Gratiot v. United States, 40 U.S. 336 (1841)

U.S. Supreme Court

Gratiot v. United States, 40 U.S. 15 Pet. 336 336 (1841) Gratiot v. United States

40 U.S. (15 Pet.) 336

ERROR TO THE CIRCUIT

COURT OF MISSOURI

Page 40 U. S. 337

An action was instituted in the Circuit Court of the United States for the District of Missouri by the United States against

Page 40 U. S. 338

Charles Gratiot, late Chief Engineer, to recover a sum of money alleged to have been received by him, "as Chief Engineer," to the use of the United States. The defendant pleaded nonassumpsit, and a setoff, and the jury found a verdict for the plaintiff for $31,056.93 under the charge of the court. The defendant tendered four bills of exception and prosecuted this writ of error, a judgment having been given by the court for the amount of the verdict.

The plea of setoff was as follows:

The defendant says the United States ought not to have and maintain the action against him, because, at the commencement of the suit, and still, the United States were and are indebted to him a large sum of money, exceeding the amount claimed by them, for work, labor, care, diligence and responsibility by him, before the commencement of the suit, done and performed, in and about the affairs of the plaintiff, at the request of the United States, and for performing the duties of agent for fortification at Fortress Monroe and Fort Calhoun, two fortifications of the United States, for ten years, and for disbursing and expending in the construction of the fortifications to the amount of $3,000,000, and for receiving and disbursing a large sum of money in and about the repairs and contingencies of fortifications, and for work and labor, care, diligence, skill and responsibility, done and incurred about the civil works of internal improvement of the United States not pertaining to his ordinary and regular duties as Chief Engineer of the United States.

The evidence offered to the jury by the plaintiffs was two documents, purporting to be "transcripts of the Treasury," and duly certified, the last of which exhibited a balance charged against the defendant, of $29,292.13. This transcript also contained a statement of the claims of the defendant against the United States, which had been presented to the Treasury and disallowed. Among the claims so presented, and in part disallowed, were the following:

Page 40 U. S. 339

For disbursing $603,727.42 on account of Fort Calhoun

from 13 November, 1821, to 30 September, 1829,

being 2,879 days at $2 per day, being less than two

and a half percent on the amount disbursed, as

allowed by the regulations of the army, to a officer

disbursing at a fortification . . . . . . . . . . . $ 5,758

For disbursing $848,718.80 on account of Fort Monroe

during the same period, 2879 days, at $2 per day . . 5,758

-------

$11,516

For disbursing $33,447.26, on account of contingencies

of fortifications at 2 1/2 percent, as authorized by

regulations above referred to . . . . . . . . . . . . 836.18

This sum for extra services, in conducting the affairs

connected with the civil works of internal improve-

ments carried on by the United States, and referred

to the Engineer Department for execution, and which

did not constitute any part of his duties as a

military officer, from 1 August, 1828, to 6 December

1838, inclusive, ten years and one hundred and

twenty-eight days at $3,600 per annum, that being

the pay granted to John S. Sullivan, David Shriver,

James Geddes, and Nathan S. Roberts, Esq'rs, civil

engineers, employed under the Act of 30 April 1824,

entitled, "an act to procure the necessary surveys,

plans, and estimates upon the subject of roads

and canals" . . . . . . . . . . . . . . . . . . . . $ 37,262.46

The said transcripts showed that of the first two items of claim above mentioned, the sum of $5,758 was disallowed by said accounting officers, and that the like sum of $5,758 was allowed to said defendant for the said disbursements at the rate of one dollar per day for each of said forts, Monroe and Calhoun, for the time specified in the defendant's claim.

After the plaintiffs had closed their evidence, the defendant (relying on the plaintiff's evidence to show the claims he had presented to the Treasury Department, as matters of setoff, and which had been disallowed by said department, so as to let in his evidence as to the pay) was proceeding to offer evidence in

Page 40 U. S. 340

support of the claims presented and disallowed, as above specified, when the district attorney, on the part of the plaintiffs, moved the court to exclude all evidence which the defendant might offer in support of the items of claim above specified and disallowed, which motion was by the court sustained, and the court refused to permit the defendant to give any evidence in support of the disallowed items of claim above specified. The defendant excepted.

The transcripts also showed the objections by the auditor to the charge of $37,262.46; they were:

"This is a new claim, now for the first time presented by General Gratiot. Lieutenant-Colonel Gratiot of the Corps of Engineers, was made a full colonel on 24 May, 1828, and on 30 July, 1828, assumed his station as Chief of the Corps of Engineers, at the seat of government, as required by the General Regulations of the Army of 1825. Art. 67, par. 887, directs"

"That the Chief of the Corps of Engineers shall be stationed at the seat of government, and shall direct and regulate the duties of the Corps of Engineers, and those also of such of the topographical engineers as may be attached to the Engineer Department, and shall also be the inspector of the Military Academy, and be charged with its correspondence."

"The duties of the Engineer Department comprise reconnoitering and surveying for military purposes and for internal improvements, together with the collection and preservation of topographical and geographical memoirs and drawings referring to those objects. . . . Also the superintendence of the execution of the acts of Congress in relation to internal improvements by roads and canals, the navigation of rivers, and the repairs and improvements connected with the harbors of the United States or to the entrance into the same which may be authorized by acts of Congress, with the execution of which the War Department may be charged."

By these regulations, it is made the express duty of the Chief of the Corps of Engineers to superintend the execution of the acts of Congress in relation to all works of internal improvement, and it does not appear in these or any subsequent regulations or in any of the acts of Congress authorizing works of internal improvement

Page 40 U. S. 341

that any extra allowance was ever made, or contemplated to be made, to the Chief of the Corps of Engineers for extra services, nor can the services here charged for be deemed extra when, by the regulations in force before and at the time of his assuming the duties of his office were in part the very duties he was by his appointment directed to perform, and further, on 26 March, 1829, Col. Gratiot received a brevet of brigadier-general, to take effect from the day that he received his promotion as colonel on 24 May, 1828, and with it all the pay and emoluments of a brigadier-general, besides double rations allowed to him, in consequence of his promotion and residence at the seat of government. The brevet rank was unquestionably conferred upon Gen. Gratiot in consequence of his new command as Chief of the Corps of Engineers, to whom was confided the superintendence of all works of internal improvement, as appears by the regulation before mentioned, and in that way was he compensated for all the duties he was required to perform. On 30 June, 1831, the Secretary of War established a separate bureau for the topographical department, and directed a transfer from the office of the Chief Engineer of the correspondence connected with the topographical department to that bureau, thus relieving the Chief of the Engineer Department from the direction and superintendence of all that portion of duty which, by the regulations of 1825, above recited, he was charged with.

"The cases cited by Gen. Gratiot, of pay granted to John S. Sullivan, David Shriver, James Geddes and Nathan S. Roberts, civil engineers, are by no means analogous to his claim; they were civil engineers, appointed by the Secretary of War in virtue of an act of Congress and charged with the performance of certain specific duties, and for which they were paid, out of an appropriation for that purpose, a compensation fixed by the Secretary of War; they held no military rank, nor received compensation from the government in any other capacity or for any other service. Not so with Gen. Gratiot. He was an officer of the army, exercising a position as Chief of the Corps of Engineers, and in virtue of which had received the brevet rank of brigadier-general, and the pay and emoluments of his brevet, beside double rations. It is fair to presume that the brevet was conferred in part in consequence of the increased number of

Page 40 U. S. 342

persons and the importance of the works under his charge, produced in a great measure by the appointment of civil engineers and their attendants; besides, the Act of 3 March, 1835, expressly prohibits any extra allowance whatsoever to any officer of the army. See act entitled"

"an act making additional appropriations for the Delaware breakwater and for certain harbors and removing obstructions in and at the mouths of certain rivers for the year 1835."

The defendant's second bill of exceptions was to the refusal of the court to charge the jury that the United States were not entitled to recover in the action for any public money received by the defendant in any other capacity or office than that of "Chief Engineer," and secondly that three items in one of the Treasury transcripts, charged against the defendant as "General Charles Gratiot" were not evidence of money had and received by the defendant to the use of the plaintiff.

The court refused the instructions, being of opinion

"that the defendant is charged by the declaration, with moneys received by him, while acting in the capacity of Chief Engineer, but the United States has not introduced any evidence, save the two Treasury transcripts, to sustain the declaration. By these it appears that the sums claimed of the defendant were placed in his hands as Chief Engineer in 1835, to be expended in works at Grand Terre, in Louisiana, about $30,000 of which had been retained. The balance due from the defendant when he was appointed Chief Engineer was carried to his account at and after that date, and became part thereof, and was afterwards extinguished, and he fully credited -- that is, in 1838. The

Page 40 U. S. 343

instruction asked was therefore refused because there was no subject matter growing out of the plaintiff's evidence to which the instruction could apply if given."

The defendant's third bill of exceptions was to the refusal of the court to allow evidence offered by him to be given to the jury, being the depositions of witnesses, with the documents annexed to the same respectively (which depositions, and documents are hereinafter set out), for the purpose of proving, that he had rendered services to the United States over and above the ordinary and regular duties of his office, and the value of such extra services, and the established usage and practice of the government, in allowing to engineers, and other officers, their claims for extra compensation for like services, to the reading of which in evidence the district attorney, on behalf of the United States, objected, alleging that the same was incompetent and irrelevant, and waived all objection to the regularity of the taking of said testimony, the same having been taken by the consent of parties and it being admitted by the defendant that the services rendered by him for the United States, which he intended to prove by said depositions and documents, and for which he claimed extra compensation, were the same services for which he claimed an allowance, by the accounting officers of the Treasury Department, which claims had been presented and disallowed, as appears by the Treasury transcripts given in evidence by the plaintiff, and made part of the first bill of exceptions. Which objection, so made by the district attorney, was sustained by the court.

The defendant's fourth bill of exceptions was that the defendant moved the court to instruct the jury:

"1 and 2. That the Treasury transcripts given in evidence, were defective and illegal, and did not prove the plaintiff's demand, as stated in the declaration, and put in issue."

"3. That the items charged against the defendant as Chief Engineer, in the Treasury transcript, marked A, which had been given in evidence and stated as follows (which see in said transcript): "

"1829, Aug. 18. To balance on settlement, No. 8879, on account of fortifications, $8,086.61."

"On account of repairs and contingencies, 11,522.44. "

Page 40 U. S. 344

"Aug. 22. To balance on settlement, No. 8903, on account of Fort Calhoun, 42,751.13."

"On account of Fort Monroe, 2,604.12, being charges in gross, without the items, going to show said balances were not competent evidence of charge the defendant in this action"

"4. That the plaintiff could not recover in this action against the defendant, in any character or office, other than that of Chief Engineer."

"5. That the defendant was not chargeable in this action with any public moneys received by him in any other capacity than as Chief Engineer, and the accounting officers of the Treasury Department ought not to blend in the same account charges against him as Chief Engineer, and as an engineer officer superintending the construction of Forts Monroe and Calhoun, and that the said accounting officers had no legal right, without the consent of the defendant first had, to extinguish the balance reported against him in the account now before the jury on account of his superintendency of the construction of said Forts Monroe and Calhoun by setting off against that reported balance, the amount due to the defendant for his pay and emoluments as a general of the army, and while he was Chief Engineer, the payment of which pay and emoluments had been stopped, but that he had now the right to claim it as a credit upon, or setoff against the claim preferred against him as Chief Engineer if it appeared on the Treasury transcript aforesaid, before the jury, that the pay and emoluments aforesaid had been allowed or credited to him by the accounting officers of the Treasury, but never actually paid to him."

The court refused to give the first, third and fifth instructions as moved for; gave the second instruction as moved, and also gave the fourth instruction, with a qualification in the following words in writing:

"Given, with this explanation, that it appears from the account A, that the indebtment the defendant is charged with, is for moneys received by him as Chief Engineer."

The defendant excepted.

Page 40 U. S. 368

STORY, JUSTICE, delivered the opinion of the Court.

This is the case of a writ of error to the Circuit Court of the District of Missouri. The original action was assumpsit, brought by the United States against General Gratiot, the plaintiff in error, as Chief Engineer, for $50,000 alleged in the declaration to be money had and received by him as Chief Engineer, to the use of the United States. At the trial, the controversy turned mainly as to the merits of three items of setoff, or credit, which were claimed by the defendant, in the reduction or extinguishment of the supposed debt due to the United States. These items were as follows:

1. For disbursing $603,727.42, on account of Fort Calhoun, from 13 November, 1821, to 30 September, 1829, being 2879 days, at $2 per day, being less than two and a half percent on the amount disbursed, as allowed by the regulations of the army to an officer disbursing at a fortification, $5,758.00.

2. For disbursing $33,447.36 on account of contingencies of fortifications, at 2 1/2 percent, as authorized by the regulations above referred to, 816.18.

3. For extra services in conducting the affairs connected with the civil works of internal improvement carried on by the United States, and referred to the Engineer Department for execution, and which did not constitute any part of his duties as a military officer from the 1 August, 1828, to 6 December, 1838, inclusive, ten years and one hundred and twenty-eight days, at 3,600 dollars per annum, 37,262.46.

These items had all been disallowed by the Treasury Department for reasons stated by the proper accounting officers, and spread upon the record, and were insisted upon as just and proper allowances by the defendant.

The jury at the trial found a verdict for the United States, upon which judgment was entered, and from that judgment the present writ of error has been brought to this Court.

Four several bills of exception were taken at the trial on

Page 40 U. S. 369

behalf of the defendant. The first was taken to the refusal of the court to allow any evidence to be given in support of either of these items of claim. The third was to a like refusal of the court to allow certain depositions and documents, offered by the defendant, to be given in evidence, to prove that he had rendered services to the United States over and above the ordinary and regular duties of his office, and the value of such services, and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for like services. The second and fourth exceptions proceeded upon minor points in the case. The second asked the instruction of the court that the United States was not entitled to recover for any public money received by the defendant in any other capacity or office than that of Chief Engineer, and that certain requisitions, stated in the exception, on account of Fort Grand Terre, and Fort Columbus, and Castle Williams, and the Fort at Throg's Neck, were not evidence of money had and received by the defendant to the use of the United States.

The court refused these instructions because there was no subject matter growing out of the evidence for the United States to which the instructions could apply, if given, inasmuch as it appeared from the Treasury transcript given in evidence that the balance sued for was of sums placed in the hands of the defendant, as Chief Engineer, in 1835, to be expended on the works at Grand Terre, and therefore, in effect, the money sued for was received by him in his capacity of engineer. We are of opinion that these instructions were rightly refused by the court for the reasons given by the circuit court and for the additional reason that the first was afterwards virtually given upon the prayer of the defendant on the fourth exception, so far as it was applicable to the case, and the second asked the opinion of the court upon a matter of fact proper for the cognizance of the jury.

The fourth exception, so far as it has not been already disposed of, asked the court to instruct the jury that the items charged against the defendant, as Chief Engineer, in the Treasury transcript, marked A, which was given in evidence, consisting of certain balances charged in gross, without the items going to show the said balances, were not competent evidence to charge

Page 40 U. S. 370

the defendant in the action. This instruction the court refused to give, and in our judgment, rightly, for taking the whole transcript together and examining its details as a mere matter of account, it is plain that all the items on which these balances are struck are there to be found regularly entered and brought forward. The supposed objection, then, which was stated by this Court in the case of United States v. Jones, 8 Pet. 375, 33 U. S. 383, as to mere naked balances on the transcript, did not apply.

There is another instruction asked under this exception, in a complicated form, but which mainly turns upon the consideration whether the Treasury Department had a right to deduct the pay and emoluments of the defendant, as a general of the army, and while he was Chief Engineer, by setting them off against the balance reported against him, on account of his superintendency of Forts Monroe and Calhoun. In our judgment, the point involves no serious difficulty. The United States possesses the general right to apply all sums due for such pay and emoluments to the extinguishment of any balances due to them by the defendant, on any other account, whether owed by him as a private individual or as Chief Engineer. It is but the exercise of the common right, which belongs to every creditor, to apply the unappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him.

Having disposed of these minor points, we now come to those arising under the first and third exceptions, and which constitute the only real difficulty in the case.

The first exception, under which the court excluded all evidence in support of the three items of credit disallowed by the Treasury Department, is certainly well founded, unless it is clear, in point of law, that neither of these items constituted a legal or equitable claim against the United States. It is wholly immaterial whether the claim be a legal or an equitable claim, as in either view, under the act of 1797, ch. 74, as was decided by this Court in the case of United States v. Wilkins, 6 Wheat. 135, it constitutes a good ground of setoff or deduction. It is not sufficient to establish that these items ought to be rejected that there is no positive law which expressly provides for or fixes such allowances. There are many authorities conferred on the different

Page 40 U. S. 371

departments of the government which, for their due execution, require services and duties to be performed which are not strictly appertaining to or devolved upon any particular officers or which require agencies of a special discretionary nature. In such cases, the department charged with the execution of the particular authority, business, or duty has always been deemed incidentally to possess the right to employ the proper persons to perform the same as the appropriate means to carry into effect the required end, and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. This doctrine is not new in this Court, but it was fully expounded in the cases of United States v. Macdaniel, 7 Pet. 1; United States v. Ripley, 7 Pet. 18; and United States v. Fillebrown, 7 Pet. 28.

To sustain the refusal of the court in the present case, it is therefore indispensable to show that there is some law which positively prohibits, or by just implication denies any allowance of the disputed items or of any part thereof. We know of no law which has such an effect or which contains any such prohibition or denial. It is true that the Act of 16 March. 1802, ch. 9, which provided for the organization and establishment of the Corps of Engineers, in one of its sections (§ 27) declares

"That the said corps, when so organized, shall be stationed at West Point, in the State of New York, and shall constitute a Military Academy, and the engineers, assistant engineers, and cadets of the said corps shall be subject at all times to do duty in such places and on such service as the President of the United States shall direct."

But however broad this enactment is in its language, it never has been supposed to authorize the President to employ the Corps of Engineers upon any other duty except such as belongs either to military engineering or to civil engineering. It is apparent also from the whole history of the legislation of Congress on this subject that for many years after the enactment, works of internal improvement and mere civil engineering were not ordinarily devolved upon the Corps of Engineers. But assuming the President possessed the fullest power under this enactment from time to time to employ any officers of the corps in the business of civil engineering, still it must be obvious that as their pay and emoluments were or

Page 40 U. S. 372

would be regulated with reference to their ordinary military and other duties, the power of the President to detach them upon other civil services would not preclude him from contracting to allow such detached officers a proper compensation for any extra services. Such a contract may not only be established by proof of some positive regulation, but may also be inferred from the known practice and usage of the War Department in similar cases, acting in obedience to the presumed orders of the President.

Now it is perfectly consistent with the record in this case that the defendant might have offered direct or presumptive evidence of such a contract, either express or implied, from the practice and usage of the War Department applicable to the very services stated in some, at least, of the disallowed items. We do not say that he could in point of fact have established any such contract or any legal or equitable right to such allowances. That is a point on which we have no right to pass judgment, since he was stopped from offering any proof whatsoever at the very threshold of the inquiry. In short, unless some law could be shown establishing clearly and unequivocally the illegality of each of these items -- which, as we have said, has not been shown -- the refusal of the court to admit the evidence cannot be supported, and we are therefore of opinion that this exception was well taken, and that there was error in the refusal of the circuit court.

The third exception opens this matter still more fully and exactly, for there the defendant offered certain depositions and documents as proofs to establish that he had rendered services over and above the regular duties of his office, and the value of such extra services, and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for the like services. This evidence the court also rejected, as the record asserts, as incompetent and irrelevant, but undoubtedly upon the more broad ground, on which the evidence offered under the first exception, was rejected, that the claims had no just foundation in law. That the evidence so offered would in point of fact have maintained the asserted statements we have no right absolutely to affirm. That it was competent and relevant for the purpose for which it was offered and proper for the consideration of the jury

Page 40 U. S. 373

as conducing to the establishment of the facts has not been denied at the argument, and indeed seems not to admit of any well founded doubt. A very elaborate examination and analysis of this evidence and of its supposed bearing and agency on the merits of each of the claims has been gone into at the bar, but in the view which we take of the case, it is matter of fact belonging in a great measure, if not altogether, to the consideration of the jury, and with which, as a court of error, we are not at liberty to intermeddle. Without, therefore, taking up more time upon this point, it is only necessary for us to say that for the reasons already stated, we are of opinion there was error also in the circuit court in excluding the depositions and documents so offered from the jury.

But as the merits of these claims have been fully argued before us upon several points of law as well as upon certain admitted conclusions of fact as if the evidence had been admitted, and both parties desire our opinion in respect to the matters of law connected with these facts, we have deemed it right, for the purpose of bringing this protracted controversy within narrower limits upon the new trial in the circuit court, to state some of the views now entertained by the Court upon these points.

1. As to the first item. It purports to be founded on certain regulations of the army which are spread over the record and which received the sanction of the President in 1821 and 1825. The 67th article of the regulations of 1821 provides as follows:

"1. The Chief of the Corps of Engineers shall be stationed at the seat of government, and shall be charged with the superintendence of the Corps of Engineers, to which that of the topographical engineers is attached; he shall also be inspector of the Military Academy, and be charged with its correspondence."

"2. The duties of the Engineer Department will comprise the construction and repairs of fortifications and a general superintendence and inspection of the same, military reconnoiterings, embracing general surveys and examinations of particular sites for fortifications, and the formation of plans and estimates, in detail, for fortifications for the defense of the same, with such descriptive and military memoirs as may be necessary to establish the importance and capabilities of the position intended to be occupied; the general direction of the disbursements on fortifications,

Page 40 U. S. 374

including purchases of sites and materials; hiring workmen, purchases of books, maps and instruments; and contracts for the supplies of materials, and for workmanship."

" * * *"

"14. Where there is no agent for fortifications, the superintending officer shall perform the duties of agent, and while performing such duties, the rules and regulations for the government of the agents shall be applicable to him, and as a compensation for the performance of that extra duty, he will be allowed, for moneys expended by him in the construction of fortifications, at the rate of two dollars per diem, during the continuance of such disbursements, provided the whole amount of emolument shall not exceed two and a half percent on the sum expended."

The 67th article of the regulations of 1825 provides as follows:

"888. The duties of the Engineer Department comprise reconnoitering and surveying for military purposes, and for internal improvements, together with the collection and preservation of topographical and geographical memoirs, and drawings referring to those objects; the selection of sites, the formation of plans and estimates, the construction, repair and inspection of fortifications, and the disbursements of the sums appropriated for the fulfillment of those objects, severally, comprising those of the Military Academy; also the superintendence of the execution of the acts of Congress in relation to internal improvement, by roads, canals, the navigation of rivers, and the repairs and improvements connected with the harbors of the United States or the entrance into the same, which may be authorized by acts of Congress, with the execution of which the War Department may be charged."

"893. The engineer superintending the construction of a fortification will disburse the moneys applied to the same, and as compensation for the performance of that extra duty, will be allowed at the rate of two dollars per diem during the continuance of such disbursements, provided the whole amount of emolument shall not exceed two and a half percent on the sum disbursed."

So far as the present item is concerned, these regulations do not differ in substance. They both raise the question as to the proper interpretation of them, whether the allowance of two dollars

Page 40 U. S. 375

per diem, not exceeding two and a half percent, is intended to be limited to a single per diem allowance, notwithstanding the engineer superintending the construction, and disbursing the moneys, as agent for fortifications, is employed at the time upon several fortifications, each requiring separate accounts of the disbursements to be kept, on account of there being distinct and independent appropriations therefor, or whether the per diem allowance is cumulative, that is to say, two dollars a day for every fortification, for which there is a distinct and independent appropriation, of which separate accounts are required to be kept, and the disbursements are confided to one and the same engineer, as superintendent and agent of disbursements. The Court is of opinion that the latter is the true construction of the regulations, upon the ground, that it would be unreasonable to suppose that these regulations intended to give the same exact amount of compensation to a person disbursing moneys upon two or more distinct fortifications, that he would be entitled to, if he were disbursing agent for one only, although his duties might be thus doubled, and even trebled, and that the natural import of the language is that the compensation is to be given to each agent of a separate fortification, for his disbursements about that particular fortification, without any reference to the consideration whether his agency was limited to that, or extended to other fortifications. Under such circumstances, as the defendant was the disbursing agent both at Fort Monroe and Fort Calhoun, under distinct and independent appropriations, there does not seem to be any reason why he may not be entitled to the per diem allowance which he claims for each of those forts.

2. As to the second item. The right to the commissions charged for disbursing $33,447.26 on account of contingencies on fortifications must essentially depend upon the evidence which may be adduced in support of the claim. There is nothing in the character of the item which precludes the defendant from showing that he is entitled to the commissions of two and a half percent, or of a less amount, if he can prove that the disbursements were other than those on Forts Monroe and Calhoun, and that it has been the usage of the department, to make the like compensation for disbursements under the like circumstances, or that the

Page 40 U. S. 376

allowance is just and equitable in itself. The Court is of opinion that evidence ought to have been admitted to establish it.

3. As to the third item, constituting a charge of $37,262.46 for extra services in conducting the affairs connected with the civil works of internal improvements, very different considerations may apply. The Court is of opinion that, upon its face, this item has no just foundation in law, and therefore that the evidence which was offered in support of it, if admitted, would not have maintained it. The ground of this opinion is that upon a review of the laws and regulations of the government applicable to the subject, it is apparent that the services therein alleged to be performed were the ordinary special duties appertained to the office of Chief Engineer, and such as the defendant was bound to perform as Chief Engineer without any exact compensation over and above his salary and emoluments as brigadier-general of the army of the United States on account of such services. In this view of the matter, the circuit court acted correctly in rejecting the evidence applicable to this item.

Upon the whole, upon the other grounds already stated, the judgment of the circuit court must be

Reversed and the cause remanded with directions to that court to award a venire facias de novo.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Missouri, and was argued by counsel, on consideration whereof it is the opinion of this Court that there was error in the said circuit court in rejecting the evidence offered by the defendant (Gratiot) in support of his claims set forth in the first bill of exceptions, and also error in refusing to allow the depositions and documents to be given in evidence stated in the third bill of exception for the purposes for which the same was offered by the said defendant. It is thereupon now ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby reversed and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo.