Rogers v. United States

• Citation: 35 L.Ed. 853,141 U.S. 548,12 S.Ct. 91
• Parties: ROGERS v. UNITED STATES
• Decision Date: 16 November 1891
• Court: United States Supreme Court

141 U.S. 548

12 S.Ct. 91

35 L.Ed. 853

ROGERS v. UNITED STATES.

November 16, 1891.

George Bliss, for plaintiff in error.

Sol. Gen. Taft, for the United States.

Mr. Justice BLATCHFORD delivered the opinion of the court.

On the 12th of March, 1885, the United States brought an action at law in the district court of the United States for the southern district of New York against Lebbeus H. Rogers, to recover $12,000, with interest and costs, the principal sum being the amount of the penalty of a bond executed by Henry W. Howgate as principal, and Rogers and another person as sureties, on the 13th of March, 1878, which bond recited that Howgate, first lientenant of the twentieth infantry, had been 'assigned to duty as a property and disbursing officer, signal service, U. S. A.,' and was conditioned that Howgate should at all times 'during his holding and remaining in said office' cerefully discharge the duties thereof, and faithfully expend all public money, and honestly account for the same and for all public property which should or might come into his hands 'on account of signal service, U. S. army, without fraud or delay.' The complaint alleged that Howgate entered upon the duties 'of property and disbursing officer, signal service of the United States army;' that, while acting as such officer, he did not carefully discharge the duties of his office, and faithfully expend all public moneys, and honestly account for the same, and for all public property which came into his bands 'on account of the signal service, U. S. army,' without fraud or delay, in this: that on divers dates during the years 1878, 1879, and 1880, while acting as such officer, he received from the United States, on account of the signal service of the United States army, $133,255.22, which sum he did not faithfully expend, and had not accounted for. The answer of Rogers, besides denying the breaches of the bond alleged in the complaint, set up that the bond was executed, taken, and delivered without authority of law, and in violation of law. The parties filed a written stipulation, waiving the right of trial by jury, and consenting that the cause be tried by the court without a jury. It was so tried, before Judge BROWN. In April, 1887, he filed findings of fact, which stated that he had 'heard the testimony of the witnesses.' Those findings of fact were as follows '(1) That long prior to 1874 the signal corps, under the department of war, was organized, and has continued from its organization to the present time under such department. That during such time such signal corps has had property and disbursing officers. (2) That prior to 25th July, 1876, one Henry W. Howgate was a first lieutenant of the twentieth infantry of the United States army, attached to the signal corps. (3) That on the 25th July, 1876, said Howgate, by a special order, as follows: 'War Department, Office of the Chief Signal Officer, Washington, D. C., July 25, 1876. Special Orders, No. 115. 2. First Lieutenant H. W. Howgate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, is hereby assigned to duty as property and disbursing officer at this office, together with such other duties as may be assigned to him. 3. First Lieutenant Henry Jackson, 7th cavalry, acting signal officer and assistant, is hereby relieved from duty as property and disbursing officer at this office, and will turn over all government property and funds pertaining to this office, for which he is responsible, to First Lieutenant H. W. Howgate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, who will receive and receipt for the same. By order of the chief signal officer of the army. GARRICK MALLERY, Captain 1st Infly, Bvt. Lieut. Col. U. S. A., Acting Signal Officer and Assistant,'—was assigned to duty as property and disbursing officer in the office of the chief signal officer, and he voluntarily accepted such assignment, and entered upon the duties thereof. (4) That in March, 1878, said Howgate, as principal, and the defendant, as one of the sureties, executed and delivered the bond mentioned in, and a copy of which is annexed to, the complaint in this action.' The fifth finding set forth in haec verba the condition of the bond. '(6) That said Henry W. Howgate, twentieth infantry, while acting as property and disbursing officer, signal service, U. S. army, did not carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account for the same and for all public property which came into his hands, but did fraudulently, and with intent to defraud the plaintiffs, embezzle the sum of $133,255.22. (7) That the said Howgate is indebted to the United States of America for moneys received as property and disbursing officer, signal service, U. S. army, between the 1st day of April, 1878, and the 31st day of September, 1881, in the sum of $133,255.22. (8) That such bond was made, executed, delivered, and given by said Howgate and the defendant and the other surety voluntarily. (9) That there is now due on said bond the sum of $12,000, with interest from 31st March, 1885; making in all $13,476.' The court found the following conclusions of law: '(1) That the office of property and disbursing officer, signal service, U. S. army, is one created and duly authorized by law; (2) that the duties assigned to such officer are duly authorized by law; (3) that duties covered by the bond in this action are authorized by law; (4) that the bond in the complaint mentioned is a legal, valid obligation, (5) that the plaintiff is entitled to judgment against the defendant for the sum of $12,000, with interest from March 31, 1885, amounting in all to $13,476, for which sum judgment is ordered, with costs.' Thereupon a judgment was entered in the district court in favor of the United States against Rogers for $13,476 damages and $30.87 costs.

A bill of exceptions was filed in the district court, which states that the plaintiffs put in evidence the order set forth in the third finding of fact, and also the bond, which is set forth in full, and a stipulation in writing, whereby the defendant admitted that Howgate, 'while acting as property and disbursing officer, signal service, U. S. army, did not carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account for the same, and for all public property which came into his hands, but did fraudulently, and with intent to defraud the plaintiffs, embezzle the sum of $133,255.22,' and that he was indebted to the United States in that sum. The bill of exceptions also states that the plaintiffs put in evidence certain orders of the war department, which are set forth, and that it was admitted that Howgate was an officer of the regular army of the United States. It then sets forth that. the evidence of the plaintiffs being closed, the defendant's counsel, without offering any testimony, moved the court to direct a verdict for the defendant, on the ground that, as a matter of law, no action could be maintained by the plaintiffs upon the bond proved; that the court refused to grant that motion, and the defendant excepted to such refusal; and that he also excepted to the decision and finding of the court in favor of the plaintiffs. The opinion of the district judge is reported in 28 Fed. Rep. 607. It states that the only defense was that the bond was not given voluntarily, and that the office was not one created or authorized by statute; that, as Howgate was not bound, as an officer of the army, to accept the appointment of property and disbursing officer in the signal corps and to give the bond, his assignment to duty, in the order of July 25, 1876, must be deemed to have been an assignment upon his own application, or upon his acquiescence; that a failure to give a bond could not have subjected him to discipline or loss of rank in the army; that the bond must, therefore, be deemed to have been given voluntarily by him and his sureties; and that, the office and the...