Joseph Story

“ The general intention of the act may be in ferred, from the previous legislation to which I have adverted. We have seen, that successively, in 1816, 1821, 1826 and 1834, congress had legislated on these allowances to officers of the army. They had, in succession, positively forbidden that when they were called on to perform duties in the pay department, the commissariat, or quartermaster, or in connection with Indian agencies, they should be limited to a small addition beyond their pay. Nothing can more clearly show the intention of congress, as to the general rule it desired to establish. ”

“ That the commissions referred to in the bill of exceptions, may be the commissions stated in the treasury transcript annexed to the papers, and that the 'long-established practice' may be a practice to allow surgeons two and a half per cent. commission on disbursements made by them under special orders of the war department, cannot be denied; but this possibility is not sufficient. They may as well relate to other commissions and to other usages; and we cannot assume, that they are exactly those which it is necessary they should be, to sustain the defendant's argument against this judgment. ”

“ They are these: that where a person, in the public service, is required by the head of an executive department, to disburse moneys which the law requires to be disbursed, but for which no person is designated, he may receive, unless prohibited by law or notice, such commissions as the head of the department shall agree upon, on such as have been sanctioned by an established usage. ”

“ The nature and character of the duties, then, are wholly distinct; the funds out of which payment is made, are equally so; and the accounts are settled in different departments, and by different officers of the treasury: no case can be more clearly one of extra-official duty or performance. In cases where the distinction was far less obvious, the usage of the government to pay a quantum meruit for extra services, has been fully recognised. ”

“ To this it is answered, in the first place, that the bill of exceptions is totally defective, in not presenting a statement of the evidence to which the charge of the judge referred. A bill of exceptions is a privilege by which a party subjects the opinions of the judge to re-examination, at his own pleasure ”

“ It is, therefore, analogous to a case in which a public officer has rendered a service to a third party, not necessarily connected with his public duty, as salvage by an officer of the government; can the payment for this service be rejected, beeause of the office the individual held? See the case of The Tigre, decided by Judge Washington. 3 W. C. C. 567.
2. This proviso was well considered, in the case of the United States v. Gratiot. The terms of the act, by their own force, are limited to appropriations made during the then session of congress. ”

“ No evidence was offered on the part of Doctor Minis, of any contract, or of any usage of the government, for the allowance of any such commission, in cases of this sort. The counsel for Doctor Minis, among other things (not material in the present state of the case) , prayed the court to instruct the jury: 1. That the clause in the act of congress of the 3d of March 1835, ch. 303, which was relied upon as the authority by which the defendant's claim for commissions was rejected, did not apply to the defendant's case ”

“ In our judgment, none whatsoever. The preceding enumeration is of special services in disbursing public money on account of particular appropriations for fortifications, &c. But it was foreseen by congress, that other appropriations might be made, during the same session, for other objects not comprehended in the preceding enumeration; and therefore, ex industria, the subsequent clause was added, to supply any defect of this nature, and to cut off all claims for extra pay, allowance or compensation for disbursements connected with such objects. ”

“ Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. The office of a proviso, generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. ”

“ The 4th section of that act provides, that 'it shall be cmpetent for the president to require any military officer of the United States to execute the duties of an Indian agent.' The 13th section further provides, that 'the duties required by any section of this act, of military officers, shall be performed without any other compensation than their actual travelling expenses.' Dr. ”