1. A., a collector of internal revenue, was suspended Sept. 23,
1873, from office upon charges of fraud by the supervisor, who
reported his action to the Commissioner, in accordance with sec.
3163 of the Revised Statutes. The Secretary of the Treasury, Sept.
26, directed B., the deputy collector of the district, to assume
the duties of collector as of Sept. 23 in place of A., and to
continue in office until some person should be appointed thereto
and duly qualified. A. died Oct. 16. A collector, appointed Nov. 9,
took the oath and gave the required bond Dec. 1, but did not take
possession of the office until Dec. 10. B. performed the duties of
collector from Sept. 23 to and including Dec. 9.
Held that
B. was entitled to the compensation of collector during the whole
period.
2. Under the last clause of the first section of the act of
March 1, 1869, 15 Stat. 282, providing that a deputy collector of
internal revenue shall not receive compensation as collector when
the latter is entitled to compensation for services rendered during
the same period of time, a collector suspended for fraud and
rendering no services thereafter is not entitled to compensation so
as to exclude the deputy collector therefrom and the better opinion
is that that provision is repealed by its omission from 16 Stat.
179, Rev.Stat., sec. 3150.
Page 99 U. S. 11
This was an action by Joseph S. Farden against the United States
to recover pay for his services as Acting Collector of Internal
Revenue for the Second District of Alabama.
The Court of Claims found the following facts:
1. On the twenty-third day of September, 1873, the claimant was
deputy collector of Francis Widner, then Collector of Internal
Revenue for the Second District of Alabama, when said Widner was
suspended from office by K. R. Cobb, a supervisor of internal
revenue, for fraud and his action reported to the Commissioner.
2. The Commissioner thereupon sent the following telegram to J.
C. Lotz, a revenue agent, and the order therein contained was
immediately complied with:
"WASHINGTON, Sept. 23, 1873"
"J. C. LOTZ,
Montgomery, Alabama"
"The Secretary will designate Joseph S. Farden as acting
collector from this date. Put him in possession of the office."
"J. W. DOUGLASS"
"
Commissioner"
And thereafter the Secretary of the Treasury issued the
following order:
"TREASURY DEPARTMENT"
"WASHINGTON, D. C., Sept. 26, 1873"
"SIR -- Under the provisions of the fortieth section, Act of
June 30, 1864, as amended by the first section, Act of March 3,
1865, you are hereby directed to perform the duties of the office
of Collector of Internal Revenue for the Second District of
Alabama,
vice Francis Widner, suspended."
"This order will take effect from the 23d inst., and will
continue in force until some person shall have been designated or
appointed to the office and duly qualified according to law."
"You will receive this through the Commissioner of Internal
Revenue, who is hereby directed to give you the necessary
instruction with reference to the performance of your duties as
prescribed by law."
"I am, very respectfully,"
"WM. A. RICHARDSON"
"
Secretary"
"MR. JOSEPH S. FARDEN"
"
Deputy Collector &c., Montgomery, Ala. "
Page 99 U. S. 12
3. Said Widner died Oct. 16, 1873, and on the ninth day of
November, 1873, P. D. Barker was appointed and commissioned as
collector of said district, and took the oath of office and gave
the bond required on the first day of December, 1873.
The following notice was sent to claimant by the Commissioner of
Internal Revenue, and on the tenth day of December, 1873, and not
before, said Barker took possession of the office, and all books,
papers, and property pertaining thereto were then turned over to
him:
"WASHINGTON, Nov. 25, 1873"
"SIR -- Prelate D. Barker having been appointed Collector of
Internal Revenue for the Second District of Alabama, and having
duly qualified as such collector, I have to direct you to turn over
and deliver to him all books, papers, and property pertaining to
collector's office of said district whenever he shall present
himself and request you to do so."
"Very respectfully,"
"J. W. DOUGLASS"
"
Commissioner"
"JOSEPH S. FARDEN, Esq.,"
"
Acting Collector, 2d Dist., Montgomery, Ala."
4. The claimant performed the duties of collector of said
district as such acting collector from Sept. 23 to Dec. 9, 1873,
inclusive, under said orders set forth in the second finding.
5. The compensation fixed by the Secretary of the Treasury, in
lieu of the salary and commissions prescribed by law, for the
personal salary of the collector of said district was $3,000 a
year, and of the deputy collector, $1,500 a year.
6. For the time from the 23d of September to the 15th of
October, inclusive, the claimant has been paid $89.67, the
compensation fixed for deputy collector, and no more; for the time
between Oct. 15 and Nov. 30, 1873, inclusive, he has been paid the
full compensation of collector; and for the first nine days in
December he has been paid nothing.
The court found as a conclusion of law that the claimant was
entitled to recover $163.05, that being the compensation of a
collector from Sept. 23 to Dec. 9, 1873, inclusive, less the amount
which had been paid to him.
Page 99 U. S. 13
The United States then appealed here.
Page 99 U. S. 15
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Compensation of the collector of internal revenue for the
district, as fixed by the Secretary of the Treasury in lieu of the
salary and commissions prescribed by law, is the annual sum of
$3,000. 15 Stat. 231.
Such collectors may appoint as many deputies as they may
Page 99 U. S. 16
think proper, to be by them compensated for their services.
Rev.Stat., sec. 3148.
Deputy collectors who, under the authority of law, perform the
duties of a collector in consequence of a vacancy in the office of
collector are entitled to receive the salary and commissions
allowed by law to such collector, or the allowance fixed by the
Secretary of the Treasury, as compensation to the collector, in
lieu of the salary and commissions prescribed by Congress.
Id., sec. 3150; 15 Stat. 252.
Charges of fraud were made against the collector of internal
revenue for the district, and he was suspended from his office by
the supervisor, who made due report of his action in the premises
to the Commissioner. Pursuant to the act of Congress, the Secretary
of the Treasury, on the 26th of September, 1873, gave the
plaintiff, who was the deputy collector of the district, the
following instructions: "You are hereby directed to perform the
duties of the office of internal revenue collector for the
district, vice Francis Widner, suspended," which was accompanied
with the statement that the order should take effect from the 23d
inst., and that it would continue in force until some person should
be designated or appointed to the office and duly qualified
according to law.
By the finding of the court, it also appears that the plaintiff
as such acting collector performed the duties of collector of the
district from the 23d of September, 1873, to and including nine
days in the month of December following. From the 23d of September
to the 15th of October, he was only paid the compensation allowed
to him as deputy collector, and from that time to the 30th of the
succeeding month he was paid the full compensation allowed to the
collector, and for the remainder of the time of his service as
collector he was paid nothing.
Appended to the findings of the court is their conclusion of
law, which is that the claimant is entitled to recover $163.05, in
conformity with the opinion of the court as published in the
transcript. Judgment was rendered in favor of the claimant for that
amount, and the United States appealed to this Court.
Appellants do not deny that the claimant performed the services
alleged in the petition, but they allege that he is only
Page 99 U. S. 17
entitled to compensation as internal revenue collector for the
period from October 15 to December 1, and that he has been fully
paid for his services as such collector during that whole period,
which proposition is sustained by the finding of the court below;
but they assign for error that there was no vacancy in the office
of collector for any other portion of the time during which the
claimant performed the duties of collector.
Attempt is made in argument to support that theory by the third
finding of the court, from which it appears that the suspended
collector died on the 16th of October next after he was suspended
from office, and that his successor was appointed on the first day
of the succeeding December, which is conceded; but the same finding
of the court shows that the new collector did not take possession
of the office until ten days later, from which it appears that the
finding of the court in respect to the first nine days of that
month is correct to a demonstration.
Suppose that is so, still it is insisted in behalf of the
appellants that there was no vacancy in the office of collector
during the lifetime of the suspended collector, and that the
judgment of the court below in allowing the claimant compensation
as collector during the period from the suspension of the collector
to his death is erroneous, which is the principal question in the
case presented for decision. He was paid for his services during
that period as deputy collector, but the court below held that he
was entitled to the compensation allowed by law to a collector, and
gave judgment in his favor for the difference, adding thereto a
collector's compensation for the nine days which elapsed after the
new collector was appointed before he took possession of the
office.
Two contingencies arise when the deputy collector may perform
the duties of such collector: 1. When the collector is sick, or is
temporarily unable to discharge the duties of the office, the
provision is that he may devolve the same upon one of his deputies,
but the collector and his sureties in that case remain responsible
for the official acts and defaults of the deputy. 2. In case of a
vacancy in the office of the collector, when the senior deputy
shall discharge all the duties of the
Page 99 U. S. 18
collector, unless the Secretary of the Treasury shall direct
that his duties shall be performed by some other one of the
deputies, the enactment being that the deputy who performs the duty
of the collector in consequence of a vacancy shall be entitled to
receive the salary and commissions allowed by law to such
collector. Rev.Stat., sec. 3149, 3150.
Supervisors at that period were empowered by notice in writing
to suspend any collector of internal revenue from duty for fraud,
or gross neglect of duty, or abuse of power, and it was made his
duty immediately to report his action to the Commissioner, with his
reasons therefor, in writing.
Id., sec. 3163. Fraud was
the accusation against the collector in this case, and it was for
fraud that he was suspended from the office of collector, and it
appears that the supervisor made due report in writing of his
action to the Commissioner.
Difficulties would attend the effort to define with precision
the relation which the suspended individual bore to the office of
collector of internal revenue after the order of suspension went
into practical effect, nor is it necessary, in the judgment of the
Court, to make any such attempt in the present case. Whatever the
legal relation of the individual may have been in the strict
technical sense, it is clear, we think, that for all practical
purposes, during the continuance of the order of suspension, the
office was vacant and without any incumbent to discharge the duties
which the law requires to be performed by the collector of the
internal revenue. Plainly it was not a case of sickness or
temporary disability, and consequently the duties were not devolved
upon the deputy as in that case made and provided.
Prompt report in writing was made by the supervisor to the
Commissioner, and the finding of the court below shows that he
immediately dispatched a telegram to the agent of the Treasury
Department to designate the claimant as acting collector from that
date, and to put him in possession of the office. Exactly the same
view of the subject was taken by the Secretary of the Treasury, as
appears by his communication to the claimant, in which he said,
"You are hereby directed to perform the duties of the office of
collector of internal revenue,
vice Francis Widner,
suspended, and to continue in office until some
Page 99 U. S. 19
person shall have been designated or appointed to the office and
duly qualified according to law."
Nothing can be plainer in legal decision than the proposition
that unless the Secretary of the Treasury assumed that a vacancy
existed in the office, he could not and would not have given the
directions which are contained in that communication.
Under the Tenure of Office Act the President had the power at
that time, which was during the recess of the Senate, to suspend
the collector until the next session of the Senate, and the act of
the Secretary, the head of the Treasury Department, is presumed to
be the act of the President.
Wilcox v.
Jackson, 13 Pet. 498.
Some support to the opposite theory, it is supposed, may be
derived from the last clause of the first section of the original
act regulating the compensation to deputy collectors in such cases,
but the Court here is entirely of a different opinion. By that
clause it is provided that no such payment shall in any case be
made where the collector has received or is entitled to receive
compensation for services rendered during the same period of time.
13 Stat. 282.
Grave doubts are entertained whether this provision can be
construed to give any support to the theory of the defendants, that
the collector is entitled to compensation during the same period of
time, as he rendered no services, and inasmuch as he was suspended
for fraud, it is difficult to see what claim he can have for the
salary attached to the office during the period of his suspension,
when the duties were performed by the deputy collector. Even if the
original provision could be interpreted as supposed, still the
better opinion is that it is not in force. It was left out of the
act of Congress passed the next year to define the true intent and
meaning of the provision, and is not contained in the Revised
Statutes. 16
id. 174; Rev.Stat., sec. 3150.
Suffice it to say that the Court, in view of the whole case, is
of the opinion that the claimant is entitled to receive the salary
and commissions allowed by law to the collector of internal revenue
during the period that he performed those duties under the
direction of the Secretary of the Treasury, as found by the
Page 99 U. S. 20
court below, and that the suspension by the supervisor of
internal revenue, and the action of the Secretary of the Treasury
directing him to continue in the office until a successor to the
suspended officer was appointed and qualified, created such a
vacancy, within the meaning of the act of Congress, for all
practical purposes in the administration of the duties of the
office as entitles the claimant to that compensation. Assume that
to be so and it follows that there is no error in the record.
Judgment affirmed.
