THE UNITED STATES, PLAINTIFFS IN ERROR V. ELEAZAR W. RIPLEY.

The United States brought an action against general Ripley for a certain amount of public money he had, as was alleged, failed to account for and pay over as the law required. The defendant was in the service of the United States from 1812 to 1817; and was promoted at different periods, until he resigned his commission as major-general by brevet in the latter year. During this period he rendered distinguished and active military services to his country, and received the pay and emoluments to which his rank entitled him, under the law and regulations applicable thereto. Large sums of moneys passed through his hands, and were disbursed by him for the supplies of the troops under his command. He claimed a commission on these sums, and offered evidence to prove that similar allowances had been made to others. He also claimed extra pay or compensation for services performed by him, not within the line of his duty, in preparing plans of fortifications, and for procuring and forwarding supplies of provisions, &c. to troops of the United States, beyond his military command. These claims were resisted by the United States on the ground that no other compensation could be allowed to him than such as was mentioned or defined by the laws of the United States, by instructions of the president, or by the legal regulations of the war department.

It is presumed that every person who has been engaged in the public service has received the compensation allowed by law, until the contrary appear. The amount of compensation in the military service may depend, in some degree, on the regulations of the war department; but such regulations must be uniform, and applicable to all officers under the same circumstances.

If the disbursements, for which compensation is claimed, were not such as were ordinarily attached to the duties of the officer, the fact should be stated; and also that the service was performed under the sanction of the government, or under such circumstances as rendered the extra labour and responsibility assumed in performing it necessary.

Should the accounting officer of the treasury refuse to allow an officer the established compensation which belongs to his station, the claim, having been rejected by the proper department, should, unquestionably, be allowed by way of set-off to the demand of the government by a court and jury. And it is equally clear, that an equitable allowance should be made in the sanie manner for extra services performed by an officer which did not come within the line of his official duty, and which had been performed under the sanction of the government, or under circumstances of pecu

[United States v. Ripley.]

liar emergency. In such a case the compensation should be graduated by the amount paid for like services under similar circumstances. Usage may be safely relied upon in such cases, as fixing a just compensation. However valuable the plans for fortifications, prepared by a public officer, may have been, unless they were prepared at the request of the government, or were indispensable to the public service, as a matter of right, a compensation for them cannot be claimed.

The claims of compensation set up in this case, must be brought within the established rules on the subject, before they can receive judicial sanction.

ERROR from the district court of the eastern district of Louisiana.

In the district court of the United States for the eastern district of Louisiana, the United States, on the 7th of September 1822, instituted proceedings by two petitions, claiming in one, "the sum of thirteen thousand one hundred and sixtythree dollars, and ten cents, as due by Eleazar W. Ripley, late major-general in the army of the United States, which, on the 9th day of April 1821, at the treasury department, was found against him, on a statement and settlement of his account;" and claiming in the other, "the sum of four thousand one hundred and fifty-four dollars and ninety-five cents, which, on the 5th day of May 1821, at the treasury department, was found against him on the settlement and statement of his account."

To that petition the defendant pleaded that he was not indebted to the United States; and the case was afterwards, on the 28th of May 1830, submitted to a jury, and a verdict was found for the defendant in the following terms.

the defendant as follows:

"Amount of his account, less $500 lost,

"Verdict for

$13,060 22

"Extra services at Washington,

2,000 00

$15,060 22

"Deducting therefrom balance due the United

States,

11,929 32

$3,130 90

"A. CHARBONNET.

"New Orleans, 29th of May 1830."

Upon the verdict, the court ordered that the United States

[United States v. Ripley.]

take nothing by their petitions: and the United States prosecuted this writ of error.

On the trial of the cause, the district attorney of the United States took the following bills of exceptions.

"Be it remembered, that on this 28th day of May 1830, on the trial of this cause, the defendant offered the following testimony: The defendant entered in the army of the United States in the year 1812, as a lieutenant-colonel; was promoted at different periods until he attained the rank of major-general by brevet, which rank he held until the day of his resignation of his commission, in the year 1817. During this interval the defendant was engaged in active service, and received the pay and emoluments to which his rank entitled him, under the laws of the United States, and the regulations of the president of the United States, and of the department of war. Large sums of money passed through his hands, and were passed over by him to various officers in the army under his command, and to others who have been appointed by him to act as such, or were disbursed by him for the supplies of the troops by him commanded. He claimed to be allowed a commission on these disbursements, and offered evidence to prove that similar allowances had been made to other officers of the line of the army, who had been charged with the disbursements of public moneys; and also offered evidence to prove what would be a fair rate of compensation for such services. The defendant also claimed an allowance of extra pay or compensation for services performed by him, not within the line of his duty, in preparing plans for fortifications, and for procuring and forwarding supplies of provisions, &c., to troops of the United States, beyond the limits of his military command, and offered testimony to prove the value of said services. To the introduction of all which testimony, the attorney for the United States objected, on the ground that no other or further compensation could be allowed for disbursements made, or extra services rendered, as aforesaid, than such as were sanctioned or defined by the laws of the United States, by instructions of the president of the United States, or by regulations of the war department, legally made. But the court overruled the objection and admitted the testimony."

United States v. Ripley.]

"And be it further remembered, that on the trial of this cause, the testimony in the case having been closed, the attorney of the United States prayed the court to instruct the jury that no allowance in the form of commissions or otherwise, for moneys disbursed, as aforesaid, or extra compensation for services rendered under the circumstances hereinbefore stated, could be admitted as a legal and equitable set-off against the claims of the United States; other than such as were sanctioned and defined by the laws of the United States, by instructions of the president of the United States, or by regulations of the department of war, legally made. But the court refused so to instruct the jury, but stated to them that the defendant was entitled to credit for commissions on disbursements, and allowances for extra services, and that they must judge of the rate and extent of such commissions.”

The case was argued, for the plaintiffs in error, by Mr Taney, attorney-general of the United States; no counsel appeared for the defendant in error.

For the United States, it was contended, that from the bill of exceptions and the verdict of the jury, it appeared that some of the services for which extra compensation was claimed were rendered by general Ripley in the line of his duty, and that it did not appear that others were so performed, but the government had the advantages of the services. The receiving and paying money for which commissions are claimed, were of the former description, and are not represented otherwise. Other charges are made on the allegation that they are for services out of, or beyond his duty.

The question to be decided by the court, depends upon the fourth section of the act of congress of 1794, 2 Laws U. S. 594.

By that law no claims can be made which could not be allowed by the accounting officers of the treasury in the settlement of accounts. It was not intended that claims which could not be presented to those officers, claims for services which were not, by the law regulating the duties of those who made the claims, authorized and designated, and for which the officers of the treasury could not admit a right to compensation.

[United States v. Ripley.]

should be submitted to a court and jury. The errors of the accounting officers, in their construction of the laws, could alone be brought before a court and jury. The term "justly," which is found in the fourth section of the act, was not intended to enlarge the powers of the court and jury beyond that given to the accounting officers.

It is admitted that if the credits or debits claimed against the government were of such a nature that they should have been allowed by the accounting officers, a court and jury have a right to judge of their amount or extent, but they must have been previously submitted at the treasury. There is no difference in the application of this rule to debtors and creditors of the United States.

The principle which is implied in these positions is, that the law never meant to invite resistance in courts of justice by those upon whom the government had claims, by referring the credits of which they could not avail themselves with the accounting officers of the treasury, to courts of law: a contrary deduction from the statute would require strong language to sustain it. To illustrate and maintain these views of the law, the third section of the act was referred to, and the case of the United States v. Wilkins, 6 Wheat. 144, was cited.

The only credits which can be claimed by an officer in the service of the United States, are those for services performed under the authority of a law, by a contract made by an officer or agent of the government, authorized to make the contract. Although services may have been rendered, and the government may be bound in equity and good conscience to allow a compensation for them, yet if the auditor of the treasury could not allow for them, courts and juries cannot look into them. This rule does not apply to the sum or amount, unless a specific sum is stated in the contract, and in such a case the amount stated is conclusive. It is not contended that any difference exists between implied contracts with the government, when a law has authorized a contract, and implied contracts with individuals. The authority to make the contract to bind the United States must be shown.

Upon these principles, it was the duty of the defendant in error to have shown the provisions of the law, or the regulations