Totten v. United States 11 Ct. Cl. 182

TOTTEN’S CASE.

(9 Court of Claims R., 503; 92 U. S. R., 105 .)

Enoch Totten, administrator of Lloyd, appellant, v. The United States, appellees.

On the claimant’s Appeal.

An action is brought to recover compensation for secret services rendered wider a contract made by the President in July, 1861, performed within the insurrec-tionary districts. The defendants plead the statute of limitations. The court below overrules the plea, on the ground that the right of action was suspended tuhile the party remained within the insurrectionary districts, but being equally divided as to the authority of the President to bind the Government by such a contract, renders judgment pro forma for the defendants. The claimant appeals.

I. The President, during the war of the rebellion, was authorized., as commander-in-chief to employ secret agents to enter the rebel lines and obtain information; and contracts to compensate such agents are so far binding upon the Government as to rentier it lawful for the President to direct payment of the amount stipulated therefor out of the secret-service fund under his control.

II. Where the President contracts for a secret service to procure information which has to be obtained clandestinely and communicated privately, both the employment and the service are to be concealed. This condition is implied in all secret service in time of war or affecting foreign relations. Therefore no action can be maintained on such a contract. The publicity produced by the suit would be a breach of the contract.

III. Public policy forbids the maintenance of any suit the trial of which will inevitably lead to the disclosure of matters which the law regards as confidential, and respecting which it will not allow confidence to be violated.

The Reporters' statement, of the case:

This action was not brought until the 22<1 May, 1871. On the trial the court below found the following facts :

I. On the 13th day of July, 1861, William A. Lloyd, the claimant’s intestate, entered into a contract, in writing, with the President of the United States, whereby it was agreed that Lloyd should proceed South and learn the number of troops stationed in the different points and cities in the insurrectionary States, procuring plans of fortifications and forts, and gaining *183all other information that might be beneficial to the Government of the United States, and report the facts to the President; for which service it was agreed he should be paid $200 per month.

II. Lloyd proceeded, under a pass in writing to that effect given him by the President, within the rebel lines, and remained there during the entire period of the war, collecting and from time to time transmitting information, traveling from point to point, running great risks, and suffering imprisonment at various times. After the close of the war he presented his account for services to the Secretary of War, and was, in October, 1805, paid $2,380, it being at the same time understood and agreed that such payment was to re-imburse him his expenses, and that by the acceptance thereof Ms demand for services rendered would not be compromised.

III. The services of Lloyd were continuous during the war, all of which time he was within the confederate lines, and no payment or adjustment of his account. was made by the defendants’ officers. He re-entered the United States lines, at Danville, Ya., on the 27th of April, 1805, but did not reach Washington until the 5th day of June, 1865.

And the Court of Claims decided upon the foregoing facts as conclusion of law :

The statute of limitations established by the “Amended CourtBof Claims act,” March 3, 1863, (12 Stat. L., p. 765, §10,) did not begin to run against the claimant’s demand until his intestate had passed out of the insurrectionary districts, and had reached the city of Washington, on the 5th of June, 1865.

But the Court of Claims being equally divided upon the question whether the President possessed power or authority to bind the defendants by the contract which he entered into with the claimant’s intestate as set forth in the foregoing findings, does, for the purposes of an appeal, decide that the petition should be dismissed.

Mr. Enoch Totten for the appellant:

By the terms of the Constitution of the United States the President is commander-in-chief of the Army and Navy of the United States. As such officer the President has a right to employ every reasonable means necessary and convenient to *184accomplish successfully the object of the Constitution in granting the power. “ Of all the cases and concerns of government the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” (3-Story-'s Con., § 1485.) Public officers and public corporations charged with the performance of specified duties may use any proper means reasonably adapted for the purpose. (Hodgson-v. Dexter, 1 Cranch, 345; Overseers v. Overseers, 18 Johu'., 418; Palmer v. Vandenburg, 3 Wend., 196; Clark v. Farrington, 11 Wis., 306; 1 Dillon on Corp., § 55.) The services of secret agents to obtain information for the commanding officer of an army in the field are declared to be necessary by the Army Regulations, and the Army Regulations have the force of law. (Army Regulations, 95, (672;) Gratiot v. 'United, States, 4 How., 117; Martin v. Mott, 12 Wheat-., 34.)

The President,' as commander-in-chief of the Army, or the officer actually in command of the Army under him, may lawfully establish provisional governments and provisional courts in conquered or re-occupied rebellious territory. (Leitensdorfer v. Webb, 20 How., 176; The Grapeshot, 9 Wall., 129; Merchants and Traders’ Bank v. Union Bank of La.) (Sup. Court U. S.) It seems to follow as a necessary consequence from the exercise of this power, that the officers appointed to administer the affairs of these provisional governments, and to conduct the administration of justice in these provisional or temporary courts, should be entitled to receive compensation for their services. The right to recover compensation follows after services rendered in pursuance of a lawful contract of employment. It would require very plain language from the legislative power to prohibit the commanding officer of an army in the field, during-active military operations, from employing guides and spies whenever he might think' such services necessary for the successful movement of a campaign. And if the commanding general could lawfully employ persons to render such services, it would certainly nob be beyond the power of the Secretary of War to make a like lawful contract. Yet these officers are only the subordinate agents or organs of the President, and their acts are his acts, and must be held to emanate from him. (United States v. Bliason, 16 Peters, 302; Martin v. Mott^ 12 Wheat., 31.)

It seems plain, therefore, that unless Congress has imposed. *185some restriction upon the powers of the commander-in-chief in reference to the employment of persons to render the services in question, the President possessed full power to, and did, bind the United States by the contract of the 13th of July, 1861. The only statute which could possibly be construed as a limitation on this power, of which I have any knowledge, is to be found in the tenth section of the act of March 2, 1861. (12 Stat. L., p. 220.) This section provides, among other things, that “no contract or purchase shall hereafter be made, unless the same be authorized by law or be under an appropriation adequate to its fulfillment.” But it is submitted that this provision has no application to contracts for “personal services.”

The only limitation or regulation in regard to the disbursement of the contingent fund of the Army is contained in the nineteenth and twentieth sections of the Act August 26, 1842. (5 Stat. L., p. 527.) That act requires, among other things, that each department shall render a detailed statement of the manner in which the contingent fund has been expended: “ If for any services rendered, the nature of such services, and the time employed, and the particular occasion or cause, in brief, that rendered such service necessary.” It is one of the obligations imposed upon the President to command the armies, and this is one of the powers incident to the duties of superintending the common defense of the republic, and such “ powers must be so construed as to the modes of their exercise as not to defeat the great end in view.” (Martin v. Mott, 12 Wheat., 30.)

Mr. Solicitor-General Phillips for the United States, appellees:

The claim is barred by the statute of limitations.

It was brought on the 22d of May, 1871. If at this time the plaintiff had a right of suit, he had enjoyed it for a term of full six years, that had expired, at all events, and for his whole claim, on the 14th of May, 1871.

According to the contract Lloyd was to be paid $200 per month. At the close of each month, therefore, he had a claim for so much. After six years elapsed from the time when his claim for that much arose, it became barred. (Rev. Stat., § 1069.) Every month’s pay is a fresh item in his account., The authorities, that in accounts of this sort items less than six *186years old do not withdraw items more than six years old from the operations of the statute, are plentiful. (Miller v. Colwell, 2 South., 597: Kimball v. Broion, 7 Wend., 322; Buntin v. Lagow, 1 Blackf., 373.)

More than this, Lloyd’s pay was, by the contract and nature of his employment, measured by the length of his stay within the rebel lines. He left these April 25, 1865, and returned no more. His pay, therefore, ceased upon that day. Or, if it be said that he was employed and to be paid by periods of months, his account ceased with May 13,18G5, i. e., the close of forty-six full months since he had entered upon his service. The bar of the statute, therefore, applies to the whole account.

There is nothing in the state of public affairs to prevent the above application of certain plain rules of law.

The war suspended the statute in favor of loyal parties only as against parties that were disloyal, or where the courts were closed. Lloyd was a loyal man, engaged in the public service of the United States within the confederate lines. There was no reason to prevent his being paid by President Lincoln at any time during the war that his accounts were presented. While transmitting “information” he had power as well to transmit an order for whatever was due him. The presence of such a man within rebel territory imposed no disability because of vicinage upon him, and consequently, vice versa, gave no occasion for exceptions in his favor in the statute of limitations.

If it could be suggested that the fact that his business rendered it difficult for him to apply for money is an equity in his favor, such as to dispose a court to extend the specific exceptions of the statute to the facts of his case, it is well settled that courts cannot, upon alleged grounds of equity, add to the exceptions enumerated in the statute. (Mclvor v. Bagan, 2 Wh., 25; Banlc, &e., v. Dalton, 9 How., 522.) We conclude, then, that Lloyd, having been at no time under any technical disability to sue for this claim, was barred from such suit as to any monthly item in his account after six years had elapsed from the termination of the month for which it was due, and, therefore, for the whole claim, after six years from April 25,1865, or, at most, from May 13, 18 |

Upon the point whether transactions of the sort under consideration give to the einployés therein a right of suit against *187the United States, we submit that the President made the arrangement in question with reference to a “ contingency ” or “secret-service” fund placed within his power by Congress; that his right to bind the United States for compensation to such employés was measured by the extent of the fund created for that purpose by Congress, and that upon the failure of such fund an employé can look only to Congress for further appropriation and compensation.

The power of the President, as commander-iu-chief, to employ spies is not disputed, but their compensation, just as all similar provisions for expenditures incident to war, must be provided for by legislation ; and it seems that, especially in the matter of expenditures which are secret, and thus freed from the checks enjoined by the system of accounts in ordinary cases, there should be a precedent or subsequent sanction by Congress before a right of suit arises.

The provisions of the Act 1861, (ch. 81, sec. 10, clause 3, 12 Stat. L., 220,) “ No contract or purchase shall hereafter be made unless the same be authorized by law or be under an appropriation adequate to its fulfillment,” is not subject to the exception contained in the first clause of the same section as regards “personal services,” as is suggested by the learned counsel for the appellant. It is not so either expressly or in the reason of the thing. The exception as to “ personal services” is not repeated in the latter clause, and the reason for making it in the former, viz, the obvious impropriety of seeking for personal services through the medium of advertisement and biddings, does not apply to the second clause, where the sole question is as to making contracts unauthorized by law ; and, apparently, such contracts should be forbidden, whether they be for materials, &c., or for persoual services. Accordingly, for this purpose no distinction is made in the third clause between the varieties of contracts in that class. We do not, however, cite this statute as having much bearing upon the present case, the whole of our contention in regard to which is that it is of a class that necessarily do not warrant a suit against the United States unless it be shown that there is an appropriation for secret service outstanding and applicable.