Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-23

fed claims of the State against the Govern
: ment of the United States. The sgsn
thus employed was to prosecute the claim
at his own expense, and receive as .ul
compensation for his services such com
missioHs on the amount collected by hin
as migbf be agreed upon between him an,
/ the Fund Com mlssioners, not exceeding
certain rate The officers of the Unite,
States were assthorized to pay the agent hi
agreed commissions, but all other payment
by the United States must be made to III,
Treasurer of the State. Certain Stat,
officers were TO deliver 10 him, upon tht
order OF the Governor, necessary youch
ers, documents, etc, as proofs. The FanC
Commissioners appointed, on November
IS, 1884, John r. Walker as such agent
and agreed upon his commissions. BY Aci
of March %. 1885 the entire Act of 1881
was repealed. Walker nevertheless, de-
manded certain voucher of the State
Auditor; upon his refusal. he asked for a
writ of mandamus The voucher was one
allowed by the AGjutant-G General after the
passage of the repeating Act. The gues-
ton, therefore, was, Did the repeating Act
diyest him of his right to have and collect
the voucher? Walkers complaint was
that the Act impaired the obligation of the
States contract, and was, therefore, void.
The State Court held that his contract was
lone of agency, pure and simple" and
sustained the demurrer to his petition
Estate vs.. Walker. So Mo, 279).
The opinion of the Supreme Court of the
United States was unanimous in its affirm
alton of this judgment. They held that
the agency was withdrawn by the repeal
ing Act OF 1885, as no consideration had
beentgiven tor ii, and it was not so coupled
with an interest in the subject matter as to
make Hit irreyocable. The definition of
Chief Justice Marshall in Hunt vs. Rous-
manier was cited with approval and applied
to the facts in the case. The Court says:
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 10 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 10 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.
In cases Of this kind, if the vouchers and
other evidences of debt have been actually
delivered to the agent for collection, he
may refuse to return them, when his
agency is Withdrawn, until he has been
compensated tor Whist he has already
d.
also has a right 10 be Unidentified for ex-
penses incurred in the proper prosecution
of his duties before he received notice of
such revocation. Omitted States VS.. Jarvis.
Davels, 274 But that his agency may be
Withdrawn, so as to prevent him from
taking further steps in his principals
behalf, is beyond doubt, even III cases be-
tween man and man. Persons accepting
an agency or employment in pursuance of
an Act of the General Assembly of a State
which neither fixes, nor contains any pro.
vision for fixing by Others, particular
term OF service, do so with notice of the
fact that the same may be terminated at
the will Of the Legislature. missouri vs.
Walker, supra; State VS. Davis, A Mo. 129.)
A revocation OF an authority, which ad-
mits of severance, will be good as to the
part unexecuted, but not as to the part al
ready executed. If the authority is not
severable, and damages will happen 10 the
agent on account of the execution of the
authority pro tanto the principal will not
be allowed to revoke the unexecuted part,
or at least not without fully indemnifying
the agent. (Story on Agency, Sec 466)
Captain Mullan's interest is in the money
to be derived from these claims when col
lected. His case is like Walkers in this
respect, as well as in respect of considera-
ton. He has parted with no money OF
other valuable for the security of which the
power OF collecting these claims was con-
ferred in the agreement. He has risked in
the venture of his agency only his personal
services and the expenses incidental to its
execution. 1t is fair TO presume that he
risked this much in view of the compensa-
ton to be reaped as a commission In the
event OF his success. Chambers VS.. Seay,
supra, citing Simpson VS.. Lamb, II c. B.,
603.)
But even if it be granted that Captain
Mullan's contract is founded on valuable
consideration, 1t is not irrevocable on that
account.
In the State of California, by statute. a
principal may terminate any agency, ex-
cept one coupled with an interest in the
subject matter. Section 1856 of Civil Code
of California; See this section discussed
in Flanagan vs.. Brown, 20 Cal 25S.
Therefore, the decisions prior to 1872, at
which time the code was adopted, holding
that agencies founded on valuable Consid-
Grafton cannot be revoked at pleasure by
the principal, are not entitled to weight at
present. (See Flanagan VS.. Brown, supra,
for comment on language of Sanderson, j.,
in Brown VS.. Pforr, IS Cal. 550l
Second-The whole case, then, being
sifted, involves simply this: Was this a
valid contract? And, if so, can Governor
Waterman revoke it?
II does not seem to be clear whether the
Governor of California has any constitu-
tional right to create offices or to make
appointments like the one under discus
sion.
The Constitution of the State invests him
with power only to fill vacancies, and care
fully circumscribes this power. (Constitu-
ton of California, Art. ", Sec. s
But if such right was not in the Gov
ernor, it was in the Legislature; and as
these appointments have been cnfirm ed
and ratified by it, all defects or irregulari-
ties, if any existed, have been cured
The coEcurrent resolutions of that body
dated March 8, 1888, and March 3, 1885, re-
cite in full the acis of the Governor in
respect of these appointments, confirm and
raufy them, and Tx the rate of compensa-
ton. In neither case were these resolu-
tons approved by the Governor. There is
no reason to believe that approval was
needed. Each Governor had submitted in
his regular message TO the Legislature re-
ports of these claims and the employment
of Captain Mullan in connection with
them. Had the concurrent resolutions
been approved, such approval would have
been piece of supererogation as it would
nave Ueeu Du' I'll Executive approval OF q
legislative ratification of an Executive con.
tract.
Granting that Governors Perkins aud
Stoneman exceeded their powers, yet Their
acts as agents of the people have been rati.
fled by the people through their represent.
atives.
In Grogan VS.. San Francisco, Us CAL $50
6O9), the Court Field c. j. says
The State may ratify the acts of her agent.
upon a subject within the constitutional control
of the legislature, when they exceed theil
powers. She may do this by legislation directly
affirming the acts, or by legislation proceeding
upon their assumed validity. The reason i
obvious: There is no limitation as to the mode
in which the State may give her assent except
that 1t must be by an act or resolution of hel
Legislature. (See also Dill. Nun. Corp. Sd ed
Sec. l39; Crawshaw VS.. Roxbury,7 Gray, 374.)
The employment of Captain Mullan
then, if not valid when these Governors
made the appointment, was rendered valid
from the beginning, by the action of the
Legislature, that body having all powers
not distributed to others ROSS VS.. Whit.
man, Cal. 36l, 364 ; see also 10 Opinions
Attorney General, 449; Story on Agency
9th ed, Sec. PAD.
The Legislature of California possessed
!, L. L