The act of Feb. 26, 1867, 14 Stat. 410, abolishing a former
collection district in Maryland and forming from a portion thereof
a new district, provides that the collector "shall receive an
annual salary of $1,200." A. held the office of collector from
April 19, 1867, until April 1, 1875. On July 18, 1867, the
Commissioner of Customs required him, in writing, to account for
all fees received by him as such. He accordingly thereafter paid
them into the Treasury.
Held:
1. That in addition to his salary, A. was entitled to the fees
and emoluments allowed to such officers by preexisting
legislation.
2. That having paid them into the Treasury pursuant to a
peremptory order of his superior officer, he was not thereby
precluded from recovering them in a suit against the United
States.
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Compensation to collectors of the customs from the organization
of the government to the present time has been chiefly derived from
certain enumerated fees, commissions, and allowances, to which is
added a prescribed sum, called salary, much less than a reasonable
compensation for the service required of the officer. 1 Stat. 64,
316, 627, 786.
Sufficient appears to show that by these several acts certain
enumerated fees and commissions were made payable to the collectors
of the customs, and that they were also entitled to certain
proportions of fines, penalties, and forfeitures. By the same acts
they were required to keep accurate accounts of all fees and
official emoluments by them received, and of all expenses for rent,
fuel, stationery, and clerk hire, and to report the same annually
to the Comptroller of the Treasury, but
Page 101 U. S. 165
they were allowed to retain to their own use the whole amount of
the emoluments collected from those sources without any limitation.
Maximum rate of compensation was subsequently prescribed, which was
$5,000, and it was made applicable to all collectors without any
discrimination. 2
id. 172.
It was provided by that act that whenever the annual emoluments
of any collector, after deducting the expenses incident to the
office, amounted to more than $5,000, the surplus should be
accounted for and paid into the Treasury. Districts for the
collection of the customs were, at a later period, divided into two
classes, usually denominated the enumerated and the nonenumerated
ports, and the maximum rate of compensation to collectors was
diminished. 3
id. 695.
Under that act, the maximum for the enumerated ports was $4,000
and for the nonenumerated ports $3,000, and the provision in
respect to both classes was that the excess, after deducting the
expenses incident to the office, should be paid into the Treasury
as public money.
For a considerable period of time these regulations were
satisfactory, but when the policy was changed, the free list much
enlarged, and the rates of duty reduced, experience showed that the
emoluments of collectors from those sources were not sufficient to
give them a reasonable compensation. Temporary expedients were
resorted to for several years by the passage of an annual
compensation act, as will be seen by reference to the acts of
Congress during that period.
United States v.
Walker, 22 How. 299,
63 U. S. 308;
United States v.
Macdonald, 5 Wall. 647,
72 U. S.
655.
Importers, under various antecedent acts of Congress, were
allowed to place certain goods in the public stores under bond, at
their own risk, without the payment of the duties, until the goods
were withdrawn. Public stores were accordingly rented, and as the
business increased, the rent and storage received by the collector
of the merchants making deposits in the stores exceeded the amount
paid to the owners of the same, and there was no law requiring the
collector to account for the excess. Congress interposed and
regulated the subject. 5 Stat. 432; Rev.Stat., sec. 2647.
By that enactment, collectors are required to include in
their
Page 101 U. S. 166
quarterly accounts all sums received for rent and storage in the
public stores beyond the rents which are paid to the owner, and if
the excess in any one year exceeds $2,000, it is made their duty to
pay such excess into the Treasury as part and parcel of the public
money.
United States v. Macdonald, 2 Cliff. 270, 282.
Two thousand dollars of the amount, under the act of Congress
then in force, might be retained by the collector in addition to
the amount received from other lawful sources of emolument,
provided the latter did not exceed the maximum rate allowed to the
office. Receipts from the other sources of emolument were to be
accounted for as before, but the effect of the new provision was to
add $2,000 to the compensation of a collector if his office earned
that amount from rent and storage. Custom dues of every kind
received by a collector are now required to be credited in his
quarterly accounts, no matter from what source of emolument the
money is derived, and the provision is that whenever the emoluments
of any collector, other than one of the enumerated ports,
"shall exceed $3,000, the excess shall in every such case be
paid into the Treasury for the use of the United States, but the
provision does not extend to fines, penalties, or forfeitures, or
the distribution thereof."
Rev.Stat. 2691.
Apply the rule prescribed in that provision to the case before
the Court and it is clear that the collector, if the compensation
he received from other sources of emolument, after deducting the
incidental expenses of his office, amounted to $3,000, would not
have a right to retain any portion of the excess received for rent
and storage beyond what he paid to the owners of the stores rented.
His right in such a case, provided the aggregate of his receipts
from the other sources of emolument, after deducting the incidental
expenses of his office, was insufficient to give him the maximum
compensation allowed, would be to retain enough from the amount
derived from that source to make up the deficit.
Judgment was rendered in favor of the petitioner, and the United
States appealed to this court. No formal assignment of errors is
filed, but the proposition submitted in argument is that the
petitioner voluntarily paid the amount claimed into
Page 101 U. S. 167
the Treasury, and that he cannot now maintain any action to
recover it back.
Nothing appears in this case to warrant the conclusion that the
petitioner ever collected anything for rent and storage, or that
any such matters are in controversy in this case, as will hereafter
more fully appear.
Special findings were made by the court to the effect following:
that the petitioner held the office of collector of the port of
Crisfield from April 19, 1867, to April 1, 1875, and that he
received from the United States during that period a salary at the
rate of $1,200 per annum; that on the 18th of July subsequent to
his appointment, the Commissioner of Customs wrote him,
acknowledging the letter of the petitioner of a prior date, and
stated that the $1,200 salary given him by the act creating his
district constituted his entire compensation, and that he was
required to account for all fees.
Directions could hardly be more peremptory, and the Court of
Claims finds that in consequence of that letter the petitioner
accounted for and paid into the Treasury all moneys collected by
him as duties on imports and tonnage except what was expended for
office rent, fuel, and expenses, and for the services of his deputy
and clerks.
During his term of office, he collected as fees $9,066.43, of
which he paid out $623.48 for office rent, fuel, and expenses, and
$2,492.29 for the services of his deputy and clerks, for which sums
he was allowed credit in his accounts.
None of these matters can be controverted, and the fifth finding
of the court below shows the balance of the sum collected as fees,
to-wit, the sum of $5,950.66, was by him, without protest, paid
into the Treasury of the United States. All of the facts are stated
in the findings of the court, and they also find that the
petitioner, under the acts of Congress, collected tonnage taxes to
the amount of $11,839.23, and that he paid the same to the
government.
It appears that the district in which the petitioner is
collector was formed out of a part of a district created by the
original collection act, and that it was continued as such until
the passage of the act abolishing it, and that the act creating the
new district provided that the collector of the
Page 101 U. S. 168
same shall receive an annual salary of $1,200. 1 Stat. 33; 14
id. 410.
Much discussion of the proposition that the petitioner would
have been entitled to all he demands if he had seasonably claimed
it or made the payment, when it was officially required, under
protest, is certainly not required, as it is not denied in
argument; but if it were required to give the authority for the
conceded right, the effort would not be attended with much
difficulty. Express provision was made by the second section of the
Compensation Act, that collectors might demand and receive the fees
therein prescribed. They were also given a salary of $250, and were
required to keep an accurate account of all fees and official
emoluments and all expenditures for rent, fuel, stationery, and
clerk hire, and to transmit the same under oath to the Comptroller
of the Treasury. 1
id. 706-708. Corresponding provision is
now contained in the Revised Statutes which is applicable to the
case under consideration. Rev.Stat., sec. 2654.
Percentages for the collection of duties of import and tonnage
were also allowed by the original act, and are contained in the
Revised Statutes. Sec. 2659. Three percent is allowed to the
collector of this port, and he is also entitled to a salary of $200
by the original act, which for certain purposes may still be
regarded as in force. Accounts are still required to be rendered by
the officer under oath. Secs. 2639, 2641.
Instances may perhaps be cited where it would be reasonable to
conclude that Congress intended to make the salary of the collector
his entire compensation by using appropriate words to manifest such
intention, but it is clear to a demonstration that the general rule
is the other way, as appears from all the compensation acts passed
since the Treasury Department was organized. Salary in all the acts
is one of the allowances, but it will be found in every such act
that fees, commissions, other allowances, or percentages are also
included in the list. Proof of that proposition is found in the
Revised Statutes as well as in the acts of Congress which were the
subject of revision. If more be needed to confirm the proposition,
it will be found in the decisions of this Court to which
Page 101 U. S. 169
reference has already been made. It is not even suggested that
the acts of Congress allowing fees, percentages, and commissions
are repealed, and, if not, it may well be that such allowances were
intended, as heretofore, to supplement the small salaries
prescribed in cases like the present.
Suppose that is so, still it is contended by the United States
that the payments were voluntarily made, and that the money cannot
be recovered back. Confessedly, the order was official and
peremptory, and under such circumstances it may well be inferred
that the party felt that, if he refused to obey, the refusal would
cost him his commission. Had he refused to comply with the order or
entered a protest, his act might have been regarded as
contumacious, and have proved as injurious in its consequences to
the incumbent of the office as if he had declined to discharge the
ordinary duties of the collector. Viewed in the light of the
attending circumstances, and especially of the fact that the order
came from the Commissioner of the Customs, to whom he was
immediately responsible, we cannot hold that the payments were
voluntary within the meaning of the judicial rule which, in
consequence of the payment, denies to the party making the same the
right to recover it back.
Beyond all question, the money was wrongfully exacted, and it is
equally certain that in equity and good conscience it ought to be
returned, or so much of it as is not barred by the statute of
limitations. It was demanded of him by his official superior, and
the act of Congress exposed him to a penalty if he refused to
comply. 14 Stat. 187; Rev.Stat., sec. 3619.
Comment upon the plea of limitations is unnecessary, as the
charges barred by the statute were excluded from the judgment.
Governed by these views, we hold, as the court below held, that
the petitioner is entitled to recover the fees paid into the
Treasury after May 22, 1869, as stated in the opinion of the court,
less $2.30 of tax paid on his salary, making, as properly adjusted
in the opinion of the court below, the sum of $5,605.38, for which
the judgment was rendered.
Judgment affirmed.