The Act of Congress passed on the 7th of May, 1822, 3 Stat. 695,
enumerated the ports of Boston, New York, Philadelphia, Baltimore,
Charleston, Savannah, and New Orleans, in which the collector was
allowed to receive more than three thousand dollars a year. In the
nonenumerated ports, the maximum rate of annual compensation or
salary allowed to the office was three thousand dollars.
Mobile was one of the nonenumerated ports, and consequently the
salary of the collector at Mobile was not to exceed three thousand
dollars, by that act.
This act was not repealed by any of the numerous acts, called
additional compensation acts, which were passed from time to time
between 1833 and 1841, until one of these temporary acts,
viz., the Act of 1838, 5 Stat. 265, was continued in force
until otherwise directed by law by the 7th section of the Act for
the relief of Chastelain and Ponvert and for other purposes, passed
on the 21st of July, 1840. 6 Stat. 815
The history and purport given of the several statutes respecting
the compensation of collectors, with the reasons which led to the
passage of the act of 1841.
Nor was it repealed by the Act of 3 March, 1841, 5 Stat. 432.
There
is no repugnancy between the acts. Repeal by implication, upon
the ground that the subsequent provision upon the same subject is
repugnant to the prior law, is not favored in any case, but where
such repeal would operate to reopen accounts at the Treasury
Department long since settled and closed, the supposed repugnancy
ought to be clear and controlling before it can be held to have
that effect.
By the true construction of this act of 1841, every collector is
required to include in his quarter-yearly accounts all sums
received by him for rent and storage of goods, wares, and
merchandise, stored in the public stores, for which rent is paid
beyond the rent paid by him; and if, from such accounting, the
aggregate sums received from that source exceed two thousand
dollars, he is directed and required to pay the excess into the
Treasury as part and parcel of the public money. When the sums so
received from that source in any year do not in the aggregate
exceed two thousand dollars, he may retain the whole to his own
use, and in no case is he obliged to pay into the Treasury anything
but the excess, beyond the two thousand dollars.
Collectors of the nonenumerated ports may receive, as an annual
compensation for their services, the sum of three thousand dollars
from the sources of emolument recognized and prescribed by the act
of 7 May, 1822, provided their respective offices yield that amount
from these sources, after deducting the necessary expenses incident
to the office, and not otherwise, and in addition
Page 63 U. S. 300
thereto, they are also entitled to whatever sum or sums they may
receive for rent and storage, provided the amount does not exceed
two thousand dollars, but the excess, beyond that sum, they are
expressly required to pay into the Treasury as part and parcel of
the public money.
Page 63 U. S. 303
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This was an action of debt brought by the United States upon the
official bond of the defendant as collector of the customs for the
district and inspector of the revenue for the port of Mobile. He
gave the bond, with sureties, on the seventh day of September,
1850, conditioned that he had truly and faithfully executed and
discharged and that he would continue truly and faithfully to
execute and discharge all the duties of the office according to
law. Neglect and refusal on the part of the defendant to pay to the
plaintiffs certain sums of money received by him as such collector
before the commencement of the suit beyond what he was entitled to
retain as compensation for discharging the duties of the office
constituted the breaches of the condition of the bond as assigned
in the declaration.
Those balances, as claimed by the plaintiffs, amounted to the
sum of thirteen thousand on hundred and eighty-four dollars and
forty-two cents, and the charge was, as alleged in the declaration,
that the defendant had wholly failed and refused to pay the same.
As appears by the transcript, the defendant pleaded the general
issue and that he had fully performed the conditions of the writing
obligatory set forth in the declaration.
To maintain the issue on their part, the plaintiffs introduced a
certified copy of the bond given by the defendant and two duly
certified copies of transcripts from the Treasury Department
showing that the official accounts of the defendant had been
examined and adjusted by the accounting officers of that
department. According to those transcripts, the respective balances
claimed by the plaintiffs, as the accounts are there
Page 63 U. S. 304
stated, had not been paid by the defendant, and remained due and
payable at the time the suit was commenced.
No evidence was adduced by the defendant. He was charged in the
account against him, as collector of the customs, with all sums
collected from duties on merchandise, tonnage duties, hospital
money, and for all sums received for rent and storage of goods,
wares, and merchandise, stored in the public storehouses, for which
a rent was paid beyond the rents paid by the collector. On the
other side, he was credited in the account of official emoluments
with the sum of three thousand dollars as the maximum rate of the
annual salary or compensation allowed to the collector of that
port. Further details of those accounts are omitted for the reason
that the charge for rent and storage in the account of customs, and
the credit for salary in the account of official emoluments, are
the only two items which come in review at the present time.
Reference to the ninth section of the Act of the seventh of May,
1822, will show that Mobile is not one of the seven ports
enumerated in that provision, and consequently that the maximum
rate of annual compensation or salary allowed to the office under
that law was three thousand dollars, as limited by the tenth
section, which includes all the ports not enumerated in the
previous provision. All of the accounts of the defendant were
adjusted at the Treasury Department upon the principle that the act
of the seventh of May, 1822, was still in force, and that the
maximum rate of compensation belonging to the collector was three
thousand dollars, as therein prescribed. It was insisted by the
defendant that the provision in question had been repealed by
subsequent acts upon the same subject, and that the maximum
compensation allowed by law to the office was six thousand
dollars.
Assuming that the theory of the defendant was correct, then his
accounts had been improperly adjusted, and there was nothing due to
the plaintiffs. On the other hand, if the charge for rent and
storage in his customs account was properly made, and the maximum
rate of compensation belonging to the office was only three
thousand dollars, then he was
Page 63 U. S. 305
justly indebted to the plaintiffs for the whole amount of the
respective balances as stated in the transcripts.
After argument, the court instructed the jury, among other
things, that
"The Act of 3 March, 1841, was the last and controlling law as
to the amount of compensation which collectors are allowed annually
to retain, and that under that enactment, the collector of this
port was entitled to a compensation of six thousand dollars per
annum, provided the same was yielded from the office from
commissions for duties and fees for storage, and fees and
emoluments, and any other commissions and salaries now allowed and
limited by law, or so much from those sources, not exceeding six
thousand dollars, as the office yielded."
That instruction affirmed the right of the defendant, under the
Act of the third of March, 1841, to a compensation of six thousand
dollars per annum, or so much thereof, not exceeding that sum, as
the office yielded from commissions of every description, fees and
emoluments, including rents and storage, and salaries, as allowed
and limited by law. Beyond question, it assumed that the tenth
section of the Act of the seventh of May, 1822, was repealed.
Prayers for instruction were then presented by the district
attorney, who was counsel for the plaintiffs. He requested the
court to instruct the jury to the effect that the provisions of the
Act of the seventh of May, 1822, respecting the maximum
compensation allowed to collectors of the customs, were not
repealed by that Act of the third of March, 1841, or by any other
act, but that the same were in full force; 2. That the only effect
the Act of the third of March, 1841, had upon the former act,
insofar as the same applied to a case like the present, was to
create a new and additional source of emolument to such collectors,
allowing them to retain not exceeding two thousand dollars for rent
and storage of goods, wares, and merchandise, stored in the public
stores, and for which a rent was paid beyond the rents paid by such
collectors. Each of these prayers was separately presented, and
separately refused by the court.
Another prayer for instruction was then presented by the
district attorney. It affirmed, in effect, that it was the duty
Page 63 U. S. 306
of the defendant, as collector, whenever his emoluments in any
one year exceeded three thousand dollars after deducting the
necessary expenses incident to the office, to pay the excess into
the Treasury, and that the plaintiffs were entitled to recover for
all such balances, thus ascertained, as were shown to be due from
the evidence. Apply the first and third requested instructions to
the facts of the case and it will be seen that they affirmed the
principles adopted by the accounting officers of the Treasury in
restating the accounts of the defendant, and if correct, then the
whole amount of the respective balances, as stated in the
transcript, was due to the plaintiffs.
Taken together, they assume that the tenth section of the Act of
the 7th of May, 1822, is in full force, and that the defendant had
no right, under the act of the 3d of March, 1841, to retain any
portion of the amount received for rent and storage. Those prayers
for instructions having been refused, the district attorney then
prayed the court to instruct the jury as follows:
"That under those acts, it was the duty of the defendant, as
collector of the customs, whenever his emoluments exceeded three
thousand dollars in anyone year, after deducting the necessary
expenses incident to his office, to pay the excess, if any, into
the Treasury, and the plaintiffs are entitled to recover the amount
of any such surplus or surpluses, if any, as may be shown by the
evidence; but, in ascertaining the amount of the defendant's
emoluments as such collector, the jury must exclude all moneys
derived by him from fines, penalties, and forfeitures, and also all
moneys derived by him from rent and storage of goods, wares, and
merchandise, which may have been stored in the public storehouses,
and for which a rent was paid beyond the rents paid by him as
collector, unless the proceeds of such rents and storage exceed two
thousand dollars, in which event, the excess over and above that
sum must be taken into account by them, in computing the value of
the annual emoluments."
That prayer was also refused by the court. To understand its
precise effect, it is necessary that it should be read in
connection with the first and second prayers, which had
previously
Page 63 U. S. 307
been presented and refused. When considered together, those
three prayers disclose the second theory of the plaintiffs, as
assumed at the trial.
Like the one assumed in the third prayer, it affirmed that the
tenth section of the Act of the 7th of May, 1822, was unrepealed,
but conceded that the defendant had a right to retain to his own
use the moneys received for rent and storage, to an amount not
exceeding two thousand dollars. Under the instruction of the court,
the jury returned their verdict for the defendant; and the
plaintiffs excepted to the charge, and to the several refusals of
the court to give the requested instructions. Three questions are
presented in the case for decision, which will be briefly and
separately considered:
1. Whether the tenth section of the Act of the 7th of May, 1822,
is repealed by any subsequent act, and if not, then
2. What is the true construction of the act of the 3d of March,
1841, so far as the same applies to the present case?
3. Whether, by the true construction of the two acts, the
defendants had a right to retain to his own use the moneys received
from rent and storage, to an amount not exceeding two thousand
dollars.
1. It is insisted by the defendant that the maximum prescribed
by the tenth section of the Act of the 7th of May, 1822, is
repealed, and that, under the law regulating his compensation, the
legal capacity of the office he held was six thousand dollars,
subject to the condition that two thousand dollars only could be
received from rent and storage. Six thousand dollars, he maintains,
is the maximum under the law of the 3d of March, 1841, applicable
to every collector, and that the compensation of each, within that
limit, and subject to the before-named condition, is regulated
solely by the amount of labor performed.
To show that the tenth section of the act of the 7th of May,
1822, is repealed, his counsel, at the argument, referred to
various acts of Congress, passed subsequently to the tariff Act of
the 14th of July, 1832, entitled "An act to alter and amend the
several acts imposing duties on imports."
They are as follows: 1833, 4 Stat. 629; 1834, 4 Stat. 698;
Page 63 U. S. 308
1835, 4 Stat. 771; 1836, 5 Stat. 113; 1837, 5 Stat. 175; 1838, 5
Stat. 264; 1840, 6 Stat. 815, private act; 1841, 5 Stat. 431, sec.
2.
By the first of those acts, usually called additional
compensation acts, the secretary of the Treasury was authorized,
among other things, to pay to the collectors, out of any money in
the Treasury not otherwise appropriated, such sums as would give
those officers respectively the same compensation in that year,
according to the importations of the year, as they would have been
entitled to receive, if the tariff act of the preceding year had
not gone into effect. That provision, with certain additions and
modifications, which will presently be noticed, was annually
reenacted to the year 1840, when it was made permanent. For the
most part, it was inserted in some one of the annual appropriation
acts, and was designed to accomplish the precise object which its
language describes, and nothing more.
Compensation to collectors, from the organization of the
government to the present time, has been derived chiefly from
certain enumerated fees, commissions, and allowances, to which has
been added a prescribed sum, called salary, and which is much less
than the compensation to which the officer is entitled. Provision
for such fees, commissions, and allowances was first made by the
Act of the 31st of July, 1789, which also allowed to collectors
certain proportions of fines, penalties, and forfeitures. 1 Stat.
64.
More permanent provision, however, was made by the Act of the
18th of February, 1793, by the Act to regulate the collection of
duties on imports and tonnage, passed on the 2d of March, 1799, and
by the Compensation Act passed on the same day. 1 Stat. 316, 627,
786.
By these several acts, certain enumerated fees and commissions
are made payable to collectors. They are also entitled to certain
proportions of fines, penalties, and forfeitures. Accurate accounts
were required to be kept by them of all fees and official
emoluments by them received, and of all expenses for rent, fuel,
stationery, and clerk hire, which they were required annually to
transmit to the Comptroller of the Treasury,
Page 63 U. S. 309
but they were allowed to retain to their own use the whole
amount of emolument derived from that source, without any
limitation. Maximum rate of compensation was first prescribed by
the Act of the 13th of April, 1802. That limit was five thousand
dollars, and it was applicable to all collectors.
By that act, it was provided that whenever the annual emoluments
of any collector, after deducting the expenses incident to the
office, amounted to more than five thousand dollars, the surplus
should be accounted for and paid into the Treasury. 2 Stat.
172.
Further regulations as to fees, commissions, other emoluments,
and salaries were made by the Act of the 7th of May, 1822, as
therein prescribed.
One of those regulations was that whenever the emoluments of any
collector for seven enumerated ports, after deducting the necessary
expenses incident to the office, should exceed four thousand
dollars, the excess should be paid into the Treasury for the use of
the United States. By the tenth section it was also provided that
whenever the emoluments of any other collector of the customs
should exceed three thousand dollars, after deducting such
expenses, the excess should be paid into the Treasury for the same
purpose. They were also required to account to the Treasury for all
emoluments and for all expenses incident to their offices, and
those accounts were to be rendered upon oath. Neither of the two
last-mentioned acts extended to fines, penalties, and forfeitures.
3 Stat. 695. Under that act, three thousand dollars was the maximum
which could be allowed to the office held by the defendant, and it
is conceded by his counsel that it remained in full force to the
time when the additional compensation acts before mentioned were
passed. Large additions had been made to the free list by the
Tariff Act of the 14th of July, 1832, and the rate of duties on
imports so far reduced that the sources of emolument to collectors
would not yield sufficient to give them an adequate compensation.
To supply that deficiency, those additional compensation acts were
passed. Much reliance is placed by the counsel of the defendant
upon
Page 63 U. S. 310
the last proviso, which appears in nearly the same form in
several of the acts. Take, for example, the one in the act of the
7th of July, 1838, which is the act that was subsequently made
permanent. It provides that no collector shall receive more than
four thousand dollars. That sum is the maximum rate of compensation
allowed to collectors of the enumerated ports in the Act of the 7th
of May, 1822; and inasmuch as the limit of three thousand dollars,
therein prescribed as applicable to the nonenumerated ports, was
not reproduced in the new provision, it is insisted it was
repealed, so that every collector, whether of the enumerated or
nonenumerated ports, may now claim to receive an annual
compensation of six thousand dollars from the sources of emolument
recognized by that act, provided his office yields that amount,
after deducting the necessary expenses incident to the office. To
that proposition we cannot assent. On the contrary, when we look at
the language of the new provision in connection with that of the
prior law, and consider the mischief that existed, the remedy
provided, and the true reason of the remedy, we are necessarily led
to a different conclusion. Commercial ports, where the revenue is
collected, were divided by the prior law, so far as respects the
compensation of collectors, into two classes, enumerated and
nonenumerated. Collectors of the seven enumerated ports might
receive an annual compensation of four thousand dollars, provided
their respective offices produced that amount, after deducting the
necessary expenses incident to the offices, from all the sources of
emolument recognized and prescribed by the existing laws.
On the same principles and subject to the same conditions, the
collectors of the nonenumerated ports might receive an annual
compensation of three thousand dollars. No one could receive more
than that sum, and his lawful claim might be much less.
Ten years' experience under that law prior to the passage of the
Tariff act of the 14th of July, 1832, had witnessed but few
complaints respecting the classification of the ports or the
standard of compensation to collectors or customs, and had called
for no important alteration in the laws upon that subject.
Page 63 U. S. 311
Throughout that period, the rates of duties on imports were
high, and nearly every article of consumption imported from other
countries was taxed. Change of policy in that behalf, as carried
out in the legislation of the succeeding year, affected the
emoluments of collectors and reduced the amount of net income from
the sources of their emolument below the standard of a reasonable
compensation. To remedy that mischief and restore their
compensation to what it would have been if no change had taken
place was the purpose for which those additional compensation acts
were passed. They had the effect to change the basis of
computation, so as to augment the estimated net income from the
authorized sources of emolument to what it would have been if the
tariff act had not passed, but they were not intended to make any
change either in the sources from which the emoluments were derived
or the maximum rate of compensation. Mention was made of the
largest maximum prescribed in the prior law not with any view to
repeal or modify the other, which was applicable to the
nonenumerated ports, but to exclude the conclusion that it was the
intention of the provision to increase the compensation of the
collectors of the principal ports beyond what it would have been if
the free list had not been augmented, and there had been no
diminution in the rates of duties on imports.
Suppose there was nothing in the language of the act to qualify
the provision and nothing in the history of the legislation upon
the subject to aid in the exposition; still we would not think it
so clearly inconsistent with the prior law as to operate as a
repeal. Repeal by implication, upon the ground that the subsequent
provision upon the same subject is repugnant to the prior law, is
not favored in any case, but where such repeal would operate to
reopen accounts at the Treasury Department long since settled and
closed, the supposed repugnancy ought to be clear and controlling
before it can be held to have that affect. Such was the doctrine
substantially laid down by this Court in
Wood
v. United States, 16 Pet. 363, and we have no
hesitation in reaffirming it as applicable to the present case.
Aldridge v.
Williams, 3 How. 23;
United
States
Page 63 U. S. 312
v. Packages of Dry Goods, 17 How. 93; 2 Dwarris on
Stat. 533.
All of these additional compensation acts are
in pari
materia with the several acts prescribing the sources of
emolument, and the whole must be construed together. When they are
so considered, there is no such repugnancy as is supposed by the
defendant. Collectors, as before, were still required to render an
account, and the new provision expressly provides that no officer
shall receive under that law a greater annual salary or
compensation than was paid to him for the year the before-mentioned
tariff act was passed.
2. Having disposed of the proposition chiefly relied on by the
defendant, we come now to consider the second question presented
for decision. That question cannot be understood without referring
to the previous legislation upon the subject and the practice that
had grown up under it. Importers were allowed by the act of the
fourteenth of July, 1832, to place certain goods in the public
stores, under bond, at their own risk, without paying the duties.
Duties on goods so stored were required to be paid one half in
three months, and the other half in six months, but while the goods
remained in the public stores, they were subject to customary
storage and charges and to the payment of interest at the rate of
six percent. Goods thus deposited might be withdrawn at any time in
whole or in part by paying the duties on what were so recalled,
together with customary storage and charges and the interest.
Public stores were accordingly rented, and as the business
increased, the storage received by the collector from the importers
exceeded the amount paid to the owner of the stores, and there was
no law requiring collectors to account for the excess, which was
retained by the collectors to their own use, and went to swell the
amount of their compensation.
To correct that supposed abuse, the Act of the third of March,
1841, was passed. By that act, every collector was required to
render a quarter-yearly account in addition to the account
previously directed by law. That additional account, as prescribed
in the act, was to include all sums collected or received from
fines, penalties, or forfeitures, or for seizure of
Page 63 U. S. 313
goods, wares, and merchandise, or upon compromises made upon
seizures, or on account of suits instituted for frauds against the
revenue, or for rent and storage of goods, wares, and merchandise,
which were stored in the public stores, and for which a rent was
paid beyond the rents paid by the collector. As originally framed,
the provision required the collector, in case the sums received by
him from all those sources exceeded two thousand dollars, to pay
the excess into the Treasury as part and parcel of the public
money. After it was introduced, however, it was so amended and
changed in its passage that while it still directs the account to
be rendered, it requires no part of the money derived from those
sources to be paid into the Treasury except what is received for
rent and storage as aforesaid and for "fees and emoluments." Every
collector was required to account for fees and emoluments by
previous laws, and as the account to be rendered under this act is
expressly declared to be one "in addition to the account now
required," there is nothing left for that part of the section
directing the payment of the excess into the Treasury to operate
upon except the sums received for rent and storage.
By the true construction of the act, therefore, every collector
is required to include in his quarter-yearly account, as directed
in the first part of the section, all sums received by him for rent
and storage of goods, wares, and merchandise stored in the public
stores for which rent is paid beyond the rents paid by him as
collector, and if, from such accounting, the aggregate sums
received from that source exceed two thousand dollars, he is
directed and required to pay the excess into the Treasury as part
and parcel of the public money. When the sums so received from that
source in any year do not in the aggregate exceed two thousand
dollars, he may retain the whole to his own use, and in no case is
he obliged to pay into the Treasury anything but the excess beyond
the two thousand dollars.
It is insisted in one of the printed arguments filed in this
case that the act now under consideration has the effect to repeal
the maximum prescribed in the prior act, and that every collector
under this act is entitled to six thousand dollars as
Page 63 U. S. 314
an annual compensation, provided the office yields that sum from
all the sources of emolument, including rent and storage.
Collectors of the enumerated ports undoubtedly may receive four
thousand dollars from the sources of emolument recognized in the
Act of the seventh of May, 1822, and they may also receive two
thousand dollars from rents and storage. Those two sums are equal
to the new maximum rate created by the act under consideration,
which provides that no collector, under any pretense whatever,
shall receive, hold, or retain 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 and directed by law. But it is quite
clear that there is nothing in the act having the slightest
tendency to show that the prior act is repealed, so far as it is
applicable to the collectors of the nonenumerated ports. No new
maximum is fixed to their compensation, and there is not a word in
the new provision inconsistent with the tenth section of the prior
act.
To suppose that the new maximum applies to the collectors of the
nonenumerated ports would be to impute an absurdity to the act, for
the reason that under no possible state of things can such
collectors lawfully retain, hold, or receive, more than five
thousand dollars as their annual salary or compensation from all
the sources of emolument recognized and prescribed by the two acts.
It may be five thousand dollars, or it may be much less than three
thousand dollars, according to the state of the importations and
the amount received from rent and storage.
3. It only remains to apply the principles already ascertained
in order to determine the third question presented for decision.
Collectors of the nonenumerated ports may receive, as an annual
compensation for their services, the sum of three thousand dollars
from the sources of emolument recognized and prescribed by the Act
of the seventh of May, 1822, provided their respective offices
yield that amount from those sources, after deducting the necessary
expenses incident to the office, and not otherwise, and in addition
thereto they are also entitled to whatever sum or sums they may
receive for rent and
Page 63 U. S. 315
storage, provided the amount does not exceed two thousand
dollars, but the excess beyond that sum they are expressly required
to pay into the Treasury as part and parcel of the public
money.
Charges against the defendant for rent and storage must be
settled in accordance with these principles. It follows that the
instruction given by the presiding justice was erroneous, and we
also think that the first, second, and fourth prayers for
instruction ought to have been given to the jury.
Suits were also instituted against the sureties of the
defendant. Judgment was entered in the court below for the
respective defendants in those suits, and the causes were removed
into this Court by writs of error sued out by the plaintiffs. Those
causes were submitted at the same time with the one just decided.
They depend upon the same principles, and must be disposed of in
the same way.
The judgment of the circuit court is therefore reversed in
each of the three cases, and the respective cases are remanded,
with directions to issue new venires.