Gratiot v. United States

COURT.. 80 United v. States. most in ; is the interested the deeply for grantee, parly proceeding title, if under the succeeding grantee his should grantee, or^any reason of a sale incumbrance .a dispossessed prior judg- in ment, he, execution, the defendant would the. be answerable over title. his covenants of upon The is neither to a sale under the grantee, therefqre, exposed nor he the in interested the by surprise, party judgment usually whole, the without farther, sale. the pursuing .examination Upon tye satisfied, the settled of the com- that, are according principles, law, mon and which are most and satisfacto- founded upon cogent teste in execution issued this having ry grounds, bearing case defendants, after the death of one of' was judgment irregular and Void and that the of the real estate of sale Conveyance under it deceased to the nullity. plaintiff commenced, this Was add, 'We since suit may'further while it was in the Circuit Court of the pending court in the have had the same State Alabama highest question them, before and have arrived at a similar result Aláh. (6 Rep. of the Circuit Court affirmed. 657).' Judgment Charles error, Plaintiff v. The United States. general published The 67th article of the regulations army, recog- fortifications; disbursing nizes two tions agent tbe officers fortifica- namely, and the engineer. agent, Where there is superintending superin- tending engineer required can be for perform duty ¿.compensation which by tbe army regulations. receipt money by superin- The of a sum .fixed tending engineer, agent, and custody of it could over to the be turned will iquntil cent, charge justify not such a' and one half And in per of'two case of commission. charge, usage is no foundation for a question jury. left there case, particular charges collecting this made by money General Gratiot- for In (as sixth, seventh, eighth stated <he account), already items of his in- charge item, cluded in his disbursing for disbursing, contained in the because when second agent acting these sums he was for superin- fortifications as.well as tending engineer, which duty department require had right per-, form at a fixed which had compensation, already been be- allowed. The. right refusing charges to-go low were evidence of thesе permit support the jury, only because transcnpt, sufficient in law. cent., charge The -as item of two and one half contained in the second the ac- per df'ch'arges count, was bylaw, because consisted-either commis- .unauthorized sion .uponmoney which his hands stoppages, had come into remittances made to him as disbursing agent,’as above-described. cent, charge The of a one half for disbursements other per commission two and Calhoun, cpntained than account, in’the those Forts Monroe and third item of charge engineer, disbursing superintending was a in the character aoting fortifications, by law. agent also for' is hot allowed servic.es, ac- charge official item of the for extra as contained fourteenth was, count, merly intendence relative to when substantially rejected case the same this court for- Peters, except consideration, super- under reported this, boundary Excepting Other' Ohio. the northern and there engineer; services '. were within duties chief ordinary special 1.846. itself, except official account of what these proof bo jury. excluding it did err ia coart below against law, performed because extra official services was duties charge for per- and if services were belonged engineer, office of chief necessarily beyond necessary office, should be that evidence of that it was formed as well as offi- personal engineers to show what had been the chief introduced cial agency. law, of decide, to matter what were province of the court below was the It intro- judge had been engineer, and to duties of ihe chief whether ap- performed to show General Gratiot had duced tending engineer. to nis as chief pertaining station West Point release General was removed from under which army'regulations The law, Washington did by authorized and his brevet rank of his commission discharging proper. the duties from from case writ error of Circuit brought up by This District Missouri. of the United for the of States Court this court at was before January, same case which It sent back 1841, Peters, in 15 336. term, Being reported Court, trial, after to the for sundry preliminary Circuit came up the 25th of state, it is not on April, important proceedings,which in evi- trial, On produced gave States two books and dence jury transcripts proceedings of which were the same as those the Treasury Department, produced former in evidence an origir trial. The also gave plaintiff . account, sign- nai plaintiff, rendered defendant Gratiot 35,000 hands of defendant, ed a balance in his showing $ Terre, account Grand due on for a fort at appropriation Louisiana. ’ closed, case here the defendant plaintiff’s being produced account against States, United aby transcript proved, jhat of books and the Treasury Department, -proceedings, to foe item his account been every each duly presented had. of. of for allowance officers foe accounting Treasury Department foe disal- States, and had said officers against lowed which account was in the following, words and figures —- wit: on Gratiot's Account. Report Auditor of the accounts of foe of on Third Auditor foe Treasury Report transmit- of General late chief engineer, Charles claims March, on the 25th of to him of thé ted Solicitor Treasury foe thereon. ,1841, foe decision of the officers for accounting safe foe Nr foe follow- keeping responsibility For Gratiot, from in foe the 27th sums Charles ing placed custody . 1821, and 20th of the dates foe 7th up August theii September,. pn Maurice, the credit over James shown turned admitted evidence in side of the Circuit transcript the.Treasury Grá- Missouri, Court United States Charles foé.cáse iv_. roi.. v. United riot, term of during April time daring périod that he was not viz. : disbursing agent, On account of Fort . . . Calhoun, $19,500-00 “ Monroe, 26,550-00 Fort . . . ' . 46,050-00 sum . . aggregate

Making on cases, át $46,050, 2| Commission in like according usage . . . . . percent., $1,151-25 For from the 30th 20th disbursing, May, inclusive, 1829, both account September, $84,325-58, fortifications, than on Forts Mohroe those appropriations Calhoun, which a and distinct separate accountability law, and, decision of the Court imposed of according Supreme also, that of the War Secretary Tuttle, case constituted a May, separate Vide Court the sub- agency. opinion Supreme of Tuttle, and accounts on file office, Third Auditor’s Í'ect, it is which latter com- >y received although (Tuttle) shownJ fort, construction pensation he was entitled repairs to, and receive, did an additional at the disbursing, same time the funds for other and distinct anyplace, appropriations, and that he at received, time, also the same a like for of each funds for at disbursing New separate appropriation piers Castle and Marcus Hook. Commission on at 84,325-58, Cent., as allowed by gen- per $ 2\ n . eral . . regulations $2,108-14 army, 3. For on $30,531-60, account of disbursing appropriation 1st of fortifications, from die repairs contingencies of November, 1823, 1829, both in- the 30th of days, September, cluded, above, as shown transcript referred Treasury Calhoun, disbursements were other than those on Forts Monroe been the having the like com- to make usage Department for disbursements pensation under the like circumstances. on Commissions less than 30,531-60, cent., at 2J, being per $ ., 2 . . . ... day, per $ 763-29 $ 4. For 00, $591,039 disbursing appropria- on account 1821, November, tions for Calhoun, Fort from the 13th of 1829, at 2,879 both September, included, days, days $2 less day, 2| than per by general regula- as percent., allowed tions army. Account . 5,758-00 before rendered, . .1. $ 5. For disbursing 819,677-64, on account appropria- $ for tions Fort Monroe, November, from the 13th of 30th of included, both at 2,879 September, days days, $ as allowed day, per general regulations army. ' , rendered, 5,758-00 Account before . . . $ 1846. v. United States.

.Gratiot 6,1 For Collections made States money Co., abstract, Jacob Lewis & marked Ai per accompanying not, which service did under the enter regulations, into form any part agent.” disbursing collected, at on the sums viz. $24,335*81, ..Commissions 2\ £er cases, cent., similar according usage $608*39 7. ditto, ditto, For Cooper, per Samuel accompanying B., abstract, marked' at collected, 3,233*62, (cid:127)Commissions on the same viz. per $ 2£ eeni.., . .. . . . . . $80*84 ditto, For ditto,- &c.,aspe public sales /ac- property, abstract, C. companying .marked 16,150*81, sums viz. at Commissions Collected, per 2\ $ - . . . ... .... 403f77 Cent., $ For barrels..cement, account rendered 4&0 admitted , .., . ... settlement, credit in . $1,404*00 former , Mordecai, on acr furnished Dutten quarters, Lieuts. For of FortsMonroe count Calhoun. rendered, . . Acecounts .. heretoforе $40*00 . 11.. this to Robert Archer, For amount medical attend- paid ance Forts Monroe Calhoun. on.persons employed . . . . . rendered, 552*00 .. Accounts $ before , Of contin- account amount expended repairs For before rendered and fortificatjons, 345*59. Account gencies $ to the credit of General Gratiot former settlement. passed officers, withheld -13. die sums the Treasury For following ¿-r- t : viz n 1st of to the 6th of from the Pay April, emoluments , 10,763*99 . 1838, both December, days $ included^ 905*80 same . fuel and quarters period, Allowance for . . 618*67 of offices’baggage, Transportation 12,284*46 services, more set forth official certain extra fully 14. For — for official account viz.: D, marked the accompanying the civil works of affairs with the connected in conducting services ; and in con- the United States carried internal improvement; execution the act of the of with also connected ducting the affairs the to of certain 1832, 14, taking of Congress July provide the of to the northern bounda- observations adjustment preparatary bureau Ohio,” of referred of State ry-line States, and other extra of the United execution the executive of items and charge, the aforesaid with’ official connected services officer', .as military of his-duties which did constitute any part civÚ and functions of duties but which appertained-to properly understood implied under or and were engineering, performed 84 United sanction under the and the War Department, authority contract States, to he therefor, of compensated of. the President emoluments, at a and above reasonable my.official pay over to the established of according usage rate of De- compensation, cases, from 30th of 1828,' in July, analogous partment 10 included, both December, 1838, of days years, 6th annum, 3,600 John pay.granted at S. per days-, # ,Geddes, and Roberts, Nathan Shriver, James S. ¡Sullivan, David under the act of the 30th of civil engineers, employed Esqrc,, April, 1824, an act necessary surveys, entitled to procure plans, and canals, roads of less than the estimates upon subject Talcott, of the extra Andrew Corps Engineers, pay Captain the. orders of under while employed Engineer bu- 1832, the 14th of reau, July, act above refer- executing the . . ..... #-37,282.19 red .. services, extra official For certain items of specified .15. E, in' account marked none of charge contained accompanying or constituted duties or ser- any part parcel or office any engineer, of. civil or vices functions appertaining or business military civil military, proper engineering, nor or nor bf functions of or legal prescribed my of- colonel nor in or of engineers, chief manner engineer, fice included in as chief engineer, official colonel of my army engineers, brigade-general brevet or. relation, extra official in which services States but all of official and were capacities, each mid of my every performed said an understood or contract with the implied WarDepartment, under under the sanction and the President authority therefor over above official Statesj my be. compensated pay tb rate of and emoluments at a reasonable according to compensation, cases. analogous established For usage Department, file services, all which refer to items bf I specification my .the show, I am E, said all prepared account prove, official services, me, were in fact entitled under such contract, understood or to such reasonable implied compensa- emoluments, official aforesaid, tion over and above my

—: n viz. to Charles Gratiot, The United Dr. States Items. , extra, No. or 1. For services at one bu- official desks of the War 30th July, reaux December, included, 6th both and 130 days years 1.0 be, on, filed days,, receiving, acting causing for'safe.keep- ¿aid 23,408 bureau,. letters and oth- the archives desk ing, papers years''áiíd days.- (not er accounts)^ , his entire one of the For official services bureaux desks War 6th July, Department^ TEEM, 1846. JANÜAEY e. United included, December, 1838, both the letters responding days to, addressed or or communications referred Secre- fay, other War business to said desk ad- properly tary pertaining the War branch-of Department, responses ministrative 10,003 record, filled 10 aggregate folio-post pages years 130 and days. ditto, ditto, ditto, 3. For the same of time as period during filed, to be examining causing preceding, preservation of, the returns of received from the under die acting property agents bureau, orders said desk or about 100 in number on say agents 10 and 130 average, years days. ditto, For the same ditto,Mitto, as the during period preced- for funds the estimates ing, yearly, examining quarterly, from with said monthly, disbursing agents correspondence ; desk oí bureau, about 100 on an making agents average requisi- War, tions on the funds to be remitted to said Secretary of. mode agents by Department; directing Treasury apply- ; the funds so remitted the account ing with the accounting keeping for such remittances examining vouchers Treasury bv in reference disbursing rendered said agents price ap- and labor for, articles plication paid finally transmitting 10 settlement, accounts the Auditor for and 130 the said years Nóte. The amount -disbursed and accounted said agents, for to the was, time Treasury during specified, the. For . . fortifications, 7,899,571’75 ... $ “ * internal . 10,242,425 . . 4® improvement, “ . light-houses beacons, 91,842*77 . . . 344,411*75 . . . Military Academy, <£' . 2,057*2® . . . lithographic piers. . 3,120*59 N. W. executive . building, t£ 25,674*68 .' Ohio, northern ... boundary 18,609,104-11 official or 5. For his extra services at one of the desks bureaux from to the 6^ of. the War the 30th of July, Department, included, December, in making days weekly .both reports tor .the said bureau flo- War Secretary proceedings him, or written to each letter or tation referred paper 130' direction of the ánd by annum. days, per War years ditto, ditto, ditto, For fetters all. caüsing Other'papers Si at books said or bureau procured recorded ,‘pfepáred desk 30th of service, for that July, Term of purpose. December, 1838, days included, years io mid the 6th of both 130 days* H

VOL. IV. SUPREME COURT- 86s 9. United State*. official of the desks For his one bureaux r. 1828, to December, from 30th War Department, July, included, br return both examination approval, days contract; for correction or alteration the. party agent under to works' to executed aU. be of eontracts appertaining bureau, said desk or and their sub- (the contract) direction of the of the transmission to the" Treasury Second sequent Comptroller filé, TO 130 days. years or bureaux extra at one of desks official 8. For services December, 1828, to 6th from 30th die War Department, July, of of, included, in examination upon,' both reporting days under the executed all or under claims contracts doubtful disputed ; of in making said desk or supervision special reports bureau resolution of to War cases claims referred Department, to calls from of or reply either national legislature, ‍​‌​​‌​​​‌​‌​​​​​​​​​‌‌‌​‌‌‌​​‌​‌​​​‌‌‌​‌​​‌‌​‌​​‍branch governors States member$.of committees, Congress, or individual War, War, made Secretary Secretary application obedience to bureau, legislative or or in to said desk or directly in. r visí. Of cited enactment. these following may part, oa made followed (Then twenty-two reports specification, various subjects.) of, at For one desks bureaux 9. official services 1828, to 6th Decem- the 30th the War from July, Department, ber, both days causing registered, appro- included} 1838} .in record, and ail books for: the letters the purpose, priate procured of said desk or bureau to the current business relating papers &c,.—(cid:127) matters, 10 years te and. to ’other accountability generally, and:130 days. 10. For official services at of the or bureaux desks his extra one Decem- of: War from the 30th 6tb Department, July, 1828} ber, included, days reports both making quarter-yearly con- officer accounting, agents proper Treasury their ac- said desk rendered bureau nected-with who had — counts, and 130 of those who had failed so. years to do 1.0 days. ¡.For official at of the or bureaux his extra one desks December, to, 30th 6th War Department, July, 1828} m 18.38, ini on the included,' both correspondence days carrying forwarding relation Academy, parents Military circulars, average of the cadets anon numbering.monthly guardians the. desks communications, 338 inclusive correspondence —- (cid:127)- before and 130 days. or bureaux item 2. 10 charged, years one,of services, or bureaux 12- his-extra the desks For. official June, 30th the-War November,’ executed, executive 1885,- included, both to be days causing “ An entitled, order, act of 14th July, provision of certain Observations Taking provide preparatory Act W

Qntibt «. United State*. Northern tiie Boundary State Adjustment - Ohio.” or 2 and 218 years days, days. services, extra official For all which I , . . 37,127-42 .... aggregatе HAGNER, PETER Auditor. Treasury Department, 5,1841. Third Auditor's Office, April To Albion K. Esq., Parris, Second Comptroller Treasury. Treasury Department, Second Comptroller's Office, April, Gratyot examined the several I have claims of General Charles set forth against particularly described ha with all the together evidence, and am foregoing report, df opin- ion the said claims are not admissible against Treasury. th.e K; PARRIS, ALBION Comptroller. defendant, Gratiot, then in evidence gave sundry, deposi-

tions, which one hundred occupy nearly pages printed rec- ord, of it is to and which impossible give than a-condens- ed and summary'account. Fowler, clerk in the Benjamin Engineer’s -Ho Department. testified that services mentioned in the above account were ren- Gratiot; dered that the office styled Department Engineer considered as of a bureau always War, Department letters, memorials, were referred and petitions, papers, .other to be from the directly or replied Engineer Department reported action; forWar his that from Secretary 30,1828, July whose, 1838, December 6, number of ac- disbursing agents counts and were examined in through, passed regula- conformity in, tions said five, two hundred and whose disburse- Department ments involved the hundred and three keeping seventy-nine and distinct accounts. separate Swift, who J. G. was an officer of the from Corps Engineers 1818, 1802 to and year coloneland chief from engineer July, 1812, November, 1818. testified, He that the usage Jo had-beernto government officers over mid compensate of engineers, and above their and emoluments, services, mentioning case and own two others. William McNeill,.who Gibbs in the Major was an officer army of the United States from four 1814 within the years,, preceding that, which last four during stated, he was a civil years engineer. He whilst officer of the he received extra army when ; or put that the services extraordinary charged duty service acccount Gratiot’s did not to the duties the engineer, belong or either civil military. a. United United who held commission in States Talcott, Captain 1836, and from August, September, Corps Engineers lieutenant to of second that interval was advanced from rank a civil engineer. said Afterwards he became corps. captain extra allow- the United States he had received from He stated that cases, that the services and services, ances for extra specifying to either mili- for Gratiot did not account appertain civil tary engineering. who furnished Smith, Thomas L. the Treasury, Register extra al- in which officers had certified certain accounts copies lowances. Engineers maior of Graham, Topographical J. D. Major and survey explora- and Commissioner August, since States, of the United Boundary stating the Northeastern tion of. and emoluments. amount his pay Cross, assistant army of quartermaster-general Colonel die colonel, also amount the rank of States, stating times. he had received at sundry pay-which Totten, Engineers colonel of the Corps Colonel Joseph G* contained, amongst chief His other mat- engineer. deposition and — answer, ters, vie.: the following interrogatory the records and other documents be- 2. Examine Interrogatory in, or otherwise to, Depart- and now on file the Engineer longing therefrom, can, state what were affairs ment, nearly you otherwise, executive authority, or business committed by administered said to be ministered /by Engineer of Engineérs, colonel Charles then the Corps brevet brigadier-general army December, 6th inclusive. July, Depart- the records Answer. It appears direction, or business committed ment, general that the affairs during said Department, supervision, management namely:— stated were the following, interrogatory, period fdr I. surveying Engineering. Reconnoitring Military of topo- with the collection military preservation purposes, to those referring and drawings memoirs graphical geographical ; n esti- the formation plans selection sites objects ; fortifications, construction, mates and the and repairs, inspection direction, general constituted affairs and business committed of. and and the Engineer Department, said supervision, management there the fulfilment of those to have been disbursed for appears the accounted objects, Depart- been for to Treasury and have ment, the the during the said Engineer period through Departmеnt, was, engineer, said 7,537,675. chief about $ Civil and First, reconnoitring surveying, II. Engineering..— &c.-, enti- the of the under act 30th April, the provisions “ Esti- tled, Plans, An the necessary Surveyá, procure Act.to e. States.' mates the Canals,” Roads and constituted subject affairs and business committed to the direction, same general supervision, for the fulfilment of management; these there objects, appears disbursed, to have been and accounted for to the through Treasury, the. said for the Engineer stated Department during period above, about 67,980. § Second. The' of the execution the acts superintendence in relation to internal Congress roads, canals, the improvements, by of rivers, and navigation repairs connected with improvements the harbours or the entrance into same, the with the execution of which the War Department charged, for the execution thereof inspection operations con- stituted affairs and business committed to the same direction, general and for supervision, the fulfilment of these management, objects there to have been disbursed appears and accounted for to the Treas- and, ury, through for the Engineer Department, during period stated above, about $1.0,032,870. Third. of- and beacons constituted af- light-houses Construction fairs and business committed same and for which way, objects to’tjie there to have been and accounted for appears expended Treas- said ury, through Engineer Department, stated during period 96,625. sum of about interrogatory, — stated, III. above, Military Academy. period During then colonel-of Corps Engineers said inspector academy, charged, order, executive with the correspond- ence to it. There relating have been expended appears institution, of that and accounted for to support the Treasury, through and for the Engineer same the sum Department, period, ' about $323,263. IV. Press the War This Lithographic Department.— estab- lishment- was placed, of its existence, during period under control of the sum which Engineer to have Department appears in its accounted expended support, Treasury through amounted about Engineer Department, ' '- $2,057. — Northwest Executive execution of the work Building. “ the basement rooms of the executive fitting up occu- building, the War pied was also under the Department,” direction placed The amount account- Department; expendéd ed for to the said Treasury, through department, appears 3,120. amounted about $ VI. Northern Ohio. the State Boundary operations in fulfilment of the* of the act 14th of provisions July, entitled, An Act to of certain Observations Taking provide for Northern preparatory .Adjustment Boundary State of Ohio,” were under of this direction general department. VOL. iv. H*

m SUPREME COURT. v. United

Gratio-t State*. service, for and accounted in this The amount expended to have been Department, appears the Engineer Treasury, through 35,474. about $ —-Receiving, Administrative Duties. acting VII. Ministerial and archives the Engineer Depart- filed on, and causing to accounts, thereto other ment, the letters and referred papers, all. other to the at said nr Responding or letters department. received it, or it by referred addressed directly communications returng all to be filed causing Warexamining Secretary ; the esti- examining agents transmitted by property subordinate the disbursing mates, monthly, transmitted yearly, quarterly, on the making requisitions Secretary agents department; of said remitted fulfilment estimates War for to be the funds for ; accounting the mode applying wheft approved directing such, with the said ; an account Secretary remittances keeping ; rendered said the vouchers Treasury remittances examining for settlement through Engineer disbursing agents Auditor of the Treas- accounts to-the the said finally transmitting business committed setdement, constituted affairs ury of die said direction, Engineer and management -general supervision, amounted, to have These disbursements appear during Department. 18,089,067. to about Mak- stated in the interrogatory, period, ‡ of the time reports Secretary' ing weekly portion in relation to in .said each War of the department, proceedings direction of the' or referred .to or written War De- letter paper ; said all letters and de- prepared causing papers partment or ; return- examining recorded duly approving, partment works or contracts for supplies correction or amendment, ing on under operations prosecution carried required said con- of the said transmitting department, superintendence for file Comptroller tracts Second examining Subsequently, or claims on contracts doubtful executed disputed reporting upon of said when making, under re- department; superintendence to the War claims referred cases De- quired, special reports branch of the national resolution of either legislature, partment by committees, or members' of or calls Congress, replies made to the or on War, Secretary applications Secretary to be recorded the War,' to said causing directly department; received of the letters and other substance papers ; and related to its current business making Department quar- officer ti. the terly proper accounting Treasury, reports, as had of said rendered their disbursing department agents settlement, and of those had failed in that accounts for who par- committed to same ticular, and business gen- constituted'affairs direction, eral management. supervision, all the works of stated, that internal witness also This exception road, Cumberland improvement, Gr«tiol State*. bureau, and furnished to the. list transferred Topographical works weré thus transferred. sixty-eight defendant, Gratiot, also in.evidence docu- printed gave six of House number

ment Congress, document of the third session of the Con- Twenty-seventh Representatives, courts in it was in all be used agreed might gress, this record. Cause if might pending, spread upon defendant, Gratiot, The further in evidence gave depositions spread documents, of the upon of witnesses and former record case. Wilson, a clerk in the James C. He Engineer Department. that Gratiot testified the services twelve performed presented of the account. items War, then of who John C. testified that Spencer, Secretary bureau of the War a. Engineer Department Department, with such ministerial duties as charged be might administrative to it also He furnished War. assigned Secretary — of the certified viz. copies following papers, 1. 10th A dated Regulation 1818. August, dated 2. A 27th of 1821. Regulation July, 3. Letters from the War to Colonel McRee and Department extra, them allowing with Thayer, go Major Europe, pay and rations. decision 4. The President Monroe, brevet allowing Macomb, the General of General Gratiot'. predecessor order of the War 5. An De- Department, fixing Engineer at the seat government. partment order from the .7, 1818, 6. War dated An Department, April the duties of also one prescribing dated 1828, on die 1st rations August, double to. each allowing officer of the construction of Corps Engineers fortification, command. having separate Mr. also stated in evidence, that he had directed the Spencer records and files of War to be searched for Department contract, evidence that General Gratiot express implied, to receive him, for the services charged by and that the officers was to' that no evidence proper reported what be found furnished might derived from except papers true, adopt- above,, which to be believed report (Spencer) as his ed .answer interrogatory. Lewis, William B. then who Second-Auditor of the Treasury, with, furnished accounts, Gratiot’s the accounts copies officers who extra allowan- had' received Engineer Corps ces. - Albion K. Parris, then Second Treasury, Comptroller contracts,transmitted who testified that from the En- number gineer be- Department the office Comptroller Second COURT.' r. United 1838, 6, tween amounted'to 30, 1828, December about July two thousand hundred and thirty. eight who testi- Towson, the army, paymaster-general of his fied as to when received the brevet the time pay. rank,-and when was stopped. Dickens, Senate, who furnished Secretary copy Asbury War, of a a claim made Gratiot Secretary upon report before the Senate. pendipg. of the witnesses above mentioned Many cross-questioned on the of the United States. part defendant, Gratiot, further following gave which; it was used if spread agreed, might'he printed papers, viz.: record, session, .the 2d 78, Document No. 23d Congressional Congress. session, 23d Congress. No. 1st Reports revised 3. Extracts from the Regulations conformably Army Office, Act .War September, April, 96, 97, 98. pages evidence, here closed defendant, having in evidence to the counsel the of the United gave States part on. jury,..— of Calhoun, of John formerly Secretary The C. deposition the is known as War, he established what present who testified that the Engineer of which bureau War system Department, the no and that recollection constituted Department part; that the bureau system, or in éstablishing intention any expectation, services, bis receive for the chief should of the Corps, Engineers over bureau, of. that any compensation as the officer in charge of the army. as an officer and emoluments above his pay Abert, of the Corps Topographical 2. Colonel J. colonel J. or never received claimed-any he had who testified*that Engineers, the or at one of desks’ official services éxtra bureau; the head of said while at bureaux the War Department, not, the during but was that be had received extra compensation, duties in his time, ; any that opinion, the bureau the direction direc- by character, the Regulations, assigned engineer by tion of the War to either become engineers, corps of that the and legitimate’duties corps. proper brevet, and quarter- 3. Thomas by S. Jesup, major-general the colonel why who army, explained master-general seat of at the’ officers, government, and other stationed engineers he considered that rations, and were allowed double testified atad as the legitimate for in Gratiot’s accounts services charged chief engineer. proper War, testified who ,H. Eaton, 4. John Secretary formerly in Gra- mentioned of the time that he was office during part TERM, 1846. United ever accounts, tiot’s and that engagement contract entered tobe him to the services into with General Gratiot as perform» by ed Gratiot. by sides, the evidence closed both agree- The on being following ment was filed. is admitted' by Facts admitted that by parties. parties, —It J. J. Abert Colonel account referred depositions the and attached to the is thé same Ben- Jesup deposition Fowler. jamin States, district the the attorney, admitted by credit for the sum of being should receive $.5,758, defendant from the account, be deducted found fifth item his balance due on the Treasury given him to the United States transcripts ; one that the sum of half in evidence also manner, be in like jiis account, item in credited eleventh should, on transcripts. balance said against ninth, tenth, fourth, his claim for the defendant withdrew items one twelfth, thirteenth, half the eleventh in former settlements. account, allowed him having same on instructed the part Whereupon jury, States, follows: — 1st. That defendant is not entitled instructions given. over him turned James commission sums Mau- any by Fort rice, him account of and Fort Mon- Calhoun charged by officers of the roe, by accounting Treasury; (1.) rejected four dollars each for his received defendant day because attendance works, allowance, a former the one above now upon ordered is what the evidence because only transcript (2.) furnishes; evidence introduced by plaintiff authorize commission be allowed sufficient to merely ah officer over to accounting moneys. turning credit for defendant entitled to commissions 2d. Nor for fortifications on account of or disbursements appropriations in the cause item, Of him. only introduced furnished .transcript is on which the defendant as the evidence charged, principal to authorize is not sufficient evidence thereby furnished/ to allow the credit the defendant claimed. jury 3d. Nor entitled to commissions disburse- is defendant of fortifications on as ments account of contingencies repairs item of on this him, evidence there charged, by being charge is evidence sufficient above-named except to transcript, item. for this authorize to allow credit jury any commissions, 4th: Nor is the' entitled to credit defendant any & Co. as Jacob Lewis collected of charged, upon moneys any SUPREME COURT. t>. United Statei. of them ; Samuel either because Cooper, the.above-named establish is the evidence cause transcript only is not sufficient. States, United such evidence against 5th. as Nor the defendant entitled to charged commissions on no evidence being account of sales of there property, public but the to establish die charge, foregoing transcript is not sufficient. In the the credit five cases evidence to warrant above, there is no claimed in either case. 6th. defendant, The services while chief engineer,, with the the affairs duties of the .in conducting connected the civil carried with works internal improvement for which he are not extra official services entitled to credit in this'action. extra There is no evidence that the defendant any performed 7th. the execution official service in the affairs connected conducting act of of. 14th taking Congress July, provide of the northern certain observations to the preparatory adjustment of Ohio. boundary-line State 8th. the defend- been The services to have alleged performed ant at one of the desks or bureaux the War Department, 23, 1841, March claims-to which are in an account dated specified March taken Fowler’s appended Benjamin deposition, the chief 1842, if bureau of at the were performed that, engineer, among they professedly capacity,, office, and such as defendant appertaining was. entitled to bound without chief any perform engineer, extra a brigadier- above his and emoluments num- items And general army account, for examining bered from one to in the same twenty-two, defendant claims on various for which the reporting subjects, the evidence evidence, official his compensation, have States, show them to been reports examinations So office of chief are engineer. matters appertaining evidence, face, on their so far as been they given reports To sus- nor is to the contrary. there evidence in degree ; neither for them, tain is offered some of no evidence whatever offered, nor for evidence has those to which making regard offered, can the de- such in to which no evidence has been regard fendant extra compensation. claim above set instructions To the eight Exceptions^— giving defendant, forth, them, of each and to the giving, counsel, excepted. instruct court to then counsel, The defendant, prayed as follows : the jury declaration, plaintiff 1. That count under first v. United State*. for defendant re- the any njoney B<Stentitled to gainst .recover or other than chief office engineer. ceived in any capacity himby the court. Which by instruction given the That under the second count Instructions refused. —2. is, the declaration, against not entitled recover de- the plaintiff or office fendant for received any money by capacity any demands, furnished not bill of mentioned in.the particulars count, nor for filed the under that any by money which plaintiff received the defendant time than any have been by may is, that the year said bill of mentioned in that particulars, court, the because This last was refused there instruction by the furnish a bill made plaintiff net-order of. the court by furnished "andon the memorandum voluntarily particulars, act, and might did defendant’s counsel the court' circumstances, this- acted, under so, do required being if matter of discretion. that the evidence, if defendant find, 3i from That jury services for which he has charged last any file performed item account of the President or of his under direction Secre- neither War, that such services were nor civil military tary engineering, set-off in for such is entitled to as a compensation services was refused instruction action. This last by the court. evidence, that the if defendant find, .4. That jury of his account any of the in the item appended performed to direction of the under the Pres- deposition Benjamin Fowler’s were not or and that such services War, en- Secretary ident. is the defendant entitled com- regulations, joined army by action. in this ás set-off such services pensation court, and the refusal was refused This last instruction reduced, : words in the foUowing to writing This, refused, instruction, .“ is the eighth given instruction to as embracing on die referred part The court furthermore whole-subject-matter. opinion, the chief engineer could refer to or well President Secretary &c., ser- particular matter any report, appertained cases where Con- devolving,on vice. gress, resolution, information House, or either required law aside from in- from the on that President subject, particular "he instruction can- junction regulations, army therefore. not, be.given the.terms it asked.” ¡ evidence, defendant, 5. That hat find, if the .jury War, the' per of the President Secretary direction last item of his-ac of the services formed count, to Fowler’s deposition, the said item attached official the limits thé out of services so rendered v. United he is entitled as chief engineer, action. services, in this as a set-off court, refusal instruction refused last This — : words following to writing, was reduced “ the whole evidence instruction, this because refuses The court evidence, which the is written cause, any exception, the without ¿nd and the to construe and is called on apply,, jury, court ,as the what were ascertain, law, matter such evidence con- and ; evidence, all the and acts and taking defendant’s duties defendant, none it the most adduced favorably struing show, service the defendant any or tending performed showing, ; as chief and for the to his station engineer proper appertaining the to, the eighth instruction on referred instruction part item item, the States, govern jury. United the. reason, refused, this instruction would be be- no other If for matter, whole instruction concludes the the said cause eighth to which this could fact, therefore, no instruction apply, There chief the matters of the it refers law and again jury, —what duties their de- official were, assuming withdraw engineer’s court, and out of cision from instruction.” the.previous (minions decisions, of the To all which and court giving United, States, of the and in refusing instructions on fie part defendant, and which were by by instructions prayed counsel, and refused, defendánt, court prays by excepts, his bill of that the and seal this and sign exceptions, record, made of the which is done. same be part CATRON, J. s.j [u. refusals, To review these instructions and this writ error out. sued Come, The cause argued Mr. and Mr. by Jones error, Mason, and Mr. plaintiff by Attorney-General, States, Gratiot, General also, United There presented laws, brief detailed references to such containing military &c., as tended to War usages regulations, —: heads, illustrate the two viz. following general functions, 1. and history, progressive organization, proper civil, colonel the chief military engineer corps, of engineers. when The effect of the brevet of 2. happens brigadier-general, whenever to be conferred on the colonel of any engineers, takes he contingencies according happen upon place his brevet commission. These illustrations were intended to prop- explain following —: ositions his original That when Gratiot was detached General Point, station of take chief or West engineers .colonel v. commission, brevet tp his rank according actual and.command army brigadier-general emoluments pay detached from line he was completely station, rank,- and command a distinct took engineers, ; could, accord- indeed, possibility, that ‍​‌​​‌​​​‌​‌​​​​​​​​​‌‌‌​‌‌‌​​‌​‌​​​‌‌‌​‌​​‌‌​‌​​‍he line army station, assumed such have laws ing regulations, existing command, emoluments, allowed tank, and and been such pay the time being, without as brigadier-general, relinquishing, and all the and command in line of the engineers, pecu- station short, that he was as functions and duties com-' liar engineer as if he had been detached from the line ordered engineer pletely to take com- ordered) might just regularly (and of different detachments. mand in field a brigade composed him, 2. That received whilst in emoluments pay weTe command, exclusively appropriated brigadier-general, no more alone, con- law to his that rank or services of nection with or reference to engineering, the like officer of and emoluments received .than the like rank m the line of the army. That, if actual rink of even in his then to to called on had been liable be per- brigadier-general, officially services, or services form still engineer per- particular him, formed for which he claimed- distinct compensation, line, services, not, fact,, in extra official did appertain for science of engineering, any its.branches. business^ in.fact, That, if had 4. even those services been "they.were (and, civil which within the branch of engineering, not) sphere any of the Engineer had authorized the act employment Congress in the law to there was com- prohibit still provision Corps, and emolu- and- and official above stated pay (over pensation ; and officers of the engineer corps employed ments) so. to has compensation an such then title implied Contract) (as by traiff a been numerous aсknowledged prece-' established by usage. dents and long the seat stationed at clear, 5. But it is that whilst thought quite the actual and command brigadier-gen- rank government, not,liable to be commission, he was eral, to his according brevet ex du- for the on, called peculiar officio, performance of an engineer n , or- ties or services whether military, civil. that, the Jones, Mr. error, contended instruc- plaintiff erroneous,, tions the court below were because un- given they to was the> dertook of a fact which for judge proper jury. to made no circumstance that- the evidence was reduced writing transfer, difference, authorize the and did not question to, a commission is the'court. All evidence taken under jury fact, written, course, a Usage yet goes, jury. J.3 VOL. I IV. 98 Stated, v. and the it'cannot from that determination.of withdrawn tribunal pf -which is the exclusive facts. judge The claim Gratiot was for General rendered services beyond line of It new his nó official duty. part. principle If time and labor his- tasked is en office, been beyond has titled to compensation.: This question exam frequently court, ined this has decided that there is no necessity an contract con a claim. An express establish implied tract is sufficient. The set-off act of 1794. under the claimed & ; ed. The claim need not one if it Lit. legal Brown’s 366.) be a [1 is an One, it is The cases illustrate sufficient. this equitable Macdaniel, are United 7 Peters, States v. 1 States ,18 Peters, Fillebrowri, Ripley, Peters, 28. United States v. The last mentioned pase was this some analogous respects. was a clerk, Fillebrown a fixed. was salary, moreover a at an books, take their additional board employed annum. A of his set-off services per part salary $250 board, to his thé raised prior appointment by question whether an was sufficient. This case of implied contract Fille- brown is.understood establish following .propositions, .five

—viz. : balance, for ári That unascertained to be equitable claim tbe fixed jury, admitted. 2. That it was to show, evidence, what Were competent by parol the extra line and that beyond official services duty, whole extra, whether such services question, fact to be established by jury, evidence. parоl That was admissible to show the measure of parol for extra in all of the government. officers the board 4. That who ren- authority employ person for, will dered the services the law imply them. promise Navy That the could not disallow and annul Secretary right compensation. ,ol then, Jones General explained account {Mr. set forth in the preceding statement.) situation be considered three Gratiot.may The. of view. points 1. As Jíeuténant-colonel from 1821. military engineer, being 2. As full colonel. chief engineer, being of the United As States. army brigadier-general of When he was detached from proper head-quarters corps, Point, in the line West rank as of brigadier-general took army. 1. As military engineer. 16, Lit Brown’s of. Sí ed. 9, 366), July laws 1794 May (1 16, ibid. (1 1799 March 1802 1798 ibid. March (1 749), 604), o. United entirely that the of a mili- ibid. show Engineers (2 Corps 132), of do no other and bound duty. tary species corps, War, of the of article Rules and Articles established The 63d as follows : of & ed.359),is the act B.’s (2L. April “ con- of the 63. The functions engineers being generally Art. are science, elevated branch military fined the most they ordered nor are be any duty beyond to assume they subject immediate line of their order except by profession, special to receive of the United are of the President Statesbut they entitle mark of to which their rank respect army may every them respectively.” And-ihis article is general regulations army quoted in 1816- and 1825. issued —: there is the following In regulations paragraph re- The duties Department comprise Par. 888. internal im- and military connoitring surveying purposes with the collection preservation topo- together provements, to those referring memoirs and drawings and geographical graphical ; sites.; the formation of estimates the selection plans objects fortifications; and the construction, inspection repair, of. those sums appropriated disbursement fulfilment al- those the Military Academy(cid:127); comprising severally, objects, the acts Congress the execution so, the superintendence of- roads, canals, the' navigation to internal improvements, by relation with the connected har- rivers, repairs improvements the. same, into the entrancе may bours of with the execution which the acts be Congress, authorized by War may charged” Department the destination change of War Secretary What right the law had pre- divert it the corps, ? scribed legitimate as. attention their does not events, require But, at all this regulation1 ‘‘ with which the those than other works be bestowed upon any here referred Jones (Mr. may charged.” War Department certain specific the execution of Congress such acts as charged the War Department.) works upon full .colonel. engineer, being As chief in those enactments, but of other particularly By provisions 1802, last of the act of of the 27th section branch of the last un- of the President war, regulations article general 63d to be or- is subject them, Engineers the officer der Corps in his office or which, duties, lodged although dered upon above, governed named like those are line profession, nevertheless^ services generally, are of war. They rules and articles staff a detached when performed law are designated, and which by addition, to 'line officer, official, compensated always and emoluments. States. to show that then referred to several acts of Congress, Mr^. Jones in addi- where officers were detached staff they paid duty, staff duties is tion. the fact that But General Gratiot performed admitted the United States the account. 3. Asa brigadier-general army. “ at the stationed seat The chief of the shall be Corps Engineers of the Corps shall direct and government, regulate Engineers those of the also of such Engineers, Topographical also and shall be attached may Engineer Department, its cor- of the charged inspector Military Academy, 1 ; 165, 1821, par. General respondence.”— Regulations p. 1825, 167, 887. p. par. the colo- detaches It is clear that this or executive order regulation head-quarters of the nel from the Engineers permanent Corps “ detachments his to command corps, position places —: of different viz. composed corps,” at head-quarters. Corps Engineers service. 2. Officers of the detached Engineers Corps attached to the Engineer Depart- Topographical Engineers ment. riflemen, or attached 4. Cadets of infantry, artillery, cavalry, 29, act of of the the 3d section April Military Academy by “ 1812, further making Engineers” (3 Corps provision ch. 1241, Story, 72); 5. Post of West Point. of the article Mr. then the 61st Jones went on to show 1818, of 1812 acts Regulations Gen- eral brigadier-- Gratiot was and emoluments entitled in the account. claimed army, general

Mr. Mason for the United States. (Attorney-General), of the is this. case history error, On then the 2d officer March, an plaintiff was ordered to Old engineers anpy .Point works there at Comfort to take the two building charge fortifications, Fortress Monroe and Fort Calhoun. On the then November, 1821, 8th of disbursing agent to take him- removed, and the directed post plaintiff self regula- money, agreeably disbursements public which he tions did. for-the government Engineer Department; 1828., Oh chief re- engineer, the 1st of he became August, the 30th of till moved to continued Wáshington, Sep- but rendered, In account entire tember, 1829. his.final there for a was, second amount of claims which were disallowed per items, 8,958*91. diem and other ac- new March, 1833, On the the plaintiff presented Forts Monroe Calhoun.” count for fortifications at agent v. United cent, this he a commission of one from November, In per .1821, to September, June, 30th of On the made Congress appropriation “a fort at Terre.” The whole amount Grand appropriated Gratiot, drawn from the as in General chief treasury by engineer, December, November and the 6th of October, 1836, 1835. On 15,000 thereof, into the in 35,000, treasury retained repaid # # a of 8,958-91 addition to balance him for disburse- charged against # at Comfort, ments Old Point 30th the of previously September, of 1836, On the 1st the of allowances General April, Gratiot were amount directed to be the stopped, appropriated the of debt. extinguishment were December, 1838, On the 15th of his accounts again adjust- ed, and credits allowed him which the balance him reduced against to #29,292-13. of balance, to this on the As offset Jan- 1839, a new account at the in which he treasury, presented uary, diem, for a a renewed his claim double and added a claim for per n cent, 2-| made him of con- commission disbursements per of 37,262-44 fortifications.” And also сlaim for tingencies civil, in extra services works conducting engi- in to his dismissal in 1838. 1828 neering, appointment 1839, a In suit was him United against February, brought by the It in the Court Missouri. was tried-in Circuit April, in 1840, and favor rendered States for judgment #31,056-33. term, 1841, error, court, this received On a writ at January in regard tp several decision, and, that deciding important principles on the that set-off, the reversed the ground the items of judgment, evidence was excluded. defendant’s the cause was term of the Mississippi, At Circuit Court April which are district admitted the credits tried, attorney again a new claim statements, in the and the defendant exhibited specified 1 Num- are enumerated from The several items set-off. withdrawn, and the 10, 12, and 13 were admitted 4, 9, bers 6, and 8 arise out 2, 3, Numbers insisted. others were chief engineer. becoming transactions anterior plaintiff’s same, extra official ser- 14 No. substantially charge No. Peters, this 15 court, p. vice which was passed official 37,127-42 exto demand, No. 15 is new claiming # in chief engineer in the and current business services daily the princi- asserts his intercourse .the War engineer per- chief that regulation requiring ple, from his regular form his detached functions at Washington, service, for extraordinary and made all his office business duty, *i SUPREME COURT. of this details item he demands extra compensation. is ascer- on which minute, charge are and the. very principle more than it allowed, if would liqui- tained does appear dated balance favor government. 373, it was Peters, case in In opinion contro- this protracted deemed bringing right, purpose Court, new limits, trial Circuit within narrower versy points court upon entertained to state some of the views admitted. as if the evidence which had been fully argued in error held, it was plaintiff but And that regulations the' on disbursements, per entitled a commission was. diem ful?of all extra compensation. of forti- That as to a for disbursements contingencies fications, show he was liberty evidence. 37,262-46 fcr services That as to his charge the civil works of internal improvement affairs conducting of the its this no foundation face, item has government, upon Jaw, and offered therefore the evidence which was support it, it, ground if maintained admitted, not have would to be was, alleged opinion рerformed of chief engineer, office ordinary duties special appertaining aon review the laws &c. regulations, the that, On sub- trial, the new it instead contracting, appeared were enlarged. inquiry

jects : it submitted, But the are few sim- is that involved principles court. this have been decided ple, The court the asked eighth trial the gave on :instfuction the fourth, States, third, counsel the of the overruled and. fifth counsel of the in error. And moved the plaintiff instructions this the on of the court involves opinion important inquiry the case turns. The that there was no evi- court sufficient the. jury, instructed dence in them the defendant the credits claimed. giving to justify was, were the duties lawful officer what inquiry his commission and a from his services holding receiving salary for the United Was this a for court or the States. the question jury? It submitted, a is it was for the decision that question peculiarly official, the court. It cannot determined what was extra And without what is the official this determining previously duty. is law. necessarily question It in the warranto, is the nature in of a of the quo question the decided court. legal sufficiency authority always In the 3 it Stokes, case of Kendall v. was held that a How. motion to a demurrer to was equivalent proofs evidence, and such is the in Missouri. practice In-Toland it was that Peters, 300, 12 held where v. Sprague, 103 v.

Gratiot' it not error court to was in writing cljprge And the court the same recognized to its clearly effect. jury States, Peters, of Gratiot United principle case who delivered court The learned opinion says,— judge <c no its face this item has are of that just court opinion upon offer law, that the evidence which was and therefore foundation admitted, it, if would not have maintained it. The ed support the laws is, that review of and regula of this ground opinion tions that of the government subject, apparent applicable were the therein to be performed ordinary alleged to the office of chief engineer; special appertaining as the chief without engineer, defendant bound to perform and above and emoluments over salary compensation on account of. army a brigadier-general act matter, the Circuit Court suсh services. In this view'of to this ed the evidence item.” applicable correctly rejecting court, was au- of this the Circuit Court Thus sanction having trial, in written on the second thorized, charging jury ac- to maintain the of his evidence adduced items sufficient count of offset. here, cause the case of this Elia- Since former hearing heard decided. It is sonand the United has been States held,-that there Peters, -302, in 16 reported 13, 1835, of March no extra regulation could allowed to an officer of the 3d of March army n under disallowed Eliason Captain Credit was year.' in error, to those- of the circumstances similar and his plaintiff then, must same as I have endeavoured Assuming, share the fate. did not that the Court Circuit prove, instructing err. jury evidence, did the court err as to its the sufficiency ? of its effect opinion legal cent, commissions, item, first —-of two and half A.s per 19,500, from the 27th safe of and responsibility keeping $26,500, to 7th of August September, 27th of proof touching There August September. item, Gratiot was Colonel Treasury transcript. except of the works Old Comfort. officer Point charge commanding at Maurice the contractor. These funds were remitted Major over to the contractor. him paid Colonel law, There no and there no sustain usage, proof it, charge. If he had been disbursing subjected trouble as agent, he was to no commission. entitled 2. to 30th 1S22, For from 20th of contingents, May, disbursing has additional and he &c., is no 1829, there September, proof, dollars, exclusive diem, allowed a four which is credit ‍​‌​​‌​​​‌​‌​​​​​​​​​‌‌‌​‌‌‌​​‌​‌​​​‌‌‌​‌​​‌‌​‌​​‍per ..of of all extra for disbursement.. compensation 3. Same answer. 104 ». Jacob Lewis & Co., made of &c. 6. For collections money “ “ “ “ Samuel Cooper. 7. disburs- paid were These moneys his accounts for disbursement. He was into and carried ing agent, than on on these remit- to commission receipts, more entitled no record, Old to him from the printed p. treasury. tances orders,’ sold under public property paid Whiting, Major

n proceeds them into who carried account the disbursing agent, reason to his debit. The same applies. time since this for the first These cláims have been presented entitled to com- in error was court decided that the plaintiff of a of that for part disbursements, exception mission with trial, former that On commissions on contingencies. it is now $836, $2,871‘43. item on which this third This item is substantially In so court, emphatic opinion. at the former hearing, passed has been made ; but whatever change amount it is somewhat larger words, is the same. principle with the civil For .connected services in the affairs conducting the affairs con- conducting works of internal and in improvement, 1824, for nected with of the act Congress the execution over observations, claims above &c., he taking rate of and emoluments of a brigadier-general, annum. $3,600 per discussed, so fully duties of the legal Corps .the time of the former I am unwilling occupy hearing, the court in them. recapitulating been defined. In duties no act of these By Congress &B.’sed, are as- the act 1 L. specific (cid:127) orders President. but under the signed, places generally do such service as the the act of it was reorganized, By has never been President shall direct.” This general power the ex- act Congress successive superseded. Every in error for the silence of ecutive, and, add, I may plaintiff that there was never office, show that he was long period as must exist to sus- foundation contract just implied any su.ch tain the charge. The colonel was. bound perform any military engineers of an officer the character with duty, incompatible direct. President the service gentleman, may require, Peters, and of 1825 374) regulations (see to be stationed at chief of Engineers require Corps Corps Washington, superintendence charges is attached, to which the Engineers, Engineers Topographical and makes surveying, his duties comprise reconnoitring with formation of and for internal military purposes improvement, ; &c. also the fortifications, su- and estimates in detail plans 105 Í846. , v. States. United of of in relation to acts Congress' of the'-execution perintendence rivers, of roads, canals, navigatjoh internal improvements, the, of harbours connected with and the improvements repairs be which the War States, with Department may of Eliason And in case The Congress, “— Thp Peters, 302, the hold ¡Sec- 16 language: constitutional organ of War is regular the adioíñis- retary nation; and rules establishment of the tration military of.the be received as the' him must through orders promulged publicly on all within be executive, acts as Such of binding constitutional his Such of sphere legal authority.” regula- defied, or tions because may thought cannot questioned they his,offset, must unwise or mistaken.” To maintain plaintiff contract, and the establish a established implied, daily express for ex- office, of his without claim current performed business successor, and his himself, tra predecessor, official, now extra than was twenty argued, for more years, an extra and that the contract implies compensation. pay .law estab- has taken They The depositions. plaintiff many certainly of nor bu- .usage Engineér Department, ahy lish reaux, called, in War are established they Department the. business. The Pres- systematic despatch a more regular the services of the chief engineer ident had authority require and the 1821 him at Wash- regulation at any stationed place, nature of his The superintendence, pre- duties ington. estimates, in subordination to the Secretary paring plans duties, War, for-which, devolved on those necessarily time, now, has for the asserted a claim to item, he first fifteenth items, will for themselves. amount $37,127-42. speak made, I On comprehend. am.unable principle what he taken, that when éntered- on the duties position received the of briga- Washington, pay to act colonel engineers, he ceased dier-general, of the United States. acting brigadier-general army only rank of Mr. Monroe had He the brevet brigadier-general. held of chief Macomb, while allowed General performing of his commission. and emoluments brigadier’s engineer, pay for that order favorable to the The reasons are very position - now record. taken. See the du- he was The brevet allowed because pay performing whenever he ties- the colonel ceased engineers perform duties, In those brevet ceased it. reference bis pay I detail, allowed, without them instances examining remark, will , discretion, the act That President had increase rations. law of 1835 That neither the nor the regulation xv. VOL. v. extra allowanсes, forbid where appropriation made by Congress See Mr. object. opinion in 1839. Grundy, for duties the officer from his taking That regular place him to increased allowances duty, have subjecting been expense, made, at by express assurance the time. of 1818, Regulations See 67, Record.. p. Thát'abuses have known; existed is well form no basis they on which the court will an extra com- imply undertaking pay These abuses pensation. the act produced proviso and the stringent conclusive act None of the cases which have been court decided conflict by with-the I have taken. positions States, In McDaniel and the United express States, and the Fillebrown there were agree- ments made by Secretary Navy out of their official range duties. In regular Ripley the services must be without the official duties. range IAnd with some confidence, insist, that the will may, not be inclined relieve the in error the burden which plaintiff from the law throws- on him. His claim with favor. cannot be regarded Congress for an national work. appropriated money It important went into his hands as a officer, with its public application to that He uses, diverted it his own on a claim which object. was disallowed at a to Such course of Indulgence treasury. conduct defeat may naval of the utmost im- military operations portance country. Coxe, Mr. error, and conclusion. plaintiff reply The case to be considered an action ought as if had been .General Gratiot a of accounts. brought by settlement The of the case history given be cor- by might Attorney-General rect, record, but it was not and he had to state forgotten in it, was, fact that when General Gratiot was dismissed, , there was no ascertained balance him. His account had against been for five before officers years accounting proper then asked that government, unsettled. He a balance struck, be if in might but was refused. It seemed as case old had practice renewed, been audit Gra- namely, castigat que. and, tiot was sum a not do- certain required pay large by day, so, the harsh to. measure of dismissal was resorted ing Already 20,000 of the claim him has been we against extinguished, be that more will event this suit. hope Attorney- General has sums represented danger large being .drawn from but we ask new establishment treasury, All we claim is the principie. impartial application same rule if has others. extended And appre- danger hended exist, is this the tribunal which to inter- did ought a. United furnished been already ? answer has it to prevent pose inter- that the when said legislature, by the Attorney-General, must therefore evil. This supposed put stop fering, are closed doors by legislative The treasury last case. asked, has Attorney-General decision. The action, not by judicial former to Washingtpn who have been brought if all officers be the conse- Whatever may are to have extra secretaries pay. In and we are not our responsible. doing, quence, some of were boards commissioners when departments, re- there, established, placed in the navy post-captains functions. could They ceived salaries for their administrative were detached courts-martial, which shows they placed in the service, of their regular the performance for their to ask Since have never been pay. yet obliged they dismissed, now, and even there time when General Gratiot was bureaux, detached entirely are head of four post-captains fixed If the salaries law. receive military duty. They officers were when other this course had been taken formerly, been no at the there bureaux, head of would difficulty. f, therefore, Ílaced Attorney- apprehended consequences that will cause follow, General should be the it will government them, also, and the com- cannot So they be .attributed us.. mander-in-chief of the a has been commissioner army appointed Indians, with the negotiate compensation. paid So, also, has been sent to (Jesup) quartermaster-general therefore, Florida army. command These arguments, case, other cases, not to This like all is ought effect. any a of legal right. simply question has said that instruction the cpurt The Attorney-General I am below to demurrer to evidence. willing amounts only had been made. But if so, it for nonsuit regard if motion not a case General it was Grаtiot had been plaintiff, proper for a or a because evidence., motion a nonsuit demurrer for had on both witnesses were evidence been Gratiot’s given sides. all the whole cross-examined evidence was offered is a mere which had thus This taken. question “ of law. The No nation was amount- of no consequence. ever If General services.” impoverished rewarding by liberally line of his Gratiot’s services were official important, beyond really it be. is no the amount involved may matter what duty, n when the Gratiot was .lieutenant-colonel engineers meritorious ser- colonel was a brevet for and entitled to promoted, it, vices. He a character without received bearing exception, in- even now is no honor there personal imputation He no tegrity. advised that he had asked more rights, than the habit He allowing. pre- had been Department sented they claims Were for services duty. official beyond COtlkT.

Gratiot.®. ? That is so which this court has to question They decide. several accounts,. were hundred keeping paying money, case, other of an administrative this nature. When be- things fore the court in held, is. following language Peters, found in 15 “It the act óf true that the 16th “ March, 1802,” &c., &c.. But this enactment however-broad its it never has been to authorize language, supposed President employ’the Corps Engineers duty,' Upon such as either to or to civil .except belongs military engineering It is also, from’the engineering. apparent, history,of..the whole that, legislation Congress upon subject, many years enactment, after the works of internal mere improvement civil not, devolved engineering En- ordinarily, Corps upon But, gineers. er, President the fullest assuming possessed pow- enactment, under this -from time to time to offi- employ any cers of' business civil still it corps engineering, must be obvious, were, that as their and emoluments be., would with reference to their regulated duties, and other ordinary military of the President to detach them other civil ser- power vices would not to allow such de- preclude contracting .from tached officers extra services. proper compensation Such a contract be established only of some may by proof positive also but regulation, inferred the known may practice cases, usage of War similar obedience Department acting orders of the President,” &c., &c., &c. presumed has said that we must either admit Attorney-General “ and that we are on deny authority Regulations,” horns of a dilemma. But not so. If the President to detach thán those within officers other services power strict line of their it has to do with his duty, nothing power contract with them for extra for these services. and-added, court said so in the former case, had no they whether the contract was right established say implied ? -or not. not a of law, Because was Why question fact, but a that, It is true question jury. page the court that one of the say has foundation in charges just law.; therefore, that the evidence was offered in sup- it,of if port admitted, would not have it.” maintained this But. is ;' an dictum, obiter a 'and It is not merely decided point easy to see how the two' can with each other. be reconciled passages It court, would seem as if the that civil was a thought engineering of the of the an part This is regular duty question. open corps. The thinks that a reversal of- we Attorney-General require former of the court. We wish But not so. that the opinion only same rule has been should be extended to us which to extended others. The case of The 3 How. Freeman, United States 556, has been to we referred expressing opinion v. United were case, in that double rations allowed reverse. But wish to 1125, at the President, the discretion of under Regulation law; be done him said to this this was by authority which we now contend. It was said on is proposition just side, that the of the President does rest authority the other I take issue this acts Congress. upon proposition. upon shall rules for gov- The Constitution says, Congress provide What the President navy.” right ernment the'army .has ? first act was in 63d article of The to do passed which was prohibition against employing Corps Engineers' is and the same duty, subsequéntly repeated.- {Mr. ¿nd of the into an examination laws Coxe here went regula- army tions.) branch of was taught engineering except military Until has thus exercised its constitutional power, Congress engineering. restricted Whence certain powers Department. and granted derive unrestrained power does the .Attorney-General is It true that is commander-in-chief? he President, because he. to be must be orders, confined so, legal, but his riiilitary he has no an officer command right For example, duty. his, There President’s) to attend (the private army business. either, accounts, order man to is no "military keep authority, duties. has The President general or attend to administrative all is alto- executed, laws but that seeing superintending power not in head This is a distinct authority. separate gether commander-in-chief but virtue of his being army, this, Under he can of the United States. employ President civil ; he choose engineers, agents may anywhere may select arrangements officers of the army proper, carry diplomatic then, so But, the Indians. is not with person negotiate be, ? must un- He to be remunerated his services employed President has less and the power some law forbids pay, claim which that such shall be The only contract given. General Gratiot employ upon States article of the civil The 67th Regulations engineering. to such corps confines the services paragraph and whose execution was works authorized by Congress, works But many War Department. charged upon to, attended neither upon which were specifically it; such, natural nor had affinity War Department, reg- dredging language Mississippi. dxample, that the of these works must charged, execution ulation implies time that the War at the same by Congress, case, then their exe- made. is not If this the appropriation to see the of the President general cution under falls power- ibr executed, purpose. laws body may employ any us we have before performance account which

VOL.iv. J D. States. extra official duties. Did to the office belong they properly Coxe here referred to the of an ? (Mr. works engineer following

to show that did not: 1. Dictiónnaire de 'l’Académie Fran- they 2.- 3. Dobson’s Campbell’s Military qaise. Dictionary. Ency- Britannica. 5. Brande’s clopaedia. Encyclopaedia Dictionary of Science, Literature, and Art. 6. Rees’s We Cyclopaedia.) have also the to the same testimony practical engineers point. have, addition, in We much evidence where officers of all corps have done other and been where even Con- duty compensated; has the execution of gress works the War especially charged upon road, such as the Cumberland officers have béen paid extra. General Gratiot was allowed to evidence of his give services, to establish an contract. express Such- implied in, evidence taken, and counter evidence and then the put is, doubt, whole ruled out. It no of a court construe duty written But if documents. a witness is sick and examined under a commission, does this evidence its character, and thereby change ? become a written document If the decision of the court bélow is assimilated to a fact, demurrer to then evidence, every every it, inference must be taken to be true. For reasons, these we think that the court below erred.

Mr. Justice WAYNE delivered of the court. opinion This case is now before us taken its upon exceptions, trial upon Court, the Circuit instructions which were given court, and such as it refused to give doWe jury. not think them well-founded. When the instructions were and refused, given matters in were only 1, 2, 3, 6, 7, controversy 8, 14, items 15, 4th, set-off. The 9th, General Gratiot’s 10th, 12th items, half had been 11th, and one withdrawn, having allowed The other half former settlements. of 11, and the entire 5th item, were the district admitted by in the course of attorney, trial, audits the demand of the against United States. The instructions then to be are considered in reference disputed 1, 2, 3, 6, 7, 14, items 8, The first instruction was item given 1, number upon the second item 2, the third item upon the fourth upon items 6 and upon the fifth item, the sixth and seventh upon item upon instruction item eighth under last all upon comprehending to Mr. particulars the. account attached Fowler’s Benjamin deposition. The instructions were intended the court to conclu- legal clusions from all the evidence in the cause. Our will be, inquiries Are so ? they And, conclusions, as legal in-such they given terms as in no way upon encroach province jury the evidence weigh as to facts the case ? The first instruction denies the right commissions Ill t>. United Maurice. After another James reason turned over amount notiсed, the court as a final reason ‍​‌​​‌​​​‌​‌​​​​​​​​​‌‌‌​‌‌‌​​‌​‌​​​‌‌‌​‌​​‌‌​‌​​‍here to be gives material way that the of it was the the charge, only support rejecting not to that such evidence was sufficient authorize transcriptj over to be allowed for the to an commission turning money officer. accounting to is the of alluded account General Gratiot transcript The It was a of the record in States. the case part with the United Peters, 336, and was used as evidence again upon reported the in the of the cause Circuit with the consent Court, trial of Gratiot. General it, that between the learn from 27th We the August had been to Gratiot, remitted General $46,050 September, of the in the a Engineers then Corps superintending major Comfort; and that he, Old Point with- of fortifications engineer in to mentioned, turned over the James Mau- money dates the just fortifications, on account Forts Calhoun and Mon- rice, agent the item. It is a This is roe. only bearing upon cent, 2| amount,. a commission as it is per upon set-off, for safe in the and the in- keeping responsibility expressed curred to it over when General turning agent, receiving n then established, was a It is that not disbursing agent. Maurice, when and turned over was received to was the money the agent; Gratiot and also what were the relations of General at Old Those re- to government Maurice Point Comfort. ,67th from the article Regulations lations arose General in orders from the War July, Department Army, published article, in that that the detail From particularly paragraph 1S21. make kind should payments, it agent what money directing no be doubt it him, it to there is was by and in what banks kept made to he should disburse from remittances was intended nature was to be the ordinary himself of Such by government. en- But another by paragraph, superintending remittance. disbursements, superintendence agents’ a gineer general third made by none without his .And could signature. to article, in the same he could be perform required paragraph fortifications, for which when there was agent agent, obvious, allowed. Is it not service particular compensation con- then, power Engineer Department, mentioned, to engineer to call superintending tingency could made tо that remittances agent, the duties perform of the remittance himself, time him to be disbursed when at the by turned it, to be over there was no receive agent qualified case exact state became an one when agent qualified. it; not show do not does in that know, transcript respect-we —the it, does not and because was money but it is because it show but was over Gratiot, by General paid not disbursed by ». United received, in so short a time after it was we are bound agent an there was not at Old Point agent receive presume qualified Gratiot, the remittances made General and that intermediately, was turned did over, before the who receive agent money disburse it became There were two officers.to qualified. only whom could be made whom could remittances be disburs- by they ed,— the and the for fortifications. engineer superintending agent then, inference, must be the as we have unless Such, it, stated we to the overstrained that the conclusion, come remitted money Gratiot for some other than for disbursement, purpose General and that the in a third as to department way, experimenting the manner of disbursement, remittances making contrary to it the direction fortifications. regulations giving disbursed sent to be money clearly If not for such it would not have been remit- agent. purpose, been remitted to the ted. But fortifica- having superintendent him, been disbursed it could alone tions, and having of an whose be- supervention agent duty prevented it, do came to it to be done regulation permitting when there was no for fortifications. superintendent, except ageqt t) isIt for us out of this course of for necessary go the reasoning it, of the in but it is confirmed manner which confirming purpose “ the is It of made. for the safe and charge responsibili- keeping sums, of from ty following C. placed custody the 27th 7th and the August 20th up September, of dates their over to shown Maurice, turned James &c., the credit side the &c., when General Gratiot transcript, was not a for safe if disbursing agent.” Why keeping, time was remitted James Maurice was a to money qualified agent whom the remittance could been over to have made? Why paid him, if between the 27th and the 7th and 20th August September had Mauricе not become so? The terms in charge which made ; disclose the fact to have it was been as we have inferred and the error in it has arisen from its been making supposed having that the could be the custodium superintending engineer govern- ment in in character or which money any purpose that than it could be remitted to under the him.by Engineer Department, 67th article of In this view Army Regulations claim, no case of can of usage compensation by way apply it. is a duties, Here case of an officer with certain absolute and well ascertained, with fixed well ascer- contingent, a and equally tained for which he could and service compensation any every called on to render. never has by way usage for extra official Compensation been case, sanctioned the court in except service, which was within ch. act equity as that act in and case construed originally applied United' States in Wilkins, Wheaton, 135, subsequently

Gra'tiot t>. United Peters, 1, in 7 McDaniel, Fillebrown, the cases of Ripley, been allowed Gen- 18, 28. The commissions having instance to him over eral remitted Swift, paid J. G. money does not to the case now un- certainly apply military agents, different state of der That was done under consideration. very there was neither law nor the law and of when regulations, army an officer receiving disbursing regulation making engineer to receive and disburse there was no when agent, military agent that the court did not err in think, then, funds. We government in of the first that the only instructing item was support jury, that such evidence was not sufficient transcript, to be allowed .for authorize commission over merely turning officer. money accounting set-off, items in the instructions 2d, 7th, The 8th 6th, connection, because the them, will be considered given upon which 6th, 7th, items, and 8th com upon proves transcript missions for a different are time stated a second charged, though com service, 84,325*58 are which parts aggregate upon item. missions are the 2d is a commission cent, amount, the 20th 2| disbursing per 30th on account of the 1822, to the ap May, September, other than those on Forts Monroe and for fortifications propriations 6th,’ and 8th are for collections of mon 7th, items Calhoun.” Co.', & made for the United Lewis Samuel ey Coop observation,, er, for sales of The first public property. is, we here that the within two that, make shows transcript months had over the sum at furthest after General Gratiot mentioned paid .Maurice, directed, been addition first item to also those agent engineer, perform superintending of mon officer all and thus became the fortifications, disbursing and Mon to Forts Calhoun ey Department applied (cid:127) roe. given For this agency, specific 14th 67th article Regulations, paragraph Army items the 4th charged by accordingly, him the 4th set-off, been allowed both admitted, as settlement, has a former and the 5th having the trial of the said, been the district attorney, upon by already Our second cause, as a credit the States. against proper that the observation is, proves expenditure transcript .that which General fortificationsof 84,325*58 disbursed was upon $ and and disbursing agent, was engineer Gratiot the superintending be manner inferred from upon fortifications, might 16,150*81, sum, whole is made. The which except $ fortification of on account of the was Gratiot remitted to General disbursing agent, which he was the engineer superintending re-' be to that amount over to him quartermaster was turned by Monroe, each in Calhoun and expended propor Forts upon upon voi,. J* iv. v. tion to the the. relation which sales bore to the public property for it sums out expended made specific appropriations by for those forts Or Congress words,, other- distinctively. sold had been for out property bought paid specific ap 'for each fort, was resold on account of each propriations them — the of sales of the amount each fort be respectively, property were so ing kept sw# handed General separately, over to to be disbursed again. shows was so disbursed. transcript sum This is the amount which commission upon charged the 8th set-off, and which item said in its fifth in allowed, structioii not be could there no evidence but the (cid:127) it, was establish which not sufficient.” The transcript transcript 27,699‘43 also shows ihe item 2d amount set-off, items, denominated in 6th collections 7th Lewis from out & Co. and from were remit stoppagеs money Cooper,- Gratiot, ted to to made to those General be payments per sons, account of advances which had made them government their contracts materials for Forts Calhoun Mon supply nor 6th, nof.the.7th, roe. Neither the items of the set-off 8th were collections of tin sense money proper of that term. The 6th and items were 7th returned him money r out of remitted to disbursed him money agent, to, amount of the 8th item was over handed him the same char-' acter, and for same Thus, the manner in which purpose. General Gratiot received more than the item half 2d of his set-off, which commission is charged disbursing has béen shown from itself. receiving, afterwards transcript It 84,325-58 also shows the residue of the also ‡ made remittances which had been in his official relation of And that the which the fortifications. source from entire agent sum derivéd was from made was Con general appropriations fortifications, which directed, gress Department do, it had a to be Monroe,' to Forts right Calhoun applied addition the sums each of out them of- expended specific, ujaon maop The manner of appropriations each- had been without .making general, appropriations particularizing to which the sum to be also fortification anff applied, appro fpr A fortifications. could priations designated specific appropriation be diverted its but appropriations neces object, general discretion of to the. the de sarily application according implied remittance,, which had the A direction of fortifications. partment then, to Gratiot from á general appropriation, applied .General the fortifications which he was engineer superintending falls ihat within directly disbursing agént, paragraph latter article For duty. which, emoluments, he and other entitled addition to his for each two fortification receive dollars construction day

Gratiot o. United States. funds, disbursed did not provided diem exceed per cent, two and a half on the sum sum, per That as a expended. diem, per to 11,008,. moré has-been amounting than allowed. this detailed From examination of the this 2d item transcript (and is nowhere besides mentioned in the must be record),-it obvious that die in did érr second, fourth, court or fifth instructions which k to the gave 2d, juiy, by 6th,7th, winch and 8th items of the set-off were disallowed. In making charge, opinion this court given by 15: Peters has been misconceived. The case-of Lieutenant' Tuttle does not That was apply. disbursing of' moneys separate works so appropriations upon distant from each -other that the allowance was considered more than an for extra official equitable services, which remuneration involved personal from expenditure places; remote each other getting and remote from the where he been detailed for locality duty. The third instruction of the court 3d item the set-off upon of;. bemay remembered, It will be that, briefly besides disposed general fortifications, specific made appropriations Congress fortifications, repairs contingencies appropriations k-is for the of. disbursement an such that a commis- appropriation sion is the 3d item. It to look at only necessary to see the remittances which were Gen- transcript «gain made eral out repairs contingencies appropriation that, to he him, disbursed- and were disbursed him under head Forts upon Calhoun Monroe. We confess our inability to disconnect such incidents general duty superin- fortification, of a so as to tending make the engineer service in any official. Tlife disbursement way is shown money the manner in which the made, transcript, charge done in General Gratiot’s character of of fortifica- agent - tions. In the list long compensation by furnished way usage court we can find no instance of allowance-to an out agent paying fortifications ap-. and we will not refrain from if it ever propriation, has saying, hap- it has been penéd made. We carelessly think inconsiderately that the court did not err in the which it instruction this gave upon kem of the set-off. The sixth and now be instructions will considered. seventh They relate set-off; to the 14th item in the the same substantially said, this Peters, had no has foundation in just law. It differs from- only phraseology, compensation claimed for services under act of the 14th of July, the. “ to - certain provide observations taking preparatory adjust- ment of the northern of Ohio.” It boundary-line necessary what the court’then said repeat But we must charge. say, further examination into laws and regulations applicable the. has subject that all the strengthened services for which opinion e. item, relating is asked in except Ohio, northern were the ordinary special ap- boundary-line witl* And office chief respect pertaining engineer. that there the did not err in the court charging jury this-exception was had no in the defendant evidence cause that per- the showing official, of correctness such’ service. The every extra any

formed a fact, is no whether such instruction, that there prove the i for or by instruction asked has been voluntarily given an the 1'he court, d the. correctness of assertion. must pend upon have been did in case not might this such services say of there was no s> but as proof a proper jjefet compensation, were, think the court did not none be We what could they given. eithe in the sixth or err seventh instruction. th in The the 15 and item instruction relates to eighth general last get an to all of was answer off, the referred to the court by first and second. The the instructions which were asked the except refused, not only first the second was given rightly court, the defendant- consented re son but because the given by a detailed evidence, introduction of which was the the transcript 1839j before statement received General Gratiot moneys by item could not against therefore have- been any surprised by item is a round the in 8th charge it. The by proof support services, official for what are termed extra of $37,127-42 December, the 182S, 30th being the the 6th July, whole time acted as chief Corps Engi- General Gratiot we neers at refrain mak- It Washington. necessary a remark. One the in item any subject ing particulars of En- the Corps came to as chief Washington which, in a by regula- with bureau gineers,, already organized, service for tions of the had every army, performed predecessors those mention- asked, an now which extra except compensation Totten, in the ed of Colonel direction rеlating deposition executive on the northwest -building, lithographic press, repairs ánd the northern State Ohio. determining boundary-line those weré made under the-con- sums expended purposes some su- trol involved Department, necessarily so, did But it arid the chief engineer. supposing by perintendence within the regulations cannot be included that which deter- which the Engineer Department organized, by inasmuch as are of the chief mines the official duties engineer-, they it before com- not the necessary,- subjects legal charge, act of could be allowed for them under equity pensation beep ch. that should have been of what given proofs as well as official chief those agency engineer’s personal matters; no niie afford could by the amounts Merely expended such services were That could graduated. éx- liable a commission amounts be TERM, v. the defendant ad- allowance, diem himself or by per pended, mits claimed largest has compensation, way in his those set- introduced as one of particulars expenditure he made services, aggregate for all which off of extra official off truth, spok- just But exceptions $'37,127-42. of the set-off item of, all the enumerated en servic.es (cid:127) - of the Engineer business called official the proper .were done, and his assistants to be the chief engineer bureau. so instructed court. jury used it expres- But was argument, urged court. instruction, which had the effect fifth sions, refusing give If, evidence. however, take from the the consideration of jury with the sentence of is taken in connection language complained reference viewed with of which and the whole is part, forms be found in- it will only instruction expressed, the court of counsel had assumed in denial to a whát troductory instruction, that it was the to expound province jury -from if is., law to the facts. The asked instruction applicable found, &c., &c,, the services that were evidence the “ rendered jury he chief that of of the engineer, out the limits of the officialduties The court an- entitled for such to compensation extra.services.” evidence,' swered, and the apply that it was its to construe to duty duties, &c., law, what were the defendant’s ascertain, as matter &c.; and, it, all tire nonе evidence and adduced taking construing to that the defendant showing show tending performed any ser- ; vice not to as and then engineer his station chief con- appertaining cludes it had before instruction, that which the eighth given the In all this we set-off, item of the to think the govern jury. that the court not err. did. We in' much observe, conclusion, that there was ingenious able claim right to maintain General Gratiot’s argument to compen- sation for extra relations which he services the had by considering borne to the in three First as engineer, view. then army points-of Point, as Chief for service detached at West at engineer, duty a the Washington, as the lastly army brigadier-general whole of the in. the line of the States argu- army. ment, One, however, was rested two that misapprehensions. the the Gratiot sustained to General regulations army by it the first had been relations, two those which ap- particularly law. The oth- plied relation, second were by unauthorized er of itself a to was, that brevet misapprehension gave right rank additional a command, and the officer receiving translated pay brevet from of his brevet the those duties of commission rank. As to court has too repeatedly this army regulations, that it to discuss said, law, have the force proper make they id assailed anew, and of them were point as case by v. law, as the court think are warranted counsel, as not obligatory In as tho-rest. respect promotion Gra- any it brevet, tiot did not re- only necessary say, us or service duty regulations lease him attached bv office bis of chief place usages Corps at Engineers Washington. We order the to he affirmed. below judgment McLEAN dissented. Justice Mr. announced, case I did this not decision When intend but file a written as the case important dissent§ plain- reeovéred, error, tiff in as beyond damages counsel der of the-court on the ruled, all members points sire views shall, words, state the a few ground my I dissent. very were read in this case show the usage of Many depositions in the servir military regard for ex- government pay, as constituted and also to what tra.services performed we appro- chief of the A duties Engineer Department. great priate variety direct facts thus having bearing upon proved, stated extra, plaintiff services which he office, to his and for claimed a compen- appertaining were referred to where A instances sation. number under the decisions this for extra services court, been allowed general usage number under greater gov- and much instructions, General Gratiot’s counsel ernment. Among “ that if find court to instruct the from the they asked the jury, of the- defendant, the direction President evidence, that the War, of the services for in Secretary performed account, attached to item item of his said Fow- the last were,out so rendered that the services ler’s deposition, is entitled to official duties as chief com- engineer, limits of his action.” such extra set-off pensation because the whole instruction, court refused this evidence, cause, is written without any exception, the court is called to construe and apply, jury \ law,, ascertain, as evidence to matter were and from such what all duties acts taking defendant’s the construing adduced, defendant, none is it most favorably or defendant to show the service performed any tending showing a3 chief and for the engineer; to his duties not appertaining to, instruction item referred instruction eighth proper govern jury.” it asserts the instruction not be same need eighth repeated,.as left the court above, nothing contained principles Peters, court, 15 this case was before this the or- When

jury. court, in act of which provided referring section, which de- cited of. ganization Engineer Corps, m ®. United Grstiot when so clares, that the said shall established organized corps “ New Point, York, shall constitute at West the State assistant and the engineers, engineers^and military academy; times, at all to do cadets of the said shall be duty corps subject, service, and on such as the President such places, observe, broad this States shall direct.” The However —“ enactment is its it never has author- supposed language, to ize the Engineers President Corps upon any employ other either to belongs military engineering, duty, except “ or to civil the President assuming But possessed engineering.” from enaсtment, the fullest time to time to em- under power, in the business of civil officers of the ploy any still it corps engineering, that, their were or obvious, must be emoluments to their would with reference be regulated ordinary, military to detach them duties, other of the President power civil services not contracting would preclude such, allow detached officers a compensation proper services. a contract not be established Such .only may proof of some also be inferred from the but positive regulation, may known the War practice usage Department.” Gen. at the head of the Swift, J. who was G. formerly “ said,.— I evidence, in his which was read as Corps, deposition, attached, have looked over the account hereto amounting therein and am of that the business or functions $37,127-42, opinion a civil nor do to the functions of do pertain engineer, And he to the functions engineer.” they pertain military states, chief of the he received addi- that while Engineer Corps tional for extra services. McNeil, witness, á and who is a civil states, engineer, Major “ to look at the account Charles Gratiot, being requested hereto and state whether services annexed appended, to civil therein military, charged belong engineering engineering, answered, I would be or to should classed either,” say they “ —. under do not duties neither. belong engineer, They civil or either military.” Talcott Enginéer Corps, held commission Captain states, that while in 1818, to August, September, allowances. And he he received extra for extra services corps ” — account also “I have examined the (of Gratiot) says, items of that the several and am opinion appended, or civil to either do military engineering.” charged And appertain not consider them the duties further, “I do appropriate or of other engineer.” the-chief engineer, admitted, duties of the chief of It is that so far as the engineers of the War law, or by regulations regulated by court, of law for the but much as mátfer be considered they may of that offi- heard as to appropriate evidence was

parol 120 ».

Gratiot States. of the services what for came charged ascertain cer, part fact these were matters of Now duties. jury, within claim to be allowed or court. The and not for rejected, like usage department, usage, according decision, is fact not established a by judicial subject every of proof. to were above referred those only part The depositions with those read in evidence. Other differed which were witnesses stated, of the material and to deter- cited, as some facts I But conflict was the this peculiar province jury. mine court, and to be was ruled by permitted whole On this I think ground, jury. judgment weighed reversed. should to be sustained the view This ruling attempted Peters, cited. case in above in the item General in the account then third The charged services, as follows: —“ For extra on, was conducting relied civil car with the works of internal affairs connected improvement referred to De ried execution, and which did not constitute any part partment officer, from the 1st August, military day December, 1838, inclusive, ten one hun the 6th years day 3,600 annum, 37,262-46.” dred and twenty-eight days, per $ ‡ “— in that the court did case, in their As to the opinion say, And for extra item, 37,262-46, services, 3d constituting affairs, the civil works of connected with internal ‍​‌​​‌​​​‌​‌​​​​​​​​​‌‌‌​‌‌‌​​‌​‌​​​‌‌‌​‌​​‌‌​‌​​‍im conducting different considerations The court very may apply. provement, are item foundation law has opinion, just it, that the offered in .of if therefore, evidence which was support admitted, would'not have maintained The reason assigned by it.’.’ that the came within the court the official specified was* office. duties of the ordinary the account the last Now, rendered at trial differed amount, small,«from the difference is the one in the first ac- though .to which the above count, and remarks court are applicable. much But there is a difference. greater account, items of are service last specified spreading over several instead of cited. And the pages, general charge to, named, I have referred and others “were depositions the cause above subsequently taken delivery opin- ion. facts thus thrown into case a new .the gave aspect. showed, en- service, They distinguished particularized did and gineers, belong what what did not the duties Gratiot, as chief of engineers. court, In service,, the'first the opinion generalized account, connected came within improvements, internal. -of the War there- general regulations might, TERM, 1846. as matter of in their be decided However this fore, law. opinion, hold that new numerous facts be, I proved may and the duties of General were matters usage error court; for the that there was consequently, jury them withholding jury. General Gratiot account, charged In his government ££ millions of dollars forti eighteen disbursement upwards beacons, fications, internal light-houses improvement, Military north-west executive Academy, piers, buildings, lithographic of Ohio.” northern boundary above certi regularly transcript containing as fied by Treasury Department having- presented by ££ not disallowed, as Gratiot, admissible the. against General That were rendered was not treasury.” charged disputed, testified, Fowler, a clerk in the Engineer Department, Benjamin had been services, Gratiot, that by. per- charged formed.. their In second the court that the instruction, informed jury defendant not entitled to credit for commissions dis- for fortifications, on account of bursements appropriations Of this evidencé cause is item, him. charged only United States, introduced furnished by transcript evidence charged, as the defendant principal the. furnished, is-not sufficient authorize the thereby defendant The same allow the the credit claimed. instruc- jury fortifica- tion disbursements-for substantially given regard tions, and for other objects, as.charged. stated, certified Now it seem above by. would transcript disallowed, General Gratiot’s account Treasury containing were, were also ; andThey the services rendered proved since this Fowler, whose was taken proved deposition And the former writ of error. whatever case was before us on did not belong those disbursements part appropriately War Department office of General under usage would constitute case, ánd the of this in the former opinion a fair for compensation. ground on, in refer- be commented .instructions Some might so, as in ence to to do evidence,' I deem it my' unnecessary but on die"grounds already should be reversed opinion judgment stated. E VOL.IV.

Case Details

Case Name: Gratiot v. United States

Court Name: Supreme Court of the United States

Date Published: Jan 14, 1846

Citation: 45 U.S. 80

Court Abbreviation: SCOTUS