Postmaster-General v. Early. 12 W.

WINN'S HEIRS v. JACKSON and others.

12 W. 135.

In this case, on motion of Mr. Wickliffe, the court dismissed a writ of error to the court of appeals of the State of Kentucky, the record showing that after the judgment of the circuit court for Harrison county had been reversed by the court of appeals, the case was remanded to the circuit court for further procedings, and so the judgment was not "final."

5 P. 190.

THE POSTMASTER-GENERAL OF THE UNITED STATES v. EARLY and others.

12 W. 136.

Under the act of March 3, 1815, (3 Stats. at Large, 245, sec. 4,) the circuit courts of the United States have jurisdiction of suits by the postmaster-general, upon official bonds of postmasters.

Though a mistaken opinion of the legislature concerning the law does not make the law, yet it may be so declared as to operate in futuro.

The postmaster-general has power to take a bond from a postmaster for the payment of moneys received by him in his official capacity.

Including in an official bond other things which are separable from the subjects for which it may lawfully be taken, does not necessarily vitiate it.

THIS was an action of debt, commenced in the circuit court for the district of Georgia, by the district attorney of the United States for that district, in the name of the postmaster-general of the United States, against the defendants, on a bond executed by them, in June, 1820, to the postmaster-general of the United States, the condition of which, after reciting that Eleazer Early, (one of the coöbligors and defendants in the suit,) is postmaster at Savannah, provides that if he shall perform the duties of his office," and shall

pay all moneys that shall come to his hands for the post[137] ages of whatever is by law chargeable with postage, to

the postmaster-general of the United States for the time. being, deducting only the commission and allowances made by law for his care, trouble, and charges, in managing the said office," &c., "then the above obligation shall be void." The breach assigned was, that the said E. Early did not pay to the postmaster-general the moneys which came to his hands, as postmaster at Savannah, but that the sum of $7,736.64 was still in arrear and unpaid. The defendants pleaded to the jurisdiction of the court that this was "not a suit in which the United States are a party, nor is the debt declared on one contracted, authorized, or arising, under a law

Postmaster-General v. Early. 12 W.

of the United States, and over which jurisdiction has been given to this honorable court." On the argument of the cause in the court below, the opinions of the judges of that court were opposed upon the question of jurisdiction, and it was certified to this court for a final decision.

The Allorney-General and Wheaton, for the plaintiff.

Webster and Berrien, for the defendants.

* MARSHALL, C. J., delivered the opinion of the court, and, [*144 ] after stating the case, proceeded as follows:

The post-office department was established at the commencement of the Revolution, under the superintendence of a postmaster-general, who was authorized to appoint his deputies, and was made responsible for their conduct. Soon after the adoption of the present government, in September, 1789, congress passed a temporary act,1 directing that a postmaster-general should be appointed, and that his powers, and the regulations of his office, should be the same as they last were, "under the resolutions and ordinances of the last congress." The power of appointing deputies, therefore, and the responsibility for their conduct, still remained with the postmaster-general.

It

This act was continued until the first day of June,2 1792. In February, 1792, an act was passed detailing the duties and powers of the postmaster-general, and fixing the rates of postage.3 directs his deputies to settle at the end of every three months, and to pay up the moneys in their hands; on failure to do which, it becomes the duty of the postmaster-general "to cause a suit to be commenced against the person or persons so neglecting or refusing. And if the postmaster-general shall not cause such suit to be commenced within three months from the end of every such three months, the balances due from every such delinquent shall be charged to and recoverable from him." This act was to take effect on the first of June, 1792, and to continue for two years. In May, 1794, a permanent act was passed. It retains the provision requiring the postmaster-general to settle quarterly with his deputies, but omnits that which makes it his duty to cause suits to be instituted within three months after failure.

In March, 1799,5 the subject was again taken up, and congress passed an act, which retains the clause making it the duty of the deputy postmasters to settle their accounts quarterly, and reinstates that which directs the postmaster-general to cause suits to be insti11 Stats. at Large, 70. 2 Ib. 178. 3 Ib. 232. 4 Ib. 354.

5 Ib. 733.

Postmaster-General v. Early. 12 W.

tuted against delinquents; substituting six months in the place of three, after the expiration of the quarter, under the penalty of being himself chargeable with the arrears due from such delin[*145] quent. This act declares that all causes of action arising

under it may be sued before the judicial courts of the several States, and of the several territories of the United States.

In April, 1810,' congress passed an act for regulating the postoffice establishment, which enacts, among other things, that all suits thereafter to be brought for the recovery of debts or balances due to the general post-office, should be instituted in the name of "the postmaster-general of the United States." This act also authorizes all causes of action arising under it to be sued in the courts of the States and territories.

In March, 1815, congress passed" an act to vest more effectually in the state courts, and in the district courts of the United States, jurisdiction in the cases therein mentioned."

This act enables the state courts to take cognizance of all suits arising under any law for the collection of any direct tax or internal duties of the United States. The 4th section contains this clause: "And be it further enacted, that the district court of the United States shall have cognizance, concurrent with the courts and magistrates of the several States, and the circuit courts of the United States, of all suits at common law where the United States, or any officer thereof, under the authority of any act of congress, shall sue, although the debt, claim, or other matter in dispute, shall not amount to one hundred dollars." On these several acts the question of jurisdiction depends.

The suit is brought for money due to the United States; and, at any time previous to the act of 1810, the suit for the money, had no bond been taken, might have been brought in the name of the United States. It is not certain that, independent of the bond, it could have been instituted in the name of any other party. The courts of the United States, had, of course, jurisdiction. The laws make it the duty of the postmaster-general to "cause suits to be instituted," not to bring them; and it was not until March 1799,2 that congress authorized these suits to be instituted in the state courts. It is obvious that the right to institute them in those courts, anterior to

the passage of that act, was doubted; at any rate, was not [146] exercised; for it could not have been deemed necessary to give expressly the power to sue in those courts, had the power been admitted to exist, and been commonly exercised. We must suppose, then, that these suits were usually instituted in the

Postmaster-General v. Early. 12 W.

courts of the United States; and no doubt could be entertained on the question of jurisdiction, if they were brought, as they certainly might have been, in the name of the United States.

The act of 1810 directed that all suits for debts, or balances due to the general post-office, should be brought in the name of the postmaster-general. The manner in which this change in the style of the suit might affect jurisdiction was not noticed, and no provision was made for this new state of things. These debts and balances which were due to the general post-office, were not due to the officer personally, but to the office, and were to be sued for and collected for the United States. The money belonged to the nation, not to the individual by whose agency it was to be brought into the treasury. The whole course of opinion and of legislation on this subject is, that although for convenience, and to save expense to the debtors, recourse may be had to the state courts for the recovery of small sums, yet a right to resort to the courts of the Union in suits for money due to the United States, was never intended to be relinquished. If the effect of any provision in a statute be to abolish this jurisdiction, it must be an effect which was neither intended nor foreseen. That construction which will produce a consequence so directly opposite to the whole spirit of our legislation, ought to be avoided, if it can be avoided without a total disregard of those rules by which courts of justice must be governed.

If the question had rested solely on the act of 1810, it is probable that the aid of the legislature might have been thought indispensable to the jurisdiction of the federal courts, over suits brought for the recovery of debts and balances due to the general post-office. But it does not rest solely on that act. The act of 1815 contains a clause which does, we think, confer this jurisdiction. It cannot be doubted that this clause vests jurisdiction expressly in the district courts, in all suits at common law where any officer of the United States sues under the authority of any act of congress. [*147 ] The postmaster-general is an officer of the United States, who sues under the authority of the act of 1810, which makes it his duty to sue for debts and balances due to the office he superintends, and obliges him to sue in his own name.

It has been contended that this clause, if it gives jurisdiction, gives it only where the demand is under $100. We do not think the words will sustain this criticism.

The right to take cognizance of suits brought by any officer of the United States, under authority of any act of congress, is first giver in general words, comprehending sums to any amount. The limita tion which follows is not a proviso that the sum shall not exceed the

Postmaster-General v. Early. 12 W.

sum of $100; it is no restriction on the previous grant, but an enlargement of it, if an enlargement should be thought necessary. This act might be construed, in connection with the Judiciary Act of 1789,1 and a general clause giving jurisdiction might be limited as to amount to the sum mentioned in the 9th section of that act. The subsequent words, therefore, of the section we are considering, were introduced for the purpose of obviating this construction, and removing the doubt which might otherwise exist, of the right to take cognizance of sums less than $100. After giving the jurisdiction generally, the words are," although the debt, claim, or other matter in dispute, shall not amount to $100." These words do not confine the jurisdiction previously given to $100, but prevents it from stopping at that sum. The jurisdiction of the district courts, then, over suits brought by the postmaster-general, for debts and balances due the general postoffice, is unquestionable. Has the circuit court jurisdiction?

The language of the act is, that "the district court shall have cognizance concurrent with the courts and magistrates of the several States, and the circuit courts of the United States, of all suits," &c. What is the meaning and purport of the words "concurrent with" the circuit courts of the United States? Are they entirely senseless?

Are they to be excluded from the clause in which the legis [148] lature has inserted them, or are they to be taken into view, and allowed the effect of which they are capable?

The words are certainly not senseless. They have a plain and obvious meaning. And it is, we think, a rule, that words which have a meaning, are not to be entirely disregarded in construing a statute. We cannot understand this clause as if these words were excluded from it. They, perhaps, manifest the opinion of the legislature, that the jurisdiction was in the circuit courts; but ought, we think, to be construed to give it, if it did not previously exist. Any other construction would destroy the effect of those words. The district court cannot take cognizance concurrent with the circuit courts, unless the circuit courts can take cognizance of the same suits. For one body to do a thing concurrently with another, is to act in conjunction with that other; it is equivalent to saying, the one may act together with the other. The phrase may imply that power was previously given to that other; but if, in fact, it had not been given, the words are capable of imparting it. If they are susceptible of this construction, they ought to receive it, because they will otherwise be totally inoperative, or will contradict the other parts of the sentence, which show plainly the intention that the district court shall have cognizance of the subject, and shall take it to the same extent with the circuit courts.

1 Stats. at Large, 73.