Colman v. United States

delivered the opinion of the court:

The effect of the findings of fact by the court discloses, in substance, that claimant’s testator was, June 2,1863, appointed by the President provost-marshal for the First Congressional district of Missouri, with the rank of captain of cavalry. While acting as such provost-marshal the deceased received, from numerous drafted men and from their brokers, various sums of monej'- upon the express trust that when a substitute should be tendered by the man who made the the deposit, and should be accepted and enrolled, the deposit should be paid to the substitute, and if no substitute was accepted the money should be returned to the conscript. These several sums of *334money were received by Colman without express authority of the Government, and he assumed to act in his individual capacity and responsibility in that regard, and it appears this practice arose at the request or suggestion of the drafted men and their agents. Colman at first declined to receive these deposits, insisting that it was not his official duty- to do so, and it is now contended by his widow that he received them only in his private relation and was accountable only to the persons who deposited the money.

The Secretary of War had, by regulation made June 30, 1863, fixed the sum of $300 as commutation for a draft, but it does not appear that Colman was authorized by that officer to receive such money for procuration of substitutes.

February 10, 1865, the provost-marshal-general sent a detachment of soldiers with a commissioned officer to the bank at St. Louis with orders to seize a package of money there deposited by Colman, which they did, and took it to the provost-marshal-general’s office at St. Louis, who afterwards gave to Colman a receipt for the same as containing $30,049, which sum was duly accounted for by the paymaster to whom it was delivered as merged into other moneys and used in the payment of troops during the year 1865. Charges having-been preferred against Captain Colman, he was, in Mhy, 1865, tried at St. Louis before a general court-martial, duly organized, and convicted of several offenses, they being somewhat varied in. their nature, among which were falsifying his accounts, conduct unbecoming an officer and a gentleman, disobedience to orders, and embezzlement. The charge of embezzlement, of which he was convicted, consisted in the alleged conversion to-his own use of a sum of money deposited with him by drafted men for the purpose of procuring their substitutes in the military service of the United States. The court-martial found the amount of money embezzled of the substitute fund was $18,963. The balance of the money taken is not referred to in the findings of the court-martial, and, so far as it appears, presumptively belonged to Colman, or possibly his clients, he having been a lawyer prior to and at the time of his appointment as provost-marshal.

There is nothing in the evidence, other than the findings of the court-martial, to indicate that the $18,963, or any other *335part of the money taken, was a substitute fund deposited wiffi Colman. The sentence of the court-martial was, in effect, that the accused be dishonorably dismissed from the service; to forfeit all pay and allowances; to be compelled to turn over to such officer as the general commanding should designate $18,963; to pay a fine of $700 to the United States, and be imprisoned for the period of seven months at such place as the general commanding should designate,'and thereafter until said fine was paid and said sum of money turned over; that the crimes of which the accused was found guilty, his name, place of abode, and punishment be published, after which it should be-deemed scandalous for any officer to associate with him. This finding and sentence were approved bjr the general commanding (Dodge), and the sum mentioned ordered to be paid to the chief paymaster of the department, and the penitentiary at Jeffei'son City, Mo., was designated as the place of imprisonment, where he was confined for the period of seven months, and, April 28, 1866, upon habeas corpus proceedings in the United States Circuit Court for the district of Missouri, upon a finding of payment of the fine before mentioned, was discharged from further imprisonment. Subsequently, March 3,1869, Colman applied to the President for a removal of the disabilities imposed by the sentence of the court-martial, and this was at first granted, but later, Marchl3,1869, upon the recommendation of General Sherman, the order of March 3 was, by the order of the President, rescinded.

It is argued by the claimant that the officer received the substitute money in his private capacity, and that for such reason the authorities of the Government wrongfully deprived him of its possession and it is legally bound to make restitution. If the money had been paid to the officer by the drafted men in reliance upon the officer as a private citizen, we concede that the argument should prevail, but the facts of' the record before us, in the light of the circumstances existing during the time of the war with reference to the enforcement of the draft, can not be considered and given their proper weight and due influence without reaching the irresistible conclusion that but for the official station conferred upon him by authority of the Government, Colman would have received *336none of the money he later converted to his own use. It is unreasonable to believe that conscripts would have sought out Colman in his private capacity and deposited with him their money with which to procure substitutes, and it is but natural to believe they paid it to him on the faith and confidence of his being the officer of the United States having supervision of the draft, and of his duties that required him to enforce the law in that respect. It is almost impossible for the human mind not to be impressed with the conviction that a drafted person, influenced by the powers and surroundings of a provost-marshal, would not be controlled by a mental coercion to do as these conscripts did, and pay their money to the officer in charge, hoping thereby to gain advantage not to be otherwise attained. Force mayr, we think, be added to this Anew by reference to the provisions of section 13 of the act of March 13, 1863, for enrolling and calling out the national forces, and for other purposes (12 Stat. L., 733), where it is permitted to a drafted person to furnish an acceptable substitute to take his place in the draft, or he may pay" to such person as the Secretary of War may" authorize to receive it, such sum, not exceeding $300, as the Secretary may determine, for the procuration of such substitute, which sum shall be fixed at a uniform rate by a general order made at the time of ordering a draft for any State or Territory; and thereupon such person furnishing the substitute, or paying the moneys, shall be discharged from further liability under the draft.

True, it does not appear that Colman was authorized by" the Secretary of War to receive the money as provided by. the statute referred to, but by the course of conduct adopted by Colman, he having received and paid out more than a million dollars; he gave to himself the appearance of a person having such authority, and thereby tended to mislead persons having-business of that nature. It is, we think, a familiar rule of the law relative to principal and agent that where the latter exceeds the authority" given by the former, giving himself the appearance of representing the principal, the principal may assume or ratify" the acts of the agent, becoming thereby responsible for the same.

*337In tbe present case, as we have seen, it was lawful to confer upon the officer authority to receive the deposits he did receive, and it was therefore proper to'ratify what he did in that respect without authority. The act of the military authorities in seizing the money, followed by the court-martial, its sentence and execution thereof, was effective as such ratification, and the Government thereafter became, and is 3’et, the trustee of such substitute fund as rightfully as if the statute to which we have referred had been strictly complied with.

There is no legal principle upon which the claimant could recover the money embezzled by1 the officer, and to permit her to do so would be contrary to good morals. The officer obtained the money only upon the faith of the office conferred upon him by the Government. In his relations with others, and in his dealings with persons, so far as they were influenced by the official position of the officer, and in respect to conduct that would or could not be undertaken but for his official station, the Government was morally bound by and ought legally to be responsible for his acts. By this means the officer obtained a sum of money and converted it to his own use, in consequence of which the authorities of the Government seized and took it away, and he was afterwards convicted and sentenced for the offense. This money never belonged to him and does not now, and to permit his personal representatives to recover it under the circumstances would be a shock to morality.

Over and above all this, however, nothing appears in the record to dispute the cognizance of the charges made before the court-martial, and jurisdiction of the person of the officer, and therefore its sentence is valid when questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings. (Keyes v. The United States, 109 U. S., 336.) We are of the opinion the findings and sentence of the court-martial are valid and binding upon Colman and his personal representatives.

It follows from the foregoing views that we are of the opinion the claimant as widow and sole legatee can not recover of the United States the $18,963, substitute fund the court-*338martial found the officer had embezzled, but the United States having no right or claim to the residue of the money seized, she is entitled to a judgment for 111,086.

dissenting:

Reprehensible as Colman’s conduct, was from a military point of view, and questionable as his receipt of the money of the- drafted men to pay to substitutes for them may seem to be, measured by those standards of ethics which properly prevail among men of sensibility, I am unable to see whjr a lawful right should be partly defeated by the application of a rule mistaken for one of morals and specialty framed to meet the exigencies of a particular case. Concurring in the judgment of the court as far as it goes, yet it does not seem to go far enough. The judgment should be for $30,049.

The jurisdictional act directs us to render j udgment for such amount as the court may find due the claimant. The amount due is the sum which the findings disclose was unlawfully taken from Colman’s bailee. The funds were mingled indiscriminately in Colman’s package, and contained money received by him in his business as a lawyer, money which the drafted men had delivered to him for a lawful purpose, and money of his own. Iiow are we to determine the quantum of the beneficial interests, respectively, in the absence of all proof? And how are we to determine what part belonged to the drafted men, if any ?

The proceedings of the court-martial are not competent to establish that $18,963 of the money belonged to the drafted men. The court-martial was without jurisdiction to determine that question. The court itself evidently thought so, and the defendants acquiesced in that view of the matter, else the money, or some of it at least, would have been returned to such of the men as were then at hand.

It was lawful for drafted men to hire substitutes and pajr as much as $300 to such substitutes as the Secretary of War might determine to be acceptable. (12 Stat. L., 733.) It was not unlawful for Colman to receive money outside of his duties as as an officer in aid of this purpose. The practice was not commendable for an officer to engage- in this kind of brokerage, but it was neither a crime nor yet a military offense for a provost-marshal to do so. Such mono\- as the *339drafted men gave to this provost-marshal was not delivered to him in his official capacity. His appointment as such was under the act of March 3,1863 (12 Stat. L., 732), and Colman took upon himself no responsibilities other than those set forth by the act which created the office.he held and the lawful regulations thereunder, and except such as were imposed by the Articles of War (2 Stat. L., 369). Not being a depositary for public funds nor authorized to receive private funds under anjr statute or regulation, and being a statutory officer with powers defined by statute, no responsibility was to bo cast upon him by implication. As then the officer was not the custodian of any of the money contained in the package in virtue of his commission or in the performance of any duty imposed upon him by law, the court-martial could not lawfully take hold and dispose of the funds. Its proceedings were not conclusive in the civil courts. Acting in excess of authority, the sentence of the court was void upon principles quite familiar. (Wilkes v. Dinsman, 7 How., 123; Wise v. Withers, 3 Cranch, 337; Bigelow v. Forrest, 9 Wall., 339; Day v. Micou, 18 Wall., 156.)

The judgment of the Circuit Court of the United States established the invalidity of the sentence of the court-martial so far as it related to the money alleged to have been embezzled. This judgment, having never been appealed from nor reversed, is conclusive upon the issue as to the officer’s right to have the money returned. If for no other reason, it is conclusive because that part of the senteiice relating to the money was unexecuted at the time the judgment of the Circuit Court released the officer from the imprisonment and the obligation to pay as the mere result of the sentence. The sentence relating to the money was not executed by the retention of the package and converting the proceeds into the Treasury.

The attempted confiscation was illegal, but even if it had been legal and yet incomplete the pardon restored to the accused officer the right to be repossessed of that which had been taken from him. The pardon once effective could not be revoked by the same President, much less could it be by his successor.

The money was unlawfully taken from Colman’s bailee. If he had been guihy of embezzlement, outsiders had no more *340right to take and cover the amount into the Treasury than a post-office inspector would have to take money from a culprit accused of burglary on the ground that it corresponded in amount with the sum the burglar was accused of stealing. In such a case where the culprit was convicted of theft and the inspector turned the money into the Treasury his right to do so has been denied. (United States v. Ferguson, 64 Fed. Rep., 88; 78 Fed. Rep., 103.)

Plaintiff’s right can not be distinguished from those cases where it appears that a bank had in its vaults money of its own, money borrowed for which it had given notes, and money of depositors liable to be taken out bjr them or bjr others to whom they gave checks. The right to recover was not refused on the ground that an undetermined part of the funds belonged to depositors. (State Bank, 10 C. Cls. R., 519, 96 U. S., 30; Newton Bank, 16 C. Cls. R., 54; State National Bank, 17 C. Cls. R., 329, 114 U. S., 401.)

One wrong'does not justify another. If Colman received the money of the drafted men without applying it to the uses for which he received it, the law of the place furnished ample redress for those wrongfully deprived of.it. A rule that would enable the defendants to seize and appropriate an officer’s money under the circumstances shown can not he sanctioned. - The amount is now in the Public Treasury, whore it does not belong. The title was never divested out of the accused officer by virtue of the seizure.

We do not know whether the accused officer ever attempted to settle with any of his clients. Perhaps he never did and perhaps to actions now brought by them or their representatives (with the restoration of the trust) against his estate the', defense of the statute of limitations may be interposed. Such defense would probably be met by asserting the trust character of the holding. These are questions, however, of no concern. The United States in keeping the excess of the judgment are permitted to perpetuate a greater wrong on the officer than Colman perpetrated upon the men whose money he received. The defendants ought not to be permitted to intimate that the officer’s trust obligations have gone unsettled, as their appropriation of the money probably put it out of Colman’s power to discharge them. This is a matter not in the case.