The United States brought an action against General Ripley for a
certain amount of public money he had, as was alleged, failed to
account for and pay over as the law required. The defendant was in
the service of the United States from 1812 to 1817, and was
promoted at different periods until he resigned his commission as
major-general by brevet in the latter year. During this period, he
rendered distinguished and active military services to his country,
and received the pay and emoluments to which his rank entitled him,
under the law and regulations applicable thereto. Large sums of
moneys passed through his hands and were disbursed by him for the
supplies of the troops under his command. He claimed a commission
on these sums, and offered evidence to prove
that similar allowances had been made to others. He also claimed
extra pay or compensation for services performed by him not within
the line of his duty in preparing plans of fortifications and for
procuring and forwarding supplies of provisions, &c., to troops
of the United States, beyond his military command. These claims
were resisted by the United States on the ground that no other
compensation could be allowed to him than such as was mentioned or
defined by the laws of the United States, by instructions of the
President, or by the legal regulations of the War Department.
It is presumed that every person who has been engaged in the
public service has received the compensation allowed by law until
the contrary appears. The amount of compensation in the military
service may depend in some degree, on the regulations of the War
Department, but such regulations must be uniform, and applicable to
all officers under the same circumstances.
If the disbursements for which compensation is claimed were not
such as were ordinarily attached to the duties of the officer, the
fact should be stated, and also that the service was performed
under the sanction of the government or under such circumstances as
rendered the extra labor and responsibility assumed in performing
it necessary.
Should the accounting officer of the Treasury refuse to allow an
officer the established compensation which belongs to his station,
the claim, having been rejected by the proper department, should
unquestionably be allowed by way of setoff to the demand of the
government by a court and jury.
And it is equally clear that an equitable allowance should be
made, in the same manner for extra services performed by an officer
which did not come within the line of his official duty and which
had been performed under the sanction of the government, or under
circumstances of peculiar
Page 32 U. S. 19
emergency. In
such a case, the compensation should be graduated by the amount
paid for like services under similar circumstances. Usage may be
safely relied upon in such cases as fixing a just compensation.
However valuable the plans for fortifications prepared by a
public officer may have been, unless they were prepared at the
request of the government or were indispensable to the public
service as a matter of right, a compensation for them cannot be
claimed.
The claims of compensation set tip in this case must be brought
within the established rules on the subject before they can receive
judicial sanction.
In the District Court of the United States for the Eastern
District of Louisiana, the United States, on 7 September, 1822,
instituted proceedings by two petitions, claiming in one
"the sum of $13,163.10 as due by Eleazar W. Ripley, late major
general in the army of the United States, which, on 9 April, 1821,
at the Treasury Department, was found against him on a statement
and settlement of his account,"
and claiming in the other "the sum of $4,154.95, which on 5 May
1821, at the Treasury Department, was found against him on the
settlement and statement of his account." To those petitions the
defendant pleaded that he was not indebted to the United States,
and the case was afterwards, on 28 May, 1830, submitted to a jury,
and a verdict was found for the defendant in the following
terms:
Verdict for the defendant as follows:
Amount of his account, less $500 lost . . . . . . .
$13,060.22
Extra services at Washington. . . . . . . . . . . . 2,000.00
----------
$15,060.22
Deducting therefrom balance due the United States .
11,929.32
----------
$ 3,140.90
New Orleans, 29 May, 1830
A. CHARBONNET
Upon the verdict, the court ordered that the United States
Page 32 U. S. 20
take nothing by their petitions; and the United States
prosecuted this writ of error.
On the trial of the cause, the district attorney of the United
States took the following bills of exception.
"Be it remembered that on this 28 May, 1830, on the trial of
this cause, the defendant offered the following testimony:"
"The defendant entered in the army of the United States in the
year 1812, as a lieutenant colonel; was promoted at different
periods until he attained the rank of major general by brevet,
which rank he held until the day of his resignation of his
commission in the year 1817. During this interval, the defendant
was engaged in active service and received the pay and emoluments
to which his rank entitled him under the laws of the United States
and the regulations of the President of the United States and of
the Department of War. Large sums of money passed through his hands
and were passed over by him to various officers in the army under
his command and to others who have been appointed by him to act as
such or were disbursed by him for the supplies of the troops by him
commanded. He claimed to be allowed a commission on these
disbursements, and offered evidence to prove that similar
allowances had been made to other officers of the line of the army
who had been charged with the disbursements of public moneys, and
also offered evidence to prove what would be a fair rate of
compensation for such services. The defendant also claimed an
allowance of extra pay or compensation for services performed by
him, not within the line of his duty, in preparing plans for
fortifications and for procuring and forwarding supplies of
provisions, &c., to troops of the United States beyond the
limits of his military command, and offered testimony to prove the
value of said services. To the introduction of all which testimony
the attorney for the United States objected on the ground that no
other or further compensation could be allowed for disbursements
made or extra services rendered as aforesaid than such as were
sanctioned or defined by the laws of the United States, by
instructions of the President of the United States, or by
regulations of the War Department legally made. But the court
overruled the objection and admitted the testimony. "
Page 32 U. S. 21
"And be it further remembered that on the trial of this cause,
the testimony in the case having been closed, the attorney of the
United States prayed the court to instruct the jury that no
allowance in the form of commissions or otherwise for moneys
disbursed as aforesaid or extra compensation for services rendered
under the circumstances hereinbefore stated could be admitted as a
legal and equitable setoff against the claims of the United States
other than such as were sanctioned and defined by the laws of the
United States, by instructions of the President of the United
States, or by regulations of the Department of War legally made.
But the court refused to instruct the jury, but stated to them that
the defendant was entitled to credit for commissions on
disbursements and allowances for extra services, and that they must
judge of the rate and extent of such commissions. "
Page 32 U. S. 23
MR. JUSTICE McLEAN delivered the opinion of the Court.
The United States has brought this writ of error to reverse a
judgment of the Court of the United States for the Eastern District
of Louisiana. An action was brought in that court to recover from
the defendant a certain amount of public money for which he had
failed to account and neglected to pay over as the law requires. As
the facts of the case appear in the following bill of exceptions,
it will be unnecessary to advert specially to the pleadings in the
cause.
"Be it remembered that on this 28 May, 1830, on the trial of
this cause, the defendant offered the following testimony:"
"That he entered into the army of the United States in the year
1812 as a lieutenant colonel; was promoted at different periods
until he attained the rank of major general by brevet, which rank
he held until the day of his resignation of his commission
Page 32 U. S. 24
in the year 1817. During this interval, he was engaged in active
service and received the pay and emoluments to which his rank
entitled him under the laws of the United States and the
regulations of the President of the United States and of the
Department of War. Large sums of money passed through his hands to
various officers in the army under his command or were disbursed by
him for the supplies of the troops by him commanded. He claimed to
be allowed a commission on these disbursements, and offered
evidence to prove that similar allowances had been made to other
officers of the line of the army who had been charged with the
disbursements of public moneys, and also offered evidence to prove
what would be a fair rate of compensation for such services. The
defendant also claimed an allowance of extra pay or compensation
for services performed by him, not within the line of his duty, in
preparing plans for fortifications and for procuring and forwarding
supplies of provisions, &c., to troops of the United States
beyond the limits of his military command, and offered testimony to
prove the value of said services. To the introduction of all which
testimony the attorney for the United States objected on the ground
that no other or further compensation could be allowed for
disbursements made or extra services rendered as aforesaid than
such as were sanctioned or defined by the laws of the United States
by instructions of the President of the United States or by
regulations of the War Department, legally made. But the court
overruled the objection and admitted the testimony."
"And the testimony being closed, the attorney of the United
States prayed the court to instruct the jury that no allowance in
the form of commissions or otherwise for moneys disbursed as
aforesaid or extra compensation for services rendered under the
circumstances before stated could be admitted as a legal and
equitable setoff against the claim of the United States other than
such as were sanctioned and defined by the laws of the United
States, by instructions of the President, or by regulations of the
Department of War legally made. But the court refused so to
instruct the jury, and stated to them that the
Page 32 U. S. 25
defendant was entitled to credit for commissions on
disbursements and allowances for extra services, and that they must
judge of the rate and extent of such commissions and allowances.
The jury rendered a verdict against the United States and reported
a balance due from them to the defendant."
The claim set up by the defendant, and which was allowed by the
jury, rested on two grounds.
1. For certain disbursements made by him.
2. For preparing plans for fortifications and for procuring and
forwarding supplies of provisions, &c., for the troops beyond
his military command. The latter service is said in the bill of
exceptions not to have been within the line of his duty; but no
such statement is made in regard to the former.
In behalf of the United States it is contended that the court
can only allow credits which the auditor should have allowed, and
that unliquidated damages cannot be set off at law.
In the case of
United States v.
MacDaniel, which has been decided at the present
term, this Court has said that the powers of the court and jury to
admit credits against a demand of the government were not limited
to items which should have been allowed by the auditor. That in all
cases where an equitable claim against the United States is set up
by a defendant which, under the circumstances, should have been
allowed by an exercise of the discretionary powers of the President
or the head of a department, it should be submitted to the jury
under the instructions of the court.
Equitable as well as legal claims against the government are
contemplated by the law as proper items of credit on the trial, and
so this Court decided in the case of
United
States v. Wilkins, 6 Wheat. 135.
It is presumed that every person who has been engaged in the
public service has received the compensation allowed by law until
the contrary shall be made to appear. The amount of compensation in
the military service may depend in some degree on the regulations
of the War Department, but such regulations must be uniform and
applicable to all officers under the same circumstances. So far,
then, as it regards the pay of the defendant for services rendered
in the line of his duty, it would seem not to be difficult for him
to show certain
Page 32 U. S. 26
regulations of the War Department or instructions of the
President within the rule stated in the bill of exceptions by the
attorney of the United States.
If, however, the disbursements made for which compensation is
claimed were not such as were ordinarily attached to the duties of
the office held by the defendant, the fact should have been so
stated, and also that the service was performed under the sanction
of the government or under such circumstances as rendered the extra
labor and responsibility assumed by the defendant in performing it
necessary. Should the accounting officers of the Treasury
Department refuse to allow an officer the established compensation
which belongs to his station, the claim, having been rejected by
the proper department, should unquestionably be allowed by way of
setoff to a demand of the government, by a court and jury. And it
is equally clear that an equitable allowance should be made in the
same manner for extra services performed by an officer which did
not come within the line of his official duty and which had been
performed under the sanction of the government or under
circumstances of peculiar emergency. In such a case, the
compensation should be graduated by the amount paid for like
services under similar circumstances. Usage may safely be relied on
in such cases as fixing a just compensation.
The allowance claimed under the second head for services which
did not come within the range of his official duties should have
been shown by the defendant to have been performed with the
sanction of the government or under circumstances as above stated.
However valuable the plans for fortifications prepared by the
defendant may have been, unless they were prepared at the request
of the government or were indispensable to the public service, he
cannot claim a compensation for them as a matter of right.
The distinguished services rendered by the defendant during the
late war are advantageously known to the country, but the claims
set up in the case under consideration must be brought within the
established rules on the subject before they can receive judicial
sanction. And as, in the opinion of
Page 32 U. S. 27
this Court, the district court erred in their instructions to
the jury, which were given without qualification, the judgment must
be
Reversed and the cause remanded for proceedings de
novo.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel, on consideration
whereof it is the opinion of this Court that the said district
court erred in its instructions to the jury, whereupon it is
ordered and adjudged by this Court that the judgment of the said
district 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
district court with directions to award a
venire facias de
novo.