Page:Reports of Cases DC Circuit Court 1840-1863, Volume 2.djvu/180

United States vs. Jones. 165 him with said amount according to said voucher produced by him.

He also relied on the Act of 1823, Ch. 9, entitled, "an act concerning the disbursement of public money," to show the authority of the accounting officers of the Treasury, to examine and settle the account of the defendant in this case.

On the part of the defendant, the learned counsel have contended that "the medical attendance of an officer is not such an allowance as was contemplated in the prohibition of the Act of Congress of March 3rd, 1835, but a necessary supply, expense or allowance, under whatsoever name it may be called, which every officer, seaman and marine, by the terms of his service, is entitled to receive from the government" refers to the opinion of Attorney General Toucey, September 28, 1848.

Also to the head of the Bureau of Medicine and Surgery, which after being endorsed with the disapproval of the 4th Auditor, was considered with and acted upon by the Secretary of the Navy. This document which is made a part of the evidence in this ease will be more particularly noticed under the last head of this opinion.

2nd. That the order of the Secretary of the Navy is conclusive and not to be upset by the Auditor; to support this position the opinions of Attorney General Berrien, in Parker's case, Vol. 2, 303; Taney, 10th of September, 1831, Tharp's case, same Vol. 464-465; Butler, 26th of March, 1834, Parker's case, same Vol. 625-626; Johnson, 19th of April, 1849, Lassell's case, Vol. 2, 87; Crittenden, 13th of November, 1852, Vol. 5, 630.

3rd. If in error as to the other points yet in disbursing this money, the defendant is by express law released from all responsibility by the Act of Congress of March 3rd, 1849, that the Secretary of the Navy is a commanding officer of the Navy, refers to Attorney-General Crittenden's opinion.

4th. There is no mistake of facts. If there is any mistake, it must be a mistake of law, and money paid under mistake of law, where the facts are all known, cannot be recovered back. The order of Secretary is the order of the President 16 Peters, U.S. vs. Eliason; Jones is not a disbursing officer.