THIS case was brought up, by writ of error, from the circuit court of the United States, for the District of Columbia, holden in and for the county of Washington. The facts are stated in the opinion of the court. It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Carlisle, and Mr. Jones, for the defendant.
The opinion of the court was delivered by: Mr. Justice Grier delivered the opinion of the court.
Mr. Cushing's points were:––
1. The expenses incurred by Lieutenant Jones while in France, on leave of absence, were not chargeable to the United States. The act of 3d March, 1835, (4 Stats. at Large, 755, 757,) fixed the annual compensation of officers, and prohibited all other allowances. When absent on leave, the government is not bound to provide medical attendance.
2. The secretary of the treasury was not authorized to advance the money in question to Lieutenant Jones.
The act of January 31, 1823, (3 Stats. at Large, 723,) only allows advances to officers employed on distant stations. This was when they received emoluments, which were cut off by the act of 1835.
3. The accounting officers are not bound to allow, in a settlement of an account with an officer, a credit for money unlawfully received or expended, without authority of law.
The act of 3d March, 1849, (9 Stats. at Large, 419,) applies to pursers and storekeepers only, and the disbursement must be made in pursuance of an order from an officer in command. The opinions of the following attorneys-general, do not apply to the case. Mr. Berrien, Parker's case, 1 Opinions Attorney-General, 679; Mr. Taney, Thorp's case, 1 Opinions Attorney-General, 785; Mr. Butler, Parker's case, 1 Opinions Attorney-General, 913; Mr. Johnson, (Miami claim,) Lassell's case, 2 Opinions Attorney-General, 1998; Mr. Crittenden, commissioner of customs, November 13, 1852, MS.
4. Money belonging to the government, which has been wrongfully received, can be recovered back in an action at law.
5. The President is not authorized to expend marine hospital money in a foreign country.
The counsel for defendant in error, contended that the above opinions of attorneys-general were applicable, and
1. That the payment of the medical attendance of an officer, is not such an allowance to the officer, as was contemplated in the prohibition of the act of 1835.
2. That the act of 1823, provides 'that the President of the United States may direct such advances as he may deem necessary and proper, to such persons in the military and naval service as may be employed on distant stations, where the discharge of the pay and emoluments to which they may be entitled, cannot be regularly effected.' Medical attendance is one of these emoluments.
3. Under the acts (1 Stats. at Large, 606, c. 77, § 3; Ib. 729, c. 36, §§ 2 and 3) providing for hospital money, the President is authorized to provide for sick and disabled officers in such manner as to direct, in ports where no United States hospitals exist. The order of the navy department was conclusive on the fourth auditor.
4. The act of 1849 (9 Stats. at Large, 419, Res. 17, § 2,) requires the disbursement to be allowed and the commanding officer to be held responsible. ...