1. The voluntary payment by an officer of the federal government
of money held by hum for the government to a creditor of the United
States cannot be set up by him or his sureties as a defense in a
suit on his official bond.
2. The whole Confederate power must be regarded by this Court as
a usurpation of unlawful authority, and its Congress as incapable
of passing any valid laws, whatever weight may be given under some
circumstances to its acts of force on the ground of irresistible
power or to the legislation of the states in domestic matters, as
to which the Court decides nothing now.
Page 76 U. S. 84
3. A depositary of the money of the United States or a public
debtor cannot defend against a suit on his official bond by proving
that he paid the money due the United States to one of its
creditors under an order of the Confederate authorities where he
shows no force or physical coercion which compelled obedience to
such order.
4. In a suit on an official bond, the obligation is not that of
a mere depositary, but of a person who has made a contract which he
must at his own peril perform.
5. The Acts of Congress of April 29, 1864, and March 3, 1865,
furnish the only exceptions to this rule which this Court can act
upon.
The case was this:
Keehler, the defendant, had been appointed postmaster at Salem,
in the state just named, some years before the rebellion broke out.
His official bond, with sureties, was in the ordinary form, and was
conditioned well and truly to execute the office of postmaster, and
among other things, to render accounts once in three months, and to
pay all balances, and to keep safely, without lending, using,
depositing in banks, or exchanging for other funds, than as allowed
by law, all the public money at any time in his custody, till the
same was ordered by the Postmaster General to be transferred or
paid out, and that when such orders for transfer or payment were
received, that he should faithfully and promptly make the transfer
or payment as directed.
Keehler was still postmaster when the rebellion broke out in the
spring of 1861, and had in his hands $330 of post office money
belonging to the United States. On the other hand, the United
States were indebted to one Clemmens, a mail contractor in that
region, for postal service in a sum exceeding $300, and the sum due
to Clemmens by the United States had never been paid.
In August, 1861, the Congress of the so-called Confederate
States passed an act appropriating the balances which were at the
date of the breaking out of the rebellion in the hands of the
several postmasters of the United States who resided
Page 76 U. S. 85
within the limits of the states then in rebellion, to the
pro rata payment of claims against the United States for
postal service; and in pursuance of the said act and in obedience
to a regular official order from the Post Office Department of the
so-called Confederate States directing him to pay to Clemmens the
whole sum of money in his, the said Keehler's, hands, received for
the United States previous to the 1st of June, 1861, the said
Keehler, on the 10th of April, 1862, paid to Clemmens the $330, and
Clemmens gave him a receipt for it in form.
It was an admitted part of the case that the post office at
Salem was, in 1861, a collection office, and that Clemmens was the
mail contractor, named in his special instructions, to whom the
postmaster at Salem was required to pay over the net proceeds of
his office quarterly, upon the production, by Clemmens, from time
to time,
of the proper orders and receipts from the Post Office
Department of the United States, and an admitted fact,
moreover, that throughout the year 1862, the so-called Confederate
government had force sufficient at its command to enforce its
orders, and did enforce the orders of said government, in that part
of North Carolina in which Salem is situated, and that no
protection was afforded to the citizens of that part of the state
by the government of the United States during that term.
The rebellion being suppressed, the United States brought suit
against Keehler and his sureties on their official bond, already
mentioned. The pleas were conditions performed, conditions not
broken, and especially that the balance claimed by the United
States, to-wit, the $330, had been paid over and delivered by
Keehler to the said Clemmens on the 10th day of April, 1862, under
the circumstances above stated. Upon this case, so agreed on, the
judges of the circuit court were divided in opinion on the question
whether the law was for the plaintiff or for the defendant.
Page 76 U. S. 86
MR. JUSTICE MILLER delivered the opinion of the Court.
The defense, which the facts of the statement seek to set up to
this action, will be noticed under three heads.
1. He paid the amount to one Clemmens, who was a mail carrier on
the route which embraced the post office of Keehler, and to whom
Keehler had been directed to pay the money he might have as
postmaster upon the production by said Clemmens of proper orders
from the Post Office Department. It was admitted that the
government, at the commencement of the rebellion, owned Clemmens
more than this sum, but it is not claimed that he had any orders
for the money from the Post Office Department of the United
States.
Can this voluntary payment to a creditor of the United States be
pleaded to a suit on the bond?
It is hardly necessary to say that such a payment is no
compliance with the condition of the bond. It is therefore not good
under a plea of covenants or conditions performed. Nor can it be
used as an equitable setoff, because it would produce endless
confusion in the accounts of the department and lead to double
payments and serious embarrassments in its business if every
postmaster who had government money could select a creditor of the
United States and pay what he might suppose the government owed
him.
2. It is stated that the Confederate Congress passed an act
appropriating balances of this kind to the payment of claims
against the United States for postal service where the parties
resided within the limits of the states in rebellion, and that
under this act, an order was drawn by the post office department of
the Confederate States on Keehler directing him to pay this money
to Clemmens, and that on this order it was paid.
It certainly cannot be admitted for a moment that a statute of
the Confederate States or the order of its Postmaster General could
have any legal effect in making the payment to Clemmens valid. The
whole Confederate power must be regarded by us as a usurpation of
unlawful authority, incapable of passing any valid laws and
certainly incapable of divesting, by an act of its Congress or an
order of one of
Page 76 U. S. 87
its departments, any right or property of the United States.
Whatever weight may be given under some circumstances to its acts
of force on the ground of irresistible power, or whatever effect
may be allowed in proper cases to the legislation of the states
while in insurrection -- questions which we propose to decide only
when they arise -- the acts of the Confederate Congress can have no
force as law in divesting or transferring rights, or as authority
for any act opposed to the just authority of the federal
government. This statute of the Confederate Congress and this draft
of its post office department are not, therefore, a sufficient
authority for the payment to Clemmens.
3. But it is further stated (this payment being made on the 10th
April, 1862), that throughout the year 1862, the so-called
Confederate government had force sufficient to enforce its orders,
and did enforce them in that part of North Carolina where defendant
resided, and that no protection was afforded to the citizens of
that part of the state by the United States government during that
period.
It will be observed that this statement falls far short of
showing the application of any physical force to compel the
defendant to pay the money to Clemmens. Nor is it in the least
inconsistent with the fact that he might have been desirous and
willing to make the payment. It shows no effort or endeavor to
secure the funds in his hands to the government, to which he owed
both the money and his allegiance. Nor does it prove that he would
have suffered any inconvenience or been punished by the Confederate
authorities if he had refused to pay the draft of the
insurrectionary post office department on him. We cannot see that
it makes out any such loss of the money, by inevitable overpowering
force, as could even on the mere principle of bailment discharge a
bailee. We cannot concede that a man who as a citizen owes
allegiance to the United States, and as an officer of the
government holds its money or property, is at liberty to turn over
the latter to an insurrectionary government, which only demands it
by ordinances and drafts drawn on the bailee, but which exercises
no force or threat of personal
Page 76 U. S. 88
violence to himself or property in the enforcement of its
illegal orders.
But this Court has decided more than once that in an action on
the official bonds of such officers, the right of the government
does not rest on the implied contract of bailment, but on the
express contract found in the bond, to pay over the funds. And on
this principle it was held in
United States v. Prescott
[
Footnote 1] that a plea which
averred positively that the money was stolen from the officer,
without any fault or negligence on his part, was no defense. It
would be difficult to find a stronger case for relief from a
contract to keep safely and pay over the public money than this.
But the Court held that the contract was one which the defendant
had voluntarily undertaken and which he must at his own peril
perform. This ruling was repeated in
United States v.
Dashiel, [
Footnote 2] also
in
United States v. Morgan. [
Footnote 3] Such was the law as declared by this Court
long before the rebellion broke out, and however hard it may be in
some of its aspects, the Court has no option but to act on it.
But Congress seems not to have been inattentive to the injustice
which the rule might work in some cases, and has, by the Act of
April 29, 1864, [
Footnote 4]
provided for the relief of postmasters situated like defendant who
have manfully done their duty. That act provides that in all cases
where loyal postmasters have been robbed by Confederate forces or
rebel guerillas, without fault or neglect of such postmaster, the
Postmaster General may credit them in settlement with the amount
lost by the robbery, and if the officer had settled and paid the
amount before the law was passed, it should be paid back to him.
And by the act of March 3, 1865, the relief is extended to losses
by any armed force whatever, either by robbery or burning. These
statutes recognize the rule laid down by this Court and provide for
such exceptions as can be brought within their terms. For other
cases, which present peculiar claims for relief, as this may do if
it shall be shown that the claim of Clemmens
Page 76 U. S. 89
would be a just subsisting demand against the government but for
this payment, the parties must resort to Congress. The court is not
authorized to make other exceptions than those made by the
statutes.
Our answer to the question certified to us by the circuit court
is that, on the facts stated,
The United States is entitled to a judgment.
[
Footnote 1]
44 U. S. 3 How.
578.
[
Footnote 2]
71 U. S. 4
Wall. 185.
[
Footnote 3]
52 U. S. 11
How. 162.
[
Footnote 4]
13 Stat. at Large 62.
