Dignan v. Shields

51 Tex. 322 | Tex. | 1879

Lead Opinion

Gould, Associate Justice.

The position of cashier in the office of collector of customs is not unknown to the law, as appears by the customs regulations adduced in evidence. (Gust. Reg., arts. 1004,1165.) For aught that appears to the contrary, it was competent for the collector at Galveston to delegate to his deputy the duty of receiving and keeping customs moneys, as cashier in his office, without violating the regulation prohibiting customs officers from performing their duties by substitutes. (Gust. Reg., art. 1152. See also Gust. Reg., art. 566, where the right of the collector to designate a deputy for certain other duties is recognized.)

Without such special designation, the deputy collector may, in case of absence, disability, or death of his principal, perform the duty of receiving and keeping customs moneys, as well as any other duty of the collector. (Rev. Stats., sec. 2630; Cust. Reg., arts. 1033, 1060.)

For these acts of his deputy the collector is responsible, and, even when performed after his death, his estate continues responsible. (Rev. Stats., sec. 2625; Gust. Reg., art. 1061.) The law prescribes no bond for the deputy collector, but it does not forbid the collector from protecting himself by such bond. In requiring from his deputy, whether before or after his appointment, indemnity against loss through the defalcation of the latter, the collector but exercised a legitimate precaution. See the Revised Statutes, sec. 3148, for a statutory recognition, in the corresponding case of a deputy collector of internal revenue, of the right of the collector to revoke such appointment, and to require and accept bonds or other security from his deputies. The bond in the present instance appears to have been voluntarily given, and, as a valid common-law bond, was rightly enforced. (City of Marshall v. Bailey, 27 Tex., 686; Griffiths v. Hardenbergh, 41 N. Y., 469; United States v. Tingey, 5 Pet., 115; Hawes v. Marchant, 1 Curtis, 136.)

It is immaterial whether the declarations of Stone were correctly admitted or not. The fact of Stone's defalcation was sufficiently established by other testimony, and the case was tried by the court without a jury. (Smith v. Hughes, 23 Tex., 248; Melton v. Cobb, 21 Tex., 539.)

The j udgment is affirmed.

Addibmed.

Opinion March 25, 1879.

Motion for rehearing was taken to the Austin Term.

On Motion dob Reheabing.

---

Rehearing

Gould, Associate Justice.

The questions in this case turn largely upon the regulations and usages of the Treasury-Department of the United States, and these have but rarely been the subject of investigation in the courts of this State. Feeling our want of familiarity with that complex system of statutes, regulations, and usages, we have had sufficient distrust in the correctness of our conclusions to induce a ready and careful consideration of the elaborate written argument of counsel in support of his application for a rehearing. The result, however, is, that our views have undergone no change.

One of the positions taken by counsel is, that a deputy collector is an officer of customs whose tenure of office is not dependent on the will of his principal, but who is removable only by the Secretary of tho Treasury. Another is, that the collector of customs can only act by deputy in certain contingencies, and that—except where there are cashiers regularly designated by the Secretary of the Treasury—the collector must be himself, personally, the recipient and custodian of customs moneys.

If neither of these positions be correct, the argument based upon them must fall to the ground.

1st. Whilst deputy collectors are “constituted and appointed” by the collector with the approval of the Secretary of tho Treasury’, it is our opinion that their tenure of office is defacto at the will of the collector.

Speaking of the deputy collector, Mr. Berrien, in an official opinion as Attorney-General of the United States, said: “ The deputy—as his name imports and as it is expressly laid down by law writers—exorcises his office in right of another. He is, as they express it, the shadow of his principal, having no authority distinct from him, nor to act otherwise than in his name, nor to perform any other duties but such as the collector himself may perform.” (2 Opinions of Att’ys-Genl., p. 413.)

In the very opinion of Mr. Legaré cited by counsel, holding that the appointment of inspector and other permanent officers of the United States is the act of the Secretary and not of the collector, he distinguishes between such permanent officers, on the one hand, and “ occasional deputies, employés, or agents of the collectors,” on the other. (4 Opinions of Att’ys-Genl., p. 163.)

In another official communication of the same date, upholding the power of removal in the Secretary in case of permanent inspectors, he says, even of these permanent officers, that the collector has uniformly been consulted, and that it is too late for the Secretary to act on the mere summum jus and eject an officer without the consent of a collector, “ except in a strong case.” We cannot doubt that, practically, deputy collectors, like other deputies, hold their office at the will of the collector, who is responsible for their acts. They are for many purposes officers of the United States, hut are not believed to be of the class of “inferior officers” contemplated by the Constitution, nor of the class of “subordinate officers” whose removal is controlled by customs regulations.

It is to be remarked, that the law fixes a limit to the emoluments of the collector, and that the enforcement of that limit requires that both the number and compensation of the deputies and clerks allowed the collector should he fixed. (United States v. Morse, 3 Story, 90, 91; 4 Opinions of Att’ys-Genl., p. 280; 7 Opinions of Att’ys-Genl., p. 46.)

2d. Whilst the regulations forbid a collector from residing out of his district, farming out his office and performing his duties by substitutes, we are unable to see that he is forbidden to act by his deputy in the receipt and custody of customs moneys, or in the performance of other official duties. In the absence of a regularly designated cashier, or other officer specially designated, the collector is personally responsible as the recipient of such moneys, whether they be actually received in person or by deputy; but we cannot believe that the regulation forbids him from assigning that special duty to a deputy. It may be that when so assigned the deputy becomes an officer specially designated for that custom-house, within the meaning of the regulation. If so, the collector is still responsible for the proper performance of this and any other official duty intrusted to a deputy. Such deputy is merely designated for the discharge of the duties of cashier in the collector’s office, and does not hold a separate office as cashier. If the collector, for his own protection, requires of him a bond for the faithful performance of those particular duties instead of his duty generally as deputy, instead of being more onerous, the bond would seem to be less so than the bond which it is admitted might be required of every deputy. In requiring such a bond, the collector cannot be said-to impose on his deputy additional or greater duties than were prescribed by law; nor can it be maintained that the bond is invalid because illegally exacted colore officii.

The bond sued on was not a statutory bond, but was, we' think, a valid bond at common law, protecting the collector in case of the failure of his deputy to account for customs' moneys received by him.

The motion for rehearing is overruled.

Motion overruled.

Opinion May 9, 1879.