25 F. Cas. 1004 | U.S. Circuit Court for the District of Northern California | 1866
The bond upon which these actions are brought, appears to have been given by Sanders as his official bond for the faithful discharge of his duties as collector, pursuant to the act of March 2, 1799, and also as his bond for the performance of his duties as depositary of the public moneys and fiscal agent under the act of August 6, 1846, and it must be considered in this double aspect
The act of March 2, 1799 (1 Stat. 705), provides that every collector shall give a bond to the United States within three months after he enters upon the execution of his office and furnishes the form of the bond. The condition in the form applies as well to the past as the future acts of the collector; its language is: “If he has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge all the duties of the said office according to law, then the above obligation to be void and of no effect; otherwise it shall abide in full force and virtue.”
The act of June 4, 1844 (5 Stat. 661), requires the bond to be given before the collect- or shall be qualified to enter upon the performance of his duties. Of course, if given before the office is assumed, the condition embracing past acts would be unmeaning and useless. But if for any cause such bond should not be executed or approved until after the assumption of. the office, or the sureties accepted should be found, upon further information, to be insufficient, the form prescribed by the act of 1799 might very well be adopted. We do not perceive any such re-pugnancy between that act and the act of 1844, that the former is necessarily superseded by the latter. We are of opinion that in some cases the provisions of the former act may properly be followed. So far, therefore, as the bond is for the faithful discharge or the duties of the collector, under the act of 1799, our judgment is that it binds the sureties for his acts from the 13th of November, 1852.
But as a bond of a depositary of the public moneys and fiscal agent of the United States under the act of August, 1846, so far as that act imposes new and additional duties on the collector, not covered by his ordinary official bond, the case is different. That act contemplates security against future responsibility, not for past transactions. In the absence from it of provisions otherwise directing, the bond exacted must be held to apply only to subsequent acts. So far as it is made retrospective it is void. Where a statutory bond goes beyond the requirements of the statute, it is for the excess without obligatory force.
But in either view, whether as the bond of the collector or as the bond of a depositary and fiscal agent, it does not bind the sureties for the acts of their principal, done after the period when he accepted his new appointment. The first appointment, during the recess of the senate, by the president, and the subsequent appointment by the president by and with the advice and consent of the senate, are distinct from each other, as much so as if given to different persons. The former could under no circumstances extend beyond the close of the ensuing session of the senate; the latter was for the period of four years from its date. The first appointment would have extended until and including the 3d of March, 1853, had not in the meantime the new appointment been made and accepted. The acceptance of the new appointment was a surrender and superseding of the first. U. S. v. Kirkpatrick, 9 Wheat. [22 U. S.] 720.
We may here observe that it is difficult to perceive how the new appointment could have been accepted on the day of the appointee’s confirmation by the senate, unless he was present at the time in Washington. January, 1853, embraces a period when telegraphic lines across the continent did not exist, and instantaneous communication with the capital was impossible. We make allusion to this matter because it may appear-on the trial that there was no legal acceptance of the new appointment until weeks after the action of the senate.
By the acceptance averred in the answers, a legal acceptance must be understood. Whether to constitute such acceptance the execution of new bonds or other equally expressive act on the part of the appointee was essential, is a matter which, hereafter, may demand consideration.
As the special answers do not deny the alleged breach of the conditions of the bond, between the 13th of November and the 6th of December, 1852, the demurrers must be sustained, and the defendants required to amend their answers, or file new answers to the complaint