Donovan v. United States
90 U.S. 383

Annotate this Case

U.S. Supreme Court

Donovan v. United States, 90 U.S. 23 Wall. 383 383 (1874)

Donovan v. United States

90 U.S. (23 Wall.) 383

ERROR TO THE CIRCUIT COURT FOR

THE EASTERN DISTRICT OF MISSOURI

Syllabus

Surveyors of ports performing the duties of collectors of the customs in ports other than those ports enumerated in the fifth section of the Act of May 7, 1822, 3 Stat. at Large 693, that is to say of ports other than Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, are entitled to a salary of but $5,000 a year, even though the ports in which such surveyors may be performing the duties of collectors had no existence on May 7th, 1822, and, like the port of St. Louis, were not created till 1831. The system of classes, established for salary purposes by the above-mentioned act of 1822, extends to surveyors doing collectors' duty in ports subsequently created.

Donovan was surveyor of the port of St. Louis, "performing the duties of collector," from January, 1860, to May, 1861. In the settlement of his accounts with the government, he retained $6,000 per year as his official compensation, claiming that sum as his legal allowance. The Treasury Department was willing to allow him $5,000, but no more. And to get the $1,000 in dispute, the United States sued him on his official bond.

The question was are surveyors of ports, "performing the duties of collectors," under the Act of 1831, entitled to the compensation of $6,000 per year? The issue presented turned upon the right construction of certain statutes.

In the early history of the custom house laws, the collectors, naval officers, and surveyors received their compensation

Page 90 U. S. 384

from fees earned by them, which were provided for by the various statutes on the subject. As the business of the country increased the aggregate of these fees came to be so large that Congress saw fit to limit the compensation of these various officers as derived from those fees. The first of these limitations, now in force, was that of the Act of May 7, 1822. This law was a limitation upon existing rights. Without it, the officers named would, of course, have received compensation much larger than the sums named.

The statutes bearing on the case were thus:

By an Act of May 7, 1822, it was thus enacted: [Footnote 1]

"SECTION 9. Whenever the emoluments of any collector of customs of either of the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, or New Orleans shall exceed $4,000, or the emoluments of any naval officer of either of said ports shall exceed $3,000, or the emoluments of any surveyor of either of said ports shall exceed $2,500 in any one year, after deducting the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the Treasury for the use of the United States."

"SECTION 10. Whenever the emoluments of any other collectors of the customs shall exceed $3,000, or the emoluments of any other naval officer shall exceed $2,500, or the emoluments of any other surveyor shall exceed $2,000 in any one year, after deducting therefrom the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the Treasury for the use of the United States."

"SECTION 11. The preceding provisions shall not extend to fines, penalties, or forfeitures or to the distribution thereof."

At the time of this enactment, St. Louis, of which Donovan was the surveyor &c., was not "a port."

By an Act of March 2, 1831,

"allowing the duties on foreign merchandise imported into Pittsburg, Wheeling, Cincinnati, Louisville, St. Louis, Nashville, and Natchez to be secured and paid at those places,"

and making St. Louis a port, a change is in some respects made in former laws.

Page 90 U. S. 385

This act makes St. Louis and other places ports, which they were not before. By this law, as will be seen by reference to it, when any merchant in St. Louis imports goods, he deposits with the surveyor a schedule of such goods, with an estimate of their cost. Upon this the surveyor makes an estimate of the amount of duties accruing, and the importer gives bond, approved by the surveyor, to pay these duties. The surveyor then sends to the collector at New Orleans a copy of this bond and schedule.

The importer then enters the goods at New Orleans, and the collector then certifies to the surveyor at St. Louis the amount of duties, and delivers the goods to the importer to be shipped to St. Louis. Upon reaching their destination, the surveyor having informed himself of the correctness of the entire proceeding, gives a permit for the landing of the goods.

These duties are, to some extent, in the nature of those performed in other ports by a collector.

The act enacts: [Footnote 2]

"SECTION 5. That where surveyors are not already appointed in any of the places mentioned, a suitable person shall be appointed for such places, and on all such surveyors, whether appointed or to be appointed, shall devolve the duties prescribed by this act, in addition to the customary duties performed by that officer in other places, and the surveyor at each of said places shall . . . receive, in addition to his customary fees, an annual salary of $350."

This act first anywhere made surveyors perform the duties in any respect like those of collectors.

Next came an Act of March 3, 1841, thus: [Footnote 3]

"SECTION 5. In addition to the account now required to be rendered by every collector of customs, naval officer, and surveyor of ports, every such collector, naval officer, and surveyor shall, each and every year hereafter, render a quarter yearly account under oath to the Secretary of the Treasury of all sums of money by each of them respectively received or collected for

Page 90 U. S. 386

fines, penalties, or forfeitures . . . or for rent and storage of goods, wares, or merchandise, which may be stored in the public storehouses, and for which rent is paid beyond the rents paid by the collector or other such officer; and if from such accounting it shall appear that the money received in any one year by any collector, naval officer, or surveyor on account and for rents and storage aforesaid and for fees and emoluments, shall in the aggregate exceed the sum of $2,000, such excess shall be paid by the said collector, naval officer, or surveyor, as the case may be, into the Treasury of the United States, and no such collector shall on any pretense whatever hereafter receive, hold, or retain for himself in the aggregate more than $6,000 per year, including all commissions for duties and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such naval officer on any pretense whatever in the aggregate receive, hold, or retain for himself hereafter more than $5,000 per year, including all commissions on duties, and all fees for storage or fees or emoluments or any other commissions or salaries which are now allowed and limited by law. Nor shall such surveyor in the aggregate receive, hold, or retain for himself hereafter more than $4,500 per year, including all commissions, or fees, or emoluments, or any other commissions or salaries which are now allowed and limited by law."

Then followed an Act of March 3, 1857, thus: [Footnote 4]

"SECTION 8. The provisions of the Act approved the 3d day of March, 1841, which established and limited the compensation of collectors of customs, shall be construed to apply to surveyors performing or having performed the duties of collectors of the customs, who shall be entitled to the same compensation as i allowed to collectors for like services in the settlement of their accounts."

It was admitted as part of the case that after the passage of it, all surveyors doing duty as collectors at the port of St. Louis have claimed $6,000 as the maximum of their compensation from all sources under the law.

Finally came an Act of June 8, 1872, in terms nearly identical with the one just quoted: [Footnote 5]

Page 90 U. S. 387

"The provisions of the fifth section of the Act approved March 3, 1841, which established and limited the compensation of collectors of customs, shall be amended and shall be construed to apply to all surveyors of customs ports performing or having performed the duties of collectors of customs, who shall be entitled to receive the same compensation as is allowed to collectors by said act of March 3d, 1841, for like services in the settlement of their accounts with the Treasury, provided that the fees, commissions, and emoluments prescribed by law and collected by them shall amount to such maximum allowance."

Over all came the Revised Statutes of the United States, whose purpose was not to make any new law, but to embody existing statutes. These enact:

"SECTION 2688. No collector or surveyor performing the duties of collector shall on any pretense whatsoever receive, hold, or retain for himself in the aggregate more than $6,000 per annum."

The question on the whole case -- fact and statutes -- thus was whether surveyors now, A.D. 1860-61, doing collectors' duty, were to be paid with reference to the classes into which, for the purposes of salary, collectors, surveyors, and naval officers seemed to be divided by the early act of 1822, to-wit:

1st. The class doing duty at Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, who received the higher salaries.

2d. All others who received a lower one.

The government asserted that the system of classes established by this act extended to surveyors doing collectors' duty, though such a class of surveyors did not then exist, but was first constituted by the Act of 1831.

Donovan, the surveyor at St. Louis doing collectors' duty, denied this, asserting that all surveyors doing collectors' duty were entitled to the pay of the highest class of collectors -- in other words, though he admitted that if he had been collector at St. Louis, he could have had but $5,000, he asserted that as surveyor, doing in addition a collector's duty, he was entitled, under the acts of 1857 and 1872, to $6,000.

Page 90 U. S. 388

The ground of his position was that the Act of 1822 applied to the two classes of ports existing at that date -- that is to say, to ports which had both collectors and surveyors, each performing their respective duties, though in some ports enumerated, the duties of both were greater than in other ports not enumerated; that by the law of 1831, a third class of ports was created -- that is to say, ports where the surveyor performed all the duties which in the two former classes the surveyor performed, and performed, in addition, the duties which in those ports were performed by the collector; ports, in other words, where double duty or more than double duty was performed by the surveyor; that this double duty entitled the party to an augmented compensation, and that this compensation was meant to be given by the act of 1857, and had always been claimed under it by surveyors doing collectors' duty; that the Treasury making some difficulty, the act of 1872 had been passed making the right more clear, and that finally the Revised Statutes had put a legislative interpretation on the matter which removed all doubt, if doubt existed.

The circuit court (Dillon, J.) thus said:

"The provision of the Act of June 8th, 1872 -- under which compensation is claimed by Donovan upon the basis of $6,000 per year instead of $5,000 -- is that the compensation of such an officer shall be the same as that given to collectors by the fifth section of the Act of March 3, 1841, not to exceed, however, the maximum amount therein allowed. In 1859, in the case of United States v. Walker, [Footnote 6] the Supreme Court of the United States construed the above-mentioned act of 1841 in connection with the previous acts in pari materia and decided that as respects compensation, there were two classes of collectors, viz., 1st., collectors of the seven ports enumerated in the ninth section of the Act of May 7, 1822, whose total compensation from all sources, might equal but could not exceed $6,000 in a year; and 2d, all other collectors, i.e., collectors of the nonenumerated ports, whose aggregate compensation could not exceed the sum of $5,000 in any one year. I am unable to discover

Page 90 U. S. 389

in the Act of 1872 satisfactory evidence that it was thereby intended to abrogate in favor of surveyors performing the duties of collectors this established distinction between what is termed the enumerated and unenumerated ports."

"The act of 1841, as authoritatively construed, limited the aggregate compensation of a collector of one of the enumerated ports at $6,000 and of a collector of any other port at $5,000, but while it did provide for the compensation of surveyor, it did not provide a specific compensation for a surveyor who, under the Act of 1831, performed the duties of a collector of customs."

"This was sought to be remedied by the Act of March 3, 1857, but as its phraseology was not clear, and as complaints were made that it was illiberally restricted by the accounting officers of the Treasury Department to the surveyors of the principal ports, under the ninth section of the Act of 1822, [Footnote 7] the Act of 1872, upon which the plaintiffs in error rely, was passed."

"This last-named act places 'all surveyors of customs ports performing the duties of collectors' upon the footing, as respects compensation, of collectors under the Act of March 3, 1841, for like services."

"St. Louis being a nonenumerated port, the maximum allowance to a collector can in no event exceed $5,000, and this sum is in my judgment the limit of compensation to which the surveyor of the port of St. Louis is entitled."

Judgment was accordingly given for the United States, and the other side brought the case here.

Page 90 U. S. 397

MR. JUSTICE CLIFFORD delivered the opinion of the Court.

Officers of the customs derive their compensation chiefly from certain enumerated fees, commissions, and allowances, to which is added, for the benefit of the collector of the port, a prescribed sum, called salary, which is very much less than the compensation to which the officer is entitled. Provision for such fees, commissions, and allowances were first made by the Act of the thirty-first of July, 1789, which also allowed to collectors certain proportions of fines, penalties, and forfeitures. [Footnote 8]

Changes have been made in the rates of fees, commissions, and allowances for such purposes at different periods to graduate the compensation of such officers to the nature and extent of the services imposed, but the theory and outline of the system have been preserved since the first acts were passed levying import and tonnage duties. Examples of such changes are found in the Act of the eighteenth of February,

Page 90 U. S. 398

1793, for enrolling and licensing ships and vessels, and in the Act of second of March, 1799, to regulate the collection of duties on imports and tonnage, and in the act usually called the Compensation Act, passed on the same day. [Footnote 9]

Regulations of a permanent character were made by those several acts that certain fees and commissions should be paid to the collectors of the customs, together with a certain proportion of the sums paid to them for fines, penalties, and forfeitures collected from persons found guilty of violating the penal prohibitions of the revenue laws. Such fees, commissions, and allowances it was provided should be paid to the respective collectors, and the requirement was that they should keep an accurate account of the same and of all expenses for rent, fuel, stationery, and clerk hire, and that they should annually transmit such accounts to the Comptroller of the Treasury, but they were allowed by those laws to retain the whole amount of the emoluments derived from those sources beyond the expenses of the office without any limitation whatever. Expenses for rent, fuel, stationery, and clerk hire were to be deducted from the gross receipts, but they were allowed to retain the whole of the net balance as official emoluments for their services.

Business revived and importations increased, and with such increase the compensation of the collectors at certain ports became excessive, which called for new legislation, and by the Act of thirtieth of April, 1802, Congress prescribed a maximum rate of compensation without making any reduction of the fees or commissions required to be paid to the collectors, but the provisions of the act did not extend to fines, penalties, and forfeitures. [Footnote 10]

By that act it was provided that whenever the annual emoluments of any collector, after deducting the expenses incident to the office, amount to more than five thousand dollars, the surplus shall be accounted for and paid into the Treasury.

Page 90 U. S. 399

Twenty years' experience under that act showed that it needed revision, as it applied without any discrimination whatever as well to the large ports where the principal importations were made as to those of comparatively little importance. Collection districts were accordingly divided by the Act of the seventh May, 1822, into two classes, usually denominated the enumerated and the nonenumerated ports. [Footnote 11]

Under the provisions of that act, the emoluments of collectors of the enumerated ports might reach the sum of four thousand dollars, but the ninth section of the act provided that whenever the emoluments of the office shall exceed that sum in any one year, the collector, after deducting the necessary expenses incident to his office, shall pay the excess into the Treasury for the use of the United States. But the maximum rate of compensation allowed to collectors of the nonenumerated ports under the provisions of that act, from all the sources of emolument therein recognized and prescribed, is three thousand dollars, and the tenth section of the act contains a provision similar to that found in the ninth section, requiring the collector of the nonenumerated ports to account for, and pay the excess, beyond the amount allowed as the maximum rate of compensation, into the public Treasury. [Footnote 12]

Collectors under those provisions may receive the maximum rate of their offices if the office, after deducting the necessary expenses incident to the same, produces that amount from all the sources of emolument recognized and prescribed by the laws in operation. No one can receive more than the maximum rate, and his lawful claim may be much less, according to the amount of business transacted in the office. [Footnote 13]

From that time until the passage of the Act of the third of March, 1841, the laws providing for compensation of collectors remained without material change. Every such

Page 90 U. S. 400

officer is required by the fifth section of that act to include in his quarter-yearly account, among other things, all sums received by him for rent and storage of goods, wares, and merchandise stored in the public storehouses for which a rent is collected beyond what is paid for the same by such officer. Moneys received from that source, it is contended, may be retained by a collector of a nonenumerated port sufficient to make his annual compensation six thousand dollars, the claim being that the maximum limit prescribed to the nonenumerated ports is repealed by the subsequent legislation, but this Court held otherwise and decided that the collector under that act could in no case retain more than two thousand dollars, and that he was bound to pay the excess beyond that amount into the Treasury as part and parcel of the public money. [Footnote 14]

Consequently the conclusion was that the compensation of a collector of one of the enumerated ports may be six thousand dollars, but the compensation allowed to the collector of one of the nonenumerated ports cannot exceed five thousand dollars, according to the amount of fees and commissions collected and the amount received from rent and storage. Officers of the kind may receive the maximum rate of their office allowed by the prior law from the sources of emolument recognized and prescribed by that act, provided the office, after deducting the necessary expenses incident to the same, yields that amount from those sources, and in addition thereto he is entitled to whatever sum or sums he may receive from rent and storage, provided the amount does not exceed two thousand dollars, but the excess beyond that sum and the excess, if any, beyond the maximum rate of his office as fixed under the prior law, he is required to pay into the Treasury as part and parcel of the public money. [Footnote 15]

Attempt was subsequently made by the United States to limit the operations of the Storage Act, as a source of compensation to collectors, to such storage only as is received

Page 90 U. S. 401

for stores leased by the Treasury Department, for which rents are paid by the importers of goods beyond the rent paid on behalf of the United States, but the court refused to adopt that narrow construction, and held that all sums received for storage, whether the goods imported were deposited in the public stores or the "other stores" named in the acts of Congress, are required to be included in the quarter-yearly account of the collector, which he is directed to render to the Secretary of the Treasury, and that the yearly aggregate of such sums constitute the basis of computation in ascertaining what amount, if anything, the collector is entitled to receive as compensation from that source of emolument, and what amount, if anything, he is required to pay over from that source, as excess beyond the two thousand dollars, into the public Treasury. [Footnote 16]

None of these propositions is controverted by the defendant, nor does he contend that any of those provisions have been superseded by any express repeal, but he insists that surveyors performing the duties of collectors, under the fifth section of the Act of the second of March, 1831, are entitled to the same compensation as the collectors of the enumerated ports.

Merchandise imported from a foreign port and consigned to merchants at St. Louis was required, if the importation was subject to custom duties, to be entered at the custom house in New Orleans in the same manner as required in case of the entry of goods imported for consumption, and the officers of the customs at that port are required to proceed to assess the custom duties in the same way as if the merchandise had been destined for sale or consumption in that market.

Payment of the duties, however, is not required to be made at that port, but the importer is required to give a bond, called a transportation bond, conditioned that the packages described in the invoice shall, within a specified

Page 90 U. S. 402

time, be delivered to the surveyor and acting collector of the port of St. Louis. Due notice of the proceedings is then given by the collector of the port where the duties were ascertained and assessed to the acting collector of the port to which the merchandise is destined. Such proceedings being had, the vessel may proceed on her voyage, and when she arrives at the port of destination, the packages are placed in the custody of the acting collector of that port, who receives the duties, giving notice of that fact to the collector of the port where they were ascertained and assessed, and the collector of the latter port is authorized to cancel the transportation bond given by the importer. [Footnote 17]

Compensation was claimed by the defendant at the rate of six thousand dollars per annum, and it is admitted that he retained that amount of the moneys collected by him in pursuance of that claim, two thousand dollars of which accrued from rent and storage and the other four thousand dollars accrued from fees, commissions, and allowances recognized and prescribed by the prior Compensation Act. [Footnote 18]

Four thousand dollars may be received as compensation under that act by the collector of each of the seven ports named in the ninth section of that act, and the provisions of a more recent act give the same compensation to the collector of the port of Portland, Maine, but the tenth section of the said Compensation Act provides that whenever the emoluments of any other collector of the customs shall exceed three thousand dollars, after deducting therefrom the necessary expenses incident to his office, in the same year, the excess shall in every such case be paid into the Treasury for the use of the United States. [Footnote 19]

St. Louis is not one of the enumerated ports, but the defendant insists that the Act of the second of March, 1831, which devolved upon the surveyor of that port the duties of collector, designated a third class of ports, and that the

Page 90 U. S. 403

maximum compensation of such a collector is six thousand dollars. Nothing is contained in the act to support any such theory or to afford the slightest evidence that Congress intended anything of the kind. Instead of that, the act provides that the surveyor charged with such duties shall receive, in addition to his customary fees, an annual salary of three hundred and fifty dollars, which is utterly inconsistent with the theory that he is entitled by virtue of that act to the same compensation as the collector of one of the enumerated ports.

Confirmation of that view is also derived from the further provision of the same section that no salary arising under the act shall commence until the act shall take effect and merchandise shall be imported under its authority. Prior to that time, the customary fees of the surveyor of that port accruing under the Compensation Act of the seventh of May, 1822, could not exceed two thousand dollars, and it is not pretended that he could retain to his own use more than two thousand dollars from rent and storage.

Apply those suggestions to the case before the Court and it is clear that the compensation of the defendant, if regarded merely as a surveyor, could not exceed four thousand three hundred and fifty dollars, even if it be admitted that the sum called salary is an addition to the four thousand dollars to be derived from the other sources of emolument and not merely an addition to the basis of calculation in computing the maximum to be derived from fees, commissions, and allowances, as provided in the tenth section of the Compensation Act.

Small sums called salary have always been allowed to collectors and to the surveyors of certain ports, but such allowances have uniformly been included in the basis of calculation as part of the receipts from fees, commissions, and allowances in computing the maximum compensation of the officers interested. Surveyors of ports, where the officer is charged with the duties of collectors, now stand upon a different footing, as the Act of the third of March, 1857, provides that such surveyors shall be entitled to the

Page 90 U. S. 404

same compensation as is allowed to collector for like services in the settlement of their accounts. [Footnote 20]

Grant that, and still it is contended by the defendant that the maximum compensation of all collectors, except those of the enumerated ports, as provided in the tenth section of the Compensation Act, is repealed by the act requiring collectors to include all sums received for rent and storage in their quarter-yearly accounts. Much discussion of that topic, however, is unnecessary, as the question has been twice determined adversely to the defendant by the unanimous decisions of this Court. [Footnote 21]

Such a collector cannot receive under any circumstances more than five thousand dollars, not even if the office earns a greater amount, and he may be obliged to accept much less in case the office does not earn three thousand dollars net from fees, commissions, and allowances or in case the amount received from rent and storage falls short of two thousand dollars.

Effort is also made in argument to derive support to the proposition that the limitation contained in the tenth section of the Compensation Act is repealed, from the act which provides that the compensation of such a surveyor shall be the same as is allowed to collectors for like services, but it will be sufficient to say in response to that suggestion that the court is of the opinion that the proposition is destitute of any foundation whatever.

Suppose that is so, still it is insisted by the defendant that the Act of the eighth of June, 1872, entitles him, as the administrator of the intestate, to retain to the use of the estate of the decedent a rate of compensation equal to six thousand dollars per annum, but the Court is entirely of a different opinion. [Footnote 22]

Stripped of certain redundant words, the body of the act is exactly the same as section eighth in the prior act. [Footnote 23] Both

Page 90 U. S. 405

acts provide that such a surveyor "shall be entitled to the same compensation as is allowed to collectors for like services," and neither contains a word which is repugnant to the tenth section of the Compensation Act. [Footnote 24]

Nor is the proviso in the latter act inconsistent with the prior limitation, as the maximum allowance to such a collector is three thousand dollars from fees and commissions and two thousand dollars from rent and storage.

Judgment affirmed.

[Footnote 1]

3 Stat. at Large 693.

[Footnote 2]

4 Stat. at Large 480.

[Footnote 3]

5 id. 421

[Footnote 4]

11 Stat. at Large 221.

[Footnote 5]

17 id. 336.

[Footnote 6]

63 U. S. 22 How. 299.

[Footnote 7]

Congressional Globe, 2d session, 43rd Congress, part 4, p. 3409.

[Footnote 8]

1 Stat. at Large 64.

[Footnote 9]

1 Stat. at Large 171, 316, 695, 706.

[Footnote 10]

2 id. 172.

[Footnote 11]

3 Stat. at Large 693.

[Footnote 12]

Hoyt v. United States, 10 How. 135.

[Footnote 13]

United States v. Macdonald, 2 Clifford 281.

[Footnote 14]

United States v. Walker, 22 How. 313.

[Footnote 15]

Ib.

[Footnote 16]

United States v. Macdonald, 5 Wall. 656; Same Case, 2 Clifford 283; Clark v. Peasely, Circuit Court, Massachusetts District, October Term, 1862.

[Footnote 17]

4 Stat. at Large 482; Belcher v. Linn, 24 How. 516.

[Footnote 18]

3 Stat. at Large 895.

[Footnote 19]

3 id. 695; 13 id. 46.

[Footnote 20]

11 Stat. at Large 221.

[Footnote 21]

United States v. Walker, 22 How. 314; United States v. Macdonald, 5 Wall. 655.

[Footnote 22]

17 Stat. at Large 336.

[Footnote 23]

11 id. 229.

[Footnote 24]

3 Stat. at Large 695.

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