of the moneys of the department, the law presumes that he does so far examine and decide in respect to each disbursement as to make himself legally responsible therefor. And, accordingly, his accounts are to be rendered to the Auditor, and to be settled by that officer and the Comptroller, "as other public accounts." (General Post Office law of 1825, sec. 1.) To hold that an agent, whose powers are thus circumscribed, and whose appropriation of the public moneys is thus to be made the subject of account, can be authorized to pay over those moneys to a party whom he conscientiously believes to have no lawful claim to them, would not only be repugnant to the spirit of the constitution and of law, but to the first principles of reason and justice. It can make no difference, in morals or in law, that an order is to be found in the records of the department directing the payment to be made. If the officer is satisfied that there was no legal authority to make such order, or that it was obtained by fraud, or was made under erroneous impressions as to material facts, he is bound, by the very nature of his trust, to do what he can to correct the procedure, and to protect his constituents from any further mischief by means of it. The first and most obvious step is, to desist from applying the public moneys to a purpose which, if it be regarded by him in the light above mentioned, he must also see and feel is unauthorized by law.

The foregoing principles, as it appears to me, grow out of the general relation of principal and agent, as it exists under our constitution and laws, in this particular department. It only remains, before I apply them to the present case, that I should vindicate or distinguish them from the objections contained in the arguments on behalf of the contractors, transmitted to me with your communications.

It is contended that, as the Postmaster General is authorized to make contracts for carrying the mail, and also to decide whether additional services are necessary, and to agree on the compensation to be made for them, he has jurisdiction over the subjects; and that his decision, though erroneous, must be binding on the government and on his successor in office.

In support of this position, several adjudged cases are referred to, in which the distinction between erroneous and void judgments has been recognised; and in which the courts, acting on that distinction, have held that the decisions of tribun ls, and of officers having jurisdiction over the subject matter of such decisions, although admitted or supposed to be erroneous, were yet, for many purposes, held to be valid and conclusive. And in order to bring the present case within the principle of those decisions, we are reminded that it is the doctrine of the Supreme Court of the United States, and the understanding and practice of all the departments of the government, to consider the contracts, decisions, and proceedings of the head of a department conclusive upon the particular department, unless material errors or new and important facts have been subsequently discovered; and also conclusive as against the government, except when impeached in a court of justice, on the ground of fraud or mistake.

To support this latter suggestion, the cases of the United States vs. Jones, (8 Peters, 375,) United States vs. Macdaniel, (7 Peters, 1,) United States vs. Fillebrown, (7 Peters, 23,) and United States vs. Randolph (9 Peters, 12,) the arguments of the Attorney General in several of those cases, and the official opinions of that officer and of the Secretary of War,

in cases presented for their decision, are appealed to by the counsel. Bat it is due to them to state that this part of their argument was founded on the assumption that the decision to consider the services in question as additional services, and to require them to be performed, was definitively made in June, 1833; the compensation then fixed and ordered to be al lowed; the money actually paid, and the allowance entered on the books to the credit of the company. In all these particulars, the statements and conclusions in your official communications are different from those of the counsel; and as I have felt myself bound to adopt your version of the facts as the correct one, the arguments and the authorities are for the most part inapplicable. Besides, several of the most important cases relate to departments organized on principles and proceeding in a manner very different from those prescribed for the General Post Office. Still, I recognise the general accuracy of the doctrine above stated, and of the decisions and opinions referrred to; and do not intend to lay down any principle which shall conflict with them.

It will also be perceived that the arguments referred to me fully admit that allowances made by the head of a department, which have been actually paid, and which have even gone into accounts settled by the accounting officers of the treasury, may yet be judicially re-examined in cases of fraud, or mistake as to material facts, and the money obtained by means thereof be recovered back by the government. They further admit, either expressly or by necessary intendment, that the head of a department, who has ordered a special allowance, has a right to modify, correct, or withdraw it, at any time before it has been acted on and passed by the accounting officers, and entered on their books.

The preceding observations would be sufficient, I think, to dispose of the whole argument founded on the distinction between acts that are void for want of jurisdiction, and those that are only erroneous and voidable for error in the exercise of powers really possessed. But as it appears to me that this principle is only to a very limited extent applicable to the proceedings of the Post Office Department, I shall endeavor to point out what I conceive to be an erroneous use of the distinction referred to, in the remarks of the counsel. To do this with accuracy, the reason and design of the rule must be carefully borne in mind; and we must also take it in connexion with certain other rules, equally well settled, and equally applicable to subjects of this nature. The rule in question relates chiefly, if not exclusively, to the decisions of courts and of officers acting judicially; and is founded on the regard which the law pays to the intrinsic difficulties of the judicial function and to the fallibility of human nature. Knowing the arduousness of many of the duties which devolve on the officer, and his liability to fall into mistake, the law, which never demands impossibilities, merely requires that he should confine himsel within his legitimate sphere, and act with integrity and ordinary care. If he has jurisdiction, and only errs in the exercise of it, his acts are n void, but only voidable. The great purposes of the rule are, to shield t tribunal or officer from personal responsibility for mere error of judgment to protect the ministerial officers by whom the judgments and other arts of judicial tribunals, or officers acting judicially, are to be executed; and to prevent injustice to purchasers and other third persons, who have innocently reposed confidence in the validity of the proceedings. So long as the decision was clearly within the jurisdiction of the officer, third per

sons will be protected, whatever may have been his errors in judgment, or his impurity of motive; and if there be no impurity of motive, the officer himself will also be responsible. For all these purposes, it is in many cases necessary that the official proceedings, even though admitted to be erroneous, should yet be deemed valid until duly reversed; and that they should not be reviewed collaterally, nor in any mode or by any authority than such as is appropriate and competent to their reversal. But this rule does not imply that such proceedings are perpetually conclusive and irreversible. On the contrary, it admits that the decision, if erroneous, is liable, in due form of law, to be reversed; but it will not allow even such a decision to be impeached collaterally. And it is only while it remains unreversed, that it is to be regarded as valid, or that parties and third persons can be protected by it. All acts done after any such decision shall have been regularly reversed, stand on the same ground as if it had never existed, or as if it had been void from the beginning.

Where tribunals or officers undertake to act in matters over which they have no jurisdiction whatever, their proceedings are void from the begin ning. And even where they have jurisdiction over the subject, yet, if they entirely depart in their proceedings from the positive requirements of law, such irregular proceedings are considered absolutely void, and not merely voidable. Irregularities of this nature are not regarded as mere errors of judgment-mere mistakes in ascertaining the rules of law, or in applying them judicially; and, therefore, they are not viewed with the indulgence, nor entitled to the immunities, which are extended to such errors and mistakes. On the contrary, they are looked upon as excesses of jurisdiction. Indeed, so far as the particular acts are concerned, there is a want of jurisdiction to perform them, and they are therefore justly I involved in the general consequences of such a defect.

1

After this explanation of the doctrines referred to, it will be easy to I show that they do not conflict with either of the general principles on which I rely.

The contracts of the Postmaster General, and the decisions and orders made by him within the scope of his general powers, however erroneous, are undoubtedly valid, so far as to protect the subordinate and ministerial officers of his department who may carry them into execution, until reversed by competent authority. Nor will the Postmaster General be responsible for any error of judgment, however injurious it may be to the public interest, so long as he confines himself within his legitimate sphere, and acts in good faith and with ordinary care. All this is per=fectly consistent with the views above taken; or, rather, in the statement of those views, these principles were remembered and taken into account. But even in cases where the Postmaster General has undoubted jurisdiction, he may yet commit error; and, though his decision be ever so defiinite and positive, and though it be reduced to writing, and recorded in the most solemn manner, it is still liable, if erroneous, to be reversed. This must be admitted, even in those cases to which the rule above mentioned plainly applies; it is involved, as has been shown, in the principle of the rule itself. The question then arises-How, and by whom, is the correction to be made? By what officer or tribunal is the erroneous decision (which all will admit must be corrected somewhere) to be reviewed and reversed? On this point, the distinction referred to, and the numerous cases cited by the learned counsel for the contractors,

in which it has been illustrated, shed no light whatever. But if the observations herein before made on the nature of the agency intrusted w the Postmaster General, and on the constitutional and statutory provis ions which apply to it, be well founded, we are then authorized to say. that whenever the Postmaster General satisfactorily arrives at the coclusion that any contract, decision, or order of the department, no matter where or by whom made, is erroneous in point of law, or founded on fraud or material error, he is not only authorized, but bound, so far to reverse it as to suspend and refuse any further appropriation of the public money to the purposes of such contract, decision, or order. As to pay. ments and other acts actually and definitively made and done under such erroneous decision, they must stand until corrected by the appropriate judicial tribunals; but, as to all further proceedings, the Postmaster General may, as it seems to me, either act or refuse to act, as in his judgment the law of the case and his duty to his constituents shall require.

The principles above stated, though sufficiently comprehensive to embrace all cases, may be applied with more safety, and with less danger of injustice or abuse, in some instances than in others. The particular acts of your predecessor, now in question, are of this character. They do not belong to the ordinary business of the department, but to a particular class of cases in which only very limited powers are given to the Postmaster General, and in which there is also considerable room for impos tion on the one side, and for mistake on the other. This portion of his powers is also regarded with some jealousy by the representatives of the people; and the manner of exercising it is, consequently, the subject of more rigid scrutiny than perhaps any other branch of his important duties It is also a part of the history of the country, that the propriety of such allowances as were made in the present case has, for several sessions of Congress, been made the subject of investigation by committees, and discussion on the floor; and that in a bill concerning the Post Office Department, which passed one house during the last session, severa special provisions were inserted for the purpose of circumscribing and regulating, by new guards, the exercise of this power. The allowances in question amounted to a very large sum, and were moreover among last acts of the late head of the department. Under these circumstances it appears to me, that if any doubt could exist as to your authority t look into the merits of the ordinary proceedings had by the department before your appointment, no well-founded doubt can exist as to the p session of such authority in cases like the present.

2d. The posture in which this matter stood at the time you came in office is also deserving of much consideration.

the

It appears from your statement of facts that the orders for these alior ances were not made until February and March, 1835; and that nothing either before or afterwards, had been definitively paid on account of the The additional services performed in this case prior to February, 18 whatever they may have been, could not have been rendered in cos quence of these orders. The case is, therefore, for the most part, free from the embarrassment and difficulty which would exist had the servies been performed on the strength of those orders. And as the money not been definitively paid on account of these allowances, nor the gener account finally adjusted, I conceive that the orders must yet be cul

sidered unconsummated, and therefore peculiarly within the control of the present head of the department. Considering, indeed, the peculiar circumstances of this case, and, to my mind, it is not all doubtful that the paying of the amount, or the confirming of the credit to the contractors, if this should be now done, would be officially and morally the act of the present incumbent. If he is to be responsible for the consequences, surely he must be authorized to exercise his own judgment as to the course to be pursued.

This leads me to notice the discussion which has been had between the counsel for the contractors and yourself in regard to the powers of the Postmaster General in the settlement of accounts. I do not consider it necessary for my present purpose to enter into a very extended examination of this subject; but, as it is one of considerable importance, and as you have particularly requested my opinion in respect to it, I will proceed to lay it before you, with the general reasons on which it is founded.

The Postmaster General is not only charged with the collection and care of all the moneys accruing to the post offices, but he is also a dis⚫ bursing agent, and, as such, invested with a wide and very liberal discretion. Whenever the exigencies of his department require the employment of individuals, or the performance of any service, he is authorized to contract with such individuals, and to cause such services to be performed. He is empowered to settle the accounts growing out of such transactions; and out of the receipts of the post offices, and such other means as may be placed in his hands by Congress, he is to pay the sums which he shall find due on such accounts, and all other expenses of the department In making those payments, the Postmaster General acts, to a considerable extent, at his peril; because the 1st section of the act of 1825 expressly provides that he shall, once in three months, render to the Secretary of the Treasury "a quarterly account of all the receipts and expenditures of the department, to be adjusted and settled as other public accounts." (See also section 41.)

The 4th section of the act of the 3d of March, 1817, makes it the duty of the Fifth Auditor "to receive all accounts accruing in or relating to the General Post Office; to examine them; and to certify the balance, and transmit the accounts, with the vouchers and certificates, to the First Comptroller, for his decision."

The effect of these provisions is to subject the Postmaster General to a legal accountability for all the moneys received in his department. They must be charged to him by the Fifth Auditor; and he can only be discharged by the allowance of credits for expenditures made in the department, and proved by competent vouchers rendered in his behalf. But it does not appear to me that the intervention of the accounting officers of the treasury is at all necessary to the settlement of the accounts of contractors and other persons having demands against the department, so as to authorize them to require, and the Postmaster General to make, payment of such demands. As between the creditor of the department and the department itself, it is the duty of the latter to examine and adjust these accounts, without unnecessary delay, and, so soon as the result can be satisfactorily ascertained, to pay to the creditor the balance which may be due him. It is true, as already suggested, that this course may subject the Postmaster General to some peril; but I cannot doubt that the hazard is one which belongs to his office as now organized by law.