Under the Revenue Act of 2 March, 1799, c. 128, the right to
share in the forfeitures and penalties accruing under the act is
given to the collector who made the seizure or who brought the
suit, and not to the collector who was in office at the time of the
decree or judgment or the receipt of the forfeiture, if there has
been any intermediate appointment. So of the share of the surveyor
of a collection district.
The right of a collector to share in forfeitures
in rem
attaches on seizure and to personal penalties on suit brought, and
in each case is consummated by the judgment.
Page 14 U. S. 463
The material facts of these cases are as follows:
On 23 November, 1808, a bond was executed at the custom house of
Petersburg, in Virginia, to the United States by Thomas Pearse,
master of the ship
Sally, of Philadelphia, and Robert
McAdam, Daniel Filton, and George Pegram, Jr., in the penal sum of
$46,300, upon condition that if the cargo of said vessel,
consisting of 830 hogsheads of tobacco, intended to be transported
in said vessel from the port of Petersburg to the port of Boston,
in Massachusetts, should be relanded in the United States, the
danger of the seas excepted, then the obligation to be void,
otherwise to remain in full force. The bond was in fact given to
John Shore, the Collector of the District of Petersburg, in
pursuance of the second section of the Embargo Act of 22 December,
1807, ch. 5. A suit was afterwards brought by the said collector on
the same bond in the District Court for the District of Virginia,
and pending the proceedings in said court, to-wit, on or about 30
October, 1811, John Shore, the collector, died, and judgment was
finally recovered on the same bond in favor of the United States on
30 November. 1811. On the 26th of the same November, John Jones was
duly appointed and commissioned by the President as collector of
the
Page 14 U. S. 464
same district, and he qualified as such and took upon himself
the discharge of the duties of the office on 14 December, 1811,
until which time Thomas Shore, who was deputy collector under John
Shore at the time of his decease, continued as such deputy
collector to discharge the duties of the office. Mr. Pegram sued
out a writ of error from the said judgment to the Circuit Court for
the District of Virginia, and Mr. Pegram having died pending the
proceedings, the suit was revived by his administrator and the
judgment of the district court was, at May term, 1814, affirmed by
the circuit court.
At the time when the bond was taken by the collector, Andrew
Torborn was the surveyor of said district for the Port of City
Point, and continued in that office until his death, which happened
after the commencement of the suit on said bond and before the
rendition of judgment thereon, and was succeeded in his office by
John H. Peterson, who was appointed and commissioned on 3 March,
1811, and qualified and entered upon the discharge of the duties of
that office on the 16th of the same month. At the May term of the
circuit court, 1814, the whole debt and costs recovered by the
judgment were paid into court by the administrator of Mr. Pegram.
Cross-petitions were thereupon filed by the district attorney in
behalf of the United States praying the whole sum to be paid to him
or deposited in the Bank of Virginia to the credit of the Treasurer
of the United States by the present collector and surveyor of the
District of Petersburg and by the representatives of the deceased
collector and surveyor,
Page 14 U. S. 465
praying a payment over and distribution of the sum so recovered
according to the rights respectively claimed by them. A bill was
also filed on the chancery side of the circuit court by the
representatives of the deceased collector and surveyor against the
present collector and surveyor and the clerk of the court praying a
moiety to be paid over to them or such other portion as they were
entitled to by law, and also for general relief. Upon the hearing
of the cross-petitions, the circuit court overruled the prayer of
the motion of the district attorney, the court being of opinion
that the United States was entitled only to a moiety of the money
and that the same ought to be paid to the collector of the
district, and ordered the clerk of the court accordingly to pay the
same to John Jones, the present collector, after deducting
therefrom one-half of one percentum for his commission. And the
court being divided in opinion whether the other moiety should be
paid to the said collector to be distributed by him according to
law, as this Court should direct, or without any direction on the
subject, certified the same question to the Supreme Court.
Upon the hearing of the suit in chancery on the bill, answer,
and proof, in which none of the facts were controverted, a question
occurred before the court whether the representative of the late
surveyor, in right of his intestate, was entitled to receive the
moiety of that portion of the penalty which is by law to be
distributed among the several revenue officers of the district
wherein the penalty was incurred, upon which
Page 14 U. S. 466
question the court was divided, and the same question was
certified to this Court.
Page 14 U. S. 468
STORY, J., delivered the opinion of the Court, and after stating
the facts, proceeded as follows:
As the United States has not asserted any claim, the first
question for the decision of the Court is whether the present
collector and surveyor, the actual incumbents in office, or the
representatives of the late collector and surveyor, in right of
their testator and intestate, are entitled to the moiety of the
money received in satisfaction of the judgment above stated and now
in the custody of the circuit court.
By the express provisions of law, all penalties and forfeitures
accruing under the embargo acts, with a few exceptions not
applicable to this case, are to be distributed and accounted for in
the manner prescribed by the collection law of 2 March, 1799, ch.
122. To this latter act, therefore, the arguments of counsel have
been chiefly directed, and upon the true construction of the 89th
section of the act the decision of this cause must principally
rest.
Page 14 U. S. 469
The 89th section enjoins the collector within whose district a
seizure shall be made or forfeiture incurred, to cause suits for
the same to be commenced without delay and prosecuted to effect,
and authorizes him to receive from the court within which a trial
is had, or from the proper officer thereof, the sums so received,
after deducting the proper charges, and on receipt thereof requires
him to pay and distribute the same without delay according to law
and to transmit quarter-yearly to the Treasury an account of all
the moneys received by him for fines, penalties, and forfeitures
during such quarter. The 91st section declares that all fines,
penalties, and forfeitures recovered by virtue of the act and not
otherwise appropriated shall, after deducting all proper costs and
charges, be disposed as follows,
viz.,
"one moiety shall be for the use of the United States, and be
paid into the Treasury thereof by the collector receiving the same;
the other moiety shall be divided between and paid in equal
proportions to the collector and naval officer of the district and
surveyor of the port wherein the same shall have been incurred, or
to such of the said officers as there may be within the same
district, and in districts where only one of the aforesaid officers
shall have been established, the said moiety shall be given to such
officer."
Then follow provisions referring to the distribution in cases
where the recovery has been had in pursuance of information given
by any informer or by any officer of a revenue cutter.
It is argued on behalf of the present collector and surveyor
that upon the true construction of these
Page 14 U. S. 470
clauses, no title to a distributive share of penalties and
forfeitures vests until the money has been actually received by the
collector from the officer of the court, and that upon such receipt
it vests in the proper officers of the customs who are then in
office. And in support of this argument it is further asserted that
until this epoch, the claim is a mere expectancy, and not a right,
the interest being in abeyance, uncertain, and contingent. An
attempt has been made to press the language of the act into the
service of this argument. But it certainly will not support it. The
language of the act, in its most obvious import, does not seem to
have contemplated any charge in the officers of the customs between
the time of the accruing and the receipt of the penalty of
forfeiture. It seems principally to have been adapted to cases of
the most ordinary occurrence, and it is only by an equitable
construction that it can, in aid of the legislative intention, be
brought to reach the present case. The act must receive the same
construction in relation to forfeitures
in rem as in
relation to personal penalties. Both are distributable in the same
manner and subject to the same rules. The case therefore will be
first considered in reference to forfeitures
in rem.
Whenever a forfeiture
in rem accrues, it is by the act
made the duty of the collector to seize the thing and to prosecute
a suit therefor to final judgment. The law contemplates that he may
seize, upon probable cause of seizure, not simply in cases of
personal knowledge, but upon the information of others. He seizes,
however, at his peril, and if the act be not justifiable, he is
subject to a personal responsibility
Page 14 U. S. 471
for all damages. He is placed, therefore, in a situation in
which he is bound to act and yet is not protected against the legal
consequences of his acts. It is unquestionably with a view to
stimulate his vigilance and reward his exertions that the law has
given him a share of the forfeitures recovered by his enterprise
and activity. And yet it would follow upon the argument which has
been stated that the collector who seizes might be liable to all
the responsibility of the act in case of a failure without
receiving any of the fruits of his toil if crowned with success.
This certainly would seem to be against the policy of the
legislature as well as against the plainest rules of equity.
It is a maxim of natural justice,
qui sentit commodum
sentire debet et onus, and the words of a statute ought to be
very clear that should lead to a different determination. But the
case is not left to the result of general reasoning upon the intent
and policy of the legislature. It is not true that the right of a
seizing officer to a distributive share is a mere expectancy. By
the common law, a party entitled to a share of a thing forfeited
acquires by the seizure an inchoate right which is consummated by a
decree of condemnation, and when so consummated, it relates back to
the time of the seizure. This principle is familiarly applied to
many cases of forfeitures to the Crown, and even in respect to
private persons entitled to forfeitures, the interest which is
acquired by seizure has been deemed a sufficient title to sustain
an action of detinue for the property. And it is very clear that
the legislature steadily kept in view this principle of the
Page 14 U. S. 472
common law, for the act has expressly provided that any officer
entitled to a part of the forfeiture may be a witness at the trial,
and in such a case he shall lose his share in the forfeiture. The
law therefore, deems him a party having a real substantial interest
in the cause, and not a mere expectancy -- "a fleeting hope that
only keeps its promise to the ear, but breaks it to the sense."
It is true that the act, in making distribution of forfeitures,
speaks of the parties entitled to them by the description of their
office; but it cannot with any color of reason be argued that this
designation of office meant to exclude a
designatio
personae. On the contrary, it is most manifest that the act
meant to point out the person entitled by a description of his
office. The question then recurs who is the person meant under this
description of office? Is it the person who happens to be in office
when the forfeiture is received? Or the person who was in office
when the seizure was made and who thereby acquires an inchoate
right which the subsequent judgment ascertained and fixed? The
words may be literally applied indifferently to either, but in
point of law they can be properly applied only to him who has,
under the same description of office, already acquired a vested
title, inchoate, or consummate, in the forfeiture. This
construction is fortified by a recurrence to other provisions in
the 91st section of the act. It is, in the first place, provided
that in all cases of forfeitures recovered in pursuance of
information given to such collector (pointing to the collector
entitled to a distributive share), a moiety of the moiety shall be
given to the
Page 14 U. S. 473
informer. The grammatical connection of the words, as well as
the obvious exposition of the clause, supposes that the collector
who receives the information and commences the suit is the person
entitled to the distributive share of the forfeiture. In the next
place it is provided that when the forfeitures are recovered in
consequence of any information given by any officer of the revenue
cutter, one moiety thereof shall be distributed among the officers
of such cutter. Can there be a doubt that the persons who were
officers at the time of the information, and not those who were
officers at the time of the receipt of the forfeitures, are the
parties entitled to this moiety? Yet the same reasoning applies
here with equal force, as in the case of the collector. So by the
Embargo Act of 9 January, 1809, ch. 72. s. 12., forfeitures
recovered in consequence of any seizure made by the commander of
any public armed vessel of the United States are to be distributed
according to the rules of the Navy Prize act of 22 April, 1800, ch.
33, and it is clear beyond all doubt that the parties so entitled
are the officers and crew at the time of the seizure. The analogous
rule in cases of captures
jure belli is here expressly
alluded to and adopted by the legislature, and that rule stands on
the same general foundation with that of the common law. The right
of captors to prizes is but an inchoate right, and until a
condemnation, no absolute title attaches. But when condemnation has
passed upon the property, it relates back to the capture, and
although the parties have died in the
Page 14 U. S. 474
intermediate time, the title vests in
proprio vigore in
their representatives.
Much stress has been laid upon the clauses in the 89th and 91st
sections of the collection law of 2 March, 1799, which authorize
the collector to receive from the proper officer of the court the
moneys recovered in suits for penalties and forfeitures, and which
require him to pay and distribute the same according to law among
the officers of the customs and other parties entitled thereto. But
these provisions are merely directory to the collector, and do not
vest in him any personal right to the money received which he did
not before possess; much less do they authorize the supposition
that until the receipt, no title vested in any person. It might
with as much force and propriety be urged that, until the same
epoch, no right to the other moiety vested in the United States,
for the statute is equally mandatory and precise in this case as in
the other. It would, however, be quite impossible to contend upon
any legal principles that the title of the United States was not,
to all intents and purposes, consummated by the judgment.
The same reasoning which has been used in respect to forfeitures
in rem applies to personal penalties, and it is
unnecessary to repeat it. The Court is clearly of opinion that the
right of the collector to forfeitures
in rem attaches on
seizure and to personal penalties on suits brought, and in each
case it is ascertained and consummated by the judgment, and it is
wholly immaterial whether the collector die before or after the
judgment. And it is further
Page 14 U. S. 475
of opinion that the case of the surveyor is not in this respect
distinguishable in any manner from that of the collector. It is
therefore of opinion that the representatives of the deceased
collector and surveyor, and not the present incumbents in office,
are entitled to the distributive shares of the moiety of the money
now in the registry of the circuit court.
The next question is as to the proportions in which this moiety
is to be divided between the representatives of the collector and
surveyor. Whatever may have been the practice in the District of
Petersburg, the words of the act admit of no reasonable doubt. The
moiety is to be divided in equal proportions between the collector,
naval officer, and surveyor, or between such of the said officers
as there may be in the district. There was no naval officer in the
District of Petersburg, and consequently the division must be in
equal proportions between the collector and surveyor.
It is the unanimous opinion of this Court that it be certified
to the circuit court that it is the opinion of this Court
1st. In the case of the United States against Joseph Jones and
others, that the moiety of the money now remaining in the custody
of the circuit court in the proceedings in the case of the United
States, appellants, against Joseph Jones and others mentioned,
should be paid to the said Joseph Jones, Collector of the District
of Petersburg, to be by him divided in equal proportions between
Thomas Shore, as he is executor of the last will and testament
of
Page 14 U. S. 476
John Shore, deceased, and Reuben M. Gillian, as he is
administrator of the goods and effects of Andrew Tarbone,
deceased.
2d. In the case of Thomas Shore and another against Joseph Jones
and others, that the representative of the late surveyor in right
of his intestate was entitled to receive one moiety of that portion
of the penalty in the proceedings mentioned, which is by law to be
distributed among the several revenue officers of the district
wherein the penalty was incurred.
