12 Ct. Cl. 504 | Ct. Cl. | 1876
Lead Opinion
delivered the following opinion :
This case contains four, causes of action, two of which are presented by the claimant and two by the defendants. The facts, briefly stated, are these :
In 1864 the claimant and a quartermaster entered into two contracts, the terms of which, however, are substantially identical. The claimant covenanted to furnish large quantities of hay at certain designated points in the Indian Territory; the defendants covenanted as follows: “It is expressly understood by the contracting parties that sufficient guards and escorts shall be furnished by the G-overnment to protect the contractor while engaged in the fulfilment of this contract.” The claimant delivered a portion of the hay contracted for, and it has been paid for, and is not an element in the present controversy. As to the remainder, he was stopped in the midst of performance, in part by the acts of the public enemy, in part by the orders of the post commander at Fort Gibson, but in all cases for the want of “sufficient guards and escorts.” The accounting-officers of the Treasury treated the covenants above quoted as covenants of indemnity, and adjusted and settled the claimant’s accounts for losses actually suffered, and the claimant accepted and acquiesced in the settlement. ' The subject of profits was not considered in the settlement, for the reason that such unliquidated damages are never adjusted at the Treasury. The claimant now brings his action to recover them exclusively; the defendants deny the validity of the contracts, and file their counter-claims to recover back the allowances made by the accounting-officers as moneys paid in mistake of law.
I. The claimant’s first cause of action is founded on a contract made in June, 1864, which was founded on a quartermaster’s •advertisement for proposals. This advertisement called for the delivery of 3,000 tons of hay at Fort Gibson, and promised the contractor such military protection” “as the necessities and interests of the service may admit.” The contract departed from
As to the first discrepancy: The Act 2d March, 1861, (12 Stat. L., 220, § 10,) though it requires a contracting-officer to advertise, still leaves with him a very large discretion. The time is not prescribed, nor the form, nor the substance of the advertisement; nor is the officer even restricted to accepting the lowest bid. In this the statute differs from other advertisement acts, and notably from the post-office act, which recently received a liberal construction from the Supreme Court. (Garfielde's Case, 11 C. Cls. R., 322.) Dividing the hay into two parcels, deliverable at different places at different prices, was a variation, in the judgment of the contracting-officer, for the benefit of the Government, and fairly within his discretion. Such discretion has been exercised by officers of the Quartermaster Department ever since the first advertisement act was passed. The distinguished officer who has long presided over that Department, and guided its administration with an inflexible and frugal hand, in his well-known communication to General Blair, August 28, 1861, relating to the affairs of General Fremont's department, said — and it was not questioned then and has never been questioned since:
“ Whatever a general commanding orders, the subordinates of his staff are, by regulations, compelled to do, if possible.” “In regard to advertisement and delivery, the law of 1861 and the regulations expressly provide that in case of public exigencies supplies are to be bought in open market as between individuals. Bxercise this power. Moreover, advertisements or public notice does not require postponing opening of bids for a month or a week or two days. If forage, wagons, horses are wanted, the law, the necessity, are fully met by putting a notice in the papers and purchasing as fast as offers come in. The next day or the-same day take the then lowest bid or- the then most advantageous offer. The day. after you will have a*527 still better offer; take that for a portion of your supplies, and so on till you have all you need.”
The second discrepancy between the advertisement and the contract,, or, rather, between the proposals and the contract, forms the foundation and subject of this cause of action. What the claimant sues upon was not offered by the advertisement nor stipulated for by the proposals, but was a subsequent obligation thrust into the formal contract. The thing to be furnished by the contractor remained the same; the price to be paid by the Government remained the same; and then, in addition to the bargain made by the advertisement and proposals, the quartermaster gratuitously gave to the claimant a guarantee or covenant of insurance against war risks, upon which, exclusively, his present demand is founded. As this insurance was not promised by the advertisement, nor required by the proposals, nor given in exchange for anything which had been the subject of negotiation, it seems to us to be an obligation beyond the officer’s discretion, and evasive of that competition which the statute was intended to secure. If the thing promised by the advertisement had been indefinite it would have been proper to render it certain in the contract; but here the advertisement bound the Government to do substantially nothing, and left the war risks of the undertaking entirely with the contractor, while the contract created a new obligation that bound the Government to furnish all needful protection, and transferred to it the risk which constitutes the present cause of action. It is not to be understood that this addition voided the entire contract; it s only this obligation of the defendants that is without legal foundation. The covenants of the claimant, and the consideration which supports them, remain intact.
IL The claimant’s second cause of action rests upon a. contract made without advertisement the 17th July, 1864.
It is objected by the defendants that the order of the commanding officer which gave rise to this contract did not declare an emergency, as was required by the Act 4th July, 1864, (13 Stat. L., 394, § 4.) The construction which I think should be given to that statute I have heretofore expressed in Thompson's Case, (9 C. Cls. R., 187-196,) and subsequent reflection confirms the conclusions which were there reached. They maybe summed up in the following rule: Where a statute expressly defines the powers of an officer or agent, it is notice to all the world; but
Conceding, however, for the purposes of this decision, that a contractor dealing with a quartermaster during the existence of the act of 1864 was chargeable with knowledge of all the orders by which a commanding officer might seek to provide for military emergencies in the midst of a great war, I am nevertheless of the opinion that in this instance the order sustains the contract.
The statute was passed exclusively for the late war, and was intended to impose upon the discretion vested by law in unnumbered inexperienced assistant and acting assistant quartermasters the discretion of their commanding officer. It did not prescribe formalities. Its purpose was to secure the judgment of a commanding officer as a basis for the action of a quartermaster. In this instance the commanding officer’s judgment was clearly the basis and the only basis of the quartermaster’s action. If the order had never been issued no contract would have ever been made. The order in fact related to two distinct things; it declared an emergency, and directed how the quartermaster should proceed to provide for it. The direction “ should there not be time to advertise and regularly let the contract, you will make the arrangements for the delivery of the hay on the best terms you can,” did not confer discretion to judge whether there was or was not an emergency which would or would not require the designated quantity of hay. It only designated the ways and means by which the quartermaster was to proceed in his part of the work, and to that extent, indeed, limited and lessened the discretion which he might otherwise have exercised.
The fallacy of the defendants’ argument is in this :• that it supposes that a commanding officer must not only declare an emergency, but must also decide that the supplies on hand are insufficient to meet it, and that the procurement of others must be by immediate purchase. I apprehend, on the contrary, that a commanding officer is not chargeable with these responsi
It is also objected that the quartermaster did not proceed in the proper way to meet the emergency, if one was indeed declared. But it is manifest that if the quartermaster was authorized by law to act, this court cannot review the manner in which he acted. Undoubtedly judges upon the bench would make a contract with more deliberation, wisdom, and solemnity than quartermasters in the midst of hostilities; but the statute was made for ordinary men, little learned in the law, and laden with the severest responsibilities that ever tax or distract the mind. It is enough here for us to know that the contracting quartermaster thought this the most immediate method possible for the procurement of the supplies; and it does not rest with courts of law to find a better method after the transaction.
In like manner it is objected that upon the face of the order and contract the contractor was chargeable with knowledge that no emergency in fact existed, and that an agreement made in July to furnish hay through August and September could not possibly be the means for providing for a military emergency. But the emergency contemplated by the statute is not restricted to a march or a battle on the day when the order is given. In this case, when the commanding officer discovered that he would need a large quantity of hay during the ensuing winter in a remote situation where it could not be bought: that the haying season was already far advanced; that implements
This cause of action, then, depends upon the effect which should be given to the covenant promising sufficient guards and escorts; and it may be best understood in the light of the circumstances amid which the contract was made, and the contemporaneous construction which the parties mutually gave to their agreement.
The circumstances were, that the contract was made in the midst of war, and was to be fulfilled on the scene of actual hostilities. The contemporary construction was, on the part of the post commander, that he recognized the risk which had been assumed for the Government, aud forbade the working parties of the contractor going out to make hay without the sufficient escort which it had been agreed should be furnished, but which he deemed it inexpedient to send; on the part of the contractor, that he recognized the right of the commanding officer to control his performance in this particular, and obeyed his commands.
The counsel for the defendants has argued that this covenant was a mere agreement by a military officer, to protect a citizen in the performance of his own business; that it was gratuitous, beyond the powers of military officers, and void. Undoubtedly such an agreement to protect a citizen in the pursuits of his ordinary avocations would be void. But here the covenant in question manifestly was given for a very different purpose.
The contract was in form a contract of sale and delivery, but in substance a contract for work and service. When I employ a man to go upon my land and cut and deliver my hay at so much per ton, the property remains in me, whatever be the form of the agreement, and what I pay for is not his property in the hay, but the labor which he has expended upon it. Here the hay indisputably was to be cut upon the public domain, and the property in it was aud remained in the defendants. But the point need not be discussed, for it was considered in Spencer’s Case, (10 C. Cls. R., 255,) and expressly so decided.
The purpose of the covenant, then, was not to protect a citizen
If this covenant had been simply to furnish a guard, and the commanding officer had furnished one which proved insufficient, it might be held that the defendants had complied with their covenant, and that the risk remained with the contractor. But here they covenanted to do two things: first, to furnish “ guards and escorts ;” second, that those guards and escorts should be “sufficient” to secure “ the fulfillment of this contract.” The agreement, moreover, was construed by the officer who made it as a covenant of indemnity, which would render the defendants liable for all of the contractor’s losses caused by the public enemy; and, to lessen that indemnity as much as possible, the commanding officer interfered positively by forbidding the contractor to proceed with the fulfillment which the defendants had covenanted to protect. That an indemnity against losses may be given to a contractor by the agents of the Government was established by the Supreme Court in Baird’s Case, (8 C. Cls. R., 13.)
Between this case and McElrath’s, however, there is a very broad difference. The Second Comptroller was the agent of the United States to adjust and settle the accounts of officers in the Navy. McEIrath was not an officer in the Navy, nor had he been for any part of the period over which his pretended account extended ; nor had he rendered any service as such; nor hiyi any legal relations between him and the Government existed. The Second Comptroller, therefore, acted ah initio without authority ; and his mistake, whether of law or of fact, that he had jurisdiction of the pretended account gave him none. If in the adjustment of an account which he was authorized to adjust— the account of a veritable officer in the Navy — he had made an incidental mistake of law in allowing to the officer some item of pay which in the judgment of the courts should have been disallowed, and the defendants had brought their cross-action to recover back the over-payment, the case would have been like this.
That settlements made by the accounting-officers of the Government with its creditors, untainted by fraud, and free from mistake of fact, possess the element of finality, I think is clear for many reasons.
1. The Comptrollers of the Treasury are neither contracting nor disbursing officers. Within the proper functions of their offices they are above the review of the highest executive authority, and their decisions are subject to only judicial revision. Substantially all accounts must pass under their eye and receive their approval. Even the accounts of the Secretary of the Treasury and of the President come to them for allowance.' In
2. If the Comptrollers’ settlements have not the ordinary element of finality: if those officers are not the agents of the Government to make final settlements with its creditors, the Government has had the power and the means to take advantage of their errors of law for the last eighty years by going into any court as plaintiff and suing the party to whom money was paid in mistake of law. Y et, from the first day that the Treasury did business until this counter claim was set up, it is safe to say that no such suit was ever brought, and that no man ever supposed that such an action would lie. .A practical construction, going back to the very beginning of the Government, is overwhelming, and cannot be overturned at this late day with safety by anything short of statutory amendment.
3. As no statute of limitations closes inquiry into the past transactions of the Government, all of the settlements which present and past Comptrollers have ever made will be liable to be re-opened. It is well known that the Comptrollers have sometimes construed statutes in one way, and the courts subsequently in another. Such diversity of judgment is inevitable in the administration of human affairs, and the wonder is that there has been so little of it on the part of these officers. The Act 3d March, 1849, (9 Stat. L., 415, § 2,) will furnish one of many illustrations. The Treasury always held that this act extended to vessels in the military service, though navigated by their owners, (Reed’s Case, 4 C. Cls. R., 132;) the Supreme Court has recently held the contrary, (Shato’s Case, ante, p 1.) Can it be possible that all such past transactions are now liable to be reopened; that nothing has ever been settled; that no payment
4. It is manifest that so broad a rule as is contended for by the defendants would be holding in effect that the accounting-officers of the Treasury are the agents of the Government so long as their mistakes of law are favorable to their principal, but that their agency ceases eo instanti whenever they err incidentally against the Government in the difficult task of construing the statutes of the United States. The result of such a rule would often be that as to one-lialf of a settlement the accounting-officers would be agents and the settlement final; that as to the other half it would be binding upon the creditor if he took the money, but not upon the debtor, and that practically mutuality and finality would be stripped from all Treasury adjustments.
It is not possible, I think, that such a rule can ever be upheld. Certainly the courts have been open to the Govennmeut ever since courts were established, and it has never been supposed that such an action could be maintained. The real question here, I apprehend, is one of agency and not of mistake. When the accounting-officers are authorized by law to adjust an account or settle a claim, the principles of law that would govern the settlements of individuals will govern theirs. The true rule to be laid down, I think, is this: Where the accounting-officers of the Treasury are authorized to settle an account or claim against the Government, a mistake of lato committed incidentally in the adjust-mentioillnot, after payment of the balance found to be due, affeetthe finality of the settlement or entitle the Government to recover back the money paid in mistake of law ex equo et bono.
IY.' The second counter-claim of the defendants is to recover back the money awarded upon the indemnity clause in the second contract, which a majority of the court now hold to have been valid. The only point made which has not been considered is, that part of the amount awarded by the Comptroller was for hay of the claimants destroyed by the public enemy, and that the accounting-officers have not jurisdiction of such damages.
To this objection there are three sufficient answers : 1st. The hay destroyed was not the property of the claimant, but, on the contrary, the property in the hay was always in the defendants,
The conclusions which a majority of the court are agreed upon are these:
1. The claimant is not entitled to recover upon the contract of June 20, 1864.
2. The claimant is entitled to recover upon the contract of July 17,1864, the profits which he would have realized if he had been enabled to perform, to wit, the sum of $29,557,
3. The defendants are entitled to recover upon their counterclaim the moneys paid by them to the claimant for hay destroyed, under the contract of June 20,1864, to wit, the sum of $12,600.
4. The defendants are not entitled to recover upon their counter-claim for moneys paid by them to the claimant for hay and property destroyed under the contract of July 17, 1864.
The judgment of the court is, that the claimant recover of the defendants the sum of $16,957.
Peck, J., agreed in the opinion read by Nott, J., except that he was of the opinion that the claimant should recover upon the contract of June 20,1864, and that the covenant of military protection thereby assured to the claimant was valid and binding upon the defendants; as to which, being absent when the case was decided, he subsequently filed the following reasons:
Because there is not even a pretense of wrong or bad faith in or about the advertisement which preceded that contract, nor in the making of it.
The advertisement promised to any person who should become a contractor “such military protection as the necessities
The officer acting for the defendants might have thought, and probably did think, that the “necessities and interests of the service” would be advanced (and as to this he reserved the right to judge) by promising the protection stated in the contract, and so stipulated. It appears to me quite certain that no responsible party, under the circumstauces, would have contracted without that or some equivalent guarantee. At least, there is not anything to show that any other person offered to do so. All discussion about the advertisement and proposals are out of place, since these were merged in the contract. The claimant had a right to know what military protection, in the opinion of those representing the Government, would be necessary to save its interests, as well as his own, before he should undertake to perform on his part, and if more was gratuitously offered by the defendants than was prudent he could not be expected to decline what was to his advantage. In the transactions and business of life, so far as my observation goes, men are not prone to reject such advantages as are offered them j and few, if any, favors are offered which are not expected to result in some way to the benefit of the proponent.
The defendants, like a minor civil corporation, must transact' business by agents; but whoever thought of annulling a contract made by a civil corporation, because a party contracting with one of his agents, in perfect good faith, accepted a more favorable condition in a concluded contract than it was after-wards thought wise to offer him ?
The question is asked with solemn gravity, Where is the statute which expressly authorizes a quartermaster to agree to furnish protection to a contractor ? .Others may ask with equal gravity, if they have equal courage, Where is the statute that forbids it? If he may contract for the delivery of property costing any number of millions, may he not be supposed to
The contract of 20th June was known to the superior officers of the quartermaster who made it and not objected to by them, but apparently approved, as is shown by the instructions of General Thayer in reference to the making of the second contract.
At this time and distance from the transaction, and with but little, if any, correct knowledge of the surrounding circumstances or threatening dangers of the occasion, it is alike unjust to the quartermaster and the claimant to scrutinize and pass judgment upon the exercise of a discretion and condemn it which was at the time, and long afterward, approved for its soundness.
The astute and subtle reasoning resorted to to evade obligations, I cannot help thinking, would never have found tolerance, if the present action was between those imaginary veteran litigants, John Doe and Richard Roe, instead of between the Government and a citizen-claimant. I do not choose to strain analogies or coerce authorities to favor either party. My desire is to properly adjust the relative influences of principle and authority with as much precision as is consistent with the character of the subject to be considered, so as to do and promote justice between contestants.
Jurisprudence is supposed to be a rational science, founded upon principles of moral rectitude, modified, it is true, by authority and the habits of mankind, but never failing to do justice equally to all parties, without reference to the power and
The idea that the protection promised placed the entire Army of the United States in the leading-strings of the claimant, and therefore rendered the contract void because, by possibility, all the quartermasters, with or without reason or excuse, might do some absurd act, or make some absurd agreement for protecting contractors and thereby dispose of the whole Army, I shall not discuss, but will repeat the language of one of our learned judges, long since pronounced, that “in the construction of contracts words are to be taken in their natural and obvious meaning, unless some good reason be assigned to show that they should be understood in a different.sense.” This is trite law, but not new.
Mr. E. P. Norton, now deceased.
Dissenting Opinion
dissenting:
I dissent from so much of the opinion of the majority of the court as relates to the contract of July 18, and the counter-claim growing out of it. In my judgment, the claimant has no cause of action under that contract, and the defendants have a just right in law to recover back money illegally allowed and paid him on claims connected with its performance.
I will briefly recall the circumstances under which that contract was entered into,eas set forth in the finding of facts. In the summer of 1864, the troops under Brigadier-General Thayer’s command, in the Indian Territory south of Kansas and west of Arkansas, were cut off from any base of supply of grain, and were compelled to rely solely upon grass and hay for the support of their animals. Grass was very abundant there, and hay could have been put up as late as the last of October. Owing to this condition of things, and as well to provide hay for present use as for the ensuing fall and winter for the posts in General Thayer’s command, the contracts sued on were entered into; that of June 20 for the supply of Fort Gibson, and that of July 18 for the supply of Cabin Creek and Hudson’s Crossing. The former was entered into after the quartermaster had advertised for proposals; the latter without any advertisement.
The determination of the first question involves the consideration of two acts of Congress, viz, the tenth section of the Act March 2, 1861, (12 Stat. L., 220,) and the fourth section of the Act July 4, 1864, (13 Stat. L., 394.)
The former is in these words : “ That all purchases and contracts for supplies or services in any of the Departments of the Government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles-or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or services required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged between individuals.”
If this statute is to be considered applicable to the case, then we are to receive two points in regard to it as settled by the Supreme Court in Speeds Case, (8 Wall., 77,) viz: 1. That while, as a general rule, it requires an advertisement, still it invests the officer charged with the duty of procuring supplies with a discretion to dispense with advertising, if the exigencies of the public service require immediate delivery; and, 2. That where a discretion of this kind is conferred on an officer, and a contract is made in which he has exercised that discretion, the validity of the contract cannot be made to depend on the degree of wisdom or skill which may accompany its exercise.
It will be observed that the contract in that case was for work to be done by the claimant in slaughtering and packing hogs furnished to him by the Government for that purpose, and it was entered into by the authority of the Secretary of War; while in this case the contract was for the delivery of stacked hay, and was entered into by an assistant quartermaster. In the former case work was to be paid for as work; in the latter, no work was to be paid for as such, but the hay was to be paid for at a certain rate “ for each and every ton delivered and accepted.” The question, therefore, of contracting for work is not in this case, but simply one of delivering a given quantity of hay.
If it be supposed that the tenth section of the Act July 4, 1864, authorized such a proceeding on his part, there is a twofold answer: 1. That the claimant’s counsel earnestly objected to that statute being considered to have any bearing on the case; and, 2. That, in'fact, it furnishes no authority for the quartermaster’s action; as 1 will endeavor to show.
That section is in these words: “ When an emergency shall exist, requiring the immediate procurement of supplies for the necessary movements and operations of any army or detachment, and. when such supplies cannot be procured from any established depot of the Quartermaster’s Department, or from the head of the division charged with the duty of furnishing such supplies, within the required time, then it shall be lawful for the commanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, but no longer, in the most expeditious manner, and without advertisement; and it shall be the duty of such quartermaster to obey such order; and his accounts of the disbursements of moneys for such supplies shall be accompanied by the order of the commanding officer as aforesaid, or a certified copy of the same, and also by a statement of the particular facts and circumstances, with their dates, constituting such emergency.”
Now, what wa.s necessary to authorize a commanding officer of an army or detachment to exercise the large authority conferred, by this section? Three things were required, namely: 1. The existence of an emergency requiring the immediate procurement of supplies; 2. That the emergency should require that immediate procurement for the necessary movements and
Those are the circumstances constituting an emergency authorizing the commanding officer to avail himself of the summary power conferred by that section. In reference to the exercise of that power, the following points, except the sixth, have been decided by the unanimous judgments of this court, none of which were appealed from:
1. That to the commanding officer of the army or detachment is left the question of the existence of the emergency authorizing the immediate procurement of supplies without advertisement. (Henderson's Case, 4 C. Cls. R., 75.)
2. That he is the sole judge of the existence of the emergency. (Baker & Fulsom’s Case, 3 C. Cls. R., 343; Emery & Blake’s Case, 4 id., 401; Wilcox’s Case, 5 id., 386.)
3. That his orders in the premises are, as to the existence of the emergency, conclusive upon the officers charged with obtaining the supplies. (Henderson’s Case.)
4. That without his authority a quartermaster would have no lawful authority to contract, without advertisement, for future supplies. (Henderson’s Case and Emery & Blake’s Case.)
5. That the commanding officer’s authority to give an order for the immediate procurement of supplies, without advertisement, continues only so long as the emergency exists. (Emery & Blake’s Case.)
6. That the order of the commanding officer, in such emergency, must be to procure the supplies in the most expeditious manner and without advertisement.
7. That under such an order a contract could not bo made extending beyond the period of the existence of the emergency. (Emery & Blake’s Case.)
8. That he who contracts with a quartermaster for the delivery of supplies, without advertisement, is bound to know whether the proper commanding officer has declared the emer gency, and authorized the officer making the contract to dispense with the advertisement. (Henderson’s Case.)
Applying these rules to the present case, let us see how the matter stands.
“ HEADQUARTERS DISTRICT OE THE FRONTIER,
"Fort Smith, Arle., July 17, 1864.
“ The general commanding directs that you immediately take the necessary steps for the delivery of four thousand tons of hay at Cabin Creek, 40 miles from Fort Gibson, & at Hudson’s Crossing of the Neosho Biver, 70 miles from the fort; two thousand tons to be delivered at each of said points. Should there not be time to advertise & regularly let the contract, you will make the arrangements for the delivery of the hay on the best terms you can, but not to exceed the contract-rates for the delivery of hay at Fort Gibson, O. N., under the existing contract.
“ Very respectfully, &c.,
(Signed) “ T. J. ASDEBSON,
“ Major & A. A. Gen’l.
“ Oapt. Greene Durbin,
“ Chief Quartermaster.”
If, then, General Thayer gave no order either for the procurement of the hay “in the most expeditious manner, without .advertisement,” or for its “ immediate procurement,” there is no semblance of the existence of an emergency requiring its being so procured, much less any proof of it; and if there was no such emergency either declared by General Thayer or fairly inferable from his order, then the quartermaster had no legal authority to enter iuto the contract without advertisement, and it is therefore wholly void.
But if I am wrong in these views, aud if the authority of the quartermaster to make a contract, under the circumstances, for a future supply of hay, without advertisement, ought to be sustained, still the great question of the case, and one I believe not before presented for judicial decision, is to be met and answered.
The claimaut sues to recover the profit he would have made on the hay ho agreed to deliver at Cabin Creek and Hudson’s Crossing, and which he was prevented from delivering by the failure of the military authorities to furnish him sufficient
To form a just estimate of the extraordinary character of this stipulation, let us glance at the circumstances found by the court to have existed in.the District of the Frontier when this contract was made, and during the time it was to be executed. Along the route of 250 miles from Fort'Gibson to Fort Scott active hostilities existed between the forces of the'United States and those of the rebellion. Armed forces of the rebels were frequently along the road between those places and in the vicinity of hay-stations, with a view of capturing detached parties and attacking supply-trains, and large parties of them appeared frequently in the immediate neighborhood of Fort Gibsou; so that no working parties were allowed to go out from any of the posts within that district without military protection. With the troops of his command, General Thayer had to keep open that whole route of 250 miles and afford that protection, besides meeting such other demands as the state of active hostilities there presented. To do all this, he had one Indian brigade as a permanent force, and they were frequently inside fortifications. Sometimes other troops were temporarily on duty in his district.
Under such circumstances, if the quartermaster had agreed to furnish the claimant such guards and escorts as the necessities and interests of the service might permit, the case would have been very different; but he attempts to bind, not himself alone, nor General Thayer alone, but the Government of the United States, not contingently but absolutely, always and everywhere during the time covered by the contract, to provide sufficient guards and escorts to protect this contractor against all hostile comers, whether a small band of marauding guerillas or a disciplined army requiring a hundred brigades to repel it. At the instant of signing the contract it was as good as broken; for the probabilities were as twenty to one that before its comple
The mind instantly asks for the law which authorized an assistant quartermaster to bind his Government in such an unprecedented obligation ; and it asks in vain, for there was no such law. If that quartermaster could' have legally made such a contract, of course every other quartermaster in the Army could ’ have done the same. If quartermasters and district commanders could so bargain away the troops for the protection of contractors, then the troops would be notin the service of the Government, but of the contractors. No military officer of any rank, in line or staff, ever had, or ever will have, in this country, such authority. ’ The military forces of the nation cannot, either in peace or war, be so bound to the service of an individual. They are not the subject of such contract, but are absolutely out of the range of all contracts except that which binds each soldier to his duty. Their commander may order them wherever in his district it may, in his judgment, be necessary, but he cannot turn them over by contract to any man.
It was urged that this quartermaster did no more in this matter than other quartermasters did, all through the war, in chartering vessels and agreeing that the Government should bear certain risks while the charter lasted, and that contracts of that kind have been judicially upheld. But the cases are not alike, for in no instance that has yet appeared was there a stipulation binding tbe Government to furnish sufficient guards and escorts to protect the chartered vessel against the enemy while she was in the service of the United States. The nearest-to it that has come under my notice was the chartering of a vessel, and stipulating that the Government should bear all risks; and yet, when properly regarded, there is no real likeness between that case and this.
When the Government, in time [of war, needs vessels for its transport-service, there are three was of-getting them — by purchase, by impressment, or by hiring.
If it purchases, it of course assumes all risks while its ownership lasts.
If it impresses, it assumes all risks while the impressment lasts.
If it hires a vessel which, though officered, manned, and managed by her owner, is placed under the orders of the Government, is to go wherever ordered, and nowhere without orders, and it is stipulated that the Government shall bear the Avar risk, or even all risks, the utmost limit of resulting liability upon the Government would be the value of the vessel, if she should be lost by such risk while obeying orders; and it may well be questioned whether the Government would not, without such stipulation, be bound, in case of such loss, to pay that value. But whether so or not, that case is unlike this; because here the contract bound the Government to follow a man, not under its orders, with sufficient guards and escorts to protect him while engaged in fulfilling the contract, whenever and wherever he might, ex mero motu, see fit to go to procure the hay he was to deliver; and if, in spite of all the efforts the military authorities could make to protect him, he should be prevented by au'over-powering force of the enemy from fulfilling the contract, then that the Government should be bound, to an undefined and unlimited extent, to pay him all damages he should hereby suffer. In one case the agreement was to bear the loss of a thing which the Government had always, so to speak, in its own hands; in the other, to bear the damage which a contractor might suffer, whose movements Avere always to be his own, and not at any time to be made under the Government’s orders, or subject to its control. The two cases seem to me to be essentially different.
My opinion, then, is that when this quartermaster assumed
But it is suggested that as the hay was cut from the public domain it belonged to the Government, and, therefore, when thequartermaster agreed to furnish, sufficient guards and escorts, it was in reality for the protection of the property of the United States. Unfortunately, however, for this view, the land was only in a limited sense a part of the public domain. , The title to the soil was in the United States, but the Government had long ago, by treaties which are still in force, ceded and guaranteed the possession, use, and occupation thereof to the Cherokee Nation of Indians. Therefore the produce of the soil did not belong to the Government, but to that nation. Still further, unfortunately, if the hay belonged to the United States, then there was no legal right in the claimant to be paid at the Treasury for what was destroyed by the rebels, nor is there any right in him now to recover here for what he was prevented, by the want of sufficient guards and escorts, from delivering under the contract.
But there.is another and very grave question remaining to be considered. The claimant succeeded in obtaining the allowance by the accounting-officers of the Treasury, and the pay ment out of the Treasury of $3,340 for hay which he had caused to be cut under his contract, and which, before its delivery to the military authorities, was destroyed by rebel enemies at Cabin Creek and Hudson’s Crossing; and also $16.774, as compensation for property destroyed there by the same enemies; both of which losses those accounting-officers found to have been “occasioned by the failure of the Uuited States to furnish sufficient guards, as stipulated in the contract.” The Government seeks to recover back those sums by way of counter-claim in this suit. This brings up the question of the legality of those allowances.
1. The allowances were adjudications of unliquidated damages in favor of the claimant; and, in my opinion, they had no jurisdiction to make any such adjudication. This court is the tribunal to which the Government has consented to refer such matters. But as Judge Bichardson’s opinion, next to be read, covers this point, and I concur in if, I will not enlarge in this direction.
2. Supposing those officers to have had the authority to allow unliquidated damages against the Government, they had not, in my judgment, the least power to base the allowance upon the destruction by rebel enemies of the claimant’s property; and the fact that it was destroyed “ while being used in preparing hay under this contract ” did not at all confer that power. The case, to my view, is one of the absolute absence of authority in any officer of the Government, upon any ground, to pay any man, contractor or other, any compensation whatever for his property destroyed in war by the enemy, except in cases where such payment is authorized by express statute of the United States. No nation ever acknowledged itself bound, on principles of public law, to pay its citizens for their property destroyed by the public enemy in time of war. Every such principle, as well as every consideration of public policy, forbids such obligation. But any nation may, out of commiseration for individual losses, disregard those principles and considerations, and provide, by express law, for such cases.
The United States did this in the second section of the Act March 3, 1849, (9 Stat. L., 414,) in these words: “ That any person who has sustained, or shall sustain, damage by the capture or destruction by an enemy * * * of any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the military service of the United States, either by im-pressment or contract, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner, * * * shall be allowed and paid the value thereof at the time lie entered the service: Provided, It shall appear that such * * * capture [or] destruction * * *
The Supreme Court held, in Stuart v. The United States, (18 Wall., 84,) that this statute was intended for the indemnity of those engaged in the actual military service of the United States; that is, for enlisted men while in performance of their duties as such; and, therefore, that a contractor for land transportation of military stores and supplies was not in the military service, and could claim no benefit under that statute. And in Shaw's Case, in this court, (9 C. Cls. R., 388,) affirmed, on appeal, by the Supreme Court, (93 U. S. R., 235,) where a steamer was taken into the service of the United States by a quartermaster, upon a notice to her captain that the Government would require her service for a trip to Memphis, Yicksburgh, and other points, accompanied by a statement of the per-diem compensation which would be allowed for its use, and for the subsistence of the men in addition to their wages, and fuel for the vessel, to which notice and service no objection was made by the captain, and while engaged in the service the possession, command, and management of the steamer were retained by her owner, it was held that the steamer was not in the military service of the United States within the meaning of the Act March 3, 1849, (amended by the Act March 3, 18C3, (12 Stat. L., 743, § 5,) extending its provisions to steamboats,) so as to make the Government liable for her loss by fire.
Underthe.se decisions there is no ground for contending that this claimant was in the military service while engaged in fulfilling the contract of July’ 18. Not having, then, been in that service, he had no claim upon the Government for compensation for the destruction of hay and other property by rebel enemies; and, therefore, the accounting-officers had no jurisdiction whatever to allow him the sums which, upon their allowance, were paid him out of the Treasury for such destruction. Because they had no such jurisdiction the payments so made to him, and his receipt of them, were both unlawful, and the United States are entitled to recover back the amount thereof by way of counter-claim in this action. '
1 am authorized to state that Rigiiakdson, J., concurs in this opinion.
Dissenting Opinion
dissenting:
I concur in tbe dissenting opinion of the chief-justice; and as to the right of the United States to recover back money paid in mistake of law by the executive officers of the Government, my views are these:
The general rule recognized in this country and in England, as between individuals, although not without exceptions, is that money paid in mistake of law, when all the facts are known to the parties, and there is no fraud, cannot be recovered back by action. This rule is founded on the maxim of the civil law, "ignorantio legis neminem exousat,” which, in its application to the administration of the law of crimes and offenses, is a concise and correct enunciation of a sound principie on grounds of justice and public policy. But when made the foundation of a rule, that money paid in mistake of law can in no case be recovered back unless fraud is proved, its application seems to me to be extended far beyond justification.
When one has committed a crime or offense, and has thereby done injury to persons and a wrong to the State, he may well be confronted with the maxim that “ ignorance of the law excuses no one,” and with justice may be compelled to submit to the penalty which the law imposes upon him for his wrongful act. But when one pays, in mistake of law, money which he does not owe, and which the receiver has no right in justice and conscience to retain, he does not, by demanding it back, commit a wrong, which he seeks to have excused on the ground of his ignorance or mistake of law; it is the receiver who does a wrong, and attempts to excuse it on the ground of mistake on the part of the person whose money he unjustly received and retains.
The rule has often been presented to courts in cases in which its application would work manifest hardship, injustice, and wrong; to obviate which it has been denied or explained away,, and sometimes a nice distinction drawn between ignorance and mistalce of law, by which the rule was restricted to cases of ignorance, but held not to apply to cases of mistake. This distinction, although supported by strong reasons, is too subtle ever to be of much practical use and importance. The Supreme •Court, in recognizing the rule, at the same time recognizes the fact that it has exceptions, and in one case attaches to it a
By several courts it has been held that “ money may be recovered back in an action for mouey had and received, where there is a full knowledge of all the facts, -provided that the mistake is clearly proved, and the defendant cauuot in good conscience retain it;" and, as obviating the necessity of exceptions and subtle distinctions, this would seem to be the better rule, and is supported by many authorities. (See, among other cases, Nortrup v. Graves, 19 Conn., 554; Culbreath v. Culbreath, 7 Geo., 64; Stedwell v. Anderson, 21 Conn., 139; Underwood v. Brochman, 4 Dana, 309; Hopkins v. Mazyck, 1 Hill Ch. R., 242; Lawrence v. Beaubien, 2 Bailey, 623; Lowndes v. Chisolm, 2 McCord Ch. R., 455; Robinson v. City Council, 2 Richardson, 317, 320; Farmer v. Arundel, 2 Wm. Black, 825; Moses v. Macfarlan, 2 Burr, 1002.)
But whether or not the maxim of the civil law justifies the general rule, either to the fullest extent or with limitations as between individuals, there are grave reasons of public policy and justice why neither the maxim nor the rule should apply without limitation when money is obtained from the Government through mistake of law made by its officers and agents.
The United States, as a body politic, act only by public officers, who are special agents intrusted with specific, defined duties, and who can bind the Government only to the extent of the authority conferred upon them. The state has no general agents; the President is limited in power and authority; Congress must keep within the bounds of the Constitution; the courts are restrained in jurisdiction by statute, and all public officers must obey the law. (Floyd's Case, 2 C. Cls. R., 599, and 7 Wall., 666.) But the acts of special agents within the scope of their authority are as binding upon the principal as are the acts of general agents.
When, therefore, public money is paid away by public officers, with a full knowledge of all the facts, but in mistake of law upon an honest interpretation and decision, it is necessary to determine how far those officers have been intrusted by the Government with the power and authority to decide in such cases, before the rule can be applied in any form; because, if they have no authority to decide controverted questions of law arising in the course of their prescribed duties, the Government would under no circumstances be bound by their decisions thereof.
But for the settlement of accounts against the United States there is established by law a peculiar and well-appointed system, which requires in each case careful examination and consideration, and the judgment and decision of high officers, appointed by the President with the advice and consent of the Senate, called “accounting-officers,” of two distinct classes, acting separately, the Comptrollers reviewing and finally passing upon the action of the Auditors. The Auditors’ duties are prescribed in Revised Statutes, §§ 276-300, and are generally “ to receive and examine all accounts relating” to the different branches of the public service, “and after examination of such accounts to-certify the balances and transmit the same with the vouchers and certificates to the Comptroller for his decision.”
The Comptrollers’duties are prescribed by Revised Statutes, §§ 268-275, and are, among other things, “to examine all accounts settled by the Auditors,” and to certify the balances arising thereon; the First Comptroller to the Register, and the Second Comptroller to the head of the Department in which the expenditures have been incurred. Thus the accounting-officers stand in somewhat different relations to the Government from disbursing-officers, agents, and employés who have only ministerial duties to perform. They have larger power and greater authority, to be exercised according to their best judg
To decide means, “To settle, to terminate, to end, to conclude; applied to what is in dispute, question, or doubt.” (Worcester’s Dictionary.)
A decision implies more than ministerial duties, and calls for a determination by the Comptrollers of every question which may be raised upon the accounts and balances as stated and -certified by the Auditors, whose whole proceedings are subject to revision by the Comptrollers. By Revised Statutes, § 271, the First Comptroller may even direct Auditors, in case of delays which, in his opinion, would be injurious to the United States, “forthwith to audit and settle any particular account which such officers are authorized to audit and settle, and to report such settlement for revision and final decision by the First Comptroller.” This authority to direct accounts to be forthwith settled, before the passage of the Revised Statutes, w.as understood to belong to each Comptroller alike as to accounts within their respective jurisdiction, and was so exercised; but it seems to be limited in the revision, probably by inadvertence, to the , First Comptroller. We cite it here, however, only to show the duties of the Comptrollers in making their final decisions on accounts, and they are the same whether the settlements are sent up to them by the Auditors in the usual manner or by special direction. All such settlements are subject to the revision and final decision of the Comptroller.
To some extent, therefore, the Comptrollers are gwim-judicial officers, and like judicial and other officers who are charged with the exercise of discretion and judgment, and unlike ministerial officers, they are not personally liable for the correctness of their decisions when acting without fraud and jn good faith. In the performance of their important duties the accounting-officers may, through the Secretary of the Treasury, and often do, obtain the opinion of the Attorney-General upon doubtful ■questions of law, as may be seen by reference to numerous printed opinions of the Attorneys-General in such' cases.
The accounting-officers from the first maintained the conclu-
In 1868 Congress passed the act which is embodied in Revised Statutes, § 191, as follows:
“The balances which may from time to time be stated by the Auditor and certified to the heads of Departments by the Commissioner of Customs, or the Comptrollers of the Treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of Departments, but shall be conclusive upon the executive branch of the Government, and be subject to revision only by Congress or the proper courts. The head of the proper Department, before signing a warrant for any balance certified to him by a Comptroller, may, however, submit to such Comptroller any facts in his judgment affecting the correctness of such balance, but the decision of the Comptroller thereon shall be final and conclusive, as before provided.”
This act settled a long-standing controversy between the accounting-officers and the heads of the Departments, and is significant in connection with the questions now under consideration, as showing the great authority, superior to that of the highest executive officers of the Government, which Congress reposes in tjie accounting-officers in the settlement and determination of balances of accounts with the Government.
It will be observed that, by the sections of the statutes to which reference has been made, the general jurisdiction of those officers is confined to matters of account. An “account” is defined by Chief-Justice Shaw thus: “The primary idea of account, computatio, whether we look to the proceedings of courts.
This would exclude claims for unliquidated damages, founded, on neglect or breach of obligations or otherwise, and so, by the well-defined and accepted meaning of the word “ account,” and the sense in which the same and the words “accounting” and “accounting-officers” appear to be used in the numerous sections of the numerous acts of Congress wherein they occur, it would seem that the accounting-officers have no jurisdiction of such claims, except in special and exceptional cases in which it has been expressly conferred upon them by special or private acts. And such has been the opinion of five Attorneys-Geueral —all who have officially advised the Executive officers on the subject: Attorney-General Taney, in 1832, whose opinion is referred to by his successors in office; Attorney-General Kelson, in 18-14, (4 Opins., 327;) Attorney-General Clifford, in 1847, (4 Opins., 627;) Attorney-General Cushing, in-1854, (6 Opins., 524;) and Attorney-General Williams, in 1872, (14 Opins., 21.) And the same views were expressed by this court in 1866. (Carmick et al. v. The United States, 2 C. Cls. R., 126, 140.)
The appropriations by Congress for the support of the different branches of the Government, from which the balances found by the accounting-officers can be paid, are made for the payment of services rendered, materials furnished, and benefits conferred, which may be foreseen and estimated for with some degree of accuracy, and, unless specifically provided for thereiu, do not include authority to pay unestimated and unlimited amounts which those officers, without the ordinary forms and proceedings required in the trial of controverted claims in the courts of law, might in their discretion, upon ex-parte affidavits, in their ordinary course of business, allow as damages for violated contracts.
The present distinguished head of the Treasury Department, (Mr. Secretary Sherman,) in a circular-letter recently addressed to the accounting-officers and others, thus justly and correctly calls attention to the admirable organization of that Department to pass upon accruing demands and accounts, and the
“ The Treasury Department is admirably organized to pass upon accruing demands upon the Government and upon the accounts of disbursing-officers. All its machinery aud checks are adapted to this duty, and no serious complaint has been, or is likely to be, made of the proper discharge of this duty. But when claims long past due are presented upon ex-parte evidence to officers who have no means of calling witnesses, no powers to cross-examine them, no modes of testing the sufficiency of testimony or its credibility, none of the safeguards of an open court of justice, the passage of fraudulent claims is unavoidable. Congress has by law provided a Court of Claims, where, within a limited period, all demands founded upon contracts may be presented and openly tried and decided. If this remedy in any case should be insufficient, claimants can appeal to Congress, which may grant either a new trial in the courts or a reexamination in the Departments, or directly furnish such relief as-it deems right and proper. The Treasury Department is not a Court of Claims, and the reason for withholding the ordinary powers of such a court became apparent to Congress by actual errors that had occurred.”
That public,policy requires that public officers should be held to the performance of their duties within the strict limits of their legal authority, and that as a general rule the Government should not be bound by their mistakes, or their errors of omission or commission, there can be no doubt; aud public policy would seem equally to require that when the vast accounts of collectors and disbursing officers, charged with responsible trusts and under heavy bonds; the complicated accounts of persons furnishing supplies to the Army, Navy, and other branches of the Government; the accounts of individuals dealing in thousands of ways with the constituted authorities, as well as accounts for the salaries of public officers to whom it is often of great importance to know exactly how much they can depend upon receiving, when passed upon and settled by officers of such high authority as the accounting-officers acting within the exact scope of their authority, and the balances certified by them tp the heads of Departments to which they relate, aud by them directed to be paid, and then paid by warrant drawn on the Treasury according to law, and the payment acquiesced
Mr. Justice McLean, in an opinion delivered in the Supreme Court in 1834, thus expressed his views: “The accounting-officers of the Treasury act upon the accounts, and give the credits-as entered their officia sanction. The vouchers of an individual are all- submitted to these officers and their decision has-always been considered as conclusive upon the Government,, but not so as against the individual. The law expressly provides that rejected items may be allowed by the court [referring' no doubt to the provisions now incorporated, into Revised Statutes, §§ 951, 952.] * * * In the performance of their official duty, the Treasury officers act under the authority of law; their acts are public, and affect the rights of individuals as well as of the Government. In the adjustment of an account they sometimes act judicially, and their acts are all recorded in the books and files of the Treasury Department. So far as they act strictly within the rules prescribed for' the exercise of their powers,, their decisions are in effect final; for if an appeal be made they will receive judicial sanction, [probably referring to the provisions-now incorporated into the Revised Statutes, § 886.] Accounts amounting to many millions annually come under the action of these officers. It is, therefore, of great importance to the public and to individuals that the rules by which they exercise their powers should be fixed and known.” (United States v. Jones, 8 Peters, 375.)
The language used by Attorney-General Browning, in an opinion given to the Secretary of the Treasury in 1868, upon the claim of a collector of customs to have the accounting-officers open and re-adjust an account settled with them, in which he claimed that errors had been made in the amounts allowed him, founded on mistake of law, although used with reference to the opening of settled accounts at the request of a claimant, applies with equal force when the Government seeks to open the same. He says:
“It- has been repeatedly held that where an account has once been duly adjusted, settled, and closed by the proper officers, with a full knowledge of all the facts, and where no errors in calculation have been made, it cannot be re-opened without express authority of law, and must be regarded as final and con-*559 elusive. No subsequent decision upon a doubtful or controverted question of law, essentially modifying a prevailing rule wbicb was applied to tlie settlement of an account, would authorize the re-opening of it, with a view to a re-adjustment of it in accordance with such decision.” (12 Opinions, 386.)
If the rule were otherwise, and nothing can be regarded as settled against the Government in the adjustment of accounts except what is determined by the Anal judgment of the courts, it would follow, as no statute of limitation bars actions brought by the United States, that any account settled since the first organization of the Government might be re-opened, and parties brought into court upon a claim for money paid them in mistake of law,-upon the caprice of successive Comptrollers, who are by law charged with the duty of directing suits and legal proceedings to be instituted for the recovery of debts certified by them to be due to the United States,' (Rev. Stat., § 269,) or whenever a new construction is placed on a statute, different from that which the same or a former Comptroller adopted in the settlement of earlier accounts, materially changing the balances, although there were no frauds, mistakes., or concealments of facts, and the parties had dealt with the Government on the basis of the former rulings, and had long acquiesced in the settlement.
But the strength of the position that money paid in mistake of law, upon the decisions of the accounting-officers “ acting strictly within the rules prescribed for the exercise of their powers,” with a full knowledge of all the facts and in the absence of fraud, •cannot be recovered back, except in cases in which it could be so recovered under like circumstances between individuals acting for themselves, does not rest merely upon the conclusiveness of those decisions, for until they are consummated by actual payment they are not binding and conclusive, except to the extent specified in the act of 1868, before cited, (Rev. Stat., § 191,) and are never so regarded.
In the case of Chorpenning v. The United States, (91 U. S. R., 397; ante, p 119,) wherein'the Postmaster-Gen eral was, by special-act, authorized to investigate and adjust certain claims, to be settled as therein provided, and Congress repealed the act after the Postmaster-General had found and stated a balance due to the claimant, but before the same was paid, and he sued to recover the amount so found due him, the Supreme Court
Congress, as we thus see, may interfere, and the head of a Department to which a certified balance relates, if he cannot change the balance, may submit to the Comptroller any facts in his judgment affecting the same and require a decision thereon, or he may s.end the claim to this court for final adjudication, as has been done in many cases. (Delaware River Steamboat Company's Case, 5 C. Cls. R., 55; Winnissimmet Company's Case, Reybold’s Case, and Hart's Case, ante, p 319.) And the Secretary of the Treasury, or the Postmaster-General, in case of accounts in his Department, has the right, and it would be his duty, to refuse to grant or sign a warrant for the payment of any certified balance which in his opinion is wholly invalid and not provided for by an appropriation authorized by law, (Constitution, art. I, sec. 9; Rev. Stat., §§ 248, 3674, 3675, 3678,) until the case had been transmitted by him to this court for adjudication or submitted to Congress for an appropriation.
Jt is only when payment has been made on the requisition of the head of a Department and the warrant of the Secretary of the Treasury, or of the Postmaster-General in his own Department, sanctioning and giving effect to the action of the accounting-officers, each acting strictly within the jurisdiction conferred upon him by law, and the settlement thus consummated has been acquiesced in by the claimant, that it would seem to be binding and conclusive in like manner as settlements between individuals.
If, however, the claimant does not acquiesce in the settlement, but brings his action in this court within the time limited by law, he cannot well object if the account is re-opened throughout, stated anew, and a balance found either way, according to the l.aw and the facts as found by the court. A case arose in 1854 illustrative of these views. Coroners in the District of
On the whole, my opinion is, that when a claimant, not acquiescing in the settlement of an account or claim by the accounting-officers and the payment thereof, brings his action in this court.to recover an amount beyond what has been allowed and paid to him, the United States may maintain a counter-claim, under the provisions of Revised Statutes, section 1059, clause 2, for any money received by him on such settlement, when it appears that the officers of the Department
This is all that it is necessary to determine for the purposes of this case.
In McElrath’s Case, (ante, p. 201,) McBlrath had been paid half-pay, as on leave of absence, as an officer of the Marine Corps, upon the mistaken decision of the accounting-officers that he was by law a first lieutenant of that corps during the time for which he was so paid; and he, not acquiescing in the settlement, brought his action in this court for the balance of full pay. He had been an officer of the corps, sent in his resignation, which was not accepted, and he was peremptorily dismissed from office. He engaged in other occupations, performed no service for the Government and offered to perform none, and after a time, as an act of favor, the Secretary of the Navy revoked, or attempted to revoke, the order of dismissal, and accepted his resignation to take effect at the date of said revocation. During the whole intervening time his place had been filled by the appointment of another person to the vacancy created by his dismissal, and the corps had the full complement of officers authorized by law, exclusive of the claimant. The court held that his attempted restoration by the Secretary of the Navy had no legal effect; that the accounting-officers erred in deciding that he was during the time an officer of the Marine Corps entitled to pay; that the officers of the Department exceeded their jurisdiction in paying him half-pay while he was not in office, and that he had no legal claim to the money paid to him and could not in conscience retain it. And the court gave judgment upon the counter-claim. against him for the amount which he had illegally received.
In the case at bar a majority of the court hold that the clause in the contract of June 20,1864, whereby the defendants were made to promise that “it is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the Government to protect the contractors while engaged in the fulfillment of this contract,” was void, as not warranted by the advertisement inviting proposals, and as inserted without legal authority, for the reasons stated in the
All the money paid to the claimant, which forms the subject of the counter-claim set up by the defendants, was allowed and paid in fact as damages, unliquidated damages, for breach of the agreements in the protection clauses of the contracts, on the part of the defendants, measured by the value of the claimant’s property destroyed by the public enemy in time of war, for want of sufficient military escorts and other defenses and protection by the Army in the field.
The manner of estimating the claimant’s damages by stating an account of his actual losses does not make this claim .one of “account” within the meaning of the law and of the statutes defining the duties of the accounting-officers. In whatever form settled it was a claim for damages.
That the claimant was not entitled to damages by settlements in the Executive Departments, by action in this court or otherwise, for such breach of such clauses so inserted in the contracts, and for property thus destroyed by the public enemy, I think is clearly shown in the opinion of the chief-justice.
When a contract is annulled or broken on the part of the United States before completion, the contractor, waiving his claim to damages, may, if he so elects, have his accounts settled, as for part performance, at the rate and according to the conditions of the contract; and such accounts would be strictly within the jurisdiction of the accounting-officers of the Treasury Department. (6 Opinions, 499.) But that is not this case. The claimant’s contracts were for the delivery of hay at specified places and at agreed prices, and the only part performance' which could have occurred in such case would have been the delivery of a portion only of the hay contracted for. The
Moreover, the claimant does not acquiesce in the settlement, but brings this action to recover an amount beyond what has been allowed and paid to him. He cannot, therefore, in law or justice, well complain if the United States on their part no longer acquiesce in the payment, and, in defending themselves, at the same time seek to recover back the money paid to him, without authority of law, by their special agents acting beyond the limits of their jurisdiction.
Had the claimant himself not disturbed the settlement by bringing the defendants into this court, the- United States would no doubt have abided by the action of their officers, as they have done before in hundreds of cases which must have occurred in the nature of things during the past eighty years and more, in the course of the almost countless, multifarious, and complicated accounts which have been adjusted and settled in the Departments, wherein the executive officers have acted upon-interpretations of statutes and views of the law, and of their own powers and duties, honestly and fairly arrived at, as we believe they were in this case also, but which the courts, after arguments by persons learned in the law, and more thorough consideration, would be constrained not to uphold. And because the United States do nob in their ordinary business disturb settlements in which the claimants acquiesce, it does not follow that they have no right to recover back payments illegally made on those which the claimants themselves re-open by actions bringing the Government into court.
In my opinion the defendants are entitled to recover the amount of their counter-claims.
I am authorized to state that the chief-justice concurs in this opinion.