#### JOHN J. A. CLARK v. THE UNITED STATES.

[No. 30023.

Decided May 29, 1911.]

*On the Proofs.*

An officer of the Philippine Scouts arrives at a new post at 3 p. m. Government funds are turned over to him by the officer whom he relieves; he places the money in a safe, furnished by the Government, and secures it by a chain to a post within the building and changes the combination of the lock and places a sergeant, having several years’ record of good conduct, in charge, with orders not to leave the safe unguarded during the night. The sergeant is enticed from the building, the safe carried away, and the money lost.

X. Where an officer takes nothing for granted, personally inspects a safe containing Government funds, the room where it is kept, the means taken for its security, changing the combination of the lock, and keeping a sergeant of good record as watchman with strict orders not to leave the safe unguarded, his precautionary measures entitle him to the benefit of the disbursing officers’ act (Eev. Stat, § 1069, 1062). •

XI. The rules announced by the court for future procedure in cases under the disbursing officers’ act in *Boggs case*(44 O. Cls. R.., 367) reiterated.

*The Reporter's*statement of the case:

The following are the facts of the case as found by the court:

I. During the times hereinafter mentioned claimant was •a first lieutenant in the Philippine Scouts, United States Army.

II. While on duty at Ambulong, Province of Batangas, Philippine Islands, claimant was ordered to proceed from Ambulong to Santo Tomas, Province of Batangas, Philippine Islands, with the troops under his command, the Twenty-fifth Company, Philippine Scouts, to take station with his company at the latter place and to relieve First Lieut. John J. Eyan, Twelfth Cavalry, as commanding officer, and Second Lieut. George B. Hunter, Twelfth Cavalry, as quartermaster at Santo Tomas. Those officers were ordered, upon being so relieved, to proceed with the troops under their command to another station.

*417III. In obedience to said orders, claimant proceeded from Ambulong to Santo Tomas with, his company, arriving at the latter place January 8, 1905, about 3 o’clock p. m.

IY. The Quartermaster’s Department of the Army at Santo Tomas at the times herein mentioned and for some time before occupied a building in the central part of the town on one of the streets near the public market. Troop H, Twelfth Cavalry, United States Army, was on the night, of January 8, 1905, quartered in building next door but a few feet away. The quartermaster’s building contained four rooms, one used as a quartermaster’s office, one as a storeroom, and two as living rooms for the post quartermaster sergeant. The outer door of the building was locked and the windows were barred and locked. The main office and the sergeant’s sleeping room were in the second story. The sergeant’s sleeping room was a small room back of and entered from the office. In the sergeant’s sleeping room was kept an iron field safe, supplied by the United States for the use of quartermasters, with a combination lock. This safe was secured by a chain which passed through the handle of the safe to a post forming a part of the building.

Previous to claimant’s arrival at Santo Tomas, Post Q. M. Sergt. Charles *W.*Fyfe, United States Army, had been armed with a revolver and ammunition and assigned as a sleeping room the room behind the quartermaster’s office already referred to; and had been ordered to guard the safe at all times, and to remain in the building and not to leave it without getting some one else to take his place.

There was also a sentry on the same block in a position from which he could see the quartermaster’s building.

There was no other receptacle for funds available at Santo Tomas, and there was no practicable method of fastening the safe more securely. The only other building in which the quartermaster could have kept his funds was his residence, and that would not have been as safe, because the quartermaster was required by his duties to be away from there except at meal and bed times, and there were no trustworthy persons there.

Y. Prior to January 8,1905, Post Q. M. Sergt. Charles W. Fyfe had served about 15 years in the United States Army, *418and bore a very good reputation for reliability and sobriety. Claimant had known Fyfe for some months previous to said date and had always found him reliable. Post quartermaster sergeants are selected from the enlisted men of the Army for their ability, reliability, honesty, and efficiency, and are the confidential executives and assistants of the quartermaster at a post.

VI. Upon arrival at Santo Tomas, about 3 p. m., January 8,1905, claimant at once reported to Lieut. Ryan, but did not relieve him as commanding officer until the next day.

The same afternoon claimant counted the funds in the custody of Lieut. Hunter as quartermaster, receipted for them, and relieved that officer as quartermaster of the post.

Claimant then and there made an inspection of the quartermaster’s building, of the fastenings of the windows and doors, and of the methods of keeping the quartermaster’s funds, which he found to be as stated in Finding IV. He particularly inquired as to the guard for the safe, and was told by Lieut. Hunter that Post *Q.*M. Sergt. Charles *W.*Fyfe, as stated in Finding IV, had been furnished with a revolver and ammunition and assigned a sleeping room in the building, and ordered to guard the safe and not to leave the building without getting some one to take his place.

Claimant also inquired of Lieut. Hunter as to the reliability of Fyfe, and Lieut. Hunter stated that he had always found Fyfe perfectly reliable and competent.

Claimant thereupon told Fyfe that the same orders and rules would prevail until he (claimant) directed otherwise.

Claimant then replaced in the safe the quartermaster funds for which he was responsible, amounting to $649.07 in cash and $146.77 in checks, locked the safe, removed, and put in his pocket the combination dial, and left the office with Lieut. Hunter.

VII. Claimant passed the night with Lieuts. Ryan and Hunter, and returned to the quartermaster’s building the next morning, January 9, 1905, at 6 a. m., with Lieut. Hunter and found Post Q. M. Sergt. Fyfe asleep and the safe gone. The handle of the safe through which passed the chain attaching the safe to a post had been cut.

*419VIII. Lieuts. Ryan and Hunter and the troop under their command left Santo Tomas the same day, January 9, 1905, and claimant took command. Immediately after the theft an investigation was commenced, and the claimant set secret-service men at work upon the case and set the soldiers under his command to searching for the safe.

IX. About a week after the theft, Bela Latham, a teamster, Charles Allen, alias Otho Starr, a packer, and George P. Miller, a teamster, civilians in the employ of the Quartermaster’s Department, in consequence of the investigation carried on under claimant’s direction, were arrested and charged with the theft. Latham made a confession admitting his own guilt and implicating the other two above named. The three were tried before the Court of First Instance of the Province of Batangas, charged with the theft above referred to, and were convicted. Allen and Miller were sentenced to 14 years and 8 months’ imprisonment at hard labor, and Latham was sentenced to 1 year’s imprisonment, which sentence was suspended during his absence from the Philippine Islands.

Said Latham, Allen, and Starr were in the employ of the Quartermaster’s Department before claimant reported for duty at Santo Tomas, and he had nothing to do with their employment or assignment to duty there.

X. The theft herein referred to was effected as follows:

On the evening of January 8, 1905, Post Q. M. Sergt. Fyfe went to the house of Robert Scholtz, a packer, leaving no one at the quartermaster’s, building. While there Fyfe drank considerable liquor, and in particular from a bottle offered him by Allen, which had been drugged. Fyfe became unconscious for a time from the effects of this liquor, and was finally, about midnight on the evening of January 8, assisted to his room by Allen and Charles Lenton, signal operator. Fyfe went to bed without lighting a light, and did not notice the absence of the safe till the next morning.

While Fyfe was at Scholtz’s house, Allen, Miller, and Latham broke into a blacksmith’s shop and secured a pair of bolt clippers, and then entered the quartermaster’s building by forcing open a window. They cut the handle from the safe with the bolt clippers, thereby releasing the safe, *420which they removed from the building through the window, and carried out of town and set in a field. They were, however, unable to open the safe, and the safe, with its contents, was stolen from them by some natives, who carried it away, broke it open, and spent the money. None of the money was ever recovered, although claimant made diligent effort to that end.

XI. Claimant had payment stopped on the checks stolen and has not lost the sum represented thereby, $146.17.

XII. As a conclusion upon the facts hereinbefore found, it is found as an ultimate fact that the loss aforesaid of $649.07 of the funds of the United States for which claimant was and is held responsible as quartermaster, was without fault or negligence on the part of claimant.

*Mr. Archibald King*for the claimant. *Messrs. George A.*and *William B. King*were on the brief.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Booth, J.,

delivered the opinion of the court:

This is' a claim for relief under sections 1059 and 1062, Revised Statutes.

Section 1059, Revised Statutes, pages 195, 196, reads as follows:

> “ The Court of Claims shall have jurisdiction to hear and determine the following matters * * * :

> “ Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of capture or otherwise while in the line of his duty, of Government funds, vouchers, records, or papérs in his charge, and for which such officer was and is held responsible.”

Section 1062, Revised Statutes, page 196, provides as follows:

> “ Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the *421part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amounts so decreed, as a credit in the settlement of his accounts.”

The claimant, J ohn J. A. Clark, was first lieutenant in the Philippine Scouts. On January 8, 1905, claimant with his company arrived at Santo Tomas, P. I., to take station at said place and relieve Lieut. John J. Ryan, Twelfth Cavalry, and-Second Lieut. George B. Hunter, as quartermaster, who were ordered elsewhere with troops upon claimant’s arrival. The facts given in detail in the findings show that claimant upon the date of his arrival counted the funds in the custody of Lieut. Hunter, receipted for them, and continued in force the same precautions and the same system of guarding their possession and safety employed by his predecessor. The funds of the quartermaster were kept in an iron safe furnished by the United States for that purpose; the safe possessed a combination lock, and because of its comparatively small size was secured to a permanent post in the room of the quartermaster sergeant by a strong chain. The post quartermaster sergeant was especially detailed to guard the safe, sleep in the same room, was armed for protection, and instructed under no circumstances to leave it unguarded either day or night.

The building occupied by the Quartermaster’s Department was centrally located, and the room in which the safe was kept was on the second story of the building and not of easy access from other parts of the same. On the night of claimant’s arrival three civilian employees of the Quartermaster’s Department formulated a conspiracy to steal the safe and contents. The quartermaster sergeant had left his post of duty and was drinking whisky in the house of one Scholtz. Allen, one of the thieves, knew of this fact, and in pursuance of their preconcerted plan he procured more liquor, visited the Scholtz house, induced the sergeant to drink intemperately, and by the use of drugs brought him into a state of helpless stupor, thus preventing his return to duty. The two other conspirators during this time forcibly entered a blacksmith’s shop, procured the necessary tools, and after breaking and entering the Quartermaster’s Department, *422secured entrance to the sergeant’s room, tore the safe from its fastenings, and carried it from the building. The thieves carried their booty to a neighboring grove of trees, and after the failure of repeated attempts to open the safe, abandoned it with its contents. The safe and contents were never recovered. The claimant and Lieut. Hunter, with whom he spent the night, discovered the robbery about 6 o’clock the following morning. The quartermaster sergeant left in charge of the safe had always been found to be reliable and competent; the claimant had known him for some months. Lieut. Hunter had attested to his trustworthiness, and in addition thereto he had a good record of many years’ service in the Army.

The relief granted under the foregoing statute extends only to the class of cases where the claimant has established by a clear preponderance of the evidence that he was without fault or neglect in the care and custody of public funds. The law imposes upon the court the judicial responsibility of exacting from claimant such a degree of proof as will clearly exempt him from loss, where the circumstances attending the same not only indicate his innocence in the premises, but clearly establish the employment of such precautionary measures as to exclude the idea of fault or negligence. The manner of the loss is a circumstance no more; it may tend to excuse, and it may tend to aggravate. Theft and robbery is always a menace; it is difficult to circumvent. A public ■ officer in charge of public funds must anticipate its possible happening, and when he has done so in such a manner as a prudent and cautious man would do under similar circumstances, he can not be charged with fault and neglect. *(Glenn*v. *United*States, 4 C. Cls. R., 501.)

In the case of *Boggs*v. *United States*(44 C. Cls. R., 367) this court in an exhaustive opinion reviewed the authorities upon this subject and announced rules for future procedure under the statutes. In that case the court said, speaking of the laws:

> “ They were passed to relieve innocent disbursing officers from the rigors of the law, and the consequent judgment of. courts of law, by allowing them to go into a court of equity, and, by establishing the fact that they were faultless, obtain *423a c decree ’ which would require the accounting officers to allow to such officer credit in the settlement of his accounts. The provisions in question are predicated upon the act of 1866, which did not lessen the legal liability of disbursing officers nor give them generally greater legal rights than they possessed. The Court of Claims alone acting as a court of equity can administer the equitable provisions under which relief is here asked and award the specific redress authorized by the statute in and only in exceptional cases. That is, where the officer has established the fact that his conduct has really been faultless. Before relief can be granted it must appear with reasonable degree of certainty from all the proof and circumstances of the case that the officer intrusted with public money has exercised watchfulness over the funds and such degree of care as fairly and equitably entitle him to a decree exonerating him from the obligation of his bond.”

It is quite apparent that the solution of each case depends upon the circumstances and conditions under which the loss occurred, and that the court can not establish any general rule declaring what acts upon the part of the claimant will exempt from liability.

The claimant arrived at Santo Tomas at about 3 o’clock in the afternoon of January 8, 1905; he proceeded with all possible dispatch to transact his military duties; the time between his arrival and nightfall was but a few hours, and it would have been impossible for him to have materially changed the existing order of things as respects the guardianship of public funds. Claimant, however, seems to have taken nothing for granted; he personally inspected the safe containing the funds, the room and building where it was kept, the manner of its security, changed the combination of the lock, and continued the sergeant as a watchman. His instructions to the sergeant were strict and imperative. The robbery occurred within a short time after his arrival, and there is nothing in the record to indicate that the claimant had any just or reasonable grounds to suspect that the sergeant was susceptible to the influences which subsequently caused the loss of the safe and contents. On the contrary, the record of the sergeant, his personal acquaintance with him, supplemented by the commendatory remarks of claimant’s predecessor, warranted his retention as the special *424watchman of the funds. ' Considering the circumstances and the amount involved, we think the precautionary measures were sufficient to bring the case within the statute.

The claimant is entitled to a decree for a credit with the proper accounting officers of the Treasury in the settlement of his accounts for the sum of $649.07. It is so ordered.