
40 U.S. 336 (____)
15 Pet. 336
CHARLES GRATIOT, PLAINTIFF IN ERROR,
v.
THE UNITED STATES, DEFENDANTS IN ERROR.
Supreme Court of United States.

*344 The case was argued by Mr. Brent, and Mr. Jones, for the plaintiff in error; and by Mr. Gilpin, Attorney General, for the United States.
*368 Mr. Justice STORY delivered the opinion of the Court.
This is the case of a writ of error to the Circuit Court of the District of Missouri. The original action was assumpsit, brought by the United States against General Gratiot, the plaintiff in error, as Chief Engineer, for fifty thousand dollars alleged in the declaration to be money had and received by him as Chief Engineer, to the use of the United States. At the trial, the controversy turned mainly as to the merits of three items of set-off, or credit, which were claimed by the defendant in the reduction or extinguishment of the supposed debt due to the United States.
These items were as follows:


    1. For disbursing $603,727 42, on account of Fort
  Calhoun, from the 13th of November, 1821, to the
  30th of September, 1829, being 2879 days, at $2 per
  day, being less than two and a half per cent. on
  the amount disbursed, as allowed by the regulations
  of the army to an officer disbursing at a fortification,
                                                                $5,758 00
    2. For disbursing $33,447,36 on account of contingencies
  of fortifications, at 2½ per cent., as authorized
  by the regulations above referred to,                            816 18
    3. For extra services in conducting the affairs connected
  with the civil works of internal improvement
  carried on by the United States, and referred to the
  Engineer Department for execution: and which did
  not constitute any part of his duties as a military
  officer; from the 1st day of August, 1828, to the 6th
  day of December, 1838, inclusive, ten years and one
  hundred and twenty-eight days, at 3000 dollars per
  annum,                                                        37,262 46

These items had all been disallowed by the Treasury Department, for reasons stated by the proper accounting officers, and spread upon the record; and were insisted upon as just and proper allowances by the defendant.
The jury at the trial found a verdict for the United States, upon which judgment was entered; and from that judgment the present writ of error has been brought to this Court.
Four several bills of exceptions were taken at the trial on *369 behalf of the defendant. The first was taken to the refusal of the Court to allow any evidence to be given in support of either of these items of claim. The third was to a like refusal of the Court to allow certain depositions and documents, offered by the defendant, to be given in evidence to prove that he had rendered services to the United States, over and above the ordinary and regular duties of his office, and the value of such services; and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for like services. The second and fourth exceptions proceeded upon minor points in the case. The second asked the instruction of the Court that the United States were not entitled to recover for any public money received by the defendant in any other capacity or office than that of Chief Engineer; and that certain requisitions, stated in the exception, on account of Fort Grand Terre, and Fort Columbus, and Castle Williams, and the Fort at Throg's Neck, were not evidence of money had and received by the defendant to the use of the United States. The Court refused these instructions, because there was no subject matter growing out of the evidence for the United States, to which the instructions could apply, if given; inasmuch as it appeared from the Treasury transcript, given in evidence, that the balance sued for was of sums placed in the hands of the defendant, as Chief Engineer, in 1835, to be expended on the works at Grand Terre; and therefore, in effect, the money sued for was received by him in his capacity of Engineer. We are of opinion that these instructions were rightly refused by the Court, for the reasons given by the Circuit Court; and for the additional reason, that the first was afterwards virtually given upon the prayer of the defendant on the fourth exception, so far as it was applicable to the case; and the second asked the opinion of the Court upon a matter of fact proper for the cognisance of the jury.
The fourth exception, so far as it has not been already disposed of, asked the Court to instruct the jury, that the items charged against the defendant, as Chief Engineer, in the Treasury transcript, marked A, which was given in evidence, consisting of certain balances charged in gross without the items going to show the said balances, were not competent evidence to charge *370 the defendant in the action. This instruction the Court refused to give, and in our judgment, rightly; for taking the whole transcript together, and examining its details, as a mere matter of account, it is plain that all the items on which these balances are struck, are there to be found regularly entered and brought forward. The supposed objection, then, which was stated by this Court in the case of The United States v. Jones, 8 Peters, 375. 383, as to mere naked balances on the transcript, did not apply.
There is another instruction asked under this exception, in a complicated form, but which mainly turns upon the consideration whether the Treasury Department had a right to deduct the pay and emoluments of the defendant, as a General of the army, and while he was Chief Engineer, by setting them off against the balance reported against him, on account of his superintendency of Forts Monroe and Calhoun. In our judgment, the point involves no serious difficulty. The United States possess the general right to apply all sums due for such pay and emoluments, to the extinguishment of any balances due to them by the defendant on any other account, whether owed by him as a private individual, or as Chief Engineer. It is but the exercise of the common right, which belongs to every creditor, to apply the unappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him.
Having disposed of these minor points, we now come to those arising under the first and third exceptions, and which constitute the only real difficulty in the case.
The first exception, under which the Court excluded all evidence in support of the three items of credit disallowed by the Treasury Department, is certainly well founded; unless it is clear in point of law that neither of these items constituted a legal or equitable claim against the United States. It is wholly immaterial whether the claim be a legal or an equitable claim, as in either view, under the act of 1797, ch. 74, as was decided by this Court in the case of The United States v. Wilkins, 6 Wheat. 135, it constitutes a good ground of set-off, or deduction. It is not sufficient to establish that these items ought to be rejected, that there is no positive law which expressly provides for, or fixes such allowances. There are many authorities conferred on the different *371 departments of the government, which for their due execution, require services and duties to be performed, which are not strictly appertaining to, or devolved upon any particular officers, or which require agencies of a special discretionary nature. In such cases the department charged with the execution of the particular authority, business, or duty, has always been deemed, incidentally, to possess the right to employ the proper persons to perform the same, as the appropriate means to carry into effect the required end; and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. This doctrine is not new in this Court; but it was fully expounded in the cases of The United States v. M`Daniel, 7 Peters, 1; The United States v. Ripley, 7 Peters, 18; and The United States v. Fillebrown, 7 Peters, 28.
To sustain the refusal of the Court in the present case, it is, therefore, indispensable to show that there is some law which positively prohibits, or by just implication denies any allowance of the disputed items, or of any part thereof. We know of no law which has such an effect, or which contains any such prohibition or denial. It is true that the act of the 16th of March, 1802, ch. 9, which provided for the organization and establishment of the corps of engineers, in one of its sections (sec. 27) declares, "That the said corps, when so organized, shall be stationed at West Point, in the state of New York, and shall constitute a military academy; and the engineers, assistant engineers, and cadets, of the said corps, shall be subject, at all times, to do duty in such places, and on such service as the President of the United States shall direct." But, however broad this enactment is in its language, it never has been supposed to authorize the President to employ the corps of engineers upon any other duty, except such as belongs either to military engineering, or to civil engineering. It is apparent, also, from the whole history of the legislation of Congress on this subject, that, for many years after the enactment, works of internal improvement and mere civil engineering, were not, ordinarily, devolved upon the corps of engineers. But, assuming the President possessed the fullest power, under this enactment, from time to time to employ any officers of the corps in the business of civil engineering, still it must be obvious, that as their pay and emoluments were, or *372 would be regulated with reference to their ordinary military and other duties, the power of the President to detach them upon other civil services, would not preclude him from contracting to allow such detached officers a proper compensation for any extra services. Such a contract may not only be established by proof of some positive regulation, but may also be inferred from the known practice and usage of the War Department in similar cases, acting in obedience to the presumed orders of the President. Now it is perfectly consistent with the record in this case, that the defendant might have offered direct or presumptive evidence of such a contract, either express or implied, from the practice and usage of the War Department, applicable to the very services stated in some, at least, of the disallowed items. We do not say that he could, in point of fact, have established any such contract, or any legal or equitable right to such allowances. That is a point on which we have no right to pass judgment, since he was stopped from offering any proof whatsoever at the very threshold of the inquiry. In short, unless some law could be shown establishing clearly and unequivocally the illegality of each of these items; which, as we have said, has not been shown; the refusal of the Court to admit the evidence cannot be supported; and we are, therefore, of opinion that this exception was well taken; and that there was error in the refusal of the Circuit Court.
The third exception opens this matter still more fully and exactly; for there the defendant offered certain depositions and documents, as proofs to establish that he had rendered services over and above the regular duties of his office, and the value of such extra services, and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for the like services. This evidence the Court also rejected, as the record asserts, as incompetent and irrelevant; but, undoubtedly, upon the more broad ground on which the evidence offered under the first exception, was rejected, that the claims had no just foundation in law. That the evidence so offered would, in point of fact, have maintained the asserted statements, we have no right, absolutely, to affirm. That it was competent and relevant for the purpose for which it was offered, and proper for the consideration of the jury, *373 as conducing to the establishment of the facts, has not been denied at the argument, and, indeed, seems not to admit of any well founded doubt. A very elaborate examination and analysis of this evidence, and of its supposed bearing and agency on the merits of each of the claims has been gone into at the bar; but, in the view which we take of the case, it is matter of fact, belonging, in a great measure, if not altogether, to the consideration of the jury, and with which, as a Court of Error, we are not at liberty to intermeddle. Without, therefore, taking up more time upon this point, it is only necessary for us to say that, for the reasons already stated, we are of opinion there was error also in the Circuit Court in excluding the depositions and documents so offered, from the jury.
But as the merits of these claims have been fully argued before us, upon several points of law, as well as upon certain admitted conclusions of fact, as if the evidence had been admitted, and both parties desire our opinion in respect to the matters of law connected with these facts; we have deemed it right, for the purpose of bringing this protracted controversy within narrower limits, upon the new trial in the Circuit Court, to state some of the views now entertained by the Court upon these points.
I. As to the first item. It purports to be founded on certain Regulations of the Army, which are spread upon the record, and which received the sanction of the President in 1821 and 1825. The 67th article of the Regulations of 1821, provides as follows.
1. "The chief of the corps of engineers shall be stationed at the seat of Government, and shall be charged with the superintendence of the corps of engineers, to which that of the topographical engineers is attached; he shall also be inspector of the military academy, and be charged with its correspondence.
2. "The duties of the engineer department will comprise the construction and repairs of fortifications, and a general superintendence and inspection of the same, military reconnoitrings, embracing general surveys and examinations of particular sites for fortifications, and the formation of plans and estimates in detail for fortifications for the defence of the same, with such descriptive and military memoirs as may be necessary to establish the importance and capabilities of the position intended to be occupied; the general direction of the disbursements on fortifications, *374 including purchases of sites and materials; hiring workmen, purchases of books, maps, and instruments; and contracts for the supplies of materials, and for workmanship.
14. "Where there is no agent for fortifications, the superintending officer shall perform the duties of agent, and while performing such duties, the rules and regulations for the government of the agents shall be applicable to him; and as a compensation for the performance of that extra duty, he will be allowed, for moneys expended by him in the construction of fortifications at the rate of two dollars per diem, during the continuance of such disbursements; provided the whole amount of emolument shall not exceed two and a half per cent. on the sum expended."
The 67th article of the Regulations of 1825, provides as follows:
888. "The duties of the engineer department comprise reconnoitring and surveying for military purposes, and for internal improvements, together with the collection and preservation of topographical and geographical memoirs, and drawings referring to those objects; the selection of sites, the formation of plans and estimates, the construction, repair, and inspection of fortifications, and the disbursements of the sums appropriated for the fulfilment of those objects severally, comprising those of the military academy; also the superintendence of the execution of the acts of Congress, in relation to internal improvement, by roads, canals, the navigation of rivers, and the repairs and improvements connected with the harbours of the United States, or the entrance into the same, which may be authorized by acts of Congress, with the execution of which the War Department may be charged."
893. "The engineer superintending the construction of a fortification, will disburse the moneys applied to the same, and as compensation for the performance of that extra duty, will be allowed at the rate of two dollars per diem during the continuance of such disbursements, provided the whole amount of emolument shall not exceed two and a half per cent. on the sum disbursed."
So far as the present item is concerned, these regulations do not differ in substance. They both raise the question as to the proper interpretation of them whether the allowance of two *375 dollars per diem, not exceeding two and a half per cent., is intended to be limited to a single per diem allowance; notwithstanding the engineer superintending the construction, and disbursing the moneys, as agent for fortifications, is employed at the time upon several fortifications, each requiring separate accounts of the disbursements to be kept, on account of there being distinct and independent appropriations therefor; or whether the per diem allowance is cumulative, that is to say, two dollars a day for every fortification, for which there is a distinct and independent appropriation, of which separate accounts are required to be kept, and the disbursements are confided to one and the same engineer, as superintendent and agent of disbursements. The Court are of opinion that the latter is the true construction of the Regulations; upon the ground, that it would be unreasonable to suppose that these Regulations intended to give the same exact amount of compensation to a person disbursing moneys upon two or more distinct fortifications, that he would be entitled to if he were disbursing agent for one only, although his duties might be thus doubled, and even trebled; and that the natural import of the language is, that the compensation is to be given to each agent of a separate fortification, for his disbursements about that particular fortification, without any reference to the consideration whether his agency was limited to that, or extended to other fortifications. Under such circumstances, as the defendant was the disbursing agent, both at Fort Monroe and Fort Calhoun, under distinct and independent appropriations, there does not seem to be any reason why he may not be entitled to the per diem allowance which he claims for each of those forts.
2. As to the second item. The right to the commissions charged for disbursing thirty-three thousand four hundred and forty-seven dollars and twenty-six cents, on account of contingencies on fortifications, must, essentially, depend upon the evidence which may be adduced in support of the claim. There is nothing in the character of the item which precludes the defendant from showing that he is entitled to the commissions of two and a half per cent., or of a less amount, if he can prove that the disbursements were other than those on Forts Monroe and Calhoun; and that it has been the usage of the Department to make the like compensation for disbursements under the like circumstances, or that the *376 allowance is just and equitable in itself. The Court are of opinion that evidence ought to have been admitted to establish it.
3. As to the third item, constituting a charge of thirty-seven thousand two hundred and sixty-two dollars and forty-six cents, for extra services in conducting the affairs connected with the civil works of internal improvements, very different considerations may apply. The Court are of opinion that, upon its face, this item has no just foundation in law; and, therefore, that the evidence which was offered in support of it, if admitted, would not have maintained it. The ground of this opinion is, that upon a review of the laws and regulations of the government, applicable to the subject, it is apparent that the services therein alleged to be performed were the ordinary special duties appertaining to the office of Chief Engineer; and such as the defendant was bound to perform, as Chief Engineer, without any extra compensation over and above his salary and emoluments as Brigadier General of the army of the United States, on account of such services. In this view of the matter the Circuit Court acted correctly in rejecting the evidence applicable to this item.
Upon the whole, upon the other grounds already stated, the judgment of the Circuit Court must be reversed; and the cause remanded with directions to that Court to award a venire facias de novo.
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 Missouri, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that there was error in the said Circuit Court in rejecting the evidence offered by the defendant, (Gratiot,) in support of his claims set forth in the first bill of exceptions; and, also, error in refusing to allow the depositions and documents to be given in evidence stated in the third bill of exceptions, for the purposes for which the same was offered by the said defendant. It is thereupon now ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.
