[United States v. Macdaniel.]

which they were entitled to be paid. The question then is, whether he is entitled to commissions on the disbursements of money, which properly belonged to the duties of other agents.

By the act of congress of 22d March 1804, 3 Laws U. S. 619, the commandant of the navy yard at Washington was required to perform all the duties which have been performed by the defendant in error.

This continued to be the law until July 10, 1832, when congress passed an act repealing the provision assigning the duties of navy agents to the commandant of the navy yard, and authorizing the appointment of a permanent navy agent. The act of 1809, 4 Laws U. S. 221, did not embrace the navy yard at Washington.

Capt. Tingey was for many years the commandant of that navy yard; but he did none of the duties assigned to him by the act of 1804: those duties were performed by the defendant. The case then was that of an officer of the United States, on whom duties were specially imposed, omitting to comply with them, and those duties executed by another person, who had no authority under any law to perform them. All the allowances, therefore, made to him for commissions on disbursements, as all his disbursements were such as ought to have been made by the commandant of the navy yard, were in violation of the act of 1804. These allowances have been made by a mistake of the law, and cannot be set off. of the navy department, by allowing payments not authorized by law, or by one not entrusted and directed by law to make them, authorize a compensation for them? This is denied.

Can the head

The first question to be decided by the court is, what is the true construction of the act of 1804? The second is, how far the navy department can authorize the allowance of commissions, if they are not within the provisions of that act?

The language of the act of 1804 is such as to show clearly that all the payments to be made at the navy department, which were made by the defendant, were to be made by the commandant of the navy yard. For this purpose that office was created and the officer appointed.

When the law has fixed and established the duties of an officer, another person, or another officer, cannot be charged

[United States v. Macdaniel.]

with them. When duties are not defined, and when any one has an appointment in a department, the officer at the head of the department may enlarge the duties of the subordinate, and they must be executed. If these are extra duties, or new duties, it does not follow that any additional compensation is to be made. The decision of the head of the department is conclusive on this subject.

But the case before the court is not that of enlarging duties, or of calling for the performance of new ones, for which no officer has been appointed; it is that of giving duties to one, when another is the proper officer assigned by law to do them. The right to do this is denied. When the law is silent, the department may sanction an allowance, but when the law expressly provides for the service, no usages, no direction can be set up to control the law. It is precisely the same case in principle as if it had said the duties shall not be performed by any other.

It is admitted that if usage can sanction the allowance claimed by the defendant, it is sustained; but it is denied that usage is of any value when it is in direct violation of law. As to the suggestion, that if the allowances which have been made to the defendant in accounts finally settled at the treasury were made in violation of law, then the same should be reimbursed to the United States, the answer is, that the accounts, having been adjusted, are finally disposed of. The accounting officers of the treasury act judicially upon accounts submitted to them, and no claim can be made for the repayment of allowances made by them in accounts which have been finally disposed of by them.

Mr Coxe and Mr Jones, for the defendant in error.

They denied that by the act of 1804 the duties performed by the defendant were assigned to the commandant of the navy yard at Washington. He was by that act made the navy agent at that navy yard, but he was not authorized to make, nor did he ever make payments from the navy department. The words of the act are "agent of the department," not navy agent. The duties of navy agent are not defined, and must necessarily rest in a great degree on the discretion of the secreVOL. VII.-B

[United States v. Macdaniel.]

tary. Mr Macdaniel has for twelve years been the agent for these payments, and he has been so under the uniform construction of that law which is now contended for in his favour. If he was not a clerk in the navy department, the duties performed by him, for which the commissions are claimed, did not appertain to those of any other officer. The allowances made to him have appeared in accounts which have passed under the scrutiny of a committee of congress without exception, and they have been sanctioned by every secretary of the navy while he performed the duties for which they are claimed.

The account of the defendant does not show any expenditures at the navy yard of Washington. It shows miscellaneous disbursements in various parts of the United States, and this under the immediate directions of the secretary here, and done as a special agent, out of the ordinary duties of the local navy agents.

The long usage should settle the construction of the law if it was doubtful; and the objection to pay for services rendered under this long secured construction, is founded on no principles of justice. It was for the head of the department to ascertain what the law was; and his construction of it should prevail; most certainly in favour of services performed under his directions, and with the anticipation of a compensation for them, derived from the uninterrupted usages of the depart

ment.

Mr Justice M'LEAN delivered the opinion of the Court.

A writ of error is prosecuted in this case, by the United States, to recover a judgment of the circuit court for the district of Columbia.

The action was brought by the government to recover from the defendant a balance charged against him, on the books of the treasury department, amounting to the sum of nine hundred and eighty-eight dollars ninety-four cents.

In his defence, the defendant proved that he was a clerk in the navy department, upon an annual salary of fourteen hundred dollars; and that he also acted as the agent for the payment of the moneys due to the navy pensioners, the privateer pensioners, and for the navy disbursements. That the moneys

[United States v. Macdaniel.]

applied to the use of these objects, were placed in his hands by the government. That he received the annual sum of two hundred and fifty dollars, for his services, in the payment of pensioners; but that for ten or fifteen years, he received one per cent on moneys paid by him for navy disbursements.

That these disbursements amounted to from the sum of fifty, to a hundred thousand dollars a year, and that no security was required from him. He claimed the usual allowance of one per cent, upon certain sums of money, disbursed by him, which had been rejected by the treasury officers, but which, if allowed, would show that he was not indebted to the government.

Upon this state of facts, the attorney for the United States prayed the court to instruct the jury, that if they should believe the same to be true, that still the defendant had no right by law to the commissions which he claims, as the sum charged had never been allowed to him by any department of the government; and that it was not in the power of the jury to allow the commissions on the trial. But the court refused to give the instructions, and a bill of exceptions was taken.

Two questions are made by the bill of exceptions, for the decision of this court.

1. Whether the defendant has a right to compensation for the services charged.

2. Whether, if such right existed, it should have been allowed on the trial, as the proper department had decided against it.

As to the second ground, it may be proper to remark, that the rejection of the claim of the defendant by the treasury department, formed no objection to the admission of it by the court, as evidence of offset to the jury. Had the claim never been presented to the department for allowance, it would not have been admitted as evidence by the court. But, as it had been made out in form, and presented to the proper accounting officer, and was rejected, the circuit court did right in submitting it to the jury; if the claim was considered to be equitable. On the part of the government, it is contended that, in a case like the present, the court, in admitting evidence of offset against the claim of the government, is limited, not only to

[United States v. Macdaniel.]

such items as were exhibited to the auditor, but to such as were strictly legal, and which he should have allowed.

This limitation on the power of the court, cannot be sanctioned. It is admitted, that a claim which requires legislative sanction, is not a proper offset, either before the treasury officers or the court. But there may be cases, in which, the service having been rendered, a compensation may be made within the discretion of the head of the department; and in such cases, the court and jury will do, not what an auditor was authorized to do, but what the head of the department should have done, in sanctioning an equitable allowance.

It being clear, that the circuit court did not err, in allowing the offset of the defendant, if he had a right to compensation for the services rendered, the validity of this right will be the next point for inquiry.

On the part of the government, it is contended, that the head of a department may vary the duties of the clerks in his department, so as to give despatch and regularity to the generai business of the office; but that by such changes, no clerk or other officer of the department, has a right to an increase of compensation. That it appears in the present case there was no increase of labour, as to time; as, the services for which compensation is charged were rendered during office hours. And it is also insisted, that the duties discharged belonged to another officer of the government; and that it is not competent for any officer of the government, even the president himself, to take from one officer certain duties which the law has devolved upon him, and require another to discharge them.

By the act of 27th March 1804, the president was authorized to "attach to the navy yard at Washington city, and to frigates and other vessels, laid up in ordinary in the eastern branch, a captain of the navy, who shall have the general care and superintendence of the same, and shall perform the duties of agent to the navy department."

Under this law, the attorney-general contends it was the duty of the commandant at the navy yard to make the disbursements which were made by the defendant; and consequently, no compensation for such services can be allowed to the defendant.