As has elsewhere been shown in this treatise, a fundamental principle of American law is that the legality of acts of public officers is determined in the ordinary courts according to the same rules that govern the decision of suits between private individuals. Thus, generally speaking, no officer can defend an ultra vires or otherwise illegal act by setting up his official position or exhibiting the command of a political superior. This last statement as to the non-applicability of the principle of respondeat superior is, however, subject to this qualification, that the order of an administrative superior, prima facie legal, though in fact not legal, may be set up in defense of an act commanded by military superiors. In Be Fair,54 decided in 1900, the court say: "The law is that an order given by an officer to his private, which does not expressly or clearly show on its face its illegality, the soldier is bound to obey; and such order is his full protection. The first duty of an officer is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the precious moment for action would be wasted.. Its law is that of obedience. No question can be left open of the right to command in the officer, or of the duty of obedience in the soldier. While I do not say that the order given ... to the petitioners was in all particulars a lawful order, I do say that the illegality of the order, if illegal it was, was not so much so as to be apparent and palpable to the commonest understanding. If, then, the petitioners acted under such order in good faith, they are not liable to prosecution." 55

The result of the doctrine thus stated is, as will be seen, that an act is defended for the performance of which in fact no legal authority can be produced. Simply the color of authority on the part of the superior giving the command is held a sufficient defense. Clearly common justice, and the practical necessities of administration justify the rule, yet, inasmuch as it does in fact protect an act essentially illegal, the doctrine is one that is kept within the narrowest possible bounds. Only where there is present no fact which would put the subordinate, as a man of ordinary intelligence, upon his guard, or where the practical necessities of the case leave little or no opportunity for individual judgment in the matter, should the rule be applied. In all other cases, it is to be repeated, the public official is able to defend his act only by showing some existing legal authority for it

54 100 Fed. Rep. 149.

55 Cf. Wyman, American Administrative Law, § 2.

The necessities of the case require the foregoing doctrine, with reference to the military arm of government There not being the same urgency for immediate obedience, the doctrine does not prevail in civil matters. Thus, in Hendricks v. Gonzales56 the order of the Secretary of the Treasury to the Collector of the Port of New York was held not to exonerate him from liability for an act done under it, the court saying: "The questions presented by the assignments of error seem free from doubt The plaintiff having complied with the condition entitling him to clearance, it was the duty of the defendant as collector of the port, to grant a clearance for the vessel and her cargo, unless he was justified in refusing to do so by some other statutory authority. Neither the Secretary of the Treasury nor the President could nullify the statute, and though the defendant may have thought himself bound to obey the instructions of the former, his mistaken sense of duty could not justify his refusal of the clearance, and these instructions afforded him no protection unless they were authorized in law."