
    FOLGER’S CASE.
    Charles J. Folger v. The United States.
    
      On the Proofs.
    
    An assistant treasurer, who receives and sells internal-revenue stamps hy direction of the Secretary of the Treasury, under the iirovisions of section 170 of the Act of June 30, 1864 (13 Stat. L., 297,) is not entitled to the allowance of a commission or extra compensation for such service.
    
      The Reporters’ statement of the case:
    On tbe 2d July, 1866, the Secretary of the Treasury addressed to the then assistant treasurer at New York the following letter:
    “Treasury Department,
    “ Washington, July 2,1866.
    “ Sir : The Commissioner of Internal Revenue has referred to me your recent letter to him in relation to the distribution of revenue-stamps in the city of New York. I am aware that the cares and responsibilities of your position are burdensome, and I should not think of increasing- them, were it not for the seeming necessity of so doing. The adhesive revenue-stamps are all printed in Philadelphia, and it is deemed imprudent to multiply the places of them production. It is indispensable, however, that every facility shall be given by the government for their purchase and distribution. The consumption of stamps in New York alone is very large, while the amount which is naturally distributed ñ-om that city is no small part of the supply for the whole country. It seems to me very advisable, therefore, because of them great value, that they should be kept as other-light property of the government is kept, in the possession of the government itself until actual sale. I am aware that the distribution will require a room set apart, perhaps, exclusively for that purpose and some additional clerical force, but reasonable prudence and a proper regard for the public convenience, as I have suggested, constrain me to ask your careful reconsideration of the subject. It may not be improper for me to add that the assistant treasurer at San Francisco is employed in the distribution of stamps, and that I am disposed to ask the same sendee of the several other assistant- treasurers in the different parts of the country.
    “Yery respectfully,
    “EL McCTJLLOCH,
    '■ u Secretary of the Treasury.
    
    “Hon. H. H. Yaw Dyck,
    
      uAssistcmt Treasurer, Tíew YorTc City.”
    
    Subsequently the claimant was appointed assistant treasurer at New York. He entered upon the duties of the office on the 16th November, 1869, and continued to perform them until the 1st July, 1870. During all that time the general instructions •contained in the above letter were in force, and also the following regulations, prescribed by the Commissioner of Internal Bevenue:
    
      Regulations for the purchase of stamps.
    
    
      a Bevenue-stamps may be ordered from this office in amounts of not less than 50 dollars. Purchasers desiring smaller amounts should make application to a'collector of internal revenue, or deputy collector, assessor, assistant treasurer of the United States, postmaster, or other -dealer in stamps. Payments to, this office should be made in the form of.a duplicate •certificate of a United States assistant treasurer or designated ■depository of a deposit made on account of stamps. Bevenue-stamps may likewise be abtained of any national bank which is a designated depository at the' rates of commission at which they are furnished from this office. They will also be deposited with the assistant treasurers and designated depositaries other than national banks.
    • “ General stamps.
    
    
      “ The following commission, payable in stamps, will be allowed in purchases of common stamps: On purchases of $50 or more, 2 per centum; of $100.00 or more, 3' per centum; of $500.00 or more, 4 per centum; of $1,000.00 of more, 5 per centum. Where the facilities for procuring and distributing stamps are deemed insufficient, the Commissioner of. Internal Bevenue will,, on application, furuish to a collector or assessor, assistant treasurer, designated depository, or postmaster of the United States a suitable quantity for the supply of the proper district, and will .allow the highest rate of commissions allowed by law to any purchaser of common stamps for cash. Such stamps will be furnished under section 170 of the excise law, and the officer applying to be furnished with such stamps will give bond, with three sufficient sureties, conditioned for the faithful return, whenever so required’, of all quantities or amounts undisposed of, and for the payment, monthly or otherwise, according to instructions, for all quantities and amounts sold or not reported as remaining on hand. No bond will be accepted for a less sum than 1500. * * *
    “Agents for the sale of stamps will make return under oath to this office, on form 55, on the first day of each month, of the amount of stamps sold during the preceding month, and of the amount actually on hand and unsold, in each case making separate statements of the amounts of proprietary and general stamps. * * * Orders may be made from time to time for such stamps as are desired, in no case to exceed three-fourths of the penal sum named in the bond. Every agent will be charged at this office with the stamps furnished him, and credited with the amount of each remittance for the sale of stamps and five per cent, commission on the same.”
    
      “Proprietary stamps. — Schedule 0.
    
    “Any proprietor of an article named in Schedule C may furnish a design for a stamp, which, if approved, -will be engraved by the government engravers at the cost of the proprietor. In such case the proprietor will be entitled to the commissions specified in the one hundred and sixty-first section of the Excise Law, viz, on amounts purchased at one time of not less than 50 nor more than 500 dollars, 5 per centum -, on amounts over 500 dollars, 10 per centum.”
    The claimant during his said term of office made no special application to be furnished with such stamps, and gave no bond, as required by said regulations, nor was he required to give-such bond. Stamps were, however, sent to him in large quantities by the Commissioner of Internal Bevenue. These stamps arrived in sealed packages, each containing stamps to the amount of the face value written on it, and also a further amount of stamps of the kind contained in the package equal to the commission allowed upon its sale at the above rates.
    The claimant on the first day of each month made return to the Commissioner showing the balance of stamps on hand from the preceding month, the amount received during the month, the amount and dates of certificates of deposit, the amounts and denominations of payments of commissions to pmchasers, and the balance of stamps on hand. The following copy of the statement for January, 1S70, shows the form of these returns:
    “IT. S. Teeastjey, N. Y., January 3,1870.
    “ Statement of int. revenue stamps sold during the month of December, 1809.
    Balance on hand from last account.. $181,757 51
    Stamps received. 510,340
    - $692,097 51
    Certificates of deposit Dec. 4. 68,849 90
    Certificates of deposit Dec. 11. 103,880
    Certificates of deposit Dec. 18 . 87,953 80
    Certificates of deposit Dec. 24 . 61,823 20
    Certificates of deposit Dec. 31 . 63,372
    - 383,878 90
    Payment of commissions at 5 per cent. 18,901 44
    Payment of commissions at 4 per cent. 102
    Payment of commissions at 10 per cent. 300
    Payment of commissions at 3 per cent. 9
    - 19,312 44
    Balance on hand._. 288,906 17
    $692,097 51
    “W. G. WHITE,
    
      “Acting Assistant Treasurer TJ. S.n
    
    The sales of common stamps by the claimant amounted to $3,469,477.24, which sum was paid into the Treasury by him in cash. On these sales he paid to the purchasers in stamps commissions amounting to $173,277.36. His .sales of proprietary stamps amounted to $28,914.52, which he paid into the Treasury. The commissions on these sales, amounting to $2,675.02, he paid in stamps to the purchasers. These sales were made and commissions paid in accordance with, general instructions and regulations, without objection on the part of the claimant and without personal benefit to him. At the close of his term of office he adjusted his accounts without setting up personal claim to commissions for his services, and his payments of commissions as aboye stated were allowed.
    This action is brought to recover 5 per cent, in cash on said sales of common stamps and 10 per cent, on said sales of proprietary stamps.
    
      Mr. Coleman for the claimant:
    1. The sale of internal-revenue stamps formed no part of the duty of the assistant treasurer at New York. (United States v. Cheeseman, 21 Int. Bev. Becord, 340; United States v. Butterfield, 7 Benedict, 412.)
    2. The claimant, in maiding the sales in question, acted as the agent of the Commissioner of Internal Bevenue, to whom the general duty of selling stamps was intrusted by law.
    3. Section 170 of the act-of June 30,1864 (13 Stat. L., 297), granted a commission as compensation for the services of the claimant in making the sales. It was mandatory upon the Commissioner of Internal Bevenue to allow to the claimant the highest rate of compensation allowed for actual sales and purchases of stamps under the provisions of section 161 of the same statute. Counsel referred to the statutes in support of this position and maintained that acts granting compensation to public officers are to be construed in favor of the officer if open to two constructions (Moore’s Case, 4 C. Cls. E., 139; United States v. Morse, 3 Story, 87), and that meritorious services should be compensated even without statutory authority. (United States v. MeDcmiel, 7 Peters, 1; United States v. Bifiley, 7 Peters, 18; United States v. Mllebroion, 7 Peters, 28; United States v. JDicJc-son, 15 Peters, 141.)
    4. The claimant’s commissions must be calculated on the gross amount or face value of all the stamps disposed of by him to piu-chasers.
    5. Appropriations have been made for the payment of these commissions, and, therefore, the claimant’s case does not come within the prohibition of sections 1762 to 1765 of the Bevised Statutes, as interpreted in Converse’s Case, 21 How., 463, and
    
      tlie claimant is entitled to take and receive tbe commissions to bis own use. (United States v. W7nfe,'Taney’s 0. Cl. Dec., 157; United States v. Shoemaker, 7 Wall., 341.)
    6. Tbe fact tbat tbe claimant did not ask for tbe compensation until after be bad given up tbc oflice- does not weaken or affect bis right to it. (7 Ben. Sv/p.; Child v.- Chappel, 9 N. Y., 246-257; Voorhees v. Bnrehard, 55 N. Y., 98-105.)
    
      Mr. Assistant Attorney-General Simons for tbe defendants:
    1. Tbe act of August 6, 1846 (9 Stat. L., 59), makes it tbe duty of an assistant treasurer to act as fiscal agent of tbe government and establishes a salary for the performance of such duty, and makes it a misdemeanor to charge or receive a commission or pay for official' service beyond tbe salary. Therefore, tbe claimant is not entitled to any part of tbe amount claimed. (Hoyt v. United States, 10 How., 141.) Tbe counsel cited and compared tbe several statutes on tbe subject, and maintained tbat tbe Secretaries of tbe Treasury, tbe Commissioners of Internal Revenue, and tbe assistant treasurers throughout tbe country had until tbe institution of this suit all concurred in tbe construction of tbe statute contended for by tbe govermnent.
    2. Tbe regulations allowed tbe commission in stamps on each transaction. .The transactions being all adjusted and closed as required by law (Rev. Stats., § 3622), they could not now be opened, nor cordd this court give a money judgment.
    3. In any event, judgment Could not be given for a greater amount than tbe difference between tbe amount actually allowed by tbe claimant to purchasers and. tbe maximum commission allowed by tbe regulations. ■ •
   Davis, J.,

delivered tbe opinion of tbe court:

Tbe claimant seeks to recover in this action tbe sum of $185,-296.68, or such other sum as the' court may find to be due him, as commissions upon sales of internal-revenue stamps made by him while assistant treasurer at New York, between tbe 16th November, 1869, and tbe 22d July,' 1870. He maintains, tha tbe is entitled to these commissions under tbe provisions of tbe act of June 30,1864, sections 161'and 1,70. (13 Stat. L., 294, 297.)

Tbe defendants contend tbat tbe claimant was required by law, as assistant treasurer, to perform tbe services for wbicli be now seeks compensation, and that tbe provisions of statute wbicb are consolidated in sections 17C3,1704, 1765, and 3597 of tb e Revised Statutes forbid tbe allowance of extra compensation therefor; and, further, that there is no provision of law for paying tbe sum claimed, or any sum, for such service.

The office of Treasurer of tbe United States was created by tbe fourth section of tbe act of September 2, 1789. His dirties were “to receive and keep tbe moneys of tbe United States and to disburse tbe same.

Tbe act of August 6, 1846 (9 Stat. L., 59), again defined tbe duties of tbe Treasurer (section 6), and provided for assistant treasurers, one of whom was to act in tbe city of New York, in rooms provided for tbe purpose and made part of tbe Treasury by tbe act, and was to have tbe custody of said rooms “ and of all tbe public moneys deposited within tbe same.” (Sec. 3.) He was also required to make transfers and payments of such moneys faithfully and promptly when ordered to do so, “and to perform all other duties as fiscal agent of tbe government wbicb might be imposed upon him by any act of Congress or by any regulation of tbe Treasury Department made in conformity to law”; and be was to perform all acts required by law or by direction of any executive department for paying pensions or making’ disbursements which any bead of a department is required to make, and wbicb are of a character to be made by him consistently with other official duties imposed upon him. Tbe salary of tbe assistant treasurer at New York was fixed, and it was not only provided that be should not be permitted to charge or receive any commission, pay, or perquisite for any official service of any character or description whatsoever, but it was made a misdemeanor, punishable, on conviction, by fine or imprisonment, or both, even to lay claim thereto.

In this connection it may be also said that by section 2, act of August 23,1842, it was provided that ‘ ‘ no officer in any branch of tbe 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 tbe disbursement of public money, or for any other service or duty whatsoever, unless tbe same shall be authorized by law, and tbe appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation.”

Tlie series of stringent statutes forbidding extra compensation to officers in government service lias been tlie subject of judicial construction in a number of decisions too well known to require detailed reference. Tlie bead of a department is not authorized to require a salaried subordinate to perform duties not germane to those imposed upon him bylaw. If, however, the subordinate performs such duties, he will not be entitled to extra Compensation therefor, unless such extra compensation is definitely authorized by statute. If it be thus definitely authorized, then the subordinate performing the extra service, foreign to his official duties, will be entitled to receive therefor the compensation named in the statute, in addition to .the pay which he receives by law or regulation for the performance of the ordinary duties of Ms office. The decision in'this case must be governed by these principles.

The act of 1816 made the assistant treasurer an officer in the Treasiuy. The duties imposed upon him by the act are to be construed with reference to the objects wMch Congress had in view in establisMng the Treasiuy. The Treasiuy Department embraces within its functions tl^e collection as well as the custody and disbursement of revenue. The Treasiuy itself is the machinery placed at the disposition of the Secretary for the performance of the latter class of duties onfy.

It is argued that the use of the word “ fiscal,” in the act of 1846, enlarges the scope of the duties of an assistant treasurer, so as to authorize the Secretary -of the Treasury to impose upon him duties connected with the collection as well as with the custody and disbursement of revenue. The word “fiscal” occurs in the sixth section of the act.. That section provides in a single sentence for the performance of the duties of various classes of offices, each quite inconsistent with the others, and the adjective “ fiscal” is applied to'all indiscriminately. It is more reasonable, therefore, to construe it as referable to the fiscal duties of each officer within official limits defined by law.

Hence, it must be assumed that the act of 1846 did not authorize the Secretary of the Treasiuy to'require the assistant treasurer at New York to collect revenue as well as to keep and disburse it. Was any such authority conferred upon the Secretary by the act of 1864 ?

Section 161 of that act authorized the Commissioner of Internal Bevenue to sell adhesive stamps to collectors, deputy col-lectora, postmasters, stationers, or any other persons, in amounts of not less than $50, upon receipt of payment for the same, and in each case to allow to purchasers commissions upon the aggregate amount of purchases, not to exceed 5 or 10 per cent., according to the kind of stamp. It was evidently the object of this provision to put stamps within reach of persons in all sections of the country by means of direct sales from the office of the Commissioner of Internal Revenue. For this purpose Congress, by offering a bonus of a percentage, sought to make it an object to stationers and other retail dealers to purchase stamps in amounts of not less than $50 as they would buy other articles of merchandise; and waived the general restraining statutory provisions, already referred to, in favor of collectors, deputy collectors, and postmasters (which classes of officers were found in all sections of the country and in contact with all classes of people), in order to induce them also to deal in stamps.

In a subsequent section (section 170) Congress further provides for the distribution of stamps, by authorizing it to be done through the instrumentality of certain public officers, without prepayment for the same. The provisions of this section which are material in this case are the'following: “In any collection-district where, in the judgment of the Commissioner of Internal Revenue, the facilities for the procurement and distribution of stamped vellum, parchment, or paper, and adhesive stamps are or shallbe insufficient, the Commissioner is authorized to furnish, supply, and deliver to the collector and to the assessor of any such district, and to any assistant treasurer of the United States or designated depositary thereof, or any postmaster, a suitable quantity or amount of stamped vellum, parchment, or paper, and adhesive stamps without prepayment therefor, and shall allow the highest rate of commissions allowed by law to any other parties purchasing the samel7

It will be seen that this section does not, in words, impose upon an assistant treasurer the obligation to receive and sell stamps; but we must not necessarily assume that he has the right to decline such a duty, if imposed upon him by his official superior. Such a construction would practically nullify these provisions of the act, and throw out of gear the machinery provided by Congress for placing the stamps within the reach of those who were required to use them. It is more rational to assume that it was intended by section 170 to empower the Secretary of tbe Treasury to require an assistant treasurer to sell revenue-stamps. Sucb was, in fact, tbe practical construction put upon tbat section by .tbe Treasury Department when tbe statute was put in operation.

There was no hardship in requiring an officer like tbe claimant to perform sucb duties. His official staff was a creature of law, annually fed by means of appropriations. No burdensome personal duty was thrown upon him; nor was bis relative responsibility greatly enlarged. Stamps came to him only and in sucb quantities as they were needed for sale. As they w,ere sold, be passed tbe proceeds -in bis own office to tbe credit of tbe Treasury, without handling them. Tbe same process would have taken place bad tbe sales been made by another agent, and had the money been paid in. to tbe assistant treasurer under general provisions of law.' In either event be would have become, in bis capacity as assistant treasurer, tbe custodian of tbe money after tbe sale of the- stamps. In this custody of money was bis real responsibility.

Tbe claimant entered upon tbe duties of bis office in 1869, five years after tbe act of 1864 went' into effect. If tbe views which have been expressed are correct, be assumed, in taking office, to perform tbe duties imposed upon tbe assistant treasurer by tbe act of 1864 as fully as be undertook tbe performance of those imposed by tbe act of 1846. Was be entitled to extra compensation for tbe services rendered .under tbe later statute ? He maintains tbat tbe act of 1864 explicitly and in fall comformity with tbe requirements of tbe act of 1842 sets forth tbe additional pay, extra allowance, and compensation which be ought to receive, and tbat they are tbe stun demanded in this suit.

Tbe one hundred and seventieth section of tbe act of 1864 directs tbe Commissioner of Internal Bevenue to allow on sales made in tbe manner required by tbat section a commission which, by referring to tbe provisions, of section 161, is found to be 5 per cent, on sales of common stamp's and 10 per cent, on sales of proprietary stamps. It is not stated in tbe statute to whom tbe commissions named in section 170 are to be allowed. Tbe claimant contends tbat in bis ‘ case tbe commissions should be allowed to him, and cites in support of bis proposition two decisions by courts of high authority. (United States v. Cheeseman, 21 Int. Rev. Rec., 340; United States v. Butterfield, 7 Benedict, 412.) If tbe court in New York has correctly interpreted tbe act of 1864, tbe claimant’s position is well taken, and it will be onr duty to allow to him so much of said commission as may not already hare been allowed to kim under tke provisions of tke act.

Section 161 provides for tke absolute sale of stamps, in amounts of $50 or more, to tke following classes of officials, viz, collectors and postmasters. It also provides for similar sales to deputy collectors and sundry classes of non-official persons. All piu’ckasers, of wkatever class, are to receive a commission on tkeir purchases, at tke discretion of tke Commissioner, but in no event to exceed 5 per cent, on purchases of common stamps and 10 per cent, on purchases of proprietary stamps.

Among tke classes of officials affected by tke provisions of section 170, we again find collectors and postmasters enumerated. This section contemplates tkat tkey are to be made de-positaries of stamps for tke purpose of selling tkem to otkers, and tkey are not required to pay for tkem, unless sold, or unless not returned to tke Commissioner of Internal Revenue wken called for. It is witk reference to sales under this section tkat tke Commissioner is required to'. allow tke kigkest rate of commissions allowed by law to any otlier parties purchasing tke same.” If tke claimant’s construction is correct, tke Commissioner must allow postmasters and collectors 5 and 10 per cent, on sales of common and proprietary stamps, respectively, made through tkeir agency, while he may allow tkem less than, suck percentages on pimckases of tke like stamps, kx like amounts, by themselves. It does not seem probable tkat Congress intended in tke same act to offer tke same party tke greater compensation for the lesser service performed witk reference to tke same thing.

The more probable and tke more natural construction of tke provisions of tke statute is this: Tkat Congress intended by section 161 to authorize officers purchasing stamps in tke required quantities, and who otherwise could not accept a commission for doing so, to receive tke same bonus which tke statute authorized to be paid to other purchasers; and further intended by section 170, in case tke machinery provided by section 161 should prove inadequate to place stamps within reach of consumers, then to carry tke internal-revenue office itself into every district, by making tke officers named in section 170 tke agents of tke Commissioner to sell stamps to the classes of officers and to tbe other persons named in section 161. Sales are to be made by tbe agents as if made by tbe Commissioner himself, and commissions are to be allowed to tbe actual purchaser just as commissions are allowed to tbe actual purchaser under section 161. Tbe rate of tbe commision may be varied, but none of it goes to tbe government official. In this way tbe apjiarent conflict between tbe two sections of tbe act of 1861 is removed, and proper force is given to tbe words “ other parties purchasing tbe same.”

Hence we find ourselves constrained to disregard tbe weighty authorities referred to by tbe claimant, in so far as they are opposed to our conclusions, and to bold that no statutory provision is made for tbe payment of a commission to tbe classes of officers named in section 170. Tbe claimant’s right to compensation is therefore controlled by tbe statutes forbidding him to charge or receive any commission, pay, or perquisite for any official service of any character or description whatsoever, or to receive any additional pay, extra allowance, or compensation for any service whatsoever.

This conclusion mates it unnecessary to consider tbe other points discussed at the bar.

Tbe claimant’s petition must therefore be dismissed.  