The United States, Plaintiffs In Error v. Kean Buchanan

• Decision Date: 01 January 1850
• Citation: 8 How. 83,12 L.Ed. 997,49 U.S. 83
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR, v. McKEAN BUCHANAN
• Court: U.S. Supreme Court

49 U.S. 83

8 How. 83

12 L.Ed. 997

THE UNITED STATES, PLAINTIFFS IN ERROR, v. McKEAN BUCHANAN.

January Term, 1850

THIS case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Pennsylvania,

having been carried there from the District Court, in which it originated.

It was a suit brought by the United States against Buchanan, who was a purser in the navy, to recover a balance of $11,535.50, alleged to be due by him. It was brought upon three several bonds, which had been executed by him on the 28th of February, 1836, the 24th of November, 1830, and the 24th of February, 1834. The defence was, that he was entitled to certain credits which the accounting officers of the government had refused to allow.

The items for which the defendant claimed credit were:——

1. Charge of commission for drawing bills of exchange $1,601.86

2. Charge of commissions on payments to mechanics and laborers at navy-yard, Pensacola 1,955.61

3. Loss of commissions and depreciation of property 9,360.31

4. Loss of commissions on sale of slops 385.52

It will be necessary to take up these several items in order, after a few general remarks.

The act of Congress passed on the 7th of February, 1815, (3 Stat. at L., 202,) directed the Board of Navy Commissioners to prepare such rules and regulations as shall be necessary for securing responsibility in the subordinate officers and agents of the navy department. In obedience to this act, the Board of Navy Commissioners prepared a set of 'Rules, Regulations, and Instructions for the Naval Service of the United States,' which were published in Washington in 1818. This is the book which is referred to, both in the subsequent arguments of counsel and opinion of the court, as the Blue Book. Its bearing upon the several claims of the defendant, Buchanan, will be mentioned when they come to be noticed seriatim.

The Red Book was published at Washington in 1832. Its title was, 'Rules of the Navy Department regulating the Civil Administration of the Navy of the United States.' The order of the then Secretary of the Navy, prefixed to the book contained the following sentence:——

'The 'Rules, Regulations, and Instructions' for the naval service, as published in 1818, relate to other branches of administration in this department, and, in most particulars, are entirely distinct in their character. They are now undergoing a thorough revision; and when corrected and enlarged, if approved by the competent authority, they will be separately printed and forwarded to those interested in their contents.'

In this Red Book, at page 49, there is the following note to chapter 57, which treats of the printed regulations of 1818:——

'Note.—Except in these two particulars, [which are mentioned in the page to which the note is attached,] and in others in which they have been expressly amended, these regulations are now in full force; their force being derived from the provisions of the act of Congress of the 7th of February, 1815, and from the sanction of the President and Secretary of the Navy, who have power to adopt any naval regulations, though not within the purview of the act of 1815, if not violating any law of Congress, and if supposed by them to be beneficial in their operation.'

We will now take up the separate credits which were claimed by the defendant.

1st. Commission for drawing bills of exchange.

There was no dispute about the amount of bills drawn. A certificate of Mr. Dayton, the Fourth Auditor, stated them to amount to $65,074.34; that they were drawn on the Secretary of the Navy, at various times from the 24th of May, 1827, to the ninth of February, 1828, by whom they were duly honored, and the amount thereof charged to Purser Buchanan on the books of the office.

In 1826, the two following orders were issued by the Secretary of the Navy, in the form of a letter of instruction to the Fourth Auditor.

'Navy Department, 9th November, 1826.

'SIR,—Instructions have been transmitted to the commanders of our several squadrons abroad, to obtain the funds required for their support from the navy agent near their respective states.

'No percentage or premium will hereafter be allowed to officers of any grade making drafts upon the department, unless they are too remote from the residence of any navy agent to procure the money.

'I am, respectfully, &c., SAMUEL L. SOUTHARD.

(Signed,)

'TOBIAS WATKINS, ESQ., Fourth Auditor of the Treasury.'

'I certify the foregoing to be a true copy of a letter from the Navy Department, on file in this office.

A. O. DAYTON.

'Treasury Department, Fourth Auditor's Office, July 5, 1844.'

'Navy Department, 10th November, 1826.

'SIR,—In reply to the inquiry contained in your letter of yesterday's date, I have to inform you that the allowance of premium or percentage, to officers drawing bills on the department

would cease from the time the officers shall severally receive instructions on the subject.

'I am respectfully, SAMUEL L. SOUTHARD.

(Signed,)

'TOBIAS WATKINS, ESQ., Fourth Auditor of Treasury.'

'I certify the foregoing to be a true copy of a letter from the Navy Department, on file in this office.

A. O. DAYTON.

'Treasury Department, Fourth Auditor's Office, July 5, 1844.'

2d. Charge of commission on payments to mechanics and laborers at the navy-yard, Pensacola. These payments were made from October, 1835, to December, 1837, and amounted to $91,015.05, on which a commission of 2 1/2 per cent. was charged.

The Blue Book, at page 100, when treating of the duties of a purser, said,—'Every purser of a yard shall settle his accounts at the treasury every twelve months,' &c., &c. But it nowhere recognized the allowance of a commission.

3d. Loss of commissions and depreciation of property.

4th. Loss of commissions on sales of slops.

These two items belong to the same head, and must be treated together.

The ship's stores under the purser's control are of two kinds, called public stores, or slops, and private stores. Both descriptions are purchased with the money of the government, but they are differently situated with respect to the commission which the purser receives upon their issue and consumption by the ship's crew. There was no dispute in this case about the first-mentioned class. The purser claimed a commission of ten per cent., which was allowed to him in the settlement of his accounts. The controversy was confined to the second class.

In May, 1839, the frigate Constitution sailed for the Pacific. She was commanded by Captain Turner, and the defendant the the purser. On board of her was Commodore Claxton, the commander of the squadron on the Pacific station. Early in the year 1840, Commodore Claxton issued an order, that, upon clothing taken from the private stores of the purser, there should not be charged a greater advance than ten per cent. The defendant remonstrated, and a long correspondence ensued; but he was compelled to submit, and during the rest of the voyage he disposed of his stores at that advance, instead of the larger premium to which he considered himself entitled. It is unnecessary to state the particulars of the claim, or the reasons on which it was founded, because the court did not consider it a proper set-off in this action, even if the allegations of the defendant had been well founded.

The suit was brought by the United States, in the District Court, in May, 1844. It was an action of debt brought upon the three bonds mentioned in the commencement of this statement. The defendant pleaded non est factum and performance, and claimed to set off the items of account above mentioned, which had been rejected by the accounting officers. Before the trial, the counsel filed the following agreement:——

'It is agreed, that, under the pleadings in this case, the question to be submitted, tried, and determined is the correctness of the credits, or any of them, claimed by the defendant in his account current with the United States under his old bond, and under the date of March 1, 1844, and which were disallowed in the reconcilement of his accounts by the Treasury Department, bearing date on the 27th of March, 1844; the said question to be considered as if arising under special pleadings in the cause. Credits claimed, if allowed, to be noted as of the date when they originated, with a view to future adjustment under his respective bonds.

H. M. WATTS, Of special Counsel for Plaintiffs.

G. M. WHARTON, For the Defendant.'

'May 16th, 1845.

The counsel for the United States then offered in evidence,——

1. The above agreement.

2. The three bonds of the defendant.

3. The treasury transcripts, which exhibited a balance due by the defendant to the United States of $11,535.50, with interest from the 1st of March, 1844.

The evidence on the part of the defendant consisted of the correspondence which had passed between himself and Commodore Claxton and others; and also testimony, oral and documentary, upon the respective binding authority of the Blue and Red Books; and also upon the custom and usage of the navy with respect to pursers' commissions. Upon the last point, the United States produced a great deal of counter evidence.

The evidence being closed on both sides, the counsel of the plaintiffs then and there respectfully prayed the court to charge the jury,——

1. That the rules, regulations, and instructions for the naval service of the United States, prepared by the Board of Naval Commissioners, and approved by the Secretary of the Navy, on the 17th of September, 1817, and particularly those under the head of 'Pursers,' Nos. 12, 13, 14, were in full force, and obligatory on defendant during the time he served as purser on the Pacific station, from 1839 to 1842, under Commodore Claxton.

2. That defendant had no right to issue slops, wearing apparel, or materials of which wearing apparel was made, at a greater profit than ten per centum.

3. That the...