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[United States v. Macdaniel.]

that can neither be anticipated nor defined; and which are essential to the proper action of the government. Hence, of necessity, usages have been established in every part of the government, which nave become kind of common law, and regulate the rights and auties 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.

This 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 proper a very different course.

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 given an erroneous construction to the law. 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.

ERROR to the circuit court of the United States for the county of Washington, in the district of Columbia.

This action was brought on the 14th of August 1829 in the circuit court by the United States, to recover from the defendant the sum of nine hundred and eighty-eight dollars and ninety-four cents, alleged to have been found due on a settlement of his accounts by the accounting officers of the treasury department.

The case was tried in May 1831, and a verdict and judgment rendered for the defendant; to reverse which judgment, the United States prosecuted this writ of error.

Before the verdict was given, the district attorney of the

[United States v. Macdaniel.]

United States filed the following bill of exceptions. After stating that the United States gave in evidence an account against the defendant, settled at the treasury, upon which they claimed from the defendant a balance of nine hundred and eighty-eight dollars and ninety-four cents, with interest from August 3d, 1829, the bill of exceptions proceeds:

"The defendant then examined a witness to prove that the said defendant was a clerk in the navy department, at an annual salary of fourteen hundred dollars, and while he was so acting, he was engaged and acted as the agent for the payment of the money due to the navy pensioners, the privateer pensioners, and acted also as a special agent for the navy disbursements; and the moneys which were applied to the use of those objects were placed in his hands by the government, to be disbursed by him. That he was allowed for his services in the payment of pensions, the annual sum of two hundred and fifty dollars. But he has no knowledge that any annual sum was ever allowed him for his services as a special agent for the navy disbursements. The witness stated that he was also a clerk in the navy department, and was in the habit of stating the defendant's accounts as special agent; and he knows that a commission of one per cent was always allowed him, to his knowledge, for ten or fifteen years past, until the settlement of the present account, upon his disbursements as special agent for the navy disbursements.

"The witness further stated that the services of this special agent, in these disbursements, were similar to those performed by other navy agents, such as the navy agent of Boston, &c. That they amounted, during the period that he acted as agent as aforesaid, to from fifty to one hundred thousand dollars a year; that the defendant gave no bond or security, to his knowledge, for the performance of these duties.

"The defendant then gave in evidence to the jury the certificate of B. W. Crowninshield, then secretary of the navy, of the 3d May 1817, and his account against the United States, allowed by Smith Thompson, then secretary of the navy.

"Navy Department, May 3, 1817. "George Macdaniel, as agent of the navy pension fund, upon

[United States v. Macdaniel.]

all expenditures by him heretofore made, is entitled to the same commissions as have been allowed to other agents. "B. W. CROWNINSHIELD,

"Secretary of the Navy.

"The navy pension fund to George Macdaniel:

"For compensation as clerk of the navy pension accounts, from the 1st of July to the 31st of December 1818 inclusive, at the rate of two hundred and fifty dollars per annum $125 00. "Respectfully submitted,


"Upon which account are the following indorsements: "To

be allowed,

"Received payment in account,



"The defendant set up against the claim made against him by the United States, in this case, a charge for a commission of one per cent, as special agent of the navy department, on the expenditure of eleven thousand seven hundred and eightynine dollars and twenty cents, amounting to one hundred and seventeen dollars and eighty-nine cents, and a like commission of six hundred and ninety-two dollars and thirty cents, upon the expenditure of sixty-nine thousand two hundred and twenty-nine dollars and ninety-two cents, which commissions had been disallowed by the navy department, and if now disallowed upon this trial, would leave the defendant indebted to the United States in the sum of eight hundred and ten dollars and nineteen cents, exclusive of the other items of claim made against him in this case.

"The witness who gave testimony for the defendant, proved that the services performed by the defendant, as special agent as aforesaid, were performed during office hours, and occupied from one-third to one-fourth of his time.

"The defendant further proved that witness had had occasion in the discharge of his duties in the fourth auditor's office, to examine the accounts of defendant, and reported the accounts in question; that the same commission was claimed by defendant in these accounts, as had been charged and allowed in all his previous accounts, so far as witness has examined them; that

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the services had then been rendered, and the moneys disbursed, when the exception was taken; that witness knows that the accounts or public disbursem ts, including all these allowances of commissions upon disbursements, are annually submitted to congress, and inspected by a committee specially appointed for that purpose; that said committee attends at the different offices, where the books are open for their inspection; that the accounts embracing defendant's claims and allowances are regularly so submitted and inspected, and that no objection, as witness has ever heard, was taken by any committee, or any individual, to such allowances, until defendant's final account, after leaving office, was settled by the fourth auditor. Defendant promptly paid over all the moneys in his hands when the amount was adjusted, reserving only the sums claimed by him, which appear in the accounts exhibited; and if they are allowed him, he has no public money in his hands.

"Defendant further offered in evidence a report from the secretary of the treasury to congress, 1st March 1831. Doc. 126, H. R. 21st Cong. 2d Sess.

"Upon the evidence so given to the jury, the counsel 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 in this case, and that, as the sums so charged as aforesaid, as commissions, had never been allowed to him by any department of the government, it was not competent for the jury to allow them upon this trial.

"Which instruction the court refused to give; to which refusal the United States, by their attorney, excepted."

The accour exhibited on the trial by the district attorney of the United States, by which the balance alleged to be due was shown, was as follows:

To balance due the United States per his account
current, rendered on the 5th June 1829,
This sum disallowed, as per reconciling statement
of his navy expenditure account herewith,
Commission on sixty-nine thousand two hundred
and twenty-nine dollars and ninety-two cents,
paid over to the treasurer of the United States,

$688 33

228 14

[United States v. Macdaniel.]

at one per cent, as debited in his account as late special agent of the navy department, marked A. Recorded on the 5th June 1829. Not allowed, Compensation as agent for paying pensions from the 1st of March to the 31st of May 1829. Not allowed,

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Error in statement No. 141, (previous report) in payments of Fall's pension,

By this sum deposited to the credit of the treasurer of the United States the 3d of August 1829,

692 30

62 50

6 00

$1,677 29

688 33

988 96

Balance due the United States, by statement examined by comptroller, 12th of August 1829, THOMAS H. GILLISS, Act. 4th Aud.

The case was argued by Mr Taney, attorney-general, for the United States; and by Mr Coxe and Mr Jones, for the defendant.

For the United States it was contended, that the defendant was not entitled to the commissions claimed by him and mentioned in the bill of exceptions.

The attorney-general stated that the question presented in the case was, whether the defendant was entitled to commissions on payments made by him for navy purposes.

The navy agents, although not established by any particular law, have been recognised in various acts of congress. Their duties are well known and ascertained. There are navy agents at each navy yard, and there are navy agents who are not permanent. There is also an agent at the navy department to settle accounts not properly belonging to other navy agents. Mr Macdaniel was employed as the permanent navy agent at Washington; and also as the special agent of the department.

A reference to the accounts in the record will show that he made payments for sloops of war, ship houses, and for the marine corps. In making these payments, he performed duties which properly belonged to permanent navy agents, and for

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