Wetmore v. United States

IN error from the district court of the United States for the district of Missouri.

An action of indebitatus assumpsit was instituted at September term 1832, by the United States, in the district court of the United States for the Missouri district, against Alphonso Wetmore, upon an account regularly adjusted, settled and certified at the treasury of the United States on the 18th of November 1831. The account charged the defendant with the sum of 3388 dollars and 18 cents, 'for difference of pay and forage, between a major of cavalry and a major of infantry, improperly received by him, and now brought to his debit.' At the foot of the account there is a statement by the second auditor of the treasury, as follows: 'the same being the difference of pay and forage claimed by him, between a major of cavalry and a major of infantry, to which he is considered as not entitled by the accounting officers of the treasury of the United States.'

The cause was tried by a jury on the 6th of September 1832, and a verdict was found for the United States.

The United States produced and read in evidence, the duly certified transcript from the treasury showing the amount of the claim against the defendant.

It was admitted on the trial, that the defendant had served as a paymaster (duly appointed as such) in the army of the United States, from the said 24th day of April 1816 to the said 31st day of May 1831; and that the amount stated in said account and transcript to be due from the defendant to the United States consists solely of the difference between the pay and emoluments allowed by the accounting officers to the defendant, and the pay and emoluments retained and claimed by him during the period of service aforesaid.

The defendant claimed to be allowed for his service during the period aforesaid, the pay and emoluments allowed, by law, to other officers of the general staff of the army of the rank of major; and who are entitled to the pay and emoluments of majors of cavalry.

He offered in evidence an army register, prepared and published by the adjutant and inspector-general of the United States in 1816, which register was delivered to the defendant, and other officers of the army; in the register the officers of the pay department, created by the act of congress of the 24th of April 1816, are arranged as belonging to the general staff of the army; which evidence was, on motion of the plaintiffs, rejected by the court, to which opinion of the court, the defendant, by his counsel, excepted.

The defendant also offered in evidence the register of the army of the United States for the year 1831, propared, published and subscribed by the adjutant-general; in which register the officers of the pay department are arranged under the head, and as appertaining to the general staff of the army; which evidence, as offered, was rejected by the court, and the defendant, by his counsel, excepted to the said decision rejecting said testimony. The defendant then offered to read to the jury a general order, dated, 'head quarters of the army, adjutant-general's office, Washington, 11th of June 1832;' order No. 50, signed by the adjutant-general; and purporting to have been issued by command of major-general Alexander Macomb, commander-in-chief; which order prescribes the dress of the officers, non-commissioned officers, musicians, and privates of the army, and other regulations of the government of the army; and contains, among other things, the following, to wit: 'the general staff is to include the adjutant-general, the inspectors-general, the aids-de-camp, the officers of the quartermasters' department, the officers of the subsistence department, the officers of the pay department, the officers of the medical department, the commissary-general of purchases.' To the reading which general order, the plaintiffs, by their counsel, objected; and the court sustained the objection, and rejected the evidence so offered: to which opinion of the court, the defendant, by his counsel, excepts. No further evidence being offered, the defendant moved the court to instruct the jury as follows:

1. That the defendant is entitled to the pay and emoluments allowed by law to the officers of the general staff of the army, of the rank of major; that is to say, the pay and emoluments allowed to majors of light dragoons, by the act of congress of the 12th of April 1808.

2. That if the jury find from the evidence that the defendant was, from the 24th of April 1816, to the time of the statement of the account read in evidence, an officer in the general staff of the army, he is entitled, for the time he has so served, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major.

Which instructions were by the court refused; and the court instructed the jury that the defendant, in virtue of his office, was entitled only to receive the pay and emoluments of a major of infantry: to which opinions of the court in refusing the instructions prayed for by the defendant, and also to the instructions given; the defendant, by his counsel, excepted. The court sealed a bill of exceptions.

The district court gave judgment on the verdict in favour of the United States; and the defendant prosecuted this writ of error.

The case was argued by Mr Jones, for the plaintiff in error; and by Mr Butler, attorney-general, for the United States.

'It was agreed that the following documents, facts and circumstances, omitted in the statement contained in the bill of exceptions, shall be supplied by consent, and considered on the argument and decision of this writ of error as part of the case, in like manner as if they had been annexed to and stated in said bill of exceptions, and had formed part of the original record, to wit:

'1. That the two army registers referred to in the bill of exceptions, as printed and published by order of the secretary of war, in the years 1816 and 1831, be annexed to this case and considered as part thereof, and of the record: and it is admitted that such registers were prepared, and were issued and published to the army, by the direction of the secretary of war, in the exercise of his authority as such secretary.

'2. That the general order, No. 50, of the 11th of June 1832, referred to in said bill of exceptions, be in like manner annexed to this case and considered as part thereof, and of the record: and it is admitted to be an authentic general order, such as it purports to be, and was regularly published and issued to the army.

'3. That the 'General Regulations for the Army,' printed and published by the war department in the year 1825, be in like manner annexed to this case, and considered as part thereof, and of the record: and it is admitted that the same are the regulations established by the president of the United States for the government of the army, and were published as such by his authority.

'4. That the custom and usage of the army has always been to class the officers of the pay department among the officers of the general staff of the army.

'5. That since the act of the 24th of April 1816 (6 Laws U.S. 79), for the organization of the general staff, &c., it has been the invariable usage and practice of the treasury department, and of the proper accounting officers, to allow the pay and emoluments of majors of cavalry to the assistant adjutants-general, to the assistant inspectors-general, to the deputy quartermasters-general, and to the topographical engineers; and since the act of the 2d of March 1824 (6 Laws U.S. 553), to majors on ordnance duty, and to the quartermasters.'

Mr Justice WAYNE delivered the opinion of the Court.