
    HART'S CASE.
    Simeon Hart’s Administrator v. The United States.
    
      On the Proofs.
    
    
      The claim is transmitted to this court by the Secretary of War. The evidence consists entirely of vouchers given by Army officers betiveen March 3 and Jme 21, 1861, to a contractor in New Mexico. One of the officers is dead. The others resigned and joined the insurgents about the time the vouchers were given. The contractor also joined the insurgents. Some of the vouchers were transmitted to him after he had done so. Some appear to be for articles which (or similar ones) are reported on the officer’s quarterly returns as paid.
    
    I.Ail official voucher in due form issued by a properly qualified officer is prima facie, but not conclusive, evidence of the facts therein stated.
    II.Where the transactions took place in a time of public turmoil and the ciroumstances are suspicious, and the officers who issued vouchers offered in evidence cannot be called to rebut them, the court will closely scrutinize the evidence to support a prima facie ease.
    III.Where an unsupported voucher is for 30,000 pounds of flour, and the officer’s abstract of purchases and accompanying vouchers for the same quarter show only one purchase of flour, viz, of 32,000 pounds, from the same contractor on the same day, which was paid, the evidence warrants the finding of a resulting fact that the contractor delivered no flour except that for which he was paid.
    IY. A voucher issued and transmitted to a contractor after he had joined . the insurgents in 1861, and while he was within the enemy’s lines, though for goods purchased prior to the breaking out of hostilities, is absolutely void and cannot be received in evidence to support an action for the goods.
    V. It is not within the power of a citizen within the United States lines to give to an enemy within the enemy’s lines an evidence of debt which shall he valid on the return of peace.
    VI. The head of an executive department cannot transmit a claim to this court under the Revised Statutes (§ 1063) on the ground that it involves disputed facts or controverted questions of law, if he be by law forbidden to pay the claim. Therefore he cannot transmit a claim the payment whereof is forbidden by the Joint Resolution 2d March, 1867 (Rev. Stat., § 3480).
    
      VII. A pardon restores to civil rights, to the enjoyment of property, the right to sue, &c., hut does not confer the right to take money from the Treasury where Congress have enacted that it shall not he paid hy executive officers to persons who “promoted, encouraged, or in any manner sustained the late rebellion” (Rev. Stat., 3480).
    VIII. Jurisdiction of a claim is not conferred upon this court hy its transmission from an executive department under the Revised Statutes (§ 1063) where jurisdiction of it is expressly denied hy law to the department.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court:
    I. On the 3d March, 1861, Thomas K. Jackson was, and for some time had been, a first lieutenant of infantry in the Army of the United States, and acting assistant commissary of subsistence and acting quartermaster at Fort Bliss, in Texas. On the first day of April, 1S61, he resigned from the Army of the United States, and his resignation was accepted, and he entered the rebel service.
    II. On the same day John B. Grayson was, and for some time before had been,' a major and commissary of subsistence and brevet lieutenant colonel in the Army of the United States, on duty as chief commissary of subsistence of the Department of New Mexico. He was relieved April 19,1861. He then proceeded to San Antonio, Texas, where Ool. Earl Yan Dorn on the 21st of April, 1861, took command of the insurgent forces gathered there. From that place he resigned from the A rmy of the United States. He entered the rebel service.
    III. On the same day Edward Treacy was a second lieutenant in the régiment of mounted riflemen in the Army of the United States, and then was, and for two months previous had been, on duty as acting assistant quartermaster and acting commissary of subsistence at the post of Fort Craig, in New Mexico, and continued at such post on such duty until May 1, 1861. He remained loyal. His services in the Army were terminated by his death, February 15, 1864.
    IY. On the same day Simeon Hart, the claimant’s intestate, was residing in El Paso, Tex., and was in active sympathy with those who were inciting to rebellion. In April, 1861, he joined the insurgents, and then and afterwards furnished them with supplies, money, and means of transportation to carry on their invasion and campaign into New Mexico.
    
      V. Among tbe papers transmitted to tbe court by tbe Secretary of War‘ is tbe following voucher, wbicb is signed by tbe said Tbomas K. Jackson:
    
      11 The United States to Simeon Hart, Dr.”
    
    Date of purchase. Dollars. Cents.
    March 3, 1861. For 30.000 lbs. flour, delivered at Fort Bliss, Texas, ® 9|c.. 2, 850 00
    Total, two thousand eight hundred and fifty dollars. 2, 850 00
    “I certify that the above account is correct and just, and that the articles have been accounted for ou my provision return for the month ending on the 31st of March, 1861, and that the account has not been paid by me, in consequence of the want of funds.
    “Thomas K. Jackson,
    “Is# Lt. of Infy, A. A. O. 8.”
    
    Among the papers transmitted to the court from the Treasury Department, in answer to a rule made at the claimant’s request, are the following copies of papers on file or of record in that department:
    No. 5042.] “Treasury Department,
    “Third Auditor’s Oepice,
    
      “May 24, 1861..
    .“ I certify that there is due from the United States to Simeon Hart, contractor, the sum of two thousand eight hundred and fifty dollars, on account of “subsistence,” by general account of money advanced for 30,000 lbs. of flour, 9-j- cents per lb., delivered to Lieut. Thomas K. Jackson, 8th Infantry, acting-assistant commissary at Fort Bliss, Texas, in the month of March, 1861, as per voucher herewith, $2,850.00 (remit to Simeon Hart, contractor, El Paso, Texas, by draft on assistant treasurer at new Orleans, La., on account of subsistence, $2,850 ^%), appears from the statements and vouchers herewith transmitted for the decision of the Second Comptroller of the Treasury thereon.
    “B. J. Atkinson, A uditor.
    
    “ To James M. Outts, Esq.,
    “ Second Comptroller of the Treasury.
    
    “Second Comptroller’s Opeioe.
    “I admit and certify the above balance this 25th day of May, 1861.
    “ J. Madison CuttS,
    “ Second Comptroller.
    
    
      “May 28,1861. — Inquisition No. 4357. Simeon Hart, contractor at EL Paso, Texas. Dae on sett., per certificate of the 2d Comptroller, No. 5042:
    “Subsistence... $>2, 850 00”
    No warrant or draft was ever issued pursuant to said requisition, The records of the Treasury Department do not show that it has been paid.
    A further return of the Secretary of the Treasury, made May 10,1879, in compliance with a rule of this court, transmits to the court the following copies:
    “Abstract of purchases made on account of subsistence of the Army by 1st Lieut. Thos. X. Jackson, 8th Inf ’y, A. A. G. 8., at Fort Bliss, Texas, in the quarter ending on the 31 st of March, 1861.
    
      
    
    “ I certify that the purchases were made agreeably to the above abstract, and that the sums were actually paid as charged, and also that I was rfholly uninterested in the purchases, and that .the articles were purchased at the lowest market prices.
    “Thos. K. Jackson,
    “ l,sf Lieut. 8th Inf’t’y, A. A. G. 8.”
    
    “Foeji No. 12. — (Voucher to abstract A.) /
    
      11 The United Slates to Simeon Kart, Dr.
    
    
      
    
    “I certify that the above account is correct and just, and that the articles have been accounted for on my provision returns for February and March, 1861.
    “Thos. K. Jackson,
    “ lsf Lt. 8th Inf’t’y, A. A. G. 8.
    
    
      “ Deceived, at Fort Bliss, Texas, tbe 27 of March, 1861, of 1st Lt. T. K. Jackson, 8th Inf’t’y, A. A. O. S., U. S. Army, the sum of fourteen thousand fiye hundred & twelve dollars and -cents, in full of the above account.
    (Signed in’duplicate.)
    “S. Hart.”
    (Indorsed:) Form No. 12. Voucher No. 5, Abstract of Purchases. 1st qr., 1861. Dollars, 14,512.00. Paid 27 March, 1861.
    Except these facts, there is nothing in the record to show whether any flour was or was not delivered to the defendants by the said Hart at Fort Bliss on or about the 3d March, 1861, or what was the worth of the said flour if any such was delivered.
    As a resulting fact from the foregoing facts, the court finds that there was no flour delivered to the defendants by the said Hart at that time at Fort Bliss, except the said 32,000 pounds, and that he was i>aid for the same in full.
    VL Amongt he papers so transmitted by the Secretary of War is the following voucher, signed by the said Thomas K. Jackson :
    “ The United States to Simeon Hart, Hr.
    
    Date of purchase. '■ Dollars. Cents.
    Nov. 25,1860. For foraging & taking', care of 25 public animals of the> Q. M. D., from the 5th to the 35th Nov., 1860, 20 days, © 75c. pr. head pr. day.375 00
    Jan’y 3,1861. For foraging & taking care of 18 pub. animals of the Q. M.'D.yfor 12 days, commencing the 22d or Dec., 1860, & ending the 3 of Jan’y, 1,861, © 75c. pr. head pr. day.162 00
    Feb. 22,1861. For foraging & taking care of 21 pu'b. animals of the Q. M. D., for lP days, commencing the 13th & end- \ ing the 22d Feb., 1861, © 75c. pr. \ head pi’, day. .157 50
    G'94 50
    “I certify that the above account is correct and just; that the services were rendered as stated; and that they were necessary for the public service; & that the account has not been paid by me in consequence of the want of funds.
    “THOS. K JACKSON,
    
      ulst Lt. of Inf’y, Quartermaster.
    “Deceived at , the &emdash; of , 185 , of-, quartermaster United States Army, the sum of six hundred and ninety-four dollars and fifty cents, in full of the above account. i
    ~`S. HAi~T."
    
      The said Jackson made a report, which is on file in the War Department, of the persons and articles hired by him from November, 1860, to March, 1861, inclusive. No mention of the services set forth in the above voucher is made in said report.
    Except this voucher, there is nothing in the record to show that the services set forth in the voucher were rendered to the defendants by said Hart, or that they were worth the sums therein named.
    As a resulting fact from the foregoing, the court finds that the supplies and labor referred to in the voucher set forth in this finding were not furnished to the defendants by the said Hart.
    YII. Among the vouchers so transmitted by the Secretary of War are two other vouchers certified by said Treacy, which are in the words and figures following, viz:
    “ The United States to 8. Hart, Dr.
    
    Dateofpiirclia.se. Dollars. Cents.
    March 31,1861. For 935 fanegas of corn, at $6^% per fanega. 6,077 50
    
      “ “ “ For 3,278 corn-sacks, at 20 cents each. 656 60
    $6, 733 10
    “I certify that the above account is correct and just, and that the articles have been accounted for on my property return for the quarter ending on the 31st of March, 1861.
    “Fort Craig, N. M., June 19th, 1861.
    “Edward Treacy,
    
      “2nd Lieut., R. M. R., A. A. Quarter master.^
    
    “Exhibit D. — A. H.
    “ The United States to S. Hart, Dr.
    
    Date of purchase. Dollars. Cents.
    April 22nd, 1861. For 689\ fanegas of corn, at $6.50 pr. fanega. 4,481 75
    “ “ “ For 1,130 corn-sacks, at 20 cents each.... 226 00
    $4,707 75'
    “ E certify that the above account is correct and just, and that fcho articles have been accounted for on my property return for the quarter ending on the 30th of June, 1861.
    “ Fort Craig, N. M., June 19th, 1861.
    “Edward Treact,
    
      “2nd Lieut., B. M. B., A. A. Quartermaster
    
    The said return of the Secretary of the Treasury, made May 10,1879, heretofore referred to, contains, among other things, the following copies:
    “Form No. 25. — (Voucher to Abstract D.)
    
      il The United States to S. Hart, Ur.
    
    
      
    
    “I certify, on honor, that the above account is correct and just; that I purchased the articles above enumerated of the said S. Hart at the price therein charged, amounting to nine thousand seven hundred and thirty-three dollars and twenty cents, and that I have not paid the account, the funds on hand being insufficient.
    “Edward Treaoy,
    
      “2d Lt., B. M. B., A. A. Quartermaster
    
    (Signed in duplicate.)
    (Indorsed:) (Form No. 25.)' Voucher No. 12, Abstract D. 1st qr. 1861. S. Hart. Dollars 9,733.20.
    
      ‘The United States to S. Hart, Ur.
    
    
      
    
    “ I certify, on honor, that the above account is correct and just; that I purchased the articles above enumerated of the said S. Hart at the price therein charged, amounting to three thousand seven hundred and seven dollars and forty cents, and that I have not paid the account by reason of instructions contained in a letter from the office of the Con. Gen. of Sub., dated Washington, May 11th, ’61, received through the chief of sub. dep. N. Mexico.
    (Signed ill duplicate.)
    “Edward Treacy,
    “2d Jjt., B. M. B., A. A. Quartermarter.”
    
    (Indorsed:) (Form No. 25.) Voucher No. 1, Abstract D, 2d qr., 1861. S. Hart. Dollars 3,707.40.
    “Forji No. 12. — (Voucher to Abstract A.)
    
      “The United States to S. Hart, Dr.
    
    
      
    
    “I certify that the abové account is correct and just, and that the articles have been accounted for on my property return for the quarter ending on the 31st of March, 1861.
    “Edward Treacy,
    “2d Lt, B. M. B., A. A. Quartermaster.
    
    “Received at Fort Craig, N. M., the 14th of March, 1861, of Lieut. Edward Tracy, A. A. quartermaster, U. S. Army, the sum of one thousand dollars and-cents, in full of the above account.
    (Signed in duplicate.)
    “S. Hart.”
    (Indorsed:) Form No. 12. Voucher No. 13, Abstract A. 1st quarter, 1861. S. Hart. Dollars 1,000.00. Paid March 14th, 1861.
    Except these papers, there is nothing in the record to show whether the property described in said vouchers, or any part of it, was delivered to the defendants by the said Hart, or what was the worth of the said property if any such was delivered.
    On the 22d April, 1861, when the lot of corn and corn-sacks described in the second voucher purports to have been delivered, the said Hart was acting with the enemy, and on the 19th of June, 1861, when the said vouchers purport to have been made out and delivered, the said Hart was within the enemy’s lines.
    
      VIII. Among tbe papers so transmitted by tbe Secretary of War is tbe following voucher, signed by tbe said Grayson:
    “ The United States to Simeon Kart, Ur.
    
    June 21st, 1861. To error in voucher No. 5, 2nd qr. 1861, being for 32,000 lbs. flour, at 12 cts. per lb., in lieu of 13 cts. per lb. for 12,100 lbs., as per contract June 28th, 1860 . 121 00
    And 20J cts. per lb., for 19,900 lbs., as per contract of Nov. 3rd, 1860. 1, 591 50
    And also error in voucher No. 9,2nd qr. 1861, being for 17,800 lbs. flour, at 12 cts. per lb., in lieu of 20J cts. per lb., as per contract Nov. 3rd, 1869. 1,513 00
    Making total in errors. 3,325 50
    
      u Error on tbe first item, 1 ct. pr. lb.; on second and third item, 8J cts pr. lb.
    “I certify on honor that the above account is correct and just; that this flour has been faithfully issued; that I have accounted for this flour by the receipts of officers duly qualified to receive the same; that it was purchased at the prices mentioned and contracted for (see contract of 28th June and 3rd Nov., 1860), and that Judge Hart is entitled to the amount specified on the face of this account; and I have not paid this account owing to the order of the Secretary of War, through the Commissary-General, of 11 th May, 1861.
    “John B. GbaysoN,
    
      “Brevt. Lt. Ool. & O. of S.”
    
    When this alleged voucher purports to have been issued the said Grayson was within the enemies’ lines. His accounts for the second quarter of 1861 have never been transmitted to nor filed in the Treasury Department, nor are there any vouchers on file for moneys paid out by him during that quarter.”
    The vouchers which this voucher assumes to correct have not been offered in evidence, nor is it proved that at the time Hart received the money on them he 'protested or objected to the amounts. Nor is there any evidence of the amounts paid to Hart on said vouchers, except that contained in the one now before the court. The certificate is on a different kind of paper and is simply pasted to the voucher; no proof is offered to •show when this was done, and there are no marks on the voucher itself to show that it ever came antler Grayson's observation.
    The court finds, as a resulting fact, that the defendants were not indebted to said Simeon Hart in his lifetime, and are not indebted to the claimant, his administrator, in any sum in consequence of any matters contained in or referred to in said last-named voucher.
    IN. The sum of nine thousand dollars, mentioned in the defendants’ plea of set-off, was retained by the defendants out of the sum of thirty thousand seven hundred and seventy-eight dollars and eighteen cents, paid by the defendants to McKnight & Richardson, on account of the indebtedness of the defendants to the said Simeon Hart, on the 31st day of January, A. D. 1873, and the defendant still retains the said sum of nine thousand • dollars to its own use. (13 C. Ols. R., 292.)
    X. All the vouchers upon which this action is based were issued in duplicate, but no evidence has been offered to account for the counterpart.
    XI. The said Simeon Hart has deceased intestate since the commencement of this suit, and the claimant, James P. Hague, has been duly appointed by the proper court, in Texas, to administer upon his estate.
    
      Mr. Jolm J. Weed and Mr. Thomas Wilson for the claimant.
    
      Mr. John S. Blair and Mr. Gherardi Davis (with whom was the Assistant Attorney■ General) for the defendants :
    The vouchers of Colonel Grayson and Lieutenant Treacy were executed and delivered after Hart had joined the rebellion. If Grayson at the time was within the Federal lines (Treacy remained loyal), the three vouchers have no vitality either as a cause of action or as evidence of a pre-existing indebtedness. Their delivery was inconsistent with the state of war then existing, and in violation of the law of nations; and this to a greater extent than ordinary intercourse between citizens, for they tended to increase the resources of the enemy, directly at the expense of the home government. (The Rapid, 8 Oran., 155$ Jonge Pieter, 4 0. Rob., 83; Kershaw v. Kelsey, 100 Mass., 575.) The case of Willeson v. Patteson and others (7 Taun., 439) is conclusive that the existence of the debt prior to the breaking out of hostilities in any way vitalizes transactions based thereon which violate non-intercourse.
    And there is no evidence of any pre-existing debt in this case except the vouchers themselves.
    If Grayson himself was within the lines of the enemy when his voucher was given, the voucher is equally void. (Jones's Case, 4 C. Gis. E., 197.)
    The Secretary of War could not, under § 1063, Eev. Stat. refer the Jackson voucher to this court, for after he had made, a requisition for payment of the same, his power in the premises was exhausted.
   Davis, J.,

delivered the opinion of the court:

This claim was transmitted to the court by the Secretary of War on the 13th November, 1873. The claimant rests his claim upon five vouchers so transmitted by the Secretary, and upon other documentary evidence from the War and Treasury Departments. Most of the transactions took place between March 3, 1861, and June 21,1861, in Texas cr on its borders. The claimant relies upon vouchers certified by officers of the Army in the usual form to establish the performance of the services and the delivery of the supplies sued for and the worth of the same.

It has been the practice in this court to regard a voucher in the official form, certified in the usual way by the properly qualified officer, as prima facie evidence of the facts stated in it. But we have never held it to be conclusive evidence of those facts. It is always open to the government to contradict it. And in a case like the present, where some of the transactions took place during the fermentation just preceding the resort to arms and the remainder after the war began, and two of the certifying officers went into the insurgent service, and where the claimant’s intestate was a purveyor to the enemies’ forces, and was at the same time supplying the United States, trying to earn an honest penny out of both, the court should scrutinize the evidence to support a prima facie case with some care.

The first claim rests upon the evidence of the certificate of Lieutenant Jackson. It is for 30,000 pounds of flour delivered at Fort Bliss on the 3d March, 1861. A voucher for it was audited and approved at the Treasury in May, 1861, and a requisition issued for payment. The requisition was never paid. It was probably recalled, as it bas disappeared. On tbe other band, it appears by tbe abstract of purchases made by Lieutenant Jackson for Fort Bliss, during tbe first quarter of 1861, that on tbe 3d March there was but one purchase made, which was for 32,000 pounds of flour, and that this claim was paid on the 27th March, 1861. It is possible that this fact might be explained. If we did not find insuperable objections in law on the other grounds to a recovery, we might be willing to give a new hearing for the purpose of an explanation. Under the circumstances we have put all the facts in our finding, and have found as a resulting fact that Ilart delivered to the United States at Fort Bliss, in March, 1861, no flour except the 32,000 pounds, for which he has been paid in full. If the Supreme Court, on appeal, holds that we are mistaken as to the law,, enough facts will be before it to enable it to shape its mandate as it may deem just to the claimant.

Thfe claim certified to in Jackson’s second .voucher is open to a similar objection and has been treated in a similar way.

The claim in the voucher certified to by Grayson is a claim for errors in former vouchers. It is open to grave objections as to its appearance and form, and purports to have been certified by Grayson after he was relieved and after he .had ceased to be a certifying officer. We have also in this case stated the facts in detail, and our conclusions as a resulting fact.

As to the supplies referred to in the two vouchers certified by Treacy, there is some collateral evidence that they were received by the defendants. We have also put this documentary evidence in the findings. So far, however, as the proof rests upon Treacy’s certificate, it is inadmissible, for that certificate is absolutely void. It was made after Hart had joined the rebels and was supplying their forces, which were gathered in Texas for the purpose of invading New Mexico. It was not within the power of a loyal citizen within the United States to give to an enemy who was at that time within the enemy’s lines, an evidence of debt which should be valid on the return of peace. The document on its face is void. The same may be said of Grayson’s certificate.

Some of the claims are open to a further fatal objection. By the joint resolution of March 2, 1867, which is embodied in the Devised Statutes, section 3480, Congress resolved—

“That until’othorwise ordered it shall be unlawful for any officer of the United States Government to pay any account, claim, or demand against said government which accrued or existed prior to the 13th day of April, A. D. 1801, in favor of any person who promoted, encouraged, or in any manner sustained the late rebellion; or in favor of any person who, during said rebellion, was not known to be opposed thereto, and distinctly in favor of its suppression; and no pardon heretofore granted or hereafter to be. granted shall authorize the payment of such account, claim, or demand until this resolution is modified or repealed: Provided, That this resolution shall not be construed to prohibit the payment of claims founded upon contracts made by any of the departments where such claims were assigned or contracted to be assigned prior to April 1,1801, to creditors of said contractors, loyal citizens of loyal States, in payment of debts incurred prior to March 1,1861.”

The alleged purchases set forth in both of Jackson’s and in one of Treacy’s vouókers were prior to April 13,1861. Those referred to in Grayson’s took place in April, 1861, but whether before or after the 13th does not appear, except by conjecture. A large part of the claims sued for came within the date named in that resolution. They were in favor of a person who promoted, encouraged, and sustained the rebellion. They were not assigned prior to April 1, 1861. Those claims therefore come directly within the terms of the act.

The claimant alleges that Hart was pardoned. The allegation was not traversed and the fact is not proved; that is, however, immaterial. If proved it would not authorize officers of the government to pay these claims. A ]iardon restores to civil rights, to the enjoyment of property, to the right to sue, to the right to do military duty, to the right to exercise the franchise, and to hold office, but it does not confer the right to take money from the Treasury of the United States, except as appropriated by Congress. “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” (Constitution, sec. ix, paragraph 7.) When Congress enacted that money appropriated should not be paid on a certain class of contracts to persons who had promoted the rebellion, the pardon of such persons would not have enlarged the powers of the ministerial officer if the statute had continued silent. But the statute provides for the contingency and says that the pardon shall not be construed to authorize the payment. It is entirely within the power of Congress to indicate a class of persons who shall not be paid out óf general appropriations, but shall come to Congress for their relief.

■ The Secretary of War, being precluded from paying this claim, could not transmit it here to seek its payment under the general appropriations made by Congress to pay the judgments of this court. . That would be making the Treasury do indirectly what Congress has said it cannot do directly. Were we to render judgment in the claimant’s favor on such claims, we should invite the officers of the Treasury to do an act, under cover of our judgment, which Congress plainly intended that they should not have authority to do in any contingency.

We are not required to determine whether we should be authorized to render judgment against the government on this class of claims if the claimant had appeared here on his own motion. We confine ourselves to this: that when the head of an executive department is forbidden by law to pay a.claim, there can arise no disputed fact, no controverted question of law, nothing in which our decision can affect a class of cases, nothing in which it can furnish a precedent for the future action of an executive department, nothing in which any authority, right, privilege, or exemption can be claimed or denied under the Constitution of the United States, to warrant the transmission of the claim to this court, or to confer upon this court a jurisdiction, derived through the department, which is expressly denied to the department. The duty of the executive officer is to deny the claim irrespective of all such consideration. He has no power to assist the claimant to any other remedies.

The court is therefore without jurisdiction of the claims which come within the statute; and for that reason as to those claims, and for the reasons already given as to the others, the judgment of the court is that the claimant’s petition be dismissed.  