Philip Minis v. United States

• Decision Date: 01 January 1841
• Citation: 40 U.S. 423,15 Pet. 423,10 L.Ed. 791
• Parties: PHILIP MINIS, Plaintiff in error, v. UNITED STATES, Defendants in error
• Court: U.S. Supreme Court

40 U.S. 423

15 Pet. 423

10 L.Ed. 791

PHILIP MINIS, Plaintiff in error, v. UNITED STATES, Defendants in error.

January Term, 1841

ERROR to the Circuit Court of Georgia. The United States, at August term 1838, presented a petition to the district judge of the district court of the district of Georgia, stating that Philip Minis was indebted to the United States in the sum of $13,589.05, exclusive of interest, for money lent, money paid by the United States for the use of the defendant, and for money had and received and found due by him to the United States.

The claim of the United States was on a treasury transcript, duly certified, of the account of the United States with the defendant, Philip Minis, surgeon and military-district agent, dated January 15th, 1838, showing the amount claimed to be due by him to the United States. Against this demand, the defendant claimed certain allowances which had been submitted to the treasury, among which was a charge of two and one-half per cent. commissions for disbursing $514,237.61, the same sum having been paid by him as the agent of the United States for removing and subsisting the Cherokee Indians. This was disallowed at the treasury of the United States, under the act of 3d of March 1835, which prohibits the allowance of any per cent. or additional pay in any form, on account of disbursing any public money, unless authorized by law.

On the trial of the cause, the counsel for the defendant prayed the court to give the following instructions to the jury.

1. That the clause in the act of congress of the 3d March 1835, and which is relied upon as the authority by which the defendant's claim for commissions was rejected, does not apply to defendant's case; because it expressly refers to moneys appropriated during that session of congress; and therefore, the second auditor erred in disallowing the charge for commissions.

2. That Dr. Minis was entitled to the commissions charged by him, as well from the long-established practice of the government, as from the law of the land; there being no law, prior to the 3d March 1839, disallowing commissions on moneys disbursed for the government.

3. That the charge for commissions should be allowed, because the charge is made for the disbursement of moneys appropriated during the session of 1836 and 1837, and therefore, neither the act of 1835 nor of 1839 is applicable.

4. That the amount of West's account should have been allowed as a credit to Dr. Minis, because the same was paid in good faith by him; and that the United States should not discredit the act of their own agent.

5. That as Dr. Minis's duty was to pay money upon the requisitions of the superintendent and commissioners, he was fully authorized to pay West's account to any one who had possession of the account thus passed and certified to by the superintendent; and that this case was still stronger, because John W. West was the acknowledged attorney of Jacob West, and had before received money from Doctor Minis, as disbursing agent.

Which instructions the court refused to give, but instructed the jury, 'that in the relation which the defendant had stood to the United States, as an officer in the army, he had no claim by law for commissions on the sum disbursed by him, whatever interpretation might be given to the concluding proviso of the act of the 3d March 1835; and admitting that such proviso was limited to a probibition of per cent., additional pay, extra allowance or compensation, on account of dirbursing any public money appropriated by law during the session of congress when the act was passed containing the proviso, that said proviso could not be interpreted to give commissions or per cent. upon disbursements of antecedent or subsequent appropriations of money by congress, unless the same were authorized by law; and that no law authorized the defendant to charge commissions; and therefore, that the second auditor had not erred in disallowing commissions to the defendant. The defendant excepted to the opinion of the court; and a verdict and judgment having been rendered for the United States, the defendant prosecuted this writ of error.

The case was presented by Coxe and Jones, for the plaintiff in error, on a written argument; and was argued at the bar, by Gilpin, Attorney-General, for the United States.

Coxe and Jones, for the plaintiff in error.—This action was originally instituted in the district court, where issued was joined; and in August 1839, on the application of the attorney for the United States, it was suggested, that the district judge, having been of counsel for defendant, it was ordered, that such fact be entered on the records of the court, and than an authenticated copy of the same, with all the proceedings in the action, be certified to the circuit court. Whether this was done, does not appear; or whether there was any action, or order in the circuit court, assuming jurisdiction; but the next proceeding is in the circuit court, viz., the swearing of the jury.

The account filed with the declaration exhibits the items in controversy. Among the items, is one for commissions of two and a half per cent., for disbursing the sum of $514,237.61, which was claimed by the plaintiff in error, and disallowed by the auditor, under a construction given by him to the act of 3d March 1835. The record is very imperfectly prepared. It is, however, understood, that the treasury account was the only evidence given by the plaintiffs in the circuit court, and that the real question in contest, was the propriety of the claim for the commissions charged. The auditor places his rejection of the claim upon the single ground that the act of 1836 prohibits such allowance.

The learned judge who tried the case puts it on the more general ground, that, whatever interpretation might be given to that act, yet it was clear, that it could not be construed to give commissions, &c., upon disbursements, and that there was no law authorizing the defendants to charge commissions; and therefore, that the auditor had not erred in disallowing them. The conclusion, therefore, to which the court arrived was, that the judgment of the auditor was right.

The facts of the case are very imperfectly stated in the record but the learned judge who tried the case, and the attorney-general will be able to correct any error in the statement, which, in general, will be found corroborated by the record. The plaintiff in error was a surgeon in the army of the United States, and as such was directed to aid in the removing of the Cherokee Indians from their country to the new country assigned them beyond the Mississippi. While thus engaged, he was called upon, by the government, to disburse, in the years 1836 and 1837, large sums of money in fulfilling the stipulations of the treaty of New Echota, of the 29th of December 1835. This duty he faithfully performed, from the 15th of October 1836, till the 25th of July 1837. These facts appear from the government accounts. The same accounts show, that the amount was $514,317.61, less the balance of $15,536.11, say, $498,781.43.

It is obvious, that this duty was foreign to his duty as surgeon in the army, and if any question of fact be raised upon the evidence, as exhibited on the record, it may be remarked, that all the facts upon which the allowance is claimed are clearly set forth, while the fact of his being a surgeon is only matter of inference. That he disbursed the money is shown; that he was at the time, an officer in the service of the government, is not distinctly apparent anywhere; although it would be conceded, that such was the case, provided the government will, on its part, concede the other facts which constitute the foundation of the claim, and the truth of which may be verified by the public records.

Upon this state of the law, these questions arise: 1. Whether the act of congress of the 3d of March 1835, applies to this case, and forbids the allowance? 2. Whether, independently of that statute, such a claim can be allowed?

I. The proviso attached to the act of March 3d, 1835, c. 303 (9 Laws U. S. 207-8), declared, that 'no officer of the army shall receive any per cent., extra allowance, or compensation, in any form whatever, on account of the disbursing any public money appropriated by law, during the present session,' &c.

1. It may be remarked, in regard to this act, that the money disbursed by Dr. Minis, cannot, with propriety, be termed public money. It did not belong to the United States, nor was the service one rendered to the government. It was part of the fund stipulated by treaty to the paid to the Cherokee Indians, for the cession of their territory, by the treaty of 1835. The disbursement was made on account of the Cherokees, and with all other expenses attending the removal of the Indians, was to be charged to that fund. It is, therefore, analogous to a case in which a public officer has rendered a service to a third party, not necessarily connected with his public duty, as salvage by an officer of the government; can the payment for this service be rejected, beeause of the office the individual held? See the case of The Tigre, decided by Judge Washington. 3 W. C. C. 567.

2. This proviso was well considered, in the case of the United States v. Gratiot. The terms of the act, by their own force, are limited to appropriations made during the then session of congress.

II. Whether, upon general principles, independent of the act of 1835, can such allowance be made? This question may also be regarded as comprehended in the argument of Gratiot's Case. There are, however, some points of distinction. In that case, it was urged on behalf of the government, that the services for which compensation was asked, were not extra, but strictly within the line of official duty. Upon this ground, the various cases in which compensation was made for services rendered in relation to Indian matters, were distinguished from the...