The Act of June 19, 1886, c. 421, 24 Stat. 19, did not repeal
the provisions of the Act of June 26, 1884, c. 121, 23 Stat. 59, as
respects expenditures by shipping commissioners other than for
clerks.
These were suits brought by James C. Reed, Shipping Commissioner
of the United States at the port of New York, to recover,
respectively, the amount expended by him for rent of office and
storage rooms for his official use from March 1, 1891, to April 1,
1893, and the amount of certain expenses which he incurred between
July 1, 1886, and March 1, 1891, in maintaining his office and
discharging his duties, including rent of the said rooms from April
1, 1890, to March 1, 1891.
The petition in No. 189, asking judgment for the sum of $3,125,
was filed in the Circuit Court of the United States for the
Southern District of New York on April 7, 1893. The government
filed a general answer on June 21 of the same year, and the case
was referred, by consent, to a referee, who took the evidence
presented by the parties and reported the same, together with his
opinion, to the court. Upon the coming
Page 167 U. S. 665
in of this report, the court, on August 26, 1893, filed its
findings of fact and conclusions of law. The facts stated in the
findings were substantially as follows:
The petitioner assumed the duties of his office prior to July 1,
1884, and on or about August 26 of that year, the Secretary of the
Treasury, pursuant to the provisions of the act of Congress
entitled "An act to remove certain burdens on the American merchant
marine, and encourage the American foreign carrying trade, and for
other purposes," approved June 26, 1884, fixed the compensation of
the petitioner at the sum of $4,000 per annum, and in addition
thereto one-half of the net surplus of the receipts of his office
from fees earned, less the amount of salaries and expenses paid;
limiting the amount of such compensation, however, to the maximum
sum of $5,000 in any one year. The petitioner continued to hold the
office and discharge the duties thereof from July 1, 1884, to the
date of the filing of the said findings of fact, and within the
period between July 1, 1884, and April 1, 1893, no change was made
in the amount of his compensation, and the same was allowed and
paid him at the rate of $5,000 per year. For the time between the
opening of the fiscal year commencing March 1, 1891, and April 1,
1893, the surplus earnings of the office of service fees exceeded
the necessary expenses incident to the conduct of the business of
the office, including the compensation of the petitioner, by the
sum of $14,551.29.
From July 1, 1884, to May 20, 1886, the office of the petitioner
was situated at 187 Cherry Street, in the City of New York, and the
rental of the premises, together with all other expenses incident
to the office of shipping commissioner, and to the discharge of the
duties thereof, were paid by the United States. On or about May 20,
1886, the office was removed, by direction of the Secretary of the
Treasury, from Cherry Street to the United States barge office, in
the said city, a building owned by the government, and the expenses
incident to the removal and to the fitting up of the petitioner's
office in that building were paid by the United States.
On or about April 10, 1890, the petitioner, by direction of the
Secretary of the Treasury, removed from the barge office, and
Page 167 U. S. 666
procured offices at 25 Pearl Street, and storage room for
deceased seamen's effects at 19 Pearl Street at an annual rental of
$1,500. Between March 1, 1891, and April 1, 1893, the petitioner
incurred expenses, and was obliged to make, and did make,
disbursements on account of rent of the said premises in Pearl
Street amounting in the aggregate to the sum of $3,125.
The court further found that the said expenditures were incident
to the office of shipping commissioner, that the said sum was a
reasonable charge for the said premises, that the United States
duly authorized the occupation by the petitioner of the premises,
and the expenditures incurred and proposed to be incurred therefor,
that the petitioner had duly demanded the said amount from the
United States, and that no part thereof had been paid.
In No. 190, the petition, asking judgment for $4,035.17, was
filed in the said court on March 27, 1891, and the general answer
of the government on June 10, 1891. The court's findings of fact
and conclusions of law were filed April 6, 1893, on which day,
reference of the case having theretofore been made as in No. 189,
the report of the referee was submitted.
The findings in this case were essentially similar to those in
No. 189, concerning the fixing of the petitioner's compensation,
his continuance in office, and his receipt of the maximum
compensation during the time covered by his claim, his occupation
of rooms in Cherry Street, and his removal therefrom to the barge
office, and thence, on April 10, 1890, to rooms in Pearl Street,
and the payment by the United States of the expenses of the office
in Cherry Street, and of the removal to the barge office. The court
further found that, for the period between the opening of the
fiscal year commencing July 1, 1886, and March 1, 1891, the surplus
earnings of the office of the petitioner of service fees exceeded
the necessary expenses incident to the discharge of the duties of
the office, including the compensation of the petitioner, by the
sum of $24,795.01; that between July 1, 1886, and March 1, 1891,
the petitioner incurred sundry expenses, and was obliged to make,
and did
Page 167 U. S. 667
make, sundry disbursements, amounting in the aggregate to
$4,033.71, for necessaries incident to the duties imposed upon him
by statute as shipping commissioner, including rent of the said
office and storage rooms in Pearl Street from April 10, 1890, to
March 1, 1891, furnishing cost of removal, stationery, telephone,
Maritime Register, ice, freight on blanks, safe-deposit vault,
telegrams, repairs, etc.; that the said amount was a reasonable
expenditure for the purposes for which it was disbursed; that
reports were made monthly by the petitioner to the Secretary of the
Treasury, which reports contained the items of the receipts of the
office and of the expenditures incurred and proposed to be
incurred; that the petitioner had demanded of the United States
payment of the said sum, and that no part of the same had been
paid.
The court's conclusions of law in each case were
"that the Secretary of the Treasury was authorized to determine
the compensation of the petitioner as shipping commissioner at the
port of New York, and, having exercised such authority, the
compensation of the petitioner remained as so fixed (to-wit, five
thousand dollars per annum); that the Secretary of the Treasury is
authorized to regulate the mode of conducting the business in the
shipping offices; that all expenditures made by shipping
commissioners in discharge of their duties imposed upon them by the
statutes of the United States or the regulations of the Treasury
Department are to be audited and adjusted in the Treasury
Department."
Further, as conclusions of law, the court found in No. 189 that
the petitioner was entitled to have and receive from the United
States the sum of $3,125, and in No.190 that he was entitled to
have and receive from the United States the sum of $4,033.71.
Judgment in No. 189, for the sum of $3,125, was rendered in favor
of the petitioner on August 26, 1893, and in No.190, for the sum of
$4,033.71, on April 6, 1893.
In each case, an appeal was taken by the government to the
United States Circuit Court of Appeals for the Second Circuit,
where on May 2, 1894, and June 4, 1894, respectively, the said
judgments were affirmed. On October 5, 1894, the government
appealed in each case to this Court.
Page 167 U. S. 668
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
These are appeals from the United States Circuit Court of
Appeals for the Second Circuit.
James C. Reed, the appellee, who for several years was the
shipping commissioner at at port of New York, obtained judgments in
the circuit court for the Southern District of New York, for moneys
which he had expended and disbursed between the 1st day of July,
1886, and the 1st day of April, 1893, in payment of expenses
incident to the discharge of the duties imposed upon him as such
shipping commissioner by the statutes of the United States.
In No. 189, the only question involved is the right of the
appellee to be reimbursed for the rent of the commissioner's
offices.
No. 190 involves both the question of rent for another period of
time and the further question of the right to be reimbursed for
certain other expenses incidental to the office.
Reed was originally appointed shipping commissioner by the
Circuit Court for the Southern District of New York on May 12,
1884. At that time, the law relating to the duties and compensation
of that office was contained in sections 4501, 4505, 4507, 4592,
4593, and 4594 of the Revised Statutes.
By the principal provisions of these sections affecting the
matter in hand, the commissioner was authorized to employ clerks to
assist him in the transaction of the business at his own proper
cost, and to lease, rent, or procure at his own cost, suitable
premises for the transaction of business and for the preservation
of the books and other documents connected therewith, which
premises should be styled the "Shipping Commissioner's Office."
Certain fees for the several acts of
Page 167 U. S. 669
service were made payable to the commissioner, for which a fee
bill was to be prepared and conspicuously placed in the office. Out
of such fees, for the purpose of reimbursing himself, the
commissioner was entitled to deduct and retain any sums, not
exceeding the sums specified in the schedule, but it was provided
in section 4594 that
"in no case should the salary, fees, and emoluments of any
officer appointed under this title be more than five thousand
dollars per annum, and any additional fees should be paid into the
Treasury of the United States."
By the Act of June 26, 1884, Congress amended the law, as
follows:
"SEC. 27. That section forty-five hundred and one of the Revised
Statutes is hereby amended so as to read as follows:"
"SEC. 4501. The Secretary of the Treasury shall appoint a
commissioner for each port of entry, which is also a port of ocean
navigation, and which, in his judgment, may require the same, such
commissioner to be termed a shipping commissioner, and may, from
time to time, remove from office any such commissioner whom he may
have reason to believe does not properly perform his duty, and
shall then provide for the proper performance of his duties until
another person is duly appointed in his place,
provided
that shipping commissioners now in office shall continue to perform
the duties thereof until others shall be appointed in their places.
Shipping commissioners shall monthly render a full, exact and
itemized account of their receipts and expenditures to the
Secretary of the Treasury, who shall determine their compensation,
and shall from time to time determine the number and compensation
of the clerks appointed by such commissioner, with the approval of
the Secretary of the Treasury, subject to the limitations now fixed
by law. The Secretary of the Treasury shall regulate the mode of
conducting business in the shipping offices to be established by
the shipping commissioners as hereinafter provided, and shall have
full and complete control over the same, subject to the provisions
herein contained, and all expenditures by shipping commissioners
shall be audited and adjusted in the Treasury Department in the
mode and manner
Page 167 U. S. 670
provided for expenditures in the collection of customs. All fees
of shipping commissioners shall be paid into the Treasury of the
United States, and shall constitute a fund which shall be used
under the direction of the Secretary of the Treasury to pay the
compensation of said commissioners and their clerks and such other
expenses as he may find necessary to insure the proper
administration of their duties."
23 Stat. 59.
Reed was continued in office by the appointment of the Secretary
of the Treasury under this act of 1884, and remained in the
discharge of his duties until after the 1st of April, 1893.
In pursuance of that provision of the act of 1884 which directed
that the Secretary of the Treasury should determine the
compensation of the shipping commissioner, that officer, on
September 12, 1884, wrote to Reed that the department, on the 26th
August, had determined to allow him compensation as shipping
commissioner at the rate of $4,000 per annum and one-half of the
net surplus of the fees collected by him after the payment of
salaries and expenses authorized,
"such compensation not to exceed the maximum limited by law, it
being understood that from such compensation you shall pay all your
official expenses except for employees and rent, and that the
compensation and all expenses shall not exceed the aggregate of the
fees collected and deposited during the year."
Under this arrangement, Reed rendered monthly accounts, charging
against the fees earned in his office both the rent of the office
occupied by him and all the other expenses of the character
included in the present judgments, and all of these charges were
regularly allowed to him by the Secretary of the Treasury, down to
and including the month of June, 1886.
In June, 1886, offices were provided for the shipping
commissioner of New York in the barge office, a government building
at that port. He removed to the barge office, and the expenses of
his removal were audited and allowed by the Secretary of the
Treasury under date of June 18, 1886.
On June 19, 1886, the law was further amended by an act which
abolished the payment of fees, and which provided that shipping
commissioners who theretofore had been paid wholly
Page 167 U. S. 671
or partly by fees should make a detailed report of such
services, and the fees provided by law, to the Secretary of the
Treasury, under such regulation as that officer should prescribe,
and that the Secretary of the Treasury should allow and pay, from
any money in the Treasury not otherwise appropriated, said officers
such compensation for said services as each would have received
prior to the passage of the act; also such compensation to clerks
of shipping commissioners as would have been paid them had the act
not been passed; provided that such services had, in the opinion of
the Secretary of the Treasury, been necessarily rendered. Act of
June 19, 1886, c. 421, 24 Stat. 79.
After and since the passage of this last statute, the Secretary
of the Treasury failed to allow to Reed any of his expenses, for
rent or otherwise, upon the ground that Congress had failed to make
any appropriation for that purpose, and Reed continued to pay out
of his own pocket said rent and expenses until the expiration of
his term of office. During this period, the Secretary of the
Treasury sent several communications to Congress, reminding that
body that, since July, 1886, no appropriations had been made to
cover the expenses of the office of shipping commissioners, and
recommending that such appropriations should be made.
It is not claimed on behalf of the government that the rent and
expenses included in the judgment were not proper and necessary,
and actually incurred and paid by him.
Reed's compensation was fixed by the Secretary of the Treasury
under the act of 1884 at the rate of $4,000 and one-half of the net
surplus collected by him after the payment of salaries and expenses
authorized, and it was also directed by the secretary that Reed
should pay all official expenses except for employees and rent. By
the act of 1886, it was provided that his compensation would be
such as he would have received had that act not been passed.
We agree with the court of appeals in thinking that the act of
1886 did not repeal the provisions of the act of 1884 as respects
expenditures by shipping commissioners other than for clerks. There
is no repealing clause, there is no reference
Page 167 U. S. 672
to such expenditures, nor any implication of any intention to
impose the burden of maintaining suitable premises for the
transaction of the business upon the commissioner, and we think
that the commissioner was not required, under the act of 1886, to
pay out of his compensation expenses of the office which before
that act were paid by the government. If, before the act of 1886,
Reed received $5,000 for services and the government paid the rent
and other expenses, and after the passage of the act he would
receive $5,000 and pay the rent and expenses himself, he could not,
under the latter construction, receive the same compensation as
before.
It is true that, under the Revised Statutes, prior to the act of
1884, the commissioner was to lease, rent, or procure at his own
cost the premises in which to do business, and had also to pay all
the other expenses of his office. But during that period, he had
all the fees of the office. The fees were taken from him by the act
of 1884, and the Treasury was directed by that act to assume
payment of all expenses, as is seen in its language, as
follows:
"All expenditures by shipping commissioners shall be audited and
adjusted in the Treasury Department in the mode and manner provided
for expenditures in the collection of customs. All fees for
shipping commissioners shall be paid into the Treasury of the
United States, and shall constitute a fund which shall be used
under the direction of the Secretary of the Treasury of the United
States to pay the compensation of said commissioners and their
clerks, and such other expenses as he may find necessary to insure
the proper administration of their duties."
23 Stat. 59.
The record discloses that the Secretary of the Treasury
construed the act of 1884 as directing him to allow for rent and
expenses similar to those included in these judgments, and that he
did not contend that the act of 1886 changed the rights of the
commissioner in these particulars, but that he excused the
nonpayment of rent and expenses because Congress had failed to make
the proper appropriation.
The government's brief cites the case of
United States v.
Gunnison, 155 U. S. 380.
But that was a case where it was
Page 167 U. S. 673
held that a shipping commissioner at Mobile was not entitled to
moneys paid for clerk hire, for the reason that the Secretary of
the Treasury had formally notified the shipping commissioner,
previous to the time for which the clerk hire was claimed, that his
compensation would be limited to $100 per month, and that no
additional compensation would be allowed. When he presented his
vouchers, including the items for clerk hire, the secretary
approved them only for $100 per month.
The government's claim that the commissioner was to meet rent
and expenses out of his salary might result in the application of
his entire salary to that purpose. We are not willing to construe
the statute so as to require so unreasonable a result.
Without pursuing the subject into further detail, we are of
opinion that the circuit court did not err in sustaining the
commissioner's claims for reimbursement, and the decree of the
circuit court of appeals is accordingly
Affirmed.
