1. The Act of March 3, 1863, entitled
"An act to prevent and punish frauds upon the revenue, to
provide for the more certain and speedy collection of claims in
favor of the United States, and for other purposes,"
authorizing the Solicitor of the Treasury, "with the approval of
the Secretary of the Treasury," to sell at public sale, after three
months' advertisement, certain lands acquired by the United States
for debt &c., qualifies and limits the powers of the said
solicitor, given to him by the Act of May 29, 1830, creating his
office and prescribing his duties, and authorizing him to sell such
lands at private sale, and
pro tanto repeals it.
2. The former act being thus repealed, and the latter one only
in force, the approval of the Secretary of the Treasury is an
indispensable condition to the validity of a sale made under the
act by the solicitor.
3. The purchaser is not bound to accept a deed unless there be
written evidence of this approval.
4. The approval of the secretary is not a fact to be presumed
because the deed of the solicitor is the deed of an official
person, nor even because it recites that the sale was made in
pursuance of the Act of 1862.
An Act of May 29th, 1830, [
Footnote 1] authorized "the appointment of a Solicitor of
the Treasury," prescribed his duties &c., and enacted, among
other things, that:
"
The said solicitor shall have charge of all lands and
other property which have been or shall be assigned, set off, or
conveyed to the United States in payment of debts . . . and to sell
and dispose of lands assigned or set off to the United States in
payment of debts."
An Act of March 3, 1863, entitled
"An act to prevent and punish frauds on the revenue, to provide
for the more certain and speedy collection of claims in favor of
the United States, and for other purposes, [
Footnote 2]"
in its ninth section enacts
"That for the purpose of realizing as much as may properly be
done, from
unproductive lands and other property of the
United States, acquired under judicial proceedings or otherwise, in
the
Page 86 U. S. 599
collection of debts, the Solicitor of the Treasury be and he is
hereby authorized,
with the approval of the Secretary of the
Treasury, to rent for a period not exceeding three years or
sell any
such lands or other property at public sale after
advertising the time, place, and conditions of such sale for three
months preceding the same in some newspaper published in the
vicinity thereof in such manner and upon such terms as may in his
judgment be most advantageous to the public interests."
These acts being in force, the Solicitor of the Treasury put up
for sale at auction certain land with houses upon it in New Orleans
which a debtor of the United States had conveyed to it in payment
of debt. The land was bid off by George Jonas for $30,000. A deed
was tendered to him. The deed purported to be made between:
"E. C. Banfield, Solicitor of the Treasury of the United States,
duly appointed and qualified as such, and herein acting in such
capacity for and on behalf of the United States of America, party
hereto of the first part, and George Jonas, of the City of New
Orleans, State of Louisiana, party hereto of the second part."
It properly recited that the land had been transferred and set
over to the United States in payment of a debt due to it. It
further recited that
"under the provisions of section nine of an Act of the Congress
of the United States of America entitled 'An act to prevent and
punish frauds upon the revenue, to provide for the more certain and
speedy collection of claims in favor of the United States, and for
other purposes,' approved March 3, 1863,"
and after due and legal notice on certain days and in certain
newspapers (all particularly specified), the land had been exposed
to sale at public auction, at the St. Charles Auction Exchange, and
that Jonas had bought it.
It concluded:
"In witness whereof, the said E. C. Banfield, Solicitor of the
Treasury, as aforesaid, hath hereunto set his hand and caused his
seal of office to be affixed the day and year first above
mentioned. "
Page 86 U. S. 600
And E. C. Banfield, Solicitor of the Treasury, signed it. But
there was nothing in, on, or about, with or apart from the deed to
show that the sale was made with the approval of the Secretary of
the Treasury. This deed Jonas refused to accept. The land was
thereupon again put up for sale "on account and at the risk of the
said George Jonas," and sold for $21,500, and the United States
sued Jonas in the court below for $8,500, the difference between
the sums bid at the sales.
The point of the controversy was whether the consent and
approval of the Secretary of the Treasury is necessary to authorize
the sale and conveyance of property acquired by the United States
under judicial proceedings, or otherwise, in the collection of
debts.
The government contended, and asked the court so to charge, that
the law did not require
"a tender to defendant, as a part of the proof of title, of the
written approval or consent of the Secretary of the
Treasury to said sale or transfer of said property,
in any
form, in order to convey a complete title."
This the court declined to do, and charged
"that unless the deed of conveyance of the property executed by
the solicitor, tendered by the United States to Jonas, at the time
when it was tendered to him, bore upon its face, or by means of
papers connected therewith, written proof, certain and patent to
the defendant, that the Secretary of the Treasury had, in
accordance with section nine of the Act of March 3, 1863, approved
and authorized the sale of the property at auction by the Solicitor
of the Treasury, then that no such deed was tendered as would
convey to him a complete and undoubted title,"
and that he "could not be compelled to pay the loss in price
resulting from the second sale." The United States excepted, and
judgment having gone for the defendant the government brought the
case here.
The question, therefore, for decision was whether the approval
of the Secretary of the Treasury was necessary to the sale or
transfer of the property in question, and if so, whether it was
incumbent on the plaintiffs to produce this
Page 86 U. S. 601
approval when the deed was tendered, in order to put the
defendant in fault so as to subject him to suit.
Page 86 U. S. 602
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is quite apparent that the law will not compel the purchaser
in this case to comply with the terms of sale and accept the deed
offered, unless the Solicitor of the Treasury, who made the sale
and executed the deed, has undoubted authority to do both these
things. The officer was created by Act of Congress of 29th of May,
1830, and among the duties assigned to him by the first section is
the charge of property conveyed to the United States in payment of
debts, with power to sell and dispose of the same. It may be that
it was the intention of Congress that the important powers thus
conferred should be exercised independently of the
Page 86 U. S. 603
Secretary of the Treasury, although it is clearly the policy of
the law to hold the head of the department responsible for the
proper administration of the governmental functions which pertain
to it. It is, however, not necessary to consider the point, because
the Act of the 3d of March, 1863, to "prevent frauds on the revenue
and provide for the certain and speedy collection of claims in
favor of the United States," has not only in terms placed the
Solicitor of the Treasury in subordination to the secretary in the
matter of selling the property of the United States taken in
payment of debts, but has deprived him of the power of selling at
private sale at all -- a power liable to abuse, and which the
interests of the government require should not be confided of
anyone. In the ninth section of this act, the solicitor is
authorized to sell, with the approval of the secretary, and not
then except at public sale, on three months' notice of the time,
place, and terms of sale, advertised in some newspaper published in
the vicinity of the property. It is clear that this latter act was
intended to qualify and limit the powers given by the Act of 1830.
It covers the whole subject of the disposition of lands acquired
for debts due the government, and embraces new and salutary
provisions in relation to their sale, and shows clearly that
Congress, instead of conferring additional powers, intended to
limit those already conferred.
Such being the case, the latter act must operate as a repeal
pro tanto of the Act of 1830.
It is urged that the two acts can be reconciled if the latter
one is confined to unproductive property, but neither the letter
nor spirit of this act would warrant any such interpretation. It is
true the sale or lease for a limited period of unproductive lands
is provided for, but the same provisions apply to other property
obtained by the government in payment of debts due it. Indeed, no
good reason can be assigned why the disposition of unproductive
lands should be subject to the approval of the secretary, and other
property, which, in this case, consisted of valuable real estate in
the city of New Orleans, with buildings on it, be left to the sole
disposal of a subordinate officer. All property of whatever
Page 86 U. S. 604
kind obtained in the way pointed out is embraced within the
scope of the statute. If the Congress of 1830 intended that the
Solicitor of the Treasury should be the sole judge of the propriety
of selling the property of the United States taken in payment of
debts, the Congress of 1863 thought proper to abandon that policy,
and to declare that in no case should there be a sale without the
approval of the Secretary of the Treasury. It went further and said
that all sales should be at public auction, and gave the power to
lease for a limited time, but whether the property were leased or
sold, the secretary should be first consulted and his consent
obtained, and all persons given a fair and equal opportunity of
buying. The system thus inaugurated did away with the objections to
private sales, and made the Secretary of the Treasury responsible,
as he should be, for the proper administration of this branch of
the public service.
The next point to be considered is whether the defendant was
obliged to comply with the terms of sale on tender of the deed.
This deed was executed by E. C. Banfield, and recites that, acting
in the capacity of Solicitor of the Treasury, under the ninth
section of the act of 1863, he had caused the property to be
exposed at public sale, but it does not contain any recital that
the secretary authorized the sale, nor was any evidence offered to
the defendant in connection with the deed that this authority had
been obtained.
It is manifest, if any effect is to be given the act invoked by
the solicitor as the basis of his authority, that he could not
proceed at all without the approval of his superior. The
legislation of Congress would be wholly ineffectual to prevent the
evils which it was designed to remedy if this approval should not
be treated as a substantial requirement, a thing essential to give
validity to the sale. The question is one of power, and the power
is given to sell when the secretary thinks it advisable to do so.
His approval is a condition precedent, without which the solicitor
has no authority whatever to act.
It is said, however, if this be so, that the court will
presume
Page 86 U. S. 605
this approval, and that it is not necessary that it should
appear either in the conveyance or in any other mode. It would
defeat the obvious purpose of Congress, which is to be considered
in the construction of a statute, to dispense with proof of this
approval. One of the main objects of the statute was to subject the
action of the solicitor to the control of the secretary in a matter
of great public concern, in which he had heretofore acted without
control. This change of the system contemplated a change in the
mode of proceeding on the part of the solicitor. If this were not
so, there would be no security that the solicitor would not
continue to sell property as he had been accustomed to sell it.
Indeed, the very sale in question is defended on the ground that
the power conferred by the Act of 1830 remains unimpaired by the
Act of 1863, and the action of the solicitor in this case furnishes
a potent argument against the rule of presumption contended for. As
the important power of selling the property of the United States
acquired in payment of debts can only be exercised by the solicitor
with the approval of the secretary, there would seem to be the best
of reasons for requiring some written evidence of this approval,
not only for the security of the purchaser, but for the protection
of the government.
The defendant, therefore, is not in default, because there is
nothing in the record to show that this consent of the secretary
had been obtained.
If the authority to make the sale had been delegated to the
solicitor alone, and its exercise confided to his discretion, his
acts would carry with them
prima facie evidence that they
were within the scope of his authority. But where the power is
divided, there must be joint action before any presumption can
arise.
Judgment affirmed.
[
Footnote 1]
4 Stat. at Large 414.
[
Footnote 2]
12
id. 740, § 9.
