United States v. Ripley
32 U.S. 18 (1832)

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U.S. Supreme Court

United States v. Ripley, 32 U.S. 7 Pet. 18 18 (1832)

United States v. Ripley

32 U.S. (7 Pet.) 18

ERROR FROM THE DISTRICT COURT OF

THE EASTERN DISTRICT OF LOUISIANA

Syllabus

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

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$15,060.22

Deducting therefrom balance due the United States . 11,929.32

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$ 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.

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