
    BURR’S CASE. David H. Burr v. The United States.
    
      On the Proofs.
    
    
      The surveyor general of Utah is driven out of the Territory by the Mormons. He is removed from office while in Washington, but his salary is withheld, and he is notified that he will be held responsible on his bond for the return of the government property in his late office. He sends an agent to Utah to take charge of the same and turn it over to the officers of the United States authorized to receive it. They refuse to accept it, and the property remains in the custody of the agent. The claimant pays the agent, and also pays the rent of the building whet'ein the property is stored.
    
    The surveyor general of a Territory, who is compelled to retain the care and custody of public property after he has been removed from office, is entitled to his actual expenses.
    
      Messrs. Carlisle & McPherson for the claimant:
    This is a claim for expenses incurred in taking care of the public property belonging to the surveyor general’s office in Utah, from October 1, 1857, to September 19, 1S59.
    The claimant was surveyor general in Utah at the time the Mormon rebellion commenced, and left that Territory with the other federal officers in April, 1859, and returned to Washington. The President determined, as a measure of conciliation, to send-an entirely new set of federal officers; and on the 13th of July, 1859, the Land Office required the claimant to take immediate steps to secure to his successor, John 0. Hayes, the delivery of all the documents, furniture, and articles of any description appertaining to the office. (Rec., pp. 6-15.) On the 18th of July these instructions were so modified.as to direct that, in case of the non-arrival of his successor by the 30th of September, the claimant’s agent should turn over the property to Governor Gumming, or, in his absence, to the United Stales district attorney, marshal, or any other responsible United States officer who may be on the spot. (Rec., pp. 7-15.)
    Within ten days after receiving these instructions, the claimant des-patched an agent, his son, David A. Burr, to Utah to fulfil their requirements.
    The claimant demands nothing but the actual expenses incurred after he was out of office, in taking care of and transferring the public property to Governor Gumming, under the express direction of the Land Office.
    He received his salary up to September 30, 1857, and claims no expense incurred by him up to that time, though his agent had incurred all the expense of a journey to Utah at that time, travelling more than two months.
    After this time he claims—
    1. The salary of his agent, intended to cover actual expenses, and sworn to have just covered them. (Rec., p. 5-6.)
    2. Rent paid for the room where the property was stored.
    3. His agent’s expenses in returning.
    The Assistant Solicitor for the defendants:
    1st. The United States are not liable for the services of the claimant’s agent, because the services which were performed by him were such as the law imposed upon the claimant as surveyor general.
    It was the duty of the plaintiff, as the surveyor general of the Territory of Utab, to bare retained and taken care of tbe records and property belonging to bis office, until be could deliver them to his successor, or to some one of tbe persons named in tbe instructions given him by tbe Commissioner of tbe General Land Office. For tbe discharge of this duty tbe law creating bis office and prescribing bis duties, provided adequate compensation.
    Tbe claimant bad given bond for tbe faithful performance of bis duties as surveyor general, and one of tbe duties imposed upon him was tbe safe-beeping and delivery to bis successor of tbe property belonging to bis office. It was to prevent a forfeiture of bis official bond that be sent bis son to Utab to take .charge of, and deliver to, some officer authorized to receive them, tbe papers and public property of bis office. This sub-agent was not in any sense tbe agent of tbe United States, nor was the claimant authorized by law to appoint him; nor did tbe United States ever sanction bis appointment or adopt bis acts.
    2d. It is further insisted that tbe appointment of this sub-agent was unauthorized, because it is believed that no public agent can be appointed except in virtue of some law authorizing tbe appointment of, and fixing tbe compensation of such agent. Tbe pay of all public agents must be fixed, and appropriation for their payment made, by law.
    3d. Tbe claimant was tbe agent of the defendants, charged with the performance of certain fixed and specific duties, and for the faithful performance of those duties be bad executed bis bond. Without tbe sanction, authority, or consent of bis principal, be employs a sub-agent to perform those duties. He alone was liable to make compensation to bis sub-agent; nor can be recover from bis principal tbe amount so paid by him to such sub-agent.
    Story on Agency, § 13; 2 Kent’s Com., 633; Tippitts v. Walker, 4 Mass., 597; Emerson v. Providence Hat Mamifacturing Go., 12 Mass., 241-2.'
    An ex-officer of the United States, who is compelled to retain tbe custody of public property after he has been removed from office, may recover for tbe expenses be has actually incurred respecting tbe same.
   LoRING, J.,

delivered tbe opinion of the court.

On tbe evidence tbe court- find: 1st. Tbe petitioner was surveyor general for tbe Territory of Utab from tbe 7th of March, 1855, until tbe 30th day of September, 1857.

2d. That in tbe spring of tbe year 1857, he, with the other officers of the United States in. that Territory, were driven from it by the Mormons, then in open rebellion against the United States. And the petitioner was compelled to leave the furniture, hooks, field-notes, surveyor’s maps, instruments, and effects and papers pertaining to his office, in the charge of W. H. Wilson, a clerk in the office, and in the building in Salt Lake City which the petitioner, as surveyor general, had theretofore occupied.

3d. In the spring of 1857, David A. Burr, the son of the petitioner, was going from Washington to join his father in Salt Lake City, and was charged by the department with boxes of instruments, containing, among other things, the standard yard and stationery for the use of the surveyor general’s office of Utah.

David A. Burr left Washington in March; on reaching the frontier he shipped the articles with which he had been charged by the department, by a freight train, for Salt Lake City, and took conveyance by mail for that city for himself. When about half way there he met the petitioner, and the judges and marshal of the United States court, the Indian agent, and other officers of the United States, flying from the Mormon territory, and he returned with his father to Washington, which was their home. s

The government then sent a military force to quell the rebellion of the Mormons in Utah, and to avoid difficulty from any prejudice that might exist against the former officers of the Territory, the President superseded them all, and among them the petitioner, by new appointments.

On the 13th of July the petitioner, then in Washington, was notified by the department of the appointment of John C. Hayes as his successor to the office of surveyor general of Utah, and he was requested to take immediate steps to secure the delivery of the books, documents, paper, furniture, and articles of every description pertaining to the office of surveyor general of Utah, to Mr. Hayes, with a list of the articles, a copy of which was to be transmitted to the General Land Office.

On the 18th of July the Commissioner of the General Land Office, referring to his directions in his note of the 13th, requested the petitioner to take the necessary steps to carry out this instruction “ as speedily as possible,” and further directed him as follows : “ In case the new surveyor general has not arrived by the 30th September next, your, agent be directed to surrender the office and archives to Governor Gumming, or, in his absence, to the Unted States district attorney, the marshal or deputy marshal, or any other responsible United States officer who may be on the spot.”

To effect the delivery of the property pertaining to his late office, then at Salt Lake City, and on its way there, the petitioner sent his son, David A. Burr, there, who left Washington about the 28th of July, and he overtook a detachment of the United States army at Green river, Utah Territory, in the latter part of September. As General Armstrong, the commanding officer, informed him that the Mormons were then engaged in active hostilities with him, and advised him not to proceed, he remained with the troops until they went into winter quarters at Camp Scott, near Fort Bridger. He then found the freight train with the boxes and articles with which he had been charged by the department, for the use of the surveyor general’s office, and they were here returned to him.

The troops were detained in the camp all winter by the loss of transportation animals from cold and the depth of snow in the mountain passes towards Salt Lake City, which prevented active operations against' the Mormons, who continued to attack outposts and intercept foraging parties, and mails, and supply trains.

In December, the newly appointed judges and marshal of the United States courts in Utah, and Governor Cumming, arrived at the camp, and Mr. David A.- Burr requested the governor to receive the property pertaining to the surveyor general’s office, then in the camp in Mr. Burr’s charge. On January 5th Governor Cumming, in writing, declined to receive the property, and directed Mr. Burr to retain it in his care until they arrived in Salt Lake City.

Mr. Burr remained with the governor until arrival of peace commissioners,' sent by the President to treat with the Mormons in the latter part of May, L85Sand with them, on the 5th day of June, he proceeded to Salt Lake City in advance of the army or any other parties. On the 12th of June, and immediately upon the adjustment by the commissioners of the difficulties between the Mormons and the government, Mr. Burr went to the office formerly occupied by his father, as surveyor general, and found it in the possession of Mr. Kimball, the owner of the building, and he found in it nearly all the office furniture, and all of the original field-notes of the United States surveys made in the Territory, and some of the stationery, of all of which he took possession.

It appears from the evidence in the case, that when the petitioner and other officers were driven from Utah, some Mormons belonging to the Danite band, so called, known as men of violence, entered the office at night and seized Mr. Wilson, the clerk, who had remained in charge of the property in the office, because he was obnoxious to the Mormons, and carried him across the river and threatened his life, with a loaded pistol at his head, to enforce the revocation of letters written from the office for troops. They kept him in confinement till the next evening, when he was liberated, and resumed his duties at his office, and continued them till the 19th of September, 1857; during this time the Mormons visited the building and took from it flour, bacon, and groceries, and some stationery from the office. They then took the key of the office and told Mr. Wilson its business could not go on; and then he left it, and the property in it, consisting, among other things, of the field-notes, maps of surveys, and some- instruments. It also appeared that in the summer of 1857 some of the maps, office papers, and furniture were removed by ex-Governor Young for safe-keeping, and by him restored to Governor Oumming by order of the General Land Office.

On July 5, 1858, Mr. David A. Burr, in pursuance of his instructions, applied to Governor Oumming to receive the property belonging to the surveyor general’s office, then in Mr. Burr’s possession, and a list of which accompanied the written proffer. But Governor Oum-ming then declined to do so because of more pressing matters occupying his attention. Mr. Burr removed the property to a small room for storage, and again applied to Governor Oumming to receive the property, but he declined to do so, saying he was instructed to receipt for the property to Governor Young. After some correspondence Mr. Burr again applied to the governor, who then said he would receive the property at a future day, but that he was expecting the arrival of Mr. Hayes, the newly appointed surveyor general. Aud Governor Oumming, though often requested thereafter, did not receive the property until about the 19th of September, 1859, when he sent to Mr. Burr a written order to deliver the property to Wm. H. Rogers; this was done, Mr. Rogers receipted for the property to Mr. David A. Burr, and the petitioner’s liability for it then ceased.

The petitioner’s official term of service ended on the 30th of September, and his salary has been paid to him up to that date, but the sum due him for salary was withheld from him until he delivered the property as above stated, and exhibited the receipt therefor.

He now claims the amount paid for the services and expenses of his agent, and for the room hired for the storage of the property, the sum of $4,OSO. And we think these are legal and equitable grounds of claim.

That the. petitioner left tbe Mormon country was without fault on Ms part, and is not to be made Ms misfortune, for his right was to be protected there. And if it was.Ms duty to deliver the property pertaining to his office on its determination, it was also the duty of the government to maintain him in the position and ability to do that and to receive it from him; circumstances not to be controlled prevented this. But the evidence shows that in the end of December, 1857, he proffered by his agent the official property then in his control, to Governor Cumming, the person to whom he was directed to deliver it by the department, and that its reception was refused, and he was directed and obliged to retain that property, as well as the other property at Salt Lake City, until the 19th of September, 1859, and during all this time he was held responsible to the government, on his bond, for the property. These services were rendered after his term of office had expired and they were enforced upon him.

And we find that he is entitled to the amount paid to David A. Burr for his services, at the rate of $1,800 per year, from the 30th of December, 1857, to the 19th of September, 1859, $3,100; and for cash paid for rent of the room, hired for the storage of the property in Salt Lake City, $210, making in all, $3,3 L0, for which payment is to be rendered and a certificate issued. ■  