In an action against the United States to recover for amounts
due certain mail contractors under the appropriation in the Sundry
Civil Appropriation Act of March 3, 1577, 19 Stat. 362, c. 105,
which provided that "any such claims which have been paid by the
Confederate States government shall not again be paid;" the burden
of proof is on the plaintiff to show that his claim was not of the
excepted class.
Whether, that appropriation having been covered into the
Treasury, a claimant can maintain suit under that act in the Court
of Claims without further legislation is a question which the Court
has not deemed it necessary to
Appeal from the Court of Claims, where the judgment was against
the claimant. The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The plaintiff, the Selma, Rome and Dalton Railroad Company,
seeks in this action to recover the sum of $5,915.80, which
Page 139 U. S. 561
is alleged to be the balance due on a written contract executed
July 10, 1858, between the United States and the Alabama and
Tennessee Rivers Railroad Company, an Alabama corporation, whereby
that corporation was to receive for transporting the mail between
Selma and Taladega in that state, the sum of $12,000 per year,
payable quarterly, for the term commencing July 1, 1858, and ending
May 31, 1862. By that contract, the Postmaster General was
authorized to dispense with the service entirely if required by the
public interest, allowing one month's extra pay upon the amount
deducted. The United States disputes its liability to the plaintiff
in any sum whatever.
The Alabama and Tennessee Rivers Railroad Company performed the
services required by the above contract up to the 31st of May,
1861, on which day the mail service on its road was discontinued by
the Postmaster General of the United States, and such service
passed, on and after June 1, 1861, under the direct control of, and
was performed by the railroad company for, the Confederate
government.
By an Act of the Confederate Congress approved August 30, 1861,
entitled
"An act to collect for distribution the moneys remaining in the
several post offices of the Confederate States at the time the
postal service was taken in charge by said government,"
it was provided:
"§ 1. That it shall be the duty of the Postmaster General to
collect all moneys due from the several postmasters within the
Confederate States, and which they had not paid over at the time
the Confederate States took the charge of the postal service, and
the several postmasters are hereby required to account to the
General Post Office of this government under the same rules,
regulations, and penalties that were prescribed by the law under
which said moneys were received."
"SEC. 2. The moneys so received shall be kept separate and
distinct from the other funds of the Post Office Department, and
shall constitute a fund for the
pro rata payment of claims
for postal service which accrued before the Postmaster General took
charge of the postal service in the states respectively comprising
this Confederacy, as may hereafter be provided. "
Page 139 U. S. 562
"§ 3. It shall be the duty of the Postmaster General to make
proclamation that all persons who are citizens of the Confederate
States of America, and who may have rendered postal service in any
of the states of this Confederacy under contracts or appointments
made by the United States government before the Confederate States
government took charge of such service, shall present their claims
to this department, verified and established according to such
rules as he shall prescribe, by a time therein to be set forth, not
less than six months, and requiring the claimant to state, under
oath, how much has been [paid], and the date of such payments, on
account of the contract or appointment under which said claim
occurred, and what fund or provision has been set apart or made for
the further payment of the whole or any portion of the balance of
such claim by the government of the United States or of any of the
states, and they shall also state on oath whether they performed
fully the service according to their contracts or appointments
during the time for which they claim pay, and if not, what partial
service they did perform, and what deductions have been made from
their pay, so far as they know, on account of any failure or
partial failure to perform such service, and the Postmaster General
shall, as soon as he shall have collected such moneys from said
postmasters, and ascertained the amount of claims against the Post
Office Department, and the amount received respectively by the
claimants as aforesaid, and the provision, if any, for future
payment, make a report of the same so that future action may be
taken thereon as respects the distribution."
"SEC 4. All claims for postal service required to be presented
by this bill shall be barred as against this fund unless presented
within six months after the proclamation of the Postmaster General
shall have been made."
By another act of the Confederate Congress approved September
27, 1862, entitled "An act to provide for the payment of sums
ascertained to be due for postal service to citizens of the
Confederate States by the Postmaster General," it was provided:
"The Congress of the Confederate States of America do enact that
the Postmaster General of the Confederate
Page 139 U. S. 563
States do proceed to pay to the several persons, or their
lawfully authorized agents or representatives, the sums
respectively found due and owing to them for postal service
rendered in any of the states of this Confederacy under contracts
or appointments made by the United States government before the
Confederate States government took charge of such service, as the
said sums have been credited and ascertained by him under the
provisions of an act entitled"
"An act to collect for distribution the moneys remaining in the
several post offices of the Confederate States at the time the
postal service was taken in charge by said government,"
"approved the thirtieth day of August, 1861, but the sums
authorized by this act to be paid are only the balances found due
after all proper deductions shall have been made on account of
previous payments made by the United States, or any of the states,
or of available provisions made in whole or in part for such
payment by said government, or of any of the states, and after
making all proper deductions for failures or partial failures to
perform the service according to their several contracts or
appointments during the time for which they claim pay,
provided that the provisions of this act shall only extend
to loyal citizens of the Confederate States."
The Congress of the United States, by joint resolution passed
March 2, 1867, prohibited the payment of any account, claim, or
demand against the government to any person not known to have been
opposed to the Rebellion and in favor of its suppression. 14 Stat.
571. This resolution was carried forward into section 3480 of the
Revised Statutes, which provides:
"It shall be unlawful for any officer to pay any account, claim,
or demand against the United States which accrued or existed prior
to the 13th day of April, 1861, in favor of any person who
promoted, encouraged, or in any manner sustained the late Rebellion
or in favor of any person who during such Rebellion was not known
to be opposed thereto, and distinctly in favor of its suppression,
and no pardon heretofore granted, or hereafter to be granted shall
authorize the payment of such account, claim, or demand, until this
section is modified or repealed. But this section
Page 139 U. S. 564
shall not be construed to prohibit the payment of claims founded
upon contracts made by any of the departments where such claims
were assigned or contracted to be assigned prior to the first day
of April, 1861, to the creditors of such contractors, loyal
citizens of loyal stats, in payment of debts incurred prior to the
first day of March, 1861."
By an Act of the Legislature of Alabama approved February 8,
1867, the consolidation of the Dalton and Jacksonville Railroad
Company and the Georgia and Alabama Railroad Company, corporations
of Georgia, with the Alabama and Tennessee Rivers Railroad Company,
under the name of the Selma, Rome and Dalton Railroad Company, was
ratified, and the consolidated company invested with all the
rights, functions, powers, and privileges of the Alabama and
Tennessee Rivers Railroad Company.
The petition alleges that neither the plaintiff nor anyone for
it ever received payment for services rendered under the above
contract during the period from January 1, 1861, to May 31, 1861,
inclusive, except a small amount, (found by the court below to be
$95.19), or any compensation for the discontinuance of that
contract. For the reasons set forth in the opinion of the Court of
Claims in
Blount v. United States, 21 Ct.Cl. 274, this
action was dismissed.
The present suit is based upon a clause in the Act of Congress
approved March 3, 1877, making appropriations for sundry civil
expenses of the government of the fiscal year ending June 30, 1878.
19 Stat. 344, 362, c. 105. No right is asserted to recover
independently of that act. The clause in question provides
"That the sum of three hundred and seventy-five thousand
dollars, or so much thereof as may be necessary, be appropriated to
pay the amount due to mail contractors for mail service performed
in the states of Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, Missouri, North Carolina, South Carolina,
Texas, Tennessee, Virginia, and West Virginia, in the years
eighteen hundred and fifty-nine, eighteen hundred and sixty,
eighteen hundred and sixty-one, and before said states respectively
engaged in war against the United States, and the provisions
Page 139 U. S. 565
of section three thousand four hundred and eighty of Revised
Statutes of the United States shall not be applicable to the
payments herein authorized,
provided that any such claims
which have been paid by the Confederate States government shall not
again be paid."
We have seen that by the act of the Confederate Congress of
August 30, 1861, provision was made for the collection from
postmasters within the Confederate States of all moneys due from
them and not paid over to the United States at the time the
insurrectionary government took charge of the postal service within
the territory subject to its control, the sums so collected to
constitute a separate and distinct fund for the
pro rata
payment of claims against the United States for postal service
accruing before the control of that service was assumed by the
Confederate States. And by the Confederate enactment of September
27, 1862, the moneys so collected were directed to be used in
paying "to loyal citizens of the Confederate States" having unpaid
claims for postal services rendered in any of the Confederate
States, "under contracts or appointments made by the United States
government before the Confederate state government took charge of
such service." It is not disputed that the claim here in suit is of
the class for the payment of which the Confederate enactment of
1862 made provision. It is stated in
Blount v. United
States, 21 Ct.Cl. 274, 279, that $502,017.19 were paid out by
the Confederate government, under the above acts of 1861 and 1862,
but to whom did not appear. In the present case, no such fact
appears. Nor does it appear by direct positive proof in this case
that any claims of that character were ever paid by the Confederate
government to anyone.
It is, however, contended by the United States that the Act of
March 3, 1877, embraces only claims that appear not to have been
paid by the Confederate government. The contention of the plaintiff
is that it is entitled to judgment by force of that act upon proof
of services rendered by it unless the United States shows
affirmatively that its claim was paid by the Confederate States
government. These contentions rest
Page 139 U. S. 566
upon radically different interpretations of the act of 1877. We
are of opinion that Congress intended to provide for the payment of
only such claims as appeared not to have been paid by the
Confederate government. As the claims described in that act had
been at the date of its passage outlawed by limitation or by
express enactment forbidding their payment, and as Congress must be
presumed to have passed that act with knowledge of the Confederate
legislation of 1861 and 1862, we cannot believe that it was
intended to impose upon the United States the burden of showing
affirmatively that such claims had been paid by the Confederate
government. The object of the proviso "that any such claims which
have been paid by the Confederate States government shall not again
be paid" was to indicate the class of cases which the act embraced.
One of the objects of a proviso is to qualify or restrain the
generality of the enacting clause, "or to exclude some possible
ground of misinterpretation of it as extending to cases not
intended by the legislature to be brought within its purview."
Minis v. United
States, 15 Pet. 423,
40 U. S. 445.
If Congress had simply declared -- without embodying the
declaration in a "proviso" -- that all claims of the kind described
not previously paid by the Confederate government should be
recognized and paid, it would never occur to anyone that the United
States assumed the burden of showing that such claims had been thus
paid. The act of 1877 was in effect an invitation to all having
claims of the class described in it which had not been paid by the
Confederate States to present them for payment out of the sum
appropriated by it for that purpose, leaving those seeking the
benefit of the act to show that their claims were of that class.
Besides, as the fact of payment or nonpayment by the Confederate
government was peculiarly within the knowledge of the claimant of
within his power -- if in the power of anyone -- to establish, it
may well be supposed that Congress intended that a claimant, as a
condition of payment by the United States, should show that his
demand belonged to the class for which the act of 1877 provided.
But there was no proof on the subject by the plaintiff, nor does in
appear, if that fact were material, that such proof
Page 139 U. S. 567
was impossible. It prepared the case and went to a hearing upon
the theory that it was entitled to judgment upon proof simply of
the services rendered unless the United States showed that the
claim in suit had been in fact paid by the Confederate government.
We cannot accept that interpretation of the act.
If, however, the burden of proof was on the United States to
show that the plaintiff's claim had been paid by the Confederate
government, it would not follow that the plaintiff is entitled to
judgment. Proof of the Confederate legislation of 1861 and 1862,
under which "loyal citizens of the Confederate States" were assured
of payment out of moneys belonging to the United States and in the
hands of its appointees at the time the Confederate government
assumed control of the postal service within the country over which
it exercised authority -- which moneys the Confederate government
undertook to collect for distribution among those loyal to it -- in
connection with the fact that when the Confederate acts of 1861 and
1862 were passed, the plaintiff was carrying the mail for the
Confederate government, and therefore was in a position to enjoy
the benefit of its legislation, made a
prima facie case
which required the plaintiff to disclose such facts as were
peculiarly within its knowledge, and thereby make some showing that
its claim had not been paid -- a fact negative in form, but capable
of proof affirmative in its nature by the party who knew or could
easily ascertain the truth of the case. While the general rule is
that the burden of proof is where the pleadings place it -- namely
upon the party against whom judgment must go if no evidence
whatever is introduced -- its application is often affected by
circumstances. "From the very nature of the question in dispute,"
says Mr. Best,
"all or nearly all the evidence that could be adduced respecting
it must be in the possession of, or be easily attainable by, one of
the contending parties, who accordingly could at once put an end to
litigation by producing that evidence, while requiring his
adversary to establish his case, because the affirmative lay on him
or because there was a presumption of law against him, would, if
not amounting to injustice, at least be productive
Page 139 U. S. 568
of expense and delay. In order to prevent this, it has been
established as a general rule of evidence that the burden of proof
lies on the person who wishes to support his case by a particular
fact which lies more peculiarly within his knowledge, or of which
he is supposed to be cognizant."
Principles of Evidence, § 274; 1 Greenl.Ev § 79; Starkie Ev.
589. The books of account kept by the Alabama and Tennessee Rivers
Railroad Company, or someone connected with that corporation while
it was serving the Confederate government, might throw light upon
the question of payment. The presumption is that the plaintiff has
possession of those books, and that, in connection with the
evidence of those who kept them, they would disclose whether the
original contractor had or had not been paid by the Confederate
government out of the moneys of the United States which it
appropriated. It did not produce them. And there is no finding
inconsistent with the presumption that it was entirely within its
power to show, if such were the fact, that its claim had not been
paid by the Confederate government. So that the reasonable
inference from the facts found -- assuming that the burden of proof
was upon the United States -- is that the plaintiff's claim was not
of the class for the payment of which Congress legislated in
1877.
It appears from the finding of facts that shortly after the
passage of the act of 1877, the Secretary of the Treasury issued an
order that no payments be made out of the appropriation of $375,000
until all claims covered by the terms of the act should be received
and adjusted, and that if the appropriation proved to be
insufficient to pay all so adjusted, they should be paid
pro
rata. In consequence of that order, no claims were adjusted
within two years after the date of that act, and the appropriation
was covered into the Treasury under the requirement of the fifth
section of the Legislative, Executive, and Judicial Appropriation
Act of June 20, 1874, 18 Stat. 85, c. 328. Whether, under these
circumstances, a claimant under the act of 1877 could maintain a
suit in the Court of Claims against the United States without
further legislation by Congress or without a new appropriation is a
question which, in view of the disposition of the case upon other
grounds, we have not deemed it necessary to consider.
Judgment affirmed.