Charles Gratiot v. United States

• Decision Date: 01 January 1841
• Citation: 15 Pet. 336,40 U.S. 336,10 L.Ed. 759
• Parties: CHARLES GRATIOT, Plaintiff in error, v. UNITED STATES, Defendants in error
• Court: U.S. Supreme Court

40 U.S. 336

15 Pet. 336

10 L.Ed. 759

CHARLES GRATIOT, Plaintiff in error, v. UNITED STATES, Defendants in error.

January Term, 1841

ERROR to the Circuit Court of Missouri. An action was instituted in the circuit court of the United States for the district of Missouri, by the United States against

Charles Gratiot, late chief engineer, to recover a sum of money alleged to have been received by him, 'as chief engineer,' to the use of the United States. The defendant pleaded non assumpsit, and a set-off; and the jury found a verdict for the plaintiff for $31,056.93, under the charge of the court. The defendant tendered four bills of exception, and prosecuted this writ of error—a judgment having been given by the court for the amount of the verdict.

The plea of set-off was as follows: The defendant says, the United States ought not to have and maintain the action against him, because, at the commencement of the suit, and still, the United States were and are indebted to him a large sum of money, exceeding the amount claimed by them, for work, labor, care, diligence and responsibility by him, before the commencement of the suit, done and performed, in and about the affairs of the plaintiff, at the request of the United States, and for performing the duties of agent for fortification at Fortress Monroe and Fort Calhoun, two fortifications of the United States, for ten years; and for disbursing and expending in the construction of the fortifications to the amount of $3,000,000; and for receiving and disbursing a large sum of money in and about the repairs and contingencies of fortifications; and for work and labor, care, diligence, skill and responsibility, done and incurred about the civil works of internal improvement of the United States, not pertaining to his ordinary and regular duties as chief engineer of the United States.

The evidence offered to the jury by the plaintiffs, was two documents, purporting to be 'transcripts of the treasury,' and duly certified, the last of which exhibited a balance charged against the defendant, of $29,292.13. This transcript also contained a statement of the claims of the defendant against the United States, which had been presented to the treasury, and disallowed. Among the claims so presented, and in part disallowed, were the following:

For disbursing $603,727.42, on account of Fort Calhoun, from

the 13th November 1821, to 30th September 1829, being 2879

days, at $2 per day, being less than two and a half

per cent. on the amount disbursed, as allowed by the [*339

regulations of the army, to a officer disbursing at a

fortification, ....................................$5758

For disbursing $848,718.80, on account of Fort Monroe, during

the same period, 2879 days, at $2 per day, ........ 5758

-------

$11,516

For disbursing $33,447.26, on account of contingencies of

fortifications at 2 1/2 per cent., as authorized by

regulations above referred to, .................... 836 18

This sum for extra services, in conducting the affairs

connected with the civil works of internal improvements

carried on by the United States, and referred to the

engineer department for execution, and which did not

constitute any part of his duties as a military officer,

from the 1st day of August 1828, to the 6th day of

December 1838, inclusive, ten years and one hundred and

twenty-eight days, at $3600 per annum, that being the pay

granted to John S. Sullivan, David Shriver, James Geddes

and Nathan S. Roberts, Esq'rs., civil engineers, employed

under the act of 30th April 1824, entitled, "an act to

procure the necessary surveys, plans, and estimates upon

the subject of roads and canals."..................$37,262 46

The said transcripts showed, that of the first two items of claim above mentioned, the sum of $5758 was disallowed by said accounting officers, and that the like sum of $5758 was allowed to said defendant, for the said disbursements, at the rate of one dollar per day, for each of said forts, Monroe and Calhoun, for the time specified in the defendant's claim.

After the plaintiffs had closed their evidence, the defendant (relying on the plaintiff's evidence to show the claims he had presented to the treasury department, as matters of set-off, and which had been disallowed by said department, so as to let in his evidence as to the pay) was proceeding to offer evidence in support of the claims presented and disallowed, as above specified, when the district-attorney, on the part of the plaintiffs, moved the court to exclude all evidence which the defendant might offer in support of the items of claim above specified and disallowed; which motion was by the court sustained: and the court refused to permit the defendant to give any evidence in support of the disallowed items of claim above specified. The defendant excepted.

The transcripts also showed the objections, by the auditor, to the charge of $37,262.46; they were:—'This is a new claim, now for the first time presented by General Gratiot. Lieutenant-Colonel Gratiot of the corps of engineers, was made a full colonel on the 24th May 1828, and on the 30th of July 1828, assumed his station, as chief of the corps of engineers, at the seat of government, as required by the general regulations of the army, of 1825. Art. 67, par. 887, directs, 'that 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.' 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,' &c. 'Also the superintendence of the execution of the acts of congress in relation to internal improvements, by roads and canals, the navigation of rivers, and the repairs and improvements connected with the harbors of the United States, or to the entrance into the same, which may be authorized by acts of congress, with the execution of which the war department may be charged.' By these regulations, it is made the express duty of the chief of the corps of engineers to superintend the execution of the acts of congress in relation to all works of internal improvement, and it does not appear in these or any subsequent regulations, or in any of the acts of congress authorizing works of internal improvement that any extra allowance was ever made, or contemplated to be made, to the chief of the corps of engineers, for extra services, nor can the services here charged for be deemed extra, when, by the regulations in force, before and at the time of his assuming the duties of his office, were in part the very duties he was, by his appointment, directed to perform; and further, on the 26th March 1829, Col. Gratiot received a brevet of brigadier-general, to take effect from the day that he received his promotion as colonel, on the 24th May 1828, and with it all the pay and emoluments of a brigadier-general, besides double rations allowed to him, in consequence of his promotion and residence at the seat of government. The brevet rank was unquestionably conferred upon Gen. Gratiot, in consequence of his new command as chief of the corps of engineers, to whom was confided the superintendence of all works of internal improvement, as appears by the regulation before mentioned; and in that way was he compensated for all the duties he was required to perform. On the 30th June 1831, the secretary of war established a separate bureau for the topographical department, and directed a transfer from the office of the chief engineer, of the correspondence connected with the topographical department, to that bureau; thus relieving the chief of the engineer department from the direction and superintendence of all that portion of duty which, by the regulations of 1825, above recited, he was charged with.

'The cases cited by Gen. Gratiot, of pay granted to John S. Sullivan, David Shriver, James Geddes and Nathan S. Roberts, civil engineers, are by no means analogous to his claim; they were civil engineers, appointed by the secretary of war, in virtue of an act of congress, and charged with the performance of certain specific duties, and for which they were paid, out of an appropriation for that purpose, a compensation fixed by the secretary of war; they held no military rank, nor received compensation from the government, in any other capacity, or for any other service. Not so with Gen. Gratiot: he was an officer of the army, exercising a position as chief of the corps of engineers, and in virtue of which had received the brevet rank of brigadier-general, and the pay and emoluments of his brevet, beside double rations. It is fair to presume, that the brevet was conferred, in part, in consequence of the increased number of persons and the importance of the works under his charge, produced in a great measure by the appointment of civil engineers and their attendants; besides, the act of the 3d March 1835, expressly prohibits any extra allowance whatsoever, to any officer of the army. See act entitled 'an act moking additional appro priations for the Delaware breakwater, and for certain harbors, and removing obstructions in and at the mouths of certain rivers, for the year 1835."

The defendant's second bill of exceptions was to the refusal of the court to charge the jury, that the United States were not entitled to recover in the action, for any public money received by the defendant, in any other capacity or office, than that of 'chief engineer;' and secondly, that three items in one of the treasury transcripts, charged against the defendant, as 'General Charles Gratiot,' were not evidence of...