#### JOHN SCOTT v. THE UNITED STATES.

No. 12062

December 18, 1882.

A disbursing officer, stationed at a fort in W yoming Territory, -was furnished by the Government -with an iron safe for the safe-teeping of the public money intrusted to him. He kept the safe in his tent, -which, with the other officers’ tents, was in the center of the camp, surrounded by soldiers’ tents, outside of all of which was a detail of soldiers on guard to keep off intruders. A special sentinel also kept watch over the officers’ tents. On the night of September 4,1868, while the claimant was asleep, some of the ropes of his tent were cut, the safe taken out by robbers, carried beyond the camp, broken open, and $1,823.15 of public money stolen therefrom, and never recovered. The claimant in his next account reported the loss, and claimed a credit for the same. On the 18th of April, 1882, the accounting officers decided that they had no authority to allow the credit, and his account has never been settled. The court finds as a fact that the loss was without fault or negligence on the part of the officer. A petition in the case was filed July 7, 1879, praying for relief under Rev. Stat., $$ 1059, 1062.

Held :

When, under the provisions of Rev. Stat., $$ 1059, 1062, a disbursing officer seeks relief from responsibility on account of the loss of public money in his custody, by capture or otherwise, while in the line of his duty, the statute of limitations does not begin to run until there has been an authoritative demand of payment from him, or a refusal by the accounting officers to allow a credit in his account.

This action was brought under the provisions of Revised Statutes, §§ 1059,1062, by a disbursing officer, for relief from responsibility on account of the alleged loss of public funds in his custody, while in the line of his duty, and without fault or negligence on his part.

*2The following are the facts found by the court:

I. On September 4,1808, the claimant was a second lieutenant in the Thirtieth Begiment of Infantry in the United States Army, and was on duty as post quartermaster and treasurer, and as acting assistant commissary of subsistence, at Fort Fred Steele, Wyo., to which duties he had been appointed and assigned July 23,1868. On the said 4th day of September he had in his possession funds belonging to the Subsistence Department of the United States Army.

II. Since September 4, 1808, claimant has remained continuously in the military sendee of the United States, and is now a first lieutenant in the Fourth Regiment of Infantry.

TIT. Claimant had been furnished by the Department with a ■ small iron field safe, weighing about 175 pounds, in which to keep the public money. This safe was deposited in his tent and near to his bed. On the night of September 4,1868, while claimant was sleejfing in his tent, some of the tent ropes were cut, the safe pulled out and carried away. It was found next day at some distance from the fort, with the bottom broken in as if with a sledge-hammer. When found, there was left in the top of the safe, above a check book and other papers, as if overlooked by the thieves, the sum of $184.65.

IY. When carried off, the safe contained $2,007.80, belonging to the Government, and $650 of claimant’s private funds. The amount of public money lost was $1,823.15.

Y. The theft of the safe occurred while the claimant was employed in the line of his duty, and without fault or negligence on his part. The fort had been but recently established, and as yet no building of any kind had been erected. The whole command occupied tents. The officers’ tents, including the claimant’s, were located in the interior of the camp, and near to each other. The camp was protected by an outside guard of soldiers, and in addition a special sentinel kept watch over the tents of the officers. There was no place on the ground where the safe could have been more secure.

YI. The loss was duly reported to the Department, and in the current account of the claimant, opposite the amount lost, was noted *“*stolen with the field safe, September 4,1868.” This item so designated has been carried in the accounts of the claimant ever since, without final action or decision upon it by *3any branch of the Government until April 18, 1882, when claimant was informed, by the following notice, of its disallowance:

Teeasuey Department, Third Auditor’s Office,

*Washington, I). C., April*IS, 1882.

John Scott,

*Lt. it%*¡7. *S. Inf’t’y, late IAeut.*30 *th V. S. Inf’t’y:*

Care Allan Rutherford, esq., attorney, Washington, D. C.

Sir: I have the honor to acknowledge your letter of the 17th inst., requesting that the sum of $1,823.15, subsistence funds reported to have been stolen from your office safe on or about Sept. 4, 1868, be passed to your credit on the books of this office.

In reply I have to inform you that the accounting officers have no authority to allow credits for moneys lost or stolen from disbursing officers, and that you are, and will continue to be, held accountable for said amount until relieved from accountability, either by an act of Congress or a decision of the Court of Claims.

Very respectfully,

A. M. Gangewer,

*Acting Auditor.*

*Mr. Allan Rutherford*for the claimant:

When a disbursing officer of the United States has lost any portion of the public funds for which he was and is held responsible, while engaged in the line of his duty, and without fault or negligence on his part, such officer is entitled to a decree of this court, designating the amount of such loss, and to have the amount so found carried to his credit in the settlement of his accounts. (Rev. Stat. §§ 1059, 1062.)

1. All the questions involved in this case have been fully considered by this court in the cases of *Smith*v. *The United States*(14 G. Ols. R. 114), and *Hobbs*v. *The United States*(17 0. Gis. R., 189).

2. In the case of *The United States*v. *Glarlc*(96 U. S. R., 37), the court held “that the statute of limitations of suits in the Court of Claims (Rev. Stat., § 1069) is not applicable to a suit under sections 1059-1060, because such a suit is brought to establish, not a claim in the just sense of the word, but a peculiar defense to a cause of action of the United States against the petitioner.”

3. “ Was the loss of this safe without the fault or negligence of the claimant ? ”

It appears that the petitioner kept the funds in the safest place at his disposal; in the only place, in fact, where he could *4keep tliem — in a safe provided by the Government for the purpose ; that he kept his own private funds in the same place, and they were lost at the same time.

Fort Fred Steele was a new post just estabished, near Platte River, in Wyoming Territory, and most of the labor of building the fort and barracks had to be performed by the troops. It was therefore important to have all the men possible for work, that the same might be completed before cold weather. An additional post of the guard would have required four additional men each day for the guard detail, and as it is a rule of the service and prescribed by Army Regulations, that men relieved from guard duty are excused from all duty for twenty-four hours, it follows that such additional post would have deprived the commanding officer of the services of *eightmen*each day, which would have been a very serious drain on the available force of the post. But in all cases the commanding officer *is, and must he,*the sole judge as to the necessity for the posting of guards, and for the proper care of the command.

The case of *Holman*(11 C. Cls. R., 642), cited by the Assistant Attorney-General, is in nowise applicable to this case. Holman was an Army paymaster, stationed *in the*city of Boston, Mass., in the midst of civilization, with no *“*commanding officer” over him to order the regulation of his daily life. He carelessly intrusted to an orderly a package containing a large sum of government funds, and the same was stolen. The fact that the party to whom he intrusted the money was an enlisted man in the Army, was properly held by the court not sufficient to relieve him from the charge of negligence.

The claimant was a second lieutenant, serving at a remote frontier post, and under the immediate command and hourly supervision of his commanding officer. It was not for him, a subaltern, to question the judgment of his superior officer, who was the only judge as to what posts of the guard were required and the number of men that could be spared from the other work of the post to perform this duty.

*Mr. A. I). Robinson*(with whom was *Mr. Thomas*Simons, *Assistant Attorney-General)*for the defendants :

1. On tke4tk day of September, 1868, the alleged loss occurred. As only Congress and the Court of Claims had power to afford *5relief in sucb cases, tlie claim accrued and claimant could have commenced his suit on that day. The petition was not filed till July 7,1879, and was therefore barred by the statute.

2. It is proved and conceded that there were no buildings at this post, and that the command lived in tents, which, of course, could not be securely fastened. There was therefore the greater necessity of extraordinary diligence in the care of government funds in his charge. He should therefore have had a special guard placed over his tent, more especially when he was necessarily away so much. His own evidence is not evidence on this question, but only as to the amount of money in his safe. *(Clarice’s Case,*96 U. S. B., 37.) Claimant did not take all proper precautions. His responsibility as disbursing officer cannot be relieved by unofficial opinions of the other officers there.

3. It was the plain duty of the claimant on receiving the funds to have officially applied to the commanding officer for a proper guard over his tent. If this was officially denied, claimant could then do no more, and he would be relieved of any charge of neglect in that regard. If such a guard had been requested and furnished undoubtedly the loss would not have occurred.

OPINION.

Scoeield, J.,

delivered the opinion of the court:

In July, 1868, John Scott, the claimant, then a second lieutenant in the United States Army, was appointed post quartermaster, acting assistant commissary of subsistence, and post treasurer, and assigned to duty at Fort Fred Steele, in Wyoming Territory. For the safe-keeping of the public money with which he might be intrusted, he was furnished by the Government with a small iron field safe. He kept the safe in his tent. It was there on the evening of September 4, 1868, and gone on the next morning. During the night some of the tent ropes had been cut, the safe pulled out and carried off. It was fouud during the day some distance from the camp. The bottom was broken in as if with a sledge-hammer, and most of its contents removed. The sum of $184.66, which had been placed in the top of the safe, above a cheek-book and papers, had not been taken. On the evening of September 4,1868, the safe contained $2,007.80 belonging to the Government, and *6$650 belonging to claimant. The $184.65 not taken belonged to the Government. The sum of $1,823.15 of public money and $650 of his private funds were stolen.

Claimant, in his account-current with the Department, reported the loss and claimed a credit for $1,823.15, “stolen with the field safe September 4, 1868.” The claimant has ever since remained in the United States Army, but his accounts have never been settled nor this item acted upon until April 18,1882. At that time the Third Auditor decided and informed him by letter that—

> The accounting officers had no authority to allow credits for money lost or stolen from disbursing officers, and that claimant would continue to be held accountable for the amount until relieved by an act of Congress or a decision of the Court of Claims.

Anticipating that this might be the ruling in the Department, claimant had already filed in this court his petition for relief. The Revised Statutes give this court jurisdiction as follows:

> Sue. 105Í). *******

> The Court of Claims shall have jurisdiction to hear and determine the claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States for relief from responsibility on account of capture or otherwise, while in the line of his duty, of Government funds * * * for which such officer was, and is, held responsible.

> Sec. 1062. 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 part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officer of the Treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts.

The character of the claim and the official position of the claimant come within the requirements of this law. He was a disbursing officer, with government funds in his possession and in the line of his duty when the loss occurred.

It is argued by counsel for the Government that the claim is barred by the statute of limitations.

The loss occurred September 4,1868. The decision of the accounting officer against allowing the credit was made April 18, 1882. Claimant’s petition for relief was filed in this court July 7,1879. The statute of limitations as set forth in Revised Statutes, sec. 1069, is as follows:

> Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court * * * within six years after the claim first accrued.

*7The questions whether the petition of a disbursing officer for relief against a claim by the Government is itself a *claim*within the meaning of this act, and, if so, when the statute begins to run against it, have several times been the subjects of consideration and decision, both in this court and the Supreme Court. *(Clark's Case,*11 C. Cls. R., 698; *Hobbs’s Case,*17 C. Cls. R., 189; *United States*v. *Clark,*96 U. S. R., 37; *United States*v. Smith, 105 U. S. R., 620.) These decisions are to the effect that it does not become a claim within the meaning of the law until there has been, on the part of the Government, some authoritative demand for payment, or a refusal to allow the credit, and only from the time of such demand or refusal does the statute begin to run. Justice Miller, in delivering the opinion of the court in the last-cited case, and commenting upon the facts in Clark’s Case, says:

> Iu Clark’s Case the money had never keen paid by him to the Treasury, nor did it appear that there had been any final refusal by the accounting officers of the Treasury to allow the claim. * * * The court there said that until the accounting officers had refused to allow the claim in his accounts, there was no occasion to establish it in the Court of Claims. There being no denial of his right, the statute did not run. This was founded on the conditions of the officer’s bond to pay when demanded. It sufficiently appears in this [Smith’s] case that claimant’s right was authoritatively denied when he was ordered by the Paymaster-General to pay the money, and that then was the proper time to apply for the protection of the Court of Claims by asking its decree that he should be credited on his account with that sum.

In this case it does not apx>ear that there was any authoritative demand for payment, nor a refusal to allow a credit in the accounts of the claimant, until April 18, 1882. The claimant’s case, therefore, coming clearly within the rule laid down in the most recent decision of the Supreme Court, is not cut off by the statute of limitations.

Counsel also claim that the loss was not without fault or negligence on the part of the claimant.

The fifth finding of facts sets out that the loss occurred without fault or negligence on the part of the claimant. This finding is the conclusion of the court from many facts set out in the findings. From the claimant’s surroundings he had every reason to feel that the treasure was safe where it was. A military camp in Wyoming Territory is necessarily isolated and distant from the haunts of expert thieves. The officers’ tents, including the claimant’s, were located in the center of the camp. A *8special sentinel was stationed to watch over them. Surrounding them was a circle of tents in which the soldiers slept. Around and outside of all, to protect the camp from intruders and out-goers, was a regular detail of soldiers. The fort had been recently established and no buildings of any kind had as yet been erected. The safe was therefore placed in claimant’s tent, a few feet from his bed. It weighed about 175 pounds, and was securely locked. It was hardly to be apprehended that thieves could pass the outside guard, through the line of sleeping soldiers, escape the observation of the special sentinel, cut the tent ropes, drag out the safe, and retreat with their burden undiscovered. It is easy after a loss has occurred to see how it might possibly have been avoided, but it is not so easy to anticipate and guard against the danger. That it is not in human nature to be ever apprehensive, vigilant, and guarded at all points against the devices of daring and ingenious men who study and practice crime is abundantly illustrated by the history of burglaries, robberies, and thefts all over the world.

A decree will be entered in the usual form directing the accounting officers of the Treasury Department to allow to the claimant as a credit in the settlement of his accounts for government funds stolen from the field safe at. Fort Fred Steele, Wyo., September 4,1868, the sum of $1,823.15.