A contract, made under authority of a statute, by a state with
an individual to prosecute at his own expense before Congress and
the Departments certain specified claims of the state against the
United States, and to receive as full compensation for his services
a certain rate of commission on the amounts collected by him, does
not confer upon the agent a power, coupled with an interest in the
subject of the contract, which makes the contract of agency
irrevocable.
Hall v. Wisconsin, 103 U. S. 5, and
Jeffries v. Mutual Life Ins. Co., 110 U.
S. 305, distinguished.
This was an application to a state court of Missouri for a
mandamus, which was refused. The relator sued out this writ of
error. The case is stated in the opinion of the court.
The following opinion, prepared by MR. CHIEF JUSTICE WAITE, was
delivered by the Court as its opinion:
On the 10th of March, 1881, a statute was enacted by the General
Assembly of Missouri authorizing and empowering the fund
commissioners of the state, if they deemed it expedient, to employ
a competent agent to prosecute to final settlement before Congress
and the proper departments at Washington certain specified claims
of the state against the government of the United States. The agent
thus appointed was to give security for the faithful performance of
his duties. He was to prosecute the claims at his own expense and
receive, as full compensation for his services, such commissions on
the amount collected by him as might be agreed upon between himself
and the fund commissioners not exceeding
Page 125 U. S. 340
five percent on claims for money that had already been paid out
by the state and fifteen percent on the others. The officers of the
United States were authorized to pay the agent his agreed
commissions, but all other payments by the United States must be
made to the treasurer of the state. Section 3 of this act is as
follows:
"SEC. 3. With a view to the prompt and satisfactory settlement
of the claims of this state against the government of the United
States and referred to in this act, the adjutant general, state
auditor, and other officers of the state having in their possession
any papers, accounts, payrolls, orders, receipts, vouchers, or
other evidences of indebtedness necessary to the establishment of
said claims shall, upon the written order of the governor, deliver
to such agent all such papers, documents, payrolls, receipts,
vouchers, or other evidences of indebtedness, or authenticated
copies of the same, where such copies will answer, and take his
receipt for the same, and in all cases wherein it is held by the
government of the United States to be necessary to the
establishment of said claims that such original papers, payrolls,
vouchers, receipts, or orders, etc., should be filed in the
departments at Washington, it shall be the duty of the agent, and
he is hereby authorized, to deliver the same to the proper
authorities to be so filed, but before delivering the said original
papers, he shall withdraw from file all authenticated copies of the
same heretofore filed by this state or the agents thereof, and in
all cases wherein copies shall not have been made of such original
papers, etc., as it may be necessary to file as aforesaid, it shall
be the duty of said agent to prepare, or cause to be prepared and
properly authenticate copies of the same, which copies so made,
together with those heretofore made and by him withdrawn from file
as hereinabove provided for shall be returned by such agent to the
proper state officers of this state, and the fact of the return of
such copies shall be by said officers, respectively, certified to
the governor of this state."
On the 28th of November, 1884, the fund commissioners, acting
under the authority of this statute, employed John R. Walker as the
agent of the state in that behalf and agreed
Page 125 U. S. 341
that he should receive for his services and expenses the maximum
of compensation provided for. Walker accepted the employment,
furnished the necessary security, and agreed, in consideration of
the compensation specified to proceed without delay to the
prosecution of the claims. It is averred in the petition that
thereafter
"he entered upon the discharge of the duties of his said
employment, and has continued therein ever since, and has incurred
large expense and expended a great deal of time in and about the
collection of said claims under his contract, and has faithfully
demeaned himself in the prosecution of the same and in the
transaction of the business so entrusted to him,"
but it does not appear either in the pleadings or the proof that
any specific claim has ever been put in his hands for collection or
that anything has been done by any officer of the state under § 3
of the statute to furnish him the means of proceeding under his
employment.
On the 28th of March, 1885, the Act of March 10, 1881, was
repealed without any saving clause, and on the same day another
statute was passed providing for the authentication and payment of
certain claims against the state for military service, and which
were of the class in respect to which Walker had been employed as
agent. The act then provided for the delivery of these claims "to
the agent for the collection of the claims of the state against the
government of the United States." Then followed § 8, of which this
is a copy:
"SEC. 8. It shall be the duty of the said agent of the state to
prepare, present, and prosecute to settlement the demands of the
state for reimbursement by the government of the United States of
such sums of money as may be paid out under the provisions of this
act, and, as full compensation for such services, said agent shall
receive the amount of his expenses actually incurred in the
prosecution of said work, and when such collection shall have been
made, said agent shall file a statement of his said expenses,
verified by his oath, with the state auditor, who shall thereupon
draw his warrant upon the state treasurer in favor of said agent
for the amount of said bill of expense, provided, however, that the
amount paid on said bill of expense shall not exceed five percent
of the amount of the collection so made for the state. "
Page 125 U. S. 342
Under this statute, the claim of James P. Haynes, Public
Administrator of Ray County, having in charge the estate of John
King, deceased, was presented and allowed to the amount of $466.59,
and Walker demanded it from the auditor of state, for collection
from the United States, under his employment as agent, pursuant to
the act of 1881, but this was refused because that act had been
repealed. Thereupon Walker applied to the supreme court of the
state for a mandamus on the auditor to make the delivery, his
position being that the repealing act of 1885 impaired the
obligation of his contract with the state under the act of 1881,
and to that extent was void. The court denied the writ, and in so
doing decided that the employment of Walker was "one of agency,
pure and simple," which the state could revoke at its will, as it
did by the repealing act. For a review of a judgment based on that
decision, this writ of error was brought.
The fund commissioners were only authorized to employ an agent
for the state, and to agree with him as to the commissions he
should receive on the amount collected as full compensation for his
services and all expenses incurred by him in that behalf. This they
did, and there can be no doubt that the agency thus created was
withdrawn by the repealing act of 1885 unless a consideration was
given for it or it was so coupled with an interest in the subject
matter of the agency -- that is to say in the claims to be
collected -- as to make it irrevocable.
There was no consideration in money paid for the employment. The
agreement to prosecute the claims faithfully is no more than would
be implied in law from the acceptance of the appointment, and the
provision for the payment of expenses is only a declaration that
the commissions stipulated for shall be in full for services and
disbursements. There is nothing, therefore, in the consideration
for the employment to prevent this agency from being revoked like
any other.
The interest coupled with a power, to make it irrevocable, must
be an interest in the thing itself. As was said by Chief Justice
Marshall in
Hunt v.
Rousmanier, 8 Wheat. 174,
21 U. S.
204,
"the power must be engrafted on an estate in the
Page 125 U. S. 343
thing. The words themselves seem to import this meaning. 'A
power coupled with an interest' is a power which accompanies or is
connected with an interest. The power and the interest are united
in the same person. But if we are to understand by the word
'interest' an interest in that which is to be produced by the
exercise of the power, then they are never united. The power, to
produce the interest, must be exercised, and by its exercise is
extinguished. The power ceases when the interest commences, and
therefore cannot, in accurate law language, be said to be 'coupled'
with it."
Such is undoubtedly the rule.
Here, there was no actual assignment of the claims or any part
of them. Walker had no authority under his employment to take the
money from the United States except to the extent of his
commissions. The vouchers and evidences of debt were not turned
over to him. All he could do was to present the claims in the name
of the state and as its representative. He could not even get the
vouchers or other evidences of debt which were necessary for the
establishment of the claim by application to the proper custodian,
but must go to the governor of the state for his written order
directing their delivery to him. There is nothing whatever in the
transaction, from the beginning to the end, which shows an
intention on the part of the legislature to part with any interest
in or control over the claims except to the extent of the
commissions of the agent after they had been earned. Walker was
given no power to compromise any claim. All he could do was to
establish the claim and, when the state was ready to pay it, take
his commissions. Clearly such an agency is not irrevocable in law
because of its being coupled with an interest in the thing to be
collected. If the vouchers and other evidences of debt had actually
been delivered to him for collection, and he had expended time or
money under his employment in endeavoring to make the collection, a
revocation of his authority might not require him to return the
papers he held until he was compensated for what he had already
done; but that is not the question here, because the purpose of
this suit is to get possession of new vouchers, not to assert a
lien upon such as he already had in hand.
Page 125 U. S. 344
There is nothing in the cases of
Hall v. Wisconsin,
103 U. S. 5, or of
Jeffries v. Mutual Life Insurance Co., 110 U.
S. 305, in conflict with this. In
Hall's case,
the question was whether his employment was an office or under a
contract for work and labor, and it was held to be under a contract
because, although he was appointed a commissioner to make a
"geological, mineralogical, and agricultural survey of the state,"
the law providing for the survey and for his appointment required
that the governor "make a written contract" with him for the
performance of his allotted work, and "the compensation therefor,"
and it also declared that
"such contract shall expressly provide that the compensation to
such commissioner shall be at a certain rate per annum, to be
agreed upon, and not exceeding the rate of two thousand dollars per
annum, and that payment will be made only for such part of the
year"
as he may actually be engaged in the discharge of his duty as
such commissioner. The contract actually entered into was, by its
terms,
"to continue till the 3d day of March, 1863, unless the said
Hall should be removed for incompetency or neglect of duty, . . .
or unless a vacancy shall occur in his office by his own act or
default."
In deciding the case, it was said:
"In a sound view of the subject, it seems to us that the legal
position of the plaintiff in error was not materially different
from that of parties who, pursuant to law, enter into stipulations,
limited in point of time, with a state for the erection,
alteration, or repair of public buildings or to supply the officers
or employees who occupy them with fuel, light, stationery, and
other things necessary for the public service."
There was in that case a positive contract by the state for
employment in a particular service, for a particular term, made
under the authority of law, and because it was such a contract, the
state could not, any more than a private individual, rescind it at
will. The employment in this case, however, has no such provision.
There is no agreement as to time, and the matter stands precisely
as that of Hall would if a statute had been passed authorizing a
geological, mineralogical, and agricultural survey of the state,
and he had been employed to make it, and receive for his services a
compensation dependent
Page 125 U. S. 345
on the amount of work actually done or the time actually
employed. It would hardly have been contended that under such a
contract, the state could not stop the survey, and require Hall to
quit work at any time it pleased. The difference between the two
cases is the difference in the two contracts.
In
Jeffries' Case, the contract was by an administrator
of a deceased person's estate with a firm of attorneys to prosecute
a doubtful claim "for a portion of the proceeds, with full power to
compromise it as they should please," and we held that such an
agency was not revoked by the death of the administrator who made
the contract and the appointment of another in his place. The
question was as to the validity of a compromise made by the
attorneys, on that authority, after the death of the first
administrator. In the present case, there was no authority to
compromise. Walker could do nothing to establish the claim. He
could not even receive the money belonging to the state after he
had got the allowance of the claim by the United States.
We find no error in the record, and the judgment is
Affirmed.