ANDREWS v. UNITED STATES, 1 F. Cas. 904

STORY, Circuit Justice. This cause having-been submitted to the court without argument, I am not sure, that I fully comprehend all the grounds intended to be relied upon by-counsel, either in objection to, or in support of, the various claims stated in the bill of exceptions.

If any of these claims, although not strictly of a legal nature, are yet ex aequo et bono due to the defendant for extra services rendered, or moneys expended on. account of, and for the benefit of the United States, it is very clear, that the defendant is entitled to an allowance and compensation therefor, upon the footing of a quantum meruit under the act of [March 3] 1797, c. 74, I 3, [2 Bioren & D. Laws, 594; 1 Story’s Laws, 464; 1 Stat. 512, c. 20.] This was fully settled by the supreme court in U. S. v. Wilkins, 6 Wheat [19 U.

S.] 135, 143, 144, and has been repeatedly recognized in subsequent cases, and especially in the case of Gratiot v. U. S., 15 Pet [40 U. S.] 336, 370, 371.

But where duties are required to be performed by a collector or other public officer, strictly official, and falling within the ordinary range thereof, there, although they may be conferred by laws subsequently passed, after he came into office, or may be cumulative upon the original duties of the officer, he must be deemed to take and hold the office cum onere; and however inadequate the compensation may be for his labor and services, he must content himself with the salary and fees allowed by law, and look to the bounty of congress for any additional reward.

Tried by these tests, let us now proceed to consider the various claims of the defendant, stated in the bill of exceptions. The first is for the ascertainment and payment by drafts on the collector at Boston, of the bounties due to fishermen, under the act of [July 29] 1813, c. 34, [4 Bioren & D. Laws, 582; 2 Story’s Laws, 1350; 3 Stat. 49, c. 35,] and other prior repealed acts, and subsequent acts still in force, on the same subject.

I do not, from the manner in which the ruling of the district judge is stated in the exception, precisely understand whether the learned judge meant to say, that if these bounties had been paid by the defendant, out of moneys of the United States, from the collection of duties in his district, the commissions would have been allowable for this particular service; but that, having been made by drafts drawn by‘him upon the collector at Boston, they were not allowable on the accounts of those drafts; or whether the learned judge meant only to say, that, as by the act of [March 2] 1799, c. 129, § 2, [3 Bioren & D.

Laws, 237; 1 Story’s Laws, 665; 1 Stat 704, c. 23,] for the compensation of officers of the customs, three per cent, commissions were allowed to the collector of customs of Ipswich, on all moneys received by him on account of duties on goods imported into his district, and as no other cases were provided for, therefore, no commissions were payable on account of the payment of bounties to fishermen.

If the former was intended to be laid down by the learned judge as law, I should not be prepared to adopt it; for, in my judgment, a payment by the drafts of the defendant on the collector at Boston, would be just as much a payment to entitle the defendant to the three per cent, commissions, in the sense of the law, as if he had paid the bounties out of any moneys in his own hands, under his official collections. The question, then, would be, whether the three per cent, is provided for by law in either case for the payment of bounties.

I have not been able to find any provision for any ■ compensation of this sort, in any act of congress; and if there be any, it has escaped my researches. If any exists, I desire to have it pointed out at the bar, before any final judgment is rendered in this case.

But if the other be the true construction of the ruling of the learned judge, then, it seems to me perfectly correct; because, by the act of 1813, c. 34, § 5, as well as by the prior and subsequent acts upon the same subject, it is made a part of the ordinary official duties of the collector of the customs, to ascertain and pay these bounties; and then (as has been already suggested) he must rely upon the salary and fees annexed by law to the office, unless some additional compensation is allowed for this service, which, in a district like that of Ipswich, as will appear from the facts stated in the record, is one of no small labor and responsibility, compared with the other ordinary duties of the colleetorship.

In such a case, however, the appeal lies to the bounty of congress, and not to a judicial tribunal. The next claim is for the compensation paid to a deputy collector, by the defendant. The act of 1799, c. 128, § 22, [3 Bioren & D. Laws. 457; 1 Story’s Laws, 592; 1 Stat. c. 22,] authorized the collector, in cases of occasional and necessary absence, or of sickness, and not otherwise, to exercise and perform their functions by a deputy.

The act of [March 3] 1817, c. 282, § 7, [3 Story’s Laws, 650; 3 Stat. 397, c. 109.] authorized collectors, with the approbation of the secretary of the treasury, to employ such deputy collectors as they should deem necessary; and this provision was perpetuated by the act of [May 6] 1822, c. 56, § 4, [3 Stat. 681.] Another act, passed at the same session.— act of [May 7] 1822, c. 107, § 15, [3 Stat. 693,] —authorized the secretary of the treasury to limit and fix the compensation (among other officers of the customs) of each deputy collector, limiting it not to exceed, except for certain enumerated ports, one thousand dollars per annum, and for those ports, not to exceed fifteen hundred dollars, “for any services he may perform for the United States in any office or capacity.” I am not aware of any other act, which expressly provides for a distinct compensation to be paid by the United States to such deputy collectors.

Whether the secretary of the treasury has ever sanctioned any allowance to any deputy for the port and district of Ipswich, I do not know; and there is nothing in the record, which leads to any conclusion on the subject. But, if he has sanctioned the appointment of a deputy for that port and district, and the business required it, it would •seem reasonable, that some compensation should be paid by the United States ior his services.

Perhaps the case of such a deputy, if not otherwise compensated, may have been treated as embraced within the general provision in the act of 1799, c. 129, § 2, which authorizes the allowance of two dollars a ■day to every other person, than a regular inspector, whom the collector may find it necessary and expedient to employ as occasional inspector, or in any other way, in aid of the revenue.

In the act of 7th of July, 1838, c. 169, § 3, [5 Stat. 264,] a limitation is put upon the allowance of compensation to deputy collectors; and the like provision occurs in the subsequent act of the 3d of March, 1841, c. 16, [35,] § 2, [5 Stat. 431.] However, as no evidence is contained in the record upon this particular point, it is impracticable for this court, upon a writ of ■error, to look beyond the mere ruling of the court below, upon the point of law; and the burthen of proof, to establish an error in the ruling, is upon the plaintiff in error.

In the next place, as to the allowance, ■claimed by the defendant for performing the •duties of surveyor; it appears to me, that he is not entitled to any compensation therefor, upon the principles already stated; because, by the act of 1799, c. 128, § 21, when there is no surveyor assigned by law for a particular port, the collector of the customs is required to perform the duties of a surveyor, as far as may be.

The last objection, and that upon which I have felt the most difficulty, is the ruling ■of the learned judge upon the point, that the defendant, Andrews, requested the judge to instruct the jury, that he was entitled to compensation for office-rent, fuel, clerk-hire and stationery, which he had paid and expended in his office, as collector, of which he had presented a yearly account to the treasury department, and no part thereof had been allowed to him; but, on the contrary, had been disallowed.

But the judge refused so to instruct the jury; but instructed them, that Andrews was not, by law, entitled to any allowance for the said expenditures. No particular ground is stated in the record for this instruction given by the learned judge; and, therefore, if maintainable at all, it must be upon the general ground, that no allowances are by law to be made for such expenditures; or, if allowable, that they were not in due and proper season presented' to the treasury department for allowance.

It appears to me very clear, that these expenditures are properly to be deemed incidents to the office of the collector, and, therefore, that they ought to be allowed as proper charges against the United States. The act of 1799, c. 129, § 2, manifestly contemplates the aEowance of them.

It provides, that, “it shaH be the duty of the respective coUectors, &c., to keep accurate accounts of aU fees and special emoluments received by them; also, of all expenditures, particularizing the expenditures for rent, fuel, stationery, and clerk-hire; and to transmit annually, within forty days after the last of December, an account, verified on oath or affirmation, to the comptroUer of the treasury, &c.; and if any collector, &c., shall omit or neglect to keep an account as aforesaid, or to transmit the same, verified as aforesaid, he shall forfeit and pay a sum not exceeding five hundred doHars, for the use of the United States.” It does not appear, from the bill of exceptions, whether Andrews did, in fact, keep such an account, or transmit it yearly to the department, as required by law.

All that the bill of exceptions states, is, “that he had presented a yearly account of such expenditures, to the treasury department, and that no part of the same had been aUowed to him,” &c. Now, it may be, that this language refers only to the final claim made and disallowed at the treasury department, which is required by the act of 1797, c. 74, § 4, to entitle the party to an equitable set-off, in the present suit. If so, that is not such an account as the act of 1799, c. 129, § 2, requires.

It may be, that it was intended to refer to the keeping and transmission of the accounts, as required by the'latter act. The language is somewhat equivocal and uncertain. But construing it most unfavorably for Andrews, and that he did omit or neglect to keep and transmit such yearly account every year, as this latter act requires, stiU I think, that he did not forfeit his right to be reimbursed the amount of his expenditures for these purposes; and, at most, he incurred only the statute penalty, not exceeding five hundred dollars, as an indemnity to the United States, for any loss sustained thereby.

Suppose these expenditures for one year had amounted to $10,000, as in some districts they might, and the accounts were not transmitted until more than forty days had elapsed after the last of December of that year: it would hardly be contended, that the whole claim was extinguished. And yet, such must be the result, if we construe the statute, by imposing a penalty, to have extinguished the claim, as soon as the penalty was incurred. I think that, not a natural, or necessary, or reasonable construction of the statute.

It is not said, that the claim shall, by the omission or neglect, be forfeited or extinguished; and for the court so to interpret the statute, would be to enlarge the words, and the intent, and to create penalties beyond what the statute has declared. No rule in the

interpretation of penal statutes has ever been carried to such an extent. On the contrary, the general rule universally recognized, is that penal statutes are to be construed strictly. They are never extended by implication^ The penalty, itself, is not a fixed penalty. It is not to exceed five hundred dollars. It may be only one dollar. It appears to me, therefore, that the instruction of the learned judge is not correct in point of law; and lias proceeded upon a ground, which the statute does not justify; and which the principles, established in other cases, as to equitable allowances, disclaim.

My opinion, therefore, is, that the judgment of the district court must be reversed; and a venire facias de novo be awarded for a new trial of the whole cause at the bar of this court. Judgment reversed.