 18,1856, (11 Stat. L., 85,) appropriated so much money in addition to the sum named in the Aet August 4,1854, (10 Stat. L., 571,) for the completion of the marine hospital at New Orleans, La. The contract was made subsequent and subject to these acts, and the contractor as well as the Secretary of the Treasury was bound to know whether the sums appropriated were sufficient, after deducting the amounts to be paid for extras, &c., to allow the payment to the contractor of the amount fixed in the contract for the work.
    The company received the benefit of the whole appropriations, and it is estopped from alleging carelessness in expending the amount on the part of the Secretary, or that the appropriations were not applied to its contract. The Secretary was guided in the making of the contract solely by the Act May 1, 1820, and the acts appropriating money for the New Orleans marine hospital, and the company is presumed to have had knowledge of the extent of his authority. If the contractor had proceeded to finish the building after the exhaustion of the appropriation, he could not claim under the contract, but on a quantum meruit. The contractor having stopped the work himself, when he could haVe proceeded at his own risk, and taken the chances for an appropriation by Congress, or claimed on a quantum meruit for work already done, is estopped from claiming the loss of profits under his contract.
   Richardson, J.,

delivered the opinion of the court:

We are all of opinion that the claimants are not entitled to recover in this action, and that judgment must be entered for the defendants, although there is some difference in the views of the judges by which that opinion is reached.

The original act of Congress, August 4, 1854, (10 Sbat. L., 571,) authorizing the Secretary of the Treasury to cause to be constructed a marine hospital at New Orleans, expressly limited the cost to $248,000. This was followed by another, Act August 18, 1856, (11 id., 85,) making a further appropriation of $151,659.20 for the completion of the hospital. The effect of this latter act was to raise the limit of the cost to $390,659.20,, and that was the extent of the authority of the Secretary of the Treasury either to expend money in erecting a building, or to make a contract for expenditures on the same which would be binding on the defendants.

The contract upon which this action is brought was made under the authority of these two acts of Congress, and the claimants, as well as the Secretary of the Treasury, knew, or were bound to know, the terms of the law under which they were acting, and the contract entered into by them must be held to have been made with reference to all the provisions and limitations of the statutes. It was not necessary, in order to make them obligatory on the parties, to set them forth in the agreement, any more than it was necessary to set forth or refer to the law giving power to the Secretary of the Treasury to cause the hospital to be'built. The laws of Congress not in conflict with the Constitution are supreme, and cannot be set aside or overridden by the agreements or omissions of public officers.

The limitation of the cost of the hospital was an important and material part of the laws authorizing its erection; and, as was well said by this court in a similar case, where a contract was made to erect a building the cost of which was not to exceed the amount specified, “to all intents and purposes the Government wrote this limitation upon the face of the contract,” (Joseph Curtis v. The United States, 2 C. Cls. R., 151,) and it must be so construed.

The contract provided that the claimant should complete the entire building according to the plans and specifications referred to therein for the sum of $360,000, which was within the limits of the appropriation; but it also provided that the Secretary should have full power to alter, change, or amend the plans and specifications in any way that he deemed conducive to the best interest of the United States, or to the earliest and best completion of the hospital; and that for any alterations, additions, or curtailments ordered by the Secretary, which might affect the cost of construction either more or less, an estimate should be made, in the manner agreed upon, of additional or lessened cost, and the amount of such estimate should be added to or taken from the price of $360,000.

Thus by the very terms of the written contract the Secretary of the Treasury had the right to vary the plans and specifications, enlarging or diminishing the cost of construction, subject only to the express limitation of the law that the whole expenditure should hot exceed the sum of $399,659.20. The Secretary availed himself of the power thus reserved to him, and did materially change the specifications, and make alterations and additions, so as to expend $95,591.57 out of the appropriations, for work, labor, and materials not included in the original specifications covered by the contract-price of $360,000, and in doing so exhausted the appropriation and reached the limit of the law and of his authority before the full amount of $360,000 had been expended upon the work and materials set forth in the original plans and specifications, by the sum of $44,854.26, and yet the building was not completed. Under these circumstances, the Secretary having no authority to make any further payments, and the claimants being unwilling to continue the work and wait for the payment thereof until Congress should make further appropriations for the purpose, the work was brought to a close, and the building in its unfinished condition was thereupon turned over to the officers of the Government. No further appropriation was ever made by Congress, and no more work has ever been done on the building, and since this action was brought the property has been sold and the title thereto has passed from the defendants.

The claimants now seek damages for not being allowed to go on and do the unfinished part of the work mentioned in the original specifications, which remained to be done in order to complete the building, to the extent of said $44,854.26. They seek to charge the United States with the expenditure of that amount, or damages for not expending it, over and above the express limit wbicb Congress fixed as the cost of tlie building, notwithstanding that they have received the whole of the appropriations made in the act fixing the limitation, paid to them for work and materials done under contract to which that limitation attached.

Neither the defendants nor the Secretary of the Treasury have violated any of the terms of the contract. Congress, which alone has the power to appropriate money, never agreed, nor authorized any agreement to be made, to appropriate any money for this building, other than that specified in the two acts referred to. The Secretary of the Treasury did not contract to expend any sum beyond the congressional limitation, and that sum he has expended in accordance with the provisions of the contract, and has broken none of its terms. The extra work, alterations, and additions were contemplated by the parties to the contract as likely to be required, and were expressly provided for therein. The Secretary had as much right to so alter the specifications as to expend part or the whole of the appropriation upon additions and alterations as he had to apply any part of it to carrying out the xilans and specifications specifically referred to. He did not divert the money, or any part of it, from the work provided for in the contract, but expended the whole in exact accordance with the power and authority therein reserved to him. Nor did he employ any parties other than the claimants, with whom he had contracted, to do any of the work.

Had the Secretary of the Treasury unlawfully used for other purposes some of the money appropriated for this hospital, or improperly used it in the employment of parties other than the claimants to do the work called for by their contract, the claimants would have presented here quite a different case from the one now under consideration. But the claimants did all the work that was ever ordered by the Secretary, and they did the same under and by virtue of the obligations of the contract, and subject to its limitations. For that work they have been fully paid, and have received not only the whole amount of the appropriation, the extreme limit which the contract under the law could call for, but they have received the sum of $11,077.81 in addition, out of another appropriation made by Congress subsequently to the time of the execution of the contract, and intrusted to the Secretary of the Treasury, to be expended by him for filling up site, grading, introducing gas and water pipes and fixtures, and fencing, work not provided for by the contract, and for otherwise completing the hospital. Thus the claimants, having received, for work done under the contract and according to its express terms, more money than the full amount of the limit to which it was by the acts of Congress made subject, have no cause to complain.

These are the views of a majority of the court, and they are decisive of the case on its merit's.

But even if the defendants ever were under obligations to allow the claimants to go on and finish the building after the appropriations were exhausted, and the contract did not come to an end by the limitations stamped upon it by the law, two of the court are of opinion that there was no breach by the defendants within the six years immediately preceding the time of 1 ling the petition in this action, and the Assistant Attorney-General having filed a plea of the statute of limitations, that plea would be a bar to the claimants’ recovery of damages. In July, I860, all work under the contract was brought to a close by order of the Secretary, of the Treasury, on account of the exhaustion of the appropriation, and the unfinished building was voluntarily turned over to the Treasury Department by the claimants. At the end of the same month the whole amount of money held by the Treasury Department, under the provision of the contractt that 10 per cent, of the value of the work done and materials ' furnished should be retained until the completion of the work, was paid over .to the claimants. Between that time and February 22,1801, the claimants notified the Secretary of the Treasury of their readiness, ability, and desire to complete the contract, and asked to be relieved from any obligations under it, or else allowed .to go on with the work.

In November, 1862, the claimants addressed the Secretary in writing, asking him whether the time had not, in the opinion of the Department, arrived for taking the proper steps to cancel the contract or finally settle with the contractors. In July, 1863, after repeated requests from the claimants, the Secretary of the Treasury had the accounts under the contracts examined and restated, and paid to the claimants the balance found due them for work and materials, or' for extra work, to the amount of $19,512.29, and the claimants receipted therefor in full for such work and materials. From that time to the time of filing the petition in this case, a period of more than nine years, the claimants never offered to go on with the work, and never called upon the defendants in relation to the matter, and daring that long period of time the defendants did no act which can be construed into a breach of the contract. The only breach which the petition sets forth in any jiroper form, if that be a breach, is the stopping of the work by the Secretary of the Treasury, in 1860, more than twelve years before action brought, and it is with reference to that distant time and that alleged breach that the damages in this case are claimed and proved. The petition does set forth, it is true, that the claimants had waited until the close of the war and for a reasonable time afterward for the defendants to take such action as would permit them to complete their contract,-and that the long delay of the defendants amounts to an abandonment thereof. This of itself, without any allegations that during the time the claimants demanded a fulfillment of the contract by the defendants, or an offer on their own part of readiness to go on with the work, would not constitute a new breach or keep alive an earlier one and protect it against the statute of limitations. This delay, acquiesced in by both parties, is not a breach of contract by either.

One of the court holds, in his own language, which he has furnished to me, as follows: “Where a general power is given ',o the head of a Department to make contracts for it, it may include as its incident the power to discharge such contracts, for that is involved in the general management of the subjects committed’ to the officer. But, in this case, the only power given is specific, and it is created and limited in the acts of Congress of 1854 and 1856. These authorize the Secretary to make a contract for the particular purpose, specified, and they do not in terms, nor by any necessary implication, authorize him to discharge it; and grants of powers are not to.be extended, beyond their plain purpose. The power, therefore, to discharge the contracts remained iu Congress to be exercised by an act of Congress. If this is so, there was no breach of the contract till the building was sold under the act o.f Congress, March, 1873, and the United States had thus disabled themselves from completing the contract. And as the petition was filed in January, 1873, the cause of action had not arisen when the petition was filed.”

All these different views lead to .the same result as to this action, that .the claimants cannot maintain their suit, ,and that their petition must be dismissed.

Nott, J.,

concurring:

The point upon which this case turns was not argued at the trial, and if the point were a new one I should be in favor of remanding the case for argument upon it. But the question was carefully considered in Curtis’s Case, (2 C. Cls. R., 144,) and then determined.

The distinctive peculiarities of this and the Curtis Case which distinguish them, I believe, from every other case of contract that has ever been before the court, are, first, that Congress placed in the statute authorizing the work an express limitation as to its cost j and, second, that the claimant in each case chanced to be the sole contractor to whom the entire amount prescribed by each statute was paid.

That Congress have power to limit the cost of a public work, and that a contractor who has done all the work and received all the money which the executive branch of the Government was authorized to expend cannot recover more, are propositions as to which I entertained no doubt when the Curtis Case was decided, and as to which I entertain no doubt now. In all matters of public expenditure Congress must be regarded as the principal, and an executive department as the agent. Such has been the principle repeatedly declared here, and to all intents and purposes approved by the Supreme Court. (Roberts’s Case, 11 C. Cls. R., 98.)

When a principal limits the authority of his agent as to the amount of indebtedness for which the latter may bind the former, and the other contracting party has notice, so that in legal effect it is as well known to him as though it were written on the face of the contract, it does not lie in his power knowingly to involve the principal in any greater indebtedness. Whether a contractor whose contract, services, and demand were within the limitation of the statute would be. chargeable with notice of other contracts made with third persons in excess of the limitation, or would be compelled to suffer because the publicfagents had wrongfully exceeded their authority, as to which he was innocent, is a question which, not being before the court, it is needless to speculate upon. All that is involved here now is the question whether an agent of the Government and a contractor can involve the Government, by any form or complexity of contract, in a greater amount of expenditure than that to which Congress have expressly limited their transactions.

I have not alluded to the provision of the Constitution that "no money shall be drawn from the Treasury but in consequence of appropriations made by law,” (Art. 1, § 9,) because the provision has nothing to do with cases like this. When the Constitution was framed it was necessary to put the control of the public expenditure somewhere, and the framers of the Constitution gave that control to the legislative branch. The Constitution virtually says to the executive officers, You are the immediate custodians of the public moneys, but you shall not pay them away except where you are specifically authorized so to do by Congress.” The provision is, in effect, an inhibition upon the Treasury, and upon it alone. It does not prevent Congress from making subsequent appropriations for work done without prior authority, nor prevent the judiciary from acting upon legal rights committed to them by law. If a public work were to be undertaken requiring twenty years of time, and involving $20,000,000 of expenditure, it would be an absurdity to require Congress to appropriate $20,000,000 at the outset; and it would be equally a mischief if, Congress appropriating only $1,000,000 toward the work, an Executive Department should be compelled thereby to make all its contracts as though $1,000,000 would be all that would ever be appropriated. From the first it has been the policy of the Government to appropriate for public works no more money than may be required for the current fiscal year; and the validity of contracts has been deemed to depend upon the authority of the executive officers to contract, which'in some cases might be implied from appropriations, and in others might be entirely independent of them. Appropriations are properly the means for satisfying indebtedness, existent or prospective; but the means for satisfying a debt are not a necessary condition to an authority to contract one. If Congress authorize a court to render judgments against the Government, and appropriate money to pay those judgments, the obligation of the Constitution is complied . with. Unquestionably Congress have complete control over the expenditures of the nation — unquestionably the authority of the executive officers to incur national indebtedness must be derived directly or impliedly from the legislative branch; but these are not good reasons why a constitutional provision designed for one purpose should be applied to another.

In the case now before us, it remains to be noted that Congress by subsequent appropriations exceeded the limitation which was at first imposed. On the one hand, I think these should inure to the benefit of a contractor as an extension of the limitation; but, on the other hand, I think that they do not by implication repeal all restriction upon the Secretary of the Treasury. It would not lie in the mouth of the defendants to say that this contract before us is void because it in terms exceeds tlie amount originally specified as the limit of expenditure in the first statute; neither will it do for the claimants to say, .because Congress placed a larger sum at the disposal of the Secretary of the Treasury than was at first authorized, that thereby all restrictions upon him were removed, and he was at liberty to involve the Government in whatever amount of indebtedness for this work he in his discretion thought advisable. The subsequent appropriations, I think, merely relate back to the first statute, and in effect change the amount therein prescribed.

My conclusion is that the claimants seek to recover damages for not being allowed to perform work which was in excess of the authority conferred upon the Secretary of the .Treasury to contract for; that the defendants would not be liable for the work if it had been performed, and consequently are not liable for damages founded upon it.

Peck, J., was absent when this case was heard, and took no part in the decision.  