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THE UNITED STATES, APPELLANT v. JOSEPH NOURSE

January 1, 1832

THE UNITED STATES, APPELLANT
v.
JOSEPH NOURSE, COMPLAINANT.



APPEAL from the circuit court of the United States for the county of Washington, in the district of Columbia.

Mr Coxe, for the complainant, moved to dismiss this appeal for want of jurisdiction.

The circumstances and proceedings in this case, as exhibited in the record, were the following:

Joseph Nourse was removed from the office of register of the treasury of the United States in 1829. The following communication was afterwards addressed to him from the treasury department.

Treasury Department, Comptroller's Office,

26th June 1829.

Sir–Upon a statement of a general account, comprehending the different agencies under which you acted as late register of the treasury, the following balances were found to be due on them, respectively, to the United States, to wit:

As agent for the joint library committee of congress, $2,502 55

Ditto for paying the expenses of stating and printing the public accounts, 934 98

Ditto for paying the superintendent and watchmen of the buildings occupied by the state and treasury departments, 1,325 41

Ditto for paying the expenses of printing certificates of the public debt, 1,011 29

Ditto for paying the contingent expenses of the treasury department, 5,994 90

Amounting, in the whole, to $11,769 13

In the general account rendered by you, a balance of nine thousand three hundred and sixty-seven dollars and eighty-seven cents is claimed; between which and the balance above stated, there is a difference of twenty-one thousand one hundred and thirty-seven dollars; and is occasioned, with the exception of fifty-four dollars and fifty cents paid to Gabriel Nourse and James Watson, suspended for want of vouchers, by your having charged a commission of two and a half per cent on all the moneys which have passed through your hands, under the different agencies above specified, but which the accounting officers of the treasury could not allow, there being no law to authorise or sanction such a charge.

A copy of the treasury settlement of your account is inclosed for your information. It becomes my duty to request that you will deposit the abovementioned balance of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, in the office of discount and deposit of the branch bank of the United States at Washington city, to the credit of the treasury of the United States, taking duplicate receipts therefor from the cashier, one of which you will forward to this department.

Respectfully,

Jos. ANDERSON, Comptroller.

Jos. NOURSE, Esq., late Register of the Treasury.

The request contained in this letter not having been complied with, on the 14th of July 1829, the following process was issued by order of the agent of the treasury.

To Tench Ringgold, Esquire, Marshal of the District of Columbia.

Whereas Joseph Nourse, late register of the treasury, in relation to his several accounts as United States agent, stands indebted to the United States in a cash balance of eleven thousand seven and sixty-nine dollars and thirteen cents; agreeably to the settlement of his account, made by the proper accounting officers of the treasury, a copy of which is herewith inclosed; and whereas the said Joseph Nourse, having failed to pay over according to the act of congress, passed the 15th day of May 1820, entitled 'an act for the better organization of the treasury department,' the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, these are, therefore, in pursuance of the said act, to command you to proceed immediately to levy and collect the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, by distress and sale of the goods and chattels of the said Joseph Nourse, giving ten days previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town or county where the said goods or chattels were taken, or in the town or county where the owner of such goods or chattels may reside; and should there not be found sufficient goods and chattels to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, remaining due and unpaid as aforesaid, you are hereby commanded to commit the body of the said Joseph Nourse to prison, there to remain until discharged by due course of law: and should the said Joseph Nourse be committed to prison, as aforesaid, or if he abscond, and goods and chattels sufficient to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, be not found, you are hereby commanded to levy upon, and expose to sale, at public auction, for ready money, to the highest bidder, the lands, tenements and hereditaments of the said Joseph Nourse, or so much thereof as may be necessary to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, or whatever sum there may remain due and unpaid thereof, after you shall have given notice of the said sale, at least three weeks prior to its taking place, in not less than three public places in the county of district where such real estate is situate; and all moneys which may remain of the proceeds of such sale, after satisfying the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, and paying the reasonable costs and charges of the sale, you are required to return to the proprietor or proprietors of the land or real estate sold as aforesaid: and whatever you may do in obedience to this warrant, make return thereof to this office; and for so doing this shall be your sufficient authority. Given under my hand and seal, at my office, in the department of the treasury of the United States, at the city of Washington, in the district of Columbia, this fourteenth day of July, in the year of our Lord one thousand eight hundred and twenty-nine.

S. PLEASONTON [SEAL]. Agent of the Treasury.

This warrant was issued under the second section of the act of congress passed May 15, 1820, 3 Story's Laws U. S. 1791, entitled 'an act providing for the better organization of the treasury department.' The third section provides 'that if any officer employed, or who has been heretofore employed in the civil, military or naval departments of the government, to disburse the public money appropriated for the service of those departments respectively, shall fail to render his accounts, or to pay over in the manner and in the times required by law, or the regulations of the department to which he is accountable, any sum of money remaining in the hands of such officer, it shall be the duty of the first or second comptroller of the treasury, as the case may be, who shall be charged with the revision of the accounts of such officer, to cause to be stated and certified, the account of such delinquent officer to the agent of the treasury, who is hereby authorised and required, immediately, to proceed against the delinquent officer in the manner directed in the preceding sections, all the provisions of which are hereby declared to be applicable to every officer of the government charged with the disbursement of public money, and to their sureties, in the same manner and to the same extent as if they had been described and enumerated in the said section.'

The second section of the act directs the warrant to issue to the marshal of the district where the delinquent resides; and that the marshal shall proceed to levy the sum due, by distress and sale of the goods and chattels of such delinquent, and if there be not sufficient goods and chattels to satisfy the warrant, the marshal is authorised to take the person of the delinquent, and to commit him to prison, there to remain until discharged by due course of law, & c.

The fourth section provides, that if any person shall consider himself aggrieved by any warrant issued under the act, he may prefer a bill of complaint to any district judge of the United States, setting forth the nature and extent of the injury of which he complains; and thereupon the judge aforesaid may, if in his opinion the case requires it, grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires; but no injunction shall issue until the party applying shall give bond and sufficient security, conditioned for the performance of such judgment as shall be awarded against the complainant, in such amount as the judge granting the injunction shall prescribe: nor shall the issuing of said injunction in any manner impair the lien produced by the issuing of such warrant. And the same proceeding shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if upon dissolving the injunction, it shall appear to the satisfaction of the judge who shall decide upon the same, that the application for the injunction was merely for delay, 'the judge may add damages, not to exceed ten per centum on the principal sum.'

The fifth section provides, that such injunctions may be granted in or out of court; and the sixth section enacts, 'that if any person shall consider himself aggrieved by the decision of such judge, either in refusing to issue the injunction, or if granted, on its dissolution, it shall be competent for such person to lay a copy of the proceeding had, before the district judge of the supreme court, to whom authority is hereby given, either to grant the injunction or permit an appeal, as the case may be, if in the opinion of such judge of the supreme court the equity of the case requires it; and thereupon the same proceedings shall be had upon such injunction in the circuit court as are prescribed in the district court, and subject to the same conditions in all respects.'

The marshal of the district of Columbia having levied the warrant on the lands and tenements, goods and chattels of Mr Nourse; on the 25th of August 1829, he presented to the district judge of the United States for the said district, the following bill for relief.

To William Cranch, Esq., chief justice of the District of Columbia, and judge of the district court of the United States for said district:

This the bill of complaint of Joseph Nourse, late register of the treasury of the United States, shows that his public accounts as such register, and agent of the treasury department in disbursing certain funds, and settling certain accounts of contingencies and other miscellaneous matters, and as agent for the joint library committees of congress, matters altogether distinct from, and unconnected with, his duties as such register, have been settled at the treasury since his removal from office; upon which settlement, a pretended balance has been found against him for the sum of eleven thousand two hundred and fifty dollars and twenty-six cents; for which a warrant of distress has been issued against his lands and tenements, goods and chattels, by Stephen Pleasonton, Esq., agent of the treasury, in the pretended execution of the act of congress, passed on the 15th day of May 1820, 'providing for the better organization of the treasury department,' which warrant has been levied, during the absence of this complainant, on his lands, tenements, goods and chattels, by the marshal of this district; copy of which is annexed. That the said account is unjust and illegal; and so far from any balance being due thereon to the United States, a considerable balance should have been struck thereon in favour of this complainant, as appears by an account hereto annexed, which he declares is just and true.

That, besides his regular duties as register, established by law, and stated according to the custom and routine of his office as such register, he was, for a long course of years, that is to say, from the year 1790 till his recent dismission from office, duly employed by the proper department of the government of the United States, in the separate, independent, and wholly extra business of special agent for the disbursement of the contingent funds of the treasury department, and for the settlement, as such special agent, of all the numerous accounts connected with the disbursement of those funds.

That this distinct branch of duty, which he took upon himself, at the special instance and request of the proper department of the government, and having competent authority to engage him or any other agent in that capacity, and for the performance of those duties, devolved upon him great labour, responsibility, and risk, altogether independent of, and apart from, his proper duties as register, and occupied a great portion of his private hours, that is, of those hours, when, according to the established order and routine of his department, he was altogether discharged and free from the proper duties appertaining to his office of register, and had his time entirely as his own disposal, but for his employment as special agent as aforesaid. That the extent of the extra labour and responsibility bility so devolved upon him cannot be adequately described or conceived, without a reference to, and inspection of, his books, bank accounts, and vouchers connected with this branch of his employment in the public service; and he therefore prays that these documents may be ordered to be produced from the treasury department, and audited in this court: that, besides the great labour and consumption of time induced by this extra employment, he was exposed to considerable pecuniary losses, from the ordinary errors that occasionally occur in the accounts of the best accountants, from the multiplicity and minuteness of the various accounts and vouchers to be settled and preserved: that when he undertook this branch of public employment, the precise nature and amount of compensation therefor were not ascertained by any particular stipulation: that, if the government had employed any indifferent person to perform these duties, without any other precise compensation stipulated beforehand, a reasonable mercantile commission or per centage on the sums disbursed would have resulted to such person, according as well to general usage as to the custom of the treasury department in the like cases. That the usage of the treasury department, and other departments of the government, has invariably been, since the organization of the general government, to allow such commissions or per centage, not only to unofficial persons so employed, but to official persons and clerks of the departments, when such duties were distinct from the stated duties appertaining to their offices and stations, notwithstanding such official persons were in the receipt of fixed salaries for their stated duties.

That, as early as the year 1800, this complainant made out an abstract of his disbursements under these extra agencies, claiming to be allowed a compensation therefor; which original abstract is on file in the treasury department; from whence he prays that it may be produced and audited in this court. That he has duly made out and presented his account to the proper accounting officers of the treasury, charging his commission at the rate of two and one half per cent on the amount of his disbursements, which, if allowed, would, after a full and fair settlement of all his public accounts, leave the United States indebted to him in a balance of nine thousand eight hundred and eighty-six dollars and twenty-four cents; which he has good reason to believe, and does verily think and believe, to be justly and equitably due and owing to him from the United States, as stated in his said annexed account. That the accounting officers of the treasury have altogether rejected and thrown out his said charge, and denied him any manner of compensation for his extra services as such special agent as aforesaid, not upon the ground or pretence that his charge of commission is too high or unreasonable, if he were entitled to any compensation; but that he is not entitled to any compensation whatever for his extra services as such special agent, and pretending that his stated salary as register shall be received as full compensation, not only for his proper duties as register, but for his extra employment and services in the agencies above mentioned.

That the commissions or per centage so charged by the complainant are not only reasonable and usual in the like cases, but are an inadequate compensation for the peculiar labour and responsibility of the complainant in the discharge of the particular employment and duties for which they are charged. And this complainant further shows, that he is well advised by counsel, and believes, that the act of congress under which the said warrant of distress is pretended to have been issued, being a law in derogation of common right, and of the ordinary and approved remedies under the general law of the land, ought to be construed with the utmost strictness against any authority assumed under it, and in favour of the citizen; but, that in no reasonable construction of the same, can this complainant or his accounts, either as register of the treasury, or as the special agent of the treasury, or as the agent of the joint library committees of congress, above described, be brought within the description of persons over whom that act gives jurisdiction to the agent of the treasury.

By the second and third sections of the said act, the officers subjected to the summary jurisdiction and process of such treasury agent are distributed into two classes: 1st, those employed to collect and receive the public money before it is paid into the treasury; 2dly, those employed to disburse the public money after it is paid into the treasury, appropriated for the service of the civil, naval, or military departments. There can be no pretence whatever, and he presumes none is set up, to bring this complainant within the first class; and, therefore, the only question is, whether he falls within the second.

This class he is well advised and believes was intended to comprehend none but the regularly appointed officers of the government, charged, ex officio, with disbursements for any of the three great departments named in the act. That this description cannot embrace mere subordinate agents employed by any particular department of the government, as by the treasury, to disburse the contingent funds of the department, such agent not being an officer who is, ex officio, to disburse the public money appropriated for the service of either of the three great departments named; but, in the strictest sense, a mere unofficial agent, employed informally, without any letter patent, or commission or letter of appointment, to perform extra services for the treasury as a commission merchant or banker, to make purchases or accept bills on public account, might be employed, without attaching to such commission merchant or banker the character of functions of a public officer. Whereas the third section of the act throughout describes the party subjected to the summary process authorised by it, as 'any officer employed,' &c.; 'such delinquent officer,' &c.: and as to his office of register of the treasury, which constituted the only ...


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