James Williams, Plaintiff In Error v. the United States, Defendants In Error

• Decision Date: 01 January 1843
• Citation: 1 How. 290,11 L.Ed. 135,42 U.S. 290
• Parties: JAMES WILLIAMS, PLAINTIFF IN ERROR, v. THE UNITED STATES, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

42 U.S. 290

1 How. 290

11 L.Ed. 135

JAMES WILLIAMS, PLAINTIFF IN ERROR, v. THE UNITED STATES, DEFENDANTS IN ERROR.

January Term, 1843

THIS case came up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

The facts were these:

On the 4th of February, 1831, Henry Ashton was appointed marshal of the District of Columbia, and on the 7th executed a bond for the faithful performance of the duties, by himself and his deputies. There were several securities, among whom was James Williams, the plaintiff in error. He remained in office until the 28th of February, 1834.

In June, 1835, the United States brought suit upon the bond, to which there was a plea of performance. The replication assigned five breaches. 1. That he had neglected to return executions issued for fines and costs. 2. That he had discharged persons committed to his custody under execution. 3. That he had not accounted for fines paid. 4. That he had not accounted

Page 291

for money advanced to him by the secretary of the Treasury under the special direction of the President of the United States; and, 5. That he had discharged persons from prison without authority of law. To this replication, there were a rejoinder and issues, and in 1839 the case was tried. The verdict of the jury was for the United States. The two bills of exception taken at the trial are set forth in the opinion of the court, and need not be repeated.

Bradley, for the plaintiff in error.

Legare, attorney-general, for the United States.

Bradley made the following points:

1. The President of the United States holds a relation toward the secretary of the Treasury different from that which he holds toward the head of any other department.

2. No money can be drawn from the Treasury but in the manner and upon the vouchers designated by law.

3. Where a special discretion is given by positive law to the President to direct money appropriated by law to be paid out of the Treasury, it must be exercised by him alone, and cannot be delegated.

4. Where money is by law to be drawn from the Treasury by a special authority, different from the usual manner, that special authority must be deposited in the Treasury Department, and form part in the settlement of the Treasury account.

5. And: The Treasury transcript is not evidence per se to charge a surety with money so paid to his principal; but must be accompanied by a copy of the voucher on which such payment was made.

To support them, he argued that the United States were bound to show the exercise of the special power vested in the President. The Treasury transcript is not conclusive evidence that the money was drawn from the Treasury legally. 5 Peters, 292; 8 Peters, 375. Evidence of the contents of the order said to have been given by the President could not be received, as there was no proof of its loss. 2 Stark. Ev. 350. Court say, in 1 Peters, 596, that proof must be given of its loss, and that it was searched for. If the money was not placed with the marshal according to law, the United States cannot recover.

As to the second exception:

The declarations of the marshal do not bind the sureties; not evidence unless in the regular course of his business, and he had nothing to do with the docket. If an endorsement be made on the writ, it is his official act, but not otherwise. 3 Bro. and Bing. 132.

The act of Maryland, February, 1777, c. 13, sec. 2, provides for the recovery of common law fines by fieri facias or ca. sa., but the act of 1797, c. 74, directs capias ad satisfaciendum to be issued for all fines. Here were fi. fa. for common law fines, which proceeding was contrary to law. The act of 1794, c. 54, provides remedies against the sheriff, and, or course, the marshal; judgment should have been entered up against him. No action on the bond until a judicial sentence of default 18 Johns. 391.

Legar e, for the United States.

If the President could not delegate this power, he could do little else but look at marshal's accounts. But this court have recognished the authority to delegate. Wilcox v. Jackson, 13 Peters; 10 Peters, 291; 1 Peters, 296.

As to the evidence: The court has allowed reasonable evidence to be given. 7 Peters, 99; 12 Peters, 3.

As to the Maryland practice:

The general rule is, that an admission of a deputy does not bind surety; but see 10 Barn. and Cres. 17, 317. In this case the party is dead, and it is his declaration against his own interest. But the acts of parties, part of the res gesta, are binding. 8 Wheat. 326; 3 Wash. C. C. R. 369. The confession of an under-sheriff evidence against the sheriff. 1 Lord Raym. 190. At common law, fi. fa. could issue for fines. 3 Coke, 12, b; 2 Just. 19. The act of Maryland was merely directory. Inventory of sheriff evidence between other parties. Buller's N. P. 249; 2 Campb. 379.

Bradley, in conclusion:

The act of 1809, c. 199, gives the President power to transfer appropriations; but no one supposes he can delegate this power to the secretary. In Kendall's case, 12 Peters, the court draw a

distinction between general and special powers. General rule is, that discretionary powers cannot be delegated.

Mr. Justice DANIEL delivered the opinion of the court.

This cause comes up on a writ of error to the Circuit Court of the United States for the District of Columbia.

The defendants in error instituted an action of debt in the Circuit Court against the plaintiff in error, as surety for Henry Ashton, deceased, late marshal of the District of Columbia, in a bond executed by Ashton, conditioned for the faithful performance of the duties of his office. On oyer of the bond, the defendant pleaded generally conditions performed by the marshal and his deputies; after this plea various breaches of the condition of the bond were specially assigned, charging the late marshal with failing to account for moneys advanced to him by the secretary of the Treasury, under special direction of the President of the United States; with not having accounted for and paid over moneys received by him and his deputies on executions, and with having failed to collect under executions which came to his hands, moneys that he ought to have collected from persons who were solvent. Issues were taken to the country upon the several breaches thus assigned, and the jury empannelled to try those issues, returned as their verdict in substance, that the said Henry Ashton, by himself and his deputies, did not well and faithfully perform and fulfil all the duties of his office of marshal of the district, in pursuance of the acts of Congress in such cases made and provided; and they found the sum of $8279 25 cents, with interest thereon from the 24th day of November, 1836, to be really and justly due to the United States on the marshal's bond. Upon this verdict the court gave a judgment for $20,000, the penalty of the bond, but to be discharged by the amount assessed by the jury, together with the costs of suit.

At the trial, and before the jurors withdrew from the bar, the defendant below tendered two bills of exceptions to the ruling of...