When a regulation, made by the head of an executive department
in pursuance of law, empowers subordinates of a class named to
contract on behalf of the United States as to a given subject
matter, and further directs that "any contract made in pursuance of
this regulation must be in writing," a verbal executory contract
relating thereto is not binding upon the United States.
Page 113 U. S. 649
When an executive regulation directs officers of one class to
make a contract on behalf of the United States, it confers no
authority to make it upon officers of a different class, although
employed about the same government business.
Independently of the question of authority, the record does not
show that the contract set up in the plaintiff's petition was
entered into.
The appellant brought this action on the 13th day of April,
1869, to recover a balance alleged to be due as compensation for
collecting and delivering to the United States, in 1864, a large
amount of cotton in bales which was captured and abandoned property
within the meaning of the acts of Congress. He claims to have
performed the services in question under an arrangement or
agreement with an agent of the Treasury Department which the
Secretary of the Treasury subsequently recognized as a valid
contract with the government. He admits certain payments on his
claim, and asks judgment for the further sum of $80,000. The court
below dismissed his petition.
The material facts, as found by the Court of Claims, were in
substance as follows:
In the early part of 1864, one Hart, an assistant special agent
of the Treasury Department for the District of Natchez in the State
of Mississippi, made a verbal arrangement with Camp whereby it was
understood and agreed between them that the latter should bring out
and turn over to the United States, through their agent in Natchez,
about 2,200 bales of cotton, stored on the banks of Buffalo Bayou,
in Adams County, Mississippi, within that district, and the
property of one John K. Elgee, a resident of Alexandria, Louisiana,
then within the lines of rebel occupation. "The agent," the
findings of fact state,
"was then to represent the arrangement and business, whatever it
might be, to the Secretary of the Treasury, and was likewise to
represent that he had assured the claimant by the arrangement that
the Secretary would allow to him twenty-five percent of the
proceeds of the cotton at least. No bond of indemnity was given by
the claimant. By the arrangement, the claimant was also to pay to
the agent Hart out of the proceeds, when received by him, from
Page 113 U. S. 650
$5,000 to $10,000, provided the Secretary of the Treasury should
see no impropriety in his (the agent's) accepting from the claimant
a portion of the proceeds."
On or about March 31, 1864, Camp, representing himself as a
Treasury agent, engaged the services of a transport which, under
the protection of a gun boat, ascended Buffalo Bayou, took on board
572 bales of the Elgee cotton, and brought it to Natchez, where it
was seized by General Tuttle, commanding the federal military
forces, on suspicion that the claimant intended to appropriate it
to himself, and placed under guard in the government yard. Shortly
thereafter, Camp informed the supervising special agent and the
assistant special agent of the Treasury of what he had done.
By direction of the supervising special agent, the cotton was
forwarded to St. Louis, consigned to O. S. Lovell, an agent of the
Treasury Department. After it reached that city, Elgee brought an
action of replevin against Lovell in the Circuit Court of St. Louis
County. The United States took charge of the defense, and on June
22, 1864, a stipulation was entered into between the Treasury
Department and Elgee whereby that action was removed to the circuit
court of the United States and the cotton was sold, the proceeds,
after paying certain charges, being invested in bonds which were
held to abide the result of the litigation. In that suit, a
judgment was obtained by the government which was affirmed by this
Court.
The appellant presented his claim for compensation to the
Treasury Department, which, by its assistant Secretary, on the
sixth of December, 1865, directed the Commissioner of Customs
to
"state an account and make a requisition in favor of Benjamin F.
Camp upon F. E. Spinner, treasury agent, to be paid from the
proceeds of captured and abandoned property, for the sum of
$30,000, being part of the proceeds of certain property known as
the Elgee cotton, collected as captured or abandoned property by
said Camp, for an interest therein, said sum being an advance to
said Camp on account of his expenditures in relation to said
cotton."
This order recited that Camp had executed bond, with surety to
the United States conditioned that he would repay the said sum on
demand of the Secretary of the Treasury
Page 113 U. S. 651
and fully indemnify the government against all loss and damage
by reason of such payment. In pursuance of that order, the sum of
$30,000 was paid to him. On the 7th of March, 1866, the further sum
of $15,000 was paid to William Prescott Smith (who had acquired a
joint interest with the claimant), the order which directed the
payment reciting that that amount was "an advance to Smith on
account of his joint interest with Camp in said cotton." The net
proceeds of the sale of the cotton, with the interest that had
accrued on the bonds in which they were invested -- in all,
$366,170.83 -- were covered into the Treasury in pursuance of a
joint resolution of Congress approved March 30, 1868.
On the 20th of August, 1868, the heirs and representatives of
Elgee brought suit against the United States in the Court of Claims
under the Captured and Abandoned Property Act to recover those
proceeds. That suit was pending and undetermined when the present
action was commenced. The claim of Elgee's heirs and
representatives was established, his loyalty having been shown only
by proof that on the 2d day of May, 1864, he took the oath
prescribed by President Lincoln's amnesty proclamation of December,
1863.
It was in evidence that twenty-five percent of the proceeds of
captured cotton was the remuneration ordinarily allowed by the
Treasury Department to contractors under the Treasury regulations
for collecting and bringing in such property.
MR. JUSTICE HARLAN delivered the opinion of the Court. He stated
the facts in the foregoing language and continued:
Pursuant to authority conferred by the Act of March 12, 1863, 12
Stat. 820, the Secretary of the Treasury of the Treasury
established and promulgated regulations providing for the
appointment of supervising special agents, assistant special
agents, and other
Page 113 U. S. 652
agents for receiving and collecting abandoned and captured
property found within their respective agencies and within the
lines of military occupation by the United States forces, except
such as had been used or was intended to be used for carrying on
war against the United States.
One of those regulations provided that when property was liable
to be lost or destroyed in consequence of its location's being
unknown to the special agents or from other causes, and parties
proposed, for compensation, to collect and deliver it to such
agents at points designated by them,
"supervising special agents may contract on behalf of the United
States for the collection and delivery to them of such property in
their respective agencies on the best possible terms, not exceeding
twenty-five percent of the proceeds of the property, which
percentage must be full compensation for all expenses, of whatever
character, incurred in collecting, preparing, and delivering such
property at the point suggested."
But it was also provided that
"prior to any such contract's being made, the party proposing
must submit
in writing a statement of the kind and amount
of property proposed to be collected, the locality whence to be
obtained, and all the facts and circumstances connected with it,
particularly as to its ownership;"
that
"any contract made in pursuance of this regulation must be in
writing and restricted to the collection and delivery of particular
lots at named localities, or, when circumstances clearly justify
it, to the general collection and delivery of all abandoned
property in limited districts, not greater in any case than one
parish or county, and not more than one district to be assigned to
one contractor,"
and that
"should a case arise, in the opinion of the supervising special
agent, justifying the payment of a larger percentage than
one-quarter of the proceeds of the property, he will make a
statement of the facts and circumstances, and the reasons in his
opinion justifying such additional allowance, and refer the same to
the Secretary for instruction."
Reg. XII. By another regulation of the same series, it is
expressly enjoined that no liability be incurred or assumed,
or
contract be made, on the part of the United States by such
agents except as authorized. Reg. XIII.
Page 113 U. S. 653
These regulations were in force when the claimant made the
before-mentioned verbal "arrangement" with Hart, who was merely an
assistant special agent, and not, as alleged in the petition, a
supervising special agent of the Treasury Department. Under them,
only supervising special agents could bind the United States by
contracts with parties proposing, for compensation, to collect and
deliver captured and abandoned property. They could not allow more
than twenty-five percent of the proceeds without referring the
matter to the Secretary. And no contract of that character made
even by them bound the government unless it was in writing.
Plainly, therefore, the verbal arrangement which Camp had with an
assistant special agent was not binding upon the United States even
had it been reduced to writing. It imposed upon the government no
legal obligation whatever.
Whiteside v. United States,
93 U. S.
250.
It is equally clear that it was not otherwise understood by the
claimant, for Hart only agreed "to represent the arrangement and
business, whatever it might be, to the Secretary of the Treasury,"
and to inform the latter that he "had assured the claimant, by the
arrangement, that the Secretary would allow him twenty-five percent
of the proceeds of the cotton, at least." Camp evidently undertook
to bring in the cotton and deliver it to the proper agent of the
United States in reliance upon such action as the Secretary of the
Treasury, in the exercise of his discretion, might ultimately take
touching his compensation, and not at all in the belief that he had
a binding contract with the government. He must be held to have
known that the Secretary was not compelled to accept the
arrangement with Hart as obligatory upon the government, but was at
liberty, without violating any legal rights that Camp had, to allow
less compensation than was ordinarily allowed under written
contracts made by supervising special agents. Indeed, had the
Secretary, in view of the nonconformity of the proceedings to his
regulations, determined not to allow any compensation whatever, it
is not perceived how the jurisdiction of the Court of Claims could
have been invoked by Camp as upon contract express or implied.
Page 113 U. S. 654
The counsel for appellant rely upon
Salomon v.
United States, 19 Wall. 17, and
Clark v. United
States, 95 U. S. 539. Those
cases differ radically from the present one. In Salomon's case, the
property appropriated and used by the government was admitted to
belong to the claimant. In Clark's case, the government received
the property from the claimant under such circumstances as
precluded it from raising any question as to his title. In each
case, the United States were held liable as upon implied contract
to make compensation to the owner. But there is no claim that Camp
ever owned the cotton which he delivered at Natchez. As between him
and the United States, it was the property of the latter. At any
rate he could not legally have withheld it from the United States.
Its seizure by the government was not a taking of his property,
and, as he did not conform to the regulations prescribing the only
mode in which the government could become bound by contract to make
compensation for the recovery of the property, he was not in a
position to demand compensation as matter of legal right. Any other
view would lead to the conclusion that parties who voluntarily
brought in and delivered to the United States captured and
abandoned property were entitled, as upon implied contract, to be
compensated for their services, for the services rendered by Camp
under an arrangement with an assistant special agent who had no
authority whatever to bind the United States in respect of
compensation presents no stronger case in law for compensation as
upon implied contract than if they were voluntarily rendered
without such previous arrangement. An interpretation of the
regulations in question different from that indicated would have
resulted in transferring to the courts the determination of matters
which the acts of Congress committed entirely to the discretion of
the Secretary of the Treasury.
But it is contended that the government, having availed itself
of the labors of claimant, and the Treasury Department having made
two payments on his claim, to be compensated on the basis fixed by
the arrangement with Hart, that arrangement must be deemed to have
been ratified by the Secretary of the Treasury as a contract with
the United States, binding
Page 113 U. S. 655
them to allow what was ordinarily paid by the Department in such
cases, or what was, under all the circumstances, reasonable.
The precise form in which appellant's claim for compensation was
presented at the Treasury Department is not shown by the findings
of fact. The orders given in 1865 by the assistant Secretary for
the statement of an account and a requisition in favor of the
claimant discloses the fact that Camp had collected the cotton "for
an interest therein," and that the payment of $30,000 was intended
as an advance to him on account of his expenditures in relation to
the cotton, while the payment of $15,000 to Smith was "on account
of his joint interest with Camp in said cotton." But this falls far
short of an agreement by the Department to make further payment.
These facts, at most, imply necessarily nothing more than that the
Department was willing under the circumstances to compensate him to
the extent of the foregoing sums. Whether he should receive any
compensation or how much should be awarded him were matters which
depended, as we have seen, upon the discretion of the Secretary of
the Treasury. No one acting by his authority had bound the
government to make compensation. If the Secretary refused to pay
anything, the claimant had no remedy except to apply to Congress
for a special appropriation in his behalf. The mere payment of
$45,000 on a claim for a much larger sum as compensation for
services rendered in delivering captured or abandoned property to
the government -- for which services it was under no legal
obligation, express or implied, to make compensation -- cannot be
deemed a recognition of a legal liability to make further payments
on such claim. We find in the record no evidence of any purpose or
agreement upon the part of the Secretary of the Treasury to make
compensation to claimant beyond that already allowed, and to say
that the court may award such compensation as it deems just and
proper is to impose upon the government the obligations of a
contract in respect of captured or abandoned property which, under
the acts of Congress, only the Secretary of the Treasury or such
agents of the Department as he designated for that purpose had
authority to make.
Page 113 U. S. 656
These views make it unnecessary to consider other questions
argued by counsel, and lead to an affirmance of the judgment.
Judgment affirmed.
