27 F. Cas. 192 | U.S. Circuit Court for the District of District of Columbia | 1831
By the 4th section of the Act, any person considering himself aggrieved by such a warrant, may prefer a bill of complaint to any district judge of the United States, who may grant an injunction, upon bond and security, and the same proceeding shall be
This warrant having been levied by the marshal, on the lands, tenements, goods, and chattels, of Mr. Nourse, he preferred his bill under the fourth section of the act, on the 25th of August, 1829, to the Chief Judge of the Circuit Court of the District of Columbia, who, by virtue of that office, is sole Judge of the District Court of the United States for the District of Columbia ; in which bill, after stating that since his recent removal from the office of register of the treasury, (May 31, 1829,) his public accounts as register and agent of the Treasury Department in disbursing certain funds, and settling certain accounts of contingencies, and other miscellaneous matters, and as agent for the Joint Library Committees of Congress, matters altogether distinct from, and unconnected with, his duties as such register, have been settled at the treasury, and a pretended balance found against him of $11,250.26, for which a warrant had been issued against his lands, tenements, goods, and chattels, under the Act of May, 1820, and levied upon the same in his absence. (He avers that the said account is unj ust and illegal; and that so far from any balance being due to the United States, a considerable balance should have been struck thereon in his favor, as appears by an account filed by him, and which he declares to be just and true. That he took upon himself this distinct branch of duty at the special instance and request of the proper department of the government, having competent authority to engage him or any other agent in that capacity. That the performance of those duties devolved upon him great labor, responsibility, and risk, independent of, and apart from, his proper duties as register, and .occupied a great portion of his private hours; that is, of those hours when, according to the established order and routine of his department, he was altogether discharged and free from the proper duties appertaining to his office of register, and had his time at his own disposal, but for his employment as special agent as aforesaid. And that besides the great labor and consumption of time induced by this extra employment, he was exposed to considerable pecuniary losses from the ordinary errors that occasionally occur in the accounts of the best accountants, from the multiplicity and minuteness of the various accounts and vouchers to be settled and preserved.
That as early as the year 1800 he made out an abstract of these services, claiming to be allowed a compensation therefor ; which original abstract is on file in the Treasury Department. That he has duly made out and presented his account to the proper accounting officer of the treasury, charging his commission at the rate of two and a half per eeht. on the amount of his disbursements, which, if allowed, would, after a full and fair settlement of all his public accounts, leave the United States indebted to him in a balance of $9,886,24; which he has good reason to believe, and does believe, to be justly and equitably due to him from the United States, as stated in his annexed account.
That the accounting officers of the treasury have rejected his said charge, and denied him any manner of-compensation for his extra services as such special agent as aforesaid; not on the ground or pretence that his charge of commission is too high or unreasonable, if he were entitled to any compensation; but that he is not entitled to any compensation whatever for such extra services. He denies that he is within the description of persons, or officers, over whom the act gives jurisdiction to the Agent of the Treasury; which opinion he supports by an extended argument in his bill; wherefore he prays that the parties may be remitted to the ordinary process of law, so as to have a fair trial on the merits before execution be had of his body or estate, and an injunction to stay proceedings on the warrant altogether.
The injunction was granted, and served upon the Agent of the Treasury, with a citation to appear and answer the bill at the next District Court at Alexandria ; when and where Mr. Swann, the Attorney of the United States for the District of Columbia, appeared and answered, that upon a settlement, by the proper accounting officers of the treasury, of the complainant’s general account, comprehending the different agencies under which he acted as register of the treasury, he was found indebted to the United States in the sum of if11,769.18, as appears by the account, a copy of which the complainant has exhibited with his bill, with the letter of Joseph Anderson, Comptroller,, which shows the
The answer denies that the complainant is entitled by law to those, or any commissions, and prays that the injunction may be dissolved.
On the 20th of December, 1830, the District Judge, having heard the parties by their counsel, made the following order and decree:
“ That the said Joseph Nourse has produced satisfactory evidence that he did, for a long course of years, render various services and disburse large sums of money for the use of the United States, and at their request, from time to time, made through the respective Secretaries of the Treasury, for the time being; which services and disbursements were performed and made by the said Joseph Nourse over and above the services required by the duties of his office as register of the treasury of the United States, for which said extra services and disbursements he has never been allowed any compensation in the settlement of his accounts in the Treasury Department; and it being deemed by the court expedient to ascertain by the report of auditors to be appointed by the court for that purpose, the value of those services, and the compensation to which the said Joseph Nourse is equitably entitled therefor, and for his disbursements as aforesaid: It is further ordered that Robert J. Taylor, Phineas Janney, and Colin Auld, be, and they are hereby appointed auditors to ascertain the said value and compensation, and to report thereon to this court without delay; and that such of the papers and evidence in this cause as relate to that subject, be submitted to the said auditors for their better information thereon.”
On the 31st of December, 1830, the auditors reported, “ That it appears from the documents and evidence submitted to them, that from the 10th of April, 1790, to the 31st of May, 1829, thirty-nine years, one month, and twenty-one days, the complainant, as agent for the payment of contingent expenses of the Treasury Department; for stationery-and printing of public accounts; for payment of the superintendent and watchmen of the State and Treasury Departments; for miscellaneous disbursements, comprising fifteen different agencies ; for advances made to sundry persons who brought from the several States the votes for presidents and vice-presidents of the United States; and on account of the congressional library; disbursed the sum of $943,308.83; the services rendered in which said agencies, and in making said disbursements, were over and above the services required of him by
"We find that for similar services, where no special provision had been made by lavv", a commission of two and a half per cent, has been, heretofore, in many cases, allowed at the Treasury of the United States; and we are of opinion that a commission of two and a half per cent, on the said sum of $943,308.83, amounting to the sum of $23,582.72, is an equitable compensation for the services so as aforesaid rendered to the United States by the said Joseph Nourse; and that the said services are equitably worth the said last-mentioned sum.”
Whereupon the following decree was made by the District Judge, on the 4th of January, 1831.
“And át a court continued and held for the said district on the 4th day of January, 1831, the auditors, Robert J. Taylor, Phineas Janney, and Colin Auld, to whom,” &c.,-“having made and returned their report,” &e., “and no sufficient reasons having been presented to the Court against the confirmation of the said report of the said auditors ; It is, therefore, this 4th day of January, 1831, ordered, adjudged,' and decreed, that the said report be, and the same is hereby, in all particulars confirmed and made absolute ; and the said cause now also coming on for final decision upon said report, and the bill, answer, replication, exhibits, depositions, and other evidence admitted by the parties, and upon the equity reserved under and by the said interlocutory order; It is further ordered, decreed, and adjudged, that the injunction, heretofore granted in this cause, be, and the same is hereby perpetuated ; and that the said defendants be, and they are hereby perpetually enjoined from proceeding further against the said complainant upon the warrant of distress in the bill mentioned for or on account of the claim or demand for the recovery of which the said warrant of distress was issued.”
The United States appealed to the Circuit Court of the District of Columbia, where a motion was made by Mr. R. S. Coxe, to dismiss the appeal, and contended that this was a summary proceeding in derogation of common right, and the jurisdiction must be limited to the express provisions of the act which gives the remedy. It does not give the United States any right to appeal.
The District Court had no jurisdiction in any suit against the United States. This proceeding is not a suit. No judgment can be rendered in it against the United States. It is not such an action as is intended by the Judiciary Act of 1789, [1 Stat. at Large, 73], where an appeal is given. It is a power given only to the judge, not to the court; and it is given to the judge of any district. A district judge in Georgia may enjoin a warrant levied in this district. There can be no jury to ascertain facts. It is no
Mr. Swann and Mr. Key, contra. This is a suit or action. The bill prays for an injunction, and for general relief. The Judiciary Act of 1789, [1 Stat. at Large, 73,] gives an appeal, or writ of error, in all cases over $50. It applies to new jurisdictions as well as to the old. If the District Court should dismiss the bill or final hearing, it would be hard if the debtor could not have an appeal. So it is strange if the legislature should give a right to appeal upon an interlocutory decree and not upon a final decree; and should give the complainant a right of appeal upon an interlocutory decree, and not reserve to the United States a right to appeal upon a final decree against them. The fourth section says, “ The same proceedings shall be had as in other cases.” An appeal is expressly given upon refusing or dissolving the injunction, because a decree of refusal or dissolution is only an interlocutory decree; and an appeal, by the former law, could only be taken to a final decree. And the allowing of such an appeal from an interlocutory decree, does not deprive the party of his appeal upon a final decree. By the Act of the 3d of March, 1803, [2 Stat. at Large, 244,] an appeal is given upon every final decree. A decree for a perpetual injunction is a final decree. This is the judgment or decree for a court, and being in its nature final, an appeal lies of course under the Act of 1803. The CouRT (Cranch, C. J., not sitting,) was of opinion that the United States had a right, to appeal; and on a subsequent day, Thruston, J., delivered the opinion of the Court, (Cranch, C. J., not sitting on the appeal.)
The great question, in this cause, is, “ Is the appellee, as agent for the disbursement of certain contingent funds of the Treasury Department, library of Congress, and other appropriations for public purposes, entitled to compensation for those disbursements ? It is a single and a simple question; and can admit of no doubt, if the defendant be not barred by considerations connected with and growing out of his official duties as register of the treasury. The first point, then, is to examine those official duties. (See the law declaring those duties.)
But it is contended that if Mr. N. is entitled to compensation, it is a right founded upon no law, and dependent entirely upon the will of Congress. A right not to be asserted in a court of law, is a solecism. A strange argument has been used to maintain this principle, — that because Mr. Nourse proposed to apply to Congress, for remuneration, he has acknowledged that he had no legal remedy. ■ Ho'w so ? Does a man forfeit his right to compensation for services rendered because he has misconceived his remedy ?■ But how did he misconceive his remedy ? He could not have
A strange argument was used to show that Mr. Nourse would have had the same duties to perform as register, had he not acted as agent, as he has had, having acted as such; that he would still have had the accounts of the agency to register and enter on the books of his office, and so as register he would have had this duty to perform let who will have been agent; and he had all this to do, although he was himself the agent. But, in fact, the concerns of the agency are-entirely distinct from and independent of his functions as register. What have contracts for wood, paying
But Mr. Nourse was “ employed ” to do all this; and if he was employed, why should he not be paid ? If no special cpntract was 'made, then he is entitled, on the principle of a quantum meruit, which creates an implied assumpsit, to pay, on the part of the government, and the quantum of two and a half per cent, is settled by the usage established by other officers of the government in similar cases: by the report of the auditors and by all the analogies to the cases of private agents.
As to the statute of limitations; in the first place, it is not . pleaded; in the next place, it cannot avail against a party who could pot assert his claim by law. Mr. Nourse could not sue .the government; therefore could not avoid the operation of the .statute. He was obliged to wait to be sued. Besides, we are bound to decide on principles of justice and equity. The statute, if otherwise available of, seems to be overruled by this directory provision. But the government would be disgraced by pleading the statute of limitations, and if so, we ought not to allow it.
Moreover, the policy of the statute, however wise and wholesome as to transactions between private persons, is in nowise applicable to government concerns. The prevention of litigation, the peace and quiet of the community, and the security of the citizens against stale claims, were the objects of the státute; none of which seem at all to bear on the interests or the weal of the government; and therefore the government ought not,' and cannot take shelter under it.
Again, the United States are not bound by the statute, and it is not right that they should have the benefit of it; the benefit should be reciprocal.
As to the want of a replication, it appears, from the record, that a general replication was agreed to be filed, in the judge’s order of the 2d of January, 1831, (see p. 7, of the record ; see also the final decree of the judge,) who says, “ The cause coming on for final decision, on said report, and the bill, answer, replication,” &c., “ admitted by the parties,” so that there appears to have been a replication.
The decree of the District Court is affirmed.