The United States, Plaintiffs In Error v. Catesby Ap Roger Jones

• Decision Date: 01 December 1855
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR, v. CATESBY AP. ROGER JONES
• Court: U.S. Supreme Court

59 U.S. 92

18 How. 92

15 L.Ed. 274

THE UNITED STATES, PLAINTIFFS IN ERROR, v. CATESBY AP. ROGER JONES.

December Term, 1855

THIS case was brought 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 are stated in the opinion of the court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Carlisle, and Mr. Jones, for the defendant.

Mr. Cushing's points were:——

1. The expenses incurred by Lieutenant Jones while in France, on leave of absence, were not chargeable to the United States. The act of 3d March, 1835, (4 Stats. at Large, 755, 757,) fixed the annual compensation of officers, and prohibited all other allowances. When absent on leave, the government is not bound to provide medical attendance.

2. The secretary of the treasury was not authorized to advance the money in question to Lieutenant Jones.

The act of January 31, 1823, (3 Stats. at Large, 723,) only allows advances to officers employed on distant stations. This was when they received emoluments, which were cut off by the act of 1835.

3. The accounting officers are not bound to allow, in a settlement of an account with an officer, a credit for money unlawfully received or expended, without authority of law.

The act of 3d March, 1849, (9 Stats. at Large, 419,) applies to pursers and storekeepers only, and the disbursement must be made in pursuance of an order from an officer in command. The opinions of the following attorneys-general, do not apply to the case. Mr. Berrien, Parker's case, 1 Opinions Attorney-General, 679; Mr. Taney, Thorp's case, 1 Opinions Attorney-General, 785; Mr. Butler, Parker's case, 1 Opinions Attorney-General, 913; Mr. Johnson, (Miami claim,) Lassell's case, 2 Opinions Attorney-General, 1998; Mr. Crittenden, commissioner of customs, November 13, 1852, MS.

4. Money belonging to the government, which has been wrongfully received, can be recovered back in an action at law.

5. The President is not authorized to expend marine hospital money in a foreign country.

The counsel for defendant in error, contended that the above opinions of attorneys-general were applicable, and

1. That the payment of the medical attendance of an officer is not such an allowance to the officer, as was contemplated in the prohibition of the act of 1835.

2. That the act of 1823, provides 'that the President of the United States may direct such advances as he may deem necessary and proper, to such persons in the military and naval service as may be employed on distant stations, where the discharge of the pay and emoluments to which they may be entitled, cannot be regularly effected.' Medical attendance is one of these emoluments.

3. Under the acts (1 Stats. at Large, 606, c. 77, § 3; Ib. 729, c. 36, §§ 2 and 3) providing for hospital money, the President is authorized to provide for sick and disabled officers in such manner as to direct, in ports where no United States hospitals exist. The order of the navy department was conclusive on the fourth auditor.

4. The act of 1849 (9 Stats. at Large, 419, Res. 17, § 2,) requires the disbursement to be allowed and the commanding officer to be held responsible. In this case, it would be the President.

5. Money paid under such circumstances with a full knowledge of the facts, cannot be recovered back. 2 East, 469; 4 Dallas, 109; Starkie's Ev. pt. 4, p. 112.

Mr. Justice GRIER delivered the opinion of the court.

The action in this case is for money had and received by the defendant, Jones. It was entered amicably, and submitted on a case stated.

The defendant is a lieutenant in the navy of the United States. In December, 1851, he was in Paris, on leave of absence, and was severely and dangerously wounded by accident, during the emeute or revolutionary outbreak in that month. In July, 1852, he was placed by the secretary of the navy on special duty, for the collection of information relative to the steam navy of France. Afterwards, in August, 1852, the sum of one thousand dollars was transmitted to him by the secretary of the navy, with orders to apply it 'to discharge the expenses attending the injuries received by him in Paris.' It is admitted that this money was disbursed according to the orders of the secretary. The accounting officers of the treasury have charged the amount so disbursed by the defendant against him on his pay account, 'and have refused to recognize the authority of the secretary of the navy in the premises.'

The reason alleged for this refusal by the accounting officer is, that by his construction of the second section of the act of 3d of March, 1835, c. 27, the secretary of the navy had no authority to make such appropriation of the funds of the government in his hands. The act, so far as it is material, is in these words: 'That the yearly allowance provided in this act is all the pay, compensation, and allowance which shall be received under any circumstances whatever by any such officer, &c.'

Notwithstanding an opinion of a late attorney-general to the contrary, the accounting officer 'entertains no doubt' that the expenses attending the medical treatment of a sick and disabled officer or seaman are among the 'allowances' prohibited by this act, and has consequently felt bound to repudiate the secretary's construction of the law, and his opinion as to the powers and duties of his department.

For the purposes of this case, however, it will not be necessary for the court to decide between these discordant opinions as to what things come within the category of 'allowances,' according to the true intent and meaning of the act of congress.

It is the peculiar province and duty of the navy department to provide medical stores and attendance for the officers and seamen attached to that service. It may truly be said, also, to enter into the contract of the government with persons so employed by them. For this purpose, a bureau of medicine is attached to this department, and numerous medical officers appointed. The law, moreover, exacts from every officer and seaman a monthly contribution from their wages to make provision for the sick and disabled. These contributions are applied, under the supervision of the President, to the erection and maintenance of marine hospitals, and similar institutions for the benefit of seamen.

The exigencies of the service often require the employment of soldiers and sailors at a distance from public hospitals, and when the attendance of the medical officers cannot be obtained; or, consequently, in fulfilment of the humane policy of the government, it frequently becomes necessary to employ temporarily physicians not regularly commissioned. For in this way alone can the department perform the duty assumed by the government of providing the necessary medical attendance for those who become sick or disabled in its service. The executive department of the government, to which is intrusted the control of the subject-matter, must necessarily determine all questions appertaining to the employment and payment of such temporary agents, and the exigency which demands their employment. The secretary of the navy represents the President, and exercises his power on the subject confided to his department. He is responsible to the people and the law for any abuse of the powers intrusted to him. His acts and decisions, on subjects submitted to his jurisdiction and control by the constitution and laws, do not require the approval of any officer of another department to make them valid and conclusive. 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 the heads of departments.

In the case before us, the defendant has not come...