
    [Philadelphia,
    January 17, 1828.]
    The COMMONWEALTH against GENTHER.
    IN ERROR.
    The inspector of beef is entitled to the fee of a shilling for each cask repacked, whether in the course of his ordinary duties or otherwise.
    But a charge for coopering is allowed only where the cask was originally defective, not for merely replacing the head.
    
      It seems, an officer cannot withhold his services till he receives his fee: nor divide an act of duty into several parts so as to make separate charges of less than forty shillings in order to preclude the right of appeal.
    Indictment for misdemeanor lies against an inspector of provisions for refusing to perform his duty.
    The defendant was inspector of salt provisions for the city and port of Philadelphia, and was charged in an indictment for misdemeanor, in various counts.
    The 1st count was, refusing to inspect and brand eighteen barrels of beef for Charles Pray, having been previously tendered his lawful fees of one dollar and forty-four cents. •
    2d. Same charge, without stating the amount tendered; but,generally, that a'tender of lawful fees was made."
    ,3d. Refusing to brand, and tender alleged of one dollar and forty-four cents.
    4th. Same charge, stating the tender generally of lawful fees.
    5th. and 6th. Refusing to inspect and refusing to brand.
    
    7th. Refusing to brand- and inspect forty-two barrels, and three dollars and thirty-six cents tendered.
    8th. Same charge, and no amount tendered.
    9th. Same charge, without tender.
    10th. Refusing to brand forty-two barrels, and three dollars and thirty-six cents tendered.
    11th. Same charge, and no amount tendered.
    12th. Same charge, and no tender.
    13th. Was called on to brand, &c., forty-two barrels, and did so in part, but would not complete the examination, inspection, and branding. ■
    On the trial, Charles Pray, the. prosecutor, swore that in December, 1826, he sent for the defendant to come and inspect forty-two barrels of beef, he being a victualler, and the defendant the inspector. The defendant’s deputy came, with his assistant, and opened ten out of the forty-twó barrels:, their usual practice was to open one in ten. They said they were fully satisfied, and that all it wanted was the Philadelphia brand, -provided witness would pay them for it. They made out a bill of five dollars and twenty-five cents for twenty-four,barrels, to keep the matter within the forty shillings law. Witness told them he wanted the forty-two barrels done, and would pay for the whole directly. The deputy s'aid his instruction was to go no further, and they would give witness the forty shillings law; At that time they commenced branding the twenty-four barrels, and the defendant, Genther, came in, eighteen of the forty-two barrels being unbranded. The deputy said, Pray will not pay us this bill for the twenty-four barrels. Witness said he would pay if they would finish the job, and offered the money to Genther, six dollars in notes, to which he made no objection. He refused, and said unless witness paid the first bill he would go no further; and' they went away.- Two months ago witness sold the beef at a loss. He afterwards asked the defendant what was his fee: he-said eight cents a barrel. .Witness asked how much for forty-two barrels: he said three dollars and thirty-six cents. ‘ Witness tendered it in silver, and asked him to finish the job. . He said he would not until he paid the repacking and coopering on the first,- being five dollars and twenty-five cents. Witness told-him he had his remedy for that, and asked him what he would charge for the remainder: he said one dollar and forty-four cents. He tendered it, but he said he would not brand them unless he paid the first. Witness’s intention was all along to pay, and prosecute for the penalty. The bill he tendered was for repacking and coopering. On former occasions he had refused to pay such a charge. He agreed to enter into an amicable action, to have the point determined by the-Supreme Court. He refused, and said he would give witness the forty shillings law.
    , The defendant’s witnesses did not contradict the material facts sworn to. One of them stated that Pray asked the defendant., if he would do the work, and he said if he would pay that bill he would go on; otherwise not. Pray said go and do the work and then I will pay you. - ' -
    His Honour charged the jury, that the defendant had taken three grounds of defence; namely, that the subject matter was-not indictable; that the defendant was entitled to the fees demanded; and, that he was not bound to perform his duties without tender of the fees.
    •The first ground entirely fails. The second was the main point; but it would be unnecessary to express- an opinion on it here, as the defendant had not a right to insist on payment of fees before they were earned: certainly not to split up one job into several, with a view to create separate demands. On this ground the case is clearly against him. But the defendant was not entitled to the fees charged.
    The jury found a verdict of guilty, and the defendant moved for a new trial.
    
      Goodwin and Mahany, in support of the motion.
    
      Brewster and J. R. Ingersoll, contra.
    
   The opinion of the court was delivered by

Gibson, C. J,

In one respeet I am satisfied that the opinion I entertained at the trial is erroneous. In the act of 1727, which is in pari materia, the several parts of the business of inspecting, • (which were compensated collectively, but for one of which a fee is now given specifically,) are enumerated and described so as to include repacking, which is one of the very duties for which extra compensation is claimed here. Hence it seemed that this service was entitled to be separately compensated only where it should not constitute a part of the ordinary business of inspection: as where the article or the casks should be defective, and repacking should be incidental to the process of rendering the whole merchantable; But it escaped me that for what was called inspecting, very neárly the same fees were allowed then, as are allowed for inspecting and other services which are distinguished from inspecting, now, and compensated separately. The reason of the alteration is obvious. In the origin of the system, it was supposed that each cask would have to be opened; so that the amount of service actually rendered, being in all cases determinable by the number of the casks, would be not only conveniently, but justly compensated by allowing the same fee for each. But, when experience had shown actual inspection to be necessary only in respect of an inconsiderable number, it was found to be manifestly improper to compensate services which were never rendered, by allowing a fee for repacking in respect of casks which were only branded. Hence a fee for inspecting was given for each, as each was to be branded; and compensation for repacking was allowed only where it should be earned by actual performance of the service. The officer is therefore entitled to a shilling for each cask repacked, whether in the course of his ordinary duties or otherwise.

But it is equally clear that replacing the head and the hoops, and securing them with nails, is a part of the business of repacking; and that a charge for coopering can be allowed only where the-cask, having been found defective, has been rendered otherwise by services which none but a cooper could render. To replace the head does not require professional skill'. The.inspector or any one else can do it as well as a cooper. But-what puts the intention' of the legislature beyond a doubt, is the leaving of the amount of compensation to be determined by the extent of the services. The trouble of replacing the head, being in all cases the same, Is, more than any other duty appertaining to the office, susceptible of just compensation by a specific fee; and, had it been intended to be made the subject of a separate charge, it is reasonable to infer that a specific fee would have been provided for it; while, on the other hand, an indefinite compensation is referrible only to services whose extent must necessarily depend on the circumstances of the particular case.

How does this affect the propriety of the verdict? The facts are not disputed; and, unfortunately for the defendant, these put the question of criminality beyond dispute. Granting the propriety of the fee for repacking, yet he insisted on other charges that are altogether inadmissible. And, even were th.is otherwise, still I am not willing to admit the right of an officer to withhold his services till he shall have received his fee; nor that he can, as was attempted here, divide'an act of duty into several parts so as to make separate charges of less than forty shillings each, and thus elude the right of an appeal in an. action before a justice of the peace. He might, with equal reason, make a separate charge for each cask, and subject those who employ him to ten times the amount in costs incurred in vexatious lawsuits,- and thus convert his office, which was Created for public convenience, into an instrument of public annoyance. For these reasons, we,are of opinion the defendant is guilty of the misdemeanor charged in the indictment. ' '

.Rule discharged.  