United States v. George Macdaniel

• Decision Date: 01 January 1833
• Citation: 8 L.Ed. 587,7 Pet. 1,32 U.S. 1
• Parties: UNITED STATES, Plaintiffs in error, v. GEORGE MACDANIEL
• Court: U.S. Supreme Court

32 U.S. 1

7 Pet. 1

8 L.Ed. 587

UNITED STATES, Plaintiffs in error, v. GEORGE MACDANIEL.

January Term, 1833

[Syllabus from pages 1-3 intentionally omitted]

ERROR to the Circuit Court of the district of Columbia, and county of Washington. This section was brought on the 14th of August 1829, in the circuit court, by the United States, to recover from the defendant the sum of $988.94, alleged to have been found due on a settlement of his accounts by the accounting officers of the treasury department. The case was tried in May 1831, and a verdict and judgment rendered for the defendant; to reverse which judgment, the United States prosecuted this writ of error.

Before the verdict was given, the district-attorney of the

United States filed the following bill of exceptions. After stating that the United States gave in evidence an account against the defendant, settled at the treasury, upon which they claimed from the defendant a balance of $988.94, with interest from August 3d, 1829, the bill of exceptions proceeded:

'The defendant then examined a witness, to prove that the said defendant was a clerk in the navy department, at an annual salary of $1400, and while he was so acting, he was engaged and acted as the agent for the payment of the money due to the navy pensioners, the privateer pensioners, and acted also as a special agent for the navy disbursements; and the moneys which were applied to the use of those objects were placed in his hands by the government, to be disbursed by him. That he was allowed for his services in the payment of pensions, the annual sum of $250; but he has no knowledge that any annual sum was ever allowed him for his services as a special agent for the navy disbursements. The witness stated, that he was also a clerk in the navy department, and was in the habit of stating the defendant's accounts as special agent; and he knows that a commission of one per cent. was always allowed him, to his knowledge, for ten or fifteen years past, until the settlement of the present account, upon his disbursements as special agent for the navy disbursements. The witness further stated, that the services of this special agent, in these disbursements, were similar to those performed by other navy-agents, such as the navy-agent of Boston, &c. That they amounted, during the period that he acted as agent as aforesaid, to from fifty to one hundred thousand dollars a year; that the defendant gave no bond or security, to his knowledge, for the performance of these duties.

'The defendant then gave in evidence to the jury, the certificate of B. W. Crowninshield, then secretary of the navy, of the 3d May 1817, and his account against the United States, allowed by Smith Thompson, then secretary of the navy.

'Navy Department, May 3, 1817.

'George Macdaniel, as agent of the navy pension fund, upon

all expenditures by him heretofore made, is entitled to the same commissions as have been allowed to other agents.

'B. W. CROWNINSHIELD,

'Secretary of the Navy.'

'The navy pension fund to George Macdaniel: For compensation as clerk of the navy pension accounts, from the 1st of July to the 31st of December 1818, inclusive, at the rate of two hundred and fifty dollars per annum

$125.00.

'Respectfully submitted—G. MACDANIEL.'

'Upon which account are the following endorsements: 'To be allowed,'

'SMITH THOMPSON.

'Received payments in account—G. MACDANIEL.

'The defendant set up against the claim made against him by the United States, in this case, a charge for a commission of one per cent., as special agent of the navy department, on the expenditure of $11,789.20, amounting to $117.89, and a like commission of $692.30, upon the expenditure of $69,229.92, which commissions had been disallowed by the navy department, and if now disallowed upon this trial, would leave the defendant indebted to the United States in the sum of $810.19, exclusive of the other items of claim made against him in this case. The witness who gave testimony for the defendant, proved, that the services performed by the defendant, as special agent as aforesaid, were performed during office-hours, and occupied from one-third to one-fourth of his time.

'The defendant further proved, that witness had had occasion in the discharge of his duties in the fourth auditor's office, to examine the accounts of defendant, and reported the accounts in question; that the same commission was claimed by defendant in these accounts, as had been charged and allowed in all his previous accounts, so far as witness had examined them; that

the service had then been rendered, and the moneys disbursed, when the exception was taken; that witness knows that the accounts of public disbursements, including all these allowances of commissions upon disbursements, are annually submitted to congress, and inspected by a committee specially appointed for that purpose; that said committee attends at the different offices, where the books are open for their inspection; that the accounts embracing defendant's claims and allowances are regularly so submitted and inspected, and that no objection, as witness has ever heard, was taken by any committee, or any individual, to such allowances, until defendant's final account, after leaving office, was settled by the fourth auditor. Defendant promptly paid over all the moneys in his hands, when the amount was adjusted, reserving only the sums claimed by him, which appear in the accounts exhibited; and if they are allowed him, he has no public money in his hands. Defendant further offered in evidence a report from the secretary of the treasury to congress, 1st March 1831. Doc. 126, H. R. 21st Cong. 2d Sess.

'Upon the evidence so given to the jury, the counsel for the United States prayed the court to instruct the jury, that if they should believe the same to be true, that still the defendant had no right, by law, to the commissions which he claims in this case, and that, as the sum so charged as aforesaid, as commissions, had never been allowed to him, by any department of the government, it was not competent for the jury to allow them upon this trial. Which instruction the court refused to give; to which refusal the United States, by their attorney, excepted.'

The account exhibited on the trial by the district-attorney of the United States, by which the balance alleged to be due was shown, was as follows:

To balance due the United States per his account current,

rendered on the 5th June 1829, $688 33

This sum disallowed, as per reconciling statement of his

navy expenditure account herewith, 228 14

Commission on $69,229.92, paid over to the treasurer of the

United States, at one per cent. as debited in his account

as late special agent of the navy department, marked A.

Recorded on the 5th June 1829. Not allowed, 692 32 Compensation as agent for paying pensions from the 1st of

March to the 31st of May 1829. Not allowed, 62 50

Error in statement No. 141 (previous report), in payments

of Fall's pension, 6 00

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$1677 29

By this sum deposited to the credit of the treasurer of the

United States, the 3rd of August 1829, 688 33

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Balance due the United States, by statement examined by

comptroller, 12th of August 1829, $988 96

THOMAS H. GILLIES, Act. 4th Aud.

The case was argued by Taney, Attorney-General, for the United States, and by Coxe and Jones, for the defendant.

THOMAS H. GILLIES, Act. 4th Aud.

For the United States, it was contended, that the defendant was not entitled to the commissions claimed by him and mentioned in the bill of exceptions. The attorney-general stated, that the question presented in the case was, whether the defendant was entitled to commissions on payments made by him for navy purposes? The navy-agents, although not established by any particular law, have been recognised in various acts of congress. Their duties are well known and ascertained. There are navy-agents at each navy yard, and there are navy-agents who are not permanent. There is also an agent at the navy department to settle accounts not properly belonging to other navy-agents. Mr. Macdaniel was employed as the permanent navy-agent at Washington; and also as the special agent of the department. A reference to the accounts in the record will show, that he made payments for sloops of war, ship-houses, and for the marine corps. In making these payments, he performed duties which properly belonged to permanent navy-agents, and for which they were entitled to be paid.

The question then is, whether he is entitled to commissions on the disbursements of money, which properly belonged to the duties of other agents?

By the act of congress of 27th March 1804 (2 U. S. Stat. 297), the commandant of the navy yard at Washington was required to perform all the duties which have been performed by the defendant in error. This continued to be the law until July 10th, 1832, when congress passed an act repealing the provisions assigning the duties of navy-agents to the commandant of the navy yard, and authorizing the appointment of a permanent navy-agent. The act of 1809 (2 U. S. Stat. 536), did not embrace the navy yard at Washington.

Capt. Tingey was, for many years, the commandant of that navy yard; but he did none of the duties assigned to him by the act of 1804; those duties were performed by the defendant. The case then was that of an officer of the United States, on whom duties were specially imposed, omitting to comply with them, and those duties executed by another person, who had no authority under any law to perform them. All the allowances, therefore, made to him for commissions on disbursements, as all his disbursements were such as ought to have been made by the commandant of the navy yard, were in violation of the act of 1804. These allowances have been made by a mistake of the law, and cannot be set off. Can the head of the navy department, by allowing payments not authorized by law, or by one...