When there is color for a motion to dismiss on the ground of
want of jurisdiction, and the claim is not so clearly frivolous as
to authorize the dismissal, the court may consider and pass upon
the question raised. Claims of deputy marshals against a marshal
for services stand upon the same footing as those of an ordinary
employee against his employer.
This was a motion to dismiss a writ of error for want of
jurisdiction, or to affirm the judgment of the Supreme Court of
North Carolina upon the ground that the writ of error was sued out
for delay merely, and the question upon which jurisdiction depended
was so frivolous as not to need further argument.
The action was brought in the Superior Court of Iredell County,
North Carolina by the defendants in error, the firm of Wallace
Bros., to recover of Douglas, the plaintiff in error, the amount of
certain drafts drawn upon him by certain persons, and accepted by
writing across said drafts "Accepted. Payable when I receive funds
to the use of" the drawer of the drafts. Signed, "R. M. Douglas,
U.S. Marshal." The matters involved in the action were referred to
a referee, who found that the defendant Douglas was marshal of the
United States for the Western District of North Carolina for the
years 1878 to 1881, and that during this time he had in his
employment, as deputy marshals, J. T. Patterson, Jr., in whose
favor he accepted a draft for $200; W. J. Patterson, in whose favor
he accepted a draft for $325, and S. P. Graham, who had a claim
against the marshal for $98.82 for official services rendered to
the marshal -- all of which were assigned to the plaintiffs. The
referee further reported that there had been placed to the credit
of Douglas in the Treasury Department of the United States the sum
of $460.76, upon claims due him for the services of J. T.
Patterson, Jr., performed prior to the
Page 161 U. S. 347
acceptance of his draft for $200, not subject to any previous
order, and that the same was placed to his credit since the
acceptance of the draft; that there had also been placed to his
credit the sum of $2,274.55, due him for the services of W. J.
Patterson, rendered prior to the acceptance of his draft for $325,
and that the same was subject only to two drafts for the aggregate
sum of $600; that of the claim of $98.82, due to S. P. Graham for
services rendered as deputy, $95.62 had been placed to the credit
of the defendant in the Treasury Department since the acceptance of
the claim by the defendant, the remainder of said claim having been
allowed by the government; that the vouchers so traded to the
plaintiffs were for services rendered prior to the said acceptance,
and before the same was transferred to the plaintiffs, and that the
further sum of $2,858.76 was placed to the defendant's credit and
control in the Treasury Department, for services rendered by
Graham, out of which sum defendant received $900, leaving $1,958.76
to the credit of the defendant since the acceptance. The referee
accordingly reported that the plaintiffs were entitled to payment
for the full amount of their claim.
Before the judgment of the court was rendered, the defendant
moved that the action be dismissed upon the ground that the
evidence disclosed that the drafts and accounts declared upon were
drawn upon claims, or an interest in claims, against the United
States, before their allowance, and were therefore null and void,
under Rev.Stat. § 3477, inhibiting the assignment of claims against
the United States. This motion was overruled, the court proceeded
to consider the case upon the report of the referee, and exceptions
thereto, and entered a judgment in favor of the plaintiffs, from
which the defendant appealed to the Supreme Court of North
Carolina, which affirmed the judgment of the court below. Whereupon
defendant sued out this writ of error.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 161 U. S. 348
The only federal question in this case was raised upon the
motion of the defendant to dismiss upon the ground that the
evidence disclosed that the drafts and accounts declared upon were
drawn upon claims, or an interest in claims, against the United
States, before their allowance, contrary to the provisions of
Rev.Stat. § 3477, which declares that
"all transfers and assignments made of any claim upon the United
States, or of any part or share thereof, or interest therein,
whether absolute or conditional, and whatever may be the
consideration therefor, and all powers of attorney, orders or other
authorities for receiving payment of any such claim, or of any part
or share thereof, shall be absolutely null and void unless they are
freely made and executed in the presence of at least two attesting
witnesses, after the allowance of such a claim, the ascertainment
of the amount due, and the issuing of a warrant for the payment
thereof,"
etc.
While we are of opinion that the claim of a federal question
thus presented is not so clearly frivolous as to authorize us to
dismiss the case, within the rulings in
Millingar
v. Hartupee, 6 Wall. 258;
New Orleans v. New
Orleans Waterworks Co., 142 U. S. 79,
142 U. S. 87,
and
Hamblin v. Western Land Co., 147 U.
S. 531, we think there was such color for the motion to
dismiss as authorizes us to proceed to the consideration of the
question involved.
Upon the merits, we think the position assumed by the defendant
is wholly untenable. The deputy marshals, for whose services the
drafts in question were accepted, not only had no claim upon the
United States, and no part or share in any such claim, but they had
no proper interest in any such claim. Their accounts, for which the
drafts were accepted, were claims against the marshal personally,
and not against the United States, though they were paid out of the
funds to be realized by the marshal from the government. Although
deputies are recognized by law as necessary to the proper
administration of the marshal's office, they receive from the
government neither salaries nor fees, and the government has no
dealings directly with them. The accounts are rendered by the
marshal, who charges not only for his own services,
Page 161 U. S. 349
but for those of each of his deputies, who are appointed by the
marshal personally, and accountable to him alone, though subject to
be removed by the court at its pleasure. Rev.Stat. § 780. The
marshal makes his own bargains with his deputies, and is
unrestricted in the amount he shall pay them, which may be either a
salary or a proportion of the fees earned by them, except that in
computing the maximum compensation to which he is entitled, the
allowance of no deputy shall exceed three-fourths of the fees and
emoluments received or payable for the services rendered by him.
Rev.Stat. § 841. He is thus bound to charge himself with a quarter
of the fees earned by each deputy. Their claims for services
against the marshal stand upon the same footing as those of an
ordinary employee against his employer, and are not even contingent
upon the marshal's collecting his own accounts against the United
States, although in the present case the marshal accepted the
drafts in suit upon such contingency.
It is true that, in a narrow sense of the word, these deputies
may be said to have had an interest in the claim of the marshal
against the United States, inasmuch as their drafts were not
payable until the marshal received funds for the use of the
drawers, or rather applicable to the services rendered by the
drawers; but this was rather a method of fixing a date for the
maturity of the drafts than a contingency upon the happening of
which the claims of the deputies should be payable. If, for
instance, the marshal were to give his grocer or other ordinary
creditor a note payable when a certain claim of his against the
government were paid, such creditor might be said to be interested
in the payment of the claim; but he could not, in the sense of the
statute, by said to have an interest in the claim itself, since his
debt existed entirely independently of the claim. Had the drafts in
this case been surrendered and cancelled, the claims would still
have existed against the marshal personally, and, in the absence of
any agreement to the contrary, might have been subject to
enforcement. Their claims were for services rendered to the
marshal, though the amount of such claims was measured by the fees
which the marshal was entitled to charge the government for
Page 161 U. S. 350
their services. Had the marshal neglected to include them in his
accounts, their validity as claims against him would not have been
affected, and, if they chose to await payment of their claims until
the marshal received money applicable to their services, this was a
matter of favor to him. The plaintiffs are no more the assignees of
the deputies' claims against the government than the deputies were
of a share or interest in the marshal's claim against the
government. Upon the theory of the defendant, the deputies would be
without remedy. They would have no claim directly against the
government, because he stands between them. They would have none
against him personally, since, by his acceptance of their drafts,
they became assignees of a share or interest in his claim against
the government.
The judgment of the Supreme Court of North Carolina is
Affirmed.
