Gratiot v. United States

The 67th article of the general regulations of the army, published in 1831, recognizes two disbursing officers upon fortifications; namely, tbe agent of fortifications and the superintending engineer. Where there is no agent, the superintending engineer can be required to perform his duty for ¿.compensation which is .fixed by tbe army regulations. The receipt of a sum of money by the superintending engineer, and custody of iquntil it could be turned over to the agent, will not justify a' charge of'two and one half per cent, commission. And in case of such a charge, there is no foundation for a question of usage to be left to the jury. In this particular case, the charges made by General Gratiot- for collecting money (as stated in <he sixth, seventh, and eighth items of his account), were already included in his charge for disbursing, contained in the second item, because when disbursing these sums he was acting as agent for fortifications as.well as superintending engineer, which duty the department had a right to require him to per-, form at a fixed compensation, which had already been allowed. The. court below were right in refusing to permit evidence in support of these charges to-go to the jury, because the only evidence was the transcnpt, which was not sufficient in law. The charge of two and one half per cent., -as contained in the second item of the account, was .unauthorized bylaw, because it consisted-either df'ch'arges of commission .upon money which had come into his hands for stoppages, or for remittances made to him as disbursing agent,’as above-described. The charge of a commission of two and one half per cent, for disbursements other than those on Forts Monroe and Calhoun, as cpntained in’the third item of his account, was a charge for disbursing in the character of superintending engineer, aoting also as agent for' fortifications, and is hot allowed by law. The charge for extra official servic.es, as contained in the fourteenth item of the account, is the same which this court substantially rejected when this case was, formerly under consideration, reported in 15 Peters, except the charge for superintendence relative to the northern boundary of Ohio. Excepting this, the Other' '. services were within the ordinary special duties of chief engineer; and there being bo proof of what these extra official services had been except the account itself, the coart below did not err ia excluding it from the jury. The charge for extra official services was against law, because the duties performed necessarily belonged to the office of chief engineer, and if any services were performed beyond the duties of that office, it was necessary that evidence should be introduced to show what had been the chief engineers personal as well as official agency. It was the province of the court below to decide, as matter of law, what were the duties of ihe chief engineer, and to judge whether any evidence had been introduced tending to show that General Gratiot had performed any services not appertaining to nis station as chief engineer. The army'regulations under which General Gratiot was removed from West Point to Washington were authorized by law, and his brevet rank did not release him from discharging the duties of his commission proper.

This case was brought up by writ of error from the Circuit Court of the United States for the District of Missouri. It was the same case which was before this court at January, term, 1841, which is reported in 15 Peters, 336. Being sent back to the Circuit Court, it came up for trial, after sundry preliminary proceedings,which it is not important to state, on the 25th of April, 1843. On the trial, the United States produced and gave in evidence to the jury two transcripts from the books and proceedings of the Treasury Department, which were the same as those produced upon the former trial. . The plaintiff also gave in evidence an origir nai account, rendered by the defendant Gratiot to the plaintiff, signed by the defendant, showing a balance in his hands of $ 35,000 due on account of the appropriation for a fort at Grand Terre, Louisiana. The plaintiff’s case being ’ here closed, the defendant produced his account against the United States, and proved, by a transcript from the books and -proceedings, of the Treasury Department, jhat each and every item of. his account had. been duly presented to foe accounting officers of foe Treasury Department for allowance against foe United States, and had been by the said officers disallowed ; which account was in the words and figures following, to wit: —- Report of Auditor on General Gratiot's Account. Report of foe Third Auditor of foe Treasury on the accounts and claims of General Charles Gratiot, late chief engineer, transmitted to him by foe Solicitor of thé Treasury on the 25th of March, ,1841, for foe decision of the accounting officers thereon. Nr 1. For foe safe keeping of and responsibility for foe following sums placed in foe custody of Charles Gratiot, from the 27th of . August up to foe 7th and 20th of September,. 1821, the dates of theii being turned over to James Maurice, as shown pn the credit side of the.Treasury transcript admitted in evidence in the Circuit Court of Missouri, in foé.cáse of The United States v. Charles Gráriot, during the April term of 1840, this daring a périod of time that he was not a disbursing agent, viz. : — On account of Fort Calhoun, . . . $19,500-00 “ “ Fort Monroe, . . . 26,550-00 Making the aggregate sum of . ' . . $ 46,050-00 Commission on $46,050, according to usage in like cases, át 2| percent., . . . . . . $1,151-25 2. For disbursing, from the 20th of May, 1822, to the 30th of September, 1829, both inclusive, $84,325-58, on account of the appropriations for fortifications, other than those on Forts Mohroe and Calhoun, for which a separate and distinct accountability was imposed by law, and, according to the decision of the Supreme Court of the United States, as also, that of the Secretary of War of the 26th of May, 1831, in the case of Tuttle, constituted a separate agency. Vide opinion of the Supreme Court of 1841, on the sub- Í'ect, and accounts of Tuttle, on file in the Third Auditor’s office, >y which latter it is shownJ that although he (Tuttle) received compensation for the construction or repairs of a fort, he was entitled to, and did receive, an additional compensation for disbursing, at the same time anyplace, the funds for other and distinct appropriations, and that he also received, at the same time, a like compensation for disbursing the funds of each separate appropriation for piers at New Castle and Marcus Hook. Commission on $ 84,325-58, at 2\ per Cent., as allowed by general regulations of the army, . . . $2,108-14 ■ 3. For disbursing $30,531-60, on account of the appropriation for the repairs and contingencies of fortifications, from die 1st of November, 1823, to the 30th of September, 1829, both days, included, as shown by Treasury transcript referred to above, which disbursements were other than those on Forts Monroe and Calhoun, it having been the usage of the Department to make the like compensation for disbursements under the like circumstances. Commissions on $ 30,531-60, at 2J, per cent., being less than $ 2 per day, . . ., ... . $ 763-29 4. For disbursing $591,039 00, on account of the appropriations for Fort Calhoun, from the 13th of November, 1821, to the 30th of September, 1829, both days included, 2,879 days, at $2 per day, being less than 2| percent., as allowed by general regulations of the army. Account before rendered, . . .1 . $ 5,758-00 5. For disbursing $ 819,677-64, on account of the appropriations for Fort Monroe, from the 13th of November, 1821, to the 30th of September, 1829, both days included, 2,879 days, at $ 2 per day, as allowed by general regulations of the army. Account before rendered, , ' . . . $ 5,758-00 6,1 For Collections of money made for the United States from Jacob Lewis & Co., as per accompanying abstract, marked Ai which service did not, under the regulations, enter into or form any part of the duties of a “ disbursing agent.” ..Commissions on the sums collected, viz. $24,335*81, at 2\ £er cent., according to usage in similar cases, $608*39 7. For ditto, ditto, from Samuel Cooper, as per accompanying abstract, marked' B., •Commissions on the same collected, viz. $ 3,233*62, at 2£ per eeni.., . .. . . . . . $80*84 8. For ditto, ditto,- for sales of public property, &c.,aspe /accompanying abstract, .marked C. Commissions on sums Collected, viz. $ 16,150*81, at 2\ per Cent., . ... .... - . . $ 403f77 9. For 4&0 barrels..cement, account rendered and admitted to his credit in former settlement, . , . ... .., $1,404*00 10. , For quarters, furnished Lieuts. Dutten and Mordecai, on acr count of FortsMonroe and Calhoun. Acecounts heretofore rendered, . .. . $40*00 . 11.. For this amount paid to Robert Archer, for medical attendance on.persons employed at Forts Monroe and Calhoun. .. Accounts before rendered, . . . . . $ 552*00 , 42, For this amount expended on account Of repairs and contingencies of fortificatjons, $ 345*59. Account before rendered and passed to the credit of General Gratiot in former settlement. -13. For die following sums withheld by the Treasury officers, viz t : ¿-r- ■ Pay and emoluments from the 1st of April, 1836, to the 6th of December, 1838, both days included^ , . $ 10,763*99 Allowance for fuel and quarters for same period, . 905*80 Transportation of offices’baggage, . . . 618*67 $ 12,284*46 14. For certain extra official services, as more fully set forth in the accompanying account marked D, viz.: — for his extra official services in conducting the affairs connected with the civil works of internal improvement; carried on by the United States ; and in conducting also the affairs connected with the execution of the act of Congress of July 14, 1832, “ to provide for the taking of certain observations preparatary to the adjustment of the northern boundary-line of the State of Ohio,” referred to the Engineer bureau for execution by the executive of the United States, and other extra official services connected with’ the aforesaid items of charge, and which did not constitute any part of his- duties .as a military officer', but which properly appertained-to the duties and functions of civÚ engineering, and were performed under an understood or implied contract with the War Department, under the sanction and authority of. the President of the United States, to he compensated therefor, over and above my.official pay and emoluments, at a reasonable rate of compensation, according to the established usage of the Department in analogous cases, from the 30th of July, 1828,' to the 6th of December, 1838, both days included, 10 years, and 130 days-, at # 3,600 per annum, that being the pay.granted to John S. ¡Sullivan, David Shriver, James ,Geddes, and Nathan S. Roberts, Esqrc,, civil engineers, employed under the act of the 30th of April, 1824, entitled an act to procure the necessary surveys, plans, and estimates upon the subject of roads and canals, and less than the extra pay of Captain Andrew Talcott, of the Corps of Engineers, while he was employed under the. orders of the Engineer bureau, in executing the act of the 14th of July, 1832, above referred to . ..... . .. . #-37,282.19 .15. For certain extra official services, specified in the items of charge contained in' accompanying account marked E, none of which services constituted any part or parcel of the duties or services appertaining to the office or functions of. any engineer, civil or military, nor of the proper business of civil or military engineering, nor bf any of the legal or prescribed duties or functions of my office of chief engineer, or colonel of engineers, nor in any manner included in my official compensation as chief engineer, colonel of engineers, or. brigade-general by brevet in the army of the United States ; but all of which services were extra official in relation, to each mid every of my said official capacities, and were performed under an understood or implied contract with the WarDepartment, under the sanction and authority of the President of the United Statesj tb be. compensated therefor over and above my official pay and emoluments at a reasonable rate of compensation, according to file established usage of the Department, in analogous cases. For the specification bf all which services, I refer to .the items in my said account E, all of which I am prepared to show, and prove, were in fact such extra official services, and entitled me, under such understood or implied contract, to such reasonable compensation over and above my official pay and emoluments, as aforesaid, ■viz. : — The United States to Charles Gratiot, Dr. Items. , No. 1. For his extra, official services at one of the desks or bureaux of the War Department, from the 30th of July, 1828, to the 6th of December, 1838, both days included, 1.0 years and 130 days,, in receiving, acting on, and causing to be, filed for'safe.keeping, in the archives of ¿aid desk or bureau,. 23,408 letters and other papers (not accounts)^ 10 years''áiíd 130, days.- , 2. For his entire official services at one of the desks or bureaux of the War Department^ from the 30th of July, 1828, to the 6th of December, 1838, both days included, responding to the letters or other communications addressed to, or referred fay, the Secretary of War to said desk on business pertaining properly to the administrative branch-of the War Department, which responses have in the aggregate filled 10,003 pages of folio-post record, 10 years and 130 days. 3. For ditto, ditto, ditto, during the same period of time as the preceding, in examining and causing to be filed, and preservation of, the returns of property received from the agents acting under die orders of said desk or bureau, say about 100 agents in number on an average, 10 years and 130 days. 4. For ditto, ditto,Mitto, during the same period as the preceding, in examining the estimates for funds yearly, quarterly, and monthly, from the disbursing agents in correspondence with said desk oí bureau, about 100 agents on an average ; making requisitions on the Secretary of War, for the funds to be remitted to said agents by the Treasury Department; directing the mode of. applying and accounting for the funds so remitted ; keeping the account with the Treasury for such remittances ; examining the vouchers rendered bv the said disbursing agents in reference to price and application of the articles and labor paid for, and finally transmitting the said accounts to the Auditor for settlement, 10 years and 130 Nóte. The amount -disbursed by said agents, and accounted for to the Treasury during the. time specified, was, — For fortifications, . . ... $ 7,899,571’75 “ internal improvement, * . . . 10,242,425 4® “ light-houses and beacons, . . . 91,842*77 Military Academy, . . . . 344,411*75 jury. The circumstance that- the evidence was reduced to writing made no difference, and did not authorize the transfer, of the question from the jury to, the'court. All evidence taken under a commission is written, and yet goes, of course, to the jury. Usage is a fact, and the determination.of it'cannot be withdrawn from that tribunal -which is the exclusive judge pf facts. The claim of General Gratiot was for services rendered beyond the line of his official duty. It is nó new principle on his part. If his- time and labor have been tasked beyond his office, be is entitled to compensation.: This question has been frequently examined by this court, which has decided that there is no necessity for an express contract to establish such a claim. An implied contract is sufficient. The set-off is claimed under the act of 1794. [1 Lit. & Brown’s ed. 366.) The claim need not be a legal one ; if it is an equitable One, it is sufficient. The cases which illustrate this are United States v. Macdaniel, 7 Peters, 1 United States v. Ripley, 7 Peters, ,18 ; United States v. Fillebrowri, 7 Peters, 28. The last mentioned pase was analogous to this in some respects. Fillebrown was a clerk, with a fixed. salary, and was moreover employed by a board to take charge of their books, at an additional salary of $250 per annum. A part of his set-off was for services prior to his appointment by the board, and this raised thé question whether an implied contract was sufficient. . This case of Fillebrown is.understood to establish the .five following .propositions, viz. : — 1. That an equitable claim for ári unascertained balance, to be fixed by tbe jury, was admitted. 2. That it was competent to show, by parol evidence, what Were the extra services beyond the line of official duty, and that the whole question, whether or not such services were extra, was a fact for the jury, to be established by parol evidence. 3. That parol evidence was admissible to show the measure of compensation for extra services in all officers of the government. 4. That the board had authority to employ a person who rendered the services charged for, and that the law will imply a promise to pay for them. 5. That the Secretary of the Navy could not disallow and annul the right to compensation. {Mr. Jones then, explained the account ,ol General Gratiot, as set forth in the preceding statement.) The. situation of General Gratiot.may be considered in three points of view. 1. As military engineer, being Jíeuténant-colonel from 1821. 2. As chief engineer, being full colonel. 3. As a brigadier-general in the army of the United States. When he was detached from the proper head-quarters of the corps, at West Point, he took rank as brigadier-general in the line of the army. 1. As military engineer. The laws of. May 9, 1794 (1 Lit Sí Brown’s ed. 366), July 16, 1798 (1 ibid. 604), March 3, 1799 (1 ibid. 749), March 16, 1802 (2 ibid. 132), show that the Corps of Engineers was entirely a military corps, and bound to do no other species of duty. The 63d article of the Rules and Articles of War, established by the act of April 10, 1806 (2L. & B.’s ed.359),is as follows : — “ Art. 63. The functions of the engineers being generally confined to the most elevated branch of military science, they are not to assume nor are they subject to be ordered on any duty beyond the line of their immediate profession, except by the special order of the President of the United Statesbut they are to receive every mark of respect to which their rank in the army may entitle them respectively.” And-ihis article is quoted in the general regulations for the army issued in 1816- 1821, and 1825. In the regulations of 1825, there is the following paragraph : — Par. 888. “ The duties of the Engineer Department comprise reconnoitring and surveying for military purposes and for internal improvements, together with the collection and preservation of topographical and geographical memoirs and drawings referring to those objects ; the selection of sites.; the formation of plans and estimates ; the construction, repair, and inspection of. fortifications; and the disbursement of the sums appropriated for the fulfilment of those objects, severally, comprising those of the Military Academy•; also, the superintendence of- the execution of the acts of Congress in relation to internal improvements, by roads, canals, the' navigation of rivers, and the. repairs and improvements connected with the harbours of the United States, or the entrance into the same, which may be authorized by acts of Congress, with the execution of which the War Department may be charged” What right had the Secretary of War to change the destination of the corps, and divert it from the duties which the law had prescribed as. legitimate ? But, at all events, this regulation1 does not require their attention to be bestowed upon any other works than those ‘ ‘ with which the War Department may be charged.” (Mr. Jones here referred to such acts of Congress as charged the execution of certain specific works upon the War Department.) 2. As chief engineer, being full .colonel. By the provisions of other enactments, but particularly in those of the last branch of the 27th section of the act of 1802, last of the 63d article of war, and the general regulations of the President under them, the officer of the Corps of Engineers is subject to be ordered upon other duties, which, although not lodged in his office or line profession, are nevertheless^ like those named above, governed by the rules and articles of war. They are staff services generally, and which by law are designated, when performed by a detached officer, as extra official, and always compensated in addition, to 'line pay and emoluments. Mr^. Jones then referred to several acts of Congress, to show that where officers were detached for staff duty, they were paid in addition. But the fact that General Gratiot performed staff duties is admitted by the United States in the account. 3. Asa brigadier-general in the army. “ The chief of the Corps of Engineers shall be stationed at the seat of government, and shall direct and regulate the duties of the Corps of Engineers, and those also of such of the Topographical Engineers as may be attached to the Engineer Department, and shall also be the inspector of the Military Academy, and be charged with its correspondence.”— General Regulations of 1821, p. 165, par. 1 ; or of 1825, p. 167, par. 887. It is clear that this order or executive regulation detaches the colonel of the Corps of Engineers from the permanent head-quarters of his corps, and places him in position to command “ detachments composed of different corps,” viz. : — 1. Corps of Engineers at head-quarters. 2. Officers of the Corps of Engineers on detached service. 3. Topographical Engineers attached to the Engineer Department. 4. Cadets of artillery, cavalry, riflemen, or infantry, attached to the Military Academy by the 3d section of the act of April 29, 1812, “ making further provision for the Corps of Engineers” (3 Story, 1241, ch. 72); — and 5. Post of West Point. . Mr. Jones then went on to show that by the 61st article of the General Regulations of 1816, and the acts of 1812 and 1818, General Gratiot was entitled to the pay and emoluments of a brigadier-general in the army, as claimed in his account. The history of the case is this. On the 2d of March, 1819, the plaintiff in error, then an officer of engineers in the anpy of the United States, was ordered to Old .Point Comfort to take charge of the works there building at the two fortifications, Fortress Monroe and Fort Calhoun. On the 8th of November, 1821, the disbursing agent then at the post was removed, and the plaintiff was directed to take upon himself the disbursements of the public money, agreeably to the regulations for- the government of the Engineer Department; which he did. Oh the 1st of August, 1828., he became chief engineer, and removed to Wáshington, but continued in charge till the 30th of September, 1829. In his.final account there rendered, the entire amount of his claims which were disallowed was, for a second per diem and other items, $ 8,958*91. On the 26th of March, 1833, the plaintiff presented a new account “ as agent for fortifications at Forts Monroe and Calhoun.” In this he charged a commission of one per cent, from November, .1821, to September, 1829. On the 30th of June, 1834, Congress made an appropriation for a “ fort at Grand Terre.” The whole amount appropriated was drawn from the treasury by General Gratiot, as chief engineer, in November and December, 1835. On the 6th of October, 1836, he repaid into the treasury # 15,000 thereof, and retained # 35,000, in addition to a balance of # 8,958-91 charged against him for disbursements at Old Point Comfort, previously to the 30th of September, 1829. On the 1st of April, 1836, the pay and allowances of General Gratiot were stopped, and the amount directed to be appropriated to the extinguishment of his debt. On the 15th of December, 1838, his accounts were again adjusted, and credits allowed him which reduced the balance against him to #29,292-13. As an offset to this balance, General Gratiot, on the 11th of January, 1839, presented a new account at the treasury, in which he renewed his claim for a double per diem, and added a claim for a commission of 2-| per cent, on disbursements made by him of “ con- ■ tingencies for fortifications.” And also a claim of 37,262-44 as compensation for extra services in conducting works of civil, engineering, from his appointment in 1828 to his dismissal in 1838. In February, 1839, a suit was brought against him by the United States, in the Circuit Court of Missouri. It was tried-in April, 1840, and judgment rendered in favor of the United States for #31,056-33. On a writ of error, this court, at January term, 1841, received that decision, and, deciding several important principles in regard tp the items of the set-off, reversed the judgment, on the ground that the defendant’s evidence was excluded. At April term of the Circuit Court of Mississippi, the cause was again tried, and the district attorney admitted the credits which are specified in the statements, and the defendant exhibited a new claim of set-off. . The several items are enumerated from 1 to 15. Numbers 4, 9, 10, 12, and 13 were admitted or withdrawn, and the others were insisted. Numbers 1, 2, 3, 6, 7, and 8 arise out of transactions anterior to the plaintiff’s becoming chief engineer. a No. 14 is substantially the same, charge for extra official service which was passed on by this court, 15 Peters, as No. 3, p. 376. No. 15 is a new demand, claiming # 37,127-42 for exto official services in the daily and current business of the chief engineer in his intercourse with .the War Department, and asserts the principle, that the regulation of 1821, requiring the chief engineer to perform his functions at Washington, detached him from his regular duty, and made all his office business extraordinary service, for which he demands extra compensation. The details of this item are very minute, and the. principle on which the charge is ascertained does not appear ; if allowed, it would have more than liquidated the balance in favor of the government. In the opinion of the court in the case in 15 Peters, 373, it was deemed right, for the purpose of bringing this protracted controversy within narrower limits, upon the new trial in the Circuit Court, to state some of the views entertained by the court upon points which had been argued as fully as if the evidence had been admitted. And it was held, that by the regulations the plaintiff in error was. not entitled to a commission on disbursements, but the' per diem was in ful? of all extra compensation. That as to a charge for disbursements of contingencies of fortifications, he was at liberty to show it by evidence. That as to his charge of $ 37,262-46 fcr extra services in conducting the affairs of the civil works of internal improvement of the government, upon its face, this item has no foundation in Jaw, and therefore that the evidence which was offered in support of it, if admitted, would not have maintained it, and the ground of this opinion was, that the services alleged to be performed were the ordinary special duties appertaining to the office of chief engineer, on a review of the laws and regulations, &c. On the new trial, it appeared that, instead of contracting, the subjects of inquiry were enlarged. : But it is submitted, that the principles involved are few and simple, and have been decided by this court. The court on the trial gave the eighth :instfuction asked by the counsel of the United States, and overruled the third, fourth, and. fifth instructions moved by the counsel of the plaintiff in error. And this opinion of the court involves the important inquiry on which the case turns. The court instructed the. jury, that there was no sufficient evidence to justify them in giving the defendant the credits claimed. The inquiry was, what were the lawful duties of an officer holding his commission and receiving a salary for his services from the United States. Was this a question for the court or the jury? It is submitted, that it was peculiarly a question for the decision of the court. It cannot be determined what was extra official, without previously determining what is the official duty. And this is necessarily a question of law. It is in the nature of a quo warranto, in which the question of the sufficiency of legal authority is always decided by the court. In the case of Kendall v. Stokes, 3 How. 87, it was held that a motion to charge on the proofs was equivalent to a demurrer to the evidence, and such is the practice in Missouri. In-Toland v. Sprague, 12 Peters, 300, it was held that where the evidence was in writing it was not error for the court to cljprge the jury as to its effect. And the court clearly recognized the same principle in the case of Gratiot v. United States, 15 Peters, 376. The learned judge who delivered the opinion of the court says,— <c The court are of opinion that upon its face this item has no just foundation in law, and therefore that the evidence which was offered in support of it, if admitted, would not have maintained it. The ground of this opinion is, that upon a review of the laws and regulations of the government applicable to the subject, it is apparent that the services therein alleged to be performed were the ordinary special duties appertaining to the office of chief engineer; and such as the defendant was bound to perform as chief engineer, without any extra compensation over and above his salary and emoluments as a brigadier-general of the army of. the United States, on account of such services. In this view'of the matter, the Circuit Court acted correctly in rejecting the evidence applicable to this item.” Thus having the sanction of this court, the Circuit Court was authorized, on the second trial, in charging the jury that the written evidence adduced was not sufficient to maintain the items of his account of offset. Since the former hearing of this cause here, the case of Eliasonand the United States has been heard and decided. It is reported in 16 Peters, 291 -302, and the court there held,-that by the regulation of March 13, 1835, no extra compensation could be allowed to an officer of the army from the 3d of March ■ of that year.' Credit was disallowed to Captain Eliason under circumstances similar to those- of the plaintiff in error, and his must share the same fate. Assuming, then, as I have endeavoured to prove, that the Circuit Court did not err. in instructing the jury on the sufficiency of the evidence, did the court err as to its opinion of its legal effect ? 1. A.s to the first item, —-of two and a half per cent, commissions, for safe keeping of and responsibility for $ 19,500, from the 27th of August to 7th of September, 1821, and for $26,500, from 27th of August to 20th of September. There is no proof touching this item, except the Treasury transcript. Colonel Gratiot was the commanding officer in charge of the works at Old Point Comfort. Major Maurice was the contractor. These funds were remitted to Colonel Gratiot, and by him paid over to the contractor. There is no law, and there is no proof of usage, to sustain the charge. If he had been subjected to the trouble of disbursing it, as agent, he was entitled to no commission. 2. For disbursing contingents, from 20th of May, 1S22, to 30th of September, 1829, &c., there is no additional proof, and he has been allowed a credit ..of four dollars, per diem, which is exclusive of all extra compensation for disbursement.. 3. Same answer. 6. For collections of money made of Jacob Lewis & Co., &c. 7. “ “ “ “ Samuel Cooper. These were moneys of the United States, paid to the disbursing agent, and carried into his accounts for disbursement. He was no more entitled to commission on these receipts, than on remittances to him from the treasury. Old printed record, p. 14. 8. Major Whiting, under orders,’ sold public property and paid ■proceeds to the disbursing agent, who carried them into account to his debit. The same reason applies. These cláims have been presented for the first time since this court decided that the plaintiff in error was not entitled to commission on disbursements, with the exception of a part of that for commissions on contingencies. On the former trial, that charge was $836, now it is $2,871‘43. 14. This item is substantially the third item on which this court, at the former hearing, passed so emphatic an opinion. In amount it is somewhat larger ; but whatever change has been made in the words, the principle is the same. For services in conducting the affairs .connected with the civil works of internal improvement, and in conducting the affairs connected with the execution of the act of Congress of 1824, for taking observations, &c., he claims compensation over and above the pay and emoluments of a brigadier-general, at the rate of $3,600 per annum. The legal duties of the Engineer Corps were so fully discussed, on the former hearing, that I am unwilling to occupy .the time of the court in recapitulating them. By no act of Congress have these duties been defined. In the act of 1794, 1 L. &B.’sed, 366, no specific duties are as- • signed, but places it generally under the orders of the President. By the act of 1802, it was reorganized, “ to do such service as the President shall direct.” This general power has never been superseded. Every successive act of Congress and of the executive, and, I may add, the silence of the plaintiff in error for a long period that he was in office, show that there was never any just foundation for any su.ch implied contract as must exist to sustain the charge. The colonel of engineers was. bound to perform any military or other duty, not incompatible with the character of an officer and gentleman, that the service may require, and the President direct. The regulations of 1821 and of 1825 (see 15 Peters, 373, 374) require the chief of the Corps of Engineers to be stationed at Washington, and charges him with the superintendence of the Corps of Engineers, to which the Topographical Engineers is attached, and makes his duties comprise reconnoitring and surveying, for military purposes and for internal improvement, with formation of plans and estimates in detail for fortifications, &c. ; also the superintendence of the'-execution of acts of Congress' in relation to internal improvements, by roads, canals, the navigatjoh of rivers, and the repairs and improvements connected with the, harbours of the United States, with which the War Department may be charged by Congress, And in the case of Eliason v. The United States, 16 Peters, 302, the court hold this language: — “ Thp ¡Secretary of War is the regular constitutional organ for the adioíñistration of.the military establishment of the nation; and rules and orders publicly promulged through him must be received as the' acts of the executive, and as Such be binding on all within the sphere of his legal and constitutional authority.” “ Such regulations cannot be questioned or defied, because they may be thought unwise or mistaken.” To maintain his,offset, the plaintiff must establish a contract, express or implied, and the daily established current business of his office, performed without any claim for extra compensation by his predecessor, himself, and his successor, for more than twenty years, it is now argued, was extra official, and that the .law implies a contract to pay an extra compensation. The plaintiff has taken many depositions. They certainly establish no .usage in the Engineér Department, nor in ahy of the bureaux, as they are called, established in the. War Department for a more regular and systematic despatch of business. The President had the authority to require the services of the chief engineer at any place, and the regulation of 1821 stationed him at Washington. The nature of his duties of superintendence, and of preparing plans and estimates, in subordination to the Secretary of War, necessarily devolved on him those duties, for-which, in his fifteenth item, he has now, for the first time, asserted a claim to the amount of $37,127-42. The items, will speak for themselves. On what principle the charge is made, I am.unable to comprehend. The position is taken, that when he éntered- on the duties of the Engineer Department, at Washington, he received the pay of brigadier-general, he ceased to act as colonel of engineers, and was acting only as a brigadier-general of the army of the United States. He held the brevet rank of brigadier-general. Mr. Monroe had allowed to General Macomb, while performing the duties of chief engineer, the pay and emoluments of his brigadier’s commission. The reasons for that order are not very favorable to the position now taken. See record. - The brevet pay was allowed because he was performing the duties- of the colonel of engineers ; whenever he ceased to perform those duties, bis brevet pay ceased with it. In reference to the instances of extra pay allowed, without examining them in detail, I will remark, — 1. That the President had a discretion, by the act of , to increase rations. 2. That neither the regulation of 1835, nor the law of 1835 . or of 1838, forbid extra allowances, where an appropriation was made by Congress for the object. See the opinion of Mr. Grundy, in 1839. . 3. That for duties taking the officer from his regular place of duty, subjecting him to increased expense, allowances have been made, by express assurance at the time. See Regulations of 1818, p. 67, Record.. Thát'abuses have existed is well known; they form no basis on which the court will imply an undertaking to pay an extra compensation. These abuses produced the proviso of 1835, the act of 1838, and the stringent and conclusive act of 1842. None of the cases which have been decided by this court conflict with-the positions I have taken. In McDaniel and the United States, and in Fillebrown and the United States, there were express agreements made by the Secretary of the Navy to pay for services out of the range of their regular official duties. In Ripley v. United States, the services must be without the range of official duties. And I may, with some confidence, insist, that the court will not be inclined to relieve the plaintiff in error from the burden which the law throws- on him. His claim cannot be regarded with favor. Congress appropriated money for an important national work. It went into his hands as a public officer, charged with its application to that object. He diverted it to his own uses, on a claim which was disallowed at the treasury. Indulgence to Such a course of conduct may defeat military or naval operations of the utmost importance to the country. in reply and conclusion. The case ought to be considered as if an action had been brought by .General Gratiot for a settlement of accounts. The history of the case given by the Attorney-General might be correct, but it was not in the record, and he had forgotten to state a fact in it, which was, that when General Gratiot was dismissed, there was no ascertained balance against him. , His account had been for five years before the proper accounting officers of the government, and was then unsettled. He asked that a balance might be struck, but was refused. It seemed as if in his case the old practice had been renewed, namely, castigat audit que. Gratiot was required to pay a large sum by a certain day, and, not doing so, the harsh measure of dismissal was resorted to. Already $ 20,000 of the claim against him has been extinguished, and we hope that more will be by the event of this suit. The Attorney-General has represented the danger of large sums being .drawn from the treasury, but we ask for the establishment of no new principie. All that we claim is the impartial application of the same rule which has been extended to others. And if the apprehended danger did exist, is this the tribunal which ought to interpose to prevent it ? The answer has been already furnished by the Attorney-General, when he said that the legislature, by interfering, had put a stop to the supposed evil. This must therefore be the last case. The treasury doors are closed by legislative action, not by judicial decision. The Attorney-General has asked, if all the officers who have been brought to Washingtpn by former secretaries are to have extra pay. Whatever may be the consequence, it was not our doing, and we are not responsible. In some of the departments, when boards of commissioners were established, post-captains in the navy were placed there, and received salaries for their administrative functions. They could not be placed on courts-martial, which shows that they were detached from the performance of their regular duties in the service, and yet they have never been obliged to ask for their pay. Since the time when General Gratiot was dismissed, and even now, there are four post-captains at the head of bureaux, entirely detached from military duty. They receive the salaries fixed by law. If this course had been taken formerly, when other officers were Ílaced at the head of bureaux, there would have been no difficulty. f, therefore, the consequences apprehended by the Attorney-General should follow, it will be the government that will cause them, and they cannot be .attributed to us.. So also, the commander-in-chief of the army has been appointed a commissioner to negotiate with the Indians, and paid with extra compensation. So, also, the quartermaster-general (Jesup) has been sent to Florida in command of an army. These arguments, therefore, ought not to have any effect. This case, like all other cases, is simply a question of legal right. The Attorney-General has said that the instruction of the cpurt below amounts only to a demurrer to evidence. I am willing to regard it so, as if a motion for nonsuit had been made. But if General Gratiot had been the plaintiff, it was not a proper case for a motion for a nonsuit or a demurrer to evidence., because evidence had been given on both sides. Gratiot’s witnesses were all cross-examined by the United States, and the whole evidence was offered which had been thus taken. This is a mere question of law. The amount- is of no consequence. “ No nation was ever impoverished by liberally rewarding services.” If General Gratiot’s services were really important, and beyond the line of his official duty, it is no matter what the amount involved may be. ■ General Gratiot was .lieutenant-colonel of engineers when the colonel was promoted, and entitled to a brevet for meritorious services. He received it, bearing a character without exception, and even now there is no imputation on his personal honor and integrity. He was advised that he had rights, and asked no more than the Department had been in the habit of allowing. He presented claims for services beyond his official duty. Were they so ? That is the question which this court has to decide. They were for keeping several hundred accounts,. paying money, and other things of an administrative nature. When this case, was before the court in 1841, the following language was held, which is. found in 15 Peters, 371. “It is true that the act óf the 16th of March, 1802,” &c., &c.. “ But however-broad this enactment is in its language, it never has been supposed to authorize the President to employ’the Corps of Engineers Upon any other duty,' .except such as belongs either to military engineering or to civil engineering. It is apparent, also, from’the whole history,of..the legislation of Congress upon this subject, that, for many years after the enactment, works of internal improvement and mere civil engineering were not, ordinarily, devolved upon the Corps of Engineers. But, assuming the President possessed the fullest power, under this enactment, -from time to time to employ any officers of the corps in the business of' civil engineering, still it must be obvious, that as their pay and emoluments were, or would be., regulated with reference to their ordinary military and other duties, the power of the President to detach them upon other civil services would not preclude him .from contracting to allow such detached officers a proper compensation for any extra services. Such a contract may not only be established by proof of some positive regulation, but may also be inferred from the known practice and usage of the War Department in similar cases, acting in obedience to the presumed orders of the President,” &c., &c., &c. The Attorney-General has said that we must either admit or deny the authority of the “ Regulations,” and that we are on the horns of a dilemma. But not so. . If the President had the power to detach officers for other services thán those within the strict line of their duty, it has nothing to do with his power to contract with them for extra compensation for these services. The court said so in the former case, and-added, that they had no right to say whether the implied contract was established by evidence -or not. Why ? Because it was not a question of law, but a question of fact, for the jury. It is true that, at page 376, the court say that one of the charges “ has no just foundation in law.; and therefore, that the evidence which was offered in support of it, if admitted, would not have maintained it.” But. this is merely an obiter dictum, not a point decided ;' 'and It is not easy to see how the two' passages can be reconciled with each other. It would seem as if the court, thought that civil engineering was a part of the regular duty of the corps. This is an open question. The Attorney-General thinks that we require a reversal of- the former opinion of the court. But not so. We only wish that the same rule should be extended to us which has been extended to others. The case of The United States v. Freeman, 3 How. 556, has been referred to as expressing the opinion which we wish to reverse. But in that case, double rations were allowed under Regulation 1125, at the discretion of the President, and this was said to be done by him by authority of law; and this is just the proposition for which we now contend. It was said on the other side, that the authority of the President does not rest upon acts of Congress. I take issue upon this proposition. The Constitution says, “ Congress shall provide rules for the government of the'army and navy.” What right .has the President to do it ? The first act passed was in 1806, the 63d article of which was a prohibition against employing the Corps of Engineers' on any other duty, and the same is subsequéntly repeated.- {Mr. Coxe here went into an examination of the laws ¿nd army regulations.) Until 1824, no branch of engineering was taught except military engineering. Congress has thus exercised its constitutional power, and granted certain restricted powers to the Department. Whence does the .Attorney-General derive an unrestrained power in the President, because he. is commander-in-chief? It is true that he is so, but his orders, to be legal, must be confined to riiilitary duty. For example, he has no right to command an officer of the army to attend to his, (the President’s) private business. There is no authority, either, to order a "military man to keep accounts, or attend to administrative duties. The President has a general superintending power of seeing all laws executed, but that is altogether a distinct and separate head of authority. This is not in virtue of his being commander-in-chief of the army, but of being President of the United States. Under this, he can employ agents ; he may choose anywhere ; may select civil engineers, or officers of the army proper, to carry on diplomatic arrangements or negotiate with the Indians. But, then, is not the person so employed to be remunerated for his services ? He must be, unless some law forbids such pay, and the President has the power to contract that such pay shall be given. The only claim which the United States had upon General Gratiot was to employ him in civil engineering. The 67th article of the Regulations of 1825, paragraph 888, confines the services of the corps to such works as were authorized by Congress, and whose execution was charged upon the War Department. But many works have been attended to, which were neither specifically charged upon the War Department, nor had any natural affinity with it; such, for dxample, as dredging the Mississippi. The language of the regulation implies that the execution of these works must be charged, by Congress, upon the War Department, at the same time that the appropriation is made. If this is not the case, then their execution falls under the general power- of the President to see the laws executed, and he may employ any body ibr this purpose. The account which we have before us is for the performance of such extra official duties. Did they properly belong to the office of an engineer ? (Mr. Coxe here referred to the following works to show that they did not: — 1. Dictiónnaire de 'l’Académie Franqaise. 2.- Campbell’s Military Dictionary. 3. Dobson’s Encyclopaedia. 4. Encyclopaedia Britannica. 5. Brande’s Dictionary of Science, Literature, and Art. 6. Rees’s Cyclopaedia.) We have also the testimony of practical engineers to the same point. We have, in addition, much evidence where officers of all corps have done other duty and been compensated; and even where Congress has especially charged the execution of works upon the War Department, such as the Cumberland road, officers have béen paid extra. General Gratiot was not allowed to give evidence of his services, to establish an express or implied contract. Such-evidence was put in, and counter evidence taken, and then the whole ruled out. It is, no doubt, the duty of a court to construe written documents. But if a witness is sick and examined under a commission, does this evidence thereby change its character, and become a written document ? If the decision of the court bélow is assimilated to a demurrer to evidence, then every fact, and every inference from it, must be taken to be true. For these reasons, we think that the court below erred.