United States v. Jones (59 U.S. 92)/Dissent Daniel
Mr. Justice DANIEL, dissenting.

I am unable to concur in the opinion of the court just pronounced in this cause, for the reason that this opinion, upon mere assumed and hypothetical considerations of hardship or motives by which the legislature may have been influenced, undertakes directly to contravene, and in reality to annul a law, than which there is not one more clear or more positive in its provisions to be found upon the statute book.

With respect to considerations of hardship in the operation of a positive law, or of the motives of those by whom it has been enacted, I can, in expounding its provisions, assume no power which is legitimate; those are subjects exclusively within the province of the lawmakers, and to them it belongs to control them.

The statute here referred to as being affected by the opinion in this case, is that bearing date on the 3d of March, 1835, (4 Stats. at Large, 755, 757,) regulating the pay of the navy of the United States.

If it were by me deemed regular to seek for the objects of congress in the changes by this law of the provisions of previous statutes, those objects might perhaps be correctly inferred from the fact that, by the law of 1835 now under consideration, the compensation previously made to officers of the navy was in many, if not in every instance, at least doubted. But I deem it proper to confine myself to the language of the statute of 1835; and to expound its clear and unambiguous terms without reference to any thing dehors those terms, and especially freed from any rule of interpretation so uncertain as mere conjecture.

By this law, after regulating the pay of naval officers of every grade, it is declared, section 2: 'That no allowance shall hereafter be made to any officer in the naval service of the United States, for drawing bills, for receiving or disbursing money, or transacting any business for the government of the United States, nor shall he be allowed servants, or pay for servants, or clothing, or rations for them, or pay for the same, nor shall any allowance be made to him for rent of quarters, or to pay rent for furniture, of for lights or fuel, or transporting baggage.' After the above enumeration, comprehensive as it is, we find in the law the following exclusion of any and every allowance which might be claimed, upon the ground of its having been omitted in the enumeration preceding it: 'It is hereby expressly declared, that the yearly allowances provided by this act, is all the pay, compensation, and allowance that shall be received, under any circumstances whatsoever, by any such officer or person, except for travelling expenses when under orders, for which ten cents per mile shall be allowed.'

That the officers of the navy were cognizant of the mandate of this law, must be presumed; but, in addition to this legitimate conclusion, it is known as an historical fact in the public administration of the government, that, by a circular addressed to them, they were severally informed of the provisions of the law; besides which, they must unavoidably have learned them by every settlement for their pay at the treasury.

How, then, it can be possible to escape from the comprehensive language of the statute, which may well be styled 'the exclusion of every conclusion' in favor of the claim by Lieutenant Jones, it passes my power to perceive. It will not be pretended by any one, that the advance made to him was a portion of his yearly pay, yet the statute declares that the yearly pay shall be 'all the pay, compensation, and allowance that shall be received by any such officer or other person, under any circumstances whatsoever, except for travelling expenses, for which ten cents per mile may be allowed.'

Surely the phrase, 'under any circumstances whatsoever,' is broad enough to comprehend any casualty to which any person may be exposed.

But it has been alleged, in excuse for the retention of this money by Lieutenant Jones, that there was no naval surgeon in Paris, and that the money was advanced by the secretary of the navy. To the first part of this apology it is a sufficient reply to state: first, that the statute has declared the pay of the officer to be a sufficient allowance under all circumstances whatsoever, and, therefore, under the circumstances of this case, no allowance beyond that graduated by the law itself could properly be claimed; second, that the government could be under no conceivable obligation, even independently of the express exclusion of the law, to provide medical or surgical attendance to wait upon an officer off duty, and not necessarily exposed to any of the perils of duty; that had Lieutenant Jones been on duty, he would have been attended by a portion of the medical staff, and been, if in reach of them, entitled to the benefit of the naval hospitals; and thus, under the regular usages of the service, been supplied with those aids for which the law and the usages of the service has made provision. Every one can perceive the danger of abuse attendant on a practice, by an officer, of employing a surgeon or physician, ad libitum, to attend him when off duty, and to charge the expense of such employment to the government as a legitimate allowance to the officer when off duty.

It is no excuse for an irregularity like this to say, that where troops or vessels are employed on distant service there may be resort to medical or surgical aid; in such an instance, the persons called in would be engaged for the army, the fleet, or the corps generally, at regulated rates, and the account for such services would be settled and certified in conformity with such rules or rates; but an instance of this kind, justified by necessity alone, and conducted by rule, can bear no similitude to the advance, without authority of law or usage, of a round sum of money to one whose compensation had already been provided, and to be expended by him according to his own tastes or ideas, without known regard to any other criterion, and to be accounted for to nobody.

The secretary of the navy had no authority of law for making the advance in question. It was not within the provisions of the law for the creation and application of the hospital fund. That fund, by the law which created it, is to be applied to objects and in modes designated, and the present instance falls not within either of the directions of the law.

But it has been insisted that the secretary of the navy, having ordered the payment of this money, the subordinate or beneficiary cannot be called on for reimbursement; first, because the payment having been voluntarily made by the government, the money could not be recovered back upon the rules governing actions for money had and received; and, secondly, that the secretary himself, if any one, and not his subordinates, should be made accountable. These two excuses do not appear to be altogether consistent; for if the money was paid under a competent authority, and with full knowledge and in good faith, there could be no recovery on any account. But it is denied that the secretary had the power to make the payment or advance, or that he can be looked upon as being the government, or in any respect as being identified with the government, except so far as he is acting within his regular constitutional and legal sphere. To hold the converse of this, would be to justify the most irregular and flagrant abuses, and to cover them with the excuse that they were the acts of the government itself which had been wronged.

Well, then, with respect to any protection which can be extended to the recipient of this money, upon the mere ground that it was paid to him under an order from the secretary of the navy. The officers of the navy must, like all others, be presumed to be cognizant of the law. If, then, with this necessary imputation of knowledge, an officer, either through the ignorance, or carelessness, or mistake, or connivance of the agent of the government, get possession of and apply to his own advantage the funds of that government, and seek to protect himself by alleging a voluntary payment to him, such a defence would seem to be warranted neither by law, nor equity, nor good faith.

Again, it has been insisted that the sum of money having been advanced by direction of the secretary of the navy, the auditor, by whom, according to law, the accounts of Lieutenant Jones were to be settled, could have no right to question the legality or regularity of such advance, or to charge it to the officer who had used it; and this position seems to be rested upon the naked position that the auditor, being subordinate to the secretary of the navy, has no right or power to examine into his acts, although such are necessarily complicated or connected with the actings and doings of those transactions the law requires him to examine and adjust. To such a rule of proceeding as this, I can by no means subscribe; I know of no rule of subordination which can justify, much less demand, a departure from the law, or from integrity, in obedience merely to the fact of inferiority in the gradation of place. Each and every officer has his duties to perform, and is bound to their performance with independence and good faith; and no matter whose acts may be brought before him, whether those of his immediate superior or one much higher in power, he is bound to bring them all to the test of the law, and to pronounce upon all, from the greatest to the least, by one inflexible rule, the rule of duty; and surely, when an appeal is made to tribunals of justice, they should recognize no standard but that of the law itself.

My opinion is, that the decision of the circuit court should be reversed, and judgment entered for the plaintiffs.