28 F. Cas. 509 | D. Me. | 1840
The question which the jury, by their verdict, have referred to the opinion of the court, is, whether the defendant is by law entitled to all or any part of the credits which he claims. If he is, they find that to that extent they are to be.allowed and deducted, as offsets from the general balance demanded by the plaintiffs. So far as these consist of charges for disbursements, it was not denied at the hearing that they were actually made by him, under color of his authority as an acting quartermaster, and that the articles paid for were actually received and consumed by the troops or lost. The ground on which the allowance of them is contested is, that the disbursements were made in satisfaction of claims against the United States, which, however just and valid they may be, he, in his quality of acting quartermaster, was not authorized to settle and pay.
1. The jury have distributed these credits into four classes, distinguished from each
If these accounts, of Captain Webster were to be settled and adjusted under the general laws, providing for this branch of the public service, and the regulations and established usages, which constitute the complement of the law, it would be 'desirable to have some more satisfactory evidence of what those usages are. No part of the army rules and regulations, which has been quoted at the bar, speaks at all of the forcible impressment of articles for the public service, nor, of course, of the mode of settling and paying for them. They neither affirm nor deny the authority of the quartermaster in this particular. I am not aware that, from the silence of the regulations, any argument can be drawn either in favor or against his authority. It is made the duty of the quartermaster, to provide quarters, hospitals, provisions, fuel, forage, means of transportation, and other necessaries of the service. Ordinarily, they will be obtained by contract; but if they cannot be so obtained, the necessity of the case, and the usages of war, authorize the taking them by force. But as private property cannot be taken for the public use, without a just compensation (Const. Amend. U. S. art. 5), the authority of an officer to take, would seem to involve that of paying the fair value when taken. But it is said, that though the officer has the right, in a case of necessity, to take by impressment, his authority to pay the price of what he has taken, is negatived by the established and uniform usage of the service. A number of acts of congress were referred to, providing specially for the payment of impressed property, and they have been insisted upon as proving, that it has been the invariable practice of the government to provide for the settlement of such claims by special laws. Now these laws prove affirmatively, that such claims have in many cases been provided for, by special laws; but they do not prove negatively, that no claims of this description may be, or ever have been settled, and adjusted, under the general laws and usages applicable to this branch of the public service. The acts referred to were not laws providing for the current expenses of the army, biit for the settlement of .old claims,- which may have been omitted to be adjusted and paid at the times, from other causes than the incompetency of the quartermaster to settle them. But in point of fact, the decision, of this part of the case, does not turn principally on the general laws, providing for the military service, nor upon the common and ordinary usages of the army. All the payments of Captain Webster, which are now in controversy, were made under the authority of an act, specially providing for the expenses of the Florida war. This act provides, “That the secretary of war be, and he hereby is, directed to cause to be paid the expenses that have been incurred, and the supplies which have been furnished, in the states of South Carolina, Georgia, Alabama, Louisiana, and the territory of Florida, on account of the militia and volunteers received into the service of the United States, in de-fence of Florida; provided, that the accounts, for these claims, shall be examined and audited at the treasury, as in other cases.” Act May 28, 1836, c. 82, § 1. The question therefore is, whether Capt. Webster was authorized, as an acting quartermaster, to settle and pay the claims, which form the subject-matter of this controversy, under this law. The law provides for the payment of expenses incurred and supplies furnished. These are terms of very general import, and there is nothing in the language of the act limiting them to ex
It is a rule in the construction of a statute, that recourse may be had to the preamble, though it is in strictness no part of the law, as one element for opening and expounding the meaning and intention of the legislature, although it cannot control the enacting part of the law, when the words are clear and explicit, and are manifestly more comprehensive than the preamble. Perkins v. Sewell, 1 W. Bl. 654; Pattison v. Bankes, Cowp. 543. But when the words of the enacting part are ambiguous, or may fairly admit a larger or more restricted signification, then reference may be made to the preamble, to determine which sense is intended by the legislature. The reason is, that the preamble states the grounds apd objects of the law. And when the reasons and grounds of the law are made known, in any other manner equally certain and authentic, they are entitled to have the same influence, in the construction of a statute, as the preamble, if the meaning of the words is doubtful, because every law ought to be carried into effect according to the intention of the law-maker, when the intention can be certainly known. Com. Dig. “Parliament,” B. 11. It appears to me that a document, prepared and published as this was. and preserved among the public archives of the country, stating the nature of the claims to be provided for, and the necessity of a special act for that purpose, and which was before the legislature, at the time when the law was passed, may be fairly invoked in aid of the exposition of the statute; not to control the meaning of the legislature clearly md explicitly expressed, but to give a precise and determinate meaning to words which are ambiguous, or expressions which may be taken with a greater or less latitude of signification. If it does not bring before the court the objects and intentions of the law-maker, in so solemn and authentic a form as when these intentions are set forth in a preamble, at least it affords a medium of exegesis, against which the court cannot shut its eyes, without excluding, from its consideration, what would have an influence upon every mind studious of ascertaining the real intent of the law-maker. It appears from this paper, on the sudden breaking out of the war in Florida, the promiscuous massacre of the people, and the wasting of the country by a savage foe, that the militia and volunteers, of the territory and of the neighboring states, turned out with great promptness and alacrity, for the defense of the distressed inhabitants. In this hasty and tumultuary assembling of the military force, there were, as might be expected, great irregularities committed, and a variety of expenses incurred, some from necessity and some through ignorance, which are not authorized in the regular and ordinary course of the military service. The troops were collected, or rather assembled, with strong hands and willing hearts, overflowing with zeal and patriotism, but with little knowledge or familiarity with the details of military duty, and without military arms and accoutrements, provisions, or necessary camp equipage; and these appear to have been taken with great promptitude, and little ceremony, wherever they could befound. “Furor arma ministrat.” In the state of South Carolina, it is stated in a letter from the governor to the secretary of war, that horses were impressed and appraised, by warrants from the colonels of regiments, under the belief that they would be paid for, at that valuation. The remark of the war department is, that there is no law which authorizes the payment for horses under such circumstances. A letter of Col. Gadson, quartermaster-general of Florida, states that volunteers are rushing in from all quarters, and making or converting every private storehouse into a public depository, from which is taken anything that may be wanted, upon the simple receipts of even unauthorized agents. Volunteers, he says, were considered as entitled to anything they wanted, and, from private storehouses, the drafts have been large for blankets and a variety of articles not issued under the regulations. Property was seized and appropriated to the public use, with a degree of irregularity and illegality rarely witnessed. It is hard, he adds, that those who yielded to the press should not be indemnified, and he proposes that all these claims should be settled on principles of equity. The war department, upon this, remarks that there is no law which authorizes the payment of claims on equitable principles merely, or which, if paid, would release the disbursing or paying officers, from the operation of the laws and rules of the treasury, on the settlement of their accounts. There appears to be no remedy but legislation. All this irregularity is not a matter
It was upon statements like these, that the law of 1S36 was made, providing specially for the payment of the expenses incurred and the supplies furnished. If the expenses had been such as the disbursing officers were authorized to pay, under the existing laws and ordinary usages of the army, no special act would have been required. It was because they were not of this character, that a special act was necessary to provide for them, and the natural presumption is, that it was intended to meet all the cases described in the abstract, provided they come within the words of the law in their natural and ordinary signification. It appears to me that it is not straining the meaning of language to hold, that the payment for articles thus irregularly taken and appropriated to the public ase, is included in the term, expenses incurred. It is certain that somebody must be liable for them, and against whom can they equitably be charged, unless against the party for whose benefit they were taken and to whose use they were applied? Now among the expenses particularly described, and which the disbursing officers were not authorized to pay, were articles irregularly impressed and appropriated to the use of the army. It appears to me that the natural and just conclusion is, that one of the objects of the law was, to supply that authority. My opinion, therefore, is, that the defendant is entitled to the credits claimed under this part of the finding of the jury.
2. The second class of credits claimed, as they are arranged by the verdict, consists of payments, for articles received into the service of the United States, with the consent of the owners, and lost or destroyed while in their service. It appears, from the vouchers, that some of the articles included in this class, were such as are consumed by use, as provisions for the troops and forage for horses. If we may recur to the abstract which has been mentioned, to aid us in interpreting the law, there does not appear to me to be any substantial reason for doubting whether such expenses were or were not intended to be provided for by the act, and of. course whether Capt. Webster had authority to settle and pay them, provided the articles were in fact consumed by the army, although they may have been irregularly taken. If goods, which are consumed by use, are loaned in this way, the contract by which they are transferred is what is technically called “mutuum,” or a loan for consumption. It is of the essence of this contract, that the right of property, in the thing loaned, shall pass from the lender to the borrower, and he, by receiving it, becomes bound to return, not the same individual thing, but one of the same species, equal in amount and quality, or if he fails to do so, to pay its value. Pothier, Pret de Consomption, No. 4, 13, 39. The proprietary interest in the thing being transferred to the borrower, if it is lost, or destroyed, the loss falls on him. “Res perit domino.” With respect to other articles, as horses and wagons for transportation, and horses and military equipments for the use of the soldiers, there is, at the first view, upon the general principles of the law, more room for doubt. If they were received into the service without being purchased, and with the consent of the owners, it must have been either by a gratuitous loan, or by a contract of hiring. In either case, the limitation of the responsibility of the borrower, or hirer, is well settled, by the general principles of law. He is not liable for a loss occasioned by inevitable accident, or in the language of the common law, by the act of God or the public enemy, unless the loss has been preceded by some fault on his part, without which it would not or might not have happened. Story, Bailm. §§ 240, 408; Pothier, Pret a Usage, No. 55, 56. The jury have not found, by what accidents these losses were occasioned, but by recurring to the vouchers, to which by the agreement reference may be made, it appears that many of them were occasioned majore casu, or by that class of accidents for which the hirer, or borrower, is not ordinarily responsible; and as they were avowedly hired for the use of the army, while actively engaged in war, it cannot be imputed to the plaintiffs as a fault, that they were exposed to destruction by the public enemy. In these cases, the general principles of law place the loss on the owners, and of course the United States would not be liable. If the decision of the present ease turned entirely on general principles, the difficulty, which I should feel in this part of it, would be in applying this rule of the common law to a loan, made to the public under such circumstances, unless it appeared by the terms of the contract, that the lender expressly took the risks of war upon himself. But waiving this question, by recurring to the abstract, we shall find, that the settlement, for property received into the public service, in this way, and lost, fairly comes within the purview of the act of 1836. In Georgia, for instance, cannon, rifles, muskets, and other articles, were taken from the state arsenal and furnished to the troops, for which somebody must account to the state. The payment, for articles thus taken and lost by the casualties of war, was then one of the claims which were before congress when the law was passed. They were supplies furnished to the militia and volunteers, and, if lost,
3. In the third class, are placed special damages done to a house occupied for quarters, and to grounds occupied by the troops for an encampment. No claims of this kind were brought to the view of the legislature, by the document to which reference has so often been made. They are claims which are entirely of a different character from all those enumerated in the abstract, and therefore this document furnishes no reason for supposing that they were within the contemplation of the legislature, when the act was passed. It appears to me, therefore, that the allowance of this credit must be determined by the general laws and usages of the service. It is made the duty of the quartermaster to provide quarrers for the army. He must therefore have the authority to agree for the rent and other expenses, necessarily arising out of the execution of his power, and as a disbursing officer, to pay them. This authority seems to be naturally, if not necessarily, incidental to the power of providing quarters, for without it the' power cannot be executed. The ordinary deterioration of the property will be taken into consideration, and provided for by the rent. But extraordinary damage, as the destruction of the tenement by fire, or other unusual and unanticipated damages, will not be. The settlement, for damages of this kind, does not appear to me to be necessarily incidental to the general power of • providing quarters. A further observation may be made under this head, that the officers in the purchasing department of the army are presumed to be selected with a view to their qualifications for this duty. They may be very competent judges of the value of articles which they are required to purchase, and wholly incompetent to estimate the necessary cost of repairing special damages done to the house, or the injury done to a plantation by cutting down trees, destroying fences, and interrupting the labors of husbandry. My opinion therefore is, that the defendant, in order to entitle himself to these credits, must show, that the settlement of such claims is within the ordinary range of the authority of a quartermaster, under the existing laws, the army regulations, and the established usages of the service; and as no such authority is shown, these credits cannot be allowed.
4. In the fourth class, the jury have placed articles purchased for the army, and consumed or lost in the service. There does not appear to be any objection to the allowance of these credits.
5.The only question arising out of the verdict, which remains to be disposed of, is that of the right of the defendant to charge commissions on his disbursements. The facts found are, that, during the time when he made these disbursements, he was an officer in the line, and that he received only the pay and emoluments attached to his rank as an officer in the line: Whether he performed the duties of quartermaster in addition, or as a substitute, to his other duties, the juries do not find, there having been no evidence upon this point offered on either side.
It is contended that he is not entitled to any such commission, first, because, as an officer under the rules and regulations of the army, by the conditions of his engagement, he was liable to be put upon other duties and services, besides the ordinary duties attached to the office which he held, whenever required by his superiors; and as the occasional-performance of extra duties was originally contemplated, under the appointment, no extra compensation for them can, upon general principles, be claimed for such services. There appears to me to be more of logical exactness, than of substantial justice, in this reasoning. It is true that such being the condition attached to the tenure of his office, if extra duties are required, he is bound to perform them, however onerous, or whatever responsibility they may involve. But that in point of equity and good conscience, he can claim no extra compensation for such services, is to my mind by no means' so clear. Nor does the law. in other cases, follow out the logical consequences of a' contract, with so much rigor, at the expense of general equity and substantial justice. The mate of a vessel. by the very conditions of his engagement, is liable to have devolved upon him the duties and responsibilities of a master. This liability is contemplated in his contract. In case of the master’s death, during the voyage, or his being otherwise incapacitated from performing the duties of his office, the mate succeeds. as hmres necessarius, to his employment with all the duties and responsibilities belonging to it Yet it has never been doubted, although the possibility of all this is con templated in his original engagement, that he is entitled to an extra compensation, for these extra services and responsibilities. Now what is just and equitable in the transaction of business between man and man, cannot, one would suppose, be considered inequitable or unreasonable, ordinarily, between an individual and the public. The responsibility of disbursing so large a sum of money, in adjusting and paying a great number of miscellaneous accounts, amidst all the confusion created by a perilous and destructive war, is certainly worth something. But I need not dwell upon this. The present suit
Another objection is made to the allowance of commissions, upon which I have found much more difficulty in arriving ata conclusion satisfactory to my own mind. The general regulá-tions for the army, prescribed by the war department, under the sanction of the president, have been appealed to by both parties as having the force of law. It will not be pretended that these regulations can control or annul an act of the legislature, and when it is said that they have the force of law, nothing more is meant than that they have that virtue, when they are consistent with the laws established by the legislature. It is observed by Mr. Justice McLean, in delivering the opinion of the court, in the case of U. S. v. McDaniel [supra], that “a practical knowledge of the action of any one of the great departments of the government, must convince any person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his diseretion. He is limited in the exercise of his powers by the law, but it does not follow that he must show a statutory provision for everything he does. No government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government, would evince a most unpardonable ignorance on the subject. While the great outline of its movements may be marked out, and limitations imposed on the exercise of its powers, there are numberless things which must be done, that can neither be anticipated nor defined, and which are essential to the proper action of the government. Hence, of necessity, usages have been established, in every department of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits, and no change of those usages can have a retrospective effect, but must be limited to the future.” U. S. v. McDaniel, 7 Pet. [32 U. S.] 14.
These remarks apply with as much force, at least, to the department of war, as to. any other branch of the administration. A moment’s reflection will satisfy any one that it is quite impossible that any statute should go into all the detail of regulation required to maintain the police and discipline of the army, and still more so, that it should anticipate and provide for all the exigencies demanded for the prompt and effective action of the military force, amidst the vicissitudes and- casualties occurring to an army, engaged in the active duties of a campaign. A great deal must unavoidably be left to the judgment and discretion of the officers in command, and much, also, to the head of the department who has the general superintendence of that service. The great outlines of their powers and duties may be fixed by law, but within these landmarks, there is a wide field of detail and contingencies, which no human sagacity can foresee, and which, of course, cannot be provided for by general laws. These are necessarily left to the judgment and discretion of those who have the immediate superintendence of the service, and although no such or-
The title of the defendant to a commission on disbursements, then, being neither prohibited nor allowed by any act of the legislature, depends on general principles and the custom and usages of this particular service. By the general principles of the common law, he would be entitled to an extra compensation for this extra service and responsibility. It would be no valid objection to the claim, that by the condition of his engagement he was liable to have extra duties and responsibilities devolved upon him; because it would- be presumed, that the compensation agreed upon was fixed in reference solely to such services as were in the difect contemplation of the parties when the engagement was made, and not with a reference to services which rested only upon remote and uncertain contingencies. But the officers of the army are all liable to be put upon extra services, not falling directly in the line of their ordinary routine of duty, some more and some less onerous, some of greater and some of less responsibility; and these requisitions are so common that they may reasonably be presumed to come within the contemplation of the parties when the engagement is made, not merely as a possible but a probable contingency. A great variety of cases may, therefore, be expected to arise, in some of which it may be reasonable to allow an extra compensation, and in others not. The executive department of the government, which has the immediate direction and superintendence of this branch of the public service, has the best means of judging when such an allowance ought, and when it ought not, to be made. Should the department reject a claim which is authorized by an act of congress, there is no doubt that it ought to be allowed by the court; because no order or requisition, of an executive officer, can annul an act of the legislature, or defeat a right which has become vested under a positive law. Or if the department should disallow" a claim which is sanctioned by established usage, such usage having the power of law, an order of the department cannot have a retroactive effect to defeat a right already vested. This appears to me to be the clear doctrine of the cases before referred to. But when a claim is presented, not sanctioned by any act of the legislature, nor confirmed by any well-known or established custom, but standing merely upon the general principles of equity, the decision of an executive department, confirmed by the president, if not absolutely conclusive, deserves to be very gravely considered, before it is overruled by the court. Such is the case with thig claim for commissions. It is admitted that it is not directly authorized by any act of congress, and .no evidence has been produced of a usage to allow commission in such cases. The claim, therefore, stands upon its own naked and general equity.-
Now there is, in the general regulations of the army published in 1835, an article precisely applicable to this case. It is the 56th article, on the 23d page of the printed volume, having for its rubrick, “Restrictions as-to Extra Allowances,” and is in these words: “In all cases where an officer of the army is Required, by the direction of the war department, to perform duties or to make disbursements, for which compensation is not specially provided by law, and where the irt-structions directing such duties to be done or disbursements to be made, make no provision for additional compensation, no allowance therefor will be made to such officer. It will then be considered that, in the opinion of the war department, the service»