United States Fidelity & Guaranty Co. v. United States, 150 F. 550

150 F. 550 | 9th Cir. | 1907

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The undertaking of the surety was that the principal should at all times "honestly account without fraud or delay” for all public moneys and property coming into his hands as such agent. Under section 8 of the act of July 4, 1884 (23 Stat. 97, c. 180), the presentatioh of vouchers, accounts, and claims, containing material misrepresentations of fact in regard to the amounts due and paid, was not an accounting. The statute vested the accounting officers with no discretion as to such vouchers. It made it their plain duty to reject them. The law as to accounting, not having been complied with, the matter was left as if no account whatever had been rendered. The plaintiff in error contends that the rejection of an account upon the grounds set forth in the act is the imposition of a penalty, and that the decision of the court below requires the plaintiff in error to pay the sum of $10,489.50 upon a rejected account; whereas the actual loss to the United States did not exceed $2,000, and cites the rule that the measure of damages to which the surety on an official bond is bound, in the absence of any statutory rule is just compensation for the injury actually sustained.

The rejection of an account in compliance with the expressed language of the statute is not the imposition of a penalty. It is but the enforcement of a statutory rule of accounting. Nor is the present action an action to recover a penalty. It is an action to enforce a liability arising out of contract. Section 3624 of the Revised Statutes [U. S. Comp. St. 1901, p. 2418] provides as follows:

“Whenever any person accountable- for public money neglects or refuses to pay into the Treasury the sum or balance reported to be due to the United States, upon the adjustment of -his accounts the first Comptroller of the Treasury shall institute suit for recovery of the same.”

Every one who becomes surety for an Indian agent, enters into his contract of suretyship with a view to the statutes which may affect his liability, the provisions of which he is presumed to know, and which become as much a part of his contract as if they were embodied in the bond. Smythe v. United States, 188 U. S. 177, 23 Sup. Ct. 279, 47 L. Ed. 425; Alexander v. United States, 57 Fed. 832; 6 C. C. A. 602; Pond v. United States, 111 Fed. 995, 49 C. C. A. 582. The plaintiff in error finds argument in support of his contention in the langüage of the act itself, wherein, after providing for the rejection of false and fraudulent claims and vouchers, the words are added: “That the foregoing shall be in addition to the penalties now prescribed by law,” and reasons that from the use of these words Congress considered the section as penal in its character. The words so used do not justify that inference. The statute does not say that the foregoing shall be in addition to other penalties. It says, in effect, that, the indebtedness resulting from the rejection of such accounts shall not take the place of or affect the penalties which have been prescribed by law, in punishment of malfeasance in office. It treats the obligation to pay as a debt due the United States. The act in express terms provides that the amount due shall be recovered “in the same manner as other debts due the United States are collected.” The answer admits that each of the vouchers, accounts, and claims, amounting in the aggregate to $10,489.50, was subject to objection, for the reason that it contained false items, but alleges that the false items amounted in all to no more than $2,000. If that was the extent of the falsification of the vouchers by the Indian agent, he had his plain remedy by presenting true vouchers as to all matters in the account for which he was justly entitled to credit. As early as March 9, 1903, he was notified of the rejection of his account, and the reason therefor, and, between that date and the, commencement of the suit, he had five months within which to file corrected vouchers. This he failed to do, and neither he nor his surety can complain of the rejection of the whole account. It is a natural conclusion, but one that is not essential to support the judgment herein, that the whole of the account was fraudulent.

It is contended that the affirmative defense shows that the bond was extorted from the Indian agent under color and pretense of law, and under color of the office of the Secretary of the Interior, and is therefore void and of no effect. The defense, as pleaded, falls short of showing that any influence or pressure was brought to bear upon the agent or his surety to induce the execution of the bond, or that either he or the surety objected to the form of the bond as prepared, or executed the same under protest. In United States v. Hodson, 10 Wall. 395, 19 L. Ed. 937, it was held that if a bond is open to objection, the objection should be made when the bond is presented for execution; that if executed under constraint, the constraint will render it void; but that, where it is voluntarily entered into, and the principal enjoys the benefit which it is intended to secure and a breach occurs, it is too late to raise the question of its validity. But the plaintiff in error contends that the only condition in an Indian agent’s bond, authorized by law is that provided by section 4 of the act of June 30, 1834, c. 162, 4 Stat. 735, which requires the auent to give a bond “with two or more sureties in the penal sum of $2,000 for the faithful execution of the same.” That statute, however, is not the law under which the bond in the present case was given. It was executed under the authority of section 2057 of the Revised Statutes which requires Indian agents to “give bonds in such penalties and with such security as the President or the Secretary of the Interior may require.” This was originally the act of February 27, 1851. By section 5596 of the Revised Statutes [U. S. Comp. St. 1901, p. 3750], the portion of the act of 1834, relating to bonds, was repealed. Section 465 [U. S. Comp. St. 1901, p. 264] provides as follows:

“The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act, relating to Indian affairs, and for the settlement of the accounts of Indian affairs.”

By these statutes the President and the Secretary of the Interior are given the authority to determine the character of the bond, both as to its penalty and the nature and conditions of its obligation. The plaintiff in error relies on United States v. Tingey, 5 Pet. 115, 8 L. Ed. 66, in which it was held that, where a bond imposing obligations in excess of the requirements of the statute is demanded of an officer, as a condition precedent to the enjoyment of his office, the bond is said to be extorted colore officii, and is void in toto. The bond in that case was held void as being extorted under color of office, because it was in plain violation of the statute, and was demanded of the officer on peril of losing his office. The case is therefore not in point. In Moses v. United States, 166 U. S. 571-586, 17 Sup. Ct. 682, 688, 41 L. Ed. 1119, it was said:

“The consideration or the condition of the bond must not be in violation of law. It must not run counter to any statute. It must not be either malum prohibitum or malum in se. Otherwise and for all purposes of security a bond may be valid, though no statute directs its delivery. * * * Having the right to take a bond, the government in a ease like this has the right to demand it from the officer, and to say to him if he does not give it he will not be c.ontinued as a ‘property and disbursing officer of the Signal Service.’ Such a demand when complied with does not amount to the illegal exaction or extortion of the bond. The case of a bond so procured differs radically from a ease like that of Tingey (United States v. Tingey, 5 Pet. 115, 8 L. Ed. 72), in-asmuch as the bond in the latter case was extorted from a reluctant officer, with the condition therein contained different from that which the statute called for.”

And the court said that the bond given in that case “did not cease to be a voluntary bond, merely because Lieut. Howgate did not gratuitously, and without request, proffer it, and ask that it might be received, or because he was reluctant to give it, and only gave it upon the demand of the Secretary.”

It is contended further that the judgment in the criminal case against the Indian agent is a bar to recovery in the present action, and the plaintiff in error cites United States v. Shapleigh, 54 Fed. 126, 4 C. C. A. 237, United States v. Choteau, 102 U. S. 603, 26 L. Ed. 246, Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684, McDonald v. Hearst (C. C.) 95 Fed. 656, and United States v. Jaedicke (D. C.) 73 Fed. 100. We find no support for the contention of the plaintiff in error in any of these decisions. In the Choteau Case, a distiller’s bond had been given under a statute, which provided that, for his failure to comply with the statutory requirements, he should be liable to a penalty of double the tax imposed on distilled spirits removed or concealed, and fined not less than $200, nor more than $5,000, and imprisoned not less than three months nor more than three years. An action was brought on the bond against the sureties, and, in defense thereof, it was pleaded that prior thereto an indictment had been returned against the distiller, and that with the advice of the Secretary of the Treasury, and upon the recommendation of the Attorney General, the Commissioner of Internal Revenue had accepted from the distiller $1,000 in full satisfaction, compromise, and settlement of the indictment and prosecution, which were thereupon dismissed and abandoned. It was held that the sum so paid in compromise and settlement of the indictment, was a settlement and res judicata of the whole matter. Coffey v. United States was a similar case, except that on the criminal charge there was an acquittal of the defendant on all the acts, attempts, and intents averred in the subsequent action to recover. In both of these cases recovery was sought, not as for a debt due the United States, but as part of the penalty denounced against the offender for violation of duty, and, under statutes defining the offense and fixing the penalty. Both cases are therefore plainly distinguishable from the case at bar, and the same is true of other decisions cited by the plaintiff in error. The punishment of the Indian agent by. imprisonment has nothing to do with his civil liability on his bond. It has not the effect to reimburse the United States, and cannot.be said to have been accepted by the Government, as satisfaction or compromise of its account against that officer. In United States v. Jaedicke, it was held that the acquittal of a defendant, under an indictment for making a false and fraudulent return as postmaster, for the purpose of increasing his compensation, is not a bar to an action by the United .States upon the bond of such postmaster to recover the amount found due the government upon the adjustment of his accounts. Said the court:

“The amount sued for in this case is not a forfeiture or penalty, but simply a sum improperly withheld by the defendant in excess of his legal compensation.”

We find no error for which the judgment should be reversed. It is accordingly affirmed.