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many such cases; and the captain alleges, that, according to the received opinions, and the practice of the times, he did not consider himself as hap. ing any option or discretion left, after he was told by the commander of the “ Asp” that he had uuthority to impress his vesselor any other vessel into his service, and was ordered to proceed in the discharge of duties appointed for him. It appears he did proceed in the discharge of these duties; and it was in their discharge that the vessel was captured and destroyed.
Although the commander of the “Asp" might not have had authority from his superior officers to impress the vessel of the petitioner into the public service, yet it should be recollected he was charged with a highly important service, upon the successful execution of which depended the fitting out for sea one of the frigates of the Uvited States; it was, therefore, praiseworthy in him to take all measures of precaution, which, in his judgment, would tend to the preservation of the valuable property in his charge, and for its ultimate safe arrival at the place of its destination. One of these measures was, in his opinion, to take and despatch a fast sailing vessel down the river to ascertain the fact of an enemy's neighborhood, so as to enable him to decide whether it would be safe to proceed, or best to return up the river. The measure resulted in the preservation of the public property, and · in the subservience of the public interest, and in the loss of the property of the petitioner. Had Mr. Mackall, the commander of the “ Asp,” neglected to take any or all measures within his power to assure the safety of his important charge, it is believed he would have been justly obnoxious to censure; and if, in doing what, under the peculiar circumstances of the case, he might have conceived to be his duty, the public interest was protected, and that of the petitioner sacrificed, it is believed that a due regard for public justice requires that the damage sustained by the petitioner should be made. good. With these views, the committee report a bill for his relief.
FEBRUARY 18, 1831.
Mr. WuITTLESEY, from the Committee of Claims, to whom had been re
ferred the bill from the Senate (No. 11) for the relief of George Johnson, made the following
The Committee of Claims, to whom was referred a bill from the Senate
for the relief of George Johnston, report: That this case was before the committee at the last session; and, after a minute examination of it, as it was then presented, the committee recommended that the bill be rejected, to which report the committee refer. The committee have reconsidered said report, and see no grounds for altering their opinion on any of the points discussed in it. During the present term of the Supreme Court, a case has been decided in favor of the defendani, in an action brought on a bond in favor of the United States, the condition of which, in all particulars, is similar to the one in the bond signed by the petitioners as the security of Purser Bourne. A copy of the decision referred to is filed among the papers. With this decision before them, the committee think thc petitioner is entitled to relief.
Opinion of the Supreme Court of the United States, delivered at Janu
ary term, 1831.
UNITED STATES vs. THOMAS TINGEY. This is a writ of error to the Circuit Court of the District of Columbia, sitting at Washington. The original action was brought by the United States, upon a bond executed by Lewis Deblois, and by Thomas Tingey and others, as his sureties, on the 1st of May, 1812, in the penal sum of $10,000, upon condition, that, if Deblois should regularly account, when thereto required, for all public moneys received by him from time to time, and for all public property committed to his care, with such person or persons, officer or officers of the Government of the United States, as should
his sureties, on the Lewis Deblois, andought by the Un
be duly authorized to settle and adjust his aecounts, and should, moreover, pay over, as might be directed, any sum or sums that might be found due to the United States upon any such settlement or settlements, and should also faithfully discharge, in every respect, the trust reposed in him, then the obligation to be void, &c. In point of fact, Deblois was at the time a purser in the Navy, though not so stated in the condition; and there is an endorsement upon the bond, which is averrell in one of the courts, of the declaration to have been contemporaneous with the execution of the bond, which recognises his character as purser, and limits his responsibility as such; and the bond was unquestionably taken, as the pleadings show, to se: cure his fidelity in office as purser.
The declaration contains two counts-one in the common form for the penalty of the bond, and a second setting forth the bond, condition, and endorsement, and averring the character of Deblois, as purser, his receipt of public moneys, and the refusal to account, &c. in the usual form. Several pleas were pleaded, upon some of which issues in fact were joined. To the 3d, 4th, 5th, 6th, and 8th pleas, the United States demurred, and judgment upon the demurrers was given for the defendant in the Circuit Court; and the object of the present writ of error is to revise that judgment.
There is no statute of the United States, expressly defining the duties of pursers in the Navy. What those duties are, except so far as they are incidentally disclosed in public laws, cannot be judicially sworn to this court. If they are regulated by the usages and customs of the Navy, or by the official orders of the Navy Department, they properly constitute' matters of averment, and should be spread upon the pleadings. It may be gathered, however, from some of the public acts regulating the Department, that a purser, or, as the real name originally was, a burser, is a disbursing officer, and liable to account to the Government as such. The aet of the 3d of March, 1809, ch. 95, sec. 3, provided, that, exclusively, of the purveyor of public supplies, paymasters of the Army, pursers of the Navy, &c., no other permanent agents should be appointed, either for the purpose of making contracts, or for the purchase of supplies, or for the disbursement in any other manner of moneys for the use of the military establishment, or of the Navy of the United States, but such as should be appointed by the President of the United States, with the advice and consent of the Senate; and the next section (sec. 4) of the same act provided that every such agent and every purser of the Navy should give bond, with one or more sureties, in such sums as the President of the United States should direct, for the faithful discharge of the trust reposed in him; and that, whenever practicable, they should keep the public money in their hands in some incorporated bank to be designated by the President, and should make monthly returns to the Treasury of the moneys received and expended during the preceding month, and of the unexpended balance in their hands. This act abundantly shows, that pursers are contemplated as disbursing officers, and receivers of public money, liable to account to the Government therefor. The act of the 30th of March 1812, ch. 47, made some alterations in the existng law, and required that the pursers in the Navy should be appointed by the President, by and with the advice and consent of the Senate; and that from and after the first day of May, then next, no person should act in the character of purser, who should not have been so nominated and appointed, except pursers on distant service, &c; and that every purser, before entering upon the
shows, and of the of the mythe Promey in
duties of his office, should give bond, with two or more sufficient sureties, in the penalty of ten thousand dollars, conditioned faithfully to perform all the duties of purser in the Navy of the United States. This act, so far as respects pursers giving bond, and the imports of the condition, being in part matured, operates as a virtual repeal of the former act. The subsequent legislation of Congress is unimportant, as it does not apply to the present case.
It is obvious, that the condition of the present bond is not in the terms prescribed by the act of 1812, ch. 47, and it is not limited to the duties or disbursements of Deblois, as purser, but creates a liability for all moneys received by him, and for all public property committed to his care, whether officially as purser or otherwise.
l'pon this posture of the case, a question has been made, and elaborately argued at the bar, how far a bond, voluntarily given to the United States, and not prescribed by law, is a valid instrument, binding upon the parties in point of law. In other words, whether the United States have in their political capacity a right to enter into a contract, or to take a bond in cases not previousjy provided for by some law. Upon full consideration of this subject, we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and the United States, being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. This principle has been already acted on by this court in the case of Dugan, executor, vs. the United States,'(3 Wheaton R. 172;) and it is not perceived that there lies any solid objection to it. To adopt a different principle would be to deny the ordinary right of sovereignty, not merely to the General Government, but even to the State Governments within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine to such an extent is not known to this court as ever having been sanctioned by any judicial tribunal.
We have stated the general principle only, without attempting to enumerate the limitations and exceptions which may arise from the distribution of powers in our Government, or from the operation of other provisions in our Constitution and laws. We confine ourselves, in the application of the principle, to the facts of the present case, leaving other cases to be disposed of as they may arise; and we hold that a voluntary bond, taken by authority of the proper officer of the Treasury Department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver or a disbursing agent of public moneys, is a binding contract between him and his sureties and the United States, although such bond may not be prescribed or required by any positive law. The right to take such a bond is, in our view, an incident to the duties belonging to such a department; and the United States having a political capacity to take it, we see no objection to its validity in a moral or a legal view.
Having disposed of this question, which lies at the very threshold of the cause, and meets us upon the face of the second count in ihe declaration, it remains to consider whether any one of the pleas demurred to constitutes a good bar to the action. Without adverting to others, which are open to serious objections on account of the looseness and generality of their texture, we are of opinion that the fifth plea is a complete answer to the action. That plea, after setting forth, at large, the act of 1812, respecting pursers, proceeds to statethat, before the execution of the bond, the Navy Department did cause the same to be prepared, and transmitted to Debiois, and did require and de mand of him, that the same, with the condition, should be executed by hic with sufficient sureties, before he should be permitted to remain in the office of purser, or to receive the pay and emoluments attached to the office purser; that the condition of the bond is variant and wholly different from the condition required by the said act of Congress, and varies and enlarges the duties and responsibilities of Deblois and his sureties; and “o that the same was under color and pretence of the said act of Congress, and under color of office, required and extorted from the said Deblois, and from the defendant, as one of his sureties, against the form, force, and effect of the said statute, by the then Secretary of the Navy.” The substance of this plea is, that the bond, with the above condition variant from that prescribed by law, was, under color of office, extorted from Deblois and his sureties, contrary to the statute, by the then Secretary of the Navy, as the condition of his remaining in the office of purser, and receiving its emoluments. There is no pretence, then, to say, that it was a bond voluntarily given, or that, though different from the form prescribed by the statute, it was received and executed without objection. It was demanded of the party upon the peril of losing his office; it was extorted under color of office against the requisitions of the statute. It was plainly, then, an illegal bond; for no officer of the Government has a right, by color of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with the condition different from that prescribed by law.: That would be, not to evecute, but to supersede the requisitions of law. It would be very different where such a bond was, by mistake or otherwise, voluntarily substituted by the parties for the statute bond, without any coercion or extortion by color of office.
The judgment of the Circuit Court is affirmed.
WASHINGTON, February 8, 1831. I, Richard Peters, reporter of the decisions of the Supreme Court of the United States, do hereby certify that the foregoing pages contain a true copy of the opinion of the Supreme Court of the United States, in the case of the United States against Thomas Tingey, as delivered by said Supreme Court, at January term, eighteen hundred and thirty-one.
op met the opinion here orter of the de