Joseph Story

“ If the services of the plaintiff in error, for which he claims to retain, in addition to his pay, more than the $35,000 drawn by him from the treasury for the erection of the fort at Grand Terre, were not services falling within the line of his duty, as chief engineer, they are yet services totally different from those to which he represents them as analogous; and the compensation allowed for the latter, affords no evidence whatever, of the propriety of the allowance that is claimed. ”

“ There is nothing in the character of the item which precludes the defendant from showing that he is entitled to the commissions of two and a half per cent., or of a less amount, if he can prove that the disbursements were other than those on Forts Monroe and Calhoun; and that it has been the usage of the department, to make the like compensation for disbursements, under the like circumstances, or that the allowance is just and equitable in itself. The court are of opinion, that evidence ought to have been admitted to establish it. ”

“ The application of the moneys coming into the hands of the United States from their debtor, and not appropriated by him, is to be made in such manner as they deem expedient. There was no objection by Generel Gratiot to this mode of appropriation; the money received had no relation to the one debt more than to the other; the right so to appropriate, which was clearly vested in the United States, as creditors, was not affected or controlled by any circumstance, equitable or legal. ”

“ It is admitted, on our part, that, if the court rejected evidence of any fact which was a legal ground of set-off or credit, they erred. The question, therefore, resolves itself into the inquiry, whether the particular items of claim, as set out in the treasury transcript, were, if proved, a legal ground of off-set by General Gratiot against the United States. The items are three in number. The first is a claim for $5758 for a second per diem allowance for the disbursements made at Old Point Comfort. ”

“ That any officer, no matter what his denomination or rank, civil or military, who is employed by the government to perform such services, is entitled to such reasonable compensation, over and above his official salary or pay ”

“ The charge of two and a half per cent. commissions for disbursing contingencies of fortifications, is so clearly contrary to law, that all evidence to sustain it was properly rejected. Admitting the disbursement to have been made, as charged, such an allowance, therefore, could not be lawfully claimed. The army regulations, above referred to, declare that 'the whole amount of emoluments' is to be the per diem allowance of two dollars; this is to be for the performance of the entire extra duty of disbursements ”

“ The few cases cited of extra allowances to officers of engineers, are found, upon examination, to depend upon circumstances, which totally and explicitly distingush them from those where the officers of the corps have been employed upon civil works 'referred to the engineer department for execution.' Of all the numerous works, which, under the skilful practical superintendence of this corps, have, during the last fifteen or twenty years, developed the resources of various parts of the United States, improved their harbors, and facilitated their internal communications ”

“ The ground of this opinion is, that upon a review of the laws and regulations of the government, applicable to the subject, it is apparent, that the services therein alleged to be performed were the ordinary special duties appertained to the office of chief engineer; and such as the defendant was bound to perform, as chief engineer, without any exact compensation, over and above his salary and emoluments as brigadier-general of the army of the United States, on account of such services. ”

“ The duties of the engineer department will comprise the construction and repairs of fortifications, and a general superintendence and inspection of the same, military reconnoitrings, embracing general surveys and examinations of particular sites for fortifications, and the formation of plans and estimates, in detail, for fortifications for the defence of the same, with such descriptive and military memoirs as may be necessary to establish the importance and capabilities of the position intended to be occupied ”

“ It is out of the question, to suppose, that the army regulations meant to authorize or to require the blending in one account of the disbursements, the articles purchased, the laborers employed, and the abstracts made out for two or more fortifications jointly; the appropriations, which are for fortifications separately, would all be confounded by it; and if this was not intended, then they meant to regard the duty of disbursing and accounting as a separate service in regard to each fortification ”

“ It is not sufficient, to establish that these items ought to be rejected, that there is no positive law which expressly provides for, or fixes such allowances. There are many authorities conferred on the different departments of the government, which, for their due execution, require services and duties to be performed, which are not strictly appertaining to, or devolved upon, any particular officers, or which require agencies of a special discretionary nature. ”

“ Taking the whole transcript together (which must be done, unless each successive settlement is to embrace all the details of the previous one) , it is plain, that every item is to be found, from first to last. ”

“ It purports to be founded on certain regulations of the army, which are spread over the record, and which received the sanction of the president in 1821 and 1825. The 67th article of the regulations of 1821, provides as follows: '1. The chief of the corps of engineers shall be stationed at the seat of government, and shall be charged with the superintendence of the corps of engineers, to which that of the topographical engineers is attached; he shall also be inspector of the military academy, and be charged with its correspondence. ”

“ Gratiot received a brevet of brigadier-general, to take effect from the day that he received his promotion as colonel, on the 24th May 1828, and with it all the pay and emoluments of a brigadier-general, besides double rations allowed to him, in consequence of his promotion and residence at the seat of government. ”