The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 23

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 23

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CHARGE OF JUDGE HOPKINSON.

1833.]

while his labour in taking care of the stores and distri- buting them, would be very great and unrewarded. By turning to the 3d section of the act, which creates this office, the duties of the officer in the view of the legislature, and to which the stipulated compensation may be supposed to refer, is as follows-the "making of contracts, the purchase of supplies, and the disburse- ment of monies for the use of the navy." No stores or supplies seem to have been contemplated by this law, but such as were purchased by the agent, and for which, in course, he has received his commission on the dis- bursements in making the purchase. But the distribu- tion of stores, or supplies not purchased by him, and for which service he has, in no shape, received any compensation, seems not to have been considered, or distinctly provided for, in the description of duties to be performed by the agent, or in fixing his compensation for his services. Is the credit now claimed be such a one as the head of the department was authorized to allow, in the exercise of his equitable discretion, in the settlement of the accounts of a public officer? or is it so clearly prohibited by the act of 1809, that to allow it would be a violotion of the law? In the latter case, neither the Secretary nor the Court,have any power over it. In the former, the Court may do whatever the Se- cretary might have done. We may give the credit, if we are justified in considering the service for which it is claimed, to be a casus omissus in the law, not provid- ed for by it, and not within the restriction of compensa- tion there .imposed. In such a case we may consider the equity of the claim arising from the performance of a service, for which no remuneration has been made, and its allowance or disallowance would be subject to the discretion of the court, under all circumstances of the case. It is not a credit of positive right, for it is not promised by the act of Congress, or by any contract with the government; and its allowance as an equitable charge will always depend upon the fact upon which the equity is founded. Such an equity may be founded in one case and not in another, and each will be govern- ed by its own circumstances. In this item, I have con- cluded, not without much doubting, to allow a commis- sion of one per cent. on the value of stores or supplies distributed by the complainant, and not purchased by him, but furnished by the United States. The credit claimed in his account is 5 per cent. or $1043 99, the al- lowance will be one fifth of that sum, or $208 80. As connected with this part of the case, I will dispose of the charge of $183 24, commissions on stores and pro- visions delivered over by the complainant to his succes- sor, Philo White. This charge is wholly inadmissible. It has none of the considerations in its favour that have influenced my decision on the two last items. Its whole service was probably the delivery of a key to Mr. White. It was hiis duty to put his successor in pos- session of the public stores, and can afford no ground for a commission, on any principle of the most liberal equity. A charge for clerk hire is deemed at the treasury to be a proper credit to the complainant, and one thousand dollars have been allowed for that ob- ject. The balance of $268 75 was rejected as an ex- cess of what was thought to be a necessary or reasona- ble expenditure on that account. The complainant has exhibited receipts showing that the whole amount claimed by him has been actually paid to his clerks. He asks only for reimbursements. It must be allowed as there is no evidence of any bad faith or wanton extrava- gance in the expenditure.

The sum of $863 33 is claimed for damages and in- terests paid to Alsop & Co., on a bill drawn by the complainant on the Secretary of the Treasury, on the 16th August 1830, which was protested for non accep- tance and non payment. The protest of this bill was permitted by the government under a mistake of the fact concerning it. The complainant while legally act- ing as Navy Agent, had unquestionably a right to draw bills on the government; and many had been drawn

and paid. The only reason for refusing this, was a suspi- cion or belief, that it had been drawn after the complainant had notice of the revocation of his appointment, and, of course, after his right to draw had ceased. This was altogether a mistake. The letter of revocation was dated April, 1830, and did not come to the knowledge of the complainant, until the October following, several weeks after the date of the bill, which was therefore rightfully drawn. When the truth of the transaction was known, the bill was paid, but the damages which were paid by the complainant in consequence of the protest, by the mistake of the government, and for no fault of the complainant, have been withheld, and the loss thrown upon him. I cannot see on what principle of law this has been done. In such a case, between a factor and his principal, can it be doubted, the factor would be entitled to a full reimbursement of such pay- ment. This credit must be given to the complainant.

The two next items will be considered together. They are so manifestly unsupported by the facts and reason of the case, that it is a subject of regret as well as surprise, that the complainant should have introduced them in his account. The first is a charge of $1609 87 for his board during his detention in Lima, owing to the protest of his bills, say from the day he ceased to be an agent, the 1st of October, 1830, to the 20th of January, 1832, at $3 37 per diem. The second is a charge of $3,229 15 for his compensation for the above time, at the rate of 2500 per annum.

As to the detention at Lima, owing to the protest of his bills, if we could agree that the protest of these bills, drawn by him as an officer of the United States, and for the payment of which he was not responsible, could afford a reason for remaining at Lima, at the charge of the United States, it is not to be doubted, on the clear evidence of the case, that he did not remain there for any such reason, but for his own purpose, or at least, at his own pleasure. He remained at Lima, after the no- tice of his removal from office, eight months before he knew of the protest of his bill, and during which time he had not any suspicion that it would be protested, yet these eight months are a part of the period during which he alleges that he was detained at Lima, "owing to the protest of his bills." Again he was informed of the payment of his bills in October, 1831, but his charge for detention runs to the 20th of January, 1832, and did not actually sail for the United States until March, 1832, either because he was attending to business of his own, or it may be he was waiting for a suitable convey- ance. In the face of such facts I cannot admit that the protest of these bill had any thing to do with his re- maining at Lima, and if they had, I do not see that their protest made such a necessity for his detention as to raise a claim against the United States for it.

The claim for compensation amounting to $3229 15 for services as Navy Agent, after the revocation of his appointment, and during the alleged detention at Lima is still more unreasonable. The claim is made for the time between the 1st of October, 1830, and the 20th of January, 1832. Now it is not questioned that Philo White, the official successor of the complainant arrived at Lima, and took possession of the stores, and assumed the duties of the appointment in May, 1831. And yet in the face of this fact, the complainant has made a charge as an acting Navy Agent, until Jan., 1832, full eight months after he had ceased to have any connec- tion with the office, its duties or services. It is true that when in October, 1830, the revocation of the com- plainants appointment came to Lima, he was requested by Commodore Thompson to continue to act as agent, as his substitute had not arrived, in procuring supplies for the squadron, and taking charge of such stores as might be sent out for its use. We may presume that he did so. But what were the services he performed under the appointment or request of Commodore Thompson? Merely to procure supplies and to receive and distribute stores. For these he has been paid by

CHARGE OF JUDGE HOPKINSON.

[Ateust

his commission on the monies disbursed for the purchases and on the stores distributed by him. I cannot but ob- serve that in the same account in which he has charged a commission of 5 per cent. for these services, he has also claimed a compensation for them in the shape of a salary, at the rate of $2500.

I have felt a strong disposition to allow the credit of three hundred and fifty dollars paid by the complainant for his passage home. He left his country and his busi- ness and prospects here, whatever they were, under an appointment by the government, which purported by the terms of his commission, to continue for four years, and as much longer as the office and his services might be thought useful and acceptable. It is true he had no legal right to this period of enjoyment, but he had a reasonable expectation of it, provided he gave no cause for a disappointment by his own conduct. No complaint seems to have been made of his ability or fidelity, but he had been but about fifteen months in the enjoyment of the place, when his appointment was revoked. Under such circumstances we can see and feel that a strong moral equity arises to bring him back to the place he was taken from. Between in- dividuals, a just and conscientious man, would, I think have done so. But no instance has been shown, under any such circumstances, of the recognition of a right legal, or legally equitable, in an officer who has been removed, or whose office has been vacated, to charge the government with his return home. I am afraid to set a precedent contrary to all usage and must disallow this credit or charge. So with the complainants travelling expenses in going to Washington to settle his accounts.

The only remaining item or charge in the complain- ants account is for the purchase of tobacco sold or fur- nished by him to the United States, amounting to $4277 68. I can have no hesitation in allowing it. In the let- ter of the Secretary of the Navy, to the fourth Auditor of the 25th June, 1832, he says: the tobacco must de- pend on whether the authority to purchase was revoked generally; and whether the revocation reached the pa- cific station before the purchase was made. If not, it should be allowed. Otherwise, it should not. This is very partial and imperfect view of the question, and it is probable that all the facts of the case were not known to the Secretary-we have them now in evidence. The answer of the United States to the bill of the complain- ant does not deny or admit, that a report of the tobacco was made by the complainant in his account to the De- partment, nor that it was surveyed by order of Captain Thompson, as part of the public stores of the United States, and, as such delivered over by the complainant to his successor in office, and regularly receipted for by him, on behalf of the United States. But it is insisted, that if all these things are true, they do not authorize the charge. And why? because it is denied that tobac- co was purchased on public account, or by the authority or instructions of any officer of the government; and it is avered that tobacco is not an article which a Navy Agent is authorized to purchase on public account, and that it is to be furnished to our ships by the Pursors, as a part of their stores. That the tobacco in question was the private property of the complainant* has ne- ver been accepted or legally transferred to the United States. That the Navy Department has never received any part of it, or interfered with it, or done any thing to recognize the validity of any transfer or purchase thereof; that no officer of the department or the navy had any authority to do so. In answer to all these de- nials and averments, what are the plain and uncontra- dicted facts of the transaction. This tobacco was ori- ginally purchased in Virginia, as the United States al- lege, as the private property of the complainant. After its arrival at Lima, it was sold by him to a Mr. McCulloch, and was afterwards repurchased by the complainant, as

* Shipped to him from Norfolk on his own account and still remains his private property.

he alleges, for the United States; a part of this tobacco was distributed or delivered by the complainant, before his removal from office, to certain ships of the United States, and the residue remaining in the stores of the United States, was handed over with the other stores, to Mr. White, the successor of the complainant, having been first surveyed by order of Commodore Thompson. From that day to this, not a pound of it has been in the possession, or under the control of the complainant, but that which has not been consumed in the ships of the United States, has continued in the possession of their agent. Why need we enquire whether by the regula- tions of the navy tobacco is to be furnished to our crews by a Navy Agent or Pursor? If such be the regulation undoubtedly it would have been a good and sufficient reason for refusing to receive this tobacco, either on board the ships or as part of the stores of the United States, and for leaving it in hands of the complainant, for profit or loss, as might happen but it can never af- ford a justification for receiving the article, for actually consuming a part of it, and for retaining the residue, and refusing to pay for it. As for that part which has been delivered to the ships, a credit has been allowed, and thus far at least a purchase and sale have been re- cognized and adopted by the department, notwithstand- ing the alleged navy regulation. In what respect, on what principle of justice or equity, does the part of the to- bacco for which the complainant has been allowed a cre- dit differ from that for which he has been refused. The first was delivered to the pursers of their ships, and has been consumed by their crews; the other has been delivered to their agent authorized to procure supplies for the navy, and has been by him distributed to the ships, or is still retained by him as the property of the United States. If he was not authorized to receive it, let him answer for it. It is enough for the complainant that he did receive it, and has receipted for it, as the agent of the United States, and on their behalf. Suppose we should consider that the com- plainant was not warranted as a Navy Agent to make the purchase from Mr. McCulloch, for the United States. The consequence is that it was his own pro- perty, and by him, sold and delivered to Mr. White, who was the agent of the government. Is it any an- swer to the seller of an article to such an agent, to tell him that by the navy regulations, the pursers and not the, Navy Agents are to furnish tobacco to our ships. And therefore the United States may keep and use the article, and are not bound to pay for it. This cannot be. If the tobacco was received from complainant as public stores, then he has a right to charge for it at the price he gave for it; if it was a sale by him to the public agent, then he has a right to receive its fair price or value for it; and we have no better way of ascertaining it, than by taking the actual cost of it to him. I cannot deny that a suspicion hangs upon my mind, that the sale to Mr. McCulloch was not a real transaction, but a con- trivance to enable Mr. Armstrong, to sell his tobacco to the United States, at an advance or profit on its cost, which as a public agent he was not authorized to do. If this were clearly shown, it could have no other effect on the case, other than to deprive him of the profit, a few cents a pound, and compel him to pass it to the Uni- ted States, at its first cost in Virginia, and the charges of taking it to Lima.

The evidence is not sufficiently explicit on this point to enable me to take this ground, and the objection has not been made at the Treasury, from which, I presume they were satisfied in relation to it. I have therefore allow- ed the sum claimed in the complainants accounts.

The complainant then has been allowed one

per cent. commission on stores distribut- ed, § 208 80

Clerk hire,

268 75

Damages on protested bills, 863 33

Tobacco delivered to Navy of United States, 4,279 68

5,620 56

EXTENSION OF THE ELIZABETHTOWN AND SOMERVILLE RAIL ROAD.

1833.]

Ile has not been allowed commissions reject- ed at last settlement, 5,755 86

His board while detained at Lima, 1,609 87

Compensation for the same time,

3,229 15

The two items for (5 per cent. ) commissions on distributions of stores, 1,043 99

His passage home, 350 00

Travelling to Washington,

43 50

Commission on stores handed over to P. White,

183 24

Commission on $80 paid Mr. Henderson, 4 00

$12,219 61

Decree in favour of United States, for $7,254 58.

J. R. INGERSOLL and G. M. DALLAS, Esquires for the complainant.

H. D. GILPIN, Esq. District Attorney for the United States.

From the Elizabetown Journal. EXTENSION OF THE ELIZABETHTOWN AND SOMERVILLE RAIL ROAD.

LUZERNE, Co., 10th May, 1833.

" I proceed to answer your inquiries, and give such information as I possess upon the several subjects to which you have directed my attention-as to bitumin- ous coal. Formations of this coal are known to exist in Bradford county and Tioga county, but neither the extent nor the depth of the strata is yet ascertained. Wood abounding, the inhabitants of Bradford county have not sought this coal for fuel, and there being little deinand for it, either domestic or foreign interest, the prime mover of most things, was wanting to induce the investigation. No bed has, I believe, been regularly opened in Bradford county. In the north-east angle of Tioga county, some bituminous coal has been raised, under the influence of the wants of a part of Western New York, and towards which part of the public works of that state are now progressing. The nearest bitu- minous coal to Pittston is distant about 70 miles, almost directly upon the waters of the Susquehanna, on the waters of the Towanda creek, and at the northern base of Burnet's mountain.

" As to the communication extending still farther to the north and west, calculated to increase the amount of transportation or travel, upon the Susquehanna and Delaware Rail Road, there are several authorized public works, extending from the line of the Susquehanna and Delaware Rail Road at Pittstown, and above it, ne- cessarily tending to produce that effect; one is the Leg- get's Gap Rail Road, a law for which passed at the ses. sion of our legislature previous to the last; the line of this road unites with the Susquehanna and Delaware Rail Road in the valley of the Lackawana, near Cen- treville, about 12 miles north-east of Pittston. From thence the proposed route of this road runs to the Great Bend of the Susquehanna, above Binghamton, about 50 miles. This would bring the Susquehanna at the Great Bend within 108 miles of the Delaware, at the Water Gap. I forward you a report made on this line in 1832, by Mr. Seymour, a competent engineer. From the point whence this strikes the Susquehanna at the Great Bend, a line of Rail Road may be run, at an easy grade of about three feet descent in a mile, to Binghamton. Here we meet with the Chenango canal, now authoriz- ed to be constructed at the expense of the state of New York, a work of great magnitude and extent, penetra- ting into the heart of the empire state, and forming a connection with the Erie Canal. Our interest continues much higher up the north-east branch, which will be evident on an examination of the map of New York; but I confine myself in this to the authorized or com- pleted public works with which we are at once con- nected.

" Another extension of the Susquehanna and Dela- ware Rail Road, bearing farther to the north-west, is the Susquehanna river Rail Road. An act passed tlie le- gislature of Pennsylvania, at its last session, authorizing the Governor to incorporate a company to construct a road along the margin of the Susquehanna, on the west side, from a short distance below Wilkesbarre, to the line of our state, near Tioga Point :- thus virtually abandoning the North Branch Canal by the state, and establishing the head-quarters of the Pennsyvania works at the dam, on the Lackawana, a little above Pittston. For some of the many reasons for which the Susque- hanna and Delaware Rail Road ought to be made, this river Rail Road will be made; at least such is my decid- ed belief. There are overruling interests, which, when understood, will secure the stock's being subscribed. This river line may be graded from Pittston to the state line, above Tioga, (about 86 miles, ) at about two and a half feet elevation per mile. From this to Owego, (say 20 miles farther, ) nearly equal facilities exist. Here would be a connection with the Owego and Ithaca Rail Road, now nearly completed; and the communica- tion would be extended from thence by the Cayuga lake, to an intersection with the Erie Canal, forming a splendid line of works, penetrating the very centre and the most beautiful part of the state of New York-a connection of itself of sufficient importance to com- mand the admiration of every friend to the improve- ment of our common country. Proceeding still farther up the north-east branch of the Susquehanna, a Rail Road may be graded with nearly equal facility to Bing- hamton, at the entrance of Chenango canal-forming, an available connection with that improvement, in case the shorter route by the Legget's Gap Rail Road should be delayed or fail in its execution.

" Returning to Tioga Point, we find the same facili- ties for a more western extension. Ascending the Che- mung or Tioga river, (the north-west branch of the Susquehanna,) with a little higher grade, but on the finest ground for Rail Road, at about 20 miles from the Tioga Point, we reach Newtown. Here we meet with the Newtown or Elmira canal, and also with the Seneca lake, and come in connection for the third time with the Erie Canal.

"From Newtown, a canal is about being extended still father up the Tioga river, intended, as I under- stand, to facilitate the transportation of bituminous coal, from the deposites south of the Pennsylvania line to the western state of New York.

" From Pittston to Tioga Point, from Tioga Point to Uwego and Binghamton, and from Tioga Point to New- town, the grade is so easy, that on a well-constructed Rail Road, with locomotive power, a few hours travel would connect these points. 'Tioga Point I have always looked upon as the key of nearly all western New York. And I have ever believed the natural, as well as artificial communications connected with this point, destined in the progress of events to bring into and lead through Pennsylvania a great part of the richi pro- ducts of their most fertile region. .

" An early connection of the Susquehanna and Dela- ware Rail Road with Tioga Point, by means of the Legget's Gap or river Rail Road, would enable it to take charge of a great portion of the Susquehanna trade, to the Delaware at least, and a great portion of it would pass on through New Jersey to the city of New York. This trade will probably treble in amount on the completion of these communications. In passing the eye over the map of western New York, from Tioga Point, no intelligent observer can, I think, fail to be convinced, that to that point all the products of a wide range of fertile and populous territory must surely come, and that if all or any of these are ever to find their way to their own great commercial capital, they must do so by the Pittston, Water Gap, Belvidere, and Elizabethtown Rail Roads.

" Little has yet been said of the public travel, and of

MISCELLANEOUS.

[AUGUST

the revenue to be derived from passengers. This item, under present prospects, ought surely to be taken into view. Will not this line of communication, by the Elizabethtown and Somerville, and Susquehanna and Delaware Rail Roads, if extended, as it is now pretty evident it will be extended, by a continued line of Rail Road into western New York, surpass all other routes for the accommodation of travel, and become the most desirable line for passengers, from the city of New York and the New England sea-board, to the Falls of Niaga- ra, to Lake Erie, and to the whole western region?

" On this subject we may, I think, with confidence appeal to facts, unchangeable in their nature, and ask those who would consider this line of Rail Roads, with a view to test its merits, to examine the maps, and par- ticularly a map of western New York, as a map more particularly showing the whole line, the large map of N. Jersey, &c. &c. This, with the facts made known by the Pennsylvania engineers, relative to the north branch of the Susquehanna river, the plan and facilities of the authorized improvements, the report of Captain Beach on the Susquehanna and Delaware Rail Road, the ac- companying statements of the Commissioners and the report of the engineers upon the line from Belvidere, via Clinton, Somerville, and Elizabethtowon, to New York, will afford a view of the outline of this interesting project, from which I think its merits cannot fail to be duly appreciated. H. W. D.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII, Part 23

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 438

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 438