An action was brought by the United States against Captain
Eliason for a balance due by him as disbursing officer at Fortress
Calhoun. The defendant claimed an allowance as commissions on the
disbursement of large sums of money under the orders of the War
Department in 1834, and the years included up to 1838, under the
regulations of the War Department contained in the Army Regulations
printed in 1821,
"at the rate of two dollars
per diem, during the
continuance of such disbursements, provided the whole amount of
emoluments shall not exceed two and a half percent on the sum
expended."
By a subsequent regulation of the War Department of 14 March,
1835, adopted in consequence of the provisions of an Act of
Congress of 3 March, 1835, all extra compensation of every kind for
which provision had not been made by law was disallowed. The
defendant's intestate claimed that the provisions of the Act of
March 3, 1835, were applicable only to the disbursing of public
money appropriated by law during the session of Congress in which
that act was passed.
Held that the order of the War
Department of 14 March, 1835, took away all right to the extra
allowances claimed under the prior army regulations.
In the District of Columbia, a writ of error lies to the
decision of the circuit court upon an agreed case. The same
principle has been applied in cases brought before the Supreme
Court from other parts of the United States. Cited,
Faw v. Robertson's
Executors, 3 Cranch 173;
Tucker v.
Oxley, 5 Cranch 34;
Kennedy v.
Brent, 6 Cranch 187;
Brent v.
Chapman, 5 Cranch 358;
Shankland
v. Corporation of Washington, 5 Pet. 390;
Inglee v.
Cooledge, 2 Wheat. 363;
Miller v.
Nichols, 4 Wheat. 311.
The power of the executive to establish rules and regulations
for the government of the army is undoubted. The power to establish
necessarily implies the power to modify or to repeal or to create
anew. The Secretary at War is the regular constitutional organ of
the President for the administration of the military establishment
of the nation, and rules and orders publicly promulgated through
him must be received as the acts of the executive, and as such are
binding upon all within the sphere of his legal and constitutional
authority.
In February, 1839, the United States instituted a suit against
William A. Eliason, a captain in the United States Corps of
Engineers, for the recovery of $2,492.18, a balance in his hands
of
Page 41 U. S. 292
moneys paid to him for the purpose of disbursement at Fort
Calhoun, and of $108.57, beyond the incidental expenses of
fortification, making together $2,600.75. On the decease of Captain
Eliason, the suit was proceeded in against his administratrix.
In the circuit court, the counsel for the plaintiffs and the
defendant agreed upon the following statement.
"On the trial of the above cause, the plaintiffs, to maintain
the issue on their parts joined, offered in evidence the transcript
from the Treasury Department (showing the balance claimed) and the
defendant then offered evidence to show that the said intestate was
a captain in the United States Corps of Engineers, and as such was
ordered to take charge and superintend the works on Fortress
Calhoun, and took charge of, and continued the said work, from 7
November 1834, to 10 September 1838, and further offered in
evidence the general regulations of the War Department, as follows;
and further that the said intestate, while thus employed, disbursed
$214,392.61; that he was also directed to take charge of and
superintended the removal of a lighthouse into Fortress Calhoun, in
which service he disbursed $1,143.13; and further, that he was
charged with the disbursement of, and did disburse the sum of
$1,891.43, for incidental expenses of fortifications, beginning in
the year 1830, and that he purchased for the use of the engineer
department a set of instruments and case, and the department
allowed him for the instruments, but refused to allow him for the
case, amounting to $10; and further, that the pay and emoluments of
the said intestate had been stopped by the government of the United
States, from 31 December 1838, to 15 June 1839, amounting to
1,014.95; and the defendant then claimed credit."
The account of Captain Eliason, which had been submitted to the
accounting officers of the Treasury, and the appropriations in the
Treasury, were made a part of the case.
Page 41 U. S. 293
The regulations of the War Department of 13 March 1835,
were:
"The proviso in the Act of Congress, passed March 3, 1835,
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,' and which
prohibits the allowance of extra compensation to officers of the
army, has been submitted to the Attorney General for his opinion,
and that officer has decided that it extends to and prohibits the
allowance of all extra compensation of every kind whatsoever for
which provision is not made by law; hereafter, therefore, no such
extra compensation will be allowed."
The prohibition under this order took effect from the passage of
the law.
The instructions, after enumerating particular offices held to
be included in the proviso, by the Secretary of War, proceed to
say:
"The construction of the act will apply so as to prevent the
granting of any extra compensation of any nature whatever unless
expressly authorized by law. The Attorney General has decided that
the general clause in the above proviso will render illegal the
allowance of any percentage or compensation for disbursing
appropriations made previous to as well as during the last session
of Congress."
Article 67, § 14, from the army regulations, printed in
1821, was also in evidence:
"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 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."
In the circuit court, the following judgment was given:
"The court is of opinion that the proviso in the Act of 3 March
1835, ch. 303, is only applicable to the disbursing of public money
appropriated by law during the session of Congress in which
that
Page 41 U. S. 294
act was passed, and it appearing therein to the satisfaction of
the court that no part of the money so as aforesaid disbursed by
the said defendant was appropriated at the said session of
Congress, the court is also of opinion that the said intestate was
entitled to the allowance claimed by him for the disbursements as
above stated, and does thereupon order the judgment to be entered
for the said defendant."
The United States prosecuted this writ of error.
Page 41 U. S. 296
DANIEL, JUSTICE, delivered the opinion of the Court.
On 16 February 1839, the plaintiffs instituted an action of
assumpsit in the Circuit Court of Washington County against William
A. Eliason for the balance of $2,600.75 charged against him on the
books of the Treasury as disbursing officer at Fortress Calhoun
between the dates of 7 November, 1834, and 10 September, 1838.
The defendant Eliason appeared to the suit and filed the plea of
nonassumpsit, upon which issue was joined, but having died
before the cause came to trial, the defendant in error, as
administratrix of the decedent, was made a party defendant, and the
cause regularly progressed to trial upon the issue made up between
the original parties. Upon the trial before the circuit court, the
following case was agreed between the parties by their attorneys,
to be subject to the opinion of the court as to the law upon the
same,
viz.:
"On the trial of the above cause, the plaintiffs to maintain the
issue on their part joined, offered in evidence the transcripts
from the Treasury Department (which are found in pages 12 to 16 of
the record), and the said defendant then offered evidence to show
that the said intestate was a captain of the United States Corps of
Engineers, and as such was ordered to take charge and superintend
the works on Fortress Calhoun, and took charge of and continued,
the said work, from 7 November 1834, to 10 September 1838, and
further offered in evidence the general regulations of the War
Department as follows, art. 67, § 14:"
" Where there is no agent for fortifications, the superintending
officer shall perform the duties of agent; while performing such
duties, the rules and regulations for the government of such agents
shall be applicable to him, and as compensation for the performance
of that extra duty, he shall be allowed for moneys expended by him
in the construction of fortifications
Page 41 U. S. 297
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 percentum on the sum
expended."
"And further that the said intestate, while thus employed,
disbursed $214,392.61; that he was also directed to take charge of,
and superintend, the removal of a lighthouse into Fortress Calhoun,
in which service he disbursed $1,143.13, and further that he was
charged with the disbursement of and did disburse the sum of
$1,891.43 for incidental expenses of fortifications, beginning in
the year 1830, and that he purchased for the use of the engineer
department a set of instruments and case, and the department
allowed him for the instruments, but refused to allow him for the
case, amounting to $10, and further that the pay and emoluments of
the said intestate had been stopped by the government of the United
States, from 31 December 1838, to 15 June 1838, amounting to
$1,014.95, and the defendant then claimed credit:"
For compensation for disbursing money on account of
Fortress Calhoun from 7 November 1834, to 10
September 1838, up to which time he was in charge
of said work, inclusive, at $2 per day . . . . . . . .
$2,816.00
Of which, this amount only had been allowed. . . . . . .
234.00
---------
Balance . . . . . . . . . . . . . . 2,582.00
For money disbursed on account for removing
lighthouse, &c. . . . . . . . . . . . . . . . . . . .
21.64
" money disbursed for incidental expenses of
fortifications. . . . . . . . . . . . . . . . . . . . 46.95
" case of instruments. . . . . . . . . . . . . . . . . 10.00
" pay and emoluments (marked B), copied at page 29 . .
1014.95
---------
$3,689.26
For balance of account rendered 29 March, 1839. . . . .
74.79
---------
$3,764.05
Page 41 U. S. 298
"And further offered evidence, that all the claims above stated,
except that for pay and emoluments, had been submitted to, and
rejected by, the accounting officer of the Treasury Department, and
further produced and offered in evidence, the following statement
of the state of the appropriations under which the disbursements
were made."
"The plaintiffs offered in evidence the regulations of the War
Department of 14 March 1835:"
" The proviso in the act of Congress passed March 3, 1835,
entitled 'an act making additional appropriations for the Delaware
Breakwater, and for certain harbors, and removing obstructions in
and at the mouth of certain rivers, for the year 1835,' and which
prohibits the allowance of extra compensation to officers of the
army, has been submitted to the Attorney General for his opinion,
and that officer has decided that it extends to and prohibits that
allowance of all extra compensation of any kind whatever for which
provision is not made by law; hereafter, therefore, no extra
compensation will be allowed."
"And upon the aforegoing statements, it is submitted to the
court to say whether the defendant's intestate was entitled by law
to the allowances claimed by him for disbursements as above stated.
If the court is of opinion that he is so entitled, then the
judgment to be for the defendant; if otherwise, for the plaintiffs,
for the amount appearing due by the transcript."
"F. S. KEY, for the United States"
"Jos. H. BRADLEY, for defendant"
Upon the statement of facts agreed, as above mentioned, the
circuit court pronounced the following opinion and judgment:
"And thereupon, upon the full consideration of the case stated
as aforesaid, the said court is of opinion that the proviso in the
Act of 3 March 1835, ch. 303, is only applicable to the disbursing
of public money appropriated by law during the session of Congress
in which that act was passed, and it appearing therein to the
satisfaction of the court that no part of the money so as aforesaid
disbursed by the said defendant was appropriated at the said
session of Congress; the court is also of opinion that
Page 41 U. S. 299
the said intestate was entitled to the allowances claimed by him
for the disbursements as above stated, and do thereupon order the
judgment to be entered for the said defendant."
To this opinion an exception was taken by the plaintiffs, which
was sealed by the court and made a part of the record.
Before considering the questions of law arising upon the agreed
statement and upon the exception taken to the opinion and judgment
pronounced upon that statement, it is proper to advert to a point
which has been made
in limine by the counsel for the
defendant in error and which, if decided as he has contended it
should be, would prove conclusive as to the fate of this cause. It
is insisted by the defendant's counsel that this Court cannot take
cognizance of the present cause for the reason that, having been
tried upon an agreed case, a writ of error will not lie to the
decision thereon. This position of the counsel is founded upon a
remark of Mr. Justice Blackstone in his Commentaries which has been
transferred to the work of Mr. Tidd, and to some other compilations
upon the practice in the English courts of common law. The passage
in Blackstone, which will be found in his chapter on the Trial by
jury, vol. 3, 379 (Coleridge's edition), is as follows:
"Another method of finding a species of special verdict is when
the jury find a verdict generally for the plaintiff, but subject
nevertheless to the opinion of the court above, on a special case
stated by the counsel on both sides, with regard to the matter of
law, which has this advantage over a special verdict that it is
attended with much less expense and obtains a speedier decision,
the postea being stayed in the hands of the officer of
nisi
prius till the question is determined, and the verdict is then
entered for the plaintiff or defendant, as the case may happen. But
as nothing appears on the record but the general verdict, the
parties are precluded hereby from the benefit of a writ of error if
dissatisfied with the judgment of the court of judge upon the point
of law, which makes it a thing to be wished that a method could be
devised of either lessening the expense of special verdicts or else
of entering the cause at length upon the postea."
It is manifest from this quotation that the reason why,
according to the practice in the English courts, a writ of error
will not be allowed after a case agreed is this, and this only --
that in those
Page 41 U. S. 300
courts, the agreed case never appears upon or is made a part of
the record, and therefore there is no ground of error set forth
upon which an appellate or revising tribunal can act. In the
language of Justice Blackstone, "nothing appears upon the record
but the general verdict, whereby the parties are precluded from the
benefit of a writ of error . . . , which makes it," says the same
learned judge,
"a thing to be wished that a method could be devised either of
lessening the expenses of special verdicts or else of entering the
cause at large upon the postea."
The same rule in the English courts of law, and the same
consequence, as resulting solely from their practice, may be seen
in the Treatise on Pleading by Stephen, p. 92, where the author, in
speaking of the practice of taking special verdicts, and general
verdicts, subject to a special case, remarks that a special case is
not like a special verdict entered on record, and consequently a
writ of error cannot be brought on this decision. There has been a
recent statute enacted in England which, although it is not brought
sufficiently to the view of this Court to justify any direct
inferences as to its terms or its bearing upon this particular
question, may have been designed to remedy the very evil pointed
out by Justice Blackstone. By a note to page 92, of Mr. Stephen's
Treatise, it is said to have been enacted by 3 & 4 Wm. IV., c.
42, that where the parties, on issue joined, can agree on a
statement of facts, they may, by order of a judge, draw up such
statement in the form of a special case, for the judgment of the
court without proceeding to trial. By the established practice
anterior to this statutory provision, it was in the power of the
parties to agree upon a statement of the case; it would seem
reasonable and probable, therefore, that the power given to the
judge (as an exercise of his judicial functions) to regulate the
statement was designed to impart a greater solemnity and permanency
to the preparation of the proceeding and to place it in an attitude
for the action of some revising power. But even should a want of
familiarity with the detail of English practice induce the hazard
of misapprehension of its rules, or of the reasons in which they
have their origin, the decisions of our own courts, and the long
established practice of our own country, are regarded as having put
the point under consideration entirely at rest.
Page 41 U. S. 301
By the Act of Congress of 1801, assuming the government of the
District of Columbia, in virtue of the cession from Maryland and
Virginia, the laws of these states, and, of course, the proceedings
in their courts as parts of these laws, were expressly recognized
within such portions of the district, respectively, as originally
were within the limits of the ceding states.
See 3 Story's
Laws 2089;
United States v.
Simms, 1 Cranch 252. At the period of the cession,
the practice is believed to have been well settled, both in
Virginia and Maryland, that in trials at law, where special or
agreed cases have been made, they have been signed by the counsel,
as representing their clients, and spread at large upon the record,
as a part thereof, and as constituting the only legitimate ground
for the action of the court, and as furnishing the regular and
proper test to be applied by an appellate or revising tribunal to
this action. The practice is believed to be the same at this day;
it has been repeatedly recognized by the decisions of this Court,
and if ever heretofore seriously questioned, has never been
overruled.
See Faw v. Roberdeau's
Executor, 3 Cranch 173;
Tucker v.
Oxley, 5 Cranch 34;
Kennedy v.
Brent, 6 Cranch 187;
Brent v.
Chapman, 5 Cranch 358; and
Shankland
v. Corporation of Washington, 5 Pet. 390. These are
cases arising within the District of Columbia, but the same
practice has been sanctioned in cases brought hither from without
the district, as will be seen in the decisions of
Ingle v.
Coolidge, 2 Wheat. 363, and of
Miller v.
Nicholls, 4 Wheat. 311. This Court therefore has no
hesitancy in declaring that the point of practice raised by the
defendant's counsel presents no objection to the regularity in the
mode of bringing this case before them.
In considering the exception taken to the opinion of the circuit
court in relation to the Act of Congress of March 3, 1835, the
order of the War Department of March 13 of the same year, and the
rights of the plaintiffs, and of the defendant as connected
therewith, this Court has no difficulty in pronouncing the opinion
and decision of the circuit court as although untenable. The power
of the executive to establish rules and regulations for the
government of the army is undoubted. The very appeal made by the
defendant to the 14th section of the 67th article of the army
regulations is a recognition of this
Page 41 U. S. 302
right. The power to establish implies necessarily the power to
modify or repeal or to create anew.
The Secretary of War is the regular constitutional organ of the
president for the administration of the military establishment of
the nation, and rules and orders publicly promulgated through him
must be received as the acts of the executive, and as such be
binding upon all within the sphere of his legal and constitutional
authority.
Such regulations cannot be questioned or denied because they may
be thought unwise or mistaken. The right of so considering and
treating the authority of the executive, vested as it is with the
command of the military and naval forces, could not be entrusted to
officers of any grade inferior to the commander-in-chief; its
consequences, if tolerated, would be a complete disorganization of
both the army and navy. In the present instance, the order was
adopted by the proper authority, and by the same authority
promulgated to every officer, through the regular official organ,
and the question propounded to the circuit court was neither more
nor less than this -- whether a subordinate officer of the army,
insisting upon a prior regulation, which he thinks either is or
ought to be in force, shall obtain from the government emoluments
which a subsequent order from his superior had warned him that it
was not in his power to require? This question can need no argument
for its solution. This Court is therefore of opinion that the
circuit court erred in allowing to Captain Eliason, a
per
diem as disbursing officer at Fortress Calhoun subsequently to
March 1835. Under the 14th section of the 67th article of the army
regulations, it does therefore reverse the decision of the circuit
court, and directs that a judgment be entered for the plaintiffs
for the sum of $2,600.75 as claimed by them, together with their
costs.
Judgment reversed.
