#### DWIGHT J. McCANN v. THE UNITED STATES.

No. 9196

April 23, 1883.

The claimant performed transportation service for the defendants in removing the effects of an Indian agency from a place in Wyoming to a place in Dakota Territory, without contract as to rate of compensation.

The Indian agent there gave him a voucher for the services for $14,375, upon which he has been paid only $10,000, and he sues for the balance. The court finds the value of the service to be less than $10,000.

Held:

I.A voucher given a public officer in the regular and ordinary course of his business for services performed by his order within the scope of his authority and the line of his duty, unimpeached, is *prima, facie*evidence of indebtedness on the part of the United States as therein stated.

II.In that respect such vouchers differ from the certified balances made by accounting officers, which are' not evidence either for or against the Government, for the reasons stated by the court.

III.Where it is shown that a voucher given for work done without a specified contract price is in fact for a sum larger than the value of the services performed, the claimant cannot recover beyond the actual value, and if he has been paid that amount he can recover no more.

This action is brought to recover payment for transportation services for which the claimant has a voucher, upon which part payment only has been made. He sues to recover the balance.

The following are the facts found by the court:

I. The United States Indian agent, J. W. Daniels, in July 1873, was charged with the duty of causing the Indian agency, with the property and effects connected therewith, to be removed from Eed Cloud, on the North Platte Eiver, in Wyoming Territory, to White Eiver, in Dakota, a distance of about 85 miles. He employed the claimant to do the work, but no price was agreed upon for the same.

II. The claimant, with a large number of teams, began the work of removal about the 28th of July, 1873, and completed it about the 18th of the following month of August.

On the 8th of August, while this work was going on, Daniels was superseded in his agency by J. J. Saville.

*446III. Tbe claimant rendered to tbe agent, Saville, bis account, made out upon tbe basis of prices fixed in a prior written contract between bimself and tbe Commissioner of Indian Affairs for tbe transportation of supplies to said Bed Cloud Agency, wbicb contract bad expired by tbe breaking up of tbe agency. Tbe amount of this bill was $14,375, and tbe agent, Saville, gave tbe following voucher tberefor:

*United Slates to D. J. McCann, Dr.*



One voucher retained in Indian Office, January 20th, 1874.

I hereby certify on honor that the above-mentioned number of teams were employed for the time specified; that the exigencies of the service required the employment of the same in the removal of the Eed Cloud Indian Agency from its former location on the Platte Eiver to its present location on the White Eiver; that I have not paid any portion of the amount, and that there is due D. J. McCann therefor the sum of fourteen thousand three hundred and seventy-five ($14,375.00) dollars.

Duplicates.

J. J. Savible,

*U. S. Indian Agent.*

Tbe account and voucher were disapproved by tbe Board of Indian Commissioners, on tbe ground that tbe charges made were more than tbe services were worth. They were also-disallowed by tbe Secretary of tbe Interior, who authorized tbe payment of ten thousand dollars for tbe services, and that amount was paid to and received by tbe claimant.

IY. Tbe services performed by tbe claimant were worth much less than ten thousand dollars.

*Mr. Charles JE. Jlovey*for tbe claimant.

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

Tbe facts of this case cast a suspicion upon tbe good faith of this claim.

As no price was fixed for tbe removal, claimant can only recover on a *quantum, meruit.*It appears that be has already been paid as much as (if not more than) tbe services were worth.

*447OPINION.

Richardson, J.,

delivered tbe opinion of the court:

The claimant has a voucher, given to him by an Indian agent, for services with his teams in removing the-effects of Bed Cloud Agency, in Wyoming, to White Biver, in Dakota, in the summer of 1873, with the compensation therein stated at $14,375, upon which he has been paid $10,000 and no more.

If nothing were before us except this voucher, proved to have been given by an Indian agent- in the usual and regular course of his business and in tbe line of his official duty, the claimant would be entitled to recover the balance remaining unpaid.

A voucher given by an officer of the Government, in the regular and ordinary course of his business, for services performed or articles purchased by his order for the public service within the scope of his authority and the line of his duty unimpeached, is *grima facie*evidence of indebtedness on the part of the United States, as therein stated. *(Parish*v. *United*States, 2 C. Cls. R., 341; *Solomon*v. *United States,*19 Wall., 17, and 9 C. Cls. R., 54.)

In this respect the vouchers of executive officers who are authorized to make contracts, employ services, or purchase property for the public service, and whose duty it is to see to it that the money certified by them to be due has been actually and fairly earned within their own knowledge while acting-in their official capacity, differ from the certified balances of accounting officers.

In the examination of claims in the Treasury Department these accounting officers act wholly upon the evidence presented to them by others, and have themselves no personal knowledge of the facts upon which the claims are founded. It is one of the fundamental principles upon which that Department is established, and a useful and wise one it is, that the executive officers who pass upon public accounts shall be different from those who are authorized to make contracts and incur liabilities in the expenditure of public money.

The balances certified by the accounting officers are final and conclusive upon the executive branch of the Government, because of all the executive officers they are the only ones who *448are authorized to perforin that duty, and none are superior to them therein. But in this court such certification, whether for or against a claim, is without force or effect, because it is founded wholly upon the opinion of accounting officers, arrived at upon the evidence presented to them, evidence which, in the nature of the case, is often such as could not be admitted in any court of justice. It is so provided by statutes (Rev. Stat., § 191), but it would be so if there were no statute on the subject, because it is the province of this court to adjudicate between the Government and claimants upon legal and competent evidence, and not upon hearsay or the opinions of others. *(McKnight's Case, 13*C. Cls. R., 292; affirmed on appeal, 98 U. S. R., 179. *Real Estate Savings Bank Case,*16 C. Cls. R., 335; affirmed on appeal, 104 U. S. R., 728.)

In the present case both parties have gone behind *facie*evidence of the voucher given by the Indian agent, and it appears that there was no contract price fixed for the services of the claimant. The only controverted question before the court was whether or not the Indian agent had given his voucher for a compensation in excess of the value of the services upon a *quantum meruit.*

The claimant urges that the prices fixed in a previous contract between him and the Commissioner of Indian Affairs for other and different services of a similar kind establish the true measure of compensation. The court is of a different opinion, and has found upon the whole evidence that the services of the claimant were worth much less than the sum he has been' paid therefor.

The judgment of the court is that the claimant’s petition be dismissed.