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they been furnished him. Indeed, considering the many casualties to which a service of that kind was exposed, instead of making profit he might have lost money. But, in that case, the government itself would not have been, as in the present case it clearly is, the cause of the loss. The present damage is the result of its own act. The probable profit, therefore, would not seem to be a proper rule to apply in the present case. Neither would the contract price of the freight to be transported seem to be a fair rule ; for in that case the contractor would receive far more than the actual damage he has sustained. The true measure of damage, taking an equitable view of the case, would seem to be the amount of loss, whatever it may be, which Mr. Clymer may have actually sustained in making the necessary preparations to carry out the contract, previous and up to the time at which he was notified by Major Ogden that the government would not have any stores to be transported. This might consist of the cost of wintering 300 head of cattle, the hire of his teamsters, &c., for the wagons, together with the depreciation in the value of wagons, &c. In short, for all such losses as he has actually sustained, he should be indemnified. In cases of this kind the government should not, by the failure to carry out its contract with an individual, take advantage of its position and refuse all indemnity; neither should the contractor expect to make a speculation off the government. Because the government imposes a penalty on a contractor for failure on his part, and this penalty forms a part of the contract, it does not follow that the government is liable to a similar penalty for failure on its part, unless it is so specified in the contract.

It is not, however, necessary for the purposes of this report to make any extended remarks as to the amount of damage which it is believed Mr. Clymer has sustained; if it were, further evidence would be required, in order to form a correct estimate, upon the principle I have suggested, of the extent of indemnity, as the only evidence in the papers filed relates to what would probably have been the profit Mr. Clymer would have realized, because, although I am of the opinion Mr. Clymer has been damaged, and is entitled to indemnity, I am also of opinion that he cannot, under existing laws, realize that indemnity through the accounting officers of the treasury, but must find relief in an act of Congress.

In this opinion I am so fully borne out by your decision of the 13th December, 1854, in the case of Benjamin Holladay, that I shall conclude this report by quoting so much of it as is applicable to the present case, and the authorities it refers to:

“But even if the claimant had proved by indubitable evidence that he had been damaged, it has long been held that it is not in the power of the Executive branch of the government to liquidate and pay damages which a contractor may have sustained by reason of a violation of contract on the part of the United States. In this case the claim is not for a debt due, but for unliquidated damages for an alleged breach of contract.

“Chief Justice Taney, when Attorney General, held that in such cases the executive officers have not jurisdiction, and said that if the contractor ‘had been damnified by the officers of the government, Congress alone can redress the injury.' (Opinions of Attorneys General, ed. 1841. p. 882.)

"Attorney General Nelson also gave an opinion on the subject on the 29th May, 1844, (Opinions Attorneys General, ed. 1847, p. 1687,) in which he said that the accounting officers of the treasury have no authority to adjust the claims of contractors for damages without the special authority of an act of Congress.'

"Attorney General Cushing takes the same ground in his opinion of June 7, 1854, in the case of Strader & Johnson, contractors, and says: "These conclusions are confirmed by the tenor of many acts of Congress, giving special authority for the allowance of damages on contracts varied, or not performed by the United States;' and he cites Hand and another, act of May 1, 1838, (6 Stat., 716;) Voorhees, resolution March 3, 1843, (8 Stat., 90;) Shaw and another, resolution June 26, 1848, (9 Stat., 747.)

“It is alleged that the decision of the Secretary of War of March 23, 1852, overruling the Second Comptroller, (who had rejected, on the 4th of February, 1852, a small claim for damages under a similar contract,) is in opposition to the rule prohibiting executive officers from allowing damages. I do not think that the precedent, under the circumstances existing when the decision was made, is entitled to be quoted as authority; nor are the two cases entirely analogous, as Holladay performed some service in 1851. An opinion had been given by the Attorney General on the 13th November, 1852, asserting the jurisdiction of the heads of departments in matters of accounts and claims, with power to overrule the decisions of the accounting officers, which opinion was adopted by the Cabinet, and communicated by the President to the Second Comptroller. An allowance of the claim was therefore made in conformity with the decision of the Secretary, but the present claim shows the wisdom of the rule which has so long prevailed, and the impropriety of a departure from it. The reason of the rule is obvious, and to disregard it hazardous ; for if executive officers can liquidate and pay damages at their discretion, the public treasure is placed at their disposal for objects not contemplated by Congress, not estimated for, and not within the intent of any appropriation."

All of which, with the accompanying papers, is herewith transmitted to the Second Comptroller of the Treasury for his decision thereon.

ROBT. J. ATKINSON, Auditor. TREASURY DEPARTMENT,

Third Auditor's Office, December 27, 1854. J. M. BRODHEAD, Esq.,

Second Comptroller of the Treasury. I concur with the Third Auditor in the opinion that the claimant, Mr. Clymer, sustained damage and injury by the non-fulfilment of contract on the part of the government, and that in such a case Congress alone can afford redresk

M. BRODHEAD, Comptroller. SECOND COMPTROLLER'S OFFIC hecember 29, 1854.

Rep. 110—2

txuve not j' by

CONGRESS

P. M. KENT.

[To accompany bill H. R. No. 774.]

FEBRUARY 23, 1855.

Mr. EDMANDS, from the Committee on Invalid Pensions, made the

following REPORT.

The Committee on Invalid Pensions report :

That the committee find, on examination of the case of Phineas M. Kent, that Kent was late pension agent at New Albany, Indiana ; that on settlement of his accounts, the accounting officers suspended a voucher for $240. This was a payment made to the heirs of Rachael Howe, deceased. It was made on a certificate of the War Department authorizing it. This voucher is refused by the accounting officers on the ground that the pensioner was not legally entitled to draw her pension from the 4th of March, 1841, to 4th March, 1843. There is evidence of the payment of the money, and the certificate of the War Department authorizing it, is also shown. The only question is, whether Kent shall suffer the loss of the money thus paid. "In a precisely similar case—that of Newton Lane, pension agent at Louisvillerelief was given by Congress. Your committee recommend the following bill for the relief of Kent.

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