[United States v. Macdaniel.]

Whatever may now be the construction of this act, as it regards the duties of the commandant, it appears he was not required to make the disbursements which were made by the defendant; and consequently they could not have been considered, at that time, as forming a part of the duties of commander of the navy yard.

By the act of the 10th July 1832, congress authorized the appointment of a separate and permanent agent at Washington, who shall be entitled "to the same compensation, and under the same responsibilities, and to be governed by the same laws and regulations which now are, or may hereafter be adopted for other navy agents;" and it is made his "duty to act as agent not only for the navy yard in the city of Washington, but for the navy department, under the direction of the secretary thereof, in the payment of such accounts and claims as the secretary may direct."

By this act, that part of the act of 1804 which required the commander of the navy yard at the city of Washington to act as agent, is repealed.

Until the defendant was removed from office, in 1829, he continued to discharge the duties as special agent for the navy disbursements. But after that period, it is stated that a new construction of the act of 1804 being given, those duties were required to be performed by the commander of the navy yard, who continued to discharge them until an agent was appointed under the act of the last session.

Until this time, the act of 1804 seems never to have been construed, by the head of the navy department, as providing for the special services performed by the defendant; and it would seem from the provision of the late act, which requires the agent to act, not only for the navy yard, but for the navy department, and to "pay such accounts and claims as the secretary may direct," that the former construction was correct; and the court are of this opinion. These duties would not have been so specially stated in the act of last session, if they had been considered by congress as coming within the ordinary duties of an agent for the navy yard. But, independent of this consideration, it is enough to know that the

[United States v. Macdaniel.]

duties in question were discharged by the defendant, under the construction given to the law by the secretary of the navy.

It will not be contended that one secretary has not the same power as another, to give a construction to an act which relates to the business of the department. And no case could better illustrate the propriety and justice of this rule, than the one now under consideration.

The defendant having acted as agent for navy disbursements for a great number of years, under different secretaries, and having uniformly received one per cent, on the sums paid, as his compensation, he continues to discharge the duties and receive the compensation, until a new head of the department gives a different construction of the act of 1804, by which these duties are transferred to the commander of the navy yard. By this new construction, whether right or wrong, no injustice is done to the defendant, provided he shall be paid for services rendered under the former construction of the same act. But such compensation has been refused him.

It is insisted that as there was no law which authorized the appointment of the defendant, his services can constitute no legal claim for compensation, though it might authorize the equitable interposition of the legislature. That usage, without law or against law, can never lay the foundation of a legal claim, and none other can be set off against a demand by the government.

A practical knowledge of the action of any one of the great departments of the government, must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for every thing he does. No government could be administered on such principles. To attempt to regulate, by law, the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the exercise of its powers, there are numberless things which must be done, that

[United States v. Macdaniel.]

can neither be anticipated nor defined, and which are essencial to the proper action of the government. Hence, of necessity, usages have been established in every department of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. And no change of such usages can have a retrospective effect, but must be limited to the future.

Usage cannot alter the law, but it is evidence of the construction given to it; and must be considered binding on past transactions.

That the duties in question were discharged by the defendant during office hours, can form no objection to the compensation claimed. They were required of him by the head of the department, and, being a subordinate, he had no discretion. to decline the labour and responsibility thus imposed. But seeing that his responsibility would be greatly increased, and perhaps his labour, the secretary of the navy increases his compensation, as in justice he was bound to do.

In discharging the ordinary duties of clerk, the compensation of the defendant was fixed at fourteen hundred dollars; but when the duties of agent for navy disbursements were superadded to those of clerk, there is an adequate augmentation of pay given to him. Is there any thing unreasonable or unjust in this?

But it is said there was no law authorizing such an officer to be appointed.

That the duties performed by the defendant were necessary for the public service, has not been denied; nor is it pretended that the commissions allowed him, were higher than the amount paid for similar services elsewhere. The payments by him were legal, and being made under the immediate direction of the secretary of the navy, errors were avoided which might have occurred under other circumstances.

It must be admitted that there was no law authorizing the appointment of the defendant, nor was it considered necessary that there should be a special statutory provision on the subject. For the convenience of the officers of the navy and others who were engaged in the service of the department, certain disbursements became necessary; and as no law spe

[United States v. Macdaniel.]

cially authorized the appointment of an agent for this purpose, they were required to be made by a clerk.

In this manner were these payments made for fifteen years, under different secretaries of the navy, and the same rate of compensation, as now claimed, was allowed. The charge was sanctioned by the accounting officers of the treasury department, and no objection was ever made to it by the committees. of congress, who annually inspected the books of the denart

ment.

It would seem, therefore, whether the claim of the defendant be varied in reference to the services performed or to the long sanction which has been given to them by the navy and treasury departments, its justice is unquestionable. The government does not deny the performance of the services by the defendant, nor that they do in equity entitle him to compensation; but, as his appointment was without legal authority, it is insisted he can obtain compensation only by application to

congress.

An action of assumpsit has been brought by the government to recover from the defendant the exact sum, which, in equity, it is admitted he is entitled to receive, for valuable services rendered to the public, in a subordinate capacity, under the express sanction of the head of the navy department. This sum of money happens to be in the hands of the defendant, and the question is whether he shall, under the circumstances, be required to surrender it to the government, and then petition congress on the subject.

A simple statement of the case would seem to render a very different course.

proper

If some legal provision be necessary to sanction the payment of the compensation charged, application should be made to congress by the head of the department, who required the service and promised the compensation. But no such provision is necessary. For more than fifteen years the claim has been paid for similar services, and it is now too late to withhold it for services actually rendered. It would be a novel principle to refuse payment to the subordinates of a department, because their chief, under whose direction they had faithfully served the public, had mistaken his own powers, and had given an

[United States v. Macdaniel.]

erroneous construction of the law. But the case under consideration is stronger than this. It is not a case where payment for services is demanded, but where the government seeks to recover money from the defendant, to which he is equitably entitled for services rendered. This court cannot see any right, either legal or equitable, in the government, to the sum of money for the recovery of which this action was brought. They think that the secretary of the navy, in authorizing the defendant to make the disbursements, on which the claim for compensation is founded, did not transcend those powers which, under the circumstances of the case, he might well exercise. And they therefore think that the circuit court did not err in refusing to give the instructions to the jury as prayed by the attorney of the United States. The judgment of the circuit court is therefore affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed.

VOL. VII.-C