Tne head of a department of the government is authorized in the administration of the duties of the office to employ agents and determine when an exigency arises demanding their employment. The law of 1854 (Rev. St. § 3614) recognizes the right and provides for a bond to be given by the agent for the faithful discharge of his duties. The act of March 3, 1849 (Rev. St. § 3617), required payment of all moneys received by Potter into the treasury “without abatement or reduction,” and it became a necessity to appoint him a disbursing agent. He was appointed an agent for payment of salaries, commissions, incidental and ouier expenses of his office as receiver, and that of the office of register for the Pembina land district, so called. He made, on April 6, 1871. an estimate for salaries, fees, and commissions for the quarter ending June 30, 1871, in the sum of $1,500, and a treasury warrant dated May 17, 1871, was forwarded him. He received the warrant. did not pay commissions out of the moneys called for, never returned it, but charged himself in his report to the government with the amount, and on July 1, 1874, after his term of office expired, by indorsement passed it out of his control. His sureties are liable for government moneys received during his term of office, and his neglect to account for and pay over is a breach of trust and a failure “faithfully to execute and discharge the duties of his office,” which was guarantied by them. Section 1766, Rev. St. U. S., authorizing the salary of an officer in arrears to be withheld, forms no part of the contract with the sureties. This statute was passed to secure and protect the government, and insure punctuality on the part of public officers, and although it in strong language inhibits the payment of salaries to any person in arrears, yet if an unauthorized payment is made by the proper officer, whose duty it is to pass upon and allow salaries, the government is not responsible for the misconduct of such officer, and the ties are not discharged on that account. [U. S. v. Van Zandt] 11 Wheat. [24 U. S.) 184; [U. S. v. Curry] 6 How. [47 U. S.] 106; [Gibbons v. U. S.] 8 Wall. [75 U. S.] 274.
The certified transcript of Potter’s accounts as disbursing agent shows a balance due the government, and that the warrant remitted to him during his term of office was not used in making disbursements for the government. This warrant not being presented for payment within three years after it issued, under sections 300, 307, 308, Rev. St., was subsequently paid from the moneys in the “outstanding liability account.” It is charged this payment was illegal and the draft “died” in Potter’s hands, and the holder at the time of payment was his agent, and the treasurer should have liquidated Potter’s delinquent account by giving him credit for the return of the draft, and not paid it. I cannot agree to this view of the case. These sections, like others in respect of the duties of government officials, form no part of the contract with sureties upon an official bond. They establish the mode of payment of a class of outstanding drafts upen the treasury unpresented within the time specified, and designate, for the convenience of the government, the requisite procedings to obtain the money and the fund out of which payment is to be made. These laws are not passed to protect sureties, but to better
[Let judgment be entered in favor of plaintiff for the sum of 81.500. with 6 per cent, interest from August 15, 1S74, with costs,
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