1. The provisions in the appropriation acts of 1849 and 1850
&c., must be construed in connection with the previous laws in
relation to the same subject matter.
2. A compensation for extra services where no certain
compensation is fixed by law cannot be allowed by the head of a
department to any officer of the government who has by law a fixed
or certain compensation for his services in the office he holds.
Nor can it be allowed by the court or jury as a setoff in a suit
brought by the United States against an officer for public money in
his hands.
3. No allowance beyond his fixed compensation can be made except
for the performance of certain duties required by law to be
performed, for which the law grants a certain compensation to be
paid, and which have no connection with the duties of the office he
holds.
4. The Secretary of the Treasury, under the acts of Congress
above mentioned, was authorized to appoint an agent to purchase all
the supplies necessary for the lighthouse service throughout the
United States, and to make the necessary disbursements therefor.
And such agent was entitled to a compensation of two and a half
percent on the amount disbursed, and the money was appropriated to
pay it.
5. The secretary had a right, under these laws, to select as
agent anyone already holding office if he supposed him to be best
qualified for the duty. But he had
Page 62 U. S. 464
no right to order a collector of the revenue, or any other
officer of the government, to perform this duty without
compensation outside of the lighthouse district of which he was
superintendent, or outside of and alien to the office he held.
6. The collector of Boston, having been the agent selected by
the Treasury Department to purchase supplies for the lighthouse
service throughout the United States, and to make the
disbursements, is entitled to the compensation fixed by law for
this service, so far as it was outside of his district and beyond
the limits to which his duties as an officer extended.
7. It has not been the policy of the United States to give
unlimited power to the heads of departments over the subordinate
officers of the government whose salaries and duties are regulated
by law.
The case is explained in the opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The pleadings and facts in the case, and the points in
controversy, are briefly yet clearly stated in the exception and
opinion of the court, as set forth in the transcript, in the
following words:
"Be it remembered, that at a term of the Circuit Court of the
United States, holden at Boston, within and for the District of
Massachusetts, on the 15th day of May, 1857, by the Honorable
Benjamin R. Curtis Circuit Judge, and the Honorable Peleg Sprague,
District Judge, came the United States of America and by an action
of assumpsit declared against James C.
Page 62 U. S. 465
Converse, of Boston, in said district, as he is administrator of
the goods and estate of Philip Greely, Jr., late of said Boston,
deceased, and late collector of customs at said Boston, in said
district, as by the writ and declaration of record will appear, to
which the defendant pleaded the general issue and filed certain
claims in setoff, as by said setoff of record will appear, and the
plaintiffs joined in said issue, and thereupon said cause came on
for trial before the said circuit court at said May term, before a
jury empanelled for that purpose, and the said defendant then and
there claimed to be allowed, among other things, in setoff against
the plaintiffs' claim, the sum of seventeen thousand six hundred
and eighty-four dollars and ninety-two cents, $17,684.92, as
commissions due him from the plaintiffs upon certain contracts,
purchases, and disbursements, made by him for oil and other
articles for the lighthouse service of the United States under
direction of the Secretary of the Treasury."
"At the trial it appeared by the transcript from the Treasury
Department of the plaintiffs, introduced by them in evidence, that
said claims had been duly and properly presented by the defendant's
intestate, Mr. Greely, at the Treasury Department, for credit and
allowance, and had there been disallowed, and no objection was made
by the plaintiffs to the defendant's right to recover of the
plaintiffs upon this ground."
"It also appeared that the defendant's intestate, as collector,
had, during each year he was collector, received the compensation
of six thousand dollars, and also the sum of four hundred dollars
allowed by law."
"No question was made as to the amount of commissions claimed.
The plaintiffs, in their transcripts, admit that the sum of
$17,684.92 is two and a half percent commission upon the
defendant's disbursements for lighthouse purposes during his term
of office, and no objection was made that that is not the proper
commission, if the defendant is entitled to any."
"It was further admitted that the defendant was, from May 1st,
1849, to April 1st, 1853, superintendent of lights and disbursing
agent for the District of Boston."
"The duties of this office, it was offered to prove, were
the
Page 62 U. S. 466
charge and superintendence of all lighthouses between Eastham
and Plum Island, Newburyport, including the making of all necessary
disbursements for the payment of the keepers' salaries, wages of
men, repairs, and the necessary supplies, in the same manner as
other superintendents and disbursing agents in their respective
districts."
"The defendant then offered to prove the following facts in
regard to these disbursements upon which the aforesaid commission
was claimed."
"The Secretary of the Treasury, or the proper officer under him,
during the whole term of the defendant's office, was accustomed
from time to time to send specific orders to him to advertise for
proposals, make contracts for and purchase all the oil, lamps,
wicks, and supplies of every kind, required for the whole
lighthouse service of the United States, as well that of the sea
coasts as the lakes and rivers."
"Agreeably to such orders or requests, the defendant did, from
time to time, make all these contracts and purchases, draw the
necessary contracts, and all payments and disbursements thereunder
and therefor, take charge of the property when purchased, and
distributed the same in such quantities and to such points, all
over the United States, as were required or directed by the
Treasury Department. These services involved much time, labor, and
responsibility, on the part of the defendant, and were performed at
the request and upon the order of the Treasury Department. The
defendant paid out no moneys which have not been allowed."
"And it was upon all disbursements thus made that he claimed the
aforesaid two and a half percent commissions, amounting to
$17,684.92."
"The plaintiffs objected to this evidence, because they said,
admitting all that was thus proposed to be proved, it gave the
defendant no claim whatever to the commissions claimed."
"The court thereupon, after consideration, ruled and decided
that, admitting all that the defendant thus offered to prove to be
true and as alleged, yet the defendant had no rightful claim
against the plaintiffs to the said commissions, or any part
thereof, and could not recover the same in setoff, but that the
defendant,
Page 62 U. S. 467
being the collector of customs, and, as such, having received
the aforesaid compensation of $6,000 and of $400 each year, could
not recover any sum whatever for the commissions claimed as
aforesaid, and the court thereupon refused to admit the evidence
offered, and instructed the jury, in accordance with said ruling,
and for the reasons therein stated, that the defendant could not
recover for said commission."
"To which ruling, decision, and instruction, the defendant then
and there excepted."
The question to be decided on this exception is undoubtedly one
of some difficulty. But the difficulty arises not so much from
ambiguity of language in anyone of the acts of Congress, as from
the great number of acts passed from time to time on this subject,
which have been referred to in the argument. They, for the most
part, differ in language in some degree from one another and are
generally introduced in some clause or proviso of the usual annual
appropriation law, or an appropriation to provide for previous
expenditures, and yet all bear, with more or less force, on the
question before us.
The acts referred to are: 1822, 3 Stat. 696; 1839, 3 Stat. 439;
1841, 5 Stat. 432; 1842, 5 Stat. 510; 1845, 5 Stat. 736; 1848, 9
Stat. 297; 1849, 9 Stat. 365, 367; 1850, 9 Stat. 504, 542, 543;
1851, 9 Stat. 629; 1852, 10 Stat. 97, 100; 1852, 10 Stat. 119,
120.
It is obvious, therefore, that in order to carry into execution
the intention of the legislative department of the government,
these various laws on the same subject matter must be taken
together and construed in connection with each other. And we should
defeat, instead of carrying into execution, the will of the
lawmaking power if we selected one or two or these acts and founded
our judgment upon the language they contained, without comparing
and considering them in association with other laws passed upon the
same subject.
It would extend this opinion to an unreasonable length to quote
at large the language of the various acts and provisos above
mentioned; nor indeed do we deem it necessary, because the object
and policy of this whole legislation, when taken together, will be
made evident by looking to the state
Page 62 U. S. 468
of the law before and at the time the different laws were
passed, and the defects which then existed, and which they were
intended to remedy. A particular reference to a few of them, in
chronological order, will be sufficient for this purpose, and we
shall refer to those which have been mainly relied on by the
circuit court, or by the counsel for the United States, in order to
support the judgment of the court below.
The first law upon this subject is the Act of May 7, 1822,
section 18, which provides that
"No collector, surveyor, or naval officer, shall ever receive
more than $400 annually, exclusive of his compensation as
collector, surveyor, or naval officer, and the fines and
forfeitures allowed by law for any service he may render in any
other office or capacity."
At the time this law was passed, the collectors, surveyors, and
naval officers, were, in certain contingencies mentioned in the Act
of March 2, 1799, required to do the duties of the offices of each
other, and, without any special law upon the subject, it was the
settled practice and usage of the government to require collectors
to superintend lights and lighthouses in their respective
districts, and to disburse money for marine hospitals and the
revenue-cutter service, for which, by the practice and regulations
of the Treasury Department, they were allowed certain commissions.
But there was no act of Congress imposing these duties on the
collector, or fixing his commissions for these services and
disbursements. They were charged as extra services -- that is, as
not belonging to the office of collector, and the amount of his
compensation depended altogether upon the discretion of the
Secretary of the Treasury for the time being. These extra
allowances in some instances amounted to very large sums; and it
appears that the attention of Congress was at length attracted to
this subject, and it was deemed right, and more consistent with the
nature and character of our institutions, to fix by law the
compensation for these services, and not leave it in every case to
depend upon the discretion of the secretary, and the act of 1822
was accordingly passed for that purpose, and for that purpose only.
The language is clear, precise, and appropriate, and no
multiplication of words could more plainly indicate its
Page 62 U. S. 469
object. The words "any other office" were evidently used with
reference to the contingencies in which one of these officers might
be required to perform the duties imposed by law on one of the
others. And the words "or other capacity" were equally essential in
order to embrace the extra allowances made for the agency of which
we have spoken, as they were not the duties of an office created by
law, but a mere agency of one of the departments of the government.
The law does not forbid compensation for extra services which have
no affinity or connection with the duties of the office he holds.
On the contrary, it recognizes his right, and gives the collector
or other of these revenue officers an additional sum, over and
above their salaries as officers, for extra services rendered as
agents, which had no legal connection with their respective
offices.
The duties for which this certain compensation was fixed were
well known in the usages and practice of the government, and
Congress could therefore act advisedly and with knowledge, and
judge what amount of money would be a fair compensation. But it
will hardly be supposed that Congress, by this law, intended to fix
this amount for every unforeseen and possible service, or the
duties of every possible office which one of these revenue officers
should be directed or requested by the secretary in some emergency
to fill, for, as Congress could not foresee what might be the
character and importance of such a duty, there was no basis on
which a judgment of its value could be formed. Nor can it be
supposed that they intended to regulate in advance its compensation
or value without some data to act upon.
Besides, no other salaried officer is mentioned in this law but
collectors, surveyors, and naval officers, and it would hardly be
just to be legislative body to impute to it the design of dealing
more harshly with these revenue officers than any other officers of
the government who have certain salaries, or to suppose they would
deny to them compensation in cases where every other salaried
officer was allowed to claim and receive it.
We have dwelt more particularly on this act of Congress,
Page 62 U. S. 470
because the principles and policy on which it was passed form
the basis of all the subsequent legislation on this subject, and
will be found, with some modification, in every law. The great
object has been to establish by law the compensation for public
services, whether in offices or agencies, where the nature and
character of the duties to be performed were sufficiently known and
definite to enable Congress to form an estimate of its value, and
not leave it to the discretion of the head of an executive
department.
After this act of 1822 there is no act of Congress bearing upon
the question until 1839. In the meantime, about the year 1833 and
subsequently to that time, several cases came before the Supreme
Court in which officers who were not named in the act of 1822, but
who received a fixed salary as a clerk in a department, or a fixed
compensation as an officer in the army, or in some other office,
claimed the right to set off against the United States compensation
for extra services undertaken by the direction of the Secretary,
and for which there was no fixed compensation by law. And in these
cases this Court held that such compensation might be claimed and
set off under the act of Congress allowing setoffs against the
United States, and that where the extra service had been required
by the head of the proper department, the officer was entitled to a
reasonable compensation, to be allowed by the jury upon the
evidence, even if there was no law expressly requiring the service
or fixing compensation for it, and that it might be ascertained and
allowed by the jury in proper cases, under the direction of the
court, even if the head of the department had fixed no
compensation, and refused to allow the claim.
Under these decisions, claims of this description were
frequently made, and the United States involved in inconvenient
controversies in court. These controversies again attracted the
attention of Congress to the subject of compensation for extra
services, and in 1839 they passed an act, embracing all persons
holding office with a fixed salary, precisely similar in its
principles with the act in relation to custom house officers --
that is to say, they took away from the heads of departments
Page 62 U. S. 471
and from courts and juries the right to fix the compensation in
any case where it was not fixed by law, and if there was no law
ascertaining the compensation or allowance for the particular
service, the party was entitled to none. It carries out the
principle and policy of the act of 1822 and provides that there
shall be no compensation in addition to the salary "unless said
extra allowance or compensation be authorized by law."
Nor does the Act of August 23, 1842, 5 Stat. 510, go further
than the act of 1839, except only in declaring that in order to
entitle the party to demand compensation, it must not only be fixed
by law, but that the law appropriating it shall explicitly set
forth that it is for such additional pay, extra allowance, or
compensation. Now these words, added to the provisions in the act
of 1839, only show that the legislature contemplated duties imposed
by superior authority upon the officer as a part of his duty, and
which the superior authority had in the emergency a right to
impose, and the officer was bound to obey although they were extra
and additional to what had previously been required. But they can
by no fair interpretation be held to embrace an employment which
has no affinity or connection either in its character or by law or
usage, with the line of his official duty, and where the service to
be performed is of a different character and for a different place,
and the amount of compensation regulated by law.
This provision is introduced in the annual appropriation law for
the support of the army and Military Academy. And although the
words are general, and undoubtedly include officers in every branch
of the public service, yet, from the general character and objects
of this law, it is manifest that the attention of Congress must
have been mainly directed to officers in the military service, who,
from the position in which unforeseen events often place them, are
called upon and required to perform duties not specified by law or
regulation, but which grow out of, and are associated with,
military service.
We pass on to the acts of 1848 and 1849, which are the more
important because they were passed about the time this collector
came into office, and apply particularly to the revenue
Page 62 U. S. 472
officers of which we are speaking. The clauses which bear upon
this question in each of these laws is inserted in the annual civil
and diplomatic appropriation law by way of proviso to the clause
making appropriations to the maintenance of the lighthouse service.
The act of 1848 appropriates $11,640.35, being a commission of two
and a half percent on the whole amount appropriated for that
service, with a proviso that no part of the sum thereby
appropriated should be paid to any person who received a salary as
an officer of the customs, and that from and after the 1st day of
July, 1849, the disbursements should be made by the collector of
the customs, without compensation. And if this law still remained
in force, it is very clear that the agency of which we are speaking
would not have been authorized by law and the setoff claimed by the
plaintiff in error could not be allowed.
But this proviso in the act of 1848 is recited at large in the
appropriation of 1849 and repealed without any saving or
qualification, and this repealing clause is immediately preceded by
an appropriation for superintendents' commissions of $11,673.25,
being two and a half percent on the whole amount appropriated for
lighthouse purposes. There is no restriction in these commissions
in relation to revenue officers. The commissions are to be paid on
the whole amount, without any reference to the person or officer
who performs the service; consequently, under this law, the revenue
officer who performed this duty within his own district was
entitled to two and a half percent commission on the amount
disbursed, and previous acts of Congress restricting this allowance
were repugnant to this law, and thereby repealed. The repeal of the
act of 1848 could not, upon any sound principle of law, revive any
previous act which was repugnant to the provisions contained in the
repealing act of 1849. And this act allowed the commission of two
and a half percent in all cases, and appropriated the money to pay
it, leaving it to the Secretary of the Treasury to select as agent
each collector for his collection district or any other agent that
he might deem more suitable for the trust.
The Act of September 28, 1850, however, restored the provisions
contained in the first act referred to -- that is, the act of
Page 62 U. S. 473
1822 -- and provides that no collector shall receive for his
services as superintendent of lighthouses over the sum of $400 per
annum. But this act was followed by the civil and diplomatic
appropriation law, passed at the same session, September 30th,
1850, only two days after the law above mentioned, in which the
compensation is again modified in amount, and collectors whose
salary exceeds twenty-five hundred dollars can receive no
compensation as superintendent of lights or disbursing agent. Yet
this law, like the preceding appropriation laws, appropriates a sum
equal to two and a half percent commission upon the whole amount
appropriated for lighthouse service, and the secretary might
therefore employ any agent he pleased; and if he was not the
collector, he would be entitled to full commissions. The same
provisions are contained in the appropriation acts of 1851, 9 Stat.
608, 1852, 10 Stat. 86, and 1853, 10 Stat. 200.
It will be seen, from this history of the complicated
legislation on this subject, that, however varying the provisions
may be in some particulars, they are yet all founded on the
principles and policy of the acts of 1822 and 1839, and that all of
the provisos respecting the commissions to a revenue officer are
confined to his collection district, and its extra customary duties
therein as agent.
The just and fair inference from these acts of Congress, taken
together, is that no discretion is left to the head of a department
to allow an officer who has a fixed compensation any credit beyond
his salary, unless the service he has performed is required by
existing laws, and the remuneration for them fixed by law. It was
undoubtedly within the power of the department to order this
collector, and every other collector in the Union, to purchase the
articles required for lighthouse purposes in their respective
districts, and to make the necessary disbursements therefor. And
for such services he would be entitled to no compensation beyond
his salary as collector, if that salary exceeded $2,500.
But the secretary was not bound to entrust this service to the
several collectors. He had a right, if he supposed the public
interest required it, to have the whole service performed by
Page 62 U. S. 474
a single agent, for while the law authorizes his to exact this
service from the several collectors, it at the same time evidently
authorizes him to commit the whole to an agent or agents other than
the collectors by regulating the commission which an agent shall
receive and appropriating money for payment of commissions of two
and a half percent upon the whole amount authorized to be expended
in this service. And as the collectors would by law be entitled in
some cases to nothing, and in others to the small sum above
mentioned, if the service was performed by them in their respective
districts, it is very clear, from the commissions allowed and the
appropriation to pay them, that he was at liberty to employ a
different agency and pay the commissions given by the law whenever
he supposed the public would be better served by this
arrangement.
And the case as assumed in the record is precisely that case.
The secretary had no right, under the laws upon this subject, to
order this or any other collector to perform this duty for all the
lighthouse and collection districts. The law has divided it among
them, and the executive department had no right to impose it upon
one. But he had a right, as we have said, to employ an agent,
instead of the collector or collectors of the several districts,
and if he did employ one, the law fixed the compensation and
appropriated the money to pay it. He was not forbidden to employ a
revenue officer for this purpose, and so far as his services were
performed for other districts, he stood in the same relation to the
government as any other agent. The law forbidding compensation or
reducing it to a small amount did not apply to this service. The
agency was entirely foreign to his official duties, and far beyond
the limits of the district to which the law confined his official
duties and power. And as the department appointed him to perform a
duty required by law, for which the compensation was fixed by law
and the money appropriated to pay it, he is entitled to the
compensation given by law if he has performed the duty, for the
secretary has no more discretionary power to withhold what the law
gives than he has to give what the law does not authorize. The
Page 62 U. S. 475
agency and services performed in this instance had no more
connection with his official duties and position than the purchase
of a supply of shoes for the troops in Mexico in the late war would
have been, in the absence of any other person authorized to make
such a purchase. And if such a duty was requested or required of
him by the head of the proper department and performed, nobody
would deny his right to compensation if the law authorized and
required the service to be done and fixed the compensation for
it.
Upon the case, therefore, as the plaintiff in error offered to
prove it, we think the court erred in refusing to admit the
testimony.
Undoubtedly Congress has the power to prohibit the Secretary
from demanding or receiving of a public officer any service in any
other office or capacity, and to prohibit the same person from
accepting or executing the duties of any agency for the government
of any description while he is in office, and to deny compensation
altogether if the officer chooses to perform the services, or they
may require an officer holding an office with a certain salary,
however small, to perform any duty directed by the head of the
department, however onerous or hazardous, without additional
compensation. But the legislative department of the government have
never acted upon such principles, nor is there any law which looks
to such a policy or to such unlimited power in the head of an
executive department over its subordinate officers.
No explanation is given of the principle upon which the four
hundred dollars additional compensation was allowed. If the
services were regarded as extra and additional and within the
prohibition of the law, then he was not entitled to this additional
allowance, because his salary exceeded twenty-five hundred dollars,
and nothing more than the salary fixed ought to have been allowed
him. But if they were not within the prohibition, but for services
in a different agency, then he was entitled not merely to four
hundred dollars, but to the commissions fixed by law. This sum
could not have been allowed for supplies in his own district,
excluding those for other districts, because, as regards his own
district, there is an express prohibition
Page 62 U. S. 476
as above stated. We, however, express no opinion upon that
particular item; and whether it is a proper allowance or not, must
be determined by the circuit court, when it hears the evidence at
the trial.
For the reasons above stated, the judgment of the circuit court
must be
Reversed.
MR. JUSTICE CATRON, MR. JUSTICE GRIER, and MR. JUSTICE CAMPBELL
dissented.
MR. JUSTICE CAMPBELL, dissenting.
I dissent from the opinion and judgment of the Court in this
case. The opinion of the presiding judge of the circuit court, in
my judgment, contains an exact exposition of the law of the case.
JUSTICES CATRON and GRIER authorize me to say they concur in this
dissent, and we adopt that opinion as our opinion, which is in the
following words:
This is an action for money had and received to the use of the
United States by Philip Greely, Jr., the defendant's intestate,
while collector of the customs for the port of Boston and
Charlestown.
A number of items were in question when the case was opened, but
in the progress of the trial all were disposed of to the
satisfaction of both parties, save a charge made by the intestate,
of $17,968.92, as commissions on disbursements made by him under
the orders of the Secretary of the Treasury in the purchase of oil
and other materials for lighthouses. The question is whether the
collector was entitled, by law, to make this charge against the
United States for that service. Mr. Greely held the office of
collector from May 1, 1849, to May 1, 1853.
By the Act of March 3, 1841, sec. 5, 5 Stat. 432, it was
enacted, that
"No collector shall, on any pretense whatever, hereafter
receive, hold, or retain for himself in the aggregate more than six
thousand dollars 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 by law. "
Page 62 U. S. 477
The Act of August 23, 1842, sec. 2, 5 Stat. 510, is as
follows:
"That no officer in any branch of the public service or any
other person, whose salary, pay, or emoluments is or are fixed by
law or regulations shall receive any additional pay, extra
allowance, or compensation in any form whatever for the
disbursement of public money or for any other service or duty
whatsoever unless the same shall be authorized by law, and the
appropriation therefor explicitly set forth, that it is for such
additional pay, extra allowance, or compensation."
It being admitted that Mr. Greely was an officer whose salary,
pay, or emoluments was or were fixed by the law, and that he had
received its full amount of six thousand dollars, independent of
the charge in question, it is incumbent on the defendant to show
not only that the service was authorized by law, but also that the
appropriation for that service explicitly sets forth that it is for
such additional pay, extra allowance, or compensation. It is not
enough to find an act of Congress authorizing a service and making
an appropriation to pay for it. This would be sufficient provided
the person rendering the service were not an officer or other
person entitled to a fixed compensation. If he be, and he claims an
extra compensation for an extra service, he must produce an
appropriation which explicitly sets forth that it is made for such
additional compensation -- that is, he must show not only that
Congress contemplated and provided for a service and payment
therefor, but that they contemplated and explicitly provided that
if it should be rendered by one already entitled to a fixed
compensation, he should nevertheless receive, in addition thereto,
the compensation provided for such service. And the addition of
such compensation to a fixed compensation is not to be inferred
from any equitable considerations, but must be found explicitly
declared in the law itself.
Such, in my judgment, is the fair interpretation of the language
of this act, and the history of the legislation of Congress upon
this subject of the extra compensation of officers makes this
interpretation, if possible, still more plain and necessary.
The defendant relies on the following clause in the
appropriation Act of March 3, 1849, 9 Stat. 367:
"For superintendents'
Page 62 U. S. 478
commissions, at two and one-half percent on the $466,930.08
appropriated above for lighthouse purposes, $11,673.25. And the
proviso contained in the act making appropriation for the civil and
diplomatic expenses of the government, for the year ending the 30th
day of June, 1849, and for other purposes, approved &c., which
proviso is in the following words:"
" Provided that no part of the sum hereby appropriated shall be
paid to any person who receives a salary as an officer of the
customs, and from and after the 1st day of July, 1849, the said
disbursement shall be made by the collectors of the customs without
compensation, is hereby repealed."
The argument of the defendant's counsel is that the express
repeal of this proviso is equivalent to an explicit declaration
that parts of the sum appropriated by this act might be paid to
persons who received salaries as officers of the customs, and that
it was not to be disbursed by collectors without compensation.
But certainly this appropriation does not "explicitly set forth
that it is for additional pay, extra allowance, or compensation."
If this appears at all, it is only inferentially, and the inquiry
is whether it be a necessary inference that some part of this sum
was appropriated as additional pay or extra compensation to
collectors who should perform the service of superintendents of
lights.
Now the proviso which was repealed consisted of two parts. The
first related exclusively to commissions in the disbursement of the
appropriation for lighthouse expenses made for the fiscal year
ending on the 30th day of June, 1849, and it prohibited the payment
of any commissions out of the sum thus appropriated to any officer
of the customs who received a salary.
The second part of the proviso positively required the service
of making disbursements as superintendents of lights to be
performed by collectors of customs, after July 1, 1849, without
compensation. It left no discretion with the Secretary of the
Treasury to appoint any other person to discharge this duty.
Page 62 U. S. 479
The repeal of the proviso left the right of officers of the
customs to participate in the commissions for disbursing the
appropriation made for the year ending June 31, 1849, to stand upon
the law as elsewhere found, and restored to the Secretary of the
Treasury the power to appoint persons other than collectors to make
the disbursements, and if collectors should be appointed, it left
their right to commissions to depend on the law as elsewhere
found.
It must be admitted that this repeal might, under some
circumstances, indicate an intention to have collectors participate
in these commissions. If they have been for the first time deprived
of them by the proviso, its repeal would quite clearly show that
their former title was restored. But the contrary is true.
Independent of the proviso, they had no title to this or any other
extra compensation, and, by force of the Act of August 2, 1842,
could have none unless explicitly granted by the act making the
appropriation, so that unless I can say that the repeal of the
proviso either repeals the second section of the act of 1842 or
satisfies its requirements by an explicit appropriation to pay an
extra compensation for an extra service, the defendant has no title
to the commission. That the second section of the act of 1842 is
not repealed by implication, by the repeal of the proviso, is
clear. There is no repugnance between this repeal and the act of
1842. The reasons for repealing the entire proviso may have been
that the act of 1842 was broad enough to cover the cases of extra
compensation contemplated by the proviso, and so it was not
necessary, insofar as its object was to provide for those cases,
and insofar as it required the service to be performed by
collectors only, that it was inexpedient. But to amount to a
compliance with the second section of the act of 1842, it should
have superadded to the repeal of the proviso an explicit
declaration that the appropriation was intended as extra
compensation to those officers, having fixed salaries, who might be
selected to render the service.
There are two other views of this subject, either of which
would, in my judgment, be sufficient to show that there is no
lawful claim to these commissions.
Page 62 U. S. 480
The first is that although Mr. Greely was superintendent of
lights within a certain district, extending round the Massachusetts
Bay, yet these commissions are charged on disbursements made by him
in the purchase, under the orders of the Secretary of the Treasury,
of oil and some other materials for the whole lighthouse service of
the United States. Now the appropriation made is for
"superintendents' commissions." If he did not render this service
as superintendent, but, aside from that employment, acted under the
orders of the Secretary of the Treasury in making large purchases
for this service, no appropriation is made for paying him. It was,
no doubt, an onerous and responsible duty, imposed upon him because
he happened to be at a place favorable for making these purchases,
and this may constitute a claim on the equitable consideration of
Congress, especially if the imposition of this onerous duty on him,
instead of distributing it among all or most of the superintendents
of lights, was advantageous to the government. But this is for the
consideration of Congress. It does not enable me to say an
appropriation to pay commissions by way of extra compensation was
actually made.
Besides, if the repeal of the proviso in the act of 1848 were
held to amount to an explicit declaration that collectors might
participate in the commissions of superintendents, by way of extra
compensation, the inquiry would still remain, to what extent may
they receive such extra compensation? And this seems to me to be
answered by the Act of May 7, 1822, sec. 18, 3 Stat. 696,
"That no collector, surveyor, or naval officer, shall ever
receive more than four hundred dollars annually, exclusive of his
compensation as collector, surveyor, or naval officer, and the
fines and forfeitures allowed by law, for any services he may
perform for the United States in any other office or capacity."
In the case of
Hoyt v. United
States, 10 How. 141, the supreme court considered
this section in force, and applied it to the case of a collector
who held office from March, 1838, to March, 1841, and I am not
aware of its having been since repealed. It was admitted that,
aside from the charge now in question, Mr. Greely had received
extra compensation to the extent of four hundred dollars annually,
for
Page 62 U. S. 481
services performed for the United States in a capacity other
than that of collector. It follows that for services performed in
making these contracts and disbursements, which were not within his
duties as collector, he can make no further charge.
What has thus far been said relates exclusively to the
defendant's claims under the act of 1849. The subsequent acts are
so much more unfavorable to these claims, that I do not deem it
necessary to enter into a particular discussion of them. They are
the Acts of September 30, 1850, 9 Stat. 533, March 3, 1851, 9 Stat.
608, and August 31, 1852, 10 Stat. 86. I have examined these acts,
and am satisfied each of them deprives every collector, whose
compensation exceeds twenty-five hundred dollars, of all
participation in these commissions, though they are required to
render the service of superintendents of lights or disbursing
agents in procuring supplies for them.