135 U.S.

550
10 S.Ct. 841
34 L.Ed. 258

UNITED STATES
v.
VOORHEES.
May 19, 1890.

Asst. Atty. Gen. Maury, for plaintiff in error.

This was an action at law brought in the court below by the United States
against Luke Voorhees, to recover the sum of $14,342.52, alleged to have been
illegally paid him for carrying the mails. The amended petition, filed on the
13th of July, 1886, alleged substantially as follows: In the year 1878 a contract
was entered into between the postmaster general and the defendant, by the
terms of which the latter agreed to carry the mails of the United States over
route No. 35,040, from Fargo to Pembina, Dak., and back, six times a week, on
a schedule of 62 hours a trip, for the sum of $17,000 a year. On the 30th of
July, 1878, by reason of certain requests and a petition obtained by the
defendant and his agents and employes acting for him, representing that the
business interests of the country along the route demanded the expediting of
the schedule time to 40 hours, which were forwarded to the postmaster general
by or at the solicitation of the defendant, an order was made by that officer, to
take effect August 1, 1878, expediting the schedule, and reducing the running
time upon which the mail was required to be carried over the route to 43 hours
in summer, and 50 hours in winter, and allowing an additional sum therefor of
$8,500. So much of the aforesaid order as allowed the defendant the additional
pay (which he afterwards received from time to time) was made upon the basis
of his sworn statement, as follows: 'I hereby certify that it will take fifty per
cent. more men and horses to perform mail service on route 35,040 from Fargo
to Pembina, on a reduced schedule from sixty-two hours to forty-three hours in
summer and fifty hours in winter.' The petition then alleged that from the
beginning of the mail service on the aforesaid route, under the defendant's

contract, the mail was in fact carried over the route on a schedule of less than
43 hours, and was so being carried at the time the order expediting the service
was made; that the defendant was engaged in running a line of stage coaches
over the route, and carried the mail upon his stages, upon a schedule of less
than 43 hours, for his own convenience and advantage; and that no additional
stock and carriers were employed or rendered necessary, over and above the
number actually employed and used by the defendant in performing the service
under the original contract, by reason of the order expediting the service as
aforesaid, nor was the actual speed increased, bt the defendant continued to
carry the mails upon an actual schedule of less than 43 hours, just as he had
done before. It was then alleged that the extra allowance of $8,500, made by
the postmaster general as aforesaid, was without authority of law, and was paid
to the defendant, and received by him, in violation of section 3961 of the
Revised Statutes; and that the whole amount so paid to him, from time to time,
between the 1st day of August, 1878, and the 9th day of July, 1881, was
$14,342.52, for which sum, with interest at 6 per cent. per annum from said last
date, and also for costs, the plaintiff prayed judgment. The defendant
interposed a general demurrer, which was sustained by the court in a judgment
rendered November 1, 1886, and the United States thereupon sued out this writ
of error. The assignment of error is a general one, and is merely to the effect
that the demurrer should have been overruled, and judgment entered for the
United States.
2

The statutes relied upon to support a reversal of the judgment are sections 3961
and 4057 of the Revised Statutes They are as follows: 'Sec. 3961. No extra
allowance shall be made for any increase of expedition in carrying the mail
unless thereby the employment of additional stock and carriers is made
necessary, and in such case the additional compensation shall bear no greater
proportion to the additional stock and carriers necessarily employed than the
compensation in the original contract bears to the stock and carriers necessarily
employed in its execution.' 'Sec. 4057. In all cases where money has been paid
out of the funds of the post-of-fice department under the pretense that service
has been performed therefor, when, in fact, such service has not been
performed, or as additional allowance for increased service actually rendered,
when the additional allowance exceeds the sum which, according to law, might
rightfully have been allowed therefor, and in all other cases where money of the
department has been paid to any person in consequence of fraudulent
representations, or by the mistake, collusion, or misconduct of any officer or
other employe in the postal service, the postmaster general shall cause suit to be
brought to recover such wrong or fraudulent payment or excess, with interest
thereon.' The case relied upon in support of the contention of the plaintiff in
error is U. S. v. Barlow, 132 U. S. 271, ante, 77. That case is not in any of its

features analogous to the one at bar. It was an action brought by the United
States to recover from the defendants, subcontractors for carrying the mails,
moneys paid to them under a mistake caused by their false representations as to
the service. The court held that the action was maintainable upon two grounds:
(1) That the moneys sued for, at least that portion which could be recovered
back, consisted of an additional allowance to the defendant of $15,994.77 each
year, for an expedited service ordered by the department upon a false estimate
of the additional necessary expenses, which had been adopted and acted on,
upon the false representations of the defendant as to the additional number of
men and animals required for such expedited service; (2) that the moneys so
allowed had been paid out of the funds of the post-office department, under the
pretense that service had been performed therefor, when, in fact, such service
had not been performed. After referring to sections 3961 and 4057 of the
Revised Statutes, Mr. Justice FIELD, delivering the opinion of the court, said:
'These sections would seem to cover the present case. It cannot be pretended
that the allowance for expediting the service over the new route was not made
upon erroneous representations. It is admitted that such was their character.' In
another part of the opinion he said: 'It appears that the sums thus allowed and
paid to the subcontractors for stock and carriers, which were never required and
never employed, aggregated $59,592.98, constituting the principalitem in the
amount claimd in this action.' The whole line of argument in the opinion, upon
the facts there stated, is readily observed to be inapplicable to the facts alleged
in the petition in this case. In that case there was a pure mistake of fact upon
which the post-office authorities acted, and there was also fraud upon the part
of the contractor in making the false statement that additional men and horses
were necessary to perform the service on the expedited schedule. In this case
there is no allegation in the petition that the money sued for was allowed and
paid under a mistake of fact on the part of the post-office authorities in making
the change of schedule. Nor does the petition allege that any false statement or
any erroneous representations were made on the part of the contractor, or that
any sum was allowed and paid to the defendant for men and horses never
required and never employed. His original contract was for a 62-hour schedule.
The fact that he did perform the service on a schedule of 43 hours, as a matter
of private enterprise, for transporting express matter and passengers, as an
accommodation to the people along the line, is not inconsistent with his sworn
certificate 'that it will take fifty per cent. more men and horses to perform mail
service * * * on a reduced schedule from sixty-two hours to forty-three hours in
summer and fifty hours in winter.' He was at liberty at any time to abandon his
43-hour schedule, and adopt the 62-hour schedule named in his contract. By the
terms of section 3961 of the Revised Statutes, increased compensation, for
expedited service, is to be calculated upon the basis of the necessary men and
stock required to perform the service under the original contract. It is not
alleged that the defendant did not use 50 per cent. more men and horses under

the expedited schedule than was necessary in carrying the mails on a 62-hour
schedule, nor is it alleged that the cost of the expedited service was excessive.
We see no such false representations by the defendant, nor such mistake by the
post-office, set forth in this petition, as would justify a recovery in this case,
and the judgment of the court below sustaining the demurrer is therefore
affirmed.
3

Mr. Justice FIELD did not sit in this case, or take any part in its decision.