
    JOHN FINN v. THE UNITED STATES.
    [No. 16951.
    Decided June 8, 1891.]
    
      On the Proofs.
    A private act refers a claim with directions that if it appear “ That the said horses and mules were duly inspected and accepted hy an officer of the United States,” “ under the regulations, practice, or custom in force in and observed by the quartermaster department at St. Louis,” and “ thereby became theproperty of the United States, the court shall render judgment for the agreed price.” It appears that the proper officer agreed to purchase the claimant’s horses, deliverable on inspection in the country beyond the military lines; that the chief inspector ordered a deputy to inspect and accept, who did so, taking possession, at the same time.
    
      I. Where a private act directs that judgment he given for the claimant if certain horses were inspected and accepted “ J>y an officer of the United Stales, under the regulations, practice, or custom in force in the Quartermaster Department ” at the time and place of sale, the intent is that the inspection shall he hy the proper officer, not necessarily in person, hut through his deputies, according to the usage of the department.
    II. Where a statute directs judgment, if it appear that the purchase of certain horses was made according to “the practice or custom” of the Quartermaster Department, and the practice at the time was to purchase horses payable on delivery without written contracts, the case is taken out of the statute requiring contracts to be in writing. (Rev. Stat., § 3744.)
    
      The Reporters’ statement of the case:
    The following are the facts of this case, as found by the court:
    I. In October, 1863, and at the time of the transactions set forth in the third .finding, the claimant, John Finn, and one William P. Milliken were partners in trade, engaged in the purchase and sale of horses and mules, under the firm name of John Finn & Co. During the latter part of the year 1866 Mil-liken withdrew from the firm, and in consideration of an amount of money paid to hitn by the claimant conveyed and relinquished to him all his interest in the firm, including all book accounts and choses in action. No other or more specific assignment of his interest in this claim against the Government was made by him. John Finn, plaintiff herein, is the successor of the firm of John Finn & Co.
    II. During the years 1862 and 1863 the practice and custom of the Quartei master Department, under Gen. Eobert Allen, assistant quartermaster-general, and Gen. William Myers, chief quartermaster of the Department of the Missouri, both stationed in St. Louis, in regard to the purchase of horses and mules, were as follows :
    It was the policy of the Quartermaster Department to purchase horses and mules as far as possible in the State of Missouri and beyond the military lines, the purpose being to draw them out of the reach of the enemy. This cast upon the contractors additional risk, both personal and pecuniary.
    The practice and custom of the quartermaster department at St. Louis, Mo., at the time this claim originated, of which the firm of Finn & Co. were cognizant and in which they had participated as contracting parties in previous transactions, were as follows:
    The chief quartermaster, General Myers, appointed a number of horse inspectors, chief of whom was Hiram G. Finch, he being also the principal inspector at the general depot in St. Louis, and having power to appoint deputies when in his judgment the urgency of the case required it. Contracts were then made from time to time with different parties, pursuant to which the latter went into the country in search of horses and mules, which they bought or agreed to buy on their own account, but subject to Government inspection. When a number of horses and mules had been thus assembled at a designated place word was sent to the quartermaster’s department in St. Louis, and then an inspector or subinspector was sent, to inspect and accept the animals. It was not convenient for inspectors and subinspectors to carry branding irons with them at all times, and the horses and mules were branded or not according to these circumstances. Usually the horses were branded after arrival in St. Louis. When the horses or mules had been thus inspected and accepted by the subinspector, whether branded or not, the contractor paid his subcontractors, or the persons from whom they were purchased, for the animals, and they were thenceforth regarded by all contracting parties as the property of the United States. The act of the inspector or subinspector in inspecting and accepting was always considered by the quartermaster’s department, by the contractor, and by the subcontractors as binding upon the Government, and the vendors thereupon relinquished all control over the horses or mules, and they were forwarded at the risk and expense of the Government to the general depot at St. Louis, and upon their arrival the quartermaster’s department would issue the usual vouchers. This was necessary, as contractors would not risk bringing stock across the country in Missouri, as the enemy was moving about there at that time; so that to get stock thence the quartermaster’s department was obliged to accept the animals through the subinspector at the point where they were inspected.
    III. On or about the 1st day of October, 1863, an informal agreement was entered into between the quartermaster’s department in St. Louis and the firm of Finn & Co., as was then the practice and usage, whereby it was agreed that the latter should send out and buy horses and mules in Missouri, deliverable in. Sedalia, for which they should receive $153.70 each. On or about the 10th of October, 1863, Finn & Co. notified the quartermaster’s department that they had thus collected a number of horses and mules at Sedalia, and requested that an inspector be sent to inspect and receive the animals. The military department was then in great need of horses and mules, an exigency requiring their immediate purchase. Accordingly Chief Inspector Finch ordered a subinspector to proceed as speedily as possible to Sedalia and inspect these. This subinspector or deputy inspector did'so, inspecting and accepting 32 horses and 94 mules. Not having had time to bring the proper branding iron with him, whereby horses and mules purchased by the quartermaster’s department are usually branded U. S. on the left shoulder, he branded with a private brand on the neck the letter P, the purpose being to identify them. The agent for the contractors then paid the subcontractors for such animals as had passed inspection, and the sub or deputy inspector, assisted by the contractor’s agent, started the drove for Tipton, where they expected to get railroad transportation for it to St. Louis. Before they reached Tipton they, together with 24 horses and 78 mules, were ca¡> tured by the enemy; and for this stock neither the firm of Finn & Co. nor the claimant has been paid. The action of the deputy inspector at Sedalia, under the practice, custom, and usage then in force and observed by the quartermaster’s department at St. Louis, Mo., was regarded by all parties as transferring title to the horses and mules to the United States. There was no delivery or acceptance of the stock except as above stated by the parties’ agents before capture, but the subinspector took charge of it after inspection, and although he did not assume to formally accept the animals for defendants, his inspection, branding, and acceptance were mutually understood to be final.
    IY. The claim for the 24 horses and 78 mules, amounting to $15,677.40, was first presented to any Executive Department by being filed in the office of the Quartermaster-General July 3, 1874. The Quartermaster-General decided adversely to the claim, and transmitted it to the accounting officers of the Treasury. On the 14th day of July, 1879, the Third Auditor disallowed the claim and the Second Comptroller concurred. But on the 20th day of July, 1836, the Second Comptroller ordered that the case be opened because of pewly discovered evidence produced by the claimant, and on the 13th of August, 1886, the Secretary of the Treasury transmitted it to this court, under Bevised Statutes, section 1063. This court found the facts and dismissed the petition for want of jurisdiction (22 C. Cls. 3 B., 497). An appeal was taken by the claimant to- the Supreme Court, where the judgment of the Court of Claims was affirmed (S. C., 123 U. S. B , 227). The claim had previously been transmitted to this court by the Committee on War Claims, House of Bepresentatives, and the petition had been dismissed for want of jurisdiction. (Congressional Case 127).
    
      Mr. A. R. Garland and Mr. Reber J. May for the claimant.
    
      Mr. Renry M. Foote (with whom was Mr. Assistant Attorney• General Cotton) for the defendants:
    It will be contended, that from the evidence claimant has not established either of the conditions' mentioned in the act. Henry 0. Finch, who, it is claimed, inspected these animals, was not at the time an officer of the United States. And in the manner of inspecting (using the private brand) he did not follow the custom which prevailed, as on all other occasions he branded them as the property of the United States. He himself states that, when called upon by his father to inspect these horses and mules for claimant., he was engaged in buying stock for different parties — not for the Government, but for parties interested in Government contracts; and that in the winter of 1862-’63 he bought stock for the claimant.
    He did not take possession of the property for the United' States, and only used the private brand on his own judgment. He gave no receipts or vouchers to claimant or his agent, as was customary; and we contend that, even though the animals had been delivered at St. Louis, claimant would not have been entitled to a certificate of inspection (upon which a voucher for payment only could have been obtained) until the property had been branded as that of the United States, and this was never done. The situation might have been otherwise in this particular had the Government actually taken and used the property; but Finch states that he never took possession, of it for the United States.
    If any custom, regulation, or practice prevailed and was observed by the quartermaster’s department at St. Louis in the purchase of horses which authorized a civilian to inspect and use a private brand in such purchase our attention has not been called to it in the preparation of this case; and if the claim, as presented under the act of Congress, required argument to show a want of authority in Henry G. Finch in appointing his son, Henry C. Finch, a deputy inspector, we should rely upon the Fremont Case (2 C. Oís. R.¿ p. 32) and subsequently considered in 7 id., page 82, but we are relieved from this by considering the mandate of the statute, which provides for all that was determined in the cases cited: That where the law requires that authority to bind the G-overnment shall be exercised by an officer, such authority can not be delegated to a civilian.
    The Government never had possession of the property. Whatever may have been the relations which existed between Henry C. Finch and the United States on previous occasions, it is clear that no official relations existed when he inspected or attempted to inspect this property. He was when called upon engaged in the purchase of stock for contractors, and only a short time previously had purchased horses for the claimant. Will it be urged that his acts in this dual capacity are binding upon the Government"?
    The custom to which General Meyers refers must be considered as relating to the duties of deputy inspectors regularly qualified to perform such services, and it is claimant’s duty to show by indisputable testimony that Henry 0. Finch had assumed the duties and obligations of an officer of the United States before performing this service for the Government.
    It is to be observed that the words, “under the regulations, practice, or custom in force in and observed by the quartermaster’s department in St. Louis, Mo.,” found in the statute relative to the service of inspection, do not dispense with the necessity that a contract shall have been made for the purchase of this stock in the manner required by law prior to such inspection.
    We therefore contend that under the Act of June 2,1862 (12 Stat., 441), a written contract should have been executed for the purchase of these horses and mules, and inasmuch as it was not, the verbal contract is void; that the contractor was bound to know the law, and not having complied with it, he can not recover.
    
      {Henderson's Oase, 4 C. Gis. R., 75; Thompson v. The United States, 9 0. Cls. It., 187; Clark v. The United States, 95 IT. S. R., 539; South Boston Iron Company v. The United States, 118 U. S. R., 37.)
    Although it may have been the intention by the private act to ratify an irregular and illegal practice in regard to inspecting property by officers'of the United States, still the statute falls far short in this particular when applied to the act performed by a civilian, and it would violate every rule of construction to maintain that the single object to be attained, even were it accomplished, thereby vested title in the United States to the property in disregard of the provisions of the act of June 2,1862.
   Davis, J.,

delivered the opinion of the court:

For the third time this case is before us. It was first transmitted to this court by the Committee on War Claims of the House of Representatives in accordance with the provisions of the act of May 3, 1883, known as the Bowman Act (22 Stat. L., 485), and was. dismissed for want of jurisdiction for this reason: “By the authority of section 1059 of the Revised Statutes, taking the facts as stated in the petition to be true (which, however, the Government controverts), the claimant might have brought his action in this court at any time within six years after the claim accrued. This he failed to do.” After-wards the claim was transmitted here by the Secretary of the Treasury under the provisions of section 1063 of the Revised Statutes; it was again dismissed for want of jurisdiction, as barred by the statute of limitations, and upon appeal this decision was affirmed by the Supreme Court (123 U. S. R., 227). Now the case is before us by virtue of the following special act of Congress:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of John Finn, of Saint Louis, Missouri, successor to the firm of John Finn and Company, for the value of twenty-four horses and seventy-eight mules, be, and the same is hereby, referred to the Court of Claims, with jurisdiction to hear, determine, and allow the same; and if it shall appear to the satisfaction of the said court that the said horses and mules were duly inspected and accepted as suitable for the service for which they were intended by an officer of the United States, under the regulations, practice or custom in force m and observed by the quartermaster’s department at Saint Louis, Missouri, in the purchase of horses and mules for the Government at the time the said claim originated, and that the said horses and mules thereby became the property of the United States, the court shall render judgment for the agreed price of said horses and mules: Provided, That said court shall hear and determine said claim, notwithstanding the bar of any statute of limitation to the contrary: And provided further, That all the testimony taken in Congressional .Case number one hundred and twenty-seven, and also in case number fifteen thousand two hundred and twenty-three, upon the subject of this claim, now on file in the office of the clerk of the Court of Claims, may be used and read in evidence upon the hearing and trial of the claim herein mentioned; subject, however, to the objections of either party as to its competency, relevancy, and materiality.
“Approved, February 28, 1891.”

It is urged by the defendants that the horses and mules alleged to have been purchased by the Government must have been inspected by “an officer of'the United States;” that they were not in fact inspected by “ an officer,” but by an individual holding no official position, and therefore the claim can not take the benefit of this statute.

We think that the construction thus sought to be attached to the act is too narrow. The statute prescribes that the stock shall have been inspected and accepted “ by an officer of the United States,” but it also states how this inspection and acceptance shall have been made; that is, under the “regulations, practice, or custom in force in and observed by the quartermaster’s department at St. Louis, Mo., in the purchase of horses and mules for the Government at the time said claim originated.” This senteuce in the act should be read as a whole, without separating from it the words “ by an officer of the United States ” and there stop ping; the following- and qualifying words contained in the same sentence should also be considered and given force, and they must be understood to mean, what to us the sentence seems upon its face most clearly and naturally to mean, that the stock shall have been duly inspected by an officer who made the inspection, not necessarily in person, but in the manner then observed by the quartermaster’s department in St. Louis. It must be assumed that Congress, when this act was passed, were familiar with the facts set up by plaintiff as sustaining his contention; they knew that he did not allege that a Government officer in person inspected his horses and mules; they knew that such inspections were during the war made by subordinate agents, and that such a course was then a necessity. It can never be assumed that the legislature do a vaiu thing, and such would have been the passage of this private act were the interpretation attached to it for which defendants contend.

It is also urged that the horses and mules were not so accepted as “ to become the property of the United States; ” that they should have been so accepted is a clear condition of relief under the act, to be settled only by reference to the findings of fact, from which we must learn whether they “ were duly inspected and accepted as suitable for the service for which they were intended by an officer of the United States” in the manner prescribed by the regulations then in force or found in the practice or custom then observed in St. Louis; and, further, whether the stock was so inspected and accepted that it “ became the property of the- United States.”

During the period covered by this action it was the policy of the quartermaster’s department in St. Louis to purchase horses and mules iii Missouri as far as possible beyond the military lines, that thus the stock might be drawn from the reach of the enemy. In carrying out this policy, which involved risk, it was the practice and custom (of which plaintiff had knowledge) for the principal inspector to contract from time to time with individuals to go into the country, there to purchase horses and mules on their own account, but' upon the understanding that the Government was to take the animals if they passed inspection. When an adequate amount of stock was collected at any point application was made by the contractor for inspection, when some deputy appointed by the chief inspector for the purpose was sent to inspect and accept the animals. It was not always convenient for these inspectors to carry branding irons and the stock accepted was not always branded, but stock so inspected and Accepted by the subordinates was regarded as becoming thereupon and thejreby the property of the United States, and payment was made upon this understanding. The action of the subordinate inspector was regarded by the quartermaster’s department, the contractor, and subcontractors as binding upon the Government, and upon his acceptance control was relinquished over the stock, which was forwarded at Government risk to the general depot at St. Louis.

S.uch was the practice and custom approved by the quartermaster, and in accordance with which the parties acted in this instance. The findings show that Finn & Co. (whose successor the plaintiff is) agreed informally with the quartermaster to buy horses and mules in Missouri, deliverable in Sedalia, for $153.70 each; later they notified the quartermaster that they had collected horses and mules at that place and requested that an inspector be sent to inspect and receive them. The demand for stock being urgent,' a deputy was sent to Sedalia by the chief inspector; this deputy in-' spected and accepted thirty-two horses and ninety-four mules, which he branded with a private mark for identification, as he had not a Government iron with him. The contractor’s agent then paid the subcontractors for the animals which had passed inspection, and the deputy inspector, with the contractors’ agent, started the drove for Tipton, where they expected railroad transportation. On the way they, together with twenty-four horses and seventy-eight mules, were captured by the enemy.

From these facts wé conclude that the stock was duly inspected and accepted by an officer of the -United States, acting through a deputy; that is, acting according to the “practice or custom” then “in force in and observed by the quartermaster’s department at Saint Louis ” and therefore aud “ thereby,” that is, in accordance with this “ practice or custom,” they became “ the property of the United States.”

As this decision turns entirely upon the construction we give the private act, which in our opinion prescribes an exceptional standard by which the obligation of the Government to this contractor is to be.measured, that is, the “practice or custom,” we have not considered the points made by the defense, that there was no written contract in the case, and that the deputy inspector was not an officer who could bind the Government. The “practice or usage” was to dispense with written contracts; the “practice or usage” authorized the chief inspector to appoint deputies from time to time as occasion might arise; the “practice or usage” regarded the sale to the Government as complete when the animals had been inspected and accepted by the deputy so appointed; and tbe observance of this “practice or usage” was a necessity in Missouri because of the military situation and the condition of the country at the time, and for that reason it was authorized, approved, and pursued by the Quartermaster’s Depart-anent when this “.claim originated.”

Judgment for plaintiff in the sum of $15,677.40.  