James Moore Wayne

“ There is no authority, either to order a military man to keep accounts, or attend to administrative duties. The President has a general superintending power of seeing all laws executed, but that is altogether a distinct and separate head of authority. This is not in virtue of his being commander-in-chief of the army, but of being President of the United States. Under this, he can employ agents; he may choose anywhere; may select civil engineers, or officers of the army proper, to carry on diplomatic arrangements or negotiate with the Indians. ”

“ That was done under a very different state of the law and of army regulations,-when there was neither law nor regulation for making an engineer officer a receiving or disbursing agent, when there was no military agent to receive and disburse government funds. We think, then, that the court did not err in instructing the jury, that the only evidence in support of the first item was the transcript, and that such evidence was not sufficient to authorize any commission to be allowed merely for turning over the money to an accounting officer. ”

“ We have also the testimony of practical engineers to the same point. We have, in addition, much evidence where officers of all corps have done other duty and been compensated; and even where Congress has especially charged the execution of works upon the War Department, such as the Cumberland road, officers have been paid extra. General Gratiot was not allowed to give evidence of his services, to establish an express or implied contract. Such evidence was put in, and counter evidence taken, and then the whole ruled out. It is, no doubt, the duty of a court to construe written documents. ”

“ Colonel J. J. Abert, colonel of the Corps of Topographical Engineers, who testified that he had never received or claimed any extra compensation for official services at one of the desks or bureaux of the War Department, while at the head of said bureau; that he had received extra compensation, but was not, during the time, in the direction of the bureau; that in his opinion, any duties of an engineer character, assigned by the Regulations, or by direction of the War Department, to either corps of engineers, become the proper and legitimate duties of that corps. ”

“ From the detail in that article, particularly that paragraph of it directing in what kind of money the agent should make payments, and in what banks it was to be kept by him, there is no doubt it was intended that he should disburse from remittances made to himself by the government. Such was to be the ordinary nature of remittance. But by another paragraph, the superintending engineer had a general superintendence of the agents' disbursements, and none could be made without his signature. ”

“ In the opinion of the court in the case in 15 Peters, 373, it was deemed right, for the purpose of bringing this protracted controversy within narrower limits, upon the new trial in the Circuit Court, to state some of the views entertained by the court upon points which had been argued as fully as if the evidence had been admitted. And it was held, that by the regulations the plaintiff in error was not entitled to a commission on disbursements, but the perdiem was in full of all extra compensation. ”

“ Gratiot was required to pay a large sum by a certain day, and, not doing so, the harsh measure of dismissal was resorted to. Already $20,000 of the claim against him has been extinguished, and we hope that more will be by the event of this suit. The Attorney-General has represented the danger of large sums being drawn from the treasury, but we ask for the establishment of no new principle. All that we claim is the impartial application of the same rule which has been extended to others. ”

“ Here is a case of an officer with certain duties, absolute and contingent, well ascertained, with a fixed and equally well ascertained compensation for any and every service which he could be called on to render. ”

“ No. 15 is a new demand, claiming $37,127.42 for extra official services in the daily and current business of the chief engineer in his intercourse with the War Department, and asserts the principle, that the regulation of 1821, requiring the chief engineer to perform his functions at Washington, detached him from his regular duty, and made all his office business extraordinary service, for which he demands extra compensation. The details of this item are very minute, and the principle on which the charge is ascertained does not appear ”

“ See Regulations of 1818, p. 67, Record.
That abuses have existed is well known; they form no basis on which the court will imply an undertaking to pay an extra compensation. These abuses produced the proviso of 1835, the act of 1838, and the stringent and conclusive act of 1842. None of the cases which have been decided by this court conflict with the positions I have taken. I McDaniel and the United States, and in Fillebrown and the United States, there were express agreements made by the Secretary of the Navy to pay for services out of the range of their regular official duties. ”

“ We do not think them well founded. When the instructions were given and refused, the only matters in controversy were items 1, 2, 3, 6, 7, 8, 14, 15, in General Gratiot's set-off. The 4th, 9th, 10th, 12th items, and one half of the 11th, had been withdrawn, having been allowed in former settlements. The other half of 11, and the entire 5th item, were admitted by the district attorney, in the course of the trial, to be audits against the demand of the United States. ”

“ We learn from it, that between the 27th August and the 20th September, 1821, $46,050 had been remitted to General Gratiot, then a major in the Corps of Engineers and the superintending engineer of fortifications at Old Point Comfort; and that he, within the dates just mentioned, turned over the money to James Maurice, agent of fortifications, on account of Forts Calhoun and Monroe. This is the only evidence bearing upon the item. ”

“ An implied contract is sufficient. The set-off is claimed under the act of 1794. (1 Lit. & Brown's ed. 366.) The claim need not be a legal one; if it is an equitable one, it is sufficient. The cases which illustrate this are United States v. Macdaniel, 7 Peters, 1; United States v. Ripley, 7 Peters, 18; United States v. Fillebrown, 7 Peters, 28.
The last mentioned case was analogous to this in some respects. Fillebrown was a clerk, with a fixed salary, and was moreover employed by a board to take charge of their books, at an additional salary of $250 per annum. ”

“ There is no proof touching this item, except the Treasury transcript. Colonel Gratiot was the commanding officer in charge of the works at Old Point Comfort. Major Maurice was the contractor. These funds were remitted to Colonel Gratiot, and by him paid over to the contractor. There is no law, and there is no proof of usage, to sustain the charge. If he had been subjected to the trouble of disbursing it, as agent, he was entitled to no commission. ”

“ The treasury doors are closed by legislative action, not by judicial decision. The Attorney-General has asked, if all the officers who have been brought to Washington by former secretaries are to have extra pay. ”

“ For ditto, ditto, ditto, during the same period as the preceding, in examining the estimates for funds yearly, quarterly, and monthly, from the disbursing agents in correspondence with said desk or bureau, about 100 agents on an average; making requisitions on the Secretary of War, for the funds to be remitted to said agents by the Treasury Department; directing the mode of applying and accounting for the funds so remitted; keeping the account with the Treasury for such remittances ”

“ At April term of the Circuit Court of Mississippi, the case was again tried, and the district attorney admitted the credits which are specified in the statements, and the defendant exhibited a new claim of set-off. The several items are enumerated from 1 to 15. Numbers 4, 9, 10, 12, and 13 were admitted or withdrawn, and the others were insisted. Numbers 1, 2, 3, 6, 7, and 8 arise out of transactions anterior to the plaintiff's becoming chief engineer. No. 14 is substantially the same charge for extra official service which was passed on by this court, 15 Peters, as No. ”