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for salaries and expenses of collector and deputy collectors, to be paid in equal monthly instalments, and to be applied by him as follows:

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Provided the disbursements under the above allowance shall be sustained by proper vouchers. Form 631, properly made out and executed, will be regarded as a sufficient voucher for salary and travelling expenses of deputy collectors.

Estimated collections for the fiscal year covered by this recommendation, $225,000. The allowance recommended herein for compensation of the collector is based upon the following scale of collections, and, should the collections vary from the amount estimated, his compensation will be adjusted at the end of the fiscal year in accordance with said scale:

Scale of Compensation of Collectors under Special Allowance.
For collection of-

$25,000 or less.
25,000 to

$2,000
$37,500
37,500 to

2, 125
50,000
50,000 to

2, 250
75,000
75,000 to

2, 375
100,000
100,000 to

2,500
125, 000
125,000 to

2, 625
175,000
175,000 to

2,750
225, 000
225,000 to

2, 875
275, 000
275,000 to

3,000
325,000
325,000 to

3, 125
375, 000
375,000 to

3, 250
425, 000

3, 375
425,000 to 475,000
475,000 to

3,500
550,000

3, 625
550, 000 to 625, 000
625, 000 to

3, 750
700,000

3, 875
700,000 to 775,000
775,000 to

4,000
850,000.

4, 125
850,000 to 925, 000
925, 000 to 1,000,000..

4, 250 1,000,000 and upward...

4,375

4,500 Five hundred dollars of the amount herein recommended as personal compensation of collector is added to the salary fixed in the above scale in consideration of the territorial extent of said district.

Very respectfully,

GREEN B. RAUM,

Commissioner. (Indorsements.)

TREASURY DEPARTMENT, Office of Internal Revenue, June 30, 1879.

GREEN B. RAUM,

Commissioner. Recommends special allowance at the rate of $27,520 to the collector of the second district of Georgia, from July 1, 1879, to June 30, 1880.

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TREASURY DEPARTMENT, July 1, 1879. The special allowance herein recommended is hereby granted.

JOHN SHERMAN,

Secretary.

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IN THE MATTER OF THE RIGHT OF A DEPUTY COLLECTOR OF INTERNAL REVENUE TO HOLD ALSO THE POSITION OF INSPECTOR OF TOBACCO AND CIGARS, AND RECEIVE THE COMPENSATION ATTACHING TO BOTH PLACES.-YATES'S CASE.

1. No one person can lawfully receive the compensation both of a deputy collector of

internal revenue and an inspector of tobacco and cigars. 2. Construction given to section 1765 and 3151 of the Revised Statutes. 3. An inspector of tobacco and cigars who is entitled to receive compensation from

the owner or manufacturer of the articles inspected, is not entitled to receive

compensation for services as deputy collector. April 2, 1881, the collector of internal revenue for the sixth Kentucky district addressed a letter to the Commissioner of Internal Revenue, asking if Deputy Collector Yates, who is also an inspector of tobacco and cigars, can receive the compensation authorized by law for both of these positions. (He refers to Landram vs. U. S., 16 Ct. Cls., 74, and Hedrick vs. U. S., II., 88.)

April 6, 1881, this letter was referred, for advice in the matter, by the Commissioner to the First Comptroller, whose attention was called “to the fact that the fees of an inspector of tobacco and cigars are paid, not by the United States, but by the owner of or manufacturer of the articles inspected.” (Rev. Stats., 3151.)

OPINION BY WILLIAM LAWRENCE, First Comptroller :

The act of March 1, 1879, (20 Stats., 329,) provides

“That each collector of internal revenue shall be authorized to appoint, by an instrument in writing under his hand, as many deputies

*

as he may think proper, to be compensated for their services by such allowances as shall be made by the Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue.” (Sec. 12.)

The law provides that (1) “there shall be appointed by the Secretary of the Treasury, in every collection district where the same may be necessary, one or more inspectors of tobacco, cigars

* who shall be entitled to receive such fees as" the Commissioner of Internal Revenue may prescribe, to be paid by the owner or manufacturer of the articles inspected,” (13 Stats., 244, sec. 58; R. S., 3151;) and that (2) No officer

or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever,

for any

service or duty whatever *." (Rev. Stats., 1765; see also 18 Stats., 109, sec. 3.)

The inspector, being appointed by the head of an executive department, is an officer; the deputy collector is not technically an officer.

It is, therefore, clear that no one person can lawfully receive the compensation both of a deputy collector and of an inspector of tobacco and cigars. (Hoyt vs. U. S., 10 How., 141.)

The prohibition against double compensation in section 1765 of the Revised Statutes is not affected by the fact that the fees of inspectors are to be paid by the owner or manufacturer of the tobacco or cigars inspected. It is against double compensation in any form whatever.” Its purpose is to protect the Treasury, and to prevent a multiplication of emoluments and favors to one person. Fees paid by the owner or manufacturer constitute compensation in one form. The prohibition applies to every officer or person whose compensation is fixed by law or regulations. The compensation of deputy collectors of internal rev. enue is fired “by such allowances as shall be made by the Secretary of the Treasury." (Wilson's case, ante, 206.) The inspector is entitled to receive such fees” as the Commissioner of Internal Revenue “may prescribe.” There is, in the execution of this provision, no uniformity in the charges imposed upon the manufacturers. In some districts, or parts of districts, the fee is at the rate of ten cents per hundred pounds of the tobacco inspected; while in others the rate is much higher. This inequality is due to the distance to be travelled by the inspecting officer, or the quantity of tobacco to be inspected, or to both. In order that the fees to be paid by the manufacturer shall be sufficient to cover the necessary travelling expenses of the officer, and withal afford a reasonable compensation, it is the practice, rendered unavoidable by the terms of the statute, to impose upon the manufacturer whose tobacco

is at a place remote from the office of the inspector, or who has but a small quantity to be inspected, a higher rate than that imposed upon the manufacturer whose tobacco is near the inspector's office, or who has a large quantity to be inspected. This imposition of a discriminating tax against the small or remotely-situated manufacturer was probably not foreseen by Congress. Such an amendment of the law as would fix a uniform rate of inspection fee, to be collected and paid without deduction into the Treasury, and as would constitute the proceeds a general fund for the compensation of all the inspectors, would seem to be an appropriate remedy for the injustice; still leaving to the discretion of the Commissioner the amount of compensation to be paid to each inspector.

The order by which an allowance of compensation is made by the Secretary to a deputy collector is a “regulation.” It is so in view of the purpose of section 1765, and of the fact that the Secretary classifies the deputies and prescribes rules affecting whole classes. The order of the Commissioner, by which the fees of inspectors are prescribed, in the same manner, is a regulation.” This was decided in effect in Herndon's case, 1 Lawrence, Compt. Dec., 55, which is affirmed in Wilson's case, ante, 206. This ruling is made in full view of all that is said in Landram vs. U. S., 16 Ct. Cls., 74, and in Hedrick vs. U. S., Id., 88.

It might with some force be said, and especially in view of the purpose of section 1765, that the compensation of a deputy collector, as also of an inspector, is “fixed by law;" but it is not necessary to decide this now. The statute does not, in terms, fix any amount; but it gives authority to officers who do fix the amount. The compensation is thus, in one sense, “ fixed by law,” because in pursuance of law. To hold otherwise, as to officers, would defeat the whole policy of the statute. Qui hæret in litera, hæret in cortice.

If the same person who is deputy collector holds an appointment as inspector, he is entitled to the fees of the latter position, and cannot be lawfully paid compensation as deputy collector. If he shall serve as inspector gratis, he cannot thereby charge the United States with a liability for his compensation as deputy collector. The statute is designed as well to protect the Treasury as to prohibit every person in Government service from receiving any addition to his prescribed compensation, “in any form whatever.” The Commissioner of Internal Revenue is advised accordingly. TREASURY DEPARTMENT,

First Comptroller's Office, April 22, 1881.

IN THE MATTER OF CIRCUIT COURT COMMISSIONERS'

FEES IN ELECTION CASES-ALLEN'S CASE.

1. Section 1014 of the Revised Statutes requires, in the arrest, imprisonment, and

bail of offenders against the United States, the adoption of the State statutes in force where such offenders are found, only in so far as those statutes regulate forms of procedure and process not otherwise provided for under the au

thority of the United States. 2. In election cases, commissioners of the circuit courts are not permitted to retain

complaints, examinations, or records made before or by them, or oaths of officers taken before them; but are required to forward them to the proper chief super

visor of elections, to be by him filed and preserved. 3. The commissioners are not authorized to make records or copies of any of these

for chief supervisors, and, hence, cannot be allowed fees for making the same. 4. The commissioners are not entitled to fees for affixing seals to oaths of office.

The material facts are as follows:

John J. Allen was, from July 1 to December 31, 1878, a commissioner of the circuit court of the United States for the eastern district of New York, second circuit, and was also chief supervisor of elections of that judicial district. (Rev. Stats., 627, 727, 846, 847, 856, 945, 981, 984, 1014, 1042, 1778, 1982, 1987, 2025, 2026, 3162, 1079, 4080, 4081, 5003, 5076, 5270, 5271, 5280, 5296, 5446.) He has rendered an account claiming, as commissioner, fees for making records of proceedings, including complaints, and certifying the same to himself as chief supervisor; for "affixing commissioner's seal to the oaths of office of special deputy marshals and supervisors of elections,” and “for filing the oaths,” in numerous cases of violations of the election laws. (Rev. Stats., title XXVI.)

The question, whether the fees so charged can be allowed, arises in the settlement of Mr. Allen's account.

The commissioner, in person, and his attorney, A. J. Falls, made oral arguments:

The "record” is a statement or docket showing the proceedings in brief in each case. No charge is made for the original records; the charge is only for making the copies.

The Revised Statutes, sections 1756, 1757, and 1758, require oaths. Section 1778 requires such oaths to be certified under seal; and section 828 authorizes a fee of twenty cents for affixing the seal.

Fees are chargeable for filing the oaths of office of the supervisors and deputy marshals under sections 828 and 2027.

The chief supervisor is also entitled, under section 2031, to a fee for filing the same oaths.

Section 1014, directing that proceedings in criminal arrests, &c., in any State, before judges or commissioners, be conducted "agreeably to the usual mode of process against offenders in such State," adopts the State statute, which requires the commissioner to keep in his own

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