Smith v. United States
30 U.S. 292 (1831)

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U.S. Supreme Court

Smith v. United States, 30 U.S. 5 Pet. 292 292 (1831)

Smith v. United States

30 U.S. (5 Pet.) 292

Syllabus

Action of debt on a bond executed by Alpha Kingsley, a paymaster in the army, and by John Smith, T. and another, as his sureties, to the United States. The condition of the obligation was that Alpha Kingsley, "about to be appointed a district paymaster," &c., "and who will from time to time be charged with funds to execute and perform the duties of that station, for which be will be held accountable," &c., shall

"well and truly execute the duties of district paymaster, and regularly account for all moneys placed in his hands to carry into effect the object of his appointment."

On the trial, the plaintiff gave in evidence a duly certified copy of the bond, and a

"transcript from the books and proceedings of the Treasury Department of the account of Alpha Kingsley, late district paymaster, in account with the United States."

In this account, A. K. was charged with moneys advanced to him for pay, subsistence, and forage, bounties and premiums, and contingent expenses of the army, and credited with disbursements of the same, for the purposes for which they were paid to him, and showing a large amount of items suspended and disallowed, making a balance due to the United States of $48,492.53. The account was thus settled by the Third Auditor of the Treasury, and was duly certified to the Second Comptroller of the Treasury, and this balance was by him admitted and certified on 23 April, 1823. The account was further certified

"Treasury Department, Third Auditor's office, 1 September, 1824, pursuant to an act to provide for the prompt settlement o� public accounts, approved 3 March, 1817, I, Peter Hagner, Third Auditor, &c., do hereby certify that the foregoing transcripts are true copies of the originals on file in this office."

To this was annexed a certificate that Peter Hagner was the Third Auditor, &c.,

"In testimony whereof I, William H. Crawford, Secretary of the Treasury, have hereunto subscribed my name and caused to be affixed the seal of this department at the City of Washington this 1 September, 1824, (signed) Edward Jones, Chief Clerk, for William H. Crawford, Secretary of the Treasury."

The seal of the Treasury Department was affixed to the certificate. On the trial, the District Court of Missouri instructed the jury that

"As by the account it appears there are in it items of debit and credit to Kingsley, as district paymaster, it furnished evidence of his having acted as district paymaster and of his appointment as such."

By the court:

"There are two kinds of transcript which the statute authorizes the proper officers to certify. First, a transcript from 'the books and proceedings of the Treasury,' and secondly, 'copies of bonds, contracts, and other papers, &c., which remain on file, and relate to the settlement.'"

The certificate under the first head has been literally made in this case, and is a sufficient authentication of the transcript from "the books and proceedings of the Treasury," and is a substantial compliance with the requisitions of the statute.

The objection that this signature of the Secretary of the Treasury was signed by his chief clerk seems not to be important. It is the seal which authenticates

Page 30 U. S. 293

the transcript, and not the signature of the Secretary. He is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved in deciding this point, whether the Secretary of the Treasury can delegate to another the power to do an official act which the law devolves on him personally.

The defendant pleaded that Alpha Kingsley was removed from office on 1 April, 1815, and on 15 September reported himself to the Treasurer of the United States as ready for the settlement of his accounts, at which time and long afterwards he was solvent and able to pay the full amount of his defalcation; that no notice was given to him by the Treasury to account for moneys in his hands, nor to the defendant, until the commencement of the suit, and that before the commencement of the suit, K. became insolvent. The United States demurred to this plea; the District Court of Missouri sustained the demurrer and gave judgment for the United States. There was no error in the judgment.

Sound policy requires that the accounts of disbursing officers should be adjusted at the proper department with as much dispatch as is practicable. This is alike due to the public and to the persons who are held responsible as sureties, to the individual who has received advances of money, no lapse of time nor change of circumstances can weaken the claim of government for reimbursement; but there may be some cases of hardship where, after a great lapse of time and the insolvency of the principal, the amount of the defalcation is sought to be recovered from the sureties. The law on this subject is founded upon consideration of public policy; while various acts of limitation apply to

the concerns of individuals, none of them operates against the government. On this point there is no difference of opinion among the federal or state courts.

The fiscal operations of the government are extensive and often complicated. It is extremely difficult at all times, and sometimes impracticable to settle the accounts of public officers, with as little delay as attends the private accounts of a mercantile establishment. But it is always in the power of an individual who may be held responsible for the faithful conduct of a public agent to see that his accounts are settled and the payment of any

balance enforced. A notice to the government by the surety that he is unwilling to continue his responsibility would induce it in most instances to take the necessary steps for his release.

By the Act of Congress of 3 March, 1797, a notice is required to be given by the Auditor of the Treasury to any person who had received public moneys for which he is accountable fixing a reasonable time for the production of vouchers for the expenditures, and in default, costs are to be charged against the delinquent, whether in a suit judgment be given for or against him on a revision of the settlement by the comptroller, after having caused notices to be served of the items disallowed, &c., the decision is declared to be final and conclusive. If there had been no subsequent act of Congress on this subject, it might be important to inquire whether the notice authorized by this act was not merely directory to the officers, and essential only to subject the delinquent to the penalties provided. By the acts of 3 March, 1797, and 3 March, 1817, material changes are made in the accounting department of the government, and although the act of 1795 may not be expressly repealed, yet it is abrogated by new and substantive provisions. Under the present mode of

Page 30 U. S. 294

proceeding against defaulters, the notice authorized by the act of 1795 is unnecessary.

Although on each of the principal objections relied on as showing error in the proceedings of the district court, a majority of the members of this Court think there is no error, yet the judgment of the district court must be reversed, as on the question of reversal, the minorities unite and constitute a majority of the Court.

The United States instituted a suit against the plaintiff in error, John Smith, T. who, with Wilson P. Hunt, were, by a bond executed on 7 February, 1810, in the sum of $10,000, the sureties of Alpha Kingsley, appointed a district paymaster in the Army of the United States under the act of Congress passed on 16 March, 1802. Alpha Kingsley was dismissed from the service of the United States in 1815. The action was commenced in December, 1824.

The pleadings are stated fully in the opinion of the Court.

Page 30 U. S. 295

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