82. The United States and the states may enter into contracts through their authorized agents, but only in furtherance of the objects of government, and subject to the limitations of the constitution.
83. They may sue on their contracts, but cannot be sued unless they submit thereto. This, however, they have very generally done by statutory or constitutional provisions.
The power of the United States government and the government of a state to enter into contracts in furtherance of objects for which the government was established, and not prohibited by constitutional limitations, is an incident to the general right of sovereignty. The question arose in the supreme court of the United States in a case in which it was held that a voluntary bond, taken by authority of the proper officers of the treasury department intrusted with the disbursement of public moneys to secure the fidelity in official duties of a receiver or disbursing agent, was a binding contract between him and his sureties and the United States, though the bond was not prescribed by any positive law. "Upon full consideration of this subject," said the court, "we are of opinion that the United States have such capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and, the United States being a body politic, may, within the sphere of the political powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the proper exercise of those powers. * * * To adopt a different principle would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine to such an extent is not known to this court as ever having been sanctioned by any judicial tribunal." 2 The same doctrine applies to contracts by the state government.3
A contract however to bind the government, must be made by itsauthorized agent, and parties dealing with its agent must see at their peril that the agent has actual authority.4 Likewise, it must be made in the form prescribed by statute, if any.5
Where the government enters into a contract, whether a negotiable instrument or otherwise, which it has authority to make, it is bound in any court to whose jurisdiction it submits by the same principles that govern individuals in their relation to such contracts.9
2United States v. Tingey, 5 Pet. 115, 8 L. Ed. 66. And see United States v. Lane, 3 McLean, 365, Fed. Cas. No. 15,559. See "States," Dec. Dig. (Key-No.) §§ 90, 91; Cent. Dig. § 89; "United States," Dec. Dig. (Key-No.) § 59; Cent. Dig. § 42.
3 Danolds v. State, 89 N. Y. 37, 42 Am. Rep. 277; Dikes v. Miller, 25 Tex. Supp. 281, 78 Am. Dec. 571. See "States," Dec. Dig. (Key-No.) §§ 90, 91; Cent. Dig. § 89.
4The Floyd Acceptances, 7 Wall. 666, 19 L. Ed. 169; Whiteside v. United States, 93 U. S. 247, 23 L. Ed. 8S2. See Tiffany, Ag. 201. By an act of Congress [Act May 1, 1820, c. 52, § 6, 3 St at L. 568] no contract may be made by the secretary of state or treasury, or the department of war or navy, except under a statute authorizing it Fowler v. United States, 3 Ct Cl. 43. See "United States," Dec. Dig. (Key-No.) § 60; Cent. Dig. § 4S.
5 Contracts on behalf Of the United States are required by various acts of Congress to be in writing and signed by the contracting parties, and such statutes have been held mandatory, rendering void contracts not made in compliance therewith. Clark v. United States, 95 U. S. 539, 24 L. Ed. 51S. And see Camp v. United States, 113 U. S. 648, 5 Sup. Ct. 687, 24 K Ed. 1081. See "United States," Dec. Dig. (Key-No.) § 65; Cent. Dig. § 48.
6 The Floyd Acceptances, supra; Danolds v. State, supra; Patton v. Gilmer, 42 Ala. 548, 94 Am. Dec. 665; United States v. Ingate (C. C.) 48 Fed. 251. See "United States," Dec. Dig. (Key-No.) § 70; Cent. Dig. § 53.
At common law the sovereign cannot be sued without his consent, and this doctrine prevents suits against a state or against the United States, in the absence of permission by virtue of some statutory or constitutional provision.7 Thus a bond or other contractual obligation of a state may not be enforced by a private individual,8 but under the provision of the federal constitution conferring upon the United States supreme court jurisdiction in controversies between states, it may be enforced by another state.9 There are, however, in most of the states, provisions allowing suit in some form by individuals against the state; 10 and the United States may be proceeded against in the court of claims,11 and in some cases in the other federal courts.12 A state or the United States has the same right as an individual to maintain an action on a contract made with it,18 and it is the proper party to maintain such an action.
7 United States v. Clarke, 8 Pet. 436, 8 L. Ed. 1001; Troy & G. R. Co. v. Com., 127 Mass. 43; Ottawa County v. Aplin, 69 Mich. 1, 36 N. W. 702; President, etc., of Michigan State Bank v. Hammond, 1 Doug. (Mich.) 527; Same v. Hastings, 1 Doug. (Mich.) 225, 41 Am. Dec. 549; Pattison v. Shaw, 6 Ind. 377; Lowry v. Thompson, 25 S. C. 416, 1 S. E. 141; People v. Talmage, 6 Cal. 257; Taylor v. Hall, 71 Tex. 206, 9 S. W. 148; Galbes v. Girard (C. C.) 46 Fed. 500; Ferris v. Land Co., 94 Ala. 557, 10 South. 607, 33 Am. St. Rep. 146. An action against a state or United States officer, which is in effect against the state or the United States, is within the rule. Ottawa County v. Aplin, 69 Mich. 1, 36 N. W. 702; Taylor v. Hall, 71 Tex. 206, 9 S. W. 148; Aplin v. Board, 73 Mich. 182, 41 N. W. 223, 16 Am. St. Rep. 576; Mills Pub. Co. v. Larrabee, 78 Iowa, 97, 42 N. W. 593; North Carolina v. Temple, 134 U. S. 22, 10 Sup. Ct. 509, 33 L. Ed. 849; Brown University v. Rhode Island College <C. C.) 56 Fed. 55. See "United States," Dec. Dig. (Key-No.) § 125; Cent. Dig.
§§ 113, 114.
8 Const U. S. Amend. 11; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842. See "States," Dec. Dig. (Key-No.) § 191; Cent. Dig. §§ 179-184; "Corporations," Cent. Dig. § 1910.
9 Const. U. S. art 3, § 2, cl. 1; South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448. See "States," Dec. Dig. (Key-No.) § 191; Cent. Dig. §§ 179-184.
10 Wesson v. Commonwealth, 144 Mass. 60, 10 N. E. 762; Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; Hoagland v. State (Cal.) 22 Pac. 142; Board of Education of Granville County v. State Board, 106 N. C. 81, 10 S. E. 1002. See "States," Dec. Dig. (Key-No.) § 191; Cent. Dig. §§ 179-184.
11Nicholl v. United States, 7 Wall. 122, 19 L. Ed. 125; Finn v. United States, 123 U. S. 227, 8 Sup. Ct. 82, 31 L. Ed. 128; United States v. Cumming, 130 U. S. 452, 9 Sup. Ct. 583, 32 L. Ed. 1029. See "Courts," Dec. Dig. (Key-No.) § 449; Cent. Dig. §§ 1168-1181.
12Torrey v. United States (C. C.) 42 Fed. 207; Bowe v. United States, Id. 761. See "Courts," Dec. Dig. (Key-No.) § 302; Cent. Dig. §§ 843, 986.
13 State v. Grant, 10 Minn. 39 (Gil. 22); State v. Burkeholder, 30 W. Va. 593, 5 S. E. 439; People v. City of St. Louis, 5 Gilman (I11.) 351, 48 Am. Dec. 339; Spencer v. Brockway, 1 Ohio, 259, 13 Am. Dec. 615; United States v. Holmes (C. C.) 105 Fed. 41. See "States," Dec. Dig. (Key-No.) § 191; Cent.