On July 30, 1879, a contract for resurfacing with asphaltum certain streets in the city of Washington was awarded to [171 U.S. 161, 162] the Bailey-French Paving Company. The agreement was embodied in a writing signed on the one part by Davis W. Bailey, as general agent of the company just named, and on the other part signed and sealed by the commissioners of the District of Columbia. The price specified for the work aggregated a little less than $41,000. On February 12, 1880, when about three-fourths of the work to be done under this contract had been completed, and about $ 36,000 earned therefor, including $5,784.14 allowed for extra work, the commissioners notified Bailey that no more work could be performed under the contract, because of the fact that the appropriation made by congress for the work in question was exhausted. Subsequently, on February 24, 1883, Davis W. Bailey, claiming that he was in fact the Bailey-French Paving Company, instituted an action at law in the supreme court of the District of Columbia against the District of Columbia to recover $25,000 as damages averred to have been sustained by the cessation of the work under the contract. The District, on April 4, 1883, filed pleas, claiming a set-off of $1,312.30 for damages alleged to have been sustained by improper performance of the work of resurfacing; averring the termination of the contract by reason of the appropriation having been exhausted; and alleging that the time within which the contractor had stipulated to complete the work had expired long prior to the cancellation of the contract. The plaintiff joined issue, and filed a replication on April 18, 1883.
On June 19, 1883, Bailey died. His widow was appointed administratrix, and the action against the District was revived in her name.
On September 16, 1891, the attorney for the claimant addressed a letter, on behalf of the administratrix, to the commissioners of the District of Columbia,c alling attention to the pending case, stating that 'the grounds of said suit is for breach of contract,' reciting the facts as to the making of the contract and the mode by which it was terminated, and claiming that, at the time of such cancellation, Bailey had expended for machinery necessary to the performance of the contract $10,180; that he had at the time stock on hand, [171 U.S. 161, 163] $7,000; that the profit on the unexecuted balance of the work would have been $8,000; that there was due under the contract for an extra one-half inch of surfacing $5,000. These items were stated in the letter to amount to $31,180, but only aggregate $30,180. Without calling the attention of the commissioners to the fact that the item of $5,000 for an extra half inch of resurfacing was not asserted in the declaration in the pending suit, the attorney for the administratrix proceeded to refer to the defenses interposed in such suit on behalf of the District, and next stated the claim made by the contractor in his replication, that the delay in the work was the fault of the District. The conclusion of the letter, omitting referencess to immaterial matters, was as follows:
This communication was referred by the commissioners to the attorney for the District, who indorsed thereon under date of October 17, 1891:
A memorandum was also sent by oen of the commissioners to the assistant attorney for the District, which read as follows.
J. W. D.'
A memorandum in pencil, evidently having reference to the foregoing, is as follows: [171 U.S. 161, 164] 'Ans. Mr. Douglass. Comm'rs think this case should be settled in court.'
On October 28, 1891, Assistant Attorney Thomas sent the following letter:
The next document referring to the matter is the following:
Under this appointment, on February 17, 1892, the attorneys for the respective parties appeared before Mr. Johnson. It was claimed by witnesses for the plaintiff, at the crial of the action subsequently brought to enforce the finding of the referee, that, at the commencement of the hearing, the latter gentleman, as well as the attorney for the administratrix, raised the question whether or not, under the order of appointment, the decision of the referee was to be final, and were assured by the attorney for the District that the decision of Mr. Johnson was to be a final determination of the case. [171 U.S. 161, 165] Such witnesses also testified that subsequently, when a question arose with respect to permitting an amended declaration to be filed, setting up a claim for an extra half inch of resurfacing, the referee and attorneys discussed as to whether the decision of the referee 'was to wind up finally the whole matter,' and an affirmative conclusion was arrived at. No attempt, however, was made to obtain from the commissioners of the District any modification or amplification of the writing of January 11, 1892.
The hearing before the referee was concluded on July 18, 1892, when Mr. Johnson placed on the files of the supreme court of the District of Columbia, in action numbered 21,279, his report as referee. The report did not refer to the mode by which its author had become referee. It was entitled in the cause, purported to contain a synopsis of the pleadings, the plaintiff's claim, a statement of the facts, and the findings of 'J. J. Johnson, Referee.' The report concluded as follows:
The referee also fixed his fee at $550, which was paid by the administratrix.
On September 23, 1892, exceptions were filed on behalf of the District to this report. Upon the exceptions, the attorney for the plaintiff made the following indorsement: 'I consent that these exceptions be filed nunc pro tunc.' On March 10, 1893, a motion for judgment was filed on behalf of the plaintiff.
Without action being had on the exceptions and motions referred to, the administratrix of Bailey, on August 8, 1893, instituted an action at law, numbered 34,564, in the supreme [171 U.S. 161, 166] court of the District of Columbia, seeking to recover from the District the sum of $10,519.20, basing the right to such recovery upon the claim that the finding of Mr. Johnson was, in fact, a final decision and award. In the affidavit filed with the declaration, as authorized by the rules of practice of the court, what purports to be a copy of the resolution appointing Mr. Johnson referee is set out; but the words 'of the suit' are omitted from before the words 'of Bailey, administratrix.' On September 2, 1893, pleas were filed on behalf of the District, denying that it had agreed to submit the matters of difference referred to in the declaration to the award and arbitrament of Johnson, and averring that Johnson had not made an award concerning the same. The various steps in the original action (No. 24,279) were stated, and it was alleged that motions to set aside said award and for judgment were still pending. It was also averred that the alleged award was not under seal, and was never delivered to the defendant; that the defendant never undertook and promised in the manner and form as alleged; and that the District was not indebted as alleged. The plaintiff joined issue. On October 8, 1895, on motion of the plaintiff, the two causes were consolidated. While the motion to consolidate was opposed by the District, no exception was taken to the entry of the order of consolidation.
The consolidated action came on for trial January 13, 1896. At the trial, W. Preston Williamson, a witness for the plaintiff, testified that he had sent to the commissioners the communication of September 16, 1891. Under objection and exception, he was permitted to testify to conversations had separately with two of the commissioners, which tended to show that, in the event of the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee or arbitrator the final determination of the entire conto versy referred to in Williamson's letter. Also under objection and exception, the witness testified that, after the order appointing Mr. Johnson referee was made by the commissioners, he and the attorney for the District, in the presence of the referee, discussed the scope of [171 U.S. 161, 167] the submission, and agreed that the decision of the referee was intended by the parties to the controversy to be a final disposition of the whole matter. The indorsements on the letter of Mr. Williamson, the letter of the assistant attorney of the District, and other memoranda heretofore set out, were put in evidence on behalf of the plaintiff. Mr. Hazleton, a former attorney for the District, also testified for the plaintiff, in substance, under objection and exception, that it was the intention of the commissioners, as he knew from oral statements made to him by two of the commissioners, that the appointment of a referee would be for the purpose of ending the whole controversy, and that nothing occurred between the time of the appointment of the referee and the making of the report to change that understanding. He also testified as to the filing of the amended declaration before the referee, setting up the claim for an extra half inch of resurfacing, which was not embraced in the pending suit at the time the referee or arbitrator was appointed.
J. J. Johnson also testified on behalf of the plaintiff, under objection and exception, as to the understanding had with him at the hearing before him as referee, by the counsel for the respective parties, regarding the finality of any decision made by him, and as to the filing of the amended declaration for the extra half inch of resurfacing. He testified that he filed the report made by him in court of his own motion, and averred that certain written matter filed with his report was not a part of the report, and that it did not contain all the evidence, though it contained all the oral testimony given before him.
The report was next put in evidence, objections being first separately interposed to its introduction on the grounds (1) that the papers and evidence attached thereto should also be put in evidence; and ( 2) that the referee was without authority to make an award. To the overruling of each objection, the defendant duly excepted.
John W. Douglass, one of the commissioners for the District in office at the time of the appointment of the referee, testified on behalf of the plaintiff that the intention of the [171 U.S. 161, 168] commissioners was to make the reference final. The evidence for the plaintiff was closed with the testimony of the plaintiff, who stated, in effect, that the letter of September 16, 1891, had been sent to the commissioners with her approval, and that nothing had been paid her on account of the award. For the defendant, John W. Ross, who was a commissioner at the time of the appointment of Mr. Johnson, testified that he was an attorney at law, knew the difference between an arbitration and order of reference for a report, and that his understanding when the appointment of Mr. Johnson as referee was made was that the appointment was not of an arbitrator, but was simply one of reference. He further testified 'there was no record of the appointment of the referee, except the one in evidence, unless the pencil memorandum may be taken as a record.' The witness denied that he made statements attributed to him by the witnesses for the plaintiff, to the effect that it was the intention of the commissioners that the decision of Mr. Johnson should be final.
After Mr. Ross had concluded his testimony, the record and proceedings in action No. 24,279 were introduced in evidence on behalf of the defendant. On the settlement of the bill of exceptions a dispute arose as to whether the papers attached to the report of the referee had been put in evidence by the offer made; but it is unnecessary to notice the action taken by the trial court with respect to that controversy.
In rebuttal, Mr. Williamson reiterated statements as to l leged declarations of Mr. Ross regarding the finality of the decision of the referee. On cross-examination he said:
The evidence was then closed. The trial judge granted a request of the defendant that the jury be instructed to render a verdict for the defendant in the first action, and an exception was duly noted on behalf of the administratrix. The trial judge also granted a request of counsel for the plaintiff, in substance that the jury be instructed to find for the plaintiff if they found from the evidence that the commissioners accepted the proposition contained in Mr. Williamson's letter; that, in pursuance of such acceptance, the commissioners made the order of January 11, 1892; and that the hearing before Mr. Johnson was proceeded with under such appointment, and the declaration amended at the hearing by consent of counsel. An exception was taken to the granting of this instruction.
The following requests for instructions were then asked on behalf of the defendant, which, being overruled, separate exceptions were noted:
The bill of exceptions also states that exceptions were taken on behalf of the District to portions of the general charge of the court contained in brackets, but no portion of the charge, as contained in the printed record, is so marked.
A verdict was returned finding in favor of the defendant in action No. 24,279, and in favor of the plaintiff for $10,519.20 and interest in action No. 24,564. Judgment was subsequently entered upon the verdict, and both parties prosecuted error. The court of appeals of the District having affirmed the judgment (9 App. D. C. 360), each party obtained the allowance of a writ of error from the court, and the consolidated cause is now here for review.
S. T. Thomas and A. B. Duvall, for the District of Columbia.
A. S. Worthington, for Bailey.
Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opino n of the court.
The decision of this controversy involves two propositions: Did the commissioners of the District of Columbia have the power to agree to submit the claim in issue to the award of an arbitrator? And, if they did have the power, did they lawfully exercise it? To answer either of these questions, it becomes essential to ascertain whether an agreement to submit to arbitration involves the power to contract. Both of the matters above stated depend upon this last inquiry, because both the claim that the District of Columbia did not in valid form exercise the power to submit to arbitration, and the assertion that, if they so did, they were not authorized to that end, rest on the claim that the submission was not made in [171 U.S. 161, 171] the form required by law to constitute a contract, and, even if the alleged award was in legal form, nevertheless the District commissioners were without power to contract for that purpose.
In determining whether an agreement to arbitrate involves the power to contract, we eliminate at once from consideration consents to arbitrate made under a rule of court, by consent, in a pending suit, and shall consider only whether an agreement to arbitrate not under rule of court or within the terms of a statute enacted for such purpose is or is not a contract. We do this because there is no pretense in the case at bar that the submission to arbitration was under a rule of court or equivalent thereto. Indeed, the courts below held that the submission of the claim in question to arbitration was a purely common-law one, and not made under a statute or rule of court; and, in consequence of these views, the courts held it to be their duty to make the award executory by rendering a judgment thereon, on the assumption that the parties, having agreed to a common-law submission, were bound by reason thereof to abide by the award of the arbitrator.
The general rule is 'that every one who is capable of making a disposition of his property, or a release of his right, may make a submission to an award; but no one can who is either under a natural or civil incapacity of contracting.' Kyd, Awards, p. 35; Russ. Arb. p. 14. And Morse, in the opening paragraph of his treatise on Arbitration and Award (page 3), says: 'A submission is a contract.' And again, at page 50: 'The submission is the agreement of the parties to refer. It is therefore a contract, and will in general be governed by the law concerning contracts.' In Whitcher v. Whitcher, 49 N. H. 175, the supreme court of New Hampshire said (page 180): 'A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others, and to be bound by their award, and the submission itself implies an agreement to abide the result, even if no such agreement were expressed.' It was because a submission to arbitration had the force of a contract that at common law a submission by a corporation aggregate was required to be [171 U.S. 161, 172] the act of the corporate body (Russ. Arb. [5th Ed.] p. 20), which act was, of necessity, required to be evidenced in a particular manner.
It is true that an executor, at common law, had the power to submit to an award. But this power arose by reason of the full dominion which the law gave the executor or administrator over the assets, and the full discretion which it vested in him for the settlement and liquidation of all claims due to and from the estate. Wheatley v. Martin, 6 Leigh, 62; Wamsley v. Wamsley, 26 W. Va. 46; Wood v. Tunnicliff, 74 N. Y. 43. While, however, the agreement of the executor to a common-law submission was binding upon him, such a consent on his part did not protect him from being called to an account by the beneficiaries of the estate, if the submission proved not to be to their advantage, because the submission was the voluntary act of the executor, and was not the equivalent of a judicial finding. 3 Williams, Ex'rs, p. 326, and authorities cited. So, also, the power of a municipal corporation to arbitrate ariss from its authority to liquidate and settle claims, and the rule on this subject is thus stated by Dillon (Mun. Corp. [4th Ed.] 478):
In the early case of Brady v. Mayor, etc., 1 Barb. 584, 589, the power of a municipal corporation to submit to arbitration was ascribed to the capacity to contract, with a liability to pay; and it was held that corporations have all the powers of ordinary parties as respects their contracts, except when they are restricted expressly or by necessary implication. In the [171 U.S. 161, 173] case of minor public officials or corporations, such as selectmen and school districts, the power to arbitrate has been clearly rested upon the existence of the right to adjust and settle claims of the particular character which had been submitted to arbitration. Dix v. Town of Dummerston, 19 Vt. 262; Walnut Dist. Tp. v. Rankin, 70 Iowa, 65, 29 N. W. 806. Indeed, the proposition that an independent agreement to submit to an award must depend for its validity upon the existence of the right to contract is so elementary that further citation of authority to support it is unnecessary.
Examining, then, the questions we have stated in their inverse order, we proceed to inquire whether the commissioners of the District of Columbia had the power to enter into a contract of the nature of that under consideration. The solution of this inquiry requires a brief examination of the statutes, from which alone the powers of the commissioners of the District are derived.
By chapter 337 of the act of June 20, 1874,-'An act for the government of the District of Columbia, and other purposes' (18 Stat. 116),- the commission provided for in section 2 was vested with the power and authority the then governor or board of public works of the District, except as thereinafter limited; and it was provided that 'said commission, in the exercise of such power or authority, shall make no contract, nor incur any obligation other than such contracts and obligations as may be necessary to the faithful administration of the valid laws enacted for the government of said District, to the execution of existing legal obligations and contracts, and to the protection or preservation of improvements existing, or commenced and not completed, at the time of the passage of this act.'
By chapter 180 of the act of June 11, 1878,-'An act providing a permanent form of government for the District of Columbia' (20 Stat. 102),- the District and the property and persons therein were made subject to the provisions of the act, 'and also to any existing laws applicable thereto not hereby repealed or inconsistent with the provisions of this act.' The commissioners provided for in the act were, by section 3, vested with [171 U.S. 161, 174] all the powers, rights, duties, and privileges lawfully exercised by, and all property, estate, and effects vested in, the commissioners appointed under the provisions of the act of June 20, 1874, and were given power, subject to the limitations and provisions contained in the act, to apply the taxes or other revenues of the District to the payment of the current expenses thereof, to the support of the public schools, the fire department, and the police. It was expressly enacted, however, in the same section, that the commissioners, in the exercise of the duties, powers, and authority vested in them, 'shall make no contract nor incur any obligation t her than such contracts and obligations as are hereinafter provided for and shall be approved by congress.' In the same section it was further provided that the commissioners should annually submit to the secretary of the treasury, for his examination and approval and transmission by him to congress, a statement showing in detail the work proposed to be undertaken by the commissioners during the fiscal year next ensuing, and the estimated cost thereof; also the cost of constructing, repairing, and maintaining all bridges authorized by law across the Potomac river within the District of Columbia, and also all other streams in said District; the cost of maintaining all public institutions of charity, reformatories, and prisons belonging or controlled wholly or in part by the District of Columbia, and which are now by law supported wholly or in part by the United States or District of Columbia; and also the expenses of the Washington Aqueduct and its appurtenances; and also an itemized statement and estimate of the amount necessary to defray the expenses of the government of the District of Columbia for the next fiscal year.' Of the estimates as finally approved by congress, the act provided that 50 per cent. should be appropriated for by congress, and the remaining 50 per cent. assessed upon the taxable property and privileges in the District other than the property of the United States and of the District of Columbia. In the fifth section of the act provision was made for the letting by contract, after due advertisement, of all work of repair on streets, etc., where the cost would exceed $1,000; [171 U.S. 161, 175] and it was also, in said section, stipulated that 'all contracts for the construction, improvement, alteration or repairs of the streets, avenues, highways, alleys, gutters, sewers and all work of like nature shall be made and entered into only by and with the official unanimous consent of the commissioners of the District, and all contracts shall be copied in a book kept for that purpose and be signed by the said commissioners, and no contract involving an expenditure of more than one hundred dollars shall be valid until recorded and signed as aforesaid.'
By section 37 of chapter 62 of the act of February 21, 1871 (16 Stat. 427), it was provided as follows:
This section is deemed to be applicable to the present commissioners. Comp. St. D. C. pp. 201, 202, 30, 31. So, also, by section 15 of the act of 1871 (16 Stat. 423) it was provided that the legislative assembly should not 'authorize the payment of any claim, or part thereof, hereafter created against the District under any contract or agreement made, without express authority of law, and all such unauthorized agreements or contracts shall be null and void.'
Section 13 of the act of June 1, 1878, embodies the second section of the joint resolution approved March 14, 1876 (19 Stat. 211, 2), which made it a misdemeanor for any officer or person to increase or aid or abet in increasing the total indebtedness of the District.
Under the statutes of 1874 and 1878, above referred to, it has been held that the District of Columbia still continued to be a municipal corporation, and that it was subject to the operation of a statute of limitations (Metropolitan R. Co. v. District of Columbia, 132 U.S. 1 , 10 Sup. Ct. 19), and was also liable [171 U.S. 161, 176] for damages caused by a neglect to repair the streets within the District ( District of Columbia v. Woodbury, 136 U.S. 450 , 10 Sup. Ct. 990). But the mere fact that the District is a municipal corporation is not decisive of h e question whether or not the commissioners of the District had power to make a contract to submit to an award, for, as we have seen, it is not the mere existence of municipal corporate being from which the power to make a submission to arbitration is deduced, but that the municipal corporation by which such an agreement is entered into has power to contract, to settle, and adjust debts; in other words, all the general attributes which normally attach to and result from municipal corporate existence. Recurring to the statutes relating to the commissioners of the District of Columbia, it is clear from their face that these officers are without general power to contract debts, or to adjust and pay the same; that, on the contrary, the statutes expressly deprive them of such power, and limit the scope of their authority to the mere execution of contracts previously sanctioned by congress, or which they are authorized to make by express statutory authority. The necessary operation of these provisions of the statutes is to cause the District commissioners to be merely administrative officers, with ministerial powers only. The sum of the municipal powers of the District of Columbia are neither vested in nor exercised by the District commissioners. They are, on the contrary, vested in the congress of the United States, acting pro hac vice as the legislative body of the District, and the commissioners of the District discharge the functions of administrative officials.
There is no authority for holding that a mere administrative officer of a municipal corporation, simply because of the absence of a statutory inhibition, has the power, without the consent of the corporation speaking through its municipal legislative body, to bind the corporation by a common-law submission. And, this being true, with how much less reason can it be contended that the administrative officers of the District have such power without the consent of congress, when the acts defining the powers of the commissioners, by clear and necessary implication, contain an express prohibition to the contrary? [171 U.S. 161, 177] Nor is it in reason sound to say that, because the District commissioners have the power to sue and be sued, they have therefore the authority to enter into a contract to submit a claim preferred against the District to arbitration, and thus to oust the courts of jurisdiction, when no authority is conferred upon the commissioners to contract to pay a claim of the character embraced in the arbitration, and no appropriation had been made by congress for the payment of any such claim. It cannot be said that because congress had appropriated for the improvement of streets, and therefore authorized a contract for such improvement to the extent of the appropriation, it had also authorized and appropriated for a claim in damages asserted to have arisen from the fact that work had been stopped because the appropriation made by congress had been exhausted. The appropriation of money to improve streets was in no sense the appropriation of money to pay a claim for unliquidated damages arising, not for work and labor performed and materials furnished, but from the refusal to permit the performance of work and labor and the furnishing of materials.
Aside from the prohibition imposed on the commissioners of the District by the acts of congress against entering into contracts for the payment of money for any claim not specifically appropriated for, and agreement to submit the claim in question to the arbitrament of a single individual was, if valid, a contract binding the District to pay any sum of money which the arbitrator might award. It connot be doubted that if the District commissioners themselves had seen fit to pass a resolution reciting that the appropriation by congress for the improvement of the streets had been exhausted, and that a given sum of money was set aside to pay a claim for damages preferred against the District for having contracted when there was no appropriation, such action would have been, under the statutes, ultra i res. But, if the express action of the commissioners to this end would have been void, how can it be contended that by indirection-that is, by entering into an agreement to submit to an award-the commissioners had the power to delegate to a third person an authority which [171 U.S. 161, 178] they themselves did not possess? While the fundamental want of power in the District commissioners to agree to a common-law submission is decisive, there is another view which is equally so. By the express terms of the statute, the commissioners are forbidden to enter into any contract binding the District for the payment of any sum of money in excess of $100, unless the same is reduced to writing, and is recorded in a book to be kept for that purpose, and signed by all the commissioners; the statute declaring, in express terms, that no contract shall be valid unless recorded as aforesaid. This mandatory provision of the statute clearly makes the form in which a contract is embodied of the essence of the contract. In other words, by virtue of the restrictions and inhibitions of the statute, a contract calling for an expenditure in excess of $100 cannot take effect unless made in the form stated. The form therefore becomes a matter of fundamental right, and illustrates the application of the maxim, 'Forma dat esse rei.' That the mere statement of the appointment of a referee on the minutes without the signature of any of the commissioners did not comply with the requirements referred to, is too clear for discussion. The attempt to give effect to such entry as a contract without regard to the requirements of the law illustrates the wisdom of the statute, and the evil of disregarding it; for on the trial two of the three commissioners testified, one on behalf of the plaintiff, and the other on behalf of the defendant, and swore to directly opposite views as to whether or not there had been a common-law submission by the commissioners.
We have considered what has been referred to by counsel as the order of the commissioners, according to its terms, which embraced only the matters contained in the action then pending, and have not regarded the parol evidence which sought to vary and contradict the writing by establishing that it was intended thereby to embrace a claim which had not been asserted in the action. The views we have advanced being decisive against the legality of the alleged award, it follows that the judgment in favor of the administratrix based thereon must be reversed. As, however, the consolidation of [171 U.S. 161, 179] the action upon the award with the original action for damages for breach of the contract for the resurfacing, and the trial of such consolidated cause, proceeded upon the hypothesis that a valid agreement to arbitrate had been entered into, the ends of justice will be subserved by also reversing the judgment in favor of the District entered in the original action. It is therefore ordered that the judgments be reversed, and the cases remanded, with directions to dismiss the action No. 34,564, founded upon the alleged award, and to grant a new trial in action No. 24,279.