1. The twenty-fifth section of the Act of June 30, 1864, 13
Stat. 231, authorizes the Secretary of the Treasury to make, in his
discretion, just and reasonable allowances to collectors of
internal revenue in addition to their salaries, commissions, and
certain necessary charges. A claim for such allowances, unless it
be sanctioned by him, cannot be admitted by the accounting officers
of the Treasury.
2. In a suit on the official bond of a collector of internal
revenue to recover a balance found to be due from him to the United
States on a settlement of his accounts by the accounting officers,
items of setoff for his extra services and expenses were properly
excluded.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Fifteen hundred dollars per annum are allowed to collectors of
internal revenue as salary for their services and that of their
deputies, to be paid quarterly. Commissions in addition to salary
are also allowed to such officers, to be computed upon the amounts
by them respectively collected, paid over, and accounted for under
the instructions of the Treasury Department, as follows: three
percent upon the first $100,000; one percentum upon all sums above
$100,000, and not exceeding $400,000; and one-half of one percentum
on all sums above $400,000. Such an officer may also keep and
render to the proper officers of the Treasury an account of his
necessary and reasonable charges for stationery and blank books
used in the performance of his official duties, and for postage
actually paid on letters and documents received or sent, and
exclusively relating to official business, and, if the account is
approved by the proper accounting officers, the collector is
entitled to be paid for the same; but the provision is that no such
account shall be approved unless it shall state the date and the
particular items of every such expenditure and shall be verified by
the oath or affirmation of the collector.
Two provisos are annexed to those enactments:
1. That the
Page 91 U. S. 560
salary and commissions of no collector, exclusive of stationery,
blank books, and postage, shall exceed $10,000 in the aggregate,
nor more than $5,000, exclusive of the expenses for rent,
stationery, blank books, and postage, and pay of deputies and
clerks, to which such collector is actually and necessarily
subjected in the administration of his office.
2. That the Secretary of the Treasury be authorized to make such
further allowances from time to time as may be reasonable in cases
in which, from the territorial extent of the district or from the
amount of internal duties collected or from other circumstances it
may seem just to make such allowances. 13 Stat. 231.
Sufficient appears to show that the principal defendant was duly
appointed a collector of internal revenue under the Act of Congress
in that case made and provided, and that the foundation of the suit
is the official bond given by the appointee for the faithful
discharge of the duties of the office. Breaches of the conditions
of the bond having been committed, as alleged, the United States
commenced an action of debt in the district court against the
principal and his sureties, claiming the penalties of the bond.
Service was made, and the defendants appeared, and pleaded 1.
non est factum; 2. performance; 3. setoff in the sum of
$8,203.06 for money before that time advanced, paid, laid out, and
expended by the defendant to and for the use of the plaintiffs and
at their instance for the work and labor of the defendant and his
servants and deputies done and performed by him as such collector
for the plaintiffs and at their instance and request.
Claim is also made for the same sum in the same plea upon the
ground that it was due and owing to the defendant from the
plaintiffs for commissions, expenses, and charges for extra
services of himself and his servants, done and performed at the
special instance and request of the plaintiffs.
Issue was joined by the plaintiffs upon the first plea, and to
the second the plaintiffs reply, and deny that the defendant has
well and truly performed the conditions of the writing obligatory,
and assign the following breaches: 1. that he has not accounted for
and paid over to the United States all the public moneys which came
into his hands in compliance with the orders and regulations of the
Secretary of the Treasury;
Page 91 U. S. 561
2. that he did not faithfully execute and perform all the duties
of his office, as more fully set forth in the replication.
Both parties, having waived a trial by jury, went to trial
before the court without a jury, and the finding and judgment were
for the plaintiffs in the sum of $11,517.63. Exceptions were filed
by the defendants, and they sued out a writ of error and removed
the case into the circuit court.
Due settlement of the collector's accounts had been made by the
accounting officers of the Treasury, and the plaintiffs, to support
the issue on their part, introduced the certified transcript of the
same, to which the defendants objected; but the court overruled the
objection and admitted the evidence, and the defendants excepted.
Said transcript included the statement of differences and showed
that the sum of $20,120 was the balance due from the collector.
Collections, it seems, had been made by the officer for the
preceding year amounting to $77,702.08, and it did not appear that
he had been paid during that period any extra allowance above his
salary and commissions, nor that any of the charges claimed as
setoff had been credited in the settlement of his accounts. Apart
from that, it was admitted by the plaintiffs that the defendants
had paid into court the sum of $11,435.17, which is to be deducted
from the balance found due from the defendants by the accounting
officers of the Treasury.
Setoffs were claimed by the defendants as follows: 1. $5,010
paid by the collector, during the summer and fall of 1866, to
sixteen deputy collectors employed by him during that period in his
district; 2. $648 paid for the hire of clerks in his office during
the quarter ending Sept. 30 of the same year; 3. $1,100 paid for
hire of clerks in making out his accounts and returns during that
and the succeeding year.
Nothing being alleged to the contrary, it will be assumed that
those several claims had been duly presented to the proper officers
of the Treasury, and that they had been finally disallowed. They
were separately offered in evidence at the trial, and the ruling of
the court in each instance was that the same was properly rejected
by the accounting officers of the Treasury. Seasonable exception to
the ruling of the court was taken by
Page 91 U. S. 562
the defendants. Appearance was entered by each party in the
circuit court, and they were both there heard, and the circuit
court affirmed the judgment of the district court, and the
defendants sued out the present writ of error.
Errors have not been assigned as required by the rules of the
Court; but the course of the argument, as exhibited in the printed
brief, warrants the conclusion that the only errors relied on are
the rulings of the district court that the accounts filed in setoff
were properly rejected by the accounting officers of the Treasury.
Defendant litigants had no right to file accounts in setoff at
common law; nor did they ever have that right until the passage of
the statute of 2 Geo. II, ch. 24, sec. 4, which enacted in
substance and effect that where there were mutual debts between the
plaintiff and the defendant, one debt may be set against the other
and that such matter may be given in evidence under the general
issue or may be pleaded in bar, so that notice shall be given of
the sum or debt intended to be offered in evidence. Chit. on Contr.
948.
Questions of the kind, where the United States are plaintiffs,
must be determined wholly by the acts of Congress, as the local
laws have no application in such cases.
United
States v. Eckford, 6 Wall. 490;
United
States v. Robeson, 9 Pet. 324; Conklin, Treat.
127.
Judgment in such suits is required to be rendered at the return
term unless the defendant shall in open court make oath or
affirmation that he is equitably entitled to credits which had not
been, previous to the commencement of the suit, submitted to the
consideration of the accounting officers of the Treasury and
rejected and specifying each particular claim so rejected in the
affidavit. 1 Stat. 515;
United States v.
Giles, 9 Cranch 236; 5 Stat. 83.
Sec. 4 of the same act provides that in suits between the United
States and individuals, no claim for a credit shall be admitted at
the trial except such as shall appear to have been submitted to the
accounting officers of the Treasury for their examination and to
have been by them disallowed unless it shall appear that the
defendant, at the time of the trial, is in possession of vouchers
not before in his power to procure, and that he was prevented from
exhibiting a claim for such credit
Page 91 U. S. 563
at the Treasury by absence from the United States, or some
unavoidable accident.
Claims for credit in suits against persons indebted to the
United States, if it appears that the claim had previously been
presented to the accounting officers of the Treasury for their
examination and had been by them disallowed in whole or in part,
may be admitted upon the trial of the suit, but it can only be
admitted as a claim for credit, and must be proved to be just and
legal before it can be allowed. Equitable claims for credit, if
falling within the latter clause of the fourth section of that act,
may be admitted at the trial of such a suit though never presented
to and disallowed at the Treasury, but the presentation of such a
claim will amount to nothing unless it is proved that the same is
justly due to the claimant.
Due returns, it seems, were made by the collector. It is not
questioned that his accounts were regularly settled by the
accounting officers of the Treasury; nor is it suggested that due
credit was not given to him for everything which he could properly
claim, except for the extra services and expenses charged in the
accounts filed in setoff; and it appears that those accounts were
duly presented to the accounting officers of the Treasury and were
by them rejected before the suit was instituted. When the claims
were offered, the court admitted the evidence, and the only
complaint is that the court ruled that the claims were properly
rejected by the accounting officers of the Treasury, which is the
only question presented for decision.
Independent of the second proviso to the section defining the
compensation to be allowed to such collectors, it would be clear
beyond every doubt that no claim of the kind could be allowed by
any court, as appears from the acts of Congress upon the subject
and the decisions of this Court. Legislation upon the subject
commenced with respect to collectors of the customs, but was
ultimately extended to all executive officers with fixed salaries
or whose compensation was prescribed by law. Sec. 18 of the Act of
the 7th of May, 1822, provided that no collector, surveyor, or
naval officer shall ever receive more than $400 annually, exclusive
of his compensation as such officer and the fines and forfeitures
allowed by law for any service he may render in any other office or
capacity. 3 Stat. 696.
Page 91 U. S. 564
Prior to that, the settled practice and usage were to require
collectors to superintend lights and lighthouses in their districts
and to disburse money for the revenue cutter service. Services of
the kind were charged as extra services, and extra compensation was
in many cases allowed for such service, until Congress interfered
and by that act gave such officers a fixed compensation, subject to
the provision that they should never receive more than $400,
exclusive of the fixed compensation and their due proportion of
fines, penalties, and forfeitures. Officers not named in that act
also received fixed salaries, and they, whenever they performed
extra service under the direction of the head of a department,
claimed extra compensation. Claims of the kind were in some
instances disallowed, and in certain cases, where litigation
ensued, it was decided by this Court that such claims were a proper
setoff to the money demands of the United States.
Miner v.
United States, 15 Pet. 423;
Gratiot v.
United States, 15 Pet. 336;
United
States v. Ripley, 7 Pet. 18.
Litigations of the kind became frequent, and Congress again
interfered, and provided that no officer in any branch of the
public service, or any other person whose salary or whose pay or
emoluments is or are fixed by law and regulations, shall receive
any extra allowance or compensation in any form whatever for the
disbursement of public money or the performance of any other
service unless the said extra allowance or compensation be
authorized by law. 5 Stat. 349.
Since then, many other acts of Congress have been passed upon
the subject, of which one more only will be reproduced. Like the
preceding act, it provides 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 whatever unless the same shall be authorized by
law, and the appropriation therefor is explicitly set forth that it
is for such additional pay, extra allowance, or compensation. 5
Stat. 510; 9
id. 297, 365, 367, 504, 542, 543, 629; 10
id. 97-100, 119, 120.
Compensation for extra services where no certain sum is
Page 91 U. S. 565
fixed by law cannot be allowed by the head of a department to
any office who has by law a fixed or certain compensation for his
services in the office he holds unless such head of a department is
thereto authorized by an act of Congress; nor can any compensation
for extra services be allowed by the court or jury as a setoff, in
a suit brought by the United States against any officer for public
money in his hands, unless it appears that the head of the
department was authorized by an act of Congress to appoint an agent
to perform the extra service, that the compensation to be paid for
the service was fixed by law, that the service to be performed had
respect to matters wholly outside of the duties appertaining to the
office held by the agent, and that the money to pay for the extra
services had been appropriated by Congress.
Converse v. United
States, 21 How. 470.
None of the conditions precedent suggested existed in the case
before the court, and it follows that no such allowance could have
been made by the accounting officers of the Treasury in settling
the accounts of the principal defendant unless the same had been
previously approved by the Secretary of the Treasury under the
second proviso in the twenty-fifth section of the act prescribing
the compensation to be allowed to the collectors of internal
revenue. 13 Stat. 232.
Authority is there given to the Secretary of the Treasury to
make such further allowances to such collectors from time to time
as may be reasonable, but the power to be exercised in that behalf
is one vested in his discretion, both as to time and amount. He may
make an allowance one year and refuse it the next, or he may never
make it at all, as to him may seem just and reasonable. No appeal
lies from his decision in that regard either to the accounting
officers of the Treasury or to the courts. Instead of that, his
decision is final unless reversed by Congress.
Judgment affirmed.