
    FREMONT & JACKSON’S CASE. Frémont, for the use of Jackson, v. The United States.
    
      On the Proofs.
    
    
      A sub Indian agent in California enters into a contract with Frémont for the purchase of necessary subsistence for the Indians. To pay instalments on the contract, he draws drafts on the Secre- ' tary of the Interior. The drafts are purchased as commercial paper by Jackson before maturity for the full consideration. It is admitted on the argument that the sub-agent had no a/uthority to draw drafts which would bind the government. After the first trial (1 C. Cls. R.,p. 260) the suit is changed to an action on the contract in the name of Frémont for the use of Jackson subsequent to the contract. Congress appropriate money for the subsistence of the Indians, and enact in a number of instances that the value of the goods purchased by the Indian agents in California for the actual subsistence of the Indians in 1851 a/nd 1852 be paid. The value in this case is less than the amount of the drafts or of the contract price. There are other persons not parties to the record holding drafts given for other instalments of the contract.
    
    I. A' sub Indian agent in California has no legal authority to draw bills of exchange which will bind the government, (1 C. Cls. R., p. 260.)
    II. A legislative recognition of the obligation of the government may be inferred from Congress having appropriated subsequently money for the same purpose, and provided for the payment of other contractors similarly interested in the same class of transactions.
    The rule of the common law relative to the ratification of the unauthorized acts of an agent is as applicable to the obligations of the government as of individuals.
    The obligation of the defendants and the purchases of the Indian agents in California to subsist the Indians in 1851 and 1852 are thus recognized and ratified by Congress in the appropriation to defray the expenses of subsisting the California Indians, (March 3,1853, 10 Stat. L., p. 288,) and in the acts for the relief of Frémont, (10 Stat. L., p. 804,) Hensley, (12 id., 847,) and Norris, (14 id., Resolution No. 56.)
    III. Where Congress recognize the obligation of the government to pay the actual value of the goods purchased by an unauthorized agent, the contract price is not the measure of damages.
    Messrs. CARLISLE & McPherson for the claimants.
    
      State of the ¿ase.
    
    This claim is for the payment of drafts to the amount of $20,000, with interest, drawn by Adam Johnston, sub Indian agent in California, upon the Secretary of the Interior, in favor of J ohn O. Frémont, in payment for beef and flour furnished at the request of Johnston for the subsistence of Indians under his charge, and actually fed to those Indians. The drafts have not been paid. They were presented and protested for non-acceptance.
    The questions to be considered are—
    1st. Whether Johnston drew these drafts for the purposes stated; and,
    2d. Whether he had authority to draw them for that purpose.
    The facts upon which the determination of these questions depends are partly historical, and partly to be proved by evidence offered in this cause.
    
      Narrative.
    
    California was conquered from Mexico in the summer of 1846, and ceded by the treaty of peace of May 30,'1848.
    Immediately after the proclamation of peace, the discovery of gold took place, and a vast immigration by land and sea set in, peopling the country with a rapidity never before witnessed in any country.
    California had been for more than two centuries in the possession of the Spanish race, and still the Indians occupied the homes of their fathers. A portion of them had become christianized, and sunk into the condition of laborers or dependents of the missions scattered over the country. Another, and by far the larger portion, lived independent of, but at peace with the whites, occupying extensive tracts of country along the coast, the head-waters of the Sacramento and San Joaquin and their tributaries, and the hills at the foot of the Sierra Nevada, and subsisted by hunting and fishing. Still another portion inhabited the defiles of the Sierra Nevada, wild and untamed, and waging predatory war upon the whites whenever opportunity offered for spoil.
    The rapid tide of immigration speedily enveloped and overwhelmed the Christian and coast Indians. There were many thousand of them in 1848, hut scarce a single one remained in 1851, when our narrative commences. They perished without a struggle or a murmur, and without any expense to government, and with them this narrative has no concern.
    With the Indians further in the interior the case was different. Not being enveloped or surrounded by the whites, they gradually gave way before them, retiring towards the Sierra Nevada, until being nearly driven from the streams which had supplied them with fish, and from the fertile lands which furnished acorns and wild grains, and finding themselves confronted by the dreary precipices of the Sierra Nevada, they began to stand at bay and turn upon their pursuers ; and in some places they had driven the intruding whites from their country.
    For some time after the acquisition of California, the Indians of that country attracted little of the attention of the government. Early in 1849, under the act of June 30, 1834, (4 Stat., 735,) a single sub-agent, Adam Johnston, was appointed for the whole country, containing then more than 100,000 Indians; some months later, another was added, who declined to act, and no one seems to have taken his place.
    In 1850, the pressure of the whites upon the Indians began to produce its natural effects in the resistance of the latter, in collisions and massacres. This state of affairs being reported by sub-agent Johnston in numerous official communications to the department at Washington, Congress, by act of September 28, 1850, (9 Stat., 519,) provided for the appointment of three agents for California, and also by act of September 30, 1850, (9 Stat., 558,) for commissioners to negotiate treaties with the Indians of that State. Under the act of September 28, 1850, Bedick McKee, George W. Barbour, and Oliver M. Wozencraft were appointed agents, but when the act of September 30 was passed, the functions of these gentlemen as Indian agents was suspended, and they were appointed commissioners to negotiate with the Indians. Their instructions were rather vague, for reasons stated therein, viz : the want of definite information in regard to the Indians ; but they were empowered “ to make such treaties and com pacts with them as may seem just and proper,” and “ by all possible means to conciliate the good feelings of the Indians, and get them’to ratify those feelings by entering into written treaties binding on them towards the government and each other.”
    By the time the commissioners reached California, and even on the way, they found the exigencies of the case increasing with fearful rapidity. Their board has been instructed, “ after obtaining whatever light ^jnight\ be within its reach, \to\ determine upon some rule of action which would be most efficient in attaining the desired object,” and to this purpose they appear to have sedulously applied themselves. As in all previous time the principal object of treaties with Indians had been the acquisition of their lands, this subject early engaged the attention of the commission, and in a report from Panama, on their way out in December, 1850, (Doc. 4, p. 52,) they informed the department that the question of the removal of the Indians would engage their early attention, as it seemed to involve, if not the destruction of the Indians, “ at least the peace of that frontier.”
    The commissioners, on reaching California, determined to commence operations in the upper part of the valley of the San Joaquin, in which the Indian population was most numerous, most warlike, and most hostile. They repaired thither under the escort of a body of United States troops. The war here was flagrant, and nothing but the fact that the Indians of California, instead of being collected in large tribes, are divided into smaller bands, saved the whites from wide-spread massacre. On the first day of March, 1851, the governor of California, in a letter to the President, reported the Indians as “ everywhere rising in arms,” to the number of 100,000 warriors; and though this was by the department deemed an exaggeration, in none of the official correspondence has it ever been doubted that numerous bands of Indians were making war upon the whites. But what is more to oar purpose, several bodies of State troops had taken the field against the Indians, and the first treaty made with the Indians was concluded while the State troops were awaiting the result of the meeting, and the tribes that would not treat were to be forthwith attacked by those troops, and by the United States troops that accompanied the commissioners. This was on the Mariposa. A second treaty was made on the Fresno, with tribes which had just been defeated in battle by the State troops, and under the threat of being given over to the same forces if they refused to treat.
    The terms exacted in these treaties, and insisted upon by the commissioners as a sine qua non, were, that the Indians should cede their lands to the United States, and retire to certain reserves, where they were to receive, during the two following years, a limited supply of food. As soon as these terms were accepted by the Indians, the reserves were designated by the commissioners and the Indians were removed to them and placed under the charge of the sub-agent of that district, Adam Johnston, who had been previously instructed by the department to give his “ personal attention to their requests,” and his “ co-operation with them in the discharge of their duties.”
    On making the first treaty and locating the Indians under it, the commissioners reported their proceedings in full, and the department in reply expressed its gratification with the results achieved, and “ especially with [their] energy and despatch in procuring a location for the several tribes of Indians and promptly removing them to it.”
    After concluding the two treaties mentioned above, the commissioners separated.
    Barbour having completed the pacification of the San Joaquin valley, left Johnston in charge of the Indians.
    Johnston, left alone with the Indians, recently so hostile, had no difficulty in keeping the peace, so long as the 'supply of provisions lasted ; but this was of short duration, and in less than a month he had to apprise the department that the supply was exhausted, and that he had been compelled to purchase on credit additional quantities of beef and flour. The department in reply approved his engagements, and promised to procure means from Congress to make payment.
    Johnston had been directed by the department, in case he needed means to provide for the comfort of the Indians, to confer with the agent most accessible to him ; he accordingly repaired to San Francisco and conferred with Wozencraft. Wozencraft could not or would not do anything. Johnston then made the contract with Frémont, upon which’this claim rests. By that agreement Fremont sold to Johnston, to be delivered to his order, 1,200 head of cattle, on the Mariposa ranch, and 1,000 half sacks of flour, for the use of the Indians under Johnston’s charge. The price of the beeves was $75 per head. No price was stated for the flour. -Johnston then gave him a receipt for the goods as if actually delivered, and drew bills upon the department for a large part of the value, and then returned to his post in the Indian country. Before engaging in this transaction, Frémont’s agent called upon Wozencraft, and was assured by him that Johnston was the sub Indian agent for that part of the country, and empowered to act as such.
    
      POINTS.
    I. In the latter part of the year 1850 and first parj of 1851 widespread hostilities existed in California, especially in the southern part of the San Joaquin valley, between the Indians and the whites.
    II. In January, 1851, commissioners sent by the government of the United States charged with the duty of making and preserving peace with the Indians arrived in California.
    III. The commissioners proceeded into the Indian country accompanied by a force of United States troops, and made treaties and compacts whereby the Indians consented to relinquish their lands and remove on to limited tracts called reserves, on condition of being fed in their location until they could feed themselves.
    IV. The Indians entered into these treaties under the actual pressure of military force, State and United States, some after defeat in battle, and all under threat of extermination if they should refuse these terms.
    V. All these Indians were in Johnston’s district, and were'specially placed under his charge.
    VI. The Indians had not the means of subsisting themselves on the reserves.
    VII. The Indians moved on to the reserves under the superintendence of the commissioners and the military force, and a military force was stationed to compel them to remain there.
    VIII. The treaties, the terms thereof, the removal of the Indians, all was within the scope of the authority of the commissioners, and when done was fully approved by the department.
    IX. Johnston was authorized by the department to provide for the necessities of the Indians under his charge. Story on Agency, § 58, 118, 141,142, 143. Kent’s Com., Lect. 41, § 2. Story Con., § 140. United States v. Maurice, 2 Brock., 109-10.
    X. In the fall of 1851 it became necessary for Johnston to provide food for the Indians.
    XI. Under the necessity above shown, and using all prudence, Johnston purchased provisions from John C. Frémont, and gave in payment the drafts on which this suit is brought.
    XII. The supplies were actually delivered to James D. Savage,
    XIII. Savage was the authorized agent of the government to re•ceive.and issue the supplies.
    
      The Assistant Solicitor for the defendants :
    From the almost useless mass of testimony adduced in this case the following material facts may be extracted:
    1st. That some time during the year 1849 Adam Johnston was appointed a sub Indian agent for California.
    2d. That under the act of Congress approved September 28, 1850, (9 Stat. at Large, 519,) Redick McKee, George W. Barbour, and Oliver M. Wozencraft were appointed Indian agents for that State, but after the passage of the act of Congress approved September 30, 1850, (9 Stat. at Large, 558,) the functions of these Indian agents were suspended, and they became commissioners for the State of California under the provisions of the last-mentioned act.
    3d. The duties imposed upon them as commissioners under said act of September 30, 1850, were (as stated in their appointment) “to hold treaties with the various Indian tribes in the State of California.”
    4th. That during the time these commissioners were engaged in ‘‘holding treaties,” as provided in said act of Congress, Adam Johnston continued to exercise the functions and discharge the duties of sub Indian agent.
    5th. That on the 11th day of November, 1851, said Adam Johnston made a contract for the purchase of twelve hundred head of beef cattle and one thousand half sacks of flour from Colonel John C. Fremont. The price agreed to be paid for the cattle was seventy-five dollars per head,
    6th. In part payment for said cattle the several drafts described in claimants’ petition, amounting to twenty thousand dollars, were drawn by said Johnston on the then Secretary of the Interior in favor of John C. Frémont. These drafts, upon being presented at the Interior Department, were not accepted by the Secretary of the Interior, and were protested for such non-acceptance.
    
    7th. These several drafts or bills of exchange were indorsed by Colonel Frémont to Mickle & Co., and these claimants sue upon them as the assignees of Mickle & Co. Whether these several bills of exchange were indorsed to the claimant before or subsequent to the time of their protest for non-acceptance does not appear from the petition. Nor is this question at all material in the view which we take of this case.
    The legal propositions to be deduced from the foregoing statement of facts are so simple and conclusive that they need little more than a mere statement of them.
    
      1st. Adam Johnston, tbe agent of the United States, who made the contract and drew the drafts involved in this suit, was the agent of the United States for a particular purpose, and he derived no authority, in virtue of his appointment as such agent, to contract debts, or pledge the credit of the United States.
    The powers and duties of Indian agents and sub-agents are derived entirely from the act of Congress which authorized their appointment.
    We look in vain here for any authority conferred upon a sub Indian agent to make any purchases for or on account of the Indians; his authority is only a limited and special one, and it must be strictly pursued. If he exceeds that power his principal is not bound. Munn v. Commission Company, 15 Johns. Rep., 44; Beals v. Allen, 18 Johns. Rep., 363; Thompson v. Stewart, 3 Conn., 172; Andrews v. Keenland, 6 Cowen’s Rep., 354; Kent’s Commentaries, sec. 41, vol. 2, p. 835 ; Gordon v. Buchanan, 5 Yerger’s Tenn. Rep., 71.
    Whoever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power. Wilkinson v. Candlish, 5 Exch., 91; Towle v. Leavitt, 3 Fost., 360; Hunt v. Iron and Machine Co., 20. B.arb., 493; Mechanics’ Banh v. N. Y. N. II. R. R. Co., 3 Kern., 599.
    Public agents derive their authority from, the law which authorizes their appointment. No person may, therefore, profess ignorance of the extent of the power of a public agent; individuals as well as courts must take notice of the extent of authority conferred by law upon a person acting in an official capacity. State v. Hastings, 10 Wis. Rep., pp. 531, 535; Commonwealth v. Fowler, 10 Mass. Rep., 30 ; Murray v. Carothers, 1 Met., 165.
    2d. These commissioners, in connection with whom it is alleged Johnston was acting in making this contract for supplies and drawing these drafts, were also public agents, having no powers except such as were involved in the discharge of certain specified duties. They had no power to make contracts.
    3d. Nor is the claimants’ case at all aided by their attempt to show that the supplies purchased by Johnston from Frémont were actually delivered to an agent of the United States, and by that agent distributed to the Indians, and that therefore there was a good and sufficient consideration for these drafts. If this agent could not make an express contract for these supplies, by which the United States would be bound, tben none can be implied from their delivery to, and use by, the United States; for the law will not raise an implied contract where there exists no legal right to make an express one. Simpson v. Bowden, 33 Maine Rep., 549; Lewis v. Trickey, 20 Barb. Rep., 387.
    4th. The claimants profess to be the holders of these drafts as in-dorsers in good faith, and for a valuable consideration. We have shown that all persons dealing with a public agent, whose authority is limited by law, are bound to take notice of the extent of the authority of such agent. If the agent has exceeded his authority in signing the name of his principal te a note, the note will be void as to the principal, even in the hands of a bona fide holder. Parsons on Notes and Bills, vol. 1, p. 119 ; Fern v. Filicia, 7 Man. and G-. Reps., 513; Andover v. Grafton, 7 N. H. Reps., 298, 303 ; Mechanics’ Bank v. N. Y. N. H. R. R. Co., 3 Kern. Rep., 631.
    Mr. Kbtchum, United States Solicitor, closed the argument for the defendants.
   Casey, C. J.,

delivered the opinion of the court:

This is one of a class of cases that has several times been before this court. They grow out of supplies furnished to the Indians in California shortly after the admission of that State. Their history is as follows: By act of Congress approved 28th September, 1850, (9 Stat. L., 519,) the President was authorized to appoint three Indian agents in California. And by act of 30th September, 1850, (9 Stat. L., 558,) an appropriation of twenty-five thousand dollars ($25,000) was made, “to enable the President to hold treaties with the various Indian tribes in the State of California.” Under the first act, Redick McKee, George W. Barbour, and O. M. Wozencraft were appointed Indian agents, but on the 15th October their functions as Indian agents were suspended, and they were appointed commissioners to treat with the Indians under the latter act. By the act of 27th February, 1851, the President was authorized to designate any officers or agents of the Indian department to negotiate treaties with Indian tribes. Under this act the powers of these gentlemen as Indian agents were restored, and they were designated to negotiate the necessary treaties. The instructions given to the commissioners in regard to the negotiation of the treaties by the Commissioner of Indian Affairs were of the most general and indefinite kind. Everything relating to the means to be employed to quiet the Indians, and prevent outbreaks, were confided to their discretion, and to be governed and controlled by circumstances as they should arise.

The recent gold discoveries in the mountain regions of California had attracted a large white population. Serious disturbances occurred between them and the Indians, as early as July, 1850.

When the commissioners arrived in California, in the early part of 1851, the California State troops were in the field engaged in active hostilities with the Indians. The Commissioner of Indian Affairs writing to the commissioners in California in May, 1851, says that he has been informed by the War Department that it was necessary to commence active operations against the Indians, and in that event directs that one of the commissioners shall accompany each detachment of troops, so as to be ready to negotiate should the occasion favor or require it. He adds : “ What particular negotiations may be required it is impossible for this office to foresee; nor can it give any specific directions on the subject. Much must be left to the discretion of those to whom the business is immediately intrusted.”

In the exercise of this discretion the commissioners saw no other method by which collision and bloodshed between the Indians and miners could be prevented but by the immediate removal of the latter to reservations on the plains. And this was made an indispensable condition in all the treaties negotiated; the commissioners agreeing on the part of the United States to furnish the Indians on the reservation subsistence during the years 1851 and 1853.

The commissioners acted jointly up to about the 1st of May, 1851; they then divided the State into three districts, each one taking his separate district. Their action in this matter was approved by the Indian bureau. They continued to pursue the same policy as when acting jointly, reporting all their doings to the Indian department. All the treaties negotiated contained substantially the same provision for subsistence, and it is not denied, and fully proved if it were, that without such provision, or its equivalent, no removal of the Indians could have been accomplished, and no treaties of any value could have been negotiated with them.

Copies of the treaties negotiated were forwarded to the department in March, 1851. On their receipt the Commissioner of Indian Affairs wrote to the commissioners in California, announcing the executive approval of the treaties, and commending the skill and diligence with which they had performed their difficult and delicate duties. Up to this time only fifty thousand dollars of appropriation for Indian service in California bad been made; and this sum was applicable by the terms of the appropriations themselves to negotiating treaties and not to the carrying out of their provisions. They would have been also entirely insufficient in amount.

All the treaties negotiated by the commissioners were afterwards rejected by the Senate.

On the 30th August, 1852, (10 Stat., 56,) Congress appropriated one hundred thousand dollars “for the preservation of peace with the Indians who have been dispossessed of their lands in California, until permanent arrangements be made for their future settlement.” The following was added : “Provided, That nothing herein contained shall be construed as to imply an obligation on the part of the United States to feed and support the Indians who have been dispossessed of their lands in California.” And by the act of 3d March, 1853, the President was authorized to make military reservations from the public domain in the State of California, and the sum of two hundred and fifty thousand dollars was appropriated to defray the expenses of subsisting Indians in California, and removing them to such reservations for protection. The annual appropriation acts from that time to 1858, inclusive, contained similar provisions for completing the removal and continuing the subsistence of these Indians.

The treaties having been negotiated, and the Indians removed to the reservations, they were there without any subsistence and without the means of obtaining any. The commissioners could not keep them there without feeding them. The treaties made provision for immediate supplies to them, and, not doubting their ratification, the commissioners commenced to provide the necessary supplies. Among others, Mr. Barbour entered into a contract with Colonel John C. Frémont, who delivered to one or more of these reservations beef to the amount of over one million pounds on the hoof, at fifteen cents per pound. Frémont took for the amount drafts drawn by Barbour on the Secretary of the Interior. On presentation these drafts were protested for non-acceptance, there being no appropriation for the purpose. The claim having been brought to the notice of Congress, an act was passed, approved 20th July, 1854, (10 Stat., 804,) appropriating the money to pay the claim, amounting to one hundred and eighty-three thousand eight hundred and twenty-five dollars, with interest from 10th June, 1851, at the rate of ten per centum per annum.

In February, 1852, Wozeneraft made a similar contract with Samuel J. Hensley, for nineteen hundred head of cattle at fifteen cents per pound. The cattle to the number of twelve hundred and eighty-five (1,285) were delivered under this contract, amounting to ninety-six thousand three hundred and seventy-five dollars ($96,376.) Wozen-craft drew drafts on the Secretary of the Interior, which were in like manner protested for the same reasons as those given to Colonel Frémont. Hensley brought suit in this court to recover the amount. This court, held that there was no such legal liability on the part of the United States as could be enforced by a suit. They reported the matter adversely to Congress. Thereupon Congress, upon the facts and law as presented in the opinion of the court, held that the United States were bound to pay for the cattle delivered and fed to these Indians, and passed an act making the necessary appropriation for its payment. (12 Stat., 847.)

A similar contract was made by Wozencraft with Samuel Norris, who likewise brought suit in the Court of Claims; and on the 11th day of June, 1860, the court made an adverse decision and report against the claimant upon the same grounds and for the same reasons as prevailed in the case of Samuel J. Hensley, above stated. The case was reported to Congress, where the same was pending until the passage of the following joint resolution :

RESOLUTION for the relief of Samuel Norris.

Resolved, by the Senate and. Rouse of Representatives of the United, States of America in Congress assembled, That the claim of Samuel Norris, of California, for supplies furnished the Indians of that State, under contracts made with certain commissioners, or either of them, authorized to negotiate treaties with said Indians, and all papers relating thereto, be referred back to the Court of Claims for examination and allowance; and that, infixing the amount to be paid the claimant, the rule shall be the actual value of the supplies furnished at the times and places of delivery, of which due proof shall be made by the claimant.

Approved June 22, 1866.

Under this resolution the case has been again tried at the present term and a judgment rendered in favor of the claimant for the sum of sixty-nine thousand nine hundred dollars, ($69,900.)

Such is an outline of the history and character of the class of cases to which this belongs. It only remains to state more precisely how the claim in suit originated, and the grounds upon which it is presented before us for adjudication.

On the 14th April, 1849, Adam Johnston, of California, was appointed a sub Indian agent on the Sacramento and San Joaquin rivers, in that State. On the 24th November, of the same year, John A. Sut-ter was appointed for the Sacramento, and Johnston’s agency confined to the San Joaquin. The Commissioner of Indian Affairs, in October, 1851, instructed Johnston to impart all the information and afford all the assistance he could to the commissioners, Barbour, McKee, and Wozencraft, in the performance of their duties.

After the conclusion of the treaties and the removal of the tribes to their designated reservations, the commissioners placed Johnston in charge of a large number on the Merced reservation, in the valley of the San Joaquin, in the spring of 1851. On the 1st November, 1851, J ohnston entered into a contract with Colonel Fremont for the delivery of twelve hundred beef cattle for the use of the Indians, and also a quantity of flour.

Johnston employed a person by the name of Savage to kill and distribute the beef to the Indians, the cattle then being on the Little Mariposa ranch, near the Indian reservation. The evidence shows that at least a large part of the supplies actually went to feed the Indians. Many of the cattle were doubtless stolen or permitted to stray away by the government agents in charge of them. On the 11th November, 1851, Johnson drew twenty drafts upon the Secretary of the Interior, for various amounts, reaching, in the aggregate, about ninety thousand dollars, in favor of John Charles Fremont. Three of these drafts, one for ten thousand dollars and two for five thousand, res pectively, were indorsed to the claimants by Frémont. Th ey brought suit in this court upon these drafts; and upon a general demurrer, filed by the Solicitor of the United States, we held that there was no authority to draw such drafts given to Adam Johnston by the United States, and that the claimants could not sue in their' own names on a contract made with Fremont, nor on a quantum valebat arising from the receipt and use of the cattlo from him. Thereupon the claimants asked leave to file an amended petition and to make General Frémont a party to the suit. This motion was allowed, and the cause has been fully heard on the evidence presented on the one side and the other, and ably argued by the counsel for the claimants and by the Assistant Solicitor for the United States.

Upon these facts the question arises as to the binding force and validity of the contracts upon the United States.

Had J ohnston authority to make the purchases 1 Or have the United States since ratified and adopted his acts 1 It is admitted that a subsequent ratification is equivalent to a precedent authority.

The act of J une 30, 1834, section 7, (4 Stat. L., 757,) enacts : “ And it shall he the general duty of Indian agents and sub-agents to manage and superintend the intercourse with the Indians within their respective agencies, agreeably to law; to obey all legal instructions given to them by the Secretary of War, the Commissioner of Indian Affairs, or the Superintendent of Indian Affairs, and to carry into effect such regulations as may be presented by the President.”

The thirteenth section of the same act provides that all merchandise required by any Indian treaty for the Indians shall be purchased under direction of the Secretary of War, &c.' “And all merchandise required at the making of any Indian treaty shall be purchased under the order of the commissioners, by such person as they shall appoint, or by such person as shall be designated by the President for that purpose. And all other purchases on account of the Indians, and all payments to them of money or goods, shall be made by such person as the President shall designate for that purpose. And the superintendent, agent, or sub-agent, together with such military officer as the President may direct, shall be present and certify to the delivery of all goods and money required to be paid or delivered to the Indians.”

The powers and duties of the Commissioner of Indian Affairs are conferred and prescribed by the act of 9th July, 1832, (4 Stat. L., 564.) That act provides: “The President shall appoint, by and with the advice and consent of the Senate, a Commissioner of Indian Affairs, who shall, under the direction of the Secretary of War, and agreeably to such regulations as the President may from time to time prescribe, have the direction and management of all Indian affairs, and of all matters arising out of Indian relations.”

The Commissioner of Indian Affairs, representing in this behalf the executive department of the United States, approved and adopted what these commissioners and agents had done, in removing these Indians to the reservations, and providing them subsistence there. And this raises the question, whether such ratification and adoption by the executive authorities, there having been no direct precedent authority of law to make the contract, binds the United States. It is claimed that it was competent for the agent, under the previous authority, or by the subsequent ratification of the Commissioner of Indian Affairs, to provide for the necessary and usual supply of these Indians. It is also urged that the acts of 1832 and 1834 contain sufficient in their provisions to authorize contracts of the nature and character of the one set up in this case. That the sixth section of the act of May 1, 1820, (3 Stat. L., 568,) allows contracts to be made wherever there is a law authorizing them, or an appropriation adequate to their fulfilment. That here there was a law or laws authorizing and empowering certain officers to have the charge, care, and control of the Indians; it was their duty to keep them quiet and orderly; and that whatever expenses were incurred, or money expended, in the performance of this duty, was a proper charge upon the public treasury, as having been made under the direct and express provisions of laws of Congress.

It is not denied very strenuously by the officers representing the United States that there was a moral and just obligation resting upon the United States to pay for these supplies. They had compelled or induced these savage tribes to remove from their known and accustomed homes and hunting grounds in the mountains to the dry and arid plains. , They were compelled to remain upon prescribed reservations. There was hut the alternative to supply them food, or let them starve or steal. To a just-minded person it is not difficult to decide which course was the right and true one to adopt. From all these considerations it is urged that the government, by its high executive officers, ratified and adopted the acts of these agents and made them binding on the United States as valid contracts.

But it is further contended that Congress, by its enactments, has given and superadded a legislative recognition to, and adoption of, this class of contracts growing out of the care and subsistence of these California Indians. First, by the act of the 3d March, 1853. By this act the President was authorized to make five military reservations from the public domain in the State of California, and the sum of two hundred and fifty thousand dollars was appropriated to defray the expense of subsisting Indians in California, and removing them to said reservations for protection. Similar appropriations were made each year thereafter up to 1858, inclusive, for completing the removal and continuing the subsistence of the Indians on those reservations.

Again it is claimed that the acts previously cited by which Congress appropriated money for the payment of the claims of Frémont and Hensley, and for the adjudication of Norris’s claim, were distinct legislative recognitions of these contracts. Or if not ratifications and adoptions of the very contracts made in the premises, at least acknowledgments of the justice of the claims, and the liability of the government to pay the fair value of the supplies delivered.

How far the government would be liable in cases of this kind, standing alone on the authority conferred and control given over Indian affairs to the Commissioner and agents under the acts of 1832 and 1834, it is not necessary for us to decide. It might he a fair subject for discussion, wbetber the powers conferred and the discretion vested are not large and wide enough to bring a case of this description within the purview of the sixth section of the act of 1st of May, 1820, (3 Stat., 568.) But when taken in connection with the facts detailed, and the subsequent legislation cited, we think the case is free from doubt and difficulty. The maxim of the common law, omnis ratihabitio retro-trahitur, et mandato priori equiparatur, is as applicable to the contracts and obligations of the United States as to those of individuals. The only question in our case is, has there been such a ratification and adoption by competent authority 1

The supplies furnished out of which this claim arises were bought by and delivered to a regularly constituted agent of the United States, duly appointed in pursuance of law. They were moreover procured and fed to the Indians in accordance with the established practice and usage of the United States in their dealings with the Indiau tribes. From the earliest history of the government it has been the habit of the United States to remove the Indians from the encroaching white settlements to reservations provided for them, to avoid collisions and bloodshed, and to there subsist them and provide for them until they are able to supply themselves in their new homes, or are removed to new hunting grounds. The United States compelled these savages of the mountains to forsake their homes and hunting grounds where they could procure ample subsistence. It was done for the public good and peace, for the benefit of the white people flocking to the newly discovered gold mines of that region. They were restricted to a designated space on a barren plain. Being there by the superior force and authority of the United States, there was but one alternative, to feed them or starve them. The agents, and the government too, if they had permitted the latter, would have deserved the execrations of mankind. To induce them to remove without the employment of more than moderate force and compulsion, the agents, fully authorized by law and appointed for that purpose, entered into treaty stipulations with them for immediate and prospective supplies as the conditions and consideration of their removal to the reservations. The Indians performed their part by removing; the agents did no more than the United States had agreed to do, when they gave them the stipulated provisions. Had the treaties been ratified, they would have made the law of the case, and would have relieved the matter of all doubt or cavil. But the Senate of the United States rejected the treaties, and hence the controversy. Notwithstanding the rejection, the performance of their stipulations was exacted of the Indians. They were compelled to remain on the reservations assigned them, and were not permitted to return to their native or accustomed haunts.

Under these circumstances there can be no doubt whatever that there was the strongest possible moral and equitable obligation on the part of the United States to provide subsistence for these savages. It was equally their interest, for it was cheaper to feed them than to fight them. These were the views entertained and the motives that influenced the agents and the Indian bureau in obtaining and furnishing these supplies. These contracts had the full sanction of all the authority the law conferred or the practice and usage of the government gave to the executive department in the premises. But the objection was still urged that such sanction and approval was unavailing because unauthorized by any legislative sanction; that whatever might be the equity of the claim, upon considerations of justice and morality, there was no direct authority of law to make the contracts, and no appropriation adequate to their fulfilment, and therefore within the inhibition of the act of 1820, and consequently not legally binding on the United States.

The claimants take up the cáse at this point, and contend that admitting the conclusion stated, Congress has by its subsequent legislation ratified and adopted the acts of the executive authorities in all this class of cases, and thereby superadded a complete and perfect legal obligation to what before appealed but to the moral sense and justice of the nation.

The legislation upon which that ratification is predicated has been recited above. It may cast some light upon the subject to look at the views entertained by the committees who reported the bills which were thus enacted into laws, as to the intention of Congress in .the enactments. In an elaborate report made on the 14th of July, 1854, to the House of Representatives by Mr. Orr, from the Committee on Indian Affairs, the committee say: “The treaties were rejected by the Senate for reasons which have not yet been made public, and the Indians of California have been driven from their lands and their homes, and have received no compensation from the government, save the beef furnished them by Colonel Frémont, and which he now asks the government to pay him for. The beef went into the hands of the agents of the government; whether it was'all faithfully distributed among the Indians by the sub-agents is not a question that is to affect the justice and equity of the claim of Colonel Fremont. He furnished the agents of the government with a large quantity of beef. Most, if not all of it, was used in feeding the Indians; it was furnished to comply: with treaty stipulations; it stopped the war and restored peace to the country; and will the government now shield itself from the payment of this claim, and devolve a ruinous loss upon one of its own citizens upon the technical pretext that the agent had no specific authority to make the contract. We have received the advantages and benefit of the contract, and your committee believe it is just we should fay for it.

They accordingly report a bill for the amount, and recommend the payment of interest at the rate of ten per cent., (California interest.)”

In another part of the report the committee say : “ There was no express authority of law to make the contract, and yet the general authority with which he was clothed to treat, coupled with the emergencies of the occasion, fully justified him in assuming that the legislative and executive departments would sanction his purchase, which was to terminate the war, and save the Indians from perishing. The emergency was too pressing for him to await instructions from the department, or for Congress to meet and make the necessary appropriations, and your committee believe that the government should recognize the act of this agent, when it is manifest that he acted, in good faith, and as most humane, discreet men would have done under similar circumstances.” ,

Again they say : “ Will it be pretended, if Congress had been in-session at the time, and had been madefully acquainted with the emei-r geney, that it would have refused the appropriation ? It would be unjust to our national reputation to suppose that Congress would have allowed those Indians to perish from hunger after our own citizens had despoiled them. It was cheaper to feed than fight these starving savages, and the food furnished by Barbour was better economy than to have maintained battalions and regiments to subdue the Indians.”

In the case of Hensley, before stated, Congress has not only again recognized the justice and validity of these claims, but has given a legislative construction to the act of 29th July, 1854, passed for the relief of Colonel Fremont.

In the Senate of the United States, on the 6th March, 1860, Mr. Sebastian, from the Committee on Indian Affairs, presented a bill and report to pay Samuel J. Hensley the amount of his claims, although the Court of Claims had reported adversely thereon. In that report, after stating the facts — the necessity for immediate and prompt action, and that the government received all the benefit and avoided a bloody and expensive Indian war — the committee say : “ The United States have not adopted the new system inaugurated by those defunct treaties, but it has sanctioned their main feature, that of providing homes and subsistence to all who wish to labor, and thus exchange their mode of life for that of the white man. The committee believe the United States have received great benefits from the means furnished by the claimants, in aid of its policy, and in relief of its treasury, and there is no reason why it should not reimburse them with a just indemnity. In doing so we invent no new principle, nor adopt any new policy. The United States have often repaid the expenses of the States in suppressing Indian hostilities. Had California undertaken the task of a pacification of the Indians by a war, she would have been the creditor of the United States for the expenses of it. Does it lessen the obligation that the more humane and peaceful policy of the Indian commission has effected the same object ? Finally, the principle involved in the whole class of cases, of which this is only one, was distinctly recognized by Congress, in an act passed July 29, 1854, in favor of Colonel John C. Frémont, one of those who furnished beef to the Indians, under contract with the commissioners, and by its provi- ■ sions he received near two hundred and forty thousand dollars. The same justice should be extended-to all the other claimants.” (Senate Doc., 36th Congress, 1st session, vol. 1, Eep. No. 111.)

The bill as reported by the committee passed the Senate, and having been sent to the House of Representatives for concurrence, was there referred to the Committee on Indian Affairs. On the 10th of April, 1860, Mr. Scott, from that committee, reported in favor of the bill. They conclude their report as follows : It is not necessary

for the committee to express any opinion on the legal question upon which the decision of the Court of Claims turned, there being no question that the beef, for which compensation is claimed, was furnished to officers of the government in good faith, and applied successfully to put an end to a war of extermination between the whites and Indians, in furtherance of the policy adopted by Congress; there can be no question that the government ought to pay for property so applied to public uses, and the committee accordingly recommend the passage of the bill, as passed by the Senate, for the relief of said Hensley.”

The bill was accordingly passed, and will be found in 12 Stat., 847. The joint resolution cited in the Norris case was in pursuance of the same general policy adopted by Congress.

It is not necessary for us even to consider what would be our opinions or conclusions, if the case stood on the contracts, as sanctioned and approved by the executive authorities. We look upon the acts of Congress cited as clear and distinct legislative recognitions of the obligation of the United States to pay the fair value of the subsistence furnished to these'Indians, through their regularly constituted Indian agents. Nor do we think its effect was intended to be limited and confined to the cases actually paid. Such was the view entertained by Congress themselves of the effect of the payment in the Fremont case, that it was not so much the decision of a single case as the recognition of a principle embracing a whole class of cases. They all rest upon the same foundation of right and justice.

We are, therefore, of opinion that, upon the whole case, the claimants ought to recover. The price at which the cattle were alleged to have been sold was seventy-five dollars a head, and such is the amount claimed here. But it will be noted that the agreement was made, and the acceptances given in November, 1851, while the cattle were not delivered till the spring and summer of 1852. From the evidence given by the United States, it is apparent these cattle actually delivered by Frémont to Savage, the sub-agent, were inferior to the kind contemplated at the time of purchase, for the proof is pretty clear that they could have been purchased for from forty to fiffy dollars per head. And this action can be sustained only upon the implied engagement of the defendants to pay for the cattle furnished for their use, and that only involves what they were fairly and reasonably worth taking all the facts in the case, we cannot go beyond fifty dollars as the full value of the cattle at the time. As to the flour mentioned in the contract, there is no such clear and distinct evidence of delivery as we think necessary to charge the defendants, and wo therefore throw it out of the calculation.

The number of cattle sold were twelve hundred, and for which Johnston gave to Frémont his acceptances at $75 per head, amounting to ninety thousand dollars; of these twenty thousand were indorsed to Jackson & Co., the equitable claimants here, and the residue to other parties. As the difference in the value of the cattle delivered reduces the whole claim to sixty thousand dollars, so the proportionate reduction in this case will be six thousand six hundred and sixty-six dollars and sixty-six and two-third cents, leaving the net balance the sum of thirteen thousand three hundred and thirty-three dollars and thirty-three and one-third cents ($13,333 33J-) due claimants, and for which sum we direct a judgment in their favor.

Judge Loring,

dissenting:

There being no special act of Congress in this case, as there was in the Norris case, I think this case stands on the contracts and drafts exactly as Hensley’s ease stood; and for the reason stated in that case, I think the legal liability of the defendants is not shown, and, therefore, that they are entitled to judgment here.  