United States v. Eliason
41 U.S. 291 (1842)

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U.S. Supreme Court

United States v. Eliason, 41 U.S. 16 Pet. 291 291 (1842)

United States v. Eliason

41 U.S. (16 Pet.) 291

Syllabus

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

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