
    McKEE’S CASE.
    Henry E. McKee v. The United States.
    
      On the Proofs.
    
    
      A quartermaster advertises for 3,000 tons of hay, deliverable at Fori Gibson, the proposals to state at %ohat distance from the fort the hay will be cut, such military protection to be furnished “ as the necessities and interests of the service may admit.” The claimant’s bid to furnish the hay contains no stipulation as to the military protection. The formal contract binds the Government to furnish “sufficient guards and escorts to protect the contractor while engaged in the fulfillment of this contract.” A second contract in similar terms is made, without advertisement, on the 17th July, 1864, for more hay, deliverable from August 10 to September 2Ó. It is founded on an order of the-
      
      commanding officer directing the quartermaster to procure the hay “on the best terms you can,” “ should there not be time to advertise.” Sufficient guards are not furnished to protect the contractor. He is prevented from performing, and some of the hay is destroyed hy the public enemy. The accounting-officers of the Treasury allow him his losses and expenses per ton on that destroyed. He brings his action for profits. The defendants set up a counterclaim to recover hack the moneys paid on the accounting-officers’ award.
    
    I. Where the advertisement and proposals refer only to such military protection “ as the necessities and interests of the sei'viae map admit,” the gratuitous insertion of a covenant in the formal contract binding the defendants to furnish “ sufficient guards and escorts to protect the contractor while engaged in the fulfillment of this contract” is void under the Advertisement Act 2d March, 1861, (12 Stat. L., 220, § 10.)
    II. A covenant binding the Government to furnish “sufficient guards and escorts to proteetthe contractor while engagedin the fulfillment of this contract” is not an agreement to protect a citizen in his ordinary pursuits, but is of the nature of a contract of indemnity or insurance where the Government is interested in the fulfillment, and where there is a risk which one party or the other must assume. Such a covenant amid such circumstances is within a quartermaster’s discretion and valid.
    III. A quartermaster’s contract made without advertisement was valid under the Act 4th July, 1864, (13 Stat. L., 394, § 4,) though the commanding officer did not in terms declare an emergency, nor in terms direct the quartermaster to procure the supplies “in the most expeditious manner without advertisement.”-
    
    IV. A quartermaster’s contract made without ad vertisement for hay to be cut on the neighboring prairies was valid under the Act 4th July, 1864, (13 Stat. L., 394, § 4,) though it bore date on the 17th July, and the hay was not deliverable till from the 10th August to the 25th September. This might be “ the most expeditious manner” forthe “ immediate procurement” of those supplies amid the circumstances of the case.
    V. Where the accounting-officers of the Treasury, in mistake of law, have certified a balance in favor of a party upon a contract or obligation which was invalid, and the party brings a suit founded upon the same contract, the defendants may set up as a counter-claim and recover back the money paid on the accounting-officers’ settlement, ex equo et tono.
    
    
      The Reporters’ statement Of the'ease:
    The following are the facts found by the court upon which the final argument in the case was heard :
    I; In the year 1864, Brigadier-General John M. Thayer was in command of the District of the Frontier, Department of Arkansas, with headquarters at Fort Smith, and Greene Durbin, captain and assistant quartermaster, was chief quartermaster of said district; which district was in the Indian Territory, south of Kansas and west of Arkansas.
    II. During the spring, summer, and fall of 1864, owing to the low stage of water in the Arkansas River, it was impracticable for General Thayer’s command to be supplied with grain, by way of that river, for the support of the animals; and the only other sources of supply of grain were Fort Scott and Fort Leavenworth, in Kansas. From those points to Fort Gibson was a long route, exceedingly difficult to protect and guard against raids from the rebel troops. Being thus cut off from any direct or safe communication with any base of supplies, said command was compelled to rely solely upon grass and hay for the support of the animals. Grass was very abundant in the Indian Territory during the year 1864, and hay could have been put up as late as the last of October. Owing to the condition of things thus stated, and as well to provide hay for present use as for the ensuing fall and winter for the posts in the command, the contracts annexed to the petition were entered into, as hereinafter set forth.
    III. The said Durbin published in a newspaper.at Fort Smith, Arkansas; the following advertisement:
    “ Geeice Chiee Quartermaster.,
    “District oe the Frontier, Dep’t oe Ark.,
    
      “JWort Smith, May 27, 1864.
    “Sealed proposals will be received at this office until Monday, the 20th day of June, 1864, at 12 m., for furnishing 3,000 tons of hay, to be delivered at Fort Gibson, C. N. The bids will state at what date the delivery of the hay can commence, & no bid for the delivery of less than 200 tons will be received. The hay will be received by an agent of the undersigned, or by the post quartermaster at Fort Gibson, who may be serving there at that time, and upon the delivery & acceptance of each two hundred tons payment therefor will be made in such funds as the Government may provide for the purpose.
    “Bonds, with approved security, in the amount of five hundred dollars, for the performance of contracts to deliver lots of 200 tons, & in the sum of two thousand dollars upon contracts for the delivery of lots of 1,000 tons, will be required; bonds for the performance of contracts for the delivery of other amounts than those above stated will be accordingly proportioned.
    “The proposals must state within what time the hay will be delivered at the post, & at what distance from Fort Gibson each lot of hay will be cut.
    “ Such military protection will be furnished as the necessities and interests of the service may admit.
    “ Proposals will be made out in duplicate, with a copy of this advertisement attached, and endorsed ‘ Proposals for furnishing hay.’
    “ The right is reserved to reject any & all bids, as the interests of the service may require.
    “GREENE DURBIN,
    “ Gapt. & A. Q. M., Oh’f Q’rm’r.’’
    
    IY. The claimant made the following proposal under said advertisement:
    “Fort Gibson, O. N., June 16,1864.
    “Gapt. Greene Durbin,
    “A. Q. M., Chief Q’rmaster:
    
    “ Captain : I will deliver, as per terms of your advertisement annexed, three thousand (3,000) tons of hay at. the post of Fort Gibson, O. N., for thirty ($30) dollars per ton, or the same amount stacked within seven (7) miles of this post for twenty-two ($22) dollars per ton; or I will deliver any portion of the whole amount in the field or at the post, as may be desired, at the same prices. Delivering to commence by or before July 15,1864.
    “ I offer as securities Perry Fuller & Edw. J. Brooks, both of Fort Smith, Arkansas.
    “ H. E. MoKEE.
    “I am prepared, on sufficient-notice, to furnish an additional quantity of hay at same prices, not to exceed in amount three thousand tons.
    “H. E. MoKEE.”
    Y. Thereafter the contract of June 20,1864, annexed to the petition as Exhibit A, was entered into between said McKee and said Durbin.
    YI. On the 17th of July, 1864, the said Brigadier-General Thayer caused the following order to be addressed by his acting adjutant-general to said Durbin:
    ‘‘Headquarters District or the Frontier,
    “ Fort Smith, Arle., July 17,186.4.
    “The general commanding directs that you immediately take the necessary steps for the delivery of four thousand tons of hay at Cabin Creek, 40 miles from Fort Gibson, & at Hudson’s Crossing of the Neosho River, 70 miles from the fort; two thousand tons to be delivered at each of said points. Should there not be time to advertise & regularly let the contract, you will make the arrangements for the delivery of the hay on the best terms you can, but not to exceed the contract-rates for the delivery of hay at Fort Gibson, C. N., under the existing contract.
    ■ “Very respectfully, &c.,
    (Signed) “T. J. ANDERSON,
    “ Major <& A. A. Geni.
    
    
      “ Capt. Greene Durbin,
    “ Chief Quartermaster.”
    VII. On the said 17th of July, 1864, the said Durbin addressed to the claimant the following letter:
    ' “Office Depot Quartermaster,
    
      "JPort Smith, Arle., July 17, 1864.
    “ Mr. Henry E. McKee,
    “ Contractor, &c., M. Gibson, C. N.:
    
    “ You will deliver at Fort Gibson, C. N., by the 10th of September, 1864, as per the last clause of par. I of the contract, entered into by and between you & myself, for supplying hay at Fort Gibson, O. N., on the 20th day of June, 1864, the additional amount of two thousand tons of good merchantable timothy or prairie hay. The hay will be inspected & accepted by the acting post-quartermaster at that post, or by my duly-authorized agent. Payment for the additional two thousand tons will be made as prescribed in paragraph I of said contract. You are also tendered the refusal of delivering & putting up at Cabin Creek, 40 miles from Fort Gibson, C. N., & Hudson’s Crossing of the Neosho River, 70 miles distant from the fort, at each of said points on the direct route of supplies from Fort Scott, Kansas, to Fort Gibson, four thousand tons of timothy or prairie hay, two thousand ton’s to be delivered at each point by the 25th of September, & the delivery to commence by the 10th of August, 1864. For each one thousand tons of hay delivered and accepted at said points you will be paid the sum of thirty dollars per ton, in such funds as the U. S. may furnish for that purpose.
    “ You will inform me without any delay of your acceptance of this offer, and, if accepted, you will inclose to me a guarantee in duplicate, duly stamped, in the sum of six thousand dollars, and signed by good and sufficient sureties, for the faithful performance of your subsequent agreement. The guarantee will be in the enclosed form.
    “ Respectfully, your obt. servt.,
    “ GREENE DURBIN,
    
      "Capt. & Asst. Q’rmlr, 77. 8. F.”
    VIII. On the 23d of July, 1864, the claimant addressed and transmitted to said Durbin the following letter:
    “Fort Gibson, Cherokee Nation,
    
      “July 23rd, 1864.
    “ Oapt. Greene Durbin,
    
      "Asst. Quartermaster U. 8. Yols., Fort Smith, Arles.:
    
    “ Sir : I have the honor to acknowledge the receipt of your communication of the 18th inst., ordering me to deliver two thousand tons of hay at the post, Fort Gibson, as provided in the contract of June 20,1864, and containing a proposition for the delivery of two thousand tons at Cabin Creek, and two thousand tons at Hudson’s Crossing of the Neosho River, on the route from Fort Scott, Kansas, to Fort Gibson, C. N., at thirty dollars per ton, and in reply I have to state that I wil’ accept your, proposition on condition that the necessary military protection be furnished at those points.
    “I also enclose you bonds in duplicate for the fulfillment of same as requested.
    “Very respectfully, your obt. servant,
    “(Signed) “H. E. McKEE,
    
      “Nay Contractor.”
    IX. In pursuance of tlie correspondence set forth in the next preceding three findings, and without any advertisement inviting proposals for delivering hay at Cabin Creek and Hudson’s Crossing, the contract of the 18th of July, 1864, which is annexed to the petition as Exhibit B, was entered into between said Durbin and the claimañt. •
    X. During the months of July, August,- and September, 1864, the Indian brigade were all the troops of the United States that did permanent duty in the Indian Territory, and they were frequently inside fortifications. A great portion of the time other troops were temporarily on duty there. With the troops of his command General Thayer had to keep open a supply-route between Fort Smith and Fort Scott, a distance of about 250 miles. Upon this route lay Fort Gibson, Cabin Greek, and Hudson’s Grossing. Cabin Creek was 55 miles and Hudson’s Crossing 85 miles north of Fort Gibson, and the distance from Fort Gibson to Fort Scott was 165 miles.
    XI. During those months, along the route between Fort Gibson and Fort Scott, active hostilities existed between the forces of the Government and those of the rebellion. Armed forces of the rebels were frequently along the road between those places, and in the vicinity of the hay-stations, with a view of capturing detached parties and attacking supply-trains, and large parties of them appeared frequently in the immediate neighborhood of Fort Gibson; and no working parties were allowed to go out from any of the posts within the district of the frontier without military protection. Because of this condition of things it was impracticable for General Thayer always to avoid delays in furnishing military protection to parties working under the claimant or under his subcontractors, in making hay under said contracts; but in every case guards and escorts were furnished by him as promptly as the necessities •and interests of the public service permitted. The following delays of that description took place: 1. At the commencement of the claimant’s work, under the contract of June 20, he was delayed about twenty days for want of military protection. 2. In consequence of the attack made, as hereinafter stated, on the 2d of September, 1864, upon the party of Subcontractor A. Cohen, working under that contract, said Cohen was compelled to suspend work for eight days. 3. One E. O. Amsden, a subcontractor under the claimant for putting up hay at Hudson’s Crossing, was two weeks delayed at Fort Gibson from setting out from thence to the crossing, waiting for an escort; and 4, one George W. Stotts, a subcontractor under the claimant for putting up' hay at Cabin Creek, was compelled to wait eight days at Fort Gibson for an escort and guard after he had made application therefor.
    XIL The claimant and his subcontractors proceeded to cut and make hay for delivery under the said two contracts, and all the parties employed by the claimant or his subcontractors in that work were at all times provided with escorts and guards in as great strength as the necessities and interests of the public service permitted; but they were not sufficient to resist the attacks which were made upon them by rebel forces, as hereinafter set forth. If a force sufficient to resist those attacks had been provided, the claimant was prepared to furnish all the hay required to fill the said contract.
    XIII. The 1,000 tons of hay which the contract of June 20 required to be delivered at the post of Fort Gibson were delivered there, and the contract-price of $30 per ton was paid therefor by the officers of the Quartermaster’s Department. Of the 2,000 tons which that contract required to be put up and delivered in stacks at or within the distance of seven miles from said post, the claimant delivered there in stacks, and was paid the contract-price of $22 per ton for 1,000 tons by the officers of the Quartermaster’s Department.
    . XIY. Afterward the claimant presented to the Third Auditor of the Treasury a claim for compensation for hay which had been cut by him for delivery under the said contract of June 20, but not delivered, because destroyed by rebel troops on the 2d of September, 1861; and on the 28th of July, 1869, the Third Auditor recommended the payment of the items of the following account:
    “ The United, States to Henry E. McKee, Ur.
    
    Q. M. Dept.
    “For compensation for hay destroyed by.rebel enemies, on 2d September, 1861, on the prairie within seven miles from Fort Gibson, O. N.; such hay having been cut by said McKee, for delivery to the United States, in pursuance of a contract made 20th June, 1861, between said McKee and Capt. Green
    Durbin, assistant quartermaster, viz :
    “100 tons, stacked, at $22 per ton..8,800 00
    “200 “ in process of being stacked, at $19 per ton.:... 3,800 00”
    
      The Second Comptroller of the Treasury concurred in the Third Auditor’s recommendation; and the said account (being settlement No. 1698) was thereupon paid to the claimant by the Secretary of the Treasury out of the appropriation for the Quartermaster’s Department.
    XV. Of the whole quantity of 3,000 tons, deliverable under the contract of June 20, irrespective of the order given by said Durbin in the letter of July 17, set forth in finding VII, and of the 600 toils which were destroyed by the rebels as aforesaid, there remained 400 tons to be delivered: and the claimant was prevented from delivering the same, because, in consequence of the attacks of the rebels upon, and the capture by them of, other parties of hay-makers, twelve miles from Fort Gibson, the post commander at Fort Gibson ordered in to the post all the parties-en gaged in cutting and pu ttiug up hay to. fulfill that contract, and would not permit them to go to work again under that contract-
    XVI. Under the contract of July 17, the claimant delivered at Cabin Creek 1,128 tons of hay, for which he was paid the contract-price of $30 per ton. On the 19th of September, 1864,. at Cabin Creek, an overpowering force of the rebels destroyed 115 tons, which had been cut there for delivery under the contract of July 17; after which no military protection was afforded by the authorities of the United States for parties to cut hay at or near Cabin Creek, and consequently no further work was done by the claimant toward delivering hay at Cabin Creek.
    XVII. On the same 19th of September, a subcontractor under the claimant was engaged with a party of hay-makers in cutting hay at Hudson’s Crossing, for delivery under the contract of July 17, when information was received there of the attack at Cabin Creek; and Colonel Wheeler, of Thirteenth Kansas Infantry Volunteers, ordered the camp at Hudson’s Crossing to be abandoned, and the hay-makers and their guards to fall back on Fort Scott, which was done. At that time the party of the subcontractor had cut 70 tons of hay, which were abandoned when the camp was abandoned; and thereafter no military projection was afforded by the authorities of the United States for-parties to cut hay at Hudson’s Crossing, and no further work was done there under that contract.
    XVIII. Afterward the claimant presented to the Third Auditor of the Treasury a claim for compensation for the 115 tons of hay destroyed by the rebel force at Cabin Creek, and for the 70 tons abandoned at Hudson’s Grossing; and the Third Auditor, in pursuance of the decision made by the Second Comptroller, recommended, on the 1st of April, 1870, the allowance and payment of the following account, as settlement No. 3614:
    “ The United States to Henry H. McKee, Dr.
    “In addition to an amount of $12,600.00 heretofore awarded him by settlement 1698, made 28th July, 1869, the further sum of..... 6,285 00
    “This further sum being awarded him, in pursuance of the decision made 28th March, 1870, by the Second Comptroller, and upon consideration as follows:
    “ 1st. On account of hay which had been cut by said McKee to fill a contract made by him 18th July, 1864, with Capt. Green Durbin, A. Q. M., and which was destroyed by rebel enemies at Cabin Creek (40 miles from Fort Gibson) on 19th Sept., 1864 —$3,450.00.
    “2d. On account of hay which had been out by said McKee to fill the said contract, and which was necessarily abandoned and lost at Hudson’s Crossing of the Neosho River (70 miles from Fort Gibson) on the 19th of September, 1867 — $1,890.00.
    “ 3d. On account of hire of teams used by the United States in said abandonment of the post at Hudson’s Crossing, $945.00.”
    Thereupon, this account was paid to the claimant by the Secretary of the Treasury out of the appropriation for the Quartermaster’s Department.
    XIX. The claimant furthermore presented to the said Third Auditor a claim for compensation for property destroyed by rebels at Cabin Creek, and near Fort Gibson, while being used by the claimant in preparing hay at those places, and the said Auditor, under the previous decisiou of the Second Comptroller, recommended, on the 24th of June, 1872, the payment of the following account: . ■
    “ The United States to Henry K. McKee, Ur.
    
    “In addition to the sums heretofore allowed by settlement 1698, of July, 1869, and settlement 3614, of April, 1870, and as compensation for property destroyed by rebels at Cabin Creek and near Fort G-ibson while being used by said McKee in preparing hay under his contract of 20th June, 1864, losses having been occasioned by reason of the failure of the United States to furnish sufficient guards, as stipulated in the contract, allowed on the papers filed in the claim herewith, and in accordance with the accompanying report thereon of the Third A uditor, (R. W. Clarke,) dated July 15th, 1869, and concurred in by the Second Comptroller, dated June 21st, 1872, amounting to sixteen thousand seven hundred & seventy-four dollars.... $16, 774 00”'
    Thereupon, this account was paid to the claimant by the Secretary of the Treasury out of the appropriation for the Quartermaster’s Department.
    XX. On the 26th of September, 1864, the said Durbin addressed the following letter to the claimant:
    “Office Depot Quartermaster,
    
      “Fort Smith, Ar7c., Sept. 26, 1864.
    “Mr. Henry B. McKee,
    “ Fort Gibson, G. N. ;
    “Upon the advice of the general commanding, the putting up of hay at Cabin Creek and Hudson’s Crossing, Ind, Terrify, will be immediately stopped. I do not think the best interests of the Government will admit of running the risk of protecting forage at those points, as the garrisons are necessarily small.
    “You will also immediately stop the further delivery of hay under the contract of the 20th of Juue, 1864, arranging for the putting up of 2,000 tons within a distance of 7 miles from Fort Gibson, as it is not deemed advisable to complete these contracts any further, except for the delivery of hay at the post of Fort Gibson.
    “Respectfully, y’r ob’t se’v’t,
    “ GREENE DURBIN,
    “ Cap. & A. Q. MS
    
    XXI. If the claimant had been enabled to cut and deliver, and had been paid for, all the hay called for by the contracts sued on, he would have realized a profit of six dollars per ton upon the 400 remaining to be delivered under the contract of June 20, and a profit of eleven dollars per ton on the 757 tons remaining to be delivered at Cabin Greek, and a like profit on the 1,930 tons remaining to be delivered at Hudson’s Crossing.
    Additional findings allowed on the request of the defendants:
    I. The claimant presented his claim to the Treasury Department for the contract-price of the four hundred tons mentioned in the XIYth finding.
    II. For the two hundred tons mentioned in the XIYth finding, he claimed before the Treasury Department nineteen dollars a ton, being the contract-price, less the cost of stacking.
    III. For the one hundred and fifteen tons mentioned in the XYIth finding, he claimed before the Treasury Department the contract-price.
    IY. For the seventy tons mentioned in the XYIth finding, he claimed before the Treasury Department the contract-price, less the cost of stacking.
    Y. These claims were for the value of the hay, as measured by the cost to himself; and he stated in an affidavit accompanying the same “ that the actual cost of putting up the hay was but little, if any, less than the contract-price, and in some cases was not covered by the contract-price; that from the time at which the estimatés were made and the contract let to the time at which the material and supplies were purchased gold had advanced from sixty to eig'hty per cent, premium; that the prices for labor, material, and supplies were regulated by this standard, and actually advanced more than fifty per cent, in the market during the time this work was being done, and your deponent was obliged to pay therefor upon that basis.”
    YII. The hay thus claimed and paid for had not been delivered to, accepted, or measured by the officers of the United States, and was in the possession and control of the claimant at the time of its destruction.
    YIII. At the time of the destruction of the six hundred 'tons mentioned in the XIYth finding, certain animals, machines, and stores belonging to the claimant, and used in the preparation of the hay, were captured and destroyed by the rebels. This property was valued at $1,100, and, upon the allowance of Third Auditor and Second Comptroller, claimant has been paid that sum for it.
    IX. At the time of- the destruction of the one hundred and fifteen tons mentioned in the XYIth finding, George H. Stotts, a subcontractor under claimant, owned and used, in the preparation of said hay, certain wagons, mules, machines, hay-forks, and also owned certain flour, sugar, corn, &c., all of which was captured or destroyed by the rebels, McKee settled with Stotts for this property at a valuation of $15,674, and has been paid that sum for the same by the Treasury Department.
    X. These two sums, $1,100 and $15,674, were allowed on the 21st June, 1872, and were payment for the property mentioned in claimant’s petition, filed in this court of December term, 1870, and valued therein at $1,099 and $15,674.
    
      Mr. R. B. Warden and Mr. S. W. Johnston for the claimant:
    On the facts as found by the court the case is within the decisions in Speed v. .United States, (8 Wall., 77;) Cobb, Christie & Go. v. United States; Thompson's Case, (9 O. Cls. R., 187;) and Tenney's Case, (10 id., 269.)
    The contracts here relied on were not contrary to public policy, as argued on the other side. The policy relating to such contracts is essentially martial, and respects the maxim salus populi suprema lex. (Thompson's Case, 9 C. Cls. R., 187; Speed's Case, 7 O. Cls. R,. 95; Schooner Mannhaasset, 3 C. Cls. R., 76; Clyde's Case, 9 C. Cls. R., 184.)
    We rely on Speed’s Case, and respectfully object to the proposed limitation of that leading case. We also rely on Tenney's Case, (10 C. Cls. R., 269.) So far from being contrary to public policy, apart from the provisions- of the statutes, the contracts here relied on were completely favored by the peculiar public policy occasioned by the civil war. We respectfully suggest that the court, sua sponte, may, on further consideration, see proper to amend the findings so as to find expressly that no responsible and capable person would have made contracts of the kind without an absolute guaranty of protection, such as was expressly stipulated for in the instances before the court. There is no controversy on that subject among the witnesses. They all show that the fact was as here suggested.
    It is less fair than ingenious to put the case as though the claimant sought to hold the defendants responsible for the wrongful acts of the public enemy. We readily concede that the paramount consideration as to the performance by the Government of its part in the contracts with'the claimant was that of military propriety or necessity, bat subject to a duty to make good to tbe claimant all his damages, consequential to the action, dictated by such paramount considerations. No one denies that if the Government, because of such paramount considerations, takes the property of loyal citizens against their will, the public policy applying to such cases orders compensation. This, indeed, is, within certain limits, a statutory policy.
    The Act March 3, 1849, supplemented by the Act March 3, 1863, effects this enactment:
    “ Every person who sustains damage by the capture or destruction by an enemy, or by the abandonment or destruction by the order of the commanding general, the commanding officer, or quartermaster, of any horse, mule, ox, wagon, cart, sleigh, harness, steamboat or other vessel, railroad-engine or railroad-car, while such property is in the military service, either by impressment or contract; or who sustains damage by the death or abandonment and loss of any horse, mule, or ox, while in the service, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, or whose horse, mule, ox, wagon, cart, boat, sleigh, harness, vessel, railroad-engine or railroad-car is lost or destroyed by unavoidable accident while such property is in the service, shall be allowed and paid the value thereof at the time when such property was taken into the service, except in cases where the rislc to which the property would be exposed toas agreed to be incurred by the owner.”
    
    Like the words on which we have just laid a special emphasis,the proviso of the act referred to is remarkably significant as to the real public policy relating to contracts such as those on which the claimant here relies. The words of that proviso are:
    
      "Provided, It appears that such loss, capture, abandonment, destruction, or death was without any fault or negligence on the part of the owner of the property, and while the property was actually employed in the service of the United States.” (Rev. Stat., 694, § 3483.)
    But the same policy substantially appears in the Act March 2,1861, on which we also rely as an answer to the proposition that, if General Thayer intended to go as far in approval of these contracts, he acted ultra vires. Still, however, looking to the question raised concerning public policy, we now refer to the following words of the last-named statute, as quite clearly indicating that we do not mistake the policy applicable to .such contracts:
    “All purchases and contracts for supplies or services in any of the departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles or performance. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold or such services engaged between individuals.” (Revision, 738, § 3700; 12 Stat. L., 220.)
    Thompson’s Case, already cited, was decided by a divided court. As far as the opinion of Mr. Justice Nott in that case distinguishes between the just-quoted legislation and the act of July 4, 1864, perhaps the language used in that opinion may appear to the learned judge himself to need restriction. We refer particularly to these words:
    “There is a difference between the two statutes, upon which a very substantial distinction may be placed. The one (that of 1861) as construed by the Supreme Court vests the discretion in the purchasing officer; the other expressly vests it in the commanding general.”
    The language of the act of 1864 is not that “ then it shall be lawful for the commanding general,” &o., but that “ then it shall be lawful for the commanding officer of such army or detachment.” (13 Stat. L., 396.) And the opening of the section in which those words are used is of this tenor:
    “ That when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army or detachment,” &c.
    Mr. Chief-Justice Drake appears to give the true reading of the language here in question, where, in his dissenting opinion in the case of Thompson, he lays down “ that to the commanding officer of the army or detachment is left the question of the existence of the emergency authorizing the immediate procurement of supplies without advertisement.” We respectfully insist, therefore, that it is not well argued on the other side that “ the commanding general alone is vested with discretion to decide whether .the exigency is so great as to render necessary purchase or contract without advertisement.” Such, it seems to us, was not the meaning of the powers that made the law that is here to be construed. We have already asked attention to the law enabling any “ commanding officer,” by ordering the abandonment or destruction of certain property, (including railroad engines and cars,) to make the Government liable to compensate the owner. This is reasonable in itself, and the principle appears to us clearly applicable to the construction of the Act March 13, 1861, as well as to that of July 4, 1864. The highest as well as the lowest military officer may greatly err in exercising his discretion in a time of war, and especially in the midst of a civil war. But he must act with promptitude and energy for what appears to him the public welfare. If loyal proprietors be thereby injured, or if the Government thereby sustains a loss, we can only regret the necessity that caused the exercise of that so perilous discretion and authority.
    To the question, Gan an officer of the Government for a consideration, pecuniary or otherwise, in a time of great and public danger, insure the property of one of its citizens we may well respond by citing Clyde's Case, (9 O. Ols. R., 184.)
    That was a case involving the validity of a charter-party relating to a barge in the military service of the United States ■during the rebellion, and providing that the war-risk should be borne by the United States, the marine risk by the owners. The decision just referred to held that insurance, in the circumstances, to be fully warranted by military necessity. We rely, also, on the Mcmnahasset Case, (3 O. Ols. R., 76,) declaring the validity of this provision in the charter-party by which the schooner Mannahasset was, during the rebellion, chartered by the Government: “ It is further agreed by the party of the first part that the war-rislc on the above-named vessel,t amounting
    thirteen thousand dollars, is assumed by the Government of the United States until her discharge from this charter.”
    The maxim delegatus non potest delegare has no application to such cases. This we say in answer to the suggestion that, when the commanding officer commits his discretion under the laws in question to another, it is for the court to inquire into the manner of its exercise, and that “ it is no argument to say that a bona-fide contractor is not bound to go back of the decision of the quartermaster.” We are told that no exigency can be eon-eeived of which would have necessitated the delivery of 2,000 tons of bay within the distance of seven miles from said post, instead of at the post itself, as stated in the advert isement.” But we must insist that it is not necessary that a non-military tribunal, or that a member of the bar, however learned and ingenious, should be able to “conceive of” matters essentially belonging to the art of war, and committed by the law to the judgment and discretion of military officers. (Thompson’s Case; see, also, Speed’s Case.) It is also not well objected, we conceive, that it does not appear that any such necessity was declared. No formal finding and declaration of that sort can be considered necessary.
    In the light of that decision, and of the statutes to which we have referred, we may well say that we have fully auswered the argument on the other side, that “all that General Thayer meant in approving the contract, and all that he could reasonably hope to accomplish, was to furnish escorts and guards in as great strength and as promptly as th,e necessities and interests of the public service permitted,” and that “if he went farther than this his act was ultra vires.” We have also, we conceive, responded to the suggestion that no statute can be pointed out which gave to him or any other officer the power to impose on the defendants any greater obligations. Mr. Justice Nott, in Thompson’s Case, supra, forcibly remarks that “ the truth is that military emergencies are things which cannot be measured by formal or precise rules.” It follows that the rules which govern the responsibility of the United States in cases like the present are not to be laid down with narrowness and in a spirit hostile to contractors. We contend that contracts, such as those on which we now insist, are clearly beneficial, economically, to the Government in time of civil war. {Tenney’s Case, 10 G. Gis. B., 269;) Porter’s Case, 9 O. Cls. B., 356.)
    The counter-claim of the defendants seems to us a little bald. It has assuredly no merits. The payments mentioned were voluntary, and, as an action would not lie on them, they cannot be set up by way of counter-claim. Sohlesinger’s Case is quite in point. (1 O. Gis. B., 16.) It holds that a voluntary payment to a public officer cannot be recovered back on an implied contract, though the payment appears to have been made “ in mutual mistake of law.” The rule must also be that a voluntary payment made by a public officer cannot be recovered back on an implied contract, the more especially where the payments have been made in consequence of decisions such as are presented for consideration by this record. (Folsom v. The United States, 4 C. 01s. B., 360; Mays v. Cincinnati, 1 O. State Beports, 268.) This was a disputed claim for losses and expenses, and its adjustment by the accounting-officers and the voluntary payment and receipt of the money constitute a settlement and compromise which cannot be.disturbed. (Child, Pratt & Fox v. The United States, 7 C. Cls. B., 209; Clyde's Case, ibid., 262; Comstoole v. The United Stales, 9 id., 141.)
    If the defendants -were dissatisfied with the adjustment of the accounting-officers, they could have referred the whole case to this court. (Rev. Stat., § 1063; Delaware S. B. Co. v. The United'States,5 O. Gis. B., 55.)
    There was neither mistake of law nor mistake of fact in the payments made to claimant. We rely on the Act March 3,1817, entitled “An act to provide for the prompt settlement of accounts,” (3 Bev. Stat., 366,) and which is carried into the New Bevision, page 39, section 236. The second section of this act provides that “ all claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or creditors, shall be settled and adjusted in the Treasury Department.”
    Surely this language is broad enough to support the action of the accounting-officers of the Treasury in making the settlement on which the defendants’ counter-claim is based. It is within the truth to affirm that thousands of like settlements, in like cases, have been made by the Third Auditor and Second-Comptroller, and that payments have been made pursuant to such settlements by the defendants, with the approval of the heads of the several Executive Departments of the G-overnment interested in the disposition of the claims thus settled and paid.
    We repeat that we rely on this law and the practice and policy of the Government under it. Ever since its enactment the law in this class of cases has been defined and held to be that while the Auditor and Comptroller have no general authority to award damages, as for tori on contract broken, yet where the loss is the direct and immediate result of such breach, or where the loss is, as it was in this case, in the nature of expenses incurred and lost in a bona-fide effort to fulfill a contract, they have authority to adjust and direct the payment of a claim for such expenditure and loss, to the extent of mere compensation or reimbursement.
    
      It is clear to us that the law of March 3,1817, and the rule, practice, and policy which have prevailed and grown up under it, are alike just, proper, and necessary, equally beneficial to the Government and the contractor. (Digest of Decisions of Comptroller, edition 1805, paragraphs 328, 330, 337, 350, 375, 376; Vanderheyden v. Young, 11 Johnson, 158; Ops. Atty. Gen., vol. 2, 408; id., vol. 3, 28o!)
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    No exigency can be conceived of which would have necessitated the delivery of 2,000 tons of hay within the distance of seven miles from said post,” instead of at the post itself, as stated in the advertisement. Nor does it appear that any such exigency was declared. The contract, therefore, is in violation of section 10 Act March 2, 1861, (12 Stat. L., 220,) and void. The advertisement and proposals being statutory essentials to a contract, neither the quartermaster nor the commanding general had power to bind the Government to greater obligations than set forth in them. The guarantee of protection, which found its way into the contract, would have been a material element in the competition among bidders, and would have reduced the bids of others as well, as of plaintiff. The obligation, therefore, was to furnish such protection as the necessities and interests of 'the service might admit, and this was done.
    The contract of 18th of July, 1864, is based upon the order of Brigadier-General Thayer, and it is to be noticed that it contains no positive instructions to contract without- advertising. That there was ample time “to.advertise and regularly let the contract,” as stated in the order, is apparent from a comparison with the contract of June 20, 1864. The latter was made upon an advertisement dated May 27, 1864, and was to be completed before the 1st of September, 1864. The interval between the advertisement and the last day of delivery under the contract was 97 days.
    By the Act July 4, 1864, (13 Stat. L., 396, § 4,) it is provided that when an emergency shall exist requiring the immediate procurement of supplies, &c., then it shall be lawful for the commanding officer “ to order the chief quartermaster of such army or detachment' to procure such supplies during the continuance of suck emergency-, but no longer, in the most expeditious manner and without advertisement.” It is this law, and not the proviso in the Act March 2,1861, that governs the contract now under consideration, and it is contended that the commanding general alone is vested with discretion to decide whether the exigency is so great as to render necessary purchase or contract without advertisement. When he commits that discretion to another it is for the court to inquire into the manner of its exercise, and it is no argument to say that a bona-fide contractor is not bound to go back of the decision of the quartermaster. The power of the quartermaster to purchase or contract without advertisement, after July 4, 1864, was dependent upon an absolute order of his commanding general, and a contractor was bound to inquire into his authority. In this case the plaintiff was bound to see that Captain Durbin was authorized to contract, and when he found that Durbin’s power to dispense with advertisement was dependent upon circumstances, it was his duty as much as Durbin’s to inquire into them. We ask that the finality of the decision of the officer laid down in Sjpeed’s Case, (7 C. Cls. R., 95,) shall be limited to the officer in whom the discretion is reposed by statute. It may well be questioned whether discretionary power thus lodged in an officer can be delegated to another.
    The breach of contract alleged by plaintiff is the failure to supply such protection as would absolutely prevent encroachment and interference from the enemy, and he seeks to hold the defendants responsible for the wrongful acts of the public enemy' by construing the contract to mean that the United States would re-imburse him for all losses suffered through any such wrongful acts, although they should be powerless to prevent them. The language of the contract is ‘‘that sufficient escorts and guards shall be furnished to protect the contractor while engaged in the fulfillment of this contract.”
    In the case of Porter, (9 C. Gis. R., 356,) the court held the Government to nothing but the liability which it had expressly assumed, but here it is a question of how much responsibility a guarantee of protection throws upon the United States when circumstances or an overwhelming force renders compliance impossible. Can any officer of the Government for a consideration, pecuniary or otherwise, in a time and place of great public danger, insure the property of one of its citizens ? Clearly a contract which involved the Government in such responsibilities as plaintiff asserts would be against public policy. Its fulfillment by the United States might, and in this case did, require that the post of Fort Gibson should be abandoned and its garrison divided between the two hay-fields. In the then condition of that country there was reason to expect any day a battle with the enemy, yet the contract would be violated in case of the defeat of our forces. If the rebel army had been precipitated into the Indian Territory, a sufficient escort would have been a force superior to theirs. Yet the plaintiff insists that General Thayer not only intended, but had the power, to bind the Government to conserve his profits and protect his property from every attack, and that it was his duty as well as the duty of every officer of the Government to subordinate the objects of the war to the interests of the contractor.
    All that General Thayer meant in approving the contract, and all that he could reasonably hope to accomplish, was to furnish escorts and guards in as great strength and as promptly as the necessities and interests of the public service permitted. If he went further than this, his act was ultra vires. No statute can be pointed out which gives to him or any other officer the power to impose on the defendants any greater obligations.
    The plaintiff was not entitled to receive pay from the Treasury Department for hay and property destroyed while in his possession.
    That he was not entitled, under the Aet March 3, 1849, (9 Stat. L., 415, § 2,) is fully settled by Porter’s Case, (9 C. 01s. K., 356,) Shaw’s Case, and by Guttman & Stuart’s Case, (9 0. 01s. It., 60, 18 Wall., 84,) and we think that the latter further decides that no such rights were conferred by the terms of his contracts. Mr. Justice Hunt says, (9 0. 01s. It., 71,) “The tenth article of the contract requires no discussion. It is quite immaterial in any view of the case.” Plaintiff was not entitled to this money unless the Government agreed to indemnify him against all acts committed by the public enemy; the contract does not do this expressly, and it is contended by the United States that no such implication arises from its terms, and that, if it did, the contract would have been not only beyond the ■power of Captain Durbin and General Thayer to make, but illegal. It is contended by the United States that the agents of the. Government were not authorized to make the payments; that tlie plaintiff, by presumption, knew that they had no such authority; and that the defendants are therefore entitled to judgment for $34,713. (Stevenson v. Mortimer, Cowper, 805; The United States v. Bartlett, Davies’ R., (2 Ware,) 9.)
   Nott, J.,

delivered the following opinion :

This case contains four, causes of action, two of which are presented by the claimant and two by the defendants. The facts, briefly stated, are these :

In 1864 the claimant and a quartermaster entered into two contracts, the terms of which, however, are substantially identical. The claimant covenanted to furnish large quantities of hay at certain designated points in the Indian Territory; the defendants covenanted as follows: “It is expressly understood by the contracting parties that sufficient guards and escorts shall be furnished by the G-overnment to protect the contractor while engaged in the fulfilment of this contract.” The claimant delivered a portion of the hay contracted for, and it has been paid for, and is not an element in the present controversy. As to the remainder, he was stopped in the midst of performance, in part by the acts of the public enemy, in part by the orders of the post commander at Fort Gibson, but in all cases for the want of “sufficient guards and escorts.” The accounting-officers of the Treasury treated the covenants above quoted as covenants of indemnity, and adjusted and settled the claimant’s accounts for losses actually suffered, and the claimant accepted and acquiesced in the settlement. ' The subject of profits was not considered in the settlement, for the reason that such unliquidated damages are never adjusted at the Treasury. The claimant now brings his action to recover them exclusively; the defendants deny the validity of the contracts, and file their counter-claims to recover back the allowances made by the accounting-officers as moneys paid in mistake of law.

I. The claimant’s first cause of action is founded on a contract made in June, 1864, which was founded on a quartermaster’s •advertisement for proposals. This advertisement called for the delivery of 3,000 tons of hay at Fort Gibson, and promised the contractor such military protection” “as the necessities and interests of the service may admit.” The contract departed from these terms by dividing the quantity of 3,000 tons into two parcels, one to be delivered at Fort Gibson at $30 per ton, the other seven miles distant at $22; and in covenanting to furnish “sufficient guards and escorts” to protect the contractor ivhile engaged, in the fulfillment of this contract P Because of these discrepancies, it is insisted by the defendants that the contract was void, and that no action can be maintained upon their breach.

As to the first discrepancy: The Act 2d March, 1861, (12 Stat. L., 220, § 10,) though it requires a contracting-officer to advertise, still leaves with him a very large discretion. The time is not prescribed, nor the form, nor the substance of the advertisement; nor is the officer even restricted to accepting the lowest bid. In this the statute differs from other advertisement acts, and notably from the post-office act, which recently received a liberal construction from the Supreme Court. (Garfielde's Case, 11 C. Cls. R., 322.) Dividing the hay into two parcels, deliverable at different places at different prices, was a variation, in the judgment of the contracting-officer, for the benefit of the Government, and fairly within his discretion. Such discretion has been exercised by officers of the Quartermaster Department ever since the first advertisement act was passed. The distinguished officer who has long presided over that Department, and guided its administration with an inflexible and frugal hand, in his well-known communication to General Blair, August 28, 1861, relating to the affairs of General Fremont's department, said — and it was not questioned then and has never been questioned since:

“ Whatever a general commanding orders, the subordinates of his staff are, by regulations, compelled to do, if possible.” “In regard to advertisement and delivery, the law of 1861 and the regulations expressly provide that in case of public exigencies supplies are to be bought in open market as between individuals. Bxercise this power. Moreover, advertisements or public notice does not require postponing opening of bids for a month or a week or two days. If forage, wagons, horses are wanted, the law, the necessity, are fully met by putting a notice in the papers and purchasing as fast as offers come in. The next day or the-same day take the then lowest bid or- the then most advantageous offer. The day. after you will have a still better offer; take that for a portion of your supplies, and so on till you have all you need.”

The second discrepancy between the advertisement and the contract,, or, rather, between the proposals and the contract, forms the foundation and subject of this cause of action. What the claimant sues upon was not offered by the advertisement nor stipulated for by the proposals, but was a subsequent obligation thrust into the formal contract. The thing to be furnished by the contractor remained the same; the price to be paid by the Government remained the same; and then, in addition to the bargain made by the advertisement and proposals, the quartermaster gratuitously gave to the claimant a guarantee or covenant of insurance against war risks, upon which, exclusively, his present demand is founded. As this insurance was not promised by the advertisement, nor required by the proposals, nor given in exchange for anything which had been the subject of negotiation, it seems to us to be an obligation beyond the officer’s discretion, and evasive of that competition which the statute was intended to secure. If the thing promised by the advertisement had been indefinite it would have been proper to render it certain in the contract; but here the advertisement bound the Government to do substantially nothing, and left the war risks of the undertaking entirely with the contractor, while the contract created a new obligation that bound the Government to furnish all needful protection, and transferred to it the risk which constitutes the present cause of action. It is not to be understood that this addition voided the entire contract; it s only this obligation of the defendants that is without legal foundation. The covenants of the claimant, and the consideration which supports them, remain intact.

IL The claimant’s second cause of action rests upon a. contract made without advertisement the 17th July, 1864.

It is objected by the defendants that the order of the commanding officer which gave rise to this contract did not declare an emergency, as was required by the Act 4th July, 1864, (13 Stat. L., 394, § 4.) The construction which I think should be given to that statute I have heretofore expressed in Thompson's Case, (9 C. Cls. R., 187-196,) and subsequent reflection confirms the conclusions which were there reached. They maybe summed up in the following rule: Where a statute expressly defines the powers of an officer or agent, it is notice to all the world; but where a statute confides a discretion, to an officer, a party dealing with him in good faith may assume that the discretion is properly exercised ; and if the discretion is vested in a superior officer, while the transaction is with his subordinate, the contractor may assume in like manner that the discretion has been properly exercised, and that the subordinate is acting in accordance with Ms superior’s orders and carrying out the exercise of his superior’s discretion.

Conceding, however, for the purposes of this decision, that a contractor dealing with a quartermaster during the existence of the act of 1864 was chargeable with knowledge of all the orders by which a commanding officer might seek to provide for military emergencies in the midst of a great war, I am nevertheless of the opinion that in this instance the order sustains the contract.

The statute was passed exclusively for the late war, and was intended to impose upon the discretion vested by law in unnumbered inexperienced assistant and acting assistant quartermasters the discretion of their commanding officer. It did not prescribe formalities. Its purpose was to secure the judgment of a commanding officer as a basis for the action of a quartermaster. In this instance the commanding officer’s judgment was clearly the basis and the only basis of the quartermaster’s action. If the order had never been issued no contract would have ever been made. The order in fact related to two distinct things; it declared an emergency, and directed how the quartermaster should proceed to provide for it. The direction “ should there not be time to advertise and regularly let the contract, you will make the arrangements for the delivery of the hay on the best terms you can,” did not confer discretion to judge whether there was or was not an emergency which would or would not require the designated quantity of hay. It only designated the ways and means by which the quartermaster was to proceed in his part of the work, and to that extent, indeed, limited and lessened the discretion which he might otherwise have exercised.

The fallacy of the defendants’ argument is in this :• that it supposes that a commanding officer must not only declare an emergency, but must also decide that the supplies on hand are insufficient to meet it, and that the procurement of others must be by immediate purchase. I apprehend, on the contrary, that a commanding officer is not chargeable with these responsibilities, which properly belong to his quartermasters. If he should say to his chief quartermaster, This army will begin a retreat in thirty days; have then sufficient teams ready for the movement,” he would have determined all that the law required him to decide. The quartermaster should then ascertain the number of teams which would be required, the number on hand, the deficiency to be provided for, the proportion thereof that could be procured by advertisement, and the balance that must be bought in the market. In the administrative details of providing for the emergency after it had been declared, he was by law invested with all necessary discretion, and those details properly belonged to him and not to his commanding officer. Thus the order of the commanding general in this case merely enjoined the quartermaster to do precisely what it would have been his duty to do without the order, and left nothing to his discretion which the law had not already placed there.

It is also objected that the quartermaster did not proceed in the proper way to meet the emergency, if one was indeed declared. But it is manifest that if the quartermaster was authorized by law to act, this court cannot review the manner in which he acted. Undoubtedly judges upon the bench would make a contract with more deliberation, wisdom, and solemnity than quartermasters in the midst of hostilities; but the statute was made for ordinary men, little learned in the law, and laden with the severest responsibilities that ever tax or distract the mind. It is enough here for us to know that the contracting quartermaster thought this the most immediate method possible for the procurement of the supplies; and it does not rest with courts of law to find a better method after the transaction.

In like manner it is objected that upon the face of the order and contract the contractor was chargeable with knowledge that no emergency in fact existed, and that an agreement made in July to furnish hay through August and September could not possibly be the means for providing for a military emergency. But the emergency contemplated by the statute is not restricted to a march or a battle on the day when the order is given. In this case, when the commanding officer discovered that he would need a large quantity of hay during the ensuing winter in a remote situation where it could not be bought: that the haying season was already far advanced; that implements and hands had to be brought a great distance before the work could begin, he decided, as it was his duty to do, that he had a very serious emergency to provide for; aud it was not a time when a prudent person would have wasted a week or a day in the solemn trifling of advertising for proposals in a region beyond the boundaries of civilization.

This cause of action, then, depends upon the effect which should be given to the covenant promising sufficient guards and escorts; and it may be best understood in the light of the circumstances amid which the contract was made, and the contemporaneous construction which the parties mutually gave to their agreement.

The circumstances were, that the contract was made in the midst of war, and was to be fulfilled on the scene of actual hostilities. The contemporary construction was, on the part of the post commander, that he recognized the risk which had been assumed for the Government, aud forbade the working parties of the contractor going out to make hay without the sufficient escort which it had been agreed should be furnished, but which he deemed it inexpedient to send; on the part of the contractor, that he recognized the right of the commanding officer to control his performance in this particular, and obeyed his commands.

The counsel for the defendants has argued that this covenant was a mere agreement by a military officer, to protect a citizen in the performance of his own business; that it was gratuitous, beyond the powers of military officers, and void. Undoubtedly such an agreement to protect a citizen in the pursuits of his ordinary avocations would be void. But here the covenant in question manifestly was given for a very different purpose.

The contract was in form a contract of sale and delivery, but in substance a contract for work and service. When I employ a man to go upon my land and cut and deliver my hay at so much per ton, the property remains in me, whatever be the form of the agreement, and what I pay for is not his property in the hay, but the labor which he has expended upon it. Here the hay indisputably was to be cut upon the public domain, and the property in it was aud remained in the defendants. But the point need not be discussed, for it was considered in Spencer’s Case, (10 C. Cls. R., 255,) and expressly so decided.

The purpose of the covenant, then, was not to protect a citizen generally in his business, but to protect a contractor in specific work and service which he had agreed to perform for the Government; that is to say, in the fulfillment of a specific obligation into which he had entered at the request of the Government, and from the fulfilment of which the Government expected to reap an advantage. If the defendants’ officers had arbitrarily refused to furnish a guard, clearly the contractor would have been relieved from his obligation to perform. (Porter’s Case, 9 C. Cls. R., 366.) Gan it, then, be held that the covenant was not a moving consideration for the contract, without which the contractor would not have entered into it, or that it is not as obligatory upon the defendants as any obligation which he had assumed on the faith of it ? As was said by the learned counsel who represented the claimant on the first trial of this case, “There was a war-rislc to be run, and the question when they made the contract was, which party should bear it.” The contract, recognizing the risk, answered that it should be upon the defendants; and the obligation thus assumed was analogous to those numberless charter-parties made during the war, where the Government agreed to assume the war-risks of the vessels which it chartered, though manned and navigated by the owners — agreements the validity of which has never been questioned in the Supreme Court, nor in this.

If this covenant had been simply to furnish a guard, and the commanding officer had furnished one which proved insufficient, it might be held that the defendants had complied with their covenant, and that the risk remained with the contractor. But here they covenanted to do two things: first, to furnish “ guards and escorts ;” second, that those guards and escorts should be “sufficient” to secure “ the fulfillment of this contract.” The agreement, moreover, was construed by the officer who made it as a covenant of indemnity, which would render the defendants liable for all of the contractor’s losses caused by the public enemy; and, to lessen that indemnity as much as possible, the commanding officer interfered positively by forbidding the contractor to proceed with the fulfillment which the defendants had covenanted to protect. That an indemnity against losses may be given to a contractor by the agents of the Government was established by the Supreme Court in Baird’s Case, (8 C. Cls. R., 13.)

III. The defendants’ first counter-claim is to recover back certain payments allowed by the Second Comptroller of the Treasury upon the insurance-clause in the first contract, before referred to; that is to say, the Comptroller deemed the covenant valid which this court now decides to have been invalid, and the counter-claim is to recover back the money paid on his adjustment. It is conceded that the payment was not procured by fraud, nor made in mistake of fact, and that it could not be recovered back by any other party than the Government, and by it only on the ground that its agents are not its agents when they make payments which are not authorized by law. The recent case of McElratlh (ante, p. 201) is regarded as decisive authority upon the point.

Between this case and McElrath’s, however, there is a very broad difference. The Second Comptroller was the agent of the United States to adjust and settle the accounts of officers in the Navy. McEIrath was not an officer in the Navy, nor had he been for any part of the period over which his pretended account extended ; nor had he rendered any service as such; nor hiyi any legal relations between him and the Government existed. The Second Comptroller, therefore, acted ah initio without authority ; and his mistake, whether of law or of fact, that he had jurisdiction of the pretended account gave him none. If in the adjustment of an account which he was authorized to adjust— the account of a veritable officer in the Navy — he had made an incidental mistake of law in allowing to the officer some item of pay which in the judgment of the courts should have been disallowed, and the defendants had brought their cross-action to recover back the over-payment, the case would have been like this.

That settlements made by the accounting-officers of the Government with its creditors, untainted by fraud, and free from mistake of fact, possess the element of finality, I think is clear for many reasons.

1. The Comptrollers of the Treasury are neither contracting nor disbursing officers. Within the proper functions of their offices they are above the review of the highest executive authority, and their decisions are subject to only judicial revision. Substantially all accounts must pass under their eye and receive their approval. Even the accounts of the Secretary of the Treasury and of the President come to them for allowance.' In the case of disbursing-officers the policy of the Government has been to acknowledge no payments as made on its behalf save those which were authorized by law. If an officer makes a mistake of law the payment is disallowed when his accounts come in for settlement, and charged to him as if the money were still in his hands. But the business of the Comptrollers is to determine what payments shall or shall not be made on behalf of the United States. These functions of office were a part of the wondrous birth of the Treasury system, and have remained unchanged from the foundation of the Government to the present time. The only statute which has been passed since the First Comptroller’s office was established is declaratory and mandatory as to their powers. (Act 30th March, 1868, 15 Stat. L., 54.)

2. If the Comptrollers’ settlements have not the ordinary element of finality: if those officers are not the agents of the Government to make final settlements with its creditors, the Government has had the power and the means to take advantage of their errors of law for the last eighty years by going into any court as plaintiff and suing the party to whom money was paid in mistake of law. Y et, from the first day that the Treasury did business until this counter claim was set up, it is safe to say that no such suit was ever brought, and that no man ever supposed that such an action would lie. .A practical construction, going back to the very beginning of the Government, is overwhelming, and cannot be overturned at this late day with safety by anything short of statutory amendment.

3. As no statute of limitations closes inquiry into the past transactions of the Government, all of the settlements which present and past Comptrollers have ever made will be liable to be re-opened. It is well known that the Comptrollers have sometimes construed statutes in one way, and the courts subsequently in another. Such diversity of judgment is inevitable in the administration of human affairs, and the wonder is that there has been so little of it on the part of these officers. The Act 3d March, 1849, (9 Stat. L., 415, § 2,) will furnish one of many illustrations. The Treasury always held that this act extended to vessels in the military service, though navigated by their owners, (Reed’s Case, 4 C. Cls. R., 132;) the Supreme Court has recently held the contrary, (Shato’s Case, ante, p 1.) Can it be possible that all such past transactions are now liable to be reopened; that nothing has ever been settled; that no payment ever made is to be considered final ? Such a ruling caunot promote the public welfare, and, in my judgment, would be prolific in public mischiefs.

4. It is manifest that so broad a rule as is contended for by the defendants would be holding in effect that the accounting-officers of the Treasury are the agents of the Government so long as their mistakes of law are favorable to their principal, but that their agency ceases eo instanti whenever they err incidentally against the Government in the difficult task of construing the statutes of the United States. The result of such a rule would often be that as to one-lialf of a settlement the accounting-officers would be agents and the settlement final; that as to the other half it would be binding upon the creditor if he took the money, but not upon the debtor, and that practically mutuality and finality would be stripped from all Treasury adjustments.

It is not possible, I think, that such a rule can ever be upheld. Certainly the courts have been open to the Govennmeut ever since courts were established, and it has never been supposed that such an action could be maintained. The real question here, I apprehend, is one of agency and not of mistake. When the accounting-officers are authorized by law to adjust an account or settle a claim, the principles of law that would govern the settlements of individuals will govern theirs. The true rule to be laid down, I think, is this: Where the accounting-officers of the Treasury are authorized to settle an account or claim against the Government, a mistake of lato committed incidentally in the adjust-mentioillnot, after payment of the balance found to be due, affeetthe finality of the settlement or entitle the Government to recover back the money paid in mistake of law ex equo et bono.

IY.' The second counter-claim of the defendants is to recover back the money awarded upon the indemnity clause in the second contract, which a majority of the court now hold to have been valid. The only point made which has not been considered is, that part of the amount awarded by the Comptroller was for hay of the claimants destroyed by the public enemy, and that the accounting-officers have not jurisdiction of such damages.

To this objection there are three sufficient answers : 1st. The hay destroyed was not the property of the claimant, but, on the contrary, the property in the hay was always in the defendants, and the contract to furnish hay cut from the public domain was a contract for work and service, as was determined in Spencer’s Case, (10 C. Cls. R., 255.) 2d. The accounting-officers correctly ascribed that effect to the contract, and their award was not for hay destroyed, but for work and services expended by the claimant on that hay of the Government which was destroyed. 3d. The award was based upou the indemnity-clause of the contract, and the loss of the claimant upon this hay was because of the defendants’ breach of that covenant, and the form which the award took was merely for the convenient ascertainment of the damages suffered.

The conclusions which a majority of the court are agreed upon are these:

1. The claimant is not entitled to recover upon the contract of June 20, 1864.

2. The claimant is entitled to recover upon the contract of July 17,1864, the profits which he would have realized if he had been enabled to perform, to wit, the sum of $29,557,

3. The defendants are entitled to recover upon their counterclaim the moneys paid by them to the claimant for hay destroyed, under the contract of June 20,1864, to wit, the sum of $12,600.

4. The defendants are not entitled to recover upon their counter-claim for moneys paid by them to the claimant for hay and property destroyed under the contract of July 17, 1864.

The judgment of the court is, that the claimant recover of the defendants the sum of $16,957.

Loring, J., agreed in all of the conclusions reached by the majority of the court.

Peck, J., agreed in the opinion read by Nott, J., except that he was of the opinion that the claimant should recover upon the contract of June 20,1864, and that the covenant of military protection thereby assured to the claimant was valid and binding upon the defendants; as to which, being absent when the case was decided, he subsequently filed the following reasons:

Because there is not even a pretense of wrong or bad faith in or about the advertisement which preceded that contract, nor in the making of it.

The advertisement promised to any person who should become a contractor “such military protection as the necessities and interests of the service [might] may admit,” reserving to the defendants the exclusive, right to decide what or how much protection would be furnished. The contractor had no power or control over the matter. He might, to be sure, refuse to -execute a contract, unless it stipulated for the furnishing of sufficient protection, (which would have been wise as the result has shown,)-but he could not direct anything in that behalf. The fact of such a notice in the advertisement indicates plainly enough that peril and damage were anticipated.

The officer acting for the defendants might have thought, and probably did think, that the “necessities and interests of the service” would be advanced (and as to this he reserved the right to judge) by promising the protection stated in the contract, and so stipulated. It appears to me quite certain that no responsible party, under the circumstauces, would have contracted without that or some equivalent guarantee. At least, there is not anything to show that any other person offered to do so. All discussion about the advertisement and proposals are out of place, since these were merged in the contract. The claimant had a right to know what military protection, in the opinion of those representing the Government, would be necessary to save its interests, as well as his own, before he should undertake to perform on his part, and if more was gratuitously offered by the defendants than was prudent he could not be expected to decline what was to his advantage. In the transactions and business of life, so far as my observation goes, men are not prone to reject such advantages as are offered them j and few, if any, favors are offered which are not expected to result in some way to the benefit of the proponent.

The defendants, like a minor civil corporation, must transact' business by agents; but whoever thought of annulling a contract made by a civil corporation, because a party contracting with one of his agents, in perfect good faith, accepted a more favorable condition in a concluded contract than it was after-wards thought wise to offer him ?

The question is asked with solemn gravity, Where is the statute which expressly authorizes a quartermaster to agree to furnish protection to a contractor ? .Others may ask with equal gravity, if they have equal courage, Where is the statute that forbids it? If he may contract for the delivery of property costing any number of millions, may he not be supposed to have the power to tlo so on the best terms which would secure the delivery and use of that property to the Government he represents? It should always be presumed that he contracts only for such property as the necessities of the Government demand and cannot be dispensed with. There is, as I believe, a legal principle recognizing’ that the power to contract, or do a particular thing', implies that the person so empowered may do all that is requisite for the success of the object desired. Hence, if an agent may contract for the delivery of an article, he may stipulate for all that is requisite to insure the success of the contract, which might, with as much propriety, be repudiated because he contracted for too great a quantity, as because he contracted for too much protection, when his power or authority to do one is no more restricted than it is to do the other.

The contract of 20th June was known to the superior officers of the quartermaster who made it and not objected to by them, but apparently approved, as is shown by the instructions of General Thayer in reference to the making of the second contract.

At this time and distance from the transaction, and with but little, if any, correct knowledge of the surrounding circumstances or threatening dangers of the occasion, it is alike unjust to the quartermaster and the claimant to scrutinize and pass judgment upon the exercise of a discretion and condemn it which was at the time, and long afterward, approved for its soundness.

The astute and subtle reasoning resorted to to evade obligations, I cannot help thinking, would never have found tolerance, if the present action was between those imaginary veteran litigants, John Doe and Richard Roe, instead of between the Government and a citizen-claimant. I do not choose to strain analogies or coerce authorities to favor either party. My desire is to properly adjust the relative influences of principle and authority with as much precision as is consistent with the character of the subject to be considered, so as to do and promote justice between contestants.

Jurisprudence is supposed to be a rational science, founded upon principles of moral rectitude, modified, it is true, by authority and the habits of mankind, but never failing to do justice equally to all parties, without reference to the power and dignity of either, nor omitting to do so because, on some possible and unforeseen occasions, men may act in an unprecedented manner against their interests without any excuse or pretext for their conduct; like waiting for the sky to fall in order to catch larks.

The idea that the protection promised placed the entire Army of the United States in the leading-strings of the claimant, and therefore rendered the contract void because, by possibility, all the quartermasters, with or without reason or excuse, might do some absurd act, or make some absurd agreement for protecting contractors and thereby dispose of the whole Army, I shall not discuss, but will repeat the language of one of our learned judges, long since pronounced, that “in the construction of contracts words are to be taken in their natural and obvious meaning, unless some good reason be assigned to show that they should be understood in a different.sense.” This is trite law, but not new.

Dbake, Ch. J.,

dissenting:

I dissent from so much of the opinion of the majority of the court as relates to the contract of July 18, and the counter-claim growing out of it. In my judgment, the claimant has no cause of action under that contract, and the defendants have a just right in law to recover back money illegally allowed and paid him on claims connected with its performance.

I will briefly recall the circumstances under which that contract was entered into,eas set forth in the finding of facts. In the summer of 1864, the troops under Brigadier-General Thayer’s command, in the Indian Territory south of Kansas and west of Arkansas, were cut off from any base of supply of grain, and were compelled to rely solely upon grass and hay for the support of their animals. Grass was very abundant there, and hay could have been put up as late as the last of October. Owing to this condition of things, and as well to provide hay for present use as for the ensuing fall and winter for the posts in General Thayer’s command, the contracts sued on were entered into; that of June 20 for the supply of Fort Gibson, and that of July 18 for the supply of Cabin Creek and Hudson’s Crossing. The former was entered into after the quartermaster had advertised for proposals; the latter without any advertisement.

As to the latter, two questions arise: 1. Whether'the quartermaster had lawful authority to make a contract without advertisement; and, 2. If he had, whether he had lawful authority to bind the Government to furnish military protection to the claimant, in the terms contained in the contract.

The determination of the first question involves the consideration of two acts of Congress, viz, the tenth section of the Act March 2, 1861, (12 Stat. L., 220,) and the fourth section of the Act July 4, 1864, (13 Stat. L., 394.)

The former is in these words : “ That all purchases and contracts for supplies or services in any of the Departments of the Government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles-or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or services required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged between individuals.”

If this statute is to be considered applicable to the case, then we are to receive two points in regard to it as settled by the Supreme Court in Speeds Case, (8 Wall., 77,) viz: 1. That while, as a general rule, it requires an advertisement, still it invests the officer charged with the duty of procuring supplies with a discretion to dispense with advertising, if the exigencies of the public service require immediate delivery; and, 2. That where a discretion of this kind is conferred on an officer, and a contract is made in which he has exercised that discretion, the validity of the contract cannot be made to depend on the degree of wisdom or skill which may accompany its exercise.

It will be observed that the contract in that case was for work to be done by the claimant in slaughtering and packing hogs furnished to him by the Government for that purpose, and it was entered into by the authority of the Secretary of War; while in this case the contract was for the delivery of stacked hay, and was entered into by an assistant quartermaster. In the former case work was to be paid for as work; in the latter, no work was to be paid for as such, but the hay was to be paid for at a certain rate “ for each and every ton delivered and accepted.” The question, therefore, of contracting for work is not in this case, but simply one of delivering a given quantity of hay.

I do not' deny that the quartermaster, if this statute applies, had a discretion to dispense with au advertisement, if the public exigencies required the “ immediate” delivery of the hay. What does “ immediate” mean there? In ordinary parlance it means, “not deferred by an interval of time; present; instant(Webster";) but clearly that is not its imperative meaning in this statute; for it would in many cases be*a physical impossibility to comply with it. Neither the claimant nor any other man or body of men could have made immediate delivery of 4,000 tons of hay, half at a point 55 miles and half at a point 85 miles from the place where the contract was made. “Immediate,’’ then, must be construed with reference to the particular facts of each case arising under the act. If the supply needed in an exigency can be purchased and obtained on the instant, the quartermaster has no right to contract for its delivery at a future period.^ If, however, as in this case, instant delivery be impossible, then, as I take it, the contract, to be justified by the statute, must be for a delivery at the earliest time practicable under the circumstances, upon the assumption that the contractor will immediately set about obtaining and furnishing the article, and that it will be furnished as soon as it can be, in the steady exercise of due diligence on his part, from the date of the contract until delivery. In such case the element of first importance, and in my judgment indispensable, to create liability on the part of the Government, is the immediate commencement of suitable effort to fulfill the contract. The statute authorizes a contract without advertisement only when “immediate delivery is required by the public exigency;” that is, by a state of urgent or exacting want demanding immediate supply; and the existence of such exigency utterly forbids the idea that a contract for delivery at a distant day could have been dictated by an exigency requiring immediate delivery. And this view was unanimously held by this court in McKinney's Case, (4 C. Cls. R., 537,) where damages were claimed for breach of contract for wood, made on the authority of the chief quartermaster of the Army of the Cumberland, in the midst of a pressing exigency for that article, but calling for its delivery at a future time. The court said: “ The evidence shows that an exigency for wood existed when the contract was made, but the contract shows that it was not made to meet that exigency, for it was made on the 1st of December, 1864, for the delivery of wood from the 1st of March to tbe 1st of May, 1865.” That, in my judgment, is the true view, and should be applied to this case, where the contract was made on the 18th of July for a delivery to commence by the 10th of August and to be completed by the 2oth of September — 23 days to start and 46 more to keep on, making 69 days allowed for effecting an immediate delivery required by a public exigency! The mere statement of such a case seems to me to display its weakness. I can see no possible justification of the quartermaster’s action. In my judgment he either did not know his duty, or willfully disregarded it. ' In either view his contract was void, and cannot, under the Act March 2, 1861, serve as a foundation for this action.

If it be supposed that the tenth section of the Act July 4, 1864, authorized such a proceeding on his part, there is a twofold answer: 1. That the claimant’s counsel earnestly objected to that statute being considered to have any bearing on the case; and, 2. That, in'fact, it furnishes no authority for the quartermaster’s action; as 1 will endeavor to show.

That section is in these words: “ When an emergency shall exist, requiring the immediate procurement of supplies for the necessary movements and operations of any army or detachment, and. when such supplies cannot be procured from any established depot of the Quartermaster’s Department, or from the head of the division charged with the duty of furnishing such supplies, within the required time, then it shall be lawful for the commanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, but no longer, in the most expeditious manner, and without advertisement; and it shall be the duty of such quartermaster to obey such order; and his accounts of the disbursements of moneys for such supplies shall be accompanied by the order of the commanding officer as aforesaid, or a certified copy of the same, and also by a statement of the particular facts and circumstances, with their dates, constituting such emergency.”

Now, what wa.s necessary to authorize a commanding officer of an army or detachment to exercise the large authority conferred, by this section? Three things were required, namely: 1. The existence of an emergency requiring the immediate procurement of supplies; 2. That the emergency should require that immediate procurement for the necessary movements and operations of bis army or detachment; and, 3. That the needed supplies could not, within the required time, be procured from any established depot of the Quartermaster’s Department, or from the head of a division charged with the duty of furnishing the same.

Those are the circumstances constituting an emergency authorizing the commanding officer to avail himself of the summary power conferred by that section. In reference to the exercise of that power, the following points, except the sixth, have been decided by the unanimous judgments of this court, none of which were appealed from:

1. That to the commanding officer of the army or detachment is left the question of the existence of the emergency authorizing the immediate procurement of supplies without advertisement. (Henderson's Case, 4 C. Cls. R., 75.)

2. That he is the sole judge of the existence of the emergency. (Baker & Fulsom’s Case, 3 C. Cls. R., 343; Emery & Blake’s Case, 4 id., 401; Wilcox’s Case, 5 id., 386.)

3. That his orders in the premises are, as to the existence of the emergency, conclusive upon the officers charged with obtaining the supplies. (Henderson’s Case.)

4. That without his authority a quartermaster would have no lawful authority to contract, without advertisement, for future supplies. (Henderson’s Case and Emery & Blake’s Case.)

5. That the commanding officer’s authority to give an order for the immediate procurement of supplies, without advertisement, continues only so long as the emergency exists. (Emery & Blake’s Case.)

6. That the order of the commanding officer, in such emergency, must be to procure the supplies in the most expeditious manner and without advertisement.

7. That under such an order a contract could not bo made extending beyond the period of the existence of the emergency. (Emery & Blake’s Case.)

8. That he who contracts with a quartermaster for the delivery of supplies, without advertisement, is bound to know whether the proper commanding officer has declared the emer gency, and authorized the officer making the contract to dispense with the advertisement. (Henderson’s Case.)

Applying these rules to the present case, let us see how the matter stands.

Iu the first place, let it be noted that the question is not whether this court is bound to infer, or may infer, from General Thayer’s order of July 17, that an emergency existed requiring the “immediate procurement” of 2,000 tons of hay at Cabin Creek, and 2,000 tons at Hudson’s Crossing. If General Thayer had — as General Thomas was shown in Cobb, Christy & Co.’s Case to have done, (7 O. Ols. B., 470) — ordered the procurement of the supply “ in the most expeditious manner, at all events,” I am free to admit that his giving such an order would go far toward proving the existence of the emergency described in the statute, and, supported by other proof to the same end, as was done in that case, would justify this court in finding that, in fact, the emergency existed. But if I am capable of comprehending the meaning of language, General Thayer’s order not only did not declare the existence of an emergency, but did not direct the quartermaster to procure the hay “ in the most expeditious manner, without advertisement,” nor even require its “ immediate procurement,” and left it to the quartermaster to decide whether there was “time to advertise and regularly let the contract,” a thing which General Thayer alone had the lawful power to decide, and, being a matter of judgment committed by the law to Mm, he had no lawful right to delegate to a subordinate officer. Here is the order:

“ HEADQUARTERS DISTRICT OE THE FRONTIER,
"Fort Smith, Arle., July 17, 1864.
“ The general commanding directs that you immediately take the necessary steps for the delivery of four thousand tons of hay at Cabin Creek, 40 miles from Fort Gibson, & at Hudson’s Crossing of the Neosho Biver, 70 miles from the fort; two thousand tons to be delivered at each of said points. Should there not be time to advertise & regularly let the contract, you will make the arrangements for the delivery of the hay on the best terms you can, but not to exceed the contract-rates for the delivery of hay at Fort Gibson, O. N., under the existing contract.
“ Very respectfully, &c.,
(Signed) “ T. J. ASDEBSON,
Major & A. A. Gen’l.
“ Oapt. Greene Durbin,
Chief Quartermaster.”

There is not a word there about procuring- hay “ in the most expeditious manner without ad vertisement,”nor about “its immediate procurement,” but simply a direction to the quartermaster that he “ immediately take the necessary steps for the delivery of 4,000 tons of hay at Cabin Creek and Hudson’s Crossing,” without any direction or intimation of a time of delivery. There is a very wide difference between the two things. The first contemplates immediate action for an immediate result; the second, immediate action for a future result. And beyond doubt, to my mind, the latter was what General Thayer meant; for in the closing sentence of the order he says: “ Should there not be time to advertise and regularly let the contract, yon will make arrangements for the*delivery of the hay ” — not, be it observed, “in the most expeditious manner,” but “on the best terms you can and to show that “best terms” had no reference to time, but only to cost, he adds, “ but not to exceed the contract-rates for the delivery of hay at Fort Gibson, under the existing contract.” And this interpretation of the order is in olear consonance with General Thayer’s approval, the next day, of the contract entered into between the quartermaster and the claimant, for a delivery to begin by August 10, and be completed by September 25.

If, then, General Thayer gave no order either for the procurement of the hay “in the most expeditious manner, without .advertisement,” or for its “ immediate procurement,” there is no semblance of the existence of an emergency requiring its being so procured, much less any proof of it; and if there was no such emergency either declared by General Thayer or fairly inferable from his order, then the quartermaster had no legal authority to enter iuto the contract without advertisement, and it is therefore wholly void.

But if I am wrong in these views, aud if the authority of the quartermaster to make a contract, under the circumstances, for a future supply of hay, without advertisement, ought to be sustained, still the great question of the case, and one I believe not before presented for judicial decision, is to be met and answered.

The claimaut sues to recover the profit he would have made on the hay ho agreed to deliver at Cabin Creek and Hudson’s Crossing, and which he was prevented from delivering by the failure of the military authorities to furnish him sufficient guards and escorts for bis protection while engaged in fulfilling the contract5 and the question is, whether the quartermaster, with or without the approval of General Thayer, had lawful authority to bind the United States, as was attempted to be done by the insertion in the contract of these words: It is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the Government to protect the contractor while engaged in the fulfillment of this contract.”

To form a just estimate of the extraordinary character of this stipulation, let us glance at the circumstances found by the court to have existed in.the District of the Frontier when this contract was made, and during the time it was to be executed. Along the route of 250 miles from Fort'Gibson to Fort Scott active hostilities existed between the forces of the'United States and those of the rebellion. Armed forces of the rebels were frequently along the road between those places and in the vicinity of hay-stations, with a view of capturing detached parties and attacking supply-trains, and large parties of them appeared frequently in the immediate neighborhood of Fort Gibsou; so that no working parties were allowed to go out from any of the posts within that district without military protection. With the troops of his command, General Thayer had to keep open that whole route of 250 miles and afford that protection, besides meeting such other demands as the state of active hostilities there presented. To do all this, he had one Indian brigade as a permanent force, and they were frequently inside fortifications. Sometimes other troops were temporarily on duty in his district.

Under such circumstances, if the quartermaster had agreed to furnish the claimant such guards and escorts as the necessities and interests of the service might permit, the case would have been very different; but he attempts to bind, not himself alone, nor General Thayer alone, but the Government of the United States, not contingently but absolutely, always and everywhere during the time covered by the contract, to provide sufficient guards and escorts to protect this contractor against all hostile comers, whether a small band of marauding guerillas or a disciplined army requiring a hundred brigades to repel it. At the instant of signing the contract it was as good as broken; for the probabilities were as twenty to one that before its completion tbe eon tractor would suffer just what occurred. The stipulation, if binding, made the Government an absolute insurer of the contractor against all the contingencies, casualties, and fists of the enormous war that then shook the land, and against all the damage that might come to him from the enemy.

The mind instantly asks for the law which authorized an assistant quartermaster to bind his Government in such an unprecedented obligation ; and it asks in vain, for there was no such law. If that quartermaster could' have legally made such a contract, of course every other quartermaster in the Army could ’ have done the same. If quartermasters and district commanders could so bargain away the troops for the protection of contractors, then the troops would be notin the service of the Government, but of the contractors. No military officer of any rank, in line or staff, ever had, or ever will have, in this country, such authority. ’ The military forces of the nation cannot, either in peace or war, be so bound to the service of an individual. They are not the subject of such contract, but are absolutely out of the range of all contracts except that which binds each soldier to his duty. Their commander may order them wherever in his district it may, in his judgment, be necessary, but he cannot turn them over by contract to any man.

It was urged that this quartermaster did no more in this matter than other quartermasters did, all through the war, in chartering vessels and agreeing that the Government should bear certain risks while the charter lasted, and that contracts of that kind have been judicially upheld. But the cases are not alike, for in no instance that has yet appeared was there a stipulation binding tbe Government to furnish sufficient guards and escorts to protect the chartered vessel against the enemy while she was in the service of the United States. The nearest-to it that has come under my notice was the chartering of a vessel, and stipulating that the Government should bear all risks; and yet, when properly regarded, there is no real likeness between that case and this.

When the Government, in time [of war, needs vessels for its transport-service, there are three was of-getting them — by purchase, by impressment, or by hiring.

If it purchases, it of course assumes all risks while its ownership lasts.

If it impresses, it assumes all risks while the impressment lasts.

If it hires the entire vessel, with the possession, command, and control of navigation wholly vested in and held and exercised by the Government, then the Government is, in law, considered the owner for the voyage or service stipulated. (Leary v. The United States, 14 Wall., 607.) In such case the Government assumes all risks unless the owner consent to bear part of them. When, therefore, in the ease of such hiring as that, a quartermaster stipulates either that the Governrajnd shall bear the war risk, or that it shall bear all risks, he thereby imposes no liability upon the Government, for he only expresses on paper an obligation which the law itself imposes, through the mere fact of a hiring which divests the owner of all possession and control, and transfers all possession and control to the Government.

If it hires a vessel which, though officered, manned, and managed by her owner, is placed under the orders of the Government, is to go wherever ordered, and nowhere without orders, and it is stipulated that the Government shall bear the Avar risk, or even all risks, the utmost limit of resulting liability upon the Government would be the value of the vessel, if she should be lost by such risk while obeying orders; and it may well be questioned whether the Government would not, without such stipulation, be bound, in case of such loss, to pay that value. But whether so or not, that case is unlike this; because here the contract bound the Government to follow a man, not under its orders, with sufficient guards and escorts to protect him while engaged in fulfilling the contract, whenever and wherever he might, ex mero motu, see fit to go to procure the hay he was to deliver; and if, in spite of all the efforts the military authorities could make to protect him, he should be prevented by au'over-powering force of the enemy from fulfilling the contract, then that the Government should be bound, to an undefined and unlimited extent, to pay him all damages he should hereby suffer. In one case the agreement was to bear the loss of a thing which the Government had always, so to speak, in its own hands; in the other, to bear the damage which a contractor might suffer, whose movements Avere always to be his own, and not at any time to be made under the Government’s orders, or subject to its control. The two cases seem to me to be essentially different.

My opinion, then, is that when this quartermaster assumed to bind the Government to do what the mere fact of making' a contract for the delivery of the hay did not in law entitle the claimant to have done for him, that is, to furnish him with unlimited and always effective guards and escorts, wherever and whenever during the stipulated time he might be engaged in fulfilling the contract, regardless of all other demands and exigencies of surrounding war, he undertook to do what he had no authority for doing, whether with or without the orders or the approval of the commander of the district; and his stipulation to that end was wholly void, even if the remainder of the •contract be held valid.

But it is suggested that as the hay was cut from the public domain it belonged to the Government, and, therefore, when thequartermaster agreed to furnish, sufficient guards and escorts, it was in reality for the protection of the property of the United States. Unfortunately, however, for this view, the land was only in a limited sense a part of the public domain. , The title to the soil was in the United States, but the Government had long ago, by treaties which are still in force, ceded and guaranteed the possession, use, and occupation thereof to the Cherokee Nation of Indians. Therefore the produce of the soil did not belong to the Government, but to that nation. Still further, unfortunately, if the hay belonged to the United States, then there was no legal right in the claimant to be paid at the Treasury for what was destroyed by the rebels, nor is there any right in him now to recover here for what he was prevented, by the want of sufficient guards and escorts, from delivering under the contract.

But there.is another and very grave question remaining to be considered. The claimant succeeded in obtaining the allowance by the accounting-officers of the Treasury, and the pay ment out of the Treasury of $3,340 for hay which he had caused to be cut under his contract, and which, before its delivery to the military authorities, was destroyed by rebel enemies at Cabin Creek and Hudson’s Crossing; and also $16.774, as compensation for property destroyed there by the same enemies; both of which losses those accounting-officers found to have been “occasioned by the failure of the Uuited States to furnish sufficient guards, as stipulated in the contract.” The Government seeks to recover back those sums by way of counter-claim in this suit. This brings up the question of the legality of those allowances.

If the agreement for sufficient guards and escorts be held invalid, the allowances were clearly unlawful. But assuming it to have been valid and binding upon the United States, were those allowances such as the accounting-officers had lawful authdl’ity to make! I think not, for the following reasons:

1. The allowances were adjudications of unliquidated damages in favor of the claimant; and, in my opinion, they had no jurisdiction to make any such adjudication. This court is the tribunal to which the Government has consented to refer such matters. But as Judge Bichardson’s opinion, next to be read, covers this point, and I concur in if, I will not enlarge in this direction.

2. Supposing those officers to have had the authority to allow unliquidated damages against the Government, they had not, in my judgment, the least power to base the allowance upon the destruction by rebel enemies of the claimant’s property; and the fact that it was destroyed while being used in preparing hay under this contract ” did not at all confer that power. The case, to my view, is one of the absolute absence of authority in any officer of the Government, upon any ground, to pay any man, contractor or other, any compensation whatever for his property destroyed in war by the enemy, except in cases where such payment is authorized by express statute of the United States. No nation ever acknowledged itself bound, on principles of public law, to pay its citizens for their property destroyed by the public enemy in time of war. Every such principle, as well as every consideration of public policy, forbids such obligation. But any nation may, out of commiseration for individual losses, disregard those principles and considerations, and provide, by express law, for such cases.

The United States did this in the second section of the Act March 3, 1849, (9 Stat. L., 414,) in these words: “ That any person who has sustained, or shall sustain, damage by the capture or destruction by an enemy * * * of any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the military service of the United States, either by im-pressment or contract, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner, * * * shall be allowed and paid the value thereof at the time lie entered the service: Provided, It shall appear that such * * * capture [or] destruction * * * was without any fault or negligence on the part of the owner of the property, and while it was actually employed in the services of the United States.”

The Supreme Court held, in Stuart v. The United States, (18 Wall., 84,) that this statute was intended for the indemnity of those engaged in the actual military service of the United States; that is, for enlisted men while in performance of their duties as such; and, therefore, that a contractor for land transportation of military stores and supplies was not in the military service, and could claim no benefit under that statute. And in Shaw's Case, in this court, (9 C. Cls. R., 388,) affirmed, on appeal, by the Supreme Court, (93 U. S. R., 235,) where a steamer was taken into the service of the United States by a quartermaster, upon a notice to her captain that the Government would require her service for a trip to Memphis, Yicksburgh, and other points, accompanied by a statement of the per-diem compensation which would be allowed for its use, and for the subsistence of the men in addition to their wages, and fuel for the vessel, to which notice and service no objection was made by the captain, and while engaged in the service the possession, command, and management of the steamer were retained by her owner, it was held that the steamer was not in the military service of the United States within the meaning of the Act March 3, 1849, (amended by the Act March 3, 18C3, (12 Stat. L., 743, § 5,) extending its provisions to steamboats,) so as to make the Government liable for her loss by fire.

Underthe.se decisions there is no ground for contending that this claimant was in the military service while engaged in fulfilling the contract of July’ 18. Not having, then, been in that service, he had no claim upon the Government for compensation for the destruction of hay and other property by rebel enemies; and, therefore, the accounting-officers had no jurisdiction whatever to allow him the sums which, upon their allowance, were paid him out of the Treasury for such destruction. Because they had no such jurisdiction the payments so made to him, and his receipt of them, were both unlawful, and the United States are entitled to recover back the amount thereof by way of counter-claim in this action. '

1 am authorized to state that Rigiiakdson, J., concurs in this opinion.

Richardson, J.,

dissenting:

I concur in tbe dissenting opinion of the chief-justice; and as to the right of the United States to recover back money paid in mistake of law by the executive officers of the Government, my views are these:

The general rule recognized in this country and in England, as between individuals, although not without exceptions, is that money paid in mistake of law, when all the facts are known to the parties, and there is no fraud, cannot be recovered back by action. This rule is founded on the maxim of the civil law, "ignorantio legis neminem exousat,” which, in its application to the administration of the law of crimes and offenses, is a concise and correct enunciation of a sound principie on grounds of justice and public policy. But when made the foundation of a rule, that money paid in mistake of law can in no case be recovered back unless fraud is proved, its application seems to me to be extended far beyond justification.

When one has committed a crime or offense, and has thereby done injury to persons and a wrong to the State, he may well be confronted with the maxim that ignorance of the law excuses no one,” and with justice may be compelled to submit to the penalty which the law imposes upon him for his wrongful act. But when one pays, in mistake of law, money which he does not owe, and which the receiver has no right in justice and conscience to retain, he does not, by demanding it back, commit a wrong, which he seeks to have excused on the ground of his ignorance or mistake of law; it is the receiver who does a wrong, and attempts to excuse it on the ground of mistake on the part of the person whose money he unjustly received and retains.

The rule has often been presented to courts in cases in which its application would work manifest hardship, injustice, and wrong; to obviate which it has been denied or explained away,, and sometimes a nice distinction drawn between ignorance and mistalce of law, by which the rule was restricted to cases of ignorance, but held not to apply to cases of mistake. This distinction, although supported by strong reasons, is too subtle ever to be of much practical use and importance. The Supreme •Court, in recognizing the rule, at the same time recognizes the fact that it has exceptions, and in one case attaches to it a limitation. (Hunt v. Rousmanier’s Administrators, 1 Peters, 15 ; Bank of the United States v. Daniel, 12 Peters, 48.)

By several courts it has been held that “ money may be recovered back in an action for mouey had and received, where there is a full knowledge of all the facts, -provided that the mistake is clearly proved, and the defendant cauuot in good conscience retain it;" and, as obviating the necessity of exceptions and subtle distinctions, this would seem to be the better rule, and is supported by many authorities. (See, among other cases, Nortrup v. Graves, 19 Conn., 554; Culbreath v. Culbreath, 7 Geo., 64; Stedwell v. Anderson, 21 Conn., 139; Underwood v. Brochman, 4 Dana, 309; Hopkins v. Mazyck, 1 Hill Ch. R., 242; Lawrence v. Beaubien, 2 Bailey, 623; Lowndes v. Chisolm, 2 McCord Ch. R., 455; Robinson v. City Council, 2 Richardson, 317, 320; Farmer v. Arundel, 2 Wm. Black, 825; Moses v. Macfarlan, 2 Burr, 1002.)

But whether or not the maxim of the civil law justifies the general rule, either to the fullest extent or with limitations as between individuals, there are grave reasons of public policy and justice why neither the maxim nor the rule should apply without limitation when money is obtained from the Government through mistake of law made by its officers and agents.

The United States, as a body politic, act only by public officers, who are special agents intrusted with specific, defined duties, and who can bind the Government only to the extent of the authority conferred upon them. The state has no general agents; the President is limited in power and authority; Congress must keep within the bounds of the Constitution; the courts are restrained in jurisdiction by statute, and all public officers must obey the law. (Floyd's Case, 2 C. Cls. R., 599, and 7 Wall., 666.) But the acts of special agents within the scope of their authority are as binding upon the principal as are the acts of general agents.

When, therefore, public money is paid away by public officers, with a full knowledge of all the facts, but in mistake of law upon an honest interpretation and decision, it is necessary to determine how far those officers have been intrusted by the Government with the power and authority to decide in such cases, before the rule can be applied in any form; because, if they have no authority to decide controverted questions of law arising in the course of their prescribed duties, the Government would under no circumstances be bound by their decisions thereof.

Money is paid out from the United States Treasury upon warrants signed by the Secretary of the Treasury, countersigned by the Comptroller, and recorded by the Register, (Rev. Stat., §§ 305, 313,) except money of the Post-Office Department, which is drawn upon warrants signed by the Postmaster-General and countersigned by the Auditor for that Department. (Rev. Stat., §§ 396,3674.) When received by a disbursing-officer, the -money still belongs to the Government, and must be paid by him according to law upon vouchers taken and returned to the Department for the settlement of his accounts. (Rev. Stat., §§ 3622, 3623.) Such officers are special agents, with very limited authority. Their duties are ministerial; they are to pay the money according to the law and the fact in each case, and if they make mistake in either they are personally liable therefor themselves, and the Government may also, without doubt, maintain an action to recover back the money from the person wrongfully receiving it. No discretion or authority to decide controverted questions of law is intrusted to such officers.

But for the settlement of accounts against the United States there is established by law a peculiar and well-appointed system, which requires in each case careful examination and consideration, and the judgment and decision of high officers, appointed by the President with the advice and consent of the Senate, called “accounting-officers,” of two distinct classes, acting separately, the Comptrollers reviewing and finally passing upon the action of the Auditors. The Auditors’ duties are prescribed in Revised Statutes, §§ 276-300, and are generally “ to receive and examine all accounts relating” to the different branches of the public service, “and after examination of such accounts to-certify the balances and transmit the same with the vouchers and certificates to the Comptroller for his decision.”

The Comptrollers’duties are prescribed by Revised Statutes, §§ 268-275, and are, among other things, “to examine all accounts settled by the Auditors,” and to certify the balances arising thereon; the First Comptroller to the Register, and the Second Comptroller to the head of the Department in which the expenditures have been incurred. Thus the accounting-officers stand in somewhat different relations to the Government from disbursing-officers, agents, and employés who have only ministerial duties to perform. They have larger power and greater authority, to be exercised according to their best judgment. They are to examine all accounts, the Auditors to state the balauces, and the Comptrollers to decide thereon. They must, of necessity, be intrusted, especially the Comptrollers, with the important duty of passing upon all questions of law or fact which may arise in the settlement of accounts and in the decision required as to the balances to be certified.

To decide means, “To settle, to terminate, to end, to conclude; applied to what is in dispute, question, or doubt.” (Worcester’s Dictionary.)

A decision implies more than ministerial duties, and calls for a determination by the Comptrollers of every question which may be raised upon the accounts and balances as stated and -certified by the Auditors, whose whole proceedings are subject to revision by the Comptrollers. By Revised Statutes, § 271, the First Comptroller may even direct Auditors, in case of delays which, in his opinion, would be injurious to the United States, “forthwith to audit and settle any particular account which such officers are authorized to audit and settle, and to report such settlement for revision and final decision by the First Comptroller.” This authority to direct accounts to be forthwith settled, before the passage of the Revised Statutes, w.as understood to belong to each Comptroller alike as to accounts within their respective jurisdiction, and was so exercised; but it seems to be limited in the revision, probably by inadvertence, to the , First Comptroller. We cite it here, however, only to show the duties of the Comptrollers in making their final decisions on accounts, and they are the same whether the settlements are sent up to them by the Auditors in the usual manner or by special direction. All such settlements are subject to the revision and final decision of the Comptroller.

To some extent, therefore, the Comptrollers are gwim-judicial officers, and like judicial and other officers who are charged with the exercise of discretion and judgment, and unlike ministerial officers, they are not personally liable for the correctness of their decisions when acting without fraud and jn good faith. In the performance of their important duties the accounting-officers may, through the Secretary of the Treasury, and often do, obtain the opinion of the Attorney-General upon doubtful ■questions of law, as may be seen by reference to numerous printed opinions of the Attorneys-General in such' cases.

The accounting-officers from the first maintained the conclu-sivenoss of their decisions, at least against all other executive officers, and controversies early arose as to how, by whom, and to what extent those decisions could be reviewed and revised. Claimants often appealed to the President against the action of those officers in settling their accounts, but it was always held, ou the advice of successive Attorneys-General, that the President had no power to interfere. (1 Ops. Atty. Gen., 624; 2 id., 508, 544; 5 id., 630.) The Secretary of the Treasury, and other heads of Departments, still continued to claim the right to revise the action of the accounting-officers, and to change the balances certified by them, and this claim was sustained by the opinions of the Attorneys-General, and was generally, though reluctantly, acquiesced in by the accounting-officers. (5 Opin., 630.)

In 1868 Congress passed the act which is embodied in Revised Statutes, § 191, as follows:

“The balances which may from time to time be stated by the Auditor and certified to the heads of Departments by the Commissioner of Customs, or the Comptrollers of the Treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of Departments, but shall be conclusive upon the executive branch of the Government, and be subject to revision only by Congress or the proper courts. The head of the proper Department, before signing a warrant for any balance certified to him by a Comptroller, may, however, submit to such Comptroller any facts in his judgment affecting the correctness of such balance, but the decision of the Comptroller thereon shall be final and conclusive, as before provided.”

This act settled a long-standing controversy between the accounting-officers and the heads of the Departments, and is significant in connection with the questions now under consideration, as showing the great authority, superior to that of the highest executive officers of the Government, which Congress reposes in tjie accounting-officers in the settlement and determination of balances of accounts with the Government.

It will be observed that, by the sections of the statutes to which reference has been made, the general jurisdiction of those officers is confined to matters of account. An “account” is defined by Chief-Justice Shaw thus: “The primary idea of account, computatio, whether we look to the proceedings of courts. of law or equity, is some matter ot' debit autl credit, or demands in the nature of debt or credit, between parties. It implies that one is responsible to another for moneys or other things, either on the score of contract or some fiduciary relation of a public or private nature, created by law or otherwise.” (Whitwell v. Willard, 1 Metc., 216.)

This would exclude claims for unliquidated damages, founded, on neglect or breach of obligations or otherwise, and so, by the well-defined and accepted meaning of the word “ account,” and the sense in which the same and the words “accounting” and “accounting-officers” appear to be used in the numerous sections of the numerous acts of Congress wherein they occur, it would seem that the accounting-officers have no jurisdiction of such claims, except in special and exceptional cases in which it has been expressly conferred upon them by special or private acts. And such has been the opinion of five Attorneys-Geueral —all who have officially advised the Executive officers on the subject: Attorney-General Taney, in 1832, whose opinion is referred to by his successors in office; Attorney-General Kelson, in 18-14, (4 Opins., 327;) Attorney-General Clifford, in 1847, (4 Opins., 627;) Attorney-General Cushing, in-1854, (6 Opins., 524;) and Attorney-General Williams, in 1872, (14 Opins., 21.) And the same views were expressed by this court in 1866. (Carmick et al. v. The United States, 2 C. Cls. R., 126, 140.)

The appropriations by Congress for the support of the different branches of the Government, from which the balances found by the accounting-officers can be paid, are made for the payment of services rendered, materials furnished, and benefits conferred, which may be foreseen and estimated for with some degree of accuracy, and, unless specifically provided for thereiu, do not include authority to pay unestimated and unlimited amounts which those officers, without the ordinary forms and proceedings required in the trial of controverted claims in the courts of law, might in their discretion, upon ex-parte affidavits, in their ordinary course of business, allow as damages for violated contracts.

The present distinguished head of the Treasury Department, (Mr. Secretary Sherman,) in a circular-letter recently addressed to the accounting-officers and others, thus justly and correctly calls attention to the admirable organization of that Department to pass upon accruing demands and accounts, and the difficulties and dangers attending the allowance of other claims, and especially of those long past due. He says:

“ The Treasury Department is admirably organized to pass upon accruing demands upon the Government and upon the accounts of disbursing-officers. All its machinery aud checks are adapted to this duty, and no serious complaint has been, or is likely to be, made of the proper discharge of this duty. But when claims long past due are presented upon ex-parte evidence to officers who have no means of calling witnesses, no powers to cross-examine them, no modes of testing the sufficiency of testimony or its credibility, none of the safeguards of an open court of justice, the passage of fraudulent claims is unavoidable. Congress has by law provided a Court of Claims, where, within a limited period, all demands founded upon contracts may be presented and openly tried and decided. If this remedy in any case should be insufficient, claimants can appeal to Congress, which may grant either a new trial in the courts or a reexamination in the Departments, or directly furnish such relief as-it deems right and proper. The Treasury Department is not a Court of Claims, and the reason for withholding the ordinary powers of such a court became apparent to Congress by actual errors that had occurred.”

That public,policy requires that public officers should be held to the performance of their duties within the strict limits of their legal authority, and that as a general rule the Government should not be bound by their mistakes, or their errors of omission or commission, there can be no doubt; aud public policy would seem equally to require that when the vast accounts of collectors and disbursing officers, charged with responsible trusts and under heavy bonds; the complicated accounts of persons furnishing supplies to the Army, Navy, and other branches of the Government; the accounts of individuals dealing in thousands of ways with the constituted authorities, as well as accounts for the salaries of public officers to whom it is often of great importance to know exactly how much they can depend upon receiving, when passed upon and settled by officers of such high authority as the accounting-officers acting within the exact scope of their authority, and the balances certified by them tp the heads of Departments to which they relate, aud by them directed to be paid, and then paid by warrant drawn on the Treasury according to law, and the payment acquiesced in by the claimants, such settlements should be held final and . conclusive on the G-overnment, unless impeached by fraud or mistake as in like cases between individuals.

Mr. Justice McLean, in an opinion delivered in the Supreme Court in 1834, thus expressed his views: “The accounting-officers of the Treasury act upon the accounts, and give the credits-as entered their officia sanction. The vouchers of an individual are all- submitted to these officers and their decision has-always been considered as conclusive upon the Government,, but not so as against the individual. The law expressly provides that rejected items may be allowed by the court [referring' no doubt to the provisions now incorporated, into Revised Statutes, §§ 951, 952.] * * * In the performance of their official duty, the Treasury officers act under the authority of law; their acts are public, and affect the rights of individuals as well as of the Government. In the adjustment of an account they sometimes act judicially, and their acts are all recorded in the books and files of the Treasury Department. So far as they act strictly within the rules prescribed for' the exercise of their powers,, their decisions are in effect final; for if an appeal be made they will receive judicial sanction, [probably referring to the provisions-now incorporated into the Revised Statutes, § 886.] Accounts amounting to many millions annually come under the action of these officers. It is, therefore, of great importance to the public and to individuals that the rules by which they exercise their powers should be fixed and known.” (United States v. Jones, 8 Peters, 375.)

The language used by Attorney-General Browning, in an opinion given to the Secretary of the Treasury in 1868, upon the claim of a collector of customs to have the accounting-officers open and re-adjust an account settled with them, in which he claimed that errors had been made in the amounts allowed him, founded on mistake of law, although used with reference to the opening of settled accounts at the request of a claimant, applies with equal force when the Government seeks to open the same. He says:

“It- has been repeatedly held that where an account has once been duly adjusted, settled, and closed by the proper officers, with a full knowledge of all the facts, and where no errors in calculation have been made, it cannot be re-opened without express authority of law, and must be regarded as final and con-elusive. No subsequent decision upon a doubtful or controverted question of law, essentially modifying a prevailing rule wbicb was applied to tlie settlement of an account, would authorize the re-opening of it, with a view to a re-adjustment of it in accordance with such decision.” (12 Opinions, 386.)

If the rule were otherwise, and nothing can be regarded as settled against the Government in the adjustment of accounts except what is determined by the Anal judgment of the courts, it would follow, as no statute of limitation bars actions brought by the United States, that any account settled since the first organization of the Government might be re-opened, and parties brought into court upon a claim for money paid them in mistake of law,-upon the caprice of successive Comptrollers, who are by law charged with the duty of directing suits and legal proceedings to be instituted for the recovery of debts certified by them to be due to the United States,' (Rev. Stat., § 269,) or whenever a new construction is placed on a statute, different from that which the same or a former Comptroller adopted in the settlement of earlier accounts, materially changing the balances, although there were no frauds, mistakes., or concealments of facts, and the parties had dealt with the Government on the basis of the former rulings, and had long acquiesced in the settlement.

But the strength of the position that money paid in mistake of law, upon the decisions of the accounting-officers “ acting strictly within the rules prescribed for the exercise of their powers,” with a full knowledge of all the facts and in the absence of fraud, •cannot be recovered back, except in cases in which it could be so recovered under like circumstances between individuals acting for themselves, does not rest merely upon the conclusiveness of those decisions, for until they are consummated by actual payment they are not binding and conclusive, except to the extent specified in the act of 1868, before cited, (Rev. Stat., § 191,) and are never so regarded.

In the case of Chorpenning v. The United States, (91 U. S. R., 397; ante, p 119,) wherein'the Postmaster-Gen eral was, by special-act, authorized to investigate and adjust certain claims, to be settled as therein provided, and Congress repealed the act after the Postmaster-General had found and stated a balance due to the claimant, but before the same was paid, and he sued to recover the amount so found due him, the Supreme Court held that he had no canse of action, and in the opinion of the court Mr. Justice S wayne thus refers to the powers of accounting-officers: “The adjustment having been made under a special law renders it in no wise-different as regards the point we are considering from those made daily by the accounting-officers of the Government, under the general law conferring their powers and prescribing their duties. The idea that the Government is finally concluded by the results at which they may arrive would be regarded as a novelty within and without the several Departments.”

Congress, as we thus see, may interfere, and the head of a Department to which a certified balance relates, if he cannot change the balance, may submit to the Comptroller any facts in his judgment affecting the same and require a decision thereon, or he may s.end the claim to this court for final adjudication, as has been done in many cases. (Delaware River Steamboat Company's Case, 5 C. Cls. R., 55; Winnissimmet Company's Case, Reybold’s Case, and Hart's Case, ante, p 319.) And the Secretary of the Treasury, or the Postmaster-General, in case of accounts in his Department, has the right, and it would be his duty, to refuse to grant or sign a warrant for the payment of any certified balance which in his opinion is wholly invalid and not provided for by an appropriation authorized by law, (Constitution, art. I, sec. 9; Rev. Stat., §§ 248, 3674, 3675, 3678,) until the case had been transmitted by him to this court for adjudication or submitted to Congress for an appropriation.

Jt is only when payment has been made on the requisition of the head of a Department and the warrant of the Secretary of the Treasury, or of the Postmaster-General in his own Department, sanctioning and giving effect to the action of the accounting-officers, each acting strictly within the jurisdiction conferred upon him by law, and the settlement thus consummated has been acquiesced in by the claimant, that it would seem to be binding and conclusive in like manner as settlements between individuals.

If, however, the claimant does not acquiesce in the settlement, but brings his action in this court within the time limited by law, he cannot well object if the account is re-opened throughout, stated anew, and a balance found either way, according to the l.aw and the facts as found by the court. A case arose in 1854 illustrative of these views. Coroners in the District of Columbia bad, for a series of years, been allowed from the Uuited States Treasury payment for fees of inquests super visum corporis. A coroner whose accounts had been previously settled and paid asked for a re-opening and re-adjustment of the same, on the ground of alleged errors on the part of the accounting officers in not allowing him so much for fees as he was entitled to. The matter was referred to the Attorney-General, who held that coroners were not entitled to be paid anything’ out of the United States Treasury in such cases. In his opinion, Attorney-General Cushing said: “Whatever fees in the premises have been paid to the coroner heretofore out of the Treasury of the United States have been paid, it seems, by traditional practice for some years, in consequence of an erroneous construction of the act of 1838, adopted without due reflection and examination of the Treasury Department. That construction was manifestly against law. I do not recommend that the coroner be called upon to refund the money he has received. The Government has voluntarily paid it in its own wrong, and perhaps ought to submit to the loss. I am accustomed to advise acquiescence in what is done as done.” (6 Opinions, 568.) And in a supplementary opinion in the same case he adds: “Accounts have sometimes been opened on the application of a party for the correction of a manifest error of law committed to his prejudice. But if one party insists upon, having the accounts open to re-adjust them, in view of correcting errors committed to his prejudice, it would be right and the duty of the accounting-officers to correct, at the same time, any error committed to the prejudice of the other party. The effect of this will be that, if the accounts are re-opened at the instance of the coroner, the re-adjustment must be complete and legal in all its parts, and he may be called upon to account for the money which he has received unlawfully heretofore by mistake of the Government.” (6 Opinions, 576.)

On the whole, my opinion is, that when a claimant, not acquiescing in the settlement of an account or claim by the accounting-officers and the payment thereof, brings his action in this court.to recover an amount beyond what has been allowed and paid to him, the United States may maintain a counter-claim, under the provisions of Revised Statutes, section 1059, clause 2, for any money received by him on such settlement, when it appears that the officers of the Department exceeded their powers in exercising jurisdiction over the claim, and mistook the law applicable thereto, and the money paid was not legally due to the claimant and could not have been recovered by action in this court, or otherwise, and cannot in conscience be retained by him.

This is all that it is necessary to determine for the purposes of this case.

In McElrath’s Case, (ante, p. 201,) McBlrath had been paid half-pay, as on leave of absence, as an officer of the Marine Corps, upon the mistaken decision of the accounting-officers that he was by law a first lieutenant of that corps during the time for which he was so paid; and he, not acquiescing in the settlement, brought his action in this court for the balance of full pay. He had been an officer of the corps, sent in his resignation, which was not accepted, and he was peremptorily dismissed from office. He engaged in other occupations, performed no service for the Government and offered to perform none, and after a time, as an act of favor, the Secretary of the Navy revoked, or attempted to revoke, the order of dismissal, and accepted his resignation to take effect at the date of said revocation. During the whole intervening time his place had been filled by the appointment of another person to the vacancy created by his dismissal, and the corps had the full complement of officers authorized by law, exclusive of the claimant. The court held that his attempted restoration by the Secretary of the Navy had no legal effect; that the accounting-officers erred in deciding that he was during the time an officer of the Marine Corps entitled to pay; that the officers of the Department exceeded their jurisdiction in paying him half-pay while he was not in office, and that he had no legal claim to the money paid to him and could not in conscience retain it. And the court gave judgment upon the counter-claim. against him for the amount which he had illegally received.

In the case at bar a majority of the court hold that the clause in the contract of June 20,1864, whereby the defendants were made to promise that “it is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the Government to protect the contractors while engaged in the fulfillment of this contract,” was void, as not warranted by the advertisement inviting proposals, and as inserted without legal authority, for the reasons stated in the opinion just read by Judge Nott, in which, so far as it relates to that clause, I concur. And a minority of the judges hold, also, that the contract of July 18, 1864, was void, because not made in conformity with the requirements of law, by which advertisements for proposals are to be published before such contracts are entered into, and if not, then that the clause promising protection, in the same language as that in the contract ot June 20; above quoted, so far as it relates to property destroyed by the public enemy in time of war, was beyond the authority of the officer making the contract to insert, and was to that extent an excessive assumption of power, against public policy, and void. (Yattel’s Law of Nations, 403.)

All the money paid to the claimant, which forms the subject of the counter-claim set up by the defendants, was allowed and paid in fact as damages, unliquidated damages, for breach of the agreements in the protection clauses of the contracts, on the part of the defendants, measured by the value of the claimant’s property destroyed by the public enemy in time of war, for want of sufficient military escorts and other defenses and protection by the Army in the field.

The manner of estimating the claimant’s damages by stating an account of his actual losses does not make this claim .one of “account” within the meaning of the law and of the statutes defining the duties of the accounting-officers. In whatever form settled it was a claim for damages.

That the claimant was not entitled to damages by settlements in the Executive Departments, by action in this court or otherwise, for such breach of such clauses so inserted in the contracts, and for property thus destroyed by the public enemy, I think is clearly shown in the opinion of the chief-justice.

When a contract is annulled or broken on the part of the United States before completion, the contractor, waiving his claim to damages, may, if he so elects, have his accounts settled, as for part performance, at the rate and according to the conditions of the contract; and such accounts would be strictly within the jurisdiction of the accounting-officers of the Treasury Department. (6 Opinions, 499.) But that is not this case. The claimant’s contracts were for the delivery of hay at specified places and at agreed prices, and the only part performance' which could have occurred in such case would have been the delivery of a portion only of the hay contracted for. The investments of the claimant in property preparatory to or in the performance of his contracts was not part performance of the same. And the property used by him in cutting hay was not in the service of the United States nor under their control. (Grant v. The United States, 1 C. Cls. R., 61; affirmed on appeal, 7 Wall., 331, 7 C. Cls. R., 53; Stuart v. The United States, 18 Wall., 84; John S. Shaw v. The United States, 9 C. Cls. R., 388; affirmed on appeal, ante, p. 1.)

Moreover, the claimant does not acquiesce in the settlement, but brings this action to recover an amount beyond what has been allowed and paid to him. He cannot, therefore, in law or justice, well complain if the United States on their part no longer acquiesce in the payment, and, in defending themselves, at the same time seek to recover back the money paid to him, without authority of law, by their special agents acting beyond the limits of their jurisdiction.

Had the claimant himself not disturbed the settlement by bringing the defendants into this court, the- United States would no doubt have abided by the action of their officers, as they have done before in hundreds of cases which must have occurred in the nature of things during the past eighty years and more, in the course of the almost countless, multifarious, and complicated accounts which have been adjusted and settled in the Departments, wherein the executive officers have acted upon-interpretations of statutes and views of the law, and of their own powers and duties, honestly and fairly arrived at, as we believe they were in this case also, but which the courts, after arguments by persons learned in the law, and more thorough consideration, would be constrained not to uphold. And because the United States do nob in their ordinary business disturb settlements in which the claimants acquiesce, it does not follow that they have no right to recover back payments illegally made on those which the claimants themselves re-open by actions bringing the Government into court.

In my opinion the defendants are entitled to recover the amount of their counter-claims.

I am authorized to state that the chief-justice concurs in this opinion. 
      
       Mr. E. P. Norton, now deceased.
     