1. The government of the United States has a right to use bills
of exchange in conducting its fiscal operations, as it has the
right to use any other appropriate means of accomplishing its
legitimate purposes.
2. When the government becomes a party to such a bill, it is
bound by the same rules in determining its rights and its
liabilities as individuals are.
Page 74 U. S. 667
3. As the United States can only become a party to a bill of
exchange by the action of an officer or other authorized agent of
the government, the authority of the officer or agent may be
inquired into as in the case of the agent of an individual.
4. This authority, in case of bills of exchange, depends upon
the same principles that determine such authority in other
contracts, and is not aided by the doctrine that when once lawfully
made, negotiable paper has a more liberal protection than other
contracts in the hands of innocent holders.
5. Under our system of government, the powers and duties of all
its officers are limited and defined by laws, and generally by acts
of Congress.
6. As there is no express authority to be found for any officer
to draw or accept bills of exchange, such authority can only exist
when these are the appropriate means of carrying into effect some
other power belonging to such officer under his prescribed
duties.
7. It does not follow that because an officer may lawfully issue
bills of exchange for some purposes, he can in that mode bind the
government in other cases where he has no such authority.
8. As under existing laws there can be no lawful occasion for an
officer to accept drafts on behalf of the government, such
acceptances cannot bind it, though there may be occasions for
drawing or paying drafts which may bind the government.
9. The acceptances known as the "Floyd acceptances" -- (certain
acceptances on long time, made by the Hon. J. B. Floyd, Secretary
of War, of drafts drawn on him by army contractors before the
services contracted for were received or the supplies to be
furnished were delivered) -- were mere accommodation loans of the
credit of the United States without authority, and therefore
void.
10. If they had been given and received as payment (which they
were not), they were payments in advance of the services rendered
and supplies furnished, and were void because forbidden by the Act
of January 31, 1823, 3 Stat. at Large 723.
The facts, as found by that court, were thus:
Russell Majors & Waddell had contracts for supplies and
transportation to be furnished to the army in Utah. By these
contracts, they were to be paid either by the quartermaster at St.
Louis or by his drafts on the assistant treasurer of the United
States in New York. In all the contracts except one, these payments
were to be made on the final delivery of the supplies in Utah, but
in one contract there was an agreement that partial payments should
be made when the trains were started. In all cases, such
payments
Page 74 U. S. 668
were to be made upon certificates of the proper
quartermaster.
The performance of these contracts required a very large outlay
of money, and Russell & Co. finding it difficult to advance
this and wait for its return until they were entitled to receive
payment under their contracts, made an arrangement with the
Secretary of War under which they should draw time drafts on him,
payable to their own order at the Bank of the Republic in New York,
which should be accepted by the Secretary. On these drafts they
were then to raise the money necessary to enable them to perform
their contracts, and as the money for the transportation and
supplies became due, they were to receive it and take up the
acceptances of the Secretary before or at maturity. Under this
arrangement, the Secretary accepted drafts to the amount of
$5,000,000, most of which were taken up by Russell Majors &
Waddell, as agreed, but over a million of dollars in amount remain
unpaid.
The drafts, with unimportant verbal differences and differences
of date, were in this form:
"$5000 WASHINGTON, November 28, 1859"
"Ten months after date, for value received, pay to our own order
at the Bank of the Republic, New York City, five thousand dollars,
and charge to account of our contract for supplies for the army in
Utah."
"RUSSELL, MAJORS & WADDELL"
"Hon J. B. FLOYD, Secretary of War"
"
[Endorsement]"
"
RUSSELL, MAJORS & WADDELL"
"
[Acceptance]"
"WAR DEPARTMENT, November 28, 1859"
"Accepted: JOHN B. FLOYD, Secretary of War"
The drafts passed into the hands of different holders, among
them T. W. Pierce, the Dover Five Cent Saving Bank, E. D. Morgan,
and the Boatmen's Saving Institution, and Mr. Floyd having retired
from the War Department,
Page 74 U. S. 669
and the department refusing to pay the acceptances, Pierce, by
his separate bill, and the other parties in a proceeding treated by
the Court of Claims as one in substance, brought suit in that
court. The petition of Pierce averred:
"That the said Floyd, as Secretary of War and in behalf of the
United States, and as the principal officer of an executive
department, had authority to accept the drafts, and that in
accepting them he acted in his official capacity and in behalf of
the United States. And that he, in behalf of the United States, as
such Secretary of War, was authorized to accept drafts of such and
the like tenor and effect as the drafts aforesaid, and that the
said Pierce, relying upon the apparent as well as upon the actual
authority of the said Secretary of War to make such acceptances,
and upon the fact of his acceptance of the bills, became the holder
and owner of them in a regular course of business before they
severally matured and for valuable consideration."
Similar averments were made in the petitions of the other three
parties. And by an amended petition they set forth the further
facts:
That when the bills were accepted, and when they became due, the
government owed the contractors a larger sum than the amount of
them.
That at that time the army in Utah was in imminent danger from
cold and starvation; that it was the duty of Floyd, as Secretary of
War, to save it; and that to so save it he authorized the drawing
of the bills and accepted them.
That as Secretary, he had authority by law to make advances to
the contractors after their trains were ready to start, and that
their trains being ready to start, he did what was done.
That he had authority by law to ascertain and determine the debt
of the United States to the contractors, and did so determine; that
there was due them the sums specified in the bills; and that the
bills so drawn and accepted were conclusive evidence of the debt as
against the government.
These same additional matters were considered by the
Page 74 U. S. 670
court below in the case of Pierce. The general issue was pleaded
in all the suits.
To present the case more completely, it must be stated that by
statute of 31 January, 1823, [
Footnote 1] it is enacted:
"That from and after the passage of this act,
no advance of
public money shall be made in any case whatever, but in all
cases of contracts for the performance of any service or the
delivery of articles of any description for the use of the United
States, payment shall not exceed the value of the service rendered,
or of the articles delivered previously to such payment."
The Court of Claims -- upon a full history of the facts, as
presented by evidence introduced by the government, and whose
introduction was opposed by the petitioner, Pierce -- the admission
being one of the errors alleged by Pierce himself -- dismissed all
the cases, holding, in the case of Pierce that the Secretary had no
power to bind the United States by the acceptances; that the
acceptances were to be regarded as within the act of 31 January,
1823, and as an attempt to avoid it, and were therefore void; that
no decision of the Supreme Court authorized such acceptances; that
the evidence failed to establish any usage in the different
departments by which the Secretary of War was authorized to accept
in behalf of the United States the bills in suit, and that if such
usage or practice were established, it could not avail the
claimant, because forbidden by law.
And finding, in the other three cases, that though it is and has
been the practice of heads of departments to accept drafts or bills
of exchange
for the transmission of funds to disbursing
officers, or the payment of
those serving in distant
stations, or for services rendered, the cases were still
substantially the same as the case of Pierce, and, like it, to be
dismissed.
The record did not show that anything remained due to the
contractors, or was due when the bills matured, no evidence on the
state of the accounts being given on either side.
Page 74 U. S. 674
MR. JUSTICE MILLER delivered the opinion of the Court.
The cases before us are demands against the United States,
founded upon instruments claimed to be bills of exchange, drawn by
Russell Majors & Waddell, on John B. Floyd, Secretary of War
and accepted by him in that capacity, purchased by plaintiffs
before maturity, for a valuable consideration, and, as they allege,
without notice of any defense to them.
Mr. Pierce, in his petition, relies on the facts that the
signature of John B. Floyd to these acceptances is genuine and that
he was at the time of the acceptance Secretary of War as sufficient
to establish his claim. He avers that Floyd, as Secretary of War,
had authority to accept the drafts, and that by his acceptance the
United States became bound. It is evident that he means by this
merely to assert as a principle of law that by virtue of his
office, the Secretary had such authority, and not that there
existed in this case special facts which gave such authority, for
he mentions no such facts in his petition, and when the solicitors
for the defendant undertook to show under what circumstances the
bills were issued and accepted, he objected to the evidence. Its
admission is one of the alleged errors on which he brings the case
to this Court.
Both Mr. Pierce and his counsel therefore claim to recover on
the doctrine that when a party produces an instrument in the form
of a bill of exchange which he has purchased before its maturity,
drawn on the Secretary of War and accepted by him, he has
established a claim against the government which admits of no
inquiry into the circumstances under which the acceptance was
made.
The other defendants also in their original petitions assert and
rely upon the same principle, but they have also filed amended
petitions in which they set forth facts connected with the
acceptance of the Secretary which they
Page 74 U. S. 675
deem sufficient to establish his right or authority to accept.
Most of the facts found under the issues made by these amended
petitions were also found under the general issue in Pierce's case,
notwithstanding his objection, so that if they avail the other
plaintiffs, they will also support his claim.
It will be convenient, therefore, to consider first the
proposition on which he rests his case, which if found to be sound
disposes of all the cases in favor of plaintiffs.
One of the main elements of that proposition, much and
eloquently urged upon our attention, seems to be too well
established by the decisions of this Court to admit now of serious
controversy. It must be taken as settled that when the United
States becomes a party to what is called commercial paper -- by
which is meant that class of paper which is transferable by
endorsement or delivery, and between private parties, is exempt in
the hands of innocent holders from inquiry into the circumstances
under which it was put in circulation -- they are bound in any
court to whose jurisdiction they submit by the same principles that
govern individuals in their relations to such paper.
Conceding, then, for the sake of argument that the instruments
under consideration are in form bills of that character and that
the signature of Floyd is genuine, and that he was at the time
Secretary of War, there remains but one question to be considered
essential to plaintiffs' right to recover, and that concerns the
authority of the Secretary to accept the bills on behalf of the
government.
It is not to be denied, that in the extensive and varied fiscal
operations of the government, bills of exchange are found to be
valuable instruments, of which it has the right to avail itself
whenever they may be necessary. In the transfer of immense sums of
money from one part of the country to another, and in the payment
of dues at distant points, where they should properly be paid, it
uses, as it ought to use, this time-honored mode of effecting these
purposes.
In the case of such paper, issued by an individual, when
Page 74 U. S. 676
we make ourselves sure of his signature, we are sure that he is
bound, because the right to make such paper belongs to all men. But
the government is an abstract entity which has no hand to write or
mouth to speak, and has no signature which can be recognized, as in
the case of an individual. It speaks and acts only through agents,
or more properly, officers. These are many, and have various and
diverse powers confided to them.
An individual may, instead of signing with his own hand the
notes and bills which he issues or accepts, appoint an agent to do
these things for him. And this appointment may be a general power
to draw or accept in all cases as fully as the principal could, or
it may be a limited authority to draw or accept under given
circumstances defined in the instrument which confers the power.
But in each case the person dealing with the agent, knowing that he
acts only by virtue of a delegated power, must at his peril see
that the paper on which he relies comes within the power under
which the agent acts. And this applies to every person who takes
the paper afterwards, for it is to be kept in mind that the
protection which commercial usage throws around negotiable paper
cannot be used to establish the authority by which it was
originally issued. These principles are well established in regard
to the transactions of individuals. They are equally applicable to
those of the government. Whenever negotiable paper is found in the
market purporting to bind the government, it must necessarily be by
the signature of an officer of the government, and the purchaser of
such paper, whether the first holder or another, must at his peril
see that the officer had authority to bind the government.
When this inquiry arises, where are we to look for the authority
of the officer?
The answer which at once suggests itself to one familiar with
the structure of our government, in which all power is delegated,
and is defined by law, constitutional or statutory, is that to one
or both of these sources we must resort in every instance. We have
no officers in this government,
Page 74 U. S. 677
from the President down to the most subordinate agent, who does
not hold office under the law, with prescribed duties and limited
authority. And while some of these, as the President, the
legislature, and the judiciary, exercise powers in some sense left
to the more general definitions necessarily incident to fundamental
law found in the Constitution, the larger portion of them are the
creation of statutory law, with duties and powers prescribed and
limited by that law. It would seem reasonable, then, that on the
question of the authority of the Secretary of War to accept bills
of exchange, we must look mainly to the acts of Congress.
The counsel for claimants, not altogether rejecting this view of
the matter, maintain that the power is derived:
1st. From the true construction of the Constitution and acts of
Congress.
2d. From the decisions of the Supreme Court of the United
States, by which is probably meant only the authoritative
construction of the Constitution and laws.
3d. From the usage of the government in similar cases.
We will examine these several alleged sources of the power in
the reverse order to that here stated.
1. As regards usage, it must occur at once that if there are
instances in which the use of bills of exchange by the officers of
government is authorized by law, as undoubtedly there are, the use
of them in such cases, however common, cannot establish a usage in
cases not so authorized. It may also be questioned whether the
frequent exercise of a power unauthorized by law by officers of the
government can ever by its frequency be made to stand as a just
foundation for the very authority which is thus assumed.
It is to be observed in this connection that the Court of Claims
finds as a fact in Pierce's case that
"the evidence fails to establish any usage or practice in the
different departments of the government by virtue of which the
Secretary of War was authorized to accept in behalf of the United
States the bills in suit;"
and so far as that case is concerned, this inquiry might close
there.
Page 74 U. S. 678
But in the finding of facts which the same court makes in the
other three cases, it is said,
"That it is and has been the practice of the heads of
departments to accept drafts or bills of exchange for the
transmission of funds to disbursing officers or the payment of
those serving in distant stations or for services rendered."
The usage here found is limited to specified classes of cases,
and if authorized by law, can be no evidence of a usage in cases
not so authorized. It cannot be held to support the allegation of a
usage so general as to apply to any case in which the head of the
department may see proper to use it.
We make the further observation in this connection that while it
is readily to be seen that the exigencies of the business of the
departments may require drafts to be drawn by them and may justify
drafts being drawn on them which they ought to and do pay when
presented, there can be no occasion for an acceptance by any
department or officer of a draft drawn on either of them.
We do not think, therefore, that usage is a sufficient reliance
as an authority for the acceptance of these drafts.
2.
United States v. Bank of the Metropolis, [
Footnote 2] is the case mainly relied
on as establishing the doctrine contended for by plaintiffs, and is
confidently asserted to be conclusive of the cases under
consideration unless overruled.
That case undoubtedly did decide that when an officer of the
government
authorized to do so accepted a draft in behalf
of the United States or one of the departments, the validity of the
instrument could not be disputed in the bands of an innocent
holder. We have already stated this as the established doctrine of
this Court. And that proposition was the principal, if not the only
one, controverted in that case. An attentive examination of it will
show that the authority of the officers to accept was not raised by
counsel or considered by the court.
The Bank of the Metropolis being sued for certain balances in
favor of the United States, pleaded as a setoff a
Page 74 U. S. 679
draft drawn by Edwin Porter on Richard C. Mason, Treasurer of
the Post Office Department, at ninety days, and accepted by him as
Treasurer, and also four drafts at ninety days, drawn by James
Reeside on Amos Kendall, Postmaster General, and "accepted on
condition that his contracts be complied with."
It does not appear to have been controverted that Mason had
authority to accept the draft of Porter by either the counsel for
the government or the bank, and the Court seems to have treated it
as conceded.
The opinion of the Court, after stating the facts, opens with
the declaration that,
"When the United States,
by its authorized officer,
becomes a party to negotiable paper, it has all the rights, and
incurs all the responsibilities of individuals who are parties to
such instruments."
And further on it is said, that
"an unconditional acceptance was tendered to it [the bank] for
discount; . . . all it had to look to was the genuineness of the
acceptance, and the
authority of the officer to give
it."
If this language has any significance, it is that the authority
of the officer, like the genuineness of the signature, is always to
be inquired into at the peril of the party taking an acceptance
purporting to bind the government.
Only a small part of that elaborate opinion is devoted to
Porter's draft and to the questions involved in it, and the
remainder of it is occupied in discussing the effect of the
condition annexed to the acceptance of Reeside's draft on its
commercial character and to determining what is implied in that
condition.
It seems, therefore, quite clear that no consideration whatever
was given by the Court to what constituted an authority to draw or
accept bills of exchange, but that it was impliedly held to be a
matter always open to inquiry when the draft was attempted to be
enforced against the government. Nor are we aware of any case in
this Court in which the rule for determining that authority has
been laid down.
Recurring, then, to the written law as the exclusive source of
such authority, we may confidently assert that there is no
Page 74 U. S. 680
express authority to any officer of the government to draw or
accept bills of exchange.
Our statute books are filled with acts authorizing the making of
contracts with the government through its various officers and
departments, but in every instance the person entering into such a
contract must look to the statute under which it is made and see
for himself that his contract comes within the terms of the
law.
Does the contract called a bill of exchange stand on any
different footing? It is true that when once made by a person
having authority to make it in any given case, it is not open to
the same inquiries, in the hands of a third party, that ordinary
contracts are as to the justice, fairness, and good faith which
attended its origin or any of its subsequent transfers; but in
reference to the authority of the officer who makes it to bind the
government, it is to be judged by the same rule as other
contracts.
The authority to issue bills of exchange, not being one
expressly given by statute, can only arise as an incident to the
exercise of some other power. When it becomes the duty of an
officer to pay money at a distant point, he may do so by a bill of
exchange because that is the usual and appropriate mode of doing
it. So when an officer or agent of the government at a distance is
entitled to money here, the person holding the fund may pay his
drafts. And whenever, in conducting any of the fiscal affairs of
the government, the drawing a bill of exchange is the appropriate
means of doing that which the department or officer having the
matter in charge has a right to do, then he can draw and bind the
government in doing so. But the obligation resting on him to
perform that duty and his right and authority to effect such an
object are always open to inquiry, and if they be found wanting, or
if they be forbidden by express statute, then the draft or
acceptance is not binding on the government.
It cannot be maintained that because an officer can lawfully
issue bills of exchange for some purposes, that no inquiry can be
made in any case into the purpose for which a
Page 74 U. S. 681
bill was issued. The government cannot be held to a more rigid
rule in this respect than a private individual.
If A. authorizes B. to buy horses for him, and to draw on him
for the purchase money, B. cannot buy land and bind A., by drawing
on him for the price. Such a doctrine would enable a man, in
private life, to whom a well defined and limited authority was
given, to ruin the principal who had conferred it. So it would
place the government at the mercy of all its agents and officers,
although the laws under which they act are public statutes. This
doctrine would enable the head of a department to flood the country
with bills of exchange, acceptances, and other forms of negotiable
paper without authority and without limit. No government could
protect itself, under such a doctrine, by any statutory restriction
of authority short of an absolute prohibition of the use of all
commercial paper.
In accordance with these views, we are of opinion that as there
can be no lawful occasion for any department of the government or
for any of its officers or agents to accept drafts drawn on them
under any statute or other law now known to us, such acceptances
cannot bind the government.
An examination of the facts found by the Court of Claims
confirms the views already stated.
Counsel for the plaintiffs seem to have been of the opinion from
the start that there was nothing in the nature of the transaction
which would support the paper on which they sued, for they steadily
resisted all efforts on the part of government to give the facts in
evidence, and in the arguments made in this Court the right to
recover is rested almost exclusively on the proposition that
because in some cases the Secretary might lawfully accept, it must
be presumed in their favor that these drafts were lawfully
accepted.
It seems to us that such a transaction can be defended on no
principle of law, and that in thus lending to Russell & Co. the
name and credit of the United States, the Secretary was acting
wholly beyond the scope of his authority. The paper was in fact
accommodation paper, as it was found to
Page 74 U. S. 682
be by the Court of Claims, by which the Secretary undertook to
make the United States acceptor for the sole benefit of the
drawers. It was a loan of the credit of the government volunteered
by him, without consideration and without authority. That the
transaction was not payment, nor intended to be payment, for the
supplies furnished is clear, because the acceptances were not
expected to be paid by the government, nor payable at the Treasury,
but were to be met by the drawers at the bank with which they
dealt. These drafts did not interrupt in the least the regular
payments made to Russell & Co. by the Quartermaster's
Department according to their contracts. Nor do the drafts seem to
have had any relation to anything due on these contracts or to what
might become due before their maturity. It was therefore not
payment, nor so considered by either party.
But if these acceptances can be considered as payments, they
were payments in advance of the service rendered and supplies
furnished -- payments made before anything was due. They are in
that view not only without authority of law, but are expressly
forbidden by the Act of January 31, 1823. [
Footnote 3] The first section of that statute, which
has never been repealed, enacts
"That from and after the passing of this act, no advance of
public money shall be made in any case whatever, but in all cases
of contracts for the performance of any service or the delivery of
articles of any description for the use of the United States,
payment shall not exceed the value of the services rendered or the
articles delivered previous to such payment."
The transaction by which these drafts were accepted was in
direct violation of this law and of the limitations which it
imposes upon all officers of the government. Every citizen of the
United States is supposed to know the law, and when a purchaser of
one of these drafts began to make the inquiries necessary to
ascertain the authority for their acceptance, he must have learned
at once that if received by Russell
Page 74 U. S. 683
Majors & Waddell as payment, they were in violation of law,
and if received as accommodation paper, they were evasions of this
law and without any shadow of authority.
It is proper to observe that it does not appear from this record
that anything remains due to Russell & Co. under their contract
with the government, or that anything was due them at the maturity
of any of these drafts, nor is there any attempt on the part of
plaintiffs to show either of these things or the state of the
accounts between those contractors and the government at the time
the drafts matured.
These cases have long been before the departments, before
Congress, and the Court of Claims, and have been the subject of
much laborious consideration everywhere. The amount involved is
large, the principles on which the claims are asserted are to some
extent new, and we have given them a careful and earnest
investigation. We are of opinion that the judgments rendered by the
Court of Claims against the plaintiffs must be
Affirmed.
[
Footnote 1]
3 Stat. at Large 723.
[
Footnote 2]
40 U. S. 15 Pet.
377.
[
Footnote 3]
3 Stat. at Large 723.
MR. JUSTICE NELSON (with whom concurred GRIER and CLIFFORD, JJ)
dissenting:
I am unable to concur in the opinion just delivered.
The instruments, in the form of bills of exchange, drawn by
Russell Majors & Waddell upon and accepted by Floyd, Secretary
of War, were drawn on "account of our contract for supplies for the
army in Utah," or "on account of our transportation contract of the
12th April, 1860."
These are not bills of exchange in the sense of the law
merchant, or possessing the properties of negotiable paper. They
are drawn upon a particular fund, in terms which may or may not be
sufficient to pay the bills, and hence a contingency exists whether
or not they will be paid at maturity. All the cases agree that the
money mentioned in the instrument must be payable absolutely and at
all events, and not made to depend on any uncertainty or
contingency.
*
Page 74 U. S. 684
The instruments not being negotiable, the assignees or holders
taking them are subject to all the equities that may exist between
the acceptor and the drawer, and stand in no better position in the
present case than Russell Majors & Waddell. As between these
parties and the government, the obligation assumed by Floyd, as
representing it by his acceptance, was to account and to apply all
the moneys due or that might become due on the contracts for
transportation or supplies specified in the bills or drafts at
their maturity. To this extent, the government became bound to the
contractors, or to the assignees or holders of the same, and as the
acceptance by the Secretary assumes or implies that there were some
funds due or might become due on the contracts in his hands,
subject to these drafts, the onus was on the government to give
evidence of the amount or to state the account with the drawer so
as to ascertain the amount due, if any. This evidence was
peculiarly in the power of the government. As no such adjustment
has been made, for aught that appears, the government may now have
in its hands moneys belonging to these contractors, to pay the
drafts.
I am of opinion also that under the sixth section of the Act of
May 1, 1820, it was competent for the Secretary of War to accept
bills of exchange in behalf of these contractors, and that if the
bills in question had possessed negotiable properties, the
government would have been bound to a
bona fide holder for
value.
That section provides
"That no contract shall hereafter be made by the Secretary of
State, or of the Treasury, or of the Department of War, or of the
Navy except under a law authorizing the same or under an
appropriation adequate to its fulfillment, and excepting also
contracts for the subsistence and clothing of the army or navy and
contracts by the Quartermaster's Department which may be made by
the secretaries of those departments."
It will thus be seen that contracts for the subsistence and
clothing of the army and navy by the secretaries are not tied up by
any necessity of an appropriation or law authorizing
Page 74 U. S. 685
it. The reason of this is obvious. The army and navy must be
fed, and clothed, and cared for at all times and places, and
especially when in distant service. The army in Mexico or Utah are
not to be disbanded and left to take care of themselves because the
appropriation by Congress for the service has been exhausted or no
law can be found on the statute book authorizing a contract for
supplies. The above act confers upon the secretaries full authority
to contract for these supplies, and which bind the government, and
the most ready and convenient mode of accomplishing this would be
by accepting bills of exchange drawn by the contractors of the
distant army or navy upon the secretaries at home.
The credit of the government, thus pledged, would at once
furnish the necessary subsistence, clothing, and shelter.
Our conclusion is that the judgment below should be reversed and
the cause remitted with directions to grant a new trial, and
further proofs taken, that complete justice may be done between the
parties.
* 3 Kent's Com. 76-77, and notes; Story on Bills of Exchange
§ 46.
