27 F. Cas. 1 | U.S. Circuit Court for the District of Maine | 1844
The sole questions arising in this case are; First. Whether the deputy collector could be appointed as inspector, and hold both offices at the same time, and receive the emoluments thereof, under the act of 7th of May, 1822 (chapter 107, S 14). Secondly. "Whether the limitation contained in the 15th section of the same act of the compensation of the deputy collector to $1,000, applies to the case where he also holds the separate office of inspector; and performs all the duties of both offices.
As to the first question, it appears to me to be too clear for argument. There is nothing in the nature or duties of the offices of deputy collector and inspector of the customs, which mate *hem incompatible with each other. The 14th section of the act of 1822 (chapter 107) declares “that in the ports of Boston. New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, no person shall be an inspector, who at the same time holds any other office in the collection of the customs, in either of the said ports.” Now the very enumeration here includes only certain specified ports, and, of course, excludes all other ports, upon the known maxim, “Expressio unius est exclusio alteráis.” The policy of the section doubtless was, that, in the enumerated ports, the duties of deputy collector would or might occupy all the time of that officer, and that it would be a public inconvenience, and perhaps lead to the gross abuse of creating sinecures, to allow him to hold another office at the same time, the duties whereof he could not adequately perform, or might injuriously to the public service neglect.
As to the second question, the fifteenth section of the act of 1822 (chapter 107) provides, “that the secretary of the treasury may from time to time limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, and may limit and fix the compensation of any deputy, -of such collector, naval officer or surveyor; provided, that no such deputy in any of the districts of Boston and Charlestown, New York, Philadelphia, Baltimore, Charleston, Savannah, or New Orleans, shall receive more than one thousand five hundred dollars, nor any such other deputy more than one thousand dollars, for any services he may perform for the United States in any office or capacity.” It is upon the last clause only, that the whole controversy hinges. It is certainly obscurely drawn; and the question is, what is the proper interpretation to be given to the words, “in any office or capacity.” After weighing the subject with a good deal of care, I have come to the conclusion, that the true intent and meaning of the clause is to limit the emoluments of the deputy collector in that office to the sum specified, and to make no allowance to him on account of any incidental services he may perform, oh emoluments he may receive beyond that sum; and that it was not intended to say, that if he actually performed the duties or services of any other independent office, such as inspect- or, in any of the nonenumerated ports, he was not entitled to receive the emoluments thereof. In short, I read the language, as if it were, “in any such office or capacity.” The 18th section of the same act contains a provision, having a similar policy and operation, as to the incidental services and compensation, which might be claimed, virtute officio, by a collector, naval officer, or surveyor.
The office of inspector is an entirely distinct and independent office from that of deputy collector, having different duties, and requiring different services. Indeed, deputy collectors were not expressly authorized by law to be employed in the customs until the act of 3d of March, 1817, c. 282, § 7 [0 Bior. & D. Laws, 243; 3 Stat. 397], made perpetual by the act of 6th of May, 1822, c. 56, § 4 [7 Bior. & D. Laws, 55; 3 Stat. 681]. “In any office or capacity,” may well be interpreted to mean “in any one office or capacity.” If it were necessary to look back upon the pending terms of the 15th section of the act of 1S22 (chapter 107), to seek for another as the true use of the language, it would be by no means a forced construction to suppose, that as the compensation of clerks of the collectors, as well as deputies, was to be fixed, that the object was to prevent a deputy collector from receiving at the same time compensation as clerk, the duties.of the latter belonging as an appropriate incident in many cases, if not in all, to that of deputy. In this view, also, the interpretation of the section would steer wide of the objection raised by the United States, for the duties of inspector are not incident to the duties of deputy collector, as those of a clerk are and may be.
It appears to me, also, that, it ought not to be presumed, that the government, when it fixes the compensation of a deputy collector, means that he shall be compellable to perform the duties of inspector gratuitously; nor can it be presumed, that the -government, when it fixes the compensation of a deputy collector, looks to any other thing than a re-
Upon the whole, my opinion is, that the judgment ought to be rendered, upon the state of facts, for the defendant, for his full compensation as inspector, independent of his claim as deputy collector.
