
    PALMER G. WOOD v. THE UNITED STATES.
    [No. 15312.
    Decided December 16, 1889.]
    
      On the Proofs.
    
    A lieutenant in the Army acting as assistant commissary ancl in the line of his duty is robbed by masked highwaymen of Government funds. The loss is without fault or negligence. It occurs more than six years before the petition is Sled, but the suit is begun within six years from the statement of an account against the claimant by the accounting officers.
    I.The Revised Statutes (§ 1140) enumerate the officers of the Subsistence Department; but section 1261, and the Army Regulations 1876, § 46, contemplate and provide for acting commissaries.
    II.The court reiterates former decisions that an acting commissary of subsistence intrusted with Government funds is entitled to relief from responsibility for their loss. Rev. Stat., $ 1059, 1062.
    III. The failure of a disbursing officer to give a bond does not preclude him from relief for lost funds.
    IV. It has been determined by the Supreme Court that the statute of limitations does not begin to run against a disbursing officer, charged with funds which were lost without fault or negligence on his part, until an account so charging him has been stated by the accounting officers.
    
      The Reporters’ statement of tlie case :
    The following are the facts of the case as found by the court.
    I. On the 6th of October, 1878, the claimant was a second lieutenant in the Twelfth Regiment of Infantry in the Army of the United States, and was acting assistant commissary of subsistence. As such commissary he had in his possession funds belonging to the Commissary Department of the Army, and was on duty at the conclusion of the campaign against the Bannock Indians en route to join his company at Fort Mojave, Ariz.
    II. Early in October, 1878, the claimant, at Whipple Barracks, was ordered by his department commander to proceed, as commissary, to Fort Mojave, Ariz. He started by stage teams for the latter place by the only existing route, with ‘$377.19, subsistence money of the Governments, in his posession. On the 6th day of October, 1878, the team was proceeding at a walk up hill through the sand, when suddenly the stage was surrounded by six masked highwaymen. Their movements were so sudden that they had their guns leveled upon the claimant before he realized the situation. They dragged him from the stage, bound him, rifled his person, ransacked the stage, took said funds from his trunk, which they broke open, and made good their escape. He was the only passenger. The suddenness of their attack rendered him powerless to defend the public money in his charge. The money thus captured or stolen has never been recovered, and the loss -was while he was in the line of his duty, and without fault or negligence on the part of the claimant.
    III. The claimant reported the facts to the Commissary-General of Subsistence, and the following correspondence took place:
    ■“Ho. 1.] “ CAMP Ybp.de, A. T., Dec. 23,1878.
    ■“To the COM’S’Y-GENERAL OE SUBSISTENCE, U. S. A.,
    
      u Washington City, D. G.:
    
    “ Sir : I have the honor to transmit herewith my account current for the month of October, 1878, accompanied by an affidavit.
    “ You will please observe, as shown by the affidavit, that the funds, balance on hand, was taken from me by stage robbers ; an act, of course, I could not prevent under the circumstances.
    “ The original I retain. Please inform me what further steps ■are necessary to be taken, if any.
    “ I am, very respectfully, your obedient servant,
    “P. G. Wood,
    “ 2d Lt., 12th Inf.”
    
    “War Department,
    “ Oeeice Commissary General oe Subsistence,
    “Ho. 2.] “ Washington, D. O'., Dec. 9,1879.
    “ Sir: Referring to your account current for October, 1879, it is observed that you do not report yourself thereon as accountable for the subsistence funds ($377.19) reported as stolen Uct. 8,1878, or the steps, if any, taken to obtain relief from accountability therefor. You will in future please forward a separate account current for the above-named sum, as the funds appertain to ‘ the appropriation for subsistence of the Army for the ■fiscal year 1879,’ reporting thereon as indicated above.
    “ If relief from accountablity for the funds referred to is not obtained -within a reasonable time it will become necessary to recommend that the amount be stopped from you pay.
    “Yery respectfully, your ob’d’t servant,
    “ R. Maceeely,
    “ Com.. Gen’l Subs'e.
    
    “Lt. P. G. Wood,
    
      u12th Inf., A. A. C. S., Fort Mojave, Ariz.”
    
    “ War Department,
    “Oeeice Commissary-General oe Subsistence,
    “ Ho. 3.] “ Washington, I). 0., June 25, 1880.
    “ Sir : The accompanying copy of a letter from this office of Dec. 9, 1879, is inclosed you, with the information that the separate accounts current, with reports thereon, as indicated-in the letter referred to, have not been. received at this office. Please forward them.
    “ Your attention was invited to above-named letter of December 9, 1879, in letter of December 23, 1879.
    “Yery respectfully, your ob’d’t serv’t,
    
    “R. Maceeely,
    “ Com. Gen’l Subs’e.
    
    “Lt. P. G. Wood,
    “ 12í7¡, Inf., A. A. C. S., Fort Mojave, Ariz.”
    
    
      “ Ho. 4.] ' “ War Department,
    “ Oeeice Commissary-General oe Subsistence,
    “ Washington, D. C., July 27, 1880.
    “ Sir : Referring to your letter of the 13th inst., wherein you inclose an account current for Oct., 1879, of funds of fiscal year 1879, reported as stolen from you by stage robbers Oct. 6,1878, and inquire if an account current for each month since Oct., 1879, should be forwarded, you are respectfully informed that accounts current for the past months need not be forwarded, but in future accounts should be rendered monthly until relief from accountability for the funds referred to is obtained.
    “ Yery respectfully, your ob’d’t serv’t-,
    “R. Maceeely,
    “ Com. Gen’l Subs’e.
    
    “ Lt. P. G. Wood,
    
      u12th Inf., Fort Mojave, Ariz.”
    
    “Ho. 5.] “War Department,
    “Oeeice Commissary-General oe Subsistence,
    “ Washington, D. G., July 26, 1883.
    “ Sir : Referring to the letters from this office of Dec. 9,1879, June 25, and July 27,1880, you are respectfully informed that the records of this office do not indicate that the accounts current have been received, which you were informed in the letter of July 27,1880, should be rendered monthly until relief from accountability for the funds reported as stolen from you Oct. 6, 1878, is obtained.
    “ If an account current for July, 1883 (arid monthly thereafter), accounting for the funds referred to, ah indicated in the letter of Dec. 9,1879, a copy of which was sent you June 25, 1880, is not received, a recommendation will be made that the amount ($377.19) be stopped from your pay.
    “Attention is invited to the letter from this office of April 12, 1882, pointing out the source through which relief may be obtained.
    
      “Very respectfully, your obe’t serv’t,
    “R. Maceeely,
    
      “Com. Gen’l Subs'1 e.
    
    “ Lt. P. G. Wood,
    “ 12th Inf., Fort Niagara, Youngstown, N. Y.”
    
    
      “No. 6.] “Fort Niagara, New York,
    
      “Aug’st 3, ’83.
    “ To the Commissary-General Subsistence, U. S. A.,
    “ Washington Oity, Z>. G.:
    
    • “ Sir : I have the honor to acknowledge the receipt of your letter of July 26, ’83, calling my attention to letters sent from your office of Dec. 9, 1879, June-25, and July 27, 1880, relative to my failure to account (by monthly account current) for $377.19, subs, funds stolen from me on Oct. 6,1878, by stage robbers.
    “ Some months ago I placed this matter in the hands of Judge Warden, of Washington, to settle for me. He wrote me that he would give his attention to the subject. I have not heard from him since. If I find that he can not do anything with the case I will make another effort the coming winter to get relief through Congress.
    “Inclosed please find account current for July, 1883, as directed in your letter.
    “I am, very respectfully, your obedient servant,
    “P. G. Wood,
    “ 1st Vt, 12 Infthj, A. V. S.” .
    
    IV. The following proceedings took place in the offices of the accounting officers of the Treasury:
    “No. 1.] “Treasury Department,
    “ Third Auditor’s Opeice,
    “ Washington, D. 0., Feb’y 9,1886.
    “ Sir : Your subsistence^iccount for September, 1885, having reached this office it is found you have charged yourself with $377.19, ‘funds stolen by stage robbers, near Date Creek, A. T., October 6,1878.’ It further appears from a remark on the face of the account current that you are ‘seeking relief through Congress! I have to remind you that the amount has been standing against you several years, and that as the accounting officers under existing law have no power to relieve you from accountability for the funds, that the amount should be deposited without delay as a ‘repayment to the appropriation subsistence of the Army fiscal year 1878! Unless evidence of repayment is filed in this office within thirty days from the date of this notice a like amount will be reported for stoppage against your pay.
    “Very respectfully, etc..
    “John's. Williams,
    “ Auditor.
    
    “ Palmee G. Wood,
    
      u Lt. 12th Inf., U. 8. A., Ft. Niagara, N. Y.”
    
    “No. 2.] “ Fort Niagara, N. V., M’ch 1th, 1880.
    “To the Hon. the Third Auditor Treasury U. S.,
    Washington, D. O.:
    
    “Sir: I have the honor to acknowlege the receipt of your letter of Feb. 9th, ’86, requiring me to furnish evidence of repayment of the sum of $377.19 (appearing on my account current for Sept., 1885, as stolen by stage robbers) within thirty days from the date of above notice.
    “It is respectfully submitted that on M’ch 1st, ’86, a bill was introduced in the House and referred to the Committee on Claims, relieving me from responsibility.
    “I have good reason to believe that this bill will pass the present session of Congress. In view of the present status of this matter I would request that the time you have decided upon be extended to the adjournment of this Congress.
    “Iam, very respectfully, your obedient servant,
    “P. G. Wood,
    “1st Lieut. 12th Inf.”
    
    “No.3.] “Treasury Department,
    “Third Auditor’s Office,
    “ Washington, D. 0., April 19th, 1886.
    “ Sir : Referring to a letter addressed to you from this office on the 10th ultimo, and in further reply to your favor of the 7th ultimo, I have to remind you that up to the present you have failed to file in this office legal proof of the alleged robbery. The only paper filed in support of your statement that certain public funds for which you were accountable were stolen is a copy of an affidavit made by one John Henry, before one Ed. W. Wells, who signs as notary public, but whose official character has not been established, the certificate of the secretary of the Territory, or by any other evidence. I would state in this connection, it is unusual for Congress to afford relief from accountability for the loss of public funds unless relief is recommended by the accounting officers of the Treasury.
    “ The time fixed in my letter of the 9th of Febr’y last has already expired, but in consideration of the request made in your favor of the 7th ultimo, received in my absence, you áre informed the proposed action on the part of this office will be deferred until thirty days from the date of this letter.
    “ Very respectfully, etc.,
    “Jno. S. Williams,
    “ Auditor.
    
    “P. G. Wood, . .
    “ Lt. 12 Inf., U. 8. A.,
    
    “ Fort Niagara, Youngstotvn, N. Y.
    
    “ No. 4.1 “ Fort Niagara, N. Y.,
    “ April 21 st, 1836.
    “ Gen’l Jno. S. Williams,
    “ Third Auditor TJ. 8. Treasury,
    
    “ Washington, Z>. G.:
    
    “ My Dear Sir : I have the honor to acknowledge the receipt of your letter of the 19th inst., referring to my efforts to obtain relief for the loss by robbery of certain subsistence , funds. While in Washington last March, Congressman Morrow iniroduced a bill in the House for my relief, and at that time 1 placed in his possession all the papers I had in support of my case; consequently, now I have nothing for file in your office.
    “ I have reasonable hopes of success through Mr. Morrow; not, however, without the full co-operation of your office. I would earnestly request that further action by you be delayed until it is seen what Congress will do with my case.
    “ I am, very respectfully, your obedient servant,
    “P. G. Wood,
    , “ 1st Lieut., 12th InfHhj, A. 0. 8.
    
    “ No. 5.] “Treasury Department,
    “Third Auditor’s Oeeioe,
    “No. 6932. Not bonded.] ‘■'■July 23rd, 1886.
    “ I certify that I have examined and adjusted the subsistence account of Palmer G. Wood, lieut., 12th U. S. Infantry, A. C. S.J at Fort Niagara, N. Y., for 3rd quarter, 1885, and find the following balances due the United States under appropriations mentioned:
    Subsistence of the Army 1879. $377.19
    Subsistence of the Army 1885 . 63.35
    Subsistence of the Army 1886 . 94.94
    Total.-. 535.48
    “ Five hundred thirty-five dollars and forty-eight cents, as appears from the statements and' vouchers herewith transmitted for the decision of the Second Comptroller of the TreaS' ttry thereon.
    “ JNO. S. WILLIAMS,
    “ Auditor.
    
    “ To Hon. I. II. Maynard,
    “ Second Comptroller of the Treasury.
    
    “Second Comptroller’s Ofeice.
    
      “ I admit and certify the above balance this 8th day of September, L886.
    “Rich’d R. McMahon,
    
      “Acting Second Comptroller.”
    
      Mr. George A. King and Mr. John Mullan for the claimant.
    The facts bring the case fully within the provisions of the law, and the claimant is entitled to a decree crediting him with the sum lost, $377.19. {Soils v. United States, 17 C. Cls. R., 189 ,• Scott v. United States, 18 O. Cls. R,. 1; Broadhead v. United States, 19 O. Cls. R., 125; Hoyle v. United States, 2L C. Cls. R., 300.)
    Nor is the case within the bar of any statute of limitations. The loss occurred on the 6th of October, 1878, the petition was filed on t'he 6th of October, 1886. During all that period the claimant was and still is charged upon the books of the Treasury with the amount so lost, and has never refunded the same, though requested on several occasions so to do. This brings the case within the decision in United States v. Clark, (96 U. S., 37, 43, 44).
    
      Mr. James H. Nixon (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    When the statutes define and designate who may receive or disburse public money, all are excluded irom any right to act in such fiduciary capacity except those designated by the statute, and no other statute should be construed to grant such right unless the purpose be expressed in clear language. (See Potter’s Dwarris, 275; 11 Rep., 59 and 64.) Section 1140, Revised Statutes, makes no provision in the Subsistence Department for any one with rank below that of captain of cavalry.
    The claimant was only a first lieutenant of infantry. He had never given any bond to the Government as required by section 1191, Revised Statutes, and the safeguards provided by Congress for the protection of the Treasury against loss from those who handle the public money didnotexistin the case of theclaim-ant. Such a legal relation between the claimant and the Government must exist before the claimant can invoke the benefit of the disbursing officers’ act, as it is called. This principle was decided in the case of JEw parte Randolph, 2 Brockenbrough’s United States Circuit Gourt'Reports, p. 447 (the pages bearing on this case being from 481 to 484).
    If any duly-appointed commissary of subsistence, who has given bonds to the Government according to law, sees fit to intrust funds for which he is accountable to a line officer, as in this case, any loss occurring is a matter to be adjusted between him and the line officer, who is not by law charged with the duties of a disbursing officer, and against whom the Govern-has no right of action except a civil personal action for the recovery of the money.
    Any other view of the law would permit the disbursing officers of the Government who are charged with grave responsibilities and for the proper discharge of which they give bonds to the Government, to call to that work and duty from time to time such officers as were never designated by any law of Congress to do such duty, and against whose losses, by carelessness or otherwise, the Government has no adequate protection. •
    It is no answer to this position to say that it has been the practice of the officers of the War Department to detail line officers for such duty, for the practice of the Departments can not stand if contrary to the terms of the law, nor control the decisions of the courts.
    The carelessness of the claimant prevents this case from ooming under any of the cases cited by the brief of counsel for the claimant. In the case of Robbs v, The United States (17 C. Gis. R., 189) the disbursing officer placed his funds in a national bank, which was a designated depositary of public money. The bank failed. Of course, no fault or negligence could be imputed in that case. In the case of Scott v. The United States (18 O. Gis. R., p. 1) there was no negligence, the loss occurring in a tent surrounded and guarded by soldiers. In the other case (Roijle v. The United States, 210. Cls. R., 300) the loss was by fire destroying a safe supposed to be secure.
    
      In tbe case of Broadhead v. The United States (19 C. Ols. B.r 125), there was robbery and murder in the daytime, when it was the proper time to travel, and the only safe time, and it was an unavoidable disaster. All the foregoing cases were held to be without fault or negligence on the part of the claimant, but the circumstances in each case, we contend, were so different from this as to render them in no sense parallel cases.
    The statute of limitations in its application to cases like the present has been ruled upon in the case previously cited of Hobbs v. The United States and Scott v. The United States. We think the statute should apply in this case under the ruling in the latter case in 18 O. Ols., p. 1, which says the statute of limitations does not begin to run until there has been an author-itativé demand of payment, or a refusal by the accounting officers to allow a credit in his account.
   Bichakdson, Oh. J.,

delivered the opinion of the court:

The claimant, a second lieutenant in the Army, was an acting assistant commissary, when, traveling as a passenger in a stage, in the line of his duty, on the 6th of October, 1878, the stage was suddenly surrounded by six masked highwaymen, who leveled their guns at him, dragged him from the stage, bound him, rifled his person, ransacked the stage, broke open his trunk, robbed him of $377.19, Government funds, belonging to the Commissary Department of the Army, and made their escape. The money has never been recovered, and the loss, as the court finds, was without fault or negligence on the part of the officer.

The claimant brings suit under the provisions of Bevised Statutes, section 1059, clause 3, and section 1062, for relief from responsibility on account of capture, while in the line of his duty, without fault or negligence on his part, of the Government funds in his charge as aforesaid and for which he is held responsible.

These facts present a meritorious case for the claimant, and we have only to consider whether there is anything in the law to prevent the court from entering a decree in his favor, as, prayed for.

The defendants make several objections:

1. Thai the claimant was not a “ paymaster, quartermaster^ commissary of subsistence, or other disbursing officer,” entitled to the relief authorized by Eevised Statutes, sections 1059 and 1062, upon which this suit is founded. In support of' this allegation they refer to Eevised Statutes, section 1140, which specifies of what officers the Commissary Department of the Army shall consist, and they insist that these officers are the only “ commissaries ” to whom the relief provisions apply. That section is as follows

“Sec. 1140. The Subsistence Department of the Army shall1 consist of one Commissary-General of Subsistence, with the-rank of brigadier-general; two assistant commissaries-general of subsistence, with the rank of colonel of cavalry; two assistant commissaries-general of subsistence, with the rank of lieutenant-colonel of cavalry; eight commissaries of subsistence, with the rank of major of cavalry; and sixteen commissaries of subsistence, with the rank of captain of cavalry.”

In our opinion this is too limited a construction of the statutes and does not cover the whole case. Although an acting assistant commissary is not named in that section, the employment of an officer in such capacity and with that title is elsewhere amply provided for.

The Army Eegulations since 1866, if not earlier, have contained an article, which is now 47 of the edition of 1876, page 13, as follows:

“ 47. In the absence of a regimental quartermaster or commissary of subsistence, an officer may be detailed as acting assistant quartermaster or acting assistant commissary at a post or station. Copies of orders making such details will be forwarded at their date to the staff bureau concerned.”

In section 1261 of the Eevised Statutes among the officers-named as entitled to pay is the following provision:

“Acting assistant commissary, onq hundred dollars a year, in addition to pay of his rank.”

Two officers so designated have maintained actions in this court for pay under that statute (Morrison’s Case, 13 Ct. Cls. R., p. 1, affirmed on appeal, 96 U. S. R., 232; Grealish’s Case, 20 Ct. Cls. R., p. 486).

Two other officers, detailed as acting assistant commissaries, have brought suits under the provisions of the statute now under consideration for relief from responsibility on account of the loss of funds belonging to the Commissary Department of' the Army intrusted to tbeir charge and have obtained decrees in their favor (Scott’s Case, 18 C. Cls. R., 1; Hoyle’s Case, 21 C. Cls. R., 300).

The statute includes among those who are to have its benefits not only paymasters, quartermasters, and commissaries of subsistence, but also “ other disbursing officers.” The claimant, having funds of the Commissary Department intrusted to him for expenditure, was practically a disbursing officer, as much ■so as though he had been a full commissary, whom the statutes •recognize as such.

The defendants insist that, as the claimant had never given bond as required by Revised Statutes, section 1191, as appears by the account stated against him by the accounting officer, he was not qualified to act at all.

It was held by the Supreme Court, in the case of United States v. Bradley, 10 Peters, 361, as to paymasters, that—

“ The giving of the bond was a mere ministerial act for the .security of the Government, and not a condition precedent to his authority to act as paymaster. Having received moneys as paymaster he must account for them as paymaster.”

This doctrine applies with equal force to commissaries acting as disburing officers as to paymasters.

The claimant received the funds in question as acting assistant commissary; the War Department so treated him ; the accounting officers of the Treasury stated an account against him as such, charging him with this and other subsistence money for which he is held responsible (Finding 1Y, Ho. 5), and, in our opinion, he is entitled to the benefit as a commissary or other disbursing officer of the statute for the relief of such officers from responsibility for funds lost by capture.

2. It is further insisted on the part of the defendants that, the claim is barred by the statute of limitations (Rev. Stat., -sec. 1069), because the petition was not filed until October 6, 1886, more than six years after the cause of action accrued.

The application of that statute to cases like this has been clearly defined by the Supreme Court in Clark’s Case (96 U. S. R., 37), where it was held that—

“ Until the accounting officers of the Treasury had refused to recognize the sum lost as a valid credit in the settlement of his accounts there was no occasion to apply to the Court of Claims; and the statute, if applicable to this class at all, did not begin to run until then.
“ In the language of the statute, the officer is not held responsible for this amount until the accounting officers reject it as a credit, and it is only when he has been or is so held that he is authorized to sue in the Court of Claims to establish his defense.”

The whole subject is fully reviewed in Scott’s Case (18 C. Cls. R., 1), and needs no further exposition.

The loss occurred in 1878. Any action of the Commissary-G-eneral before the matter reached the Treasury Department would seem not to bé material under the rule laid down in Clark’s Case, and if it were, he made no demand for repayment of the money. He wrote to claimant December 9, 1879, calling attention to the fact that in his October account current he did not report himself accountable for the stolen funds, nor the steps, if any, taken to obtain relief from responsibility and adding that if such relief is not obtained within a reasonable time it would become necessary to recommend that the amount be stopped from his pay. Again, July 26, 1883, he wrote:

“ If an account current for July, 1883, and monthly thereafter, accounting for the funds referred to, is not received, a recommendation will be made that the amount, $377.19, be stopped from your pay.” (Finding III, Uos. 2, 4.)

The recommendation of stoppage of pay which the Commissary-G-eueral contemplated was to be made to the Treasury Department, where the law requires 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 as creditors, shall be-settled.” (Rev. Stat., § 236.)

Official action in the matter was not taken by either of the accounting officers of the Treasury until February 9,1S86, when the Third Auditor wrote to the claimant that his subsistence account for September, 1885—

“Having reached thisoffi.ee, it is found you have charged yourself with $377.19, funds stolen by stage robbers near Date Creek, A. T., October 6, 1878. * * * Unless evidence of repayment is filed in this office within thirty days from the date of.tills notice a like amount will be reported for stoppage against your pay.” (Finding IV, Ho. 3.)

It was not till July 23, 1886, that an account was stated by 'the Third Auditor charging the claimant with the $377.19, and sent to the Second Comptroller for his decision thereon as required by law (Rev. Stat., § 266, clause 3). The Comptroller admitted and certified the account so stated September 8,1886. (Finding IV, Ho. 5.)

According to the decision of the Supreme Court, this latter date was the time when the statute of limitations began to run, if at all, and the petition was filed within the six years therein allowed.

A decree will be entered in the usual form for said sum of $377.19 to bo allowed the claimant by the accounting officers of the Treasury in the settlement of his accounts.  