Minis v. United States. 15 P.

1837. No evidence was offered on the part of Dr. Minis, of any contract or of any usage of the government for the allowance of any such commission, in cases of this sort. The counsel for Dr. Minis, among other things, (not material in the present state of the case,) prayed the court to instruct the jury, 1. That the clause in the act of congress of the 3d of March, 1835, c. 303, which was relied upon as the authority by which the defendant's claim for commissions was rejected, did not apply to the defendant's case; because it expressly refers to moneys appropriated during that session of congress, and, therefore, that the second auditor erred in disallowing [* 444 ] the charge for commissions. 2. That the defendant was entitled to the commissions charged by him, as well from the longestablished practice of the government, as from the law of the land, there being no law prior to the act of the 3d of March, 1839, disallowing commissions or moneys disbursed for the government. 3. That the charge for commissions should be allowed, because the charge is made for the disbursement of moneys appropriated during the sessions of congress of 18363 and 1837; and, therefore, that neither the act of 1835 nor of 1839 was applicable.

These instructions the court refused to give; but instructed the jury "that in the relations which the defendant had stood to the United States, as an officer in the army, he had no claim by law for commissions on the sum disbursed by him, whatever interpretation might be given to the concluding proviso of the act of the 3d of March, 1835, c. 303; and admitting that such proviso was limited to a prohibition per cent., additional pay, extra allowance or compensation, on account of disbursing any public money appropriated by law during the session of congress when the act was passed containing the proviso, that said proviso could not be interpreted to give commissions or per cent. upon disbursements of antecedent or subsequent appropriations of money by congress, unless the same were authorized by law; and that no law authorized the defendant to charge commissions, and, therefore, that the second auditor, had not erred in disallowing commissions to the defendant." To this opinion of the court the defendant excepted. The jury found a verdict for the United States, after deducting certain other disallowed items; and judgment was rendered, accordingly, for the United States, and the present writ of error is brought to revise that judgment.

It is certainly true, as has been suggested at the bar, that the case is, as to the evidence necessary to raise some of the questions, very imperfectly and defectively stated; and, therefore, some of the instruc

14 Stats. at Large, 753. VOL. XIV.

2 5 Ib. 339. 34 Ib. 2, 17, 112.

12

4 Ib. 163, 207.

Minis v. United States. 15 P.

tions might on this account have been well refused. It is, however, much more satisfactory to us to be able to dispose of the case upon its true merits.

The first instruction asked embraces the question, what is the

true construction of the 1st section of the act of the 3d [*445 ] of * March, 1835, c. 303, entitled "An act making certain additional appropriations for the Delaware Breakwater, and for certain harbors, and removing obstructions in and at the mouth of certain rivers, for the year 1835." That act, after making the specific appropriations, contains the following proviso: "Provided, that no officers of the army shall receive any per cent. or additional pay, extra allowance or compensation, in any form whatsoever, on account of the disbursing any public money appropriated by law during the present session for fortifications, execution of surveys, works of internal improvement, building of arsenals, purchase of public supplies of any description, or for any other service or duty whatsoever, unless authorized by law." The argument on behalf of the United States is, that this proviso, although found in a mere appropriation law of a limited nature, is to be construed, by reason of the words "or for any other service or duty whatsoever, unless authorized by law," to be permanent in its operation, and applicable to all future appropriations, where officers of the army are employed in such service or duty; and that it appears from the record that this was the very ground on which the treasury department rejected the claim of Doctor Minis for commissions. The same question has been made and fully argued in the case of Gratiot v. The United States, 15 Pet. 336, at the present term; and we have given it our deliberate consideration. We are of opinion that such is not the true interpretation of the terms of the proviso, and that it is limited exclusively to appropriations made at the session of 1835.

It would be somewhat unusual to find ingrafted upon an act making special and temporary appropriation, any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legisla ture to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be

brought within its purview. A general rule, applicable to [* 446 ] all future cases, would most *naturally be expected to find its proper place in some distinct and independent enactment.

Minis v. United States. 15 P.

Now, the language of the present proviso is perfectly satisfied by confining its operation to appropriations to be made during the then existing session. It seems clear that the words of the proviso ought to receive this interpretation, if the last clause, "or for any other service or duty whatsoever, unless authorized by law," were left out. The proviso would then in legal effect read, that no officer of the army shall receive any per cent. or additional pay, extra allowance, or compensation, in any form whatever, on account of the disbursing any public money appropriated by law during the present session, for fortifications, for execution of surveys, for works of internal improvement, for building of arsenals, for the purchase of public supplies of every description. What difficulty, then, is created by the addition of the subsequent clause? In our judgment, none whatsoever. The preceding enumeration is of special services in disbursing public money on account of particular appropriations for fortifications, &c. But it was foreseen by congress that other appropriations might be made during the same session for other objects not comprehended in the preceding enumeration; and, therefore, ex industria, the subsequent clause was added to supply any defect of this nature, and to cut off all claims for extra pay, allowance, or compensation for disbursements connected with such objects. The whole clause in this view would read precisely as if it had been introduced immediately after the words, " for fortifications." It would then be, that no officer of the army shall receive any per cent., &c., on account of disbursing any public money appropriated by law during the present session, for fortifications, or for any other service or duty whatsoever. This, too, is the grammatical sense of the words of the whole proviso, in the order in which they stand. On the other hand, the interpretation put upon the proviso on behalf of the United States, requires the court to read it as if the last clause were wholly independent of the preceding enumeration, and permanently prohibited any extra allowance or compensation "for any other service or duty" than disbursements, but prohibited it for disbursements only, under appropriations made during that session. This would seem obviously

to be inconsistent with the policy *upon which the supposed [* 447 ] permanency of the proviso is made to rest. The prohibition would then be utterly inapplicable to disbursements of future appropriations, which in most cases is the leading item of charge, and would be confined to "any other service or duty." Such an interpretation certainly ought not to be adopted in a proviso to an act making appropriations for certain specified objects, unless it be unavoidable. And to make the proviso apply to disbursements under future appropriations generally, the court would be driven to interpolate into

Minis v. United States. 15 P.

it the words," or at any future session;" a liberty which, consistently with the known limits of judicial duty, could never be properly assumed.

The subsequent legislation of congress, even if it could be brought in aid of the argument, rather tends to confirm, than to impugn the interpretation which we have given to the proviso. It was not until the act of 3d March, 1839, c. 82, that congress made a general provision on the subject, and enacted, by a distinct section, that no officer, in any branch of the public service, or any other person, whose salaries, or whose pay or emolument is, or are fixed by law, shall receive any extra allowance or compensation in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be allowed by law. The generality of this section would seem to show that, until that period, no law existed on the subject which was permanently applicable to any branch of the public service.

We think, then, that according to the natural meaning of the words, and the order in which they stand, the true interpretation of the whole proviso is, that it is limited to appropriations made during the session of 1835. If, therefore, the disallowance of Dr. Minis's claim to commissions depended upon the act of 1835, (as was the construction of the treasury department,) the instruction asked on this point ought to have been given by the circuit court.

But we are of opinion that his claim was properly disallowed upon another and distinct ground. No evidence of any contract or usage was offered to sustain it, and the case appears to us to fall directly within the provisions of the act of 30th of June, 1834, c. 162, for the organization of the department of Indian affairs. The 4th section

of that act provides that "it shall be competent for the [* 448 ] * President to require any military officer of the United States to execute the duties of an Indian agent." The 13th section further provides, that "the duties required by any section of this act, of military officers, shall be performed without any other compensation than their actual travelling expenses." Dr. Minis being a surgeon in the army, was appointed disbursing agent for removing and subsisting the Cherokee Indians, and has been allowed a compensation for his travelling expenses, under the agency, of five dollars per diem, amounting in the whole, to the sum of $1,420. It is not pretended that this sum was not a reasonable compensation.

It has been suggested at the argument, that no other agents are within the purview of the act of 1834, than such Indian agents as are to be appointed under that act as general Indian agents; and that Dr. Minis was not in that predicament. But looking to the

Groves v. Slaughter. 15 P.

whole scope and object of that act, contemplating, as it does, that military officers might be called upon to perform duties in connection with the general Indian agents, by the direction of the President, we cannot but entertain the opinion that the terms of the act were designed to exclude such military officers from any other compensation than their travelling expenses; as, in truth, when detached upon such special service, they were still entitled to their ordinary military pay and emoluments.

It has also been suggested, that the disbursements in the present case were not properly of public money, because it was money stipulated by treaty to be paid to the Cherokees, upon their removal, and the cession of their lands. But we think this objection is unmaintainable. The payments made were properly public money, and the disbursements thereof were on account of the United States, and for their use and benefit, in fulfilment of the obligations of the treaty.

Upon the whole, therefore, we are of opinion that the circuit court rightfully, under all the circumstances of the case, refused the instructions prayed for, and gave the very instruction which was required by law.

The judgment is therefore affirmed.

MOSES GROVES and JAMES GRAHAM, Plaintiffs in Error, v. ROBERT SLAUGHTER, Defendant in Error. JOHN W. BROWN, MOSES GROVES, R. M. ROBERTS, and JAMES GRAHAM, Plaintiffs in Error, v. ROBERT SLAUGHTER, Defendant in Error.

15 P. 449.

The provision in the constitution of Mississippi, of the year 1832, concerning the introduction of slaves for sale, is merely directory to the legislature, and is not operative as a law of prohibition, proprio vigore.

THE case is stated in the opinion of the court.

Gilpin and Walker, for the plaintiffs.

Jones, Clay, and Webster, contrà.

* THOMPSON, J., delivered the opinion of the court.

[ *496 ]

On the 5th of April, 1838, a suit was commenced by the defendant in error, against the plaintiffs in error, in the circuit court of the United States for the eastern district of Louisiana, upon a note, a copy of which is set out in the record, as follows: