Ware v. United States,
71 U.S. 617 (1866)

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U.S. Supreme Court

Ware v. United States, 71 U.S. 4 Wall. 617 617 (1866)

Ware v. United States

71 U.S. (4 Wall.) 617


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,"


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

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