A bond, given on 4 December, 1813, for the faithful discharge of
the duties of his office, by a collector of direct taxes and
internal duties, appointed under the Act of 22 July 1813, ch. 16,
by the President, on the 11th of November 1813, to bold his office
until the next session of the Senate, and no longer, and
subsequently appointed by the President, with the advice and
consent of the Senate, on 24 January 1814, is to be restricted (as
to the liability of the sureties) to the duties and obligations
created by the collection acts passed antecedent to the date of the
bond.
The second commission issued under the appointment, with the
advice and consent of the Senate, operates a revocation of the
first commission, issued under the appointment by the President,
which was to continue until the end of the next session of the
Senate and no longer, and the liability of the sureties in the bond
did not extend beyond the duration of the first commission.
In general, laches is not imputable to the government, and where
the laws require quarterly or other periodical accounts and
settlements, a mere omission to bring a suit upon the neglect of
the officer or agent to account will not discharge his
sureties.
The case of
People v. Jansen, 9 Johns. 232,
distinguished, and so far as it conflicts with the present case
overruled.
In general, the debtor has a right to make the appropriation of
payments; if he omits it, the creditor may make it, but neither
party has a right to make an appropriation after the controversy
has arisen.
In cases of long and running accounts, where balances are
adjusted merely for the purpose of making rests, the law will apply
payments to extinguish the debts according to the priority of
time.
Page 22 U. S. 721
This was an action of debt commenced by the United States, in
the court below against the defendants in error, J. Kirkpatrick and
others, as the obligees of a bond given by them to the United
States on 4 December, 1813, conditioned for the true and faithful
discharge of the duties of the office of collector of direct taxes
and internal duties by Samuel M. Reed, who had been appointed to
that office by the President on 11 November, 1813, and, by the
terms of his commission, was to hold his office during the pleasure
of the President "and until the end of the next session of the
Senate of the United States, and no longer." On 24 January, 1814,
he was reappointed to the same office by the President, by and with
the advice and consent of the Senate, and by the new commission
issued to him, was to hold his office "during the pleasure of the
President of the United States, for the time being." The pleadings
upon which the cause was tried in the court below were extremely
informal and confused, but they resulted substantially in the
following questions of law, upon which the judge instructed the
jury, and a bill of exceptions was taken.
1. Whether the liability of the sureties to the bond was limited
to the duties and obligations imposed upon the collector by the Act
of 22 July, 1813, ch. 16, and other acts relating to the assessment
and collection of direct taxes and internal duties, passed
antecedent to the execution of the bond, thus excluding the
liability for moneys
Page 22 U. S. 722
collected under subsequent statutes. Upon this point, the court
below instructed the jury that the responsibility of the sureties
did not extend to the obligations created by the subsequent
statutes.
2. Whether the jury was at liberty to impute laches to the
government from the delay of the proper officers to call the
collector to account at the periods prescribed by law from the year
1814 to 1818. The court left it to the jury to decide whether,
under the circumstances of the case, the government had not waived
its resort to the sureties.
3. Whether the responsibility of the sureties extended beyond
the duration of the first commission. Upon this point the court
below charged the jury that the responsibility of the sureties
extended to the reappointment of the collector under the new
commission until his duties and obligations were varied by the
statutes enacted subsequent to the date of the bond.
4. How the payments, which had been made by the collector, were
to be appropriated. The balance found due in each account had been
carried forward to the succeeding account, and the court was of
opinion that the government could not make the appropriation at the
time of the trial so as to apply the payments to the extinguishment
of debts due subsequent to the time when the sureties ceased to be
liable.
Upon these instructions a verdict was found for the defendants,
upon which a judgment was rendered in the court below and the cause
was brought by writ of error to this Court.
Page 22 U. S. 729
MR. JUSTICE STORY delivered the opinion of the Court.
In this case, the Court cannot but lament the extreme
irregularity and laxity of the pleadings if, indeed, the informal
minutes upon the record be entitled in any measure to the
appellation of pleadings. Some apology is indeed to be found in the
asserted inaccurate local practice in the state courts, but it is
impossible, without breaking down the best settled principles of
law, not to perceive that the very errors in the pleadings are, of
themselves, sufficient to justify a reversal of the judgment and an
award of a repleader. The agreement of the parties filed in the
case may indeed help the formal defects, but cannot be admitted to
dispense with the substance of appropriate pleas, for otherwise it
would be difficult to ascertain what was tried or to be tried, and
we might as well dispense with the declaration itself as with the
subsequent pleadings. It is to be hoped that in future a more
correct
Page 22 U. S. 730
practice will find its way into the district court.
Three errors have been insisted upon by the government as
contained in the charge of the court below. The first is that the
judge limited the responsibility of the sureties upon the
collector's bond to the duties and obligations imposed by the acts
of Congress antecedently passed, thus excluding the liability
created by the subsequent statutes. The second is the direction of
the judge that the jury was at liberty to impute laches to the
government from the delay to call the collector to account at the
periods prescribed by law, and the consequent injury to the
sureties. The third is the direction that the payments made by the
collector might, under the circumstances, be applied to the
discharge of the balance due from collections made under the acts
which were in force when the bond was given.
As to the first point. The collector was appointed, under the
Act of 22 July, 1813, ch. 16., for the assessment and collection of
direct taxes and internal duties. In the 2d section it provides
"That one collector . . . shall be appointed for each of the
said collection districts, . . . and it the appointment of the said
collectors, or any of them, shall not be made during the present
session, the President of the United States shall be and is hereby
empowered to make such appointment during the recess of the Senate
by granting commissions which shall expire at the end of their next
session."
The 18th section of the same act further provides
"That each collector
Page 22 U. S. 731
. . . shall give bond with one or more good and sufficient
sureties . . . in at least double the amount of the taxes assessed
in the collection district for which he may be appointed, which
bond shall be payable to the United States with condition for the
true and faithful discharge of the duties of his office according
to law, and particularly for the due collection and payment of all
moneys assessed upon such district."
The condition of this bond principally refers, as will appear on
an inspection of the act, to assessments of direct taxes. But the
subsequent acts, Act of 24 July, 1813, ch. 21, s. 14., and ch. 24,
s. 6, and ch. 25, s. 3 and s. 10, and the Act of 3 August, 1813,
ch. 38, s. 2 and s. 5, and ch. 51, s. 13, laying internal duties,
contain provisions enlarging the authority of the collector, and
the Act of 2 August, 1813, ch. 55, expressly extends the liability
under the bond to the due collection and payment of all moneys
accruing from the duties laid by these acts. So that there is no
doubt that as to bonds subsequently given, the language of the
condition is to receive an interpretation which shall secure the
fidelity of the collector under all these acts. The collector,
whose bond is in question, was appointed by the President on 11
November, 1813, and by the terms of his commission he was to hold
his office during the pleasure of the President "and until the end
of the next session of the Senate of the United States, and no
longer." The bond in question was given by the collector and by the
defendants, as his sureties, on 4
Page 22 U. S. 732
December of the same year, and it follows in its terms the
requirements of the act of Congress. On 24 January, 1814, the
President, with the advice and consent of the Senate, reappointed
the party collector, &c., and by his new commission he was to
hold his office "during the pleasure of the President of the United
States for the time being." No new bond was taken under this
commission. Under these circumstances, the district judge held that
the liability of the sureties was strictly confined to the duties
and obligations created by the acts passed antecedent to the date
of the bond. And we are of opinion that this is the true
construction of the condition of the bond. There is nothing in the
original act, under which the appointment was made, which
contemplates a permanent and continuing liability for all duties
under all laws which might be subsequently passed. In its terms,
the condition, as expounded by the other parts of the act, had a
principal reference to the assessments of direct taxes, and it is
extended further in its operation only by the express and positive
directions of the Act of 2 August, 1813, ch. 55, s. 1. To this
extent, therefore, it may well be of force, but to go beyond it
would be to exceed the legislative declaration and create a general
where the act had fixed a limited responsibility. If the argument
on behalf of the government were correct, the provision so
solicitously placed in this last act was wholly unnecessary, for
the liability would expand with the new duties imposed by every
successive act of the legislature. But the act itself
Page 22 U. S. 733
furnishes no ground for such an exposition, and we do not feel
ourselves at liberty to give to contracts of this sort further
efficacy than the laws and the parties must have had in their
contemplation.
This point, however, becomes of comparatively small importance
in the cause if another which has been argued in this connection
cannot be maintained. We allude to the question as to the duration
and force of the original commission of the collector. Strictly
speaking, this question does not arise upon the present record. For
although the court below decided that in point of law both
commissions constituted but one continuing appointment, the second
commission operating only as a confirmation of the first, yet as
the verdict was found for the defendants on another ground, and no
exception was taken by them, it is not matter of error which can be
assigned upon the present occasion. But as it is manifest that the
same question must arise upon any subsequent trial if there should
be a reversal of the judgment, and will form a most important and,
perhaps decisive ground of argument, and as all the parties are
desirous of our opinion on this point and it has been fully argued
from its bearing on the other points in the cause, and might have
been material if our decision on the first point had been
different, we have no hesitation in declaring our opinion that the
decision of the court below was founded in mistake.
The act under which this appointment was made authorizes the
President, in the recess of the Senate,
Page 22 U. S. 734
to make appointments by granting commissions which shall expire
at the end of their next session. The first commission is, as has
been already stated, in conformity to this provision of the act and
is by express terms limited to continue to the "end of the next
session of the Senate, and no longer." It follows, therefore, both
by the enactment of law and the form of the grant, that the first
commission must have expired of itself at that period, and as the
next session of the Senate ended in April, 1814, that is the utmost
extent to which it could reach. The bond in question was given with
express reference to this commission; and its obligatory force was
consequently confined to acts done while that commission had a
legal continuance, and could not go beyond it. And here would have
been the natural termination of the liability. But in the meantime,
a new appointment was made by the President, with the advice and
consent of the Senate, and as soon as that was accepted by the
collector, it was a virtual superseding and surrender of the former
commission. The two commissions cannot be considered as one
continuing appointment without manifest repugnancy. The commissions
are not only different in date and given under different
authorities and sureties, but they are of different natures. The
first is limited in its duration to a specified period; the second
is unlimited in duration and during the pleasure of the President.
If the latter operated merely as a confirmation of the former, then
it confirmed its existence only during the original period fixed by
the law. But
Page 22 U. S. 735
such an effect is not pretended, and would be irreconcilable
with the terms and intent of the commission. It has been suggested
that the practice of the government has been to consider such
commissions as one continuing commission. But whatever weight the
practice of the government may be entitled to, in cases of doubtful
construction, it can have no influence to change the clear language
of the law. In short, if the nomination to and approval by the
Senate was a mere confirmation, and not equivalent to a new
appointment, there was no necessity for the second commission, and
yet the argument supposes that it could not be dispensed with, for
if no commission had been issued, the first, by its own limitation,
would have expired.
Then, as to the point of laches, we are of opinion that the
charge of the court below, which supposes that laches will
discharge the bond, cannot be maintained as law. The general
principle is that laches is not imputable to the government, and
this maxim is founded not in the notion of extraordinary
prerogative, but upon a great public policy. The government can
transact its business only through its agents, and its fiscal
operations are so various and its agencies so numerous and
scattered that the utmost vigilance would not save the public from
the most serious losses if the doctrine of laches can be applied to
its transactions. It would in effect work a repeal of all its
securities. On the other hand, the mischiefs to the agents and
their sureties would be scarcely less tolerable. For if where the
laws, as in the
Page 22 U. S. 736
present instance, require quarterly accounts and settlements, a
mere omission to account is to be deemed a breach of the bond for
which a suit must be immediately brought upon the peril of loss
from imputed laches, the collectors and their sureties would be
oppressed with the most expensive and vexatious litigation, and
their whole real estate, which by law is subjected to a lien upon
the commencement of a suit, would be perpetually embarrassed in its
transfers. This consideration of public or private inconvenience is
not to overrule the settled principles of law, but it is certainly
entitled to great weight where a new doctrine is to be promulgated.
It is admitted that mere laches, unaccompanied with fraud, forms no
discharge of a contract of this nature between private individuals.
Such is the clear result of the authorities. Why then should a more
rigid principle be applied to the government -- a principle which
is at war with the general indulgence allowed to its rights, which
are ordinarily protected from the bars arising from length of time
and negligence? It is said that the laws require that settlements
should be made at short and stated periods and that the sureties
have a right to look to this as their security. But these
provisions of the law are created by the government for its own
security and protection and to regulate the conduct of its own
officers. They are merely directory to such officers, and
constitute no part of the contract with the surety. The surety may
place confidence in the agents of the government and rely on their
fidelity in office, but he has of this the same means
Page 22 U. S. 737
of judgment as the government itself, and the latter does not
undertake to guarantee such fidelity. No case has been cited at the
bar in support of the doctrine except that of
People v.
Jansen, 7 Johns. 332. In respect to that case it may be
observed that it is distinguishable from the present in some of its
leading circumstances. But if it were not, we are not prepared to
yield to its authority. It is encountered by other authorities
which have been cited at the bar and the total silence in the
English books in a case of so frequent occurrence affords strong
reason to believe that it never has been supposed that laches would
be fatal in the case of the government where it would not affect
private persons. Without going more at large into this question, we
are of opinion that the mere laches of the public officers
constitutes no ground of discharge in the present case.
The last ground respects the manner in which the court below
laid down the law respecting the appropriation of payments. In our
opinion there is no error in the charge on this point. The general
doctrine is that the debtor has a right, if he pleases, to make the
appropriation of payments; if he omits it, the creditor may make
it; if both omit it, the law will apply the payments according to
its own notions of justice. It is certainly too late for either
party to claim a right to make an appropriation after the
controversy has arisen, and
a fortiori at the time of the
trial. In cases like the present of long and running accounts where
debits and credits are perpetually occurring
Page 22 U. S. 738
and no balances are otherwise adjusted than for the mere purpose
of making rests, we are of opinion that payments ought to be
applied to extinguish the debts according to the priority of time,
so that the credits are to be deemed payments
pro tanto of
the debts antecedently due.
Upon the whole, it is the opinion of the Court that for the
error of the district court on the question of laches, the judgment
ought to be
Reversed and a venire facias de novo awarded with directions
also to allow the parties liberty to amend their
pleadings.