Wetmore v. United States
35 U.S. 647 (1836)

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U.S. Supreme Court

Wetmore v. United States, 35 U.S. 10 Pet. 647 647 (1836)

Wetmore v. United States

35 U.S. (10 Pet.) 647

Syllabus

A paymaster in the Army of the United States, appointed under the act of Congress, passed the 24th of April, 1816, is entitled to the pay and emoluments of a major of infantry, and not those of a major of cavalry.

The army registers, published by the adjutant and inspector-general of the army, containing the general regulations of the army, which are delivered by the departments to the officers of the army, are not evidence to establish the pay and emoluments of officers in the service. These are fixed and determined by acts of Congress.

The registers are compilations issued and published to the army by the direction of the Secretary of War in the exercise of his official authority, and when authenticated by him, would be evidence of the facts, strictly so, they may contain, such as the names of officers, date of commissions, promotions, resignations, and regimental rank, brevet and other rank, or the department of the army to which officers belong; but from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers as they are provided for by law, and must be determined by the court when they are doubtful and the subject of dispute in a suit between an officer and the United States. Nor can such registers be evidence of the correctness of any classification of the officers of departments into a general staff of the army, for though they are probably correct, being prepared by persons whose professional duty it is to be well informed upon the subject and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of Congress for the organization of our army, still what officers are of the staff or general staff depends upon acts of Congress, which are to be expounded by the courts when an officer claims a judicial determination of his rights as to pay and emoluments from his having been arranged as belonging to the staff.

An action of indebitatus assumpsit was instituted at September term, 1832, by the United States in the District Court of the United States for the Missouri District against Alphonso Wetmore upon an account regularly adjusted, settled, and certified at the Treasury of the United States on 18 November, 1831. The account charged the defendant with the sum of $3,388.18 "for difference of pay and forage, between a major of cavalry and a major of infantry, improperly received by him, and now brought to his debit." At the foot of the account there is a statement by the Second Auditor of the Treasury as follows:

"the same being the difference of pay and forage claimed by him between a major of cavalry and

Page 35 U. S. 648

a major of infantry, to which he is considered as not entitled by the accounting officers of the Treasury of the United States."

The cause was tried by a jury on 6 September, 1832, and a verdict was found for the United States.

The United States produced and read in evidence the duly certified transcript from the Treasury showing the amount of the claim against the defendant.

It was admitted on the trial that the defendant had served as a paymaster (duly appointed as such) in the Army of the United States from said 24 April, 1816 to the said 31 May, 1831, and that the amount stated in said account and transcript to be due from the defendant to the United States consists solely of the difference between the pay and emoluments allowed by the accounting officers to the defendant, and the pay and emoluments retained and claimed by him during the period of service aforesaid.

The defendant claimed to be allowed for his service during the period aforesaid the pay and emoluments allowed by law to other officers of the general staff of the army of the rank of major and who are entitled to the pay and emoluments of majors of cavalry.

He offered in evidence an army register, prepared and published by the Adjutant and Inspector General of the United States in 1816, which register was delivered to the defendant and other officers of the army; in the register the officers of the pay department, created by the Act of Congress of 24 April, 1816, are arranged as belonging to the general staff of the army, which evidence was, on motion of the plaintiffs, rejected by the court, to which opinion of the court the defendant by his counsel excepted.

The defendant also offered in evidence the register of the Army of the United States for the year 1831, prepared, published and subscribed by the adjutant general, in which register the officers of the pay department are arranged under the head, and as appertaining to the general staff of the army, which evidence, as offered, was rejected by the court, and the defendant by his counsel excepted to the said decision rejecting said testimony. The defendant then offered to read to the jury a general order, dated "Headquarters of the Army, Adjutant General's Office, Washington, 11 June, 1832," order No. 50, signed by the adjutant general and purporting to have been issued by command of Major General Alexander Macomb, Commander-in-Chief, which order prescribes the dress of

Page 35 U. S. 649

the officers, noncommissioned officers, musicians, and privates of the army and other regulations of the government of the army and contains, among other things, the following, to-wit:

"The general staff is to include the adjutant general, the inspectors general, the aids-de-camp, the officers of the quartermasters' department, the officers of the subsistence department, the officers of the pay department, the officers of the medical department, the commissary general of purchases."

To the reading which general order the plaintiffs, by their counsel objected, and the court sustained the objection and rejected the evidence so offered, to which opinion of the court the defendant by his counsel excepts. No further evidence being offered, the defendant moved the court to instruct the jury as follows:

"1. That the defendant is entitled to the pay and emoluments allowed by law to the officers of the general staff of the army of the rank of major -- that is to say, the pay and emoluments allowed to majors of light dragoons by the Act of Congress of 12 April, 1808."

"2. That if the jury find from the evidence that the defendant was, from 24 April, 1816, to the time of the statement of the account read in evidence, an officer in the general staff of the army, he is entitled, for the time he has so served, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major."

Which instructions were by the court refused, and the court instructed the jury that the defendant, in virtue of his office, was entitled only to receive the pay and emoluments of a major of infantry, to which opinions of the court in refusing the instructions prayed for by the defendant, and also to the instructions given, the defendant by his counsel excepted. The court sealed a bill of exceptions.

The district court gave judgment on the verdict in favor of the United States, and the defendant prosecuted this writ of error.

Page 35 U. S. 650

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