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The following circular is appended for information: Circular in relation to Bonds of Inspectors, Weighers, and Measurers of Coal and Ilood in
the District of Columbia.
Washington, D. C., March 30, 1881. The attention of all officers or persons in the District of Columbia, whose duty it is to purchase anthracite or bituminous coal, or wood, for the public service, and of all persons appointed as inspectors, weighers, and measurers of coal and wood purchased in said District for the public service, is called to the following provisions of law:
“SEC. 3711. It shall not be lawful for any officer or person in the civil, military, or naval service of the United States in the District of Columbia to purchase anthracite or bituminous coal or wood for the public service except on condition that the same shall, before delivery, be inspected and weighed or measured by some conipetent person, to be appointed by the head of the Department or chief of the branch of the service for which the purchase is made. The person so appointed shall, before entering upon the duty of inspector, weigher, and measurer, and to the satisfaction of the appointing officer, give bond, with not less than two sureties, in the penal Sun of five thousand dollars, and with condition that each ton of coal weighed by him shall consist of two thousand two hundred and forty pounds, and that each cord of wood to be so measured shall be of the standard measure of one hundred and twenty-eight cubic feet. The inspector, weigher, and measurer so appointed shall be entitled to receive from the veniers of fuel weighed and measured by him twenty cents for each ton of coal weighed, and nine cents for each cord of wood measured by him. Each load or parcel of wood or coal weighed and measured by him shall be accompanied by his certificate of the number of tons or pounds of coal and the number of corols or parts of cords of wood in each load or parcel.
“SEC. 3712. The proper accouuting officer of the Treasury shall be furnished with a copy of the appointment of each inspector, weigher, and measurer appointed under the preceding section.
“SEC. 3713. It shall not be lawful for any accounting officer to pass or allow to the credit of any disbursing officer in the District of Columbia any money paid by him for purchase of anthracite or bituminous coal or for wood, unless the voucher therefor is accompanied by a certificate of the proper inspector, weigher, and measurer that the quantity paid for has been determined by such officer."
To enable the accounting officers to discharge their duties under these provisions of law, the bonds of such inspectors, weighers, and measurers, with a copy of the appointment of each, should be filed in the office of the First Comptroller in the Department of the Treasury.
These bonds should be approved by the head of the Department, or chief of the branch of the service, making the appointment.
First Comptroller. Approved : WILLIAM WINDOM,
As to COAL AND WOOD FOR PRIVATE CITIZENS OF THE DISTRICT OF COLUMBIA, there is an act of Congress as follows: “CHAP. 194. An act to authorize the Commissioners of the District of Columbia to
make and enforce regulations relative to the sale of coal, and also building regulations.
* Be it enacted, &c., That the Commissioners of the District of Columbia be, and they hereby are, anthorized and directed to make and enforce such rules and regulations relative to the sale of coal in the District of Columbia as shall insure full weight to purchasers of coal; also, such building regulations for the said District as they may deem advisable.
"SEC. 2. That such rules and regulations, made as above provided, shall have the same force and effect within the District of Columbia as if enacted by Congress.
* Approved, June 14, 1878.”
The “sundry civil” appropriation act of March 3, 1879, (20 Stats., 406,) appropriates, under the head of "District of Columbia,” for expenses of “one inspector of fuel, at two dollars per day, six hundred and twenty-six dollars."
This act relates to coal purchased by private parties, including private corporations. It is in aid of the acts of the legislative assembly of the District of Columbia “creating certain offices," approved August 21, 1871; and “prescribing the duties of certain officers,” &c., approved August 23, 1871. It does not modify or limit the application of sections 3711, 3712, and 3713 of the Revised Statutes. A modification is a qualified repeal--a repeal pro tanto-and is not favored in law..
The Commissioners of the District of Columbia, and all acting under them in the purchase of coal and wood for the public service," are subject to these sections. They are officers or persons in the civil service of the United States. (Clerk’s case. 1 Lawrence, Compt. Dec., 305.) Every reason for applying these sections to other officers applies to them.
IN THE MATTER OF THE AUTHORITY OF THE COMPTROLLER OF THE CURRENCY TO ALLOW AS AN OFFSET, FROM DIVIDENDS DUE TO THE UNITED STATES, A CLAIM UPON THE GOVERNMENT BY THE RECEIVER OF A NATIONAL BANK.-RECEIVER'S CASE, (SECOND.)
1. The Receiver's case (1 Lawrence, Compt. Dec., 362) examined and reaffirmed. 2. When a debtor to the United States, in payment of his debt, draws his check on
a national bank to the order of an assistant treasurer, and the check is paid without objection by the bank, and the money is placed in the Treasury of the United States, the Secretary of the Treasury has no power to declare that the money so paid shall be deemed or applied as a payment on an indebtedness of
the bank to the United States. 3. Nor can such payment be so deemed or applied by order of the Secretary, even if
the check was paid from the nioney of the bank without its authority. 4. The Secretary of the Treasury is not, under section 236 of the Revised Statutes,
an accounting officer charged with the duty of settling and adjusting claims
against the United States. 5. The Secretary of the Treasury is not by law charged with a duty to revise and
rererse the allowance of claims, as made in favor of the United States by the Comptroller of the Currency, against an insolvent national bank in the hands
of a receiver. 6. The Comptroller of the Currency cannot himself revoke or recall such allowance,
nor a dividend declared in favor of a creditor of an insolvent bank, especially if made by his predecessor in office, and when rights have been fixed and
remedies waived on the faith of such allowance. In this case the material facts are stated in the decision.
DECISION BY WILLIAM LAWRENCE, First Comptroller :
May 27, 1867, Hon. Charles Case was appointed receiver of the First National Bank of New Orleans, which had become insolvent.
One item of indebtedness of the bank, then, was $208,360.56, proceeds of certain vessels sold by order of the district court of the United States, which had been deposited in the bank to await the result of adıniralty proceedings, in which judgments were subsequently rendered against the United States for $188,075,47, which sum the Gorernment paid the owners of the vessels, and by reason of which pay. ment the Government became, by the right of subrogation, a creditor of the bank. The justice and validity of this claim of the United States against the bank has never been denied. The Comptroller of the Currency, March 8, 1872, admitted the claim in favor of the Government “as being subrogated to the rights of the ship-owners” whose vessels had been improperly seized.
The statute requires the Comptroller of the Currency to make a ratable dividend of the money paid over to him by the receiver of an insolvent bank “on all such claims as may have been proved to his satisfaction." (Rev. Stats., 5236.)
Dividends were declared by the Comptroller, May 27, 1871, 15 per cent ; December 22, 1871, 20 per cent.; April 28, 1874, 30 per cent.; October 31, 1879, 5 per cent.—in all, 70 per cent.; and these have been paid to all creditors; except that only 35 per cent. has been paid (March 8, 1872) to the United States upon said $188,075.47, leaving in the Comptroller's hands, unpaid, 35 per cent., or $65,826.40.
On July 23, 1880, the Comptroller of the Currency addressed to the Secretary of the Treasury a letter, alleging that "there is due to the bank from the Government $94,000," transferred in May, 1867, from the bank to the office of the assistant treasurer of the United States; and he suggested that the amount due the United States as dividends$65,826.40—be allowed as an offset, and that Congress be asked to appropriate a sufficient amount to cover the deficiency.
This was referred, for his opinion, to the First Comptroller, by whom the Secretary of the Treasury was, in December, 1880, advised to direct the Comptroller of the Currency to cover into the Treasury the money due to the United States for dividends, viz.: $65,826.40.
(Many other facts, and a full opinion of the First Comptroller on this subject, will be found reported in the Receiver's case, 1 Lawrence, Compt. Dec., 362.)
On January 20, 1881, the Secretary of the Treasury addressed to the Comptroller of the Currency a letter, in which he says: “Concurring in the opinion of the First Comptroller, I have to request that you deposit to the credit of the Treasurer of the United States the amount of the unpaid declared dividends, as recommended.”
On March 10, 1881, the Comptroiler of the Currency enclosed to the Secretary of the Treasury a letter, dated March 3, 1881, of twentyseven printed pages.
The printed letter restates many of the facts stated in the reported case above referred to, which may be consulted, and which facts it is unnecessary here to repeat in extenso. Among them are these: Early in May, 1867, the Secretary of the Treasury sent special agents to New Orleans to investigate the affairs of said bank and of the office of the assistant treasurer of the United States in that city.
On May 13, 1867, it is alleged that “said special agents took possession of the bank;" that while investigating the office of the assistant treasurer they found a check dated February 15, 1867, drawn on the bank by Mr. Thomas P. May, at that time president of the bank, for $80,000, to his own order, by him indorsed, never presented to or accepted by the bank, but, of course, the property of the assistant treas
“Very soon after thus assuming control” of the bank the agents “ took from the vault of said bank
$94,000;" with it paid said check of $80,000, and applied $14,000 on another similar check of $315,879.10, dated May 13, 1867. This $94,000 was deposited to the credit of the United States with the assistant .treasurer. It thus became money in the Treasury of the United States.
No claim was ever made that this $94,000 should be refunded, until May 11, 1880, when the receiver presented an account to the Comptroller of the Currency claiming its repayment.
The Comptroller of the Currency, in his printed letter, says:
“The law makes it my duty to pay dividends only on such claims of whose validity and amount I am satisfied. Otherwise the claimants are required to go before a court of competent jurisdiction to adjudicate the matter. (Sec. 5236, Rev. Stats., U. S.)
“ Now, I am not at all satisfied as to the exact amount due the Gov. ernment as a creditor of the bank."
He submits, as his conclusions, that the situation results as follows:
"1. That neither check was or is a valid obligation of the bank, and neither constituted at any time a claim against the bank.
“2. That the Gorernment has, therefore, been paid $94,000 of the moneys of the bank, in advance of its becoming a claimant, on the $188,075.47.
"3. That the bank has paid 70 per cent. of its indebtedness to other creditors and 85 per cent. of its indebtedness to the Government, making a present overpayment of $28,173.58 in case the United States is a common creditor of the bank.
“4. In case the Government is a preferred creditor, then the bank owes it the sum of $28,249.07, to pay the par of her claim.”
In couclusion, he says:
consider and allow the credit demanded, said $94,000, as he is authorized to do by section 236, Revised Statutes. No money is demanded from the Treasury, but
H. Ex. Doc. 219- -9
simply that credit on the Government's demand on the bank, which the bank is entitled to ask, and which it is my duty to have presented, or present myself, before paying out the funds I hold in trust for the whole body of creditors, in order that if the Government refuses to accede, the bank will be entitled, under the provisions of section 951 of the Revised Statutes, to ask for the credit herein demanded in any suit which it may become necessary for the Government to institute."
The printed letter of the Comptroller of the Currency is a learned, able, and exhaustive argument. As a duty, and out of deference to the views of that officer, who has rendered long and valuable services, and seeks to guard with fidelity the interests intrusted to him, his argument has been considered with much care. Some points discussed by him, as also in the reported case referred to, are by no means material to the question now presented.
Upon the facts presented, there is on deposit with the Treasurer, sul). ject to the order of the Comptroller of the Currency, $65,826.40, which sum would seem to be due to the United States as dividends declared on a valid claim, unless (1) the claim can and should be adjudged by the Secretary of the Treasury as having been paid by the $94,000 taken from the First National Bank of New Orleans and deposited with the assistant treasurer of the United States; OR, (2) the Secretary can now and should adjudge that the bank or the receiver has a valid claim against the United States to refund the $94,000, which should be set of against or deemed payment of the $65,826.40 dividends due the United States.
I.—The Secretary cannot adjudge any part of the claim of the United States against the bank ($188,075.47) as having been paid by the de. posit with the assistant treasurer of the $94,000.
1. Assuming that the Secretary has authority to judge, the evidence shows conclusively that the $94,000 was taken in payment of checks on the bank, and not on the claim of $188,075.47, which was not finally adjudicated in court, and did not exist in favor of the United States until after the $94,000 was appropriated. The Secretary cannot declare as fact a matter which he knows is not so.
2. Neither the receiver nor the Comptroller of the Currency ever treated the $94,000 as paid on the claim of $188,075.47. Up to May 11, 1880, no claim was made for any refund of this $94,000; which had been always until then treated by the receiver and Comptroller of the Currency as properly applieil, else dividends could not have been declared and paid as they were.
3. No law has given the Secretary of the Treasury power to adjudge in the manner stated, nor in the matter, except to so execute the law