1. Where, on a suit by the United States against a deputy
postmaster for damages in not paying over moneys which came to his
hands during the six months next preceding the discontinuance
(March 13, 1862) of the office to which he was appointed, the
defendant's rejoinder (demurred to), by its whole context and by
its introductory allegations
Page 71 U. S. 618
that the office was never supplied with mails after it was
discontinued, shows that it means nothing more than that such
defendant was wrongfully prevented from earning commissions, such
rejoinder presents a claim for damages merely.
2. To such a claim it is answered:
(1) That postage commissions, as ascertained by the quarterly
accounts of deputy postmasters and the receipts from boxes during
the term in question in this suit, were the only sources of
compensation to those officers allowed by law.
(2) That the claim being for damages, and not for commissions or
receipts from boxes as ascertained in a quarterly account, it could
not be sustained as a credit unless it appeared affirmatively that
it had been presented to the Auditor of the Post Office Department
and had been by him disallowed in whole or in part, or that the
defendant had been prevented from so presenting it by some
unavoidable accident.
3. By the legislation of Congress, the Postmaster General has
the power to "establish
post offices" as well where the
commissions of the office amount to or exceed one thousand dollars
as where they do not.
4. Unless there is some provision in the acts of Congress
restraining its exercise, the power to establish post offices, as
interpreted by usage coeval with the creation of the Post Office
Department and recognized in Congressional legislation, infers a
power to discontinue them. And deputy postmasters occupy their
offices subject to the contingency that such offices may be so
discontinued.
5. Possessing thus the power to discontinue post offices, the
Postmaster General may exercise the power notwithstanding that the
deputy postmasters have been appointed by the President, by and
with the advice and, consent of the Senate and under a statute
which enacts that the appointee shall hold his office for the term
of four years unless sooner removed by the President.
6. If he do exercise it, the office of deputy postmaster is in
such cases gone. There is no longer a deputy postmaster at that
place.
Error to the Circuit Court of the United States for the Eastern
District of Pennsylvania to reverse a judgment of that court
affirming the judgment of the district court in an action of debt
instituted by the United States on the official bond of one Ware as
deputy postmaster at Kensington, in the County of Philadelphia, for
$8,000.
The declaration alleged that there was due to the United States
from the said postmaster, according to his quarterly accounts of
receipts and expenditures for the last quarter of the year 1861 and
the first quarter of the year 1862, a balance of $3,380.43.
Page 71 U. S. 619
The only question in the cause arose upon the defendant's
second plea, which alleged that the defendant, Ware being
postmaster at Kensington and still continuing to exercise that
office, and
not having been lawfully removed therefrom,
held and retained in his possession the sum of $3,450, part of the
sum demanded by the United States, as and for his commissions on
the postages collected at that office and for rent of office during
the space of eighteen months commencing April 1, 1862, and ending
September 30, 1863.
The
replication of the United States was a
special
traverse of this plea, averring in the
inducement
that on March 13, 1862, the Postmaster General of the United States
discontinued the post office at Kensington, and that afterwards no
letters were deposited in or forwarded by mail from that office,
but that all such letters &c. as had previously been deposited
in and mailed at the Kensington office were, after the date
aforesaid, deposited in and mailed at the Philadelphia post office,
and that the said Ware, since the 19th of March, 1862, had
collected no postages at the said late post office at Kensington,
and, since his quarterly account for the first quarter of the year
1862, had rendered no accounts of receipts and expenditures at the
said Kensington post office, and, concluding:
"
Without this, that the said Samuel Ware for the space
of eighteen months, from the 1st day of April, 1862, to the 30th
day of September, 1863, was deputy postmaster at Kensington, in the
manner and form,"
&c.
The defendants, in the rejoinder filed to this replication,
averred that after the said unlawful discontinuance of the post
office at Kensington, the postmaster at Philadelphia received and
delivered letters and other mailable matter which,
but for the
said discontinuance, would have passed through the Kensington post
office sufficient in quantity to authorize and justify an allowance
of commissions to the said Ware over and above expenditures,
at the rate of $2,000 per annum, which said commissions so
wrongfully withheld from him, exceed in amount the balance claimed
by the United States.
To this rejoinder the United States demurred, and the demurrer
was sustained by the district court. A jury having
Page 71 U. S. 620
been called to assess the damages found for the plaintiffs in
the sum of $2,366.22, for which the court entered judgment.
This judgment was affirmed on writ of error by the circuit
court.
To understand the matter more completely it may be well to state
the facts, not disputed, of the case and also to mention certain
acts of Congress in reference to the subject of postmasters.
I.
The facts were these:
Previous to 1854, Kensington was a district adjoining the
municipality of Philadelphia proper, possessing a distinct
municipal organization. In 1854, it was consolidated with the City
of Philadelphia under an act of assembly of the State of
Pennsylvania. The post office established at Kensington, before the
consolidation of the districts, continued to be maintained there
until March, 1862, when it was discontinued by the Postmaster
General in the manner stated in the plaintiff's replication.
At the time of this order, the accounts of Ware had not been
finally adjusted at the department.
After this, the mails were no longer supplied to or distributed
through the Kensington office, but through the Philadelphia office
and its sub-offices. No postages were collected or received
thereafter by the postmaster of Kensington, and no accounts were
rendered by him, after the abolition of his office, to the
department at Washington.
II.
As respected the acts of Congress:
1. The Constitution confers upon Congress power "to establish
post offices and post roads." An Act of March 3, 1825, [
Footnote 1] provides that the
Postmaster General
"shall
establish post offices and appoint postmasters
at all such places as shall appear to him expedient on the
post roads that are or may be established by law."
This act was changed by an Act of July 2, 1836, [
Footnote 2] which authorized the
President, by and with the consent of the Senate, to
appoint a deputy postmaster at
Page 71 U. S. 621
each office at which the commissions amounted to or exceeded one
thousand dollars a year. And this law
(under which Ware had
been appointed) declares that the appointee
"shall hold
his office for the term of four years, unless sooner removed by the
President." But no other repeal of the act of 1825 was made by
this act of 1836.
2. By an Act of June 22, 1854, [
Footnote 3] the compensation authorized or allowed by law
during the period mentioned in the defendant's second plea to
deputy postmasters was certain commissions on the postages
collected at their respective offices in each quarter of the
year.
By an Act of March 3, 1847, [
Footnote 4] no compensation in addition, excepting the
receipts from boxes, could be given to deputy postmasters by the
Postmaster General.
Page 71 U. S. 625
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Deputy postmasters, where the commissions allowed to the office
amount to or exceed one thousand dollars, are appointed by the
President, by and with the advice and consent of the Senate, and
hold their offices for the term of four years unless sooner removed
by the President. [
Footnote
5]
Principal defendant was, on the sixteenth day of July, 1861,
duly appointed in that manner deputy postmaster at Kensington, in
the County of Philadelphia; and the record shows that he was in the
performance of the duties of that office on the thirteenth day of
March, 1862, when the same was decided to be unnecessary by the
Postmaster General, and was discontinued. When appointed, he gave
bond with sureties as required by law for the faithful performance
of his duties, and that he would render a quarter-yearly account of
receipts and expenditures, and pay over to the proper officer the
balance of all moneys which should come to his hands for postages
in the manner prescribed by the department.
Substantial charge against the defendant was that he had
neglected and refused to pay over certain moneys received for
postages, as exhibited in his quarterly accounts for the
Page 71 U. S. 626
last two quarters next preceding the discontinuance of the
office. Refusing to pay over those sums, the United States sued him
in an action of debt, declaring on his official bond against him
and his surety.
Defendants appeared and pleaded several pleas, but it is
unnecessary to refer particularly to any one of them except the
second, as all the others resulted in issues of fact and present no
question for decision in this record. Second plea of the defendants
alleged that the postages annually received at that office amounted
to a sum which authorized an annual allowance to him of two
thousand dollars, and entitled him to retain that sum, as and for
commissions, to his own use, besides the rent of his office, from
and out of the moneys so collected and received for postages, and
they also averred that the principal defendant was never lawfully
removed from his office and that the moneys not paid over, as set
forth in the declaration, were properly retained by him for rent of
his office and as commissions for postages from the first day of
April, 1862, to the thirtieth day of September in the following
year. Replication of the plaintiffs alleged that the office was
discontinued by the Postmaster General as unnecessary on the
thirteenth day of March, 1862; that the incumbent of the office was
duly notified of that fact; that proper directions were given that
the public property, keys, and books of the office should be
transmitted to the Post Office Department; that letters and all
other mailable matter then ceased to be delivered through or by
that post office, and that the defendant thereafter never collected
any postages or rendered any quarterly accounts.
Rejoinder of the defendants denied that the office was ever
lawfully discontinued and averred that letters and other mailable
matter addressed to the office and which, but for the unlawful
discontinuance of the same, would have passed through it were
received and delivered by the postmaster at Philadelphia,
sufficient in number and quantity to justify the annual allowance
to the defendant as commissions of two thousand dollars, and that
the commissions so wrongfully withheld from the defendant exceeded
in amount the alleged
Page 71 U. S. 627
balance due to the plaintiffs, and tendered an issue to the
country. Plaintiffs demurred to the rejoinder of the defendants,
and the defendants joined in demurrer. Parties were heard, and the
court rendered judgment for the plaintiffs for the damages as found
by the jury. All of the foregoing proceedings took place in the
district court, but the judgment was affirmed, on writ of error, in
the circuit court, and the defendants removed the cause into this
Court.
I. Theory of the defendants is that the discontinuance of the
post office, even if it was the exercise of a lawful authority, did
not carry with it the removal of the postmaster; and inasmuch as he
was never removed by the President, they contend that he continued
to be the postmaster
de jure at that office, and that as
such he was entitled to the commissions which the office would have
earned if it had been regularly supplied with the mails as
theretofore, and the defendant had performed all the duties which
were devolved upon him prior to its discontinuance. Suppose all
that could be admitted, still it is obvious that it would not,
without more, establish a valid defense to the action, as it would
yet be incumbent upon the defendant to show that he had a right to
retain the amount which came to his bands before the office was
discontinued, and to set off against that sum the damages he
sustained by the subsequent refusal of the Postmaster General to
allow him a credit equal to the commissions for the year and a half
next following the time when the order of discontinuance was
carried into effect.
Demand of the plaintiffs is for damages for not paying over
moneys which came to the hands of the incumbent of the office
during the six months next preceding its discontinuance, and they
insist that he had no right to retain the amount so received for
any purpose, but was bound by law to pay it over under the
regulations to the department. On the other hand, the defendants
insist, in argument, that he properly retained it, and might
lawfully and as matter of right prove his supposed claim for
commissions in setoff as an answer to the action of the plaintiffs.
Nothing of the
Page 71 U. S. 628
kind was alleged in the rejoinder, and nothing of the kind,
therefore, was admitted by the demurrer. All that the rejoinder
alleged was that the commissions of the office, if it had not been
unlawfully discontinued, would have been sufficient to justify an
allowance to the incumbent of two thousand dollars per annum, and
that the commissions were wrongfully withheld from him by the
department.
Taken separately from the other averments of the rejoinder,
those allegations might afford some countenance to the proposition
that the demurrer admitted away the plaintiffs' case; but the whole
must be considered together, and when so considered, it is evidence
that the pleader, when he alleged that the commissions were
wrongfully withheld from the incumbent of the office, meant nothing
more than that he was wrongfully prevented from earning
commissions, as the clear and indisputable inference from the
introductory allegations of the rejoinder are that the office was
never supplied with the mails after it was discontinued.
II. Commissions are allowed to deputy postmasters, at prescribed
rates, on the postage collected at their respective offices in each
quarter of the year, or in due proportion for any period less than
a quarter, and they are required by law and the regulations of the
department to render accounts quarter-yearly of the receipts and
expenditures of their offices, which are expected to show the
extent of their liability and the amount of the commissions to
which they are entitled. [
Footnote
6] Viewed in the light of these suggestions, it is undeniable
that the real claim of the principal defendant, as exhibited in the
pleadings, was not for commissions in the sense in which that word
is employed in the acts of Congress and the regulations of the
department, but was in truth and fact a claim for damages based on
the assumption that he had been wrongfully prevented from earning
such commissions by the neglect and refusal of the Postmaster
General to supply his office with the mails and by its unlawful
discontinuance. Assuming such to be the character
Page 71 U. S. 629
of the claim as described in the rejoinder, then it follows as a
necessary consequence that there are at least two difficulties in
the way of the theory of the defendants which cannot be
overcome.
1. Where a deputy postmaster collects no postages, there can be
no commissions allowed under the acts of Congress in force during
the period embraced in this controversy, and as the office was not
supplied with the mails, there could be no receipts from boxes, as
there were no letters or other mail matter to be delivered. Postage
commissions, as ascertained by the quarterly accounts of deputy
postmasters and the receipts from boxes during that period, were
the only sources of compensation to those officers allowed by law,
and those sources having entirely failed in this case -- yielding
nothing -- the department possessed no authority whatever to make
any other allowance. [
Footnote
7]
2. Claim of the principal defendant being for damages, and not
for commissions or receipts from boxes as ascertained in his
quarterly accounts, the court below, if the case had been tried on
the merits, could not have sustained the claim as a credit unless
it had appeared affirmatively that it had been presented to the
Auditor of the Post Office Department and had been by him
disallowed in whole or in part, or that he had been prevented from
so presenting it by some unavoidable accident. Such has been the
rule in respect to credits claimed by individuals at the Treasury
Department almost from the foundation of the government, and the
original provision upon that subject is still in full force.
[
Footnote 8]
Same rule, substantially, has been prescribed by Congress in the
trial of suits against delinquent postmasters and mail contractors,
except that the party claiming the credit is required to present
the claim to the Auditor of the Post Office Department. No claim
not having been so presented and disallowed in whole or in part can
be sustained at the trial unless it appear that the defendant is
then in possession of
Page 71 U. S. 630
vouchers not before in his power to procure and that he was
prevented from presenting the claim for credit to the auditor by
some unavoidable accident. [
Footnote 9]
Testing the rejoinder by these requirements, it is too plain for
argument that it is defective in substance, as the facts shown in
the allegations are in several respects insufficient to constitute
a defense to any part of the plaintiff's claim. Plain inference
from the facts, as alleged in the rejoinder, is that the defendant
had neither collected any postages nor earned anything as receipts
from boxes, and there is no pretense even in argument that he ever,
during the period embraced in this controversy, rendered any
quarterly account. Neglecting to allege those facts or any of them,
he utterly fails to show any claim to commissions, and having
omitted to allege that his claim for credit on account of damages
sustained was ever presented to the auditor and disallowed, he
fails to make a case in which any such credit can be sustained in a
federal court.
III. But suppose it were otherwise, still we are of the opinion
that the plaintiffs must prevail because, in our judgment, the post
office at Kensington was lawfully discontinued. A general post
office was established on the twenty-sixth day of July, 1775, the
year before the Declaration of Independence. [
Footnote 10] By that ordinance it was directed
that a line of posts be appointed under the direction of the
Postmaster General from Falmouth, now Portland, to Savannah, with
as many cross-posts as he shall think fit, and he was authorized to
appoint as many deputies as to him might seem proper and necessary.
Amendments were made to that ordinance from time to time to the
twenty-eighth day of October, 1782, when it was repealed, and a
supplemental ordinance was adopted in its place, conferring
substantially the same powers upon the Postmaster General. Those
powers were continued, with certain alterations and additions,
until the Constitution of the United States was
Page 71 U. S. 631
adopted. Congress, on the twenty-second day of September, 1789,
made provision for the appointment of a Postmaster General and
enacted that his powers and salary, and the compensation to the
assistant or clerk and deputies which he may appoint, and the
regulations of the post office, shall be the same as they last were
under the regulations and ordinances of the late Congress.
[
Footnote 11]
Throughout that period, post routes were established by
Congress, but the deputy postmasters were invariably appointed by
the Postmaster General, and they were required to receive and
distribute the mails at the places designated by the appointing
power. When the last-named act was passed, it was entitled "An act
for the temporary establishment of the post office," but it was
continued in force from time to time without any material
alteration until the twentieth day of February, 1792, when the act
was passed to establish the post office and post roads within the
United States. [
Footnote 12]
Authority was conferred upon the Postmaster General by the third
section of that act, "to appoint an assistant and deputy
postmasters where such shall be found necessary." [
Footnote 13] Same authority was continued
in the same terms in the act of the eighth of May, 1794, with the
further provision that where there was more than one road between
the places mentioned in the act, he might direct the route to be
considered the post road. [
Footnote 14] Express authority was conferred upon the
Postmaster General by the Act of the second of March, 1799, to
establish post offices and appoint postmasters at all such places
on the post roads that are or may be established by law, as shall
appear to him expedient. [
Footnote 15] Like power was conferred upon that officer
by the first section of the Act of the thirtieth of April, 1810,
which also enacted that he should provide for the carrying of the
mail on all post roads that are or may be established by law, and
as often as he, having regard to the productiveness thereof, and
other circumstances, shall think proper. [
Footnote 16]
Page 71 U. S. 632
Power to establish post offices and post roads is conferred upon
Congress, but the policy of the government from the time the
General Post Office was established, has been to delegate the power
to designate the places where the mails shall be received and
delivered to the Postmaster General. Sufficient evidence of that
fact is seen in the references already made to acts of Congress,
but if more be needed it will be found in the first section of the
Act of the third of March, 1825, entitled "An act to reduce into
one the several acts establishing and regulating the Post Office
Department." [
Footnote 17]
Provision is there made that the Postmaster General
"shall establish post offices and appoint postmasters at all
such places as shall appear to him expedient, on the post roads
that are or may be established by law."
No part of that provision has been repealed except the clause as
to the appointment of postmasters for offices where the commissions
amount to or exceed one thousand dollars. Such appointments must be
made by the President, by and with the advice and consent of the
Senate, but in all other cases, the power of appointing postmasters
is still vested in the Postmaster General, and his power
to
establish post offices, as there conferred, is neither
repealed nor modified. We concur with the plaintiffs that the power
to discontinue post offices is incident to the power to establish
them unless there is some provision in the acts of Congress
restraining its exercise. [
Footnote 18]
Undoubtedly Congress might discontinue a post office which they
had previously established by law, and it is difficult to see why
the Postmaster General may not do the same thing when acting under
an act of Congress expressed in the very words of the Constitution
from which Congress derives its power. Strong necessity exists that
the power of the Postmaster General in this behalf should be upheld
so long as the offices are established by his authority. New
facilities for transportation may call for change of location, or
it may appear that the location was unadvisedly selected,
Page 71 U. S. 633
either from want of proper information or through
misrepresentation. Some of these causes must be constantly
operating in a sphere of action so vast and diversified as that of
the Post Office establishment. Probably it was such reasons and
others of a like character that gave rise to the practice which is
believed to have been coeval with the creation of the department.
Such a practice, which it is understood has been in constant
exercise for more than three-fourths of a century, is certainly
entitled to weight in the construction of an act of Congress
appertaining to the powers of a department of the government. Much
support to that view of the subject is also derived from the acts
of Congress recognizing the power as one subsisting in the
Postmaster General. Section eleven of the Act of the second of
July, 1836, requires the Postmaster General to cause to be
certified to the auditor of the department "all establishments and
discontinuances of post offices, and all appointments,
deaths, resignations, and removals of postmasters," and the second
section of the Act of the third of March, 1851, provides that no
post office now in existence shall be discontinued in consequence
of any diminution of the revenues that may result from that act.
[
Footnote 19] When weighed
in connection with the immemorial usages of the department, those
acts of Congress recognizing the existence of the power, may well
be regarded as a legislative interpretation of the provision
authorizing the Postmaster General to establish post offices and as
sanctioning a construction in conformity to that well known
usage.
Possessing that power, it was lawful for the Postmaster General
to exercise it notwithstanding the postmaster had been appointed by
the President, by and with the advice and consent of the Senate,
because the incumbent accepted the appointment subject to the legal
contingency that the post office might be discontinued. Congress
therefore, by necessary implication, authorized the Postmaster
General to discontinue any such post office whenever it should
appear
Page 71 U. S. 634
to him to be expedient and proper, and having exercised that
discretion it is not possible to hold that the discontinuance was
unlawful.
Learned counsel will hardly contend that Congress might not have
discontinued that office, and our conclusion is that the same
effects flow from the discontinuance in this case as if it had been
directly declared by an act of Congress.
Defendant, when the post office was discontinued, ceased to be
postmaster at Kensington because there was no longer any post
office at that place. He was never entitled to any compensation
except commissions and receipts from boxes, and those sources of
compensation were extinguished when the post office was
discontinued, and he lost nothing to which he was entitled.
The judgment of the circuit court is therefore
Affirmed.
[
Footnote 1]
§ 1; 4 Stat. at Large 102.
[
Footnote 2]
§ 33;
ibid., 87.
[
Footnote 3]
§ 1; 10 Stat. at Large 298.
[
Footnote 4]
§ 13; 9
id. 145.
[
Footnote 5]
5 Stat. at Large 84.
[
Footnote 6]
4 Stat. at Large 102, 105; 10
id. 298.
[
Footnote 7]
9 Stat. at Large 202; 10
id. 298.
[
Footnote 8]
1
id. 515;
United States v.
Giles, 9 Cranch 212.
[
Footnote 9]
5 Stat. at Large 83.
[
Footnote 10]
1 Laws of the United States, ed. 1815, p. 649.
[
Footnote 11]
1 Stat. at Large 70.
[
Footnote 12]
1
id. 178, 218.
[
Footnote 13]
Ibid., 234.
[
Footnote 14]
Ibid., 357.
[
Footnote 15]
Ibid., 733.
[
Footnote 16]
2
id. 593.
[
Footnote 17]
4 Stat. at Large 102.
[
Footnote 18]
Ex Parte
Hennen, 12 Pet. 261.
[
Footnote 19]
5 Stat. at Large 82; 9
id. 590.
