Joseph Story

“ Is it true that if the secretary of war omits, for any reason, to take security from a public officer, in the precise form which a statute prescribes, that the United States shall lose the benefit of that security, if given voluntarily, and for a lawful and proper purpose: a purpose that really effectuates the law ”

“ It is most important that the duties of an officer shall not be moulded by any but those who establish and regulate these duties, by statute.
The common law is not to be looked into for analogies to support such assumptions of power. The authority of those who hold public trusts in the United States, depends on the precise provisions of statutes. ”

“ Another remark-The secretary at war is commanded to take a particular bond, and the paymaster is commanded to give it before he enters on the duties of his office: and this is a condition precedent to his entering on those duties as an officer. Until he has performed the condition, the officer is in abeyance.
The only power to take a bond is that given by the act of congress, and no other power can be exercised than that delegated by the act; and they are limited by it. The officers of the United States act merely ministerially, and can only take the bond established by the law. ”

“ The words of the bond are, to account 'according to law.' This is in effect a conformity to the statute. In truth, all the duties required of the officer come within the words 'regularly account, well and truly execute, and faithfully discharge.'
The duties of a paymaster are included in the bond, and no more than these duties; and to this extent the sureties are bound. The subjection of a paymaster to the rules and articles of war, are liabilities for which the sureties are not answerable; they are responsible for his duties only. ”

“ The secretary of war has required and taken this as the official bond of the paymaster. If the bond conforms to the law, he had authority; but if not, and he had no authority to take it it is void.
Two questions, therefore, arise.
1. Where a statute prescribes the bond to be taken by an officer, can he take any other?
2. If he does, is it void?
In our government every officer must show a power for every official act. A power, either expressly given by the constitution or some law; or necessarily implied from a power so given. If the power is not thus given, it is retained ”

“ Where the bond is taken between individuals, under no restraint as to power to make the contract, no matter how voluntary, there must still be an officer having power to take voluntary bonds for the United States ”

“ Upon the whole, we are of opinion that the third and fifth pleas, upon which the circuit court gave judgment in favour of the defendant are bad in law; and therefore the judgment ought to be reversed, and judgment thereon be entered in favour of the United States: and the cause remanded to the circuit court for further proceedings. ”

“ Rep. 35, which was debt, upon a bail bond, Mr Justice Twisden said, he had heard lord Hobart say, 'that the statute, i. e. 23 Hen. 6, ch. 9, is like a tyrant; when he comes, he makes all void. But the common law is like a nursing father, makes void only that part where the fault is, and preserves the rest.' But Mr Justice Twisden added, that lord Hobart put this doctrine upon the ground that the statute of 23 Hen. 6, ch. 9, had expressly declared that if any of the sheriffs, &c., should take any obligation in any other form, by colour of their office, that then it should be void. ”

“ We think, then, that the present bond, so far as it is in conformity to the act of 1816, ch. 69, is good; and for any excess beyond that act, if there be any (on which we do not decide) , it is void, pro tanto. The breach assigned is clearly of a part of the condition (viz. to account for the public moneys) , which is in conformity to the act; and therefore action is well maintainable therefor. ”

“ The question of great importance is, whether the officers of the government can impose upon those employed under them, obligations which are not known to the law. The constitution forbids this: and it is of the highest interest that powers of this kind shall not be sanctioned. ”

“ In each case the bonds or other deeds are void as to such conditions, covenants or grants, which are illegal; and are good as to all others which are legal and unexceptionable in their purport. The only exception is, when the statute has not confined its prohibitions to the illegal conditions, covenants or grants ”

“ The case in Hobart's Reports, was put by the court expressly upon this distinction. And it was well remarked by Mr Justice Lawrence, in Kerrison v. Cole, 8 East's Rep. 236, that this case is easily reconcilable with the general principle: for sheriff's bonds are only authorized to be taken with a certain condition: and, therefore, if they are taken with any other condition, they are void in toto, and cannot stand good in part only. But that does not apply to different and independent covenants and conditions, in the same instrument ”

“ Hipkins, 2 Hall's Law Journal; 5 Mass. 314; 3 Mass. 105; 7 Mass. 98; 5 Pick. 227; 3 Call 421; 2 Wash. 189; 6 East 110; Carter 230; Cro. Eliz. 529, 737; 2 And. 56, 57, 108, 152; 2 Saund. 59, 60, in notes; 19 Johns. Rep. 233.
Again, it is said it was intended to conform to the statute. The intent cannot make that legal which is illegal. 2 Cranch 177; 2 Call 510; 9 Cranch 39; 3 Mass. 105; 5 Peters 350.
But at all events, Tingey's case shows, that if such a bond is required it is void. And here the United States say in the replication, it was required; or was directed by the secretary of war. ”