[United States v. Fillebrown.]

[*39

It is also suggested, that the proceedings of the board in 1829, by which the extra allowance was rejected, may control the same. This was the act of the board, and it is immaterial whether it was composed of the same or of different individuals.

As to the commissions claimed on the disbursement of the money of the fund, it was argued by the attorney-general, that all public agents, unless in certain specified cases, must be appointed by the president. This is the provision of the act of March 3, 1809. 4 Laws U. S. 220. Disbursements of the navy hospital fund come within the principles which regulate disbursements for the use of the navy; and if the act of 1809 applies to these disbursements, the commissioners could not appoint a disbursing officer.

No evidence of usage was admissible. If there was no law on the subject, no usage could sustain the practice. But if it was customary for a different description of officers to receive extra compensation, or commissions, no such custom .could apply to a new office. The usage of the officers in the departments cannot make a law which shall bind the government. Usage, as connected with a particular office, may be evidence of an implied contract. But that cannot apply to newly created officers.

In reply to the argument for the defendant in error, the attorneygeneral admitted that the commissioners might appoint and employ agents to execute the duties attending the operations they were authorized to have conducted and executed; but such agents, he considered, must be appointed by the board. If a contract is made by an officer, it must be made under the authority of some law; and by the law, all authority was given to the board.

The defendant might have been employed to perform extra services for the board of commissioners; and he was not disqualified by reason of his being the secretary. But who had the power to authorize these services?

It is not pretended that the government is not bound by implied contracts, when services have been performed at the request of the government. But the agent who can thus bind it, must have authority to make the contract, or employ the person to perform the service out of which the implied contract arises.

A debt which can be set off against a claim by the government, must be one growing out of some contract or em[*40 ployment authorized by law: but it is denied that, under the act of 1797, all equitable demands against the government may be set off in a court of justice.

The acts of Mr. Southard cannot be considered as the acts of the board; nor can those acts be proved by parol evidence, in opposition to the written proceedings of the board. All he did, must be considered subject to a ratification by the board; and void, unless so ratified. In this case, his acts were disaffirmed by the board in 1829, when the board acted in reference to them.

Nor could the board settle the defendant's accounts; they must be settled by the accounting officers of the treasury, in the ordinary way

[United States v. Fillebrown.]

of settling accounts. The account of the defendant having been settled at the treasury, and his claims to the extra salary and for commissions disallowed there, the practice and understanding at the treasury, is shown to be adverse to such claims.

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

The allowance of a compensation for attention to the accounts of the navy hospital fund, and what was included in the duties assigned by the letter of Mr. Southard, of the 22d May, 1826, was in conformity with the frequent usages of the government. This was fully proved by the evidence. This principle has also had the ratification of the legislature. The usual duties of secretary could only have been prospective, and it was extra services to bring up the arrears of the board.

By an act of congress, of the 3d of March, 1831, two thousand dollars were allowed to the clerk of the supreme court, for bringing up the minutes of the court, and for services which should have been performed by his predecessor. So the defendant in error was not bound as the secretary of the board to bring up old records of the proceedings of the commissioners, and to examine accounts which existed before his appointment.

The commissioners had authority to appoint a secretary under the third section of the act of 1811. The powers given to the board by *41] that section, necessarily imply a power to appoint agents, and to do what the trusts they had to perform required. They could not attend in person to the business and operations which the application of the funds under their charge enjoined upon the board. These operations were carried on in different parts of the United States.

The testimony and the correspondence of Mr. Southard, show that a contract was made by him with the defendant; that an allowance was specified for the duties he was engaged in, which had the approbation of the board. The allowance presupposes the right to claim it. This was proved by competent evidence, as the board did not keep regular records of its proceedings, and no objection was made on the trial to the parol evidence; so that it is now free from all exceptions.

Nor can the rejection, in 1829, of the allowance of the salary under the letter of the 22d of May, 1826, by the successors of those who made it, be of any value. The contract was made with full authority to make it; the duties which were the subject of the compensation, had been performed; and those who thus claimed the right to refuse or withhold the same, had no authority to do so.

As to the instructions given by the circuit court on the second prayer of the plaintiffs in error, it was argued that they were in conformity to the law, upon the evidence of the usage of the government in its different departments. This general construction of the acts of congress, and these harmonious views of the rights of those who performed extra services, should have due consideration.

[United States v. Fillebrown.]

There is no validity in the objection that such claims as those of Mr. Fillebrown cannot be made the subject of set-off. All equitable claims, which have been properly exhibited in the first instance to the accounting officers, may be set up against the demands of the United States. The nature of the objection of the government to those who have been employed by them, entitles them to be so regarded. Pothier on Obligations, 1.

The powers given to the comptroller of the treasury in relation to the settlement of accounts by the act of congress of 1795, 2 Laws UJ. S. 502, making him the final judge upon claims presented to him, were, by the act of 1797, 2 Laws U. *S. 594, transferred to the courts; with the limitation that those claims [*42 must be first presented to the accounting officers of the treasury. Under the provisions of this act, all equitable as well as legal claims, founded on contract or the usage of the departments, may be brought forward before the court, and submitted under its direction to a jury. The government, by this act, places itself in the situation of an individual. The claims of the defendant are admitted, by the attorneygeneral, to be equitable.

The allowances of commissions are not forbidden by any statute; and the rules of the navy department admit them. Navy Rules, 17. Cited, 3 Wheat. 173, to show the force of rules. Upon the principles contended for, cited, 6 Wheat. 135, 142; 1 Mason, 21; 12 Wheat. 559.

The case of the United States v. Watkins, 6 Wheat. 135, shows that any legal or equitable claim may be set off: and it is immaterial whether the claim of Mr. Fillebrown had or had not been sanctioned by the board. The question is much broader. Did the board require or employ him to perform the services, and was he entitled to any and what compensation for it? His duty as secretary did not at all embrace the disbursement of the money of the fund. This was a duty of great responsibility, and this, as well as bringing up the arrears of records, was extra service.

Mr. Justice THOMPSON delivered the opinion of the court.

This case comes before the court on a writ of error to the circuit court of the district of Columbia. The action was brought to recover a balance certified at the treasury against the defendant, on the settlement of his accounts as secretary of the commissioners of the navy hospital fund. Upon this settlement, the defendant set up a claim for compensation, for what he considered extra services, in bringing up and arranging the records of the board antecedent to his appointment as secretary, and also for commissions on the disbursements of moneys under the orders of the board. These claims had been rejected by the accounting officers of the treasury, and were now set up by way of set-off against the demand on the part [*43 of the United States; and the questions before the circuit court were, whether the defendant was entitled to the compensation he claimed.

[United States v. Fillebrown.]

Upon the trial after the testimony was closed, the counsel for the United States prayed the court to instruct the jury as follows:

1. That if, from the evidence aforesaid, it should appear to them that the defendant had accepted the appointment of secretary of the board of navy hospital commissioners upon the terms mentioned in the said appointment, and in the letter of Samuel L. Southard to him, of the 7th of November, 1825, as hereinbefore stated; that in that case he was not entitled to any extra compensation for the disbursement of the moneys belonging to the said navy hospital fund; and that he was only entitled to two hundred and fifty dollars a year, for the whole of the services performed by him for the said board.

2. That if they should be satisfied, by the evidence aforesaid, that the said board of commissioners have never passed any order or resolution for the payment of any commission, upon the moneys disbursed by the defendant for the said board; and that the claim for commissions which he now makes, had never been sanctioned or settled by the said board; that it is not competent for him now to set up the said claim for commissions against the claim of the United States, for which this suit is brought.

Which instructions the court refused to give; but at the instance of the defendant's counsel gave other instructions which will be hereafter noticed.

The jury found a verdict for the defendant, and certified a balance in his favour, against the United States, for four hundred and thirty dollars; and the case comes here on a bill of exceptions.

Whether the first instruction asked on the part of the United States ought to have been given, must depend upon the defendant's appointment as secretary, and the extent of his duties under that appointment. The court was requested to instruct the jury, that if the defendant had accepted the appointment on the terms mentioned, he was entitled to no compensation beyond his salary of two #441 hundred and fifty dollars, for any services performed by him

for the board.

The second instruction asked, involves the inquiry whether some order or resolution of the board, for the payment of the commissions was not indispensably necessary to entitle the defendant to the allowance claimed by him.

The defendant was appointed secretary, at a regular meeting of the board, on the 7th of November, 1825; and so far as his duties are defined, they are to be collected from the following resolution:

"Resolved, that a secretary be appointed to this board, to take charge of the books, papers, &c., belonging to the hospital fund and to execute such duties relative thereto, as may be required of him by the board, for which services he shall be allowed the sum of two hundred and fifty dollars per annum."

The authority of the commissioners to appoint a secretary has not been denied; and this same authority must necessarily exist to appoint agents and superintendents for the management of the business connected with the employment of the fund; and which, in the

[United States v. Fillebrown.]

absence of any regulation by law on the subject, must carry with it a right to determine the compensation to be allowed them.

It is admitted, on the part of the United States, that the defendant's being secretary of the board, forms no objection to his performing other services not included in his duty as secretary, and receiving a compensation therefor in the same manner as any other person might.

The terms on which the defendant accepted the appointment of secretary, being to execute such duties, relative thereto, as should be required of him by the board; it becomes proper to examine how the board considered the appointment, and what duties were required of him as secretary.

It is proper here to inquire, how the secretary of the navy, as one of the commissioners, stood in relation to the other members of the board.

It is evident from the manner in which this fund was created, and the purposes and objects to which it was applied, that the general and active superintendence over it belonged appropriately to [*45 the secretary of the navy. It was therefore almost matter of course that the board should commit to him the principal management of the business, and consider him the agent of the board for that purpose. In addition to this, he was actually constituted such agent by the board.

Mr. Southard, in his deposition, states that he was, by the direction of the board, and by the previous practice and usage, acting commissioner of the fund, and attended to all matters connected with it. But, when any new arrangements were to be made, or money to be expended on a new object, he consulted with, and had the approval and authority of the whole board. And all his acts were considered as authorized and sanctioned by the board.

With respect to the one hundred and twenty-five dollars claimed for six months' salary, Mr. Southard is very explicit. This allowance, he says, was made for extra services, and related to a time previous to his appointment; and that the allowance had the approbation of the board. This was a service not required or considered by the board as coming within his duty as secretary under his appointment, and a stipulated compensation agreed to be paid him therefor. It is not perceived what possible objection can exist against his being allowed this stipulated sum. Whether or not it was more than a just compensation for his services, is a matter which this court cannot inquire into. Indeed, that has not been pretended, if he is entitled to any thing beyond his salary of two hundred and fifty dollars.

With respect to the commissions, Mr. Southard says, that, subsequent to the appointment of the defendant as secretary, the commissioners were enabled by appropriations, and collecting money belonging to the fund from various sources, to proceed to apply the funds to the establishment of navy hospitals as required by the act of congress. That these funds were placed in the hands of the treasurer