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DONOVAN v. UNITED STATES.

October 1, 1874

DONOVAN
v.
UNITED STATES.



ERROR to the Circuit Court for the Eastern District of Missouri. Donovan was surveyor of the port of St. Louis, 'performing the duties of collector,' from January, 1860, to May, 1861. In the settlement of his accounts with the government he retained $6000 per year as his official compensation, claiming that sum as his legal allowance. The Treasury Department was willing to allow him $5000, but no more. And to get the $1000 in dispute the United States sued him on his official bond. The question was: Are surveyors of ports, 'performing the duties of collectors,' under the act of 1831, entitled to the compensation of $6000 per year? The issue presented turned upon the right construction of certain statutes. In the early history of the custom-house laws the collectors, naval officers, and surveyors received their compensation from fees earned by them, which were provided for by the various statutes on the subject. As the business of the country increased the aggregate of these fees came to be so large that Congress saw fit to limit the compensation of these various officers, as derived from those fees. The first of these limitations, now in force, was that of the act of May 7th, 1822. This law was a limitation upon existing rights. Without it the officers named would, of course, have received compensation much larger than the sums named. The statutes bearing on the case were thus: By an act of May 7th, 1822, it was thus enacted:*fn1 'SECTION 9. Whenever the emoluments of any collector of customs of either of the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, or New Orleans, shall exceed $4000, or the emoluments of any naval officer of either of said ports shall exceed $3000, or the emoluments of any surveyor of either of said ports shall exceed $2500 in any one year, after deducting the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the treasury for the use of the United States. 'SECTION 10. Whenever the emoluments of any other collectors of the customs shall exceed $3000, or the emoluments of any other naval officer shall exceed $2500, or the emoluments of any other surveyor shall exceed $2000 in any one year, after deducting therefrom the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the treasury for the use of the United States.' 'SECTION 11. The preceding provisions shall not extend to fines, penalties, or forfeitures, or to the distribution thereof.' At the time of this enactment, St. Louis, of which Donovan was the surveyor, & c., was not 'a port.' By an act of March 2d, 1831, 'allowing the duties on foreign merchandise imported into Pittsburg, Wheeling, Cincinnati, Louisville, St. Louis, Nashville, and Natchez to be secured and paid at those places,' and making St. Louis a port, a change is in some respects made in former laws. This act makes St. Louis and other places ports, which they were not before. By this law, as will be seen by reference to it, when any merchant in St. Louis imports goods he deposits with the surveyor a schedule of such goods, with an estimate of their cost. Upon this the surveyor makes an estimate of the amount of duties accruing, and the importer gives bond, approved by the surveyor, to pay these duties. The surveyor then sends to the collector at New Orleans a copy of this bond and schedule. The importer then enters the goods at New Orleans, and the collector then certifies to the surveyor at St. Louis the amount of duties, and delivers the goods to the importer to be shipped to St. Louis. Upon reaching their destination, the surveyor having informed himself of the correctness of the entire proceeding, gives a permit for the landing of the goods. These duties are, to some extent, in the nature of those performed in other ports by a collector. The act enacts:*fn2 'SECTION 5. That where surveyors are not already appointed in any of the places mentioned, a suitable person shall be appointed for such places; and on all such surveyors, whether appointed or to be appointed, shall devolve the duties prescribed by this act, in addition to the customary duties performed by that officer in other places; and the surveyor at each of said places shall . . . receive, in addition to his customary fees, an annual salary of $350.' This act first anywhere made surveyors perform the duties in any respect like those of collectors. Next came an act of March 3d, 1841, thus:*fn3 'SECTION 5. In addition to the account now required to be rendered by every collector of customs, naval officer, and surveyor of ports, every such collector, naval officer, and surveyor shall, each and every year hereafter, render a quarter yearly account under oath to the Secretary of the Treasury of all sums of money by each of them respectively received or collected for fines, penalties, or forfeitures; . . . or for rent and storage of goods, wares, or merchandise, which may be stored in the public storehouses, and for which rent is paid beyond the rents paid by the collector or other such officer; and if from such accounting it shall appear that the money received in any one year by any collector, naval officer, or surveyor, on account and for rents and storage a oresaid, and for fees and emoluments, shall in the aggregate exceed the sum of $2000, such excess shall be paid by the said collector, naval officer, or surveyor, as the case may be, into the treasury of the United States; and no such collector shall, on any pretence whatever, hereafter receive, hold, or retain for himself, in the aggregate, more than $6000 per year, including all commissions for duties and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such naval officer on any pretence whatever, in the aggregate, receive, hold, or retain for himself, hereafter, more than $5000 per year, including all commissions on duties, and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such surveyor, in the aggregate, receive, hold, or retain for himself, hereafter, more than $4500 per year, including all commissions, or fees, or emoluments, or any other commissions or salaries which are now allowed and limited by law.' Then followed an act of March 3d, 1857, thus:*fn4 'SECTION 8. The provisions of the act approved the 3d day of March, 1841, which established and limited the compensation of collectors of customs, shall be construed to apply to surveyors performing or having performed the duties of collectors of the customs, who shall be entitled to the same compensation as is allowed to collectors for like services in the settlement of their accounts.' It was admitted as part of the case that after the passage of it all surveyors doing duty as collectors at the port of St. Louis have claimed $6000 as the maximum of their compensation, from all sources under the law. Finally came an act of June 8th, 1872, in terms nearly identical with the one just quoted:*fn5 'The provisions of the fifth section of the act approved March 3d, 1841, which established and limited the compensation of collectors of customs, shall be amended and shall be construed to apply to all surveyors of customs ports performing or having performed the duties of collectors of customs, who shall be entitled to receive the same compensation as is allowed to collectors by said act of March 3d, 1841, for like services in the settlement of their accounts with the treasury: Provided that the fees, commissions, and emoluments prescribed by law, and collected by them, shall amount to such maximum allowance.' Over all came the Revised Statutes of the United States, whose purpose was not to make any new law, but to embody existing statutes. These enact: 'SECTION 2688. No collector or surveyor performing the duties of collector shall, on any pretence whatsoever, receive, hold, or retain for himself, in the aggregate, more than $6000 per annum.' The question on the whole case–fact and statutes–thus was, whether surveyors now, A.D. 1860-61, doing collectors' duty, were to be paid with reference to the classes into which, for the purposes of salary, collectors, surveyors, and naval officers seemed to be divided by the early act of 1822; to wit: 1st. The class doing duty at Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, who received the higher salaries. 2d. All others who received a lower one. The government asserted that the system of classes, established by this act, extended to surveyors doing collectors' duty, though such a class of surveyors did not then exist, but was first constituted by the act of 1831. Donovan, the surveyor at St. Louis doing collectors' duty, denied this, asserting that all surveyors doing collectors' duty were entitled to the pay of the highest class of collectors; in other words, though he admitted that if he had been collector at St. Louis he could have had but $5000, he asserted that as surveyor, doing in addition a collector's duty, he was entitled, under the acts of 1857 and 1872, to $6000. The ground of his position was that the act of 1822 applied to the two classes of ports existing at that date; that is to say, to ports which had both collectors and surveyors, each performing their respective duties, though in some ports enumerated, the duties of both were greater than in other ports not enumerated; that by the law of 1831, a third class of ports was created; that is to say, ports where the surveyor performed all the duties which in the two former classes the surveyor performed, and performed, in addition, the duties which in those ports were performed by the collector; ports, in other words, where double duty or more than double duty was performed by the surveyor; that this double duty entitled the party to an augmented compensation, and that this compensation was meant to be given by the act of 1857, and had always been claimed under it by surveyors doing collectors' duty; that the treasury making some difficulty, the act of 1872 had been passed making the right more clear, and that finally the Revised Statutes had put a legislative interpretation on the matter which removed all doubt, if doubt existed.

The opinion of the court was delivered by: The Circuit Court (Dillon, J.) thus said:

'The provision of the act of June 8th, 1872-under which compensation is claimed by Donovan, upon the basis of $6000 per year instead of $5000–is that the compensation of such an officer shall be the same as that given to collectors by the fifth section of the act of March 3d, 1841, not to exceed, however, the maximum amount therein allowed. In 1859, in the case of United States v. Walker,*fn6 the Supreme Court of the United States construed the above-mentioned act of 1841, in connection with the previous acts in pari materia, and decided that as respects compensation there were two classes of collectors, viz., 1st. Collectors of the seven ports enumerated in the ninth section of the act of May 7th, 1822, whose total compensation from all sources might equal, but could not exceed, $6000 in a year; and 2d, all other collectors, i. e., collectors of the non-enumerated ports, whose aggregate compensation could not exceed the sum of $5000 in any one year. I am unable to discover in the act of 1872 satisfactory evidence that it was thereby intended to abrogate, in favor of surveyors performing the duties of collectors, this established distinction between what is termed the enumerated and unenumerated ports.

'The act of 1841, as authoritatively construed, limited the aggregate compensation of a collector of one of the enumerated ports at $6000, and of a collector of any other port at $5000; but, while it did provide for the compensation of surveyor, it did not provide a specific compensation for a surveyor who, under the act of 1831, performed the duties of a collector of customs.

'This was sought to be remedied by the act of March 3d, 1857, but as its phraseology was not clear, and as complaints were made that it was illiberally restricted by the accounting officers of the Treasury Department to the surveyors of the principal ports, under the ninth section of the act of 1822,*fn7 the act of 1872, upon which the plaintiffs in error rely, was passed.

'This last-named act places 'all surveyors of customs ports performing the duties of collectors' upon the footing, as respects compensation, of collectors under the act of March 3d, 1841, for like services.

'St. Louis being a non-enumerated port, the maximum allowance to a collector can, in no event, exceed $5000, and this sum is, in my judgment, the limit of compensation to which the surveyor of the port of St. Louis is entitled.'

Judgment was accordingly given for the United States, and the other side brought the case here.

Messrs. E. F. Noyes and D. I. Wright, for the plaintiff in error:

The act of May 7th, 1822, has given rise to the phrases, 'enumerated' ports and 'non-enumerated' ports. The places named in the ninth section ar called 'enumerated' ports, while all others are called 'non-enumerated' ports. It is this distinction, erroneously applied, as we conceive it to have been, that has occasioned all the difficulty in this case.

No distinction of this kind is in terms created in the statute itself; that is to say, the phrase 'enumerated,' or 'non-enumerated,' is not made use of as applicable to ports themselves, as though it was the intention of Congress to create such a classification, as that it should run through all time forever thereafter. The word 'ports' is used in the ninth section. It is not used in the tenth section. The tenth section simply speaks of various classes of officers by name: collectors, naval officers, and surveyors.

The limitation in the tenth section, as applied to collectors, for instance, applies to such collectors as were performing the duties known to the law at that time, and to such other collectors and surveyors as subsequently performed those same duties. It certainly could not be meant to apply to a new class of officers, then unknown, who were afterward created by law to do other things than collectors and surveyors then did, although they might be called by the name, collectors and surveyors.

This law was meant to cover all ports in existence at the date of its passage, May 7th, 1822. But why should it be construed to apply to ports not then in existence, but which were afterward created, with new duties, and new and distinct compensation?

In Hall v. State,*fn8 Ranney, J., referring to a case in this court,*fn9 says:

'A well-settled rule of construction here comes to our aid, which is, that 'a statute referring to, or affecting persons, places, or things, is limited in its operation to persons, places, or things as they existed at the time the statute was passed."

The enacting power knew what ports existed at the date of the passage of the act of 1822. It knew what the duties performed by the then officers were; but the Congress of 1822 could not be supposed to know what might take place in the distant future. The affairs of the country might so change as that new ports would be required. The duties of these new ports might be more onerous than those of any mentioned in the ninth section. Would it, then, be fair to limit the collectors of such new ports to a compensation inferior to that of those who do less work?

The next act is that of March 2d, 1831, which makes St. Louis for the first time a port, and imposes upon its surveyor what in fact were the duties, resembling in some respects those of a collector.

Thus, by this act, duties were imposed upon the surveyor of the port of St. Louis which had never been imposed before. Up to this time St. Louis was not a port at all. The surveyor of that place, if there was one appointed, discharged his duties, whatever they were, for which he received certain fees for each thing performed.

It is evident that it would not be just for Congress to impose upon a man new duties without paying him therefor.

Therefore it is that, in the fifth section of the act of 1831, Congress provides that for these additional services the surveyor so performing the duties of collector shall have a salary of $350, in addition to his customary fees.

If before 1831 the surveyor at St. Louis received $2000, after 1831 he would be entitled to $2350, which shows that the limitation of $2000, in the act of 1822, as to surveyors, does not apply to the surveyors of the act of 1831, who performed the duties of collectors as well.

The next law is that of March 3d, 1841. Prior to this law collectors had rented warehouses in which they stored goods as they were imported. They charged the importers storage. Soon the storage charged far exceeded the rent paid for warehouses, and the collectors received and kept large sums of money in the transaction. To prevent this abuse, the law of 1841 undertook to say that collectors should get no more than $2000 profi out of the warehouse business.

This act is also an act of limitation. It limits the amount which collectors may have from rent and storage to $2000. It further limits the maximum compensation of those collectors to $6000, as this court has said in United States v. Walker.*fn10

The act of March 3d, 1857, enacts that the provisions of the fifth section of the act of 1841 'shall apply to surveyors performing, or having performed, the duties of collectors of the customs, who shall be entitled to the same compensation as is allowed to ...


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