1788.
in cafes of contract, either exprefs or implied, that the Comptroller General is authorized to act, there is no jurifdiction which can relieve him, but that of the Legiflature.
But, in the next place, the claim does not originate upon any order of the legiflative, or executive, power, agreeably to the terms of the act. The order for the removal of the provifion, &c. to Cheʃnut-Hill was iffued by the Pennʃylvania Board oƒ war, not in obedience to the Executive Council merely tranfmitted to the Board. Even, indeed, if the Executive Council had undertaken to direct this proceeding, a queftion would ftill arife, whether they had a right to do fo? for, the act of Affembly, providing for the fettlement of claims againft the public by order of the Executive Council, though not in exprefs words, yet, by a neceffary implication, muft intend a legitimate order, founded upon the conftitutional powers of that department, or iffue under the authority of fome law. The Executive Council cannot otherwife charge the public ; without the legiflative fanction they cannot otherwife charge the public; without the legiflative fanction they cannot erect magazines, or any other public buildings ; nor enter into the moft trifting contract; of which, indeed, a recent proof appears, in the refufal of the General Affembly to pay for the arms of the State, that had been placed in the Supreme Court, or to difcharge the additional expence of the Triumphal Arch, which had been incurred by the direction and upon the faith of the Executive Council.
II. But, it is further to be fhewn, that, even fupporting the Comptroller General, or this Court upon appeal, has the power of granting Sparhawk's claim, yet, that the claim itfelf is not founded in law of equity, and ought either to urge againft the immediate agent in the wrong which he has fuftained, or travel to the fource, and demand reparation from Congrefs. The Commonwealth of Pennʃylvania cannot be liable; for, the perfons who took and kept the provifions, &c. at Cheʃtnut-Hill acted under the authority of the Board of war, who it is true, were appointed by the Executive Council; but, in this inftance, proceeded entirely upon the recommendation of Congrefs, which the Executive Council did not, and could not legally, enjoin or enforce. It is poffible, however, that, in ftrict law, Meffrs. Loughead and Barnhill would have been liable as trefpaffers, had not the Legiflature interfered to protect perfons in their fituation from vexations profecutions: 3 State Laws. 178. And this act, although it relates immediately to individuals, fhews, generally, that the temporary bodies, by whofe orders fuch individuals were governed, are, likewife, to be exempted from fuit, on account of their conduct in the fervice of their country.
But, on what ground can redrefs be at all expected on this occafion ? The removal of the Appellant's property arofe from the neceffity of the war ; it was not done to convert the flour to the public ufe, nor to deprive the owner of the advantages of it, any further than the paramount confideration of the public welfare required.
