1st Session.

No. 123.

IN THE SENATE OF THE UNITED STATES.

FEBRUARY 23, 1854.-Ordered to be printed.

Mr. SHIELDS made the following

REPORT.

[To accompany Bill S. 229.]

The Committee on Military Affairs, to whom was referred the memorial of Thomas J. Russell, praying compensation for services during the war with the Seminole Indians in Florida in 1836, having had the same under consideration, report:

That they find the facts in this case to be as follows: That he volunteered as a private in Captain Finlay's company at Charleston, South Carolina, on the 25th January, 1836, and served with that company for twenty-five days in Florida. That upon the arrival of Colonel Brisbane's regiment of volunteers in Florida in February, 1836, Captain Finlay's company was discharged.

That he immediately joined Colonel Brisbane's regiment, of which he was (by Colonel Brisbane) appointed assistant commissary of subsistence, with the rank of second lieutenant. That he accompanied said regiment during the whole of that campaign against the Seminole Indians in the months of February, March, April and May, performing the duties of assistant commissary, which is substantiated by the affidavit of the said Colonel Brisbane. The paymaster of the regiment refused to pay the memorialist for his said services, because his name did not appear upon the roll as one of the officers of the staff of Colonel Brisbane, and he was not mustered into service with the regiment at Charleston, South Carolina, and the same objections are made to paying him by the department at Washington.

The committee are satisfied that the memorialist did perform the services for which he claims compensation, that there was a necessity for his employment in that capacity, and that he ought to be paid therefor, notwithstanding the informality of his appointment; they therefore report an act for his relief, referring the case to the War Department, that justice may be done in the premises.

The Committee of Claims, to whom was referred the memorial of Asbury Dickins, have had the same under consideration, and report:

The memorialist, at different times, held the office of chief clerk of the Treasury and State Departments; during the time he held those offices he was, for limited periods, authorized to perform the duties of the respective heads of said departments by the President of the United States, in conformity with the eighth section of the act of May 8, 1792, and he now asks that he may be allowed the salary legally attached to the offices, the duties of which he was thus required to perform, during the periods he actually performed such duties, after deducting the amount of his pay as chief clerk.

Although the act referred to makes it "lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices," it does not provide for any compensation for the service required. But it cannot be presumed that the government intended to require such services without adequate allowance, nor is it doubted that the performance of such services, when so required by the President, affords a legal as well as equitable claim to proper compensation. And as the principle here laid down and applicable to this case has been, as the committee think, fully recognized by Congress in numerous instances, they have unanimously agreed to report the accompanying bill, and recommend its passage.

The memorial, which contains a full statement of the case, is hereto annexed.

To the Senate and House of Representatives of the United States of America in Congress assembled:

The memorial of Asbury Dickins respectfully showeth: That, during the time when General Jackson was President of the United States, your memorialist held, successively, the offices of chief clerk of the Treasury Department, and chief clerk of the Department of State;

that while he held the former office, and when the head of the department was absent or sick, or otherwise unable to perform the duties of his office, your memorialist was appointed by President Jackson acting Secretary of the Treasury, and, in like manner, while he held the office of chief clerk of the Department of State, and when the head of that department was absent or sick, or otherwise unable to perform the duties of his office, your memorialist was appointed by President Jackson acting Secretary of State-such appointments being specially authorized by law; and that, for the performance of the duties of these appointments, your memorialist has received no compensation, except on one occasion where he acted in the absence of a gentleman, Mr. McLane, who had been appointed Secretary of the Treasury when out of the United States. Your memorialist further states that, for the performance of similar duties, under similar circumstances, and under similar appointments, his successor as chief clerk of the Treasury Department, Mr. Young, received a compensation equal to the salary of the head of the department, deducting therefrom the amount received by him as chief clerk; that this being the first occasion, as your memorialist believes, of such compensation being claimed by a chief clerk, the subject was carefully examined at the Treasury Department, and the allowance was made by the accounting officers, Mr. McCulloh being comptroller, and Mr. Collins auditor, with the deliberate sanction of the head of the department, Mr. Walker; and the like allowance was subsequently made to one of your memorialist's successors as chief clerk of the Department of State, Mr. Fletcher Webster, under similar circumstances; that your memorialist having, sometime afterwards, heard of these allowances, and considering his claim to a like allowance to have been thus authoritatively settled, presented the same, with the proper vouchers, to the auditor, Mr. Collins, who allowed and passed it; but your memorialist, having understood that there was then no appropriation out of which it could be paid, did not urge it before the comptroller, at that time Mr. Whittlesey, and has since been informed that it was by him disallowed. It is under these circumstances that your memorialist submits the same to Congress.

The services for which your memorialist asks compensation were rendered under appointments from the President of the United States, made in virtue of the authority vested in him by the eighth section of an act of Congress, approved the 8th of May, 1792, which is in these words: "SEC. 8. And be it further enacted, That in case of the death. absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War Department, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease." (Little & Brown's Statutes of the United States, vol. 1, p. 281.) Though the law authorizing the ap pointment of persons to perform these duties is silent respecting the compensation to be allowed for them, it is believed that, upon the same

principle on which services rendered for an invidual, at his request, constitute a legal claim for compensation, services rendered for the State, by its authority, constitute an equitable claim. It was no part of your memorialist's duty as chief clerk to perform the duties of head of department; and if the President, in the exercise of that discretion which the law authorized him to exercise, saw proper to confide those duties to your memorialist, it is believed that their performance by him constitutes a claim to compensation on his part not less equitable than when performed by another.

In the consciousness of having faithfully performed these duties to the best of his ability, and in the belief that he is equitably entitled to compensation, your memorialist respectfully prays to be allowed the difference between the salary of chief clerk and that of head of a department, while he performed the duties of head of department by authority of the President; your memorialist having, at the same time, performed also the duties of chief clerk.

Your memorialist believes it is not unusual, in cases where an officer has been called to perform the duties of two offices, for him to be allowed the compensation of the highest; and, in several instances, where, in cases of vacancy, the head of a department has been appointed to take charge, temporarily, of another department, he has received the compensation of both; and the gentlemen who have done so are among the most eminent among the legal profession in the United States.

WASHINGTON, February 13, 1854.

ASBURY DICKINS.