FIRST AUDITOR'S OFFICE, August 11, 1849. The above account allowed in accordance with recent decisions of the First Comptroller of the Treasury, and approved by the Secretary. E. T. MONTAGUE. The above I copied from paper sent by Mr. Dickins to find decisions referred to in certificate of Montague. FEBRUARY 11, 1854. Correct copy: E. M. WHITTLESEY, Clerk. JOHN Y. LAUB. No. 101,509.] TREASURY DEPARTMENT, First Auditor's Office, August 11, 1849. I hereby certify that I have examined and adjusted an account between the United States and Asbury Dickins, and find that the sum of three thousand nine hundred and seventy-six dollars is due from the United States to the said Asbury Dickins for his salary as Acting Secretary of the Treasury, Acting Secretary of State, and chief clerk of the Treasury Department, under previous decisions of the First Comptroller of, and approved by the Secretary of the Treasury, as follows, viz: $1,235 57 For his salary as Acting Secretary of the Treasury for various periods during the years 1829, '32, '33, per statement........ For salary as Acting Secretary of State for various periods during the years 1833, 35, '36, per statement.... For salary as chief clerk of the Treasury Department from June 21 to August 7, 1831, not heretofore paid to him, per statement. 2,479 16 261 46 3,976 19 as appears from the statement and vouchers transmitted for the decision of the Comptroller of the Treasury. WM. COLLINS, COMPTROLLER'S OFFICE. day of Comptroller. I admit and certify the above balance this To the REGISTER OF THE TREASURY. I certify the foregoing is a true copy from the records of this office. T. L. SMITH, Auditor. IN THE COURT OF CLAIMS. IN THE MATTER OF THE CLAIM OF ASBURY DICKINS. Brief on behalf of the Petitioner. The petitioner founds his claim upon services rendered to the United States as Acting Secretary of State and Acting Secretary of the Treasury, at various times between the 24th of April, 1829, and the 27th of September, 1836, under appointments made by the President of the United States, by authority of the eighth section of the act of May 8, 1792, entitled "An act making alterations in the Treasury and War Departments."-(Statutes at Large, vol. 1, p. 281.) No fact stated in his petition is denied on the part of the government, and the evidence rests in its own archives. In the absence of any such denial, for the purpose of deciding on the rights of the petitioner, his statement must be assumed to be true, and the only difficulty is in presenting any doubtful question of law on which his right to the relief he asks can be controverted. Upon principles of universal justice, and upon the settled and unquestionable rule of the common law, services rendered by one person to another, at his request, create a just claim to compensation against the party to whom the services have been rendered. A promise will always be implied, where services are rendered upon request by A to B, without agreement as to compensation, to pay what the services are worth, and an action of indebitatus assumpsit will lie against the party to whom the services have been rendered. The first question which may be presented is: Does any different principle obtain as to the right to compensation where the services are rendered to the State? No distinction can be stated which justifies the application of a different principle; and it is submitted that no semblance of an authority in the shape of a judicial decision or dictum recognizes any distinction. Between individuals, where the agreement specifies the compensation as well as the service, the specific price is recoverable; and so in the case of the State, where the sum to be paid is specified in the law creating the office or authorizing the performance of the services, the legal as well as equitable obligation to pay exists. Undoubtedly, either in the case of a salary attached to a permanent or temporary office, or of services rendered under the authority of law, where no specific compensation is provided by the law which authorizes the performance of the services, the executive department, in our form of government, could make no payment without an appropriation by the legislature; but the equity and right of the individual to compensation would exist, though the appropriation, from accident, neglect, or misapprehension, might not have been made; and the right would be the same whether the amount to be paid had been specified in the law in the shape of an annual salary or fees, or left indefinite and dependent upon the value of the services rendered. Where the salary is specified, and the appropriation made, the salary is the measure of compensation; and where the services are rendered, and an appropriation made generally for the compensation for such services, the quantum meruit is the only true and legal mode of payment. The only difference is that, in the former case, no discretion is left with the executive department, but, in the latter, the discretion exists to adjust the compensation within the limits of the appropriation, upon the basis of value received by the government. As just a claim would exist against the State for the unpaid residue where the appropriation was insufficient to pay for the services what they were fairly worth, as where the appropriation was insufficient to pay the amount of a fixed salary. The obligations of the State, upon any recognized principles of law or equity, would be equally strong in both cases-in the one to pay the sum it had expressly agreed to pay, and in the other to pay what it had agreed to pay by implied contract; that is, a fair equivalent for the services rendered under its authority. It is true that if the legislature refused to appropriate the requisite amount, the sovereign could not, under a well known rule of policy, be sued in his own courts; no payment could be enforced, and the claimant would be legally remediless. But in either case, whether the promise of the State was express to pay a fixed sum, or implied to pay what the service rendered at its request was worth, the right of the claimant would be equally violated by a refusal to appropriate, and the claim would remain valid in equity and justice. It is submitted that this Court was constituted for the purpose of determining, upon principles of equity and justice, all claims founded upon implied contracts with the government of the United States, as well as those founded upon express contracts, and that, in the case of a State as well as in that of an individual, an implied contract is as imperative in its obligation as an express contract. Secondly, it may, however, be contended that as the petitioner was chief clerk in the respective departments in which he performed the duties of head of the department by due appointment at the time the services were performed, he is not entitled to payment for services so performed, though a person unconnected with the department, and performing the same services under the same authority, would have been entitled to compensation. If this objection is presented, it can only be on the ground that the offices were incompatible; and if the objection is made, it rests with those who represent the government to show that incompatibility, and, consequently, the violation of law by the Executive in making the appointment. But there was no law which restricted the discretion of the President in the selection of the individual who was to perform the duties of the office of Secretary of State or Secretary of the Treasury in case of the temporary inability of the regular head of the department, from absence or sickness, to perform them. The discretion of the President was absolute under the act of 1792 as to the person to be appointed; and the relations which necessarily exist between the chief clerk of a department and its head peculiarly qualify him, in case of accidental temporary inability of the Secretary, to supply his place. It is one of those cases in which, to use the language of Chief Justice Taney, "it often happens that in unexpected contingencies, and for temporary purposes, the appointment of a person already in office to execute the duties of another office is more convenient and useful to the public than to bring in a new officer to execute the duty."-(U. S. vs. White et al., C. C. U. S., Maryland district, per Taney, C. J., manuscript, pp. 3, 4.) Indeed, the question is not worth an argument, as the intellect, or even the imagination, may be tasked in vain to point out any incompatibility in the duties of the chief clerk of a department which disqualifies him for the temporary performance of the duties of head of the department. The offices, however, are distinct, and the incumbent of the one is under no obligation to perform the duties of the other. The duties are essentially different, and a separate salary is by law attached to each. It was not as chief clerk that the petitioner performed the duties of head of the department. In the exercise of the discretion which the law specially authorized, the President invested him, though chief clerk, with a separate and independent office, and it was under that appointment, and in that independent office, he acted. Congress might, undoubtedly, have provided by law that, in the event of the sickness or absence of the head of a department, the chief clerk should, ex officio, perform his duties. But Congress had made no such provision, and it no more devolved upon the chief clerk virtute officii to perform the duties of the office of Secretary of State, in case of temporary disability of that officer, than it did upon the head of any other department or any other officer. Indeed, without an appointment by the President under the act of 1792 the chief clerk could not legally act as Secretary of State. It cannot, therefore, be objected to the claim of the petitioner that the performance of the duties for which he claims compensation was incident to his office of chief clerk. It may possibly be contended, however, that since the passage of the acts of August 23 (sec. 2) and 26, (sec. 12,) 1842, and that of March 3, (sec. 4,) 1849, the chief clerk of a department performing the duties of acting Secretary of the department under the appointment of the President would not be entitled to any other compensation than his own regular salary as chief clerk. This might be admitted without touching the merits of the present claim, as all the services of the petitioner for which he claims compensation were performed previously to the passage of those acts. If, with a view to prevent personal favoritism, or the holding of sinecure offices, Congress has by those laws, or either of them, prohibited the allowance of any compensation to a clerk or other officer in a department who performs the duties of any other officer in addition to his own, however wise such provisions may be for the future, they are not retrospective, and it would be gross injustice to give them judicially a retrospective operation. It has been previously observed that it was no part of the petitioner's duty as chief clerk, nor could it, without express legal provision to that effect, be incident to his office of chief clerk, to perform, as such, the duties of head of department. It is not, therefore, any additional or extra pay as chief clerk that he claims, but the compensation justly due to him for performing the duties of a separate and independent office, to which he was appointed by the President by virtue of law. In support of the claim, he cites the following extract from an official opinion given by Mr. Wirt, Attorney General of the United States, on a claim of General Cass when governor of Michigan: * * * "His salary is a compensation for his services as governor; but the services for which he claims do not belong to his duty as governor of the Michigan Territory, and, having been employed by the government to perform these services, he has a fair claim for them on the principles of a quantum meruit. The facts conceded, his right, I think, is undeniable."-(Opinions Attorneys General, vol. 2, p. 189.) The petitioner cites, also, the official opinion of another Attorney General, Mr. Legaré, who, in relation to a claim of Mr. Young, then chief clerk of the Treasury Department, for performing services exactly like those for which the petitioner claims, said: "In the matter of Mr. Young's claim, I am of the opinion that the Secretary of the Treasury ad interim, appointed by virtue of an express law, has a claim upon the government for the usual, or, if there be no usual, for a reasonable compensation for his services in that capacity; but I do not think he can obtain it without an appropriation by Congress for the purpose. The act of 1839 is imperative to that effect."-(Opinions of Attorneys General, vol. 4, p. 122.) This opinion of Attorney General Legaré covers the case of the petitioner. He admits the obligation upon the government to pay, but advises (what is conceded here) that the executive department could not pay a claim clearly valid without an appropriation. It is in this, as in other cases, the want of an appropriation, where a right exists, which calls for the interposition of the Court. It was decided by Judge Story, in the case of the United States vs. Morse, (Story's Reports, vol. 3, p. 87,) that two offices, not incompatible, may be conferred on one person, and that he will be entitled to the compensation of both. A similar decision was made by Chief Justice Taney, in the case of the United States vs. White et al., already referred to. In that case White, the defendant, had been regularly appointed navy agent, with a salary fixed by law. He was also appointed to discharge the duties, ad interim, of a purser in the navy, and performed the duties. His salary as acting purser was disallowed at the treasury under the acts of 1839 and 1842, because he was regularly in office as navy agent, under a compensation fixed by law. The Chief Justice adjudged that he was entitled to both compensations. * * * "There is no law," said the Chief Justice, "which prohibits a person from holding two offices at the same time." "Indeed, it often happens that in unexpected contingencies, and for temporary purposes, the appointment of a person already in office to execute the duties of another office is more convenient and useful to the public than to bring in a raw officer to execute the duty. And if the duties of the second office are performed, and the law has fixed the compensation which it deems just for such services, it cannot be material whether they are rendered by one holding another office or not, provided they are faithfully discharged."-(Manuscript opinion, pp. 3 and 4.) * * * Though the petitioner held the office of chief clerk while, by the President's appointment, he performed the duties of the office of head of the department, he performed faithfully all the duties of chief |