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1865, to March 15, 1866, have this day been examined in this office and passed, there being no difference.' Upon the receipt of this letter, the defendant wrote to the secretary, communicating to him the contents of the letter received from the commissioner of customs, and stating that he had presented to Mr. Parker written answer to the military charges, and that Mr. Parker expressed himself entirely satisfied, and that he would so report to the secretary; and requested an instruction to Mr. Draper, at New York, to pay him his commissions allowed under the regulations on the sales of such cotton as Mr. Draper had received of his collecting, when the secretary should receive a report from Mr. Parker. To this the secretary replied under the same date, March 15, 1866, as follows: I have received your letter of this date, advising me that the commissioner of customs had favorably reported on your property account, and that your explanation of charges made by certain military officers against you has shown them to be without substantial foundation, and asking me to instruct the cotton agent at New York to pay you the commissions allowed by the regulations of August the 18th last, on the sales of such property of your collection as he has received. It affords me great pleasure to receive so gratifying a statement in regard to your affairs, and I have accordingly this day instructed the commissioner of customs to issue a requisition for your per diem compensation, at the rate of $6 per day, from the date of your appointment, and for such mileage as you may be entitled to at the rate of ten cents per mile. At present no payments on account of commissions or percentage are made to any of the agents of the department, and I deem it inexpedient to make an exception to this rule in any case till sufficient time has elapsed to enable me to examine and understand the whole matter connected with the collection and forwarding of government cotton. Just now my time is too much occupied with other matters of vital importance to afford me an opportunity to give your case that consideration which justice to yourself, no less than to the department, requires.' On the same day, the secretary, by letter, instructed the cominissioner of customs as follows: The compensation of Harrison Johnston, assistant special agent to this department, whose appointment is dated May 8, 1865, has been fixed at $6 per day, with an allowance to cover traveling expenses of 10 cents per mile for all distances actually traveled by him, and commissions on the cotton collected by him at the same rate as is allowed to other assistant agents, in accordance with general letter of instructions dated August 18, 1865. You are accordingly hereby authorized to issue a requisition in the usual form for his per diem allowance at that rate to date, and for such mileage as he may be entitled to. For the present no payments on commissions or percentage account are made to any agents.' On the sixteenth March, 1866, the defendant was directed by the secretary to answer certain charges made in letters received by the department from General Agent Mellen, to which the defendant replied in a letter to the secretary on the same day, containing the following passage: I had the honor on yesterday to request you to instruct Mr. Draper to pay me my commissions, basing that request on the assurance that my answers to all charges were satisfactory, and my property account correct, not knowing then of these letters from Mr. Mellen. I now beg leave to withdraw the request until you are fully satisfied of my every official act.' No further direct action was taken by the secretary with reference to these charges of General Agent Mellen, or the defendant's reply thereto.

"On the sixth September, 1866, the defendant wrote to the secretary of the treasury: If there are no longer any reasons for withholding the commissions due me from the sale of cotton collected by me and forwarded to Mr. Draper, I will thank you for an order upon Mr. Draper to pay over to me commissions due me under regulations of August 18, 1865.' To which the secretary replied on the seventeenth September, 1866: The numerous undecided claims upon the cotton collected by you make it inexpedient to award you at

present the promised commissions on the net proceeds of sale of the amount of your collections.' On the eighth January, 1867, the secretary wrote the commissioner of customs as follows: Hereafter, in the adjustment of accounts of agents of the department who have been engaged in the collection of captured and abandoned property, you will make no requisition in favor of any of them for any balance that may be found due until the details of such account have been referred to me, and you have received further instructions relative thereto.' On the ninth March, 1867, the secretary wrote to the commissioner of customs as follows: As the various supervising and assistant special agents lately in office are claiming the amounts to which they deem themselves entitled as commissions on the proceeds of property collected by them under my general letter of instructions of August 18, 1865, you will please report to me the names of those whose property accounts, as well as money accounts, have been satisfactorily adjusted. To which the commissioner replied, on the twelfth March, as follows; In reply to your inquiry of the ninth inst., received this A. M., asking for the names of those agents whose property accounts have been examined and adjusted, I have to report that up to the present only money accounts have been adjusted.' On the thirteenth March, 1867, the secretary wrote to the commissioner of customs as follows: Referring to your reply of yesterday to my inquiry of the ninth inst. relative to the property accounts of supervising and assistant special agents, I now request that you will transmit them to the first auditor for immediate examination and adjustment.' On the fourth June, 1867, the defendant wrote the secretary as follows: I desire to be informed whether all claims for proceeds of cotton from my district have been adjusted, and whether there is any further objection to the payment of my commissions as assistant special agent of the treasury department.' To which, on the twelfth June, 1867, the assistant secretary of the treasury replied: The secretary directs me to say that nothing can be done in the matter until the accounts of the New York agency, and the various property accounts of the supervising special agents, are collected and settled, which he has ordered to be done as speedily as practicable.'

"On the fifteenth of January, 1868, the secretary wrote to the commissioner of customs as follows: You are hereby authorized and instructed to issue a requisition on F. E. Spinner, treasurer, and U. S. special agent, in favor of Harrison Johnston, late assistant special agent, for the sum of $26,785.90, being the balance in full found due to him for commissions on the net proceeds of cotton collected by him, and sold in New York on government account, in accordance with my letter of August 18, 1865. The total amount earned by him under that letter is $31,785.90, on which he has had previously an advance of $5,000. The present requisition is for the balance. This requisition followed an adjustment of the balance at that sum communicated to the secretary by the commissioner of customs in a letter dated January 15, 1868, and requesting a remittance to cover the same, and this amount was thereupon paid to Mr. Johnston.'

"On the sixteenth of August, 1868, the first auditor addressed to the commissioner of customs a letter containing a detailed statement of the defendant's property account, stating that he had examined and adjusted the same, charging him with 30,610 bales collected, and crediting him with the cotton shipped to Draper, paid to contractors in kind, and various other items of credit, as in the previous account rendered by the defendant, and passed by the commissioner of customs, and included the following credits: "By cotton sold to pay expenses,

55 bales.

428 bales.'

Do. do. and proceeds paid military officers for protecting cotton from being burned and stolen by raiders, "At the foot of this account so stated the commissioner added: "Admitted and certified. N. SARGENT, Commissioner of Customs.'

"On the twenty-seventh of February, 1869, the commissioner of customs wrote the defendant as follows: Your account as assistant special agent of the treasury department at Columbus, Mississippi, on account of captured and abandoned property, for cotton received and disposed of, has been adjusted and closed on the books of the department.""

Asst. Atty. Gen. Marvey, for plaintiff in error. B. H. Briston and David Willcox, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of tlie court.

By the act of March 13, 1863, providing for the collection of abandoned property, it was made lawful for the secretary of the treasury, as from time to time he should see fit, to appoint a special agent or agents to receive and collect all abandoned or captured property-other than property used, or intended to be used, for carrying on war against the United States-in any portion of any state or territory designated as in insurrection against the lawful government of the United States by the president's proclamation of July 1, 1862. The second section provided that "any part of the goods or property received or collected by such agent or agents may be appropriated to public use on due appraisement and certificate thereof, or forwarded to any place of sale within the loyal states as the public interests may require; and all sales of such property shall be at auction to the highest bidder, and the proceeds thereof shall be paid into the treasury of the United States." Id. The third section directed the secretary to cause a book or books of account to be kept, showing from whom such property was received, the cost of transportation, and the proceeds of the sale thereof. The owner was given the right, within a prescribed period, to prefer his claims to the proceeds in the court of claims, and on proof of his right to the same, and that he had not given any aid or comfort to the Rebellion, "to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expenses of transportation and sale of said property, and any other lawful expenses attending the disposition thereof." 12 St. 820. But the act of July 2, 1864, greatly enlarged the powers of the secretary of the treasury in reference to captured and abandoned property. The first section authorized sales of such property, under the act of 1863, to be made "at such places, in states declared in insurrection, as may be designated by the secretary of the treasury, as well as at other places" authorized by the original act. 13 St. 375. In addition to the property to be received, collected, and disposed of as provided in the act of 1863, the agents, approved by the secretary, were required to take charge of and lease the abandoned lands, houses, and tenements within the districts therein named, and provide, in such leases or otherwise, for the employment and general welfare of all persons, within the lines of national military occupation in the insurrectionary states, formerly held as slaves, who are or shall become free. Section 2. It was also provided that all moneys arising from the leasing of abandoned lands, houses, and tenements, or from sales of captured and abandoned property, collected and sold in pursuance of the act of 1863 or of the act of 1864, "shall, after satisfying therefrom all proper and necessary expenses, to be approved by the secretary of the treasury, be paid into the treasury of the United States; and all accounts of moneys received or expended in connection there with shall be audited by the proper accounting officers of the treasury." Section 3. By the eleventh section of the same act, it is provided that "the secretary of the treasury, with the approval of the president, shall make such rules and regulations as are necessary to secure the proper and economical execution of the provisions of this act, and shall defray all expenses of such execution from the proceeds of fees imposed by said rules and regulations, of sales of captured and abandoned property, and of sales hereinbefore authorized."

It is quite clear that, while the approval of the president was made essential to the validity of all rules and regulations in relation to captured and abandoned property, the entire administration of the system devised by congress for the collection of such property within the insurrectionary districts, and its sale thereafter, was committed to the secretary of the treasury. Upon him alone was imposed the responsibility, in the first instance, of making rules and regulations for the "proper and economical execution" of the statutes in question, through agents whom he should designate. Congress was aware of the unsettled condition of that part of the country dominated by the military power of the insurrectionary government, and recognized the necessity of investing some one officer with full authority to decide what expenses were fairly chargeable against the proceeds of captured and abandoned property. Such authority was conferred upon the secretary of the treasury, subject to no other restriction than that the expenses charged upon the proceeds of sales be "proper and necessary," and be approved by him. But no rule was prescribed for his guidance in determining what expenses were to be regarded as of that character; for the reason, perhaps, that, as each collection and sale of captured and abandoned property must depend upon its special circumstances, it was not practicable to establish a rule that would control every case. As no expenses could be charged against the proceeds of any sale except upon the approval of the secretary of the treasury, and as his discretion must have been exercised with reference to the special facts of each case, his approval of an account of expenses in relation to the collection and sale of any particular lot of captured and abandoned property should be deemed conclusive evidence that such expenses were proper and necessary, unless it appeared that the allowance of such expenses was procured by fraud, or that the expenses were incurred in violation of some positive statute, or of public policy. It is impossible to suppose that congress intended that every such account, after being approved by the secretary, should be subject to review by some subordinate officer of the treasury, or even by the courts, and to be disallowed, merely because in the judgment of that officer, or of the courts, such expenses should not have been incurred.

It is, however, contended that the words in the third section of the act of 1864, "all accounts of moneys received or expended in connection there with shall be audited by the proper accounting officers of the treasury," negative the supposition that those officers cannot disallow expenses incurred in the collection and sale of captured and abandoned property which the secretary may have approved as proper and necessary. By "proper accounting officers of the treasury," in that statute, it is contended is meant the first auditor and the first comptroller. It is consequently argued that the settlement upon which the defendant relies constitutes no obstacle to the examination of the items of his accounts. The act of March 3, 1817, c. 45, § 2, (3 St. 366,) provides that "all claims and demands whatever by the United States, or against them, and all accounts whatever in which the United States are concerned, either as debtors or creditors, shall be settled and adjusted in the department of the treasury." By the same act, it was made one of the duties of the first comptroller to examine all accounts settled by the first auditor, and certify the balances arising thereon to the register. And among the duties of the first auditor is that of receiving and examining all accounts accruing in the treasury department, certifying the balance due on such accounts, and transmitting the same, with the vouchers and certificates, to the first comptroller for his decision thereon. These provisions have been preserved, and constitute sections 236, 269, 277, Rev. St. It is contended, in behalf of the defendant, that the accounts which the third section of the act of 1864 required to be "audited by the proper accounting officers of the treasury" were strictly money accounts, as distinguished from property accounts; whereas the accounts of the defendant, in respect of the 483 bales of cotton in question, belong, it is

insisted, to the latter class. The referee, in his opinion, says: "What took place in this case was this: The defendant, having finished the work of his agency, was called upon by the secretary of the treasury to settle his property accounts. The defendant presented himself at the treasury department, appeared before the officers designated by the secretary for the purpose of adjusting accounts of that character, and put in a claim to be credited with the 483 bales in question. As to this he claimed that he had expended on behalf of the government, and as necessary disbursements in the execution of the duties of his agency, a sum considerably exceeding the value of the 483 bales for which he acknowledged himself liable to account. It would have been competent and proper for the secretary or the accounting officer to have treated this claim for disbursements as a money account, which would then, according to the routine of the office at that time, have gone to the first auditor for examination. That this was not done is, however, at most, an irregularity. The secretary had authority and jurisdiction, however, to settle and adjust the defendant's property account, and this he did, making this offset or allowance. He thereby necessarily passed and approved the expenses in question, both as to their nature as necessary and proper, and as to their amount; and by the statute this question was confided to his exclusive determination. Upon the basis of this adjustment of the property account, the defendant's account for commissions was duly adjusted and paid by order of the secretary. In fact, the department twice thus acted on the basis of the adjustment of the defendant's property account."

While there is much force in this view of the case we do not deem it necessary to decide whether the accounts of defendant, in respect to the 483 bales of cotton, were required by the statute of 1864 to be audited by the first auditor, and transmitted to the first comptroller for his decision thereon. If the act of 1864 should be held to have required this, it would not follow that those officers could have disregarded the action of the secretary of the treasury in allowing the expenses in question. In auditing those accounts, they would have been bound to regard such action of the secretary as final. What was said in U. S. v. Jones, 18 How. 96, may be repeated here, as applicable to accounts which have been finally acted upon by a head of department, invested with authority in the premises. There the question was as to the right of accounting officers to review the action of the secretary of the navy in approving certain disbursements made by an officer of the navy in conformity with the orders of the secretary. This court said: "The accounting officers of the treasury have not the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of heads of departments." See McKnight v. U. S., 13 Ct. Cl. 298, 309.

But, waiving any decision as to the power of accounting officers under the act of 1864, it is sufficient for this case to say that the secretary of the treasury proceeded upon the ground that the defendant's accounts in reference to this cotton were property accounts, the settlement of which belonged to him exclusively, and that such settlement could be made by him personally, or through such of his subordinates as he might designate for that purpose. In Rice v. U. S., 21 Ct. Cl. 419, it was said by RICHARDSON, C. J., who was entirely familiar with the mode of conducting business in the treasury department, that "while Mr. Chase was secretary of the treasury, and for some time afterwards, the money received from captured and abandoned property was merely deposited with the treasurer, and was not technically, in departmental language, covered into the treasury;' and so, according to the construction then given by the department, was not subject to the constitutional provision that no money shall be drawn from the treasury but in consequence of appropriations made by law.' Const. art. 1, § 9, par. 6. More than two and a half millions of it was paid out by Secretaries Chase, Fessenden, and McCulloch (Hodges' Case, 18 Ct. Cl. 704) without any appropriations therefor,

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