B-33769, JUNE 10, 1943, 22 COMP. GEN. 1083

B-33769: Jun 10, 1943

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RATIFICATION OF SUBORDINATES' ACTS WHERE THE MAKING OF A CONTRACT OR THE DOING OF AN ACT IS BY STATUTE AUTHORIZED "IN THE DISCRETION" OF A DESIGNATED PUBLIC OFFICIAL. SUCH DISCRETION IS REQUIRED TO BE EXERCISED BY THAT OFFICIAL ALONE. THERE IS NO AUTHORITY FOR THAT OFFICIAL. WHO IS AN AGENT OF THE GOVERNMENT. SO THAT THE PURPORTED APPROVAL AND RATIFICATION BY THAT OFFICIAL OF A CONTRACT ENTERED INTO BY A SUBAGENT IS INEFFECTIVE TO GIVE VALIDITY TO THE CONTRACT AND TO REPRESENT A PROPER EXERCISE OF THE DISCRETION VESTED IN THE PUBLIC OFFICIAL. 1943: THERE WAS RECEIVED FROM THE ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY A LETTER DATED MARCH 24. AS FOLLOWS: REFERENCE IS MADE TO GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION DATED DECEMBER 16.

B-33769, JUNE 10, 1943, 22 COMP. GEN. 1083

DISCRETIONARY AUTHORITY OF PUBLIC OFFICIALS - NECESSITY FOR EXERCISING IN ADVANCE; DELEGATION; RATIFICATION OF SUBORDINATES' ACTS WHERE THE MAKING OF A CONTRACT OR THE DOING OF AN ACT IS BY STATUTE AUTHORIZED "IN THE DISCRETION" OF A DESIGNATED PUBLIC OFFICIAL, SUCH DISCRETION IS REQUIRED TO BE EXERCISED BY THAT OFFICIAL ALONE, AND IN ADVANCE OF THE INCURRING OF THE OBLIGATION OR THE PERFORMANCE OF THE ACT. WHERE A STATUTE AUTHORIZES CONTRACTS TO BE ENTERED INTO "IN THE DISCRETION" OF A DESIGNATED PUBLIC OFFICIAL, THERE IS NO AUTHORITY FOR THAT OFFICIAL, WHO IS AN AGENT OF THE GOVERNMENT, TO DELEGATE THE DISCRETIONARY POWER VESTED IN HIM TO A SUBAGENT, SO THAT THE PURPORTED APPROVAL AND RATIFICATION BY THAT OFFICIAL OF A CONTRACT ENTERED INTO BY A SUBAGENT IS INEFFECTIVE TO GIVE VALIDITY TO THE CONTRACT AND TO REPRESENT A PROPER EXERCISE OF THE DISCRETION VESTED IN THE PUBLIC OFFICIAL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 10, 1943:

THERE WAS RECEIVED FROM THE ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY A LETTER DATED MARCH 24, 1943, AS FOLLOWS:

REFERENCE IS MADE TO GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION DATED DECEMBER 16, 1942, IN THE ACCOUNTS OF CAPTAIN S. J. BRUNE ( SC), U.S.N., DO VOUCHER NO. 200996, PAID FEBRUARY 14, 1942, UNDER CONTRACT NOS-96180 DATED OCTOBER 22, 1941.

CONTRACT NOS-96180 WAS WITH HARLAN P. KELSEY OF EAST BOXFORD, MASSACHUSETTS, FOR SERVICES TO BE RENDERED THE NAVY FOR INVESTIGATION AND RECOMMENDATION ON LANDSCAPE, RECREATIONAL AND OTHER DEVELOPMENTS AT THE NAVAL AIR BASE, ARGENTIA, NEWFOUNDLAND. THE AMOUNT OF THE CONTRACT WAS ESTIMATED AT $500 AND STIPULATED PAYMENT ON THE BASIS OF $25 A DAY PLUS $5.00 PER DIEM SUBSISTENCE WHILE AWAY FROM EAST BOXFORD, MASSACHUSETTS. THE TIME ACTUALLY REQUIRED FOR THE PERFORMANCE OF THIS CONTRACT WAS 27 DAYS AND THE VOUCHER IN QUESTION COVERED PAYMENT FOR 27 DAYS AT $25.00 A DAY AND ALSO TRAVEL AND SUBSISTENCE EXPENSE.

THE NOTICE OF EXCEPTION IS DIRECTED AT THE ALLOWANCE OF $25.00 A DAY FOR THESE SERVICES AND STATES THAT---

"EVIDENCE THAT PAYMENT IN EXCESS OF 13.88 PER DIEM DOES NOT CONTRAVENE THE STATUTORY INHIBITION WITH RESPECT TO " ADDITIONAL POSITIONS" CREATED AFTER 3/31/41 HAS NOT BEEN FURNISHED.' CITING NAVAL APPROPRIATION ACT FOR FISCAL YEAR 1942, APPROVED MAY 6, 1941 ( PUBLIC LAW 48, 55 STAT. 176), AND ALSO 20 COMP. GEN. 803 AND A-95642 DATED NOVEMBER 15, 1941.

THE NAVAL APPROPRIATION ACT CITED CONTAINS THE FOLLOWING PROVISION UNDER " OFFICE OF THE SECRETARY, MISCELLANEOUS EXPENSES"

"PROVIDED, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION FOR THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT FOR THE FISCAL YEARS 1941 AND 1942, OR OF FUNDS ALLOTTED TO THE NAVY DEPARTMENT, SHALL BE AVAILABLE AFTER MARCH 13, 1941, FOR ANY ADDITIONAL POSITIONS IN THE DISTRICT OF COLUMBIA OR ELSEWHERE AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS, EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED.'

HOWEVER, IN THE SAME APPROPRIATION ACT, UNDER THE HEADING " BUREAU OF YARDS AND DOCKS, MAINTENANCE, BUREAU OF YARDS AND DOCKS," THE FOLLOWING LANGUAGE APPEARS:

"AND PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH ENGINEERS AND ARCHITECTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED * * *"

THE EMPLOYMENT OF MR. KELSEY WAS NOT FOR "AN ADDITIONAL POSITION" IN THE NAVY WITHIN THE PROHIBITION UNDER " OFFICE OF THE SECRETARY, MISCELLANEOUS EXPENSES," QUOTED ABOVE, BUT WAS PART TIME OR INTERMITTENT EMPLOYMENT OF AN ARCHITECT (IN THIS CASE A LANDSCAPE ARCHITECT) AS SPECIFICALLY AUTHORIZED UNDER THE APPROPRIATION " BUREAU OF YARDS AND DOCKS, MAINTENANCE, BUREAU OF YARDS AND DOCKS," QUOTED IN PART ABOVE. IN THIS CONNECTION, WEBSTER'S UNABRIDGED DICTIONARY DEFINES " LANDSCAPE ARCHITECT" AS FOLLOWS:

" LANDSCAPE ARCHITECT. ONE WHOSE PROFESSION IS TO SO ARRANGE AND MODIFY THE EFFECTS OF NATURAL SCENERY OVER A GIVEN TRACT AS TO PRODUCE THE BEST AESTHETIC EFFECT CONSIDERING THE USE TO WHICH THE TRACT IS TO BE PUT.'

IN HIS DECISION OF MAY 21, 1941 (20 COMP. GEN. 803), THE COMPTROLLER GENERAL HELD THAT WHERE THE NAVAL APPROPRIATION ACT SPECIFICALLY AUTHORIZES THE EMPLOYMENT OF SCIENTISTS, TECHNICISTS, ENGINEERS, AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM, SUCH SERVICES MAY BE CONTRACTED FOR AT RATES NOT EXCEEDING THE $25 PER DIEM, NOTWITHSTANDING THE PROVISO APPEARING UNDER " MISCELLANEOUS EXPENSES," QUOTED ABOVE. ANSWER TO QUESTION NO. 1, PAGE 806.)

IN THE SAME DECISION, THE COMPTROLLER GENERAL FURTHER HELD THAT IN ORDER TO COME WITHIN THE TERMS OF THE EXCEPTION TO THE APPROPRIATION SALARY RESTRICTION OF $5,000, THE "SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED" RELATES EITHER TO AN INDIVIDUAL POSITION OR TO A CLASS OF POSITIONS, PROVIDED THERE IS SPECIFIC AUTHORITY TO PAY A RATE OF COMPENSATION HIGHER THAN $5,000 PER ANNUM, SUCH AS THE AUTHORITY CONTAINED UNDER THE APPROPRIATION HEADINGS " MAINTENANCE, BUREAU OF SHIPS," " ORDNANCE AND ORDNANCE STORES, NAVY," " MAINTENANCE, BUREAU OF YARDS AND KS," AND " AVIATION, NAVY.' ( ANSWER TO QUESTION NO. 4, PAGE 807.)

THE COMPTROLLER GENERAL'S DECISION A-95642, DATED NOVEMBER 15, 1941, ALSO CITED IN THE NOTICE OF EXCEPTION, IS NOT IN CONFLICT WITH THE DECISION OF MAY 21, 1941, SUPRA, AND IS NOT PERTINENT TO THE FACTS PRESENTED IN THE CASE UNDER CONSIDERATION.

THE CONTRACT IN QUESTION WAS SIGNED ON BEHALF OF THE UNITED STATES BY M. R. NORCROSS, PURCHASING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS. SINCE THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 VESTS IN THE SECRETARY OF THE NAVY, THE DISCRETION AS TO THE NECESSITY FOR ENTERING INTO CONTRACTS WITH ENGINEERS AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM UNDER THE APPROPRIATION " MAINTENANCE, BUREAU OF YARDS AND DOCKS," THERE IS ENCLOSED HEREWITH A RATIFICATION AND APPROVAL BY THE SECRETARY OF THE NAVY OF CONTRACT NOS-96180. (IN THIS CONNECTION, SEE NEAL ET AL. V. UNITED STATES, 14 CT. CLS. 280; FORD V. UNITED STATES, 17 CT. CLS. 60, 76.)

IN THE DECISION OF MAY 21, 1941, 20 COMP. GEN. 803, REFERRED TO IN THE ABOVE-QUOTED LETTER, IT WAS HELD, IN EFFECT, THAT THE LANGUAGE UNDER THE HEADING " BUREAU OF YARDS AND DOCKS, MAINTENANCE, BUREAU OF YARDS AND DOCKS," APPEARING IN THE NAVAL APPROPRIATION ACT, 1942, 55 STAT. 151, 162, WAS SUFFICIENT AUTHORITY FOR THE EMPLOYMENT OF ENGINEERS AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED, NOTWITHSTANDING THE RESTRICTIVE LANGUAGE UNDER THE HEADING " OFFICE OF THE SECRETARY, MISCELLANEOUS EXPENSES.' TO THAT EXTENT THE UNDERSTANDING EXPRESSED IN THE ABOVE-QUOTED LETTER IS CORRECT.

THE AUTHORIZING PROVISION UNDER THE HEADING " BUREAU OF YARDS AND DOCKS" IS AS FOLLOWS:

* * * AND PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH ENGINEERS AND ARCHITECTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED * * * ( ITALICS SUPPLIED.) SINCE THE CONTRACT INVOLVED WAS NOT ENTERED INTO BY THE SECRETARY OF THE NAVY BUT BY THE PURCHASING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS, THE AUDIT DIVISION OF THIS OFFICE TOOK THE POSITION THAT AS THE SECRETARY OF THE NAVY HAD NOT EXERCISED HIS DISCRETION THERE WAS NO AUTHORITY UNDER THE LAW TO PAY THE CONTRACTOR IN EXCESS OF A RATE OF $5,000 PER ANNUM, ON A PER DIEM BASIS, RELYING, OF COURSE, ON THE RESTRICTIVE LANGUAGE UNDER THE HEADING " OFFICE OF THE SECRETARY, MISCELLANEOUS EXPENSES.'

IN EVIDENT RECOGNITION THAT THE DISCRETIONARY AUTHORITY VESTED IN THE SECRETARY OF THE NAVY MUST BE EXERCISED BY HIM THERE WAS FORWARDED WITH THE ABOVE-QUOTED LETTER A RATIFICATION AND APPROVAL OF THE SUBJECT CONTRACT, DATED MARCH 24, 1943, AND SIGNED BY THE ACTING SECRETARY OF THE NAVY, AS FOLLOWS:

SUBJECT: RATIFICATION AND APPROVAL OF CONTRACT BETWEEN UNITED STATES OF AMERICA AND HARLAN P. KELSEY, DATED OCTOBER 22, 1941, NOS. 96180.

THE EMPLOYMENT OF HARLAN P. KELSEY TO PERFORM THE PERSONAL SERVICES AT THE PRICE RECITED IN THE SUBJECT CONTRACT AND THE EXECUTION OF THE CONTRACT ON BEHALF OF THE UNITED STATES OF AMERICA BY M. R. NORCROSS, PURCHASING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS, ARE HEREBY RATIFIED AND APPROVED EFFECTIVE AS OF THE DATE OF SAID CONTRACT, OCTOBER 22, 1941. THE QUESTION ARISES, THEREFORE, AS TO WHETHER THE PURPORTED RATIFICATION IS EFFECTIVE TO GIVE VALIDITY TO THE ORIGINAL CONTRACT AND TO REPRESENT A PROPER EXERCISE OF DISCRETION, UNDER THE STATUTE, BY THE SECRETARY OF THE NAVY.

IN THE DECISION OF THIS OFFICE PUBLISHED AT 14 COMP. GEN. 698, 700, IT WAS STATED:

* * * WHEN A STATUTE VESTS IN A BOARD OR OTHER FEDERAL AGENCY DISCRETION IN THE USE OF APPROPRIATED FUNDS, SUCH DISCRETION PROPERLY MAY BE EXERCISED ONLY IN ADVANCE OF THE INCURRING OF THE OBLIGATION, AS APPROVAL AFTER AN EXPENDITURE HAS BEEN INCURRED DOES NOT CONSTITUTE THE EXERCISE OF DISCRETION IN THE USE BUT A CONDONING OF WHAT HAS ALREADY BEEN DONE. THIS DOES NOT MEET THE REQUIREMENTS OF THE LAW AND TENDS TO ENCOURAGE SUBORDINATES IN INCURRING OBLIGATIONS WHICH, PERHAPS, THE OFFICIALS VESTED BY LAW WITH AUTHORITY TO EXERCISE DISCRETION IN THE MATTER WOULD NOT HAVE SANCTIONED HAD THE MATTER BEEN BROUGHT TO THEIR ATTENTION IN ADVANCE. WHEN AUTHORITY TO EXERCISE DISCRETION IS VESTED BY LAW IN A BOARD OR HEAD OF AN ESTABLISHMENT, SUCH AUTHORITY MAY NOT BE DELEGATED TO A SUBORDINATE UNLESS SUCH DELEGATION IS SPECIFICALLY AUTHORIZED BY STATUTE. FURTHERMORE, WHEN DISCRETION IN THE USE OF PUBLIC MONEY IS VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT, IT IS NOT AN UNLIMITED BUT A LEGAL DISCRETION TO BE EXERCISED WITHIN THE LIMITATIONS AND FOR THE PURPOSES OF THE STATUTES PROVIDING THE FUNDS AND PRESCRIBING THE ACTIVITIES OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED. THE PRINCIPLES STATED THEREIN ARE BASED ON SOUND, FUNDAMENTAL, AND WELL-ESTABLISHED RULES OF LAW.

IN PERFORMING OFFICIAL ACTS THE SECRETARY OF THE NAVY ACTS NOT AS A PRINCIPAL FOR HIMSELF BUT RATHER AS AN AGENT FOR THE GOVERNMENT. THE FLOYD ACCEPTANCES, 7 WALL. 666. AS A PUBLIC AGENT HE HAS ONLY SUCH AUTHORITY AS IS CONFERRED UPON HIM BY LAW. SO FAR AS THE SUBJECT STATUTE IS INVOLVED THE POWER CONFERRED IS A DISCRETIONARY ONE; THAT IS, THE SECRETARY MAY EMPLOY ENGINEERS AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM, IN HIS DISCRETION. THE DECISIONS OF THIS OFFICE HAVE BEEN CONSISTENT TO THE EFFECT THAT WHEN A STATUTE CONFERS DISCRETIONARY AUTHORITY UPON A GIVEN PERSON THE AUTHORITY MUST BE EXERCISED BY THAT PERSON ALONE, AND IN ADVANCE OF THE INCURRING OF THE OBLIGATION. 13 COMP. GEN. 305; 14 ID. 601; ID. 698; ID. 755; 20 ID. 27; ID. 779; ID. 797, AND 21 ID. 921. SUCH DECISIONS HAVE BEEN IN ACCORD WITH THE RULE FREQUENTLY ANNOUNCED BY THE COURTS THAT AN AGENT CANNOT, WITHOUT THE PRINCIPAL'S CONSENT, DELEGATE POWERS WHICH INVOLVE JUDGMENT OR DISCRETION. 2 CORPUS JURIS 685; SWEARINGEN V. MOORE, 280 P. 295, 300; GRIFFIN V. ROSENBLUM, 23 P. (2D) 348, 349; MACDOUGALL V. BOARD OF LAND COM -RS, 49 P. (2D) 663, 666; MOBLEY V. MARLIN, 144 S.E. 747; SCHOOL DISTRICT V. CALLAHAN, 297 N.W. 407, 415; RECTOR V. H. K. MULFORD O., 185 S.W. 255, 257; AND SODEKSON V. LYNCH, 9 N.E. (2D) 372. ALSO, SEE 21 OP. ATTY. GEN. 355. THE RULE IS STATED IN THE CASE OF IN RE GILES, 21 F. (2D) 536, 537, AS FOLLOWS:

A PUBLIC OFFICER IS, IN A LARGE SENSE, AN AGENT, AND FALLS WITHIN THE GENERAL RULE THAT AN AGENT IN WHOM IS IMPOSED TRUST AND CONFIDENCE, OR WHO IS REQUIRED TO EXERCISE DISCRETION OR JUDGMENT, MAY NOT ENTRUST THE PERFORMANCE OF HIS DUTIES TO ANOTHER WITHOUT THE CONSENT OF HIS PRINCIPAL * * * 31 CY. 1425, 1428. SPECIFICALLY OF PUBLIC OFFICERS IT IS SAID: "IN THOSE CASES IN WHICH THE PROPER EXECUTION OF THE OFFICE REQUIRES ON THE PART OF THE OFFICER THE EXERCISE OF DISCRETION AND JUDGMENT, THE PRESUMPTION IS THAT HE WAS CHOSEN BECAUSE HE WAS DEEMED FIT AND COMPETENT TO EXERCISE THAT JUDGMENT AND DISCRETION, AND, UNLESS POWER TO SUBSTITUTE ANOTHER IN HIS PLACE HAS BEEN GIVEN HIM, HE CANNOT DELEGATE HIS DUTIES TO ANOTHER.' * * *

IT NECESSARILY FOLLOWS, IN VIEW OF THE FOREGOING, THAT THE SECRETARY OF THE NAVY CANNOT DELEGATE HIS DISCRETIONARY AUTHORITY WITH RESPECT TO THE EMPLOYMENT OF ENGINEERS AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM. IN OTHER WORDS, ACTING AS AN AGENT FOR THE GOVERNMENT THE SECRETARY OF THE NAVY CANNOT EXERCISE HIS DISCRETIONARY AUTHORITY BY DELEGATING A SUBAGENT TO EXERCISE IT FOR HIM.

I APPRECIATE THAT THE FOREGOING NOW APPEARS TO BE RECOGNIZED BY THE NAVY DEPARTMENT BUT A DISCUSSION OF THE PRINCIPLES INVOLVED APPEARS PERTINENT TO A DETERMINATION OF THE EFFECT OF THE PURPORTED APPROVAL OF THE CONTRACT AND RATIFICATION OF THE ACTION OF THE PURCHASING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS.

A RATIFICATION IS, IN ITS EFFECT UPON THE ACT OF AN AGENT, EQUIVALENT TO THE POSSESSION BY HIM OF A PREVIOUS AUTHORITY. IT OPERATES UPON THE ACT RATIFIED IN THE SAME MANNER AS THOUGH THE AUTHORITY OF THE AGENT TO DO THE ACT EXISTED ORIGINALLY. CLARK'S EXECUTORS V. VAN RIEMSDYK, 13 U.S. 153, 161; SUPERVISORS V. SCHENCK, 5 WALL. 772, 783; MARSH V. FULTON COUNTY, 10 WALL. 676, 684; COOK V. TULLIS, 85 U.S. 332, 338; AND THE CAPITAINE FAURE, 10 F. (2D) 950, 964.

THE GENERAL RULE IS THAT THE RATIFICATION OF A PARTICULAR ACT OR CONTRACT MAY BE MADE BY ANYONE IN WHOSE BEHALF SUCH ACT OR CONTRACT HAS BEEN DONE OR MADE ONLY IF HE COULD HAVE GIVEN AUTHORITY TO DO THE ACT OR ENTER INTO THE CONTRACT IN THE FIRST INSTANCE, AND IF HE STILL HAS POWER TO DO SO AT THE TIME OF THE RATIFICATION. TASLICH V. INDUSTRIAL COMMISSION, 262 P. 281; RIDDLE V. ELLIS, 281 ID. 286. IT NECESSARILY FOLLOWS, THEN, THAT A CONTRACT MAY BE RATIFIED BY ONE PARTY ONLY IF IT WAS ENTERED INTO ON HIS BEHALF AND IF, IN THE FIRST INSTANCE, HE COULD HAVE GIVEN AUTHORITY TO ENTER INTO THE CONTRACT. NEITHER OF THOSE CONDITIONS IS PRESENT IN THIS CASE. THE SUBJECT CONTRACT WAS ENTERED INTO BY THE PURCHASING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS, ON BEHALF OF THE UNITED STATES AS PRINCIPAL, NOT THE SECRETARY OF THE NAVY AS AN AGENT OF THE UNITED STATES; AND BECAUSE OF THE DISCRETION REQUIRED TO BE EXERCISED BY THE SECRETARY OF THE NAVY HE COULD NOT, IN THE FIRST INSTANCE, HAVE AUTHORIZED THE SAID PURCHASING AGENT TO EXERCISE THE DISCRETION AND ENTER INTO THE CONTRACT. AN AGENT WHO HAS NO POWER TO APPOINT A SUBAGENT CANNOT RATIFY THE ACT OF A SUBAGENT SO AS TO BIND HIS PRINCIPAL; THAT IS TO SAY, ONE WHO LACKS AUTHORITY TO DELEGATE THE PERFORMANCE OF ACTS WHICH HE HIMSELF HAS POWER TO PERFORM CANNOT RATIFY SUCH ACTS WHEN DONE BY ANOTHER WHO HAS NO SUCH AUTHORITY. THOMPSON V. MICHIGAN MUTUAL LIFE INS. CO., 105 N.E. 780.

IN VIEW OF THE FOREGOING IT MUST BE HELD THAT SINCE AUTHORITY WAS LACKING IN THE FIRST INSTANCE TO DELEGATE POWER TO THE PURCHASING OFFICER TO EXERCISE THE DISCRETION REQUIRED BY LAW IN THE PRESENT CASE, AUTHORITY NOW IS LACKING TO RATIFY THE ACTION OF THE SAID PURCHASING AGENT. THIS SITUATION IS TO BE DISTINGUISHED FROM THE SITUATIONS EXISTING IN THE CASES OF NEAL, ET AL. V. UNITED STATES, 14 C.1CLS. 280, AND FORD V. UNITED STATES, 17 ID. 60, 76, CITED IN THE ABOVE QUOTED LETTER, BECAUSE IN THOSE CASES IT APPEARED THE PERFORMANCE OF THE ACTS RATIFIED COULD HAVE BEEN DELEGATED BY THE RATIFYING AGENT IN THE FIRST INSTANCE; THEIR PERFORMANCE WAS NOT CHARGED BY LAW TO THE DISCRETION OF A PARTICULAR AGENT.

BY REASON OF THE EVIDENT MISUNDERSTANDING IN THE PRESENT CASE AND SINCE IT APPEARS THAT THE CONTRACT HAS BEEN COMPLETED AND THE GOVERNMENT HAS RECEIVED THE BENEFIT THEREOF, I DO NOT FEEL REQUIRED TO QUESTION FURTHER AN OTHERWISE PROPER PAYMENT MADE IN GOOD FAITH, PURSUANT TO THE CONTRACT, BUT THE FOREGOING MATTERS ARE CALLED TO YOUR ATTENTION IN ORDER THAT HEREAFTER THERE MAY BE NO DOUBT WITH RESPECT TO THE DUTY OF PUBLIC OFFICIALS TO EXERCISE THEIR DISCRETION IN ADVANCE IN THOSE CASES IN WHICH THE MAKING OF A CONTRACT OR THE DOING OF AN ACT IS BY LAW CONDITIONED ON THE EXERCISE OF THEIR DISCRETION.