Act of 7 May, 1822 (3- Stat. at L.. by L. & B., 696, ch. 107, sec. 18), which took effect 1st July, 1822. enacts: "No collector, surveyor or naval officer, shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor or naval officer, and the fines and forfeitures allowed by law for any services he may perform for the United States in any other office or capacity."

The said Stewart has been allowed, in the adjustment of his accounts, the said sum of $400 annually, since the 30th June, 1822, over and above his compensation as Collector, and the fines and forfeitures allowed by law. But notwithstanding the said Act of 1822, Mr. Stewart claimed to be allowed the further compensation, at the rate of $3 per day from the 1st of July, 1822, during his continuance in office, until the 14th of January, 1833, which the accounting officers of the Treasury have uniformly rejected, as often as presented, since the said 1st July, 1822.

This rejected claim of $3 per day as inspector of the customs, while he was also collector of the district, is the subject of the bill of exceptions, and of this writ of error, by Mr. Stew

art.

*

That the offices of collector of the district and of inspector of the customs are distinct and separate, is admitted; but that does not make an exception from the inhibition of the Act of 1822. that no collector * * shall ever receive more than $400 annually, exclusive, etc., for any services he may perform for the United States in any other office or capacity."

The 21st section of the Act of 2d March, 1799, to regulate the collection of duties on imports and tonnage (1 Stat. at L., by L. & B., sec. 642, ch. 22), shows that the several of fices of collector, naval officer and inspector, are distinct.

The appointment, as a constitutional act, lies with the Secretary of the Treasury, the language of the Statute being quite inexact, and running as if the Secretary merely possessed a power of approving or disapproving. In fact, he, and he alone, appoints.

Marbury v. Madison, 1 Cr., 137, 155; U. S. v. Batchelder, 2 Gal., 15; U. S. v. Wood, 2 Gal., 361; Mr. Legare's Opinion, Opinions Atty. Gen., pp. 1577, 1579.

But the inconvenience remains, of having the collector, as collector, employ himself as inspector. Act to Establish the Compensations of Officers employed in the Collection of Imports and Tonnage, 1 Stat. at L., by L. & B., 707, ch. 23, sec. 2.

The compensation to inspectors was increased by a subsequent Act, so that the maximum of allowance is $3 per day.

By the Act to regulate the collection of duties on imports and tonnage, approved 2d March, 1799 (1 Stat. at L.; by L. & B., p. 642, ch. 22, sec. 21), "The surveyor shall superintend and direct all inspectors, weighers, measurers and gaugers within his port; and shall, once every week, report to the collector the name or names of such inspectors, weighers, gaugers or measurers, as may be absent from, or neglect to do, their duty. And at the ports to which a collector only is assigned, such collector shall solely execute all the duties in which the co

operation of the naval officer is required, as aforesaid, and shall also, so far as may be, perform all the duties prescribed to the surveyors. at the ports where such offices are established."

Mr. Justice Daniel delivered the opinion of the court:

This case comes before us upon a writ of error to a judgment of the Circuit Court of the United States for Washington County, in the District of Columbia, in favor of the defendants in error, against the plantiff, as Collector of the revenue for the District of Michilimackinac. The jury, upon the trial in the Circuit Court, rendered a verdict for the defendants in error for the sum of $638.81, with interest thereon from the 13th day of January, 1833; and for this amount the court, at its October Term, 1852, gave judgment.

The questions of law passed upon and reserved by a bill of exceptions in the court below, and which this court are now called on to review, arises from the following agreed statement of facts, viz. :

That on or about the 12th March, 1818, the defendant was appointed by the President of the United States, collector for the district of Machilimackinac, and inspector of the revenue for the port thereof; which offices he continued to hold, by succcessive reappointments, and to receive the emoluments of, till the 15th day of January, 1833.

"That on or about the 1st April, 1819, the defendant was appointed, by the Secretary of the Treasury, inspector of the customs for the port of Michilimackinac; which office he continued to hold, under his original appointment, until January 15th, 1833. The defendant's is the only case found on record of a collector holding at the same time the office of inspector of the customs. His allowance, in that cap. acity, was fixed by the Secretary at $40 a month, and so continued until the second quarter of the year 1820, when it was increased by the Secretary to $3 per day, the maximum allowance permitted by law to a regular inspector of the customs. The defendant continued to be paid, as inspector of the customs, at this rate, till the 1st of July, 1822, when the Act of Congress of 7th May, 1822, went into effect, entitled: An Act further to establish the compensation of officers of the customs, and to alter certain collection districts, and for other purposes.' (3 U. S. Stat. at L., 693.) The 18th section of this Act is as follows: 'No collector, surveyor or naval officer shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law for any services he may perform for the United States in any other office or capacity.'

"A copy of the foregoing law was duly transmitted by the Treasury Department to the defendant. In his accounts for the 3d and 4th quarters of the year 1822, the defendant charged compensation at the rate of $3 a day, as inspector of customs, which charge was disallowed at the treasury; and in his accounts for the three first quarters of the year 1823, he charged compensation at the rate of $40 a month, as inspector of the customs, which latter charge was also disallowed at the treasury. The defendant rendered several other accounts,

containing no charge as inspector of the customs, till the end of the year 1824. In a treas ury settlement, made at that date, the defendant is credited with $1,000, the amount of an allowance made by the Secretary of the Treasury to the collector, for services as inspector, from 1st July, 1822, to 31st December, 1824, at $400 per annum.' In his account rendered for the 1st quarter of the year 1825, the defendant charged himself with the balance found due from him on the next preceding set tlement, in which he had been allowed but $400 per annum as inspector of the customs; and in his several successive settlements from that time to 31st December, 1831, continued to charge only $400 per annum as inspector of the customs."

"By the Act of 2d March, 1831, 'to regulate the foreign and coasting trade on the northern, northwestern and northeastern frontiers of the United States, and for other purposes' (4th U. S. St. at L., 487), the compensation of every collector on the northern and northeastern and northwestern lakes and rivers, was fixed at an amount equal to the entire compensation received by such officer during the past year.' The defendant was credited, in 1831, and subsequently, with the compensation allowed to him in 1830, being $835,5%, which included $400, allowed him as inspector of the customs. In 1832, he charged his compensation under the law; but in the 4th quarter of that year he claimed the difference between $400 and $1,095 a year, from the 30th of June, 1822, to the 31st of December, 1832, being $7,297,5%, for ten years and six months. This claim was, before the commencement of this suit, presented to the accounting officers of the treasury for their examination, and was disallowed. On the fore going evidence the counsel for the defendant prayed the court to instruct the jury as follows: That the 18th section of the Act of Congress, passed on the 7th of May, 1822, farther to establish the compensation of the officers of the customs, &c., was not intended to operate, and ought not to be construed as operating, so as to limit the salary or compensation of any district officer, which may by distinct and independent appointment be vested in the person of one holding at the same time the separate office of collector, surveyor, or naval officer; and that such limitation applies only to cases where the collector, surveyor, or naval officer is called to perform services in any other office or capacity, in virtue of, and as an incident to his office; not to any case where either of those officers was appointed to and executed the duties of another separate office, whilst collector, surveyor, or naval officer."

*If, therefore, the defendant was appointed to, and held and exercised the office of inspector of customs, at the same time as that of collector of Michilimackinac, such office of inspector was not within the purview of the 18th section of the said Act.

Which instruction the court refused to give."

In the above statement of the claim of the plaintiff in error there is an apparent confusion in terms, which it may be proper here to mention, although its elucidation is not deemed essential to the decision of this case. Thus, it is said that the plaintiff in error was, in March,

1818, commissioned by the President, collector for the district of Michilimacinac, and inspector of the revenue for the port thereof, which offices he held by successive commissions until the 15th January, 1883. In the next place it is stated that the plaintiff in error was, on the 1st of April, 1819, appointed by the Secretary of the Treasury inspector of the customs for that port, which latter office he also continued to hold under this appointment until the 15th of January, 1833.

If by these two statements a distinction is designed between the office of inspector of the revenue and that of inspector of the customs, this court can perceive no warrant for any such distinction, but must regard the terms used as properly applicable to those inspectors or agents who, by the 21st section of the Revenue Law of March 2, 1799, are authorized, together with weighers, gaugers and measurers, to be employed by the collectors, with the approbation of the officer at the head of the Treasury De partment.

Again, regarding as we do the place of inspector, alleged to have been conferred by each of the appointments spoken of by the plaintiff, to be the same in character and objects as provided in the Statutes, there would be a manifest irregularity in an attempt to refer its origin and commencement to different sources of creation, and thus to cover the same duties and obligations, and for the same period of time, under the guise of distinct and separate commissions.

The foundation of the claim preferred by the plaintiff in error, rests on the position that the offices of collector and surveyor are separate and different in their character, and in the powers and duties allotted to each; and that under his separate commission, and in the discharge of his separate and appropriate duties, each officer is entitled to his separate and appropriate compensation.

Let us examine this proposition; nay, let it, as a general proposition, be conceded; the inquiry will still remain, how far the concession will sustain the claim of the plaintiff in the present instance.

It is undeniably true, that the Act of Congress of March 2d. 1799, (1 Stat. at L., 642.) creates and enumerates separately the different offices of collector, naval officer, surveyor of the port, inspector, weigher, gauger, and measurer, and defines and prescribes the functions and duties of each respectively. And it is clear that in ports or districts in which all these offices are called into actual existence, the functions and duties assigned to any one of them are not appropriated, in terms nor by necessary implication, to any of the others; on the contrary, those duties and functions, as distributed by the law appear to be different and in some sense incompatible with their union in the same individual, being in some instances in their nature supervisory, and being designed to ensure the fulfillment of a portion of those duties by others.

But whilst this is the case, there cannot be denied to Congress the power, under circumstances satisfactory to themselves, to blend in the same person or office functions or duties which, under another aspect of facts, they have thought it proper to divide and distribute. This is clearly a question of legislative discre

tion, bearing upon views of publie necessity or policy; and accordingly we find, that, in view of such policy or necessity. Congress have, by the very same Act of March 2, 1799, materially modified, and to a certain extent contravened, the previous organization prescribed for the collection of the revenue, adapting such modification to the facts or necessities, as they really exist.

Notwithstanding, however, the power must be conceded to Congress to combine in the same officer duties and powers in their nature seemingly incompatible, that power can be conceded to the legislative authority alone and expressly declared, and cannot be implied upon any sound principle of legal interpretation or of public policy. Congress have, it is true, ordained, in certain conjunctures, the union of the duties of collector, naval officer, and surveyor of the port, but under no circumstances have transferred to either of the officers just enumerated the duties of inspector of the customs. This last named agent, it is said by the Statute, may, with the approbation of the officer at the head of the Treasury Department, be employed by the collector. Under this provision of the Statute the question arises, whether the collector qua collector can, under any circumstances, apart from express legislative direction, become inspector of the customs, or under the authority to employ such an agent can contract with himself to employ himself as such an agent? We are very sure that such a proceeding on the part of the collector is not authorized by the language of the Statute, and we think it not warranted by any sound principle of policy, which on the contrary would inculcate a course tending rather to prevent than to invite to fraud or collusion. The collector therefore is not the inspector virtute officii, nor warranted in employing himself as inspector, nor in assuming the functions, nor in claiming the compensation, allowable to the latter officer.

less can they be regarded as affecting the power of Congress to regulate, prospectively, the duties and emoluments of agents created by its authority. When, therefore, the plaintiff in error advances a claim in the character of inspector, he must establish a legal and competent appointment to the office of inspector, and an appropriation to him of the duties and emoluments incident thereto. For these he has appealed to the revenue law of March 2, 1799; but neither in that, nor in any other revenue law, do we perceive, as appertaining to him as collector, the authority and functions of inspector, nor any right to compensation for the services of the latter officer.

With regard to the allowance of $400 per annum, although accorded to him in settlement as inspector of the customs, it is plain from the language of the Statute of May 7, 1822, sec. 18, that this was intended to provide compensation to the collector, naval officer, and surveyor of the port, for extraordinary services incident to their respective offices, and to them only; and did not embrace the subordinate position of inspector, as to which a different mode and rate of compensation, that is, one graduated by the month or by the day, had been provided. To entitle himself to this latter compensation, the claimant must show himself regularly and exactly in the situation to which the law has allotted it. Upon a consideration of the case, we regard the question properly before us to be this: whether the collector, as such, and in virtue of his office, can claim compensation for services not required by the language of the Statute by which his duties are prescribed, nor inherently nor regularly appro priate to his office; services which the law has, upon obvious principles of policy, imposed on another and a different agent, subordinate to the collector, the performance of which services it is made the duty of the collector to supervise and enforce. We are of the opinion that the Collector could have no such claim, and therefore decide that the judgment of the Circuit Court be affirmed. Judgment Affirmed.

PROPELLER MONTICELLO, JOHN WILSON, Claimant, Appellant,

v.

GILBERT MOLLISON.

(See S. C., 17 How., 153-156.)

Collision between schooner and propeller-insurance paid no defense in action against wrong doer.

on near enough to propeller to be in immediate Collision. Where schooner keeps her course danger of collision, the propeller held to be in fault, under the circumstances.

That the owner of the sunken vessel has received

satisfaction from the insurers, is no defense to the

wrong-doer, respondent.

Argued Dec. 19, 1854. Decided Jany. 16, 1855. APPEAL from the Circuit Court of the

United States for the Northern District of New York.

This case was commenced by libel filed in to Smith v. Condry, 1 How., 28; and note to The NOTE.-Measure of damages in collision. See note Amiable Nancy, 3 Wheat., 546.

the District Court of the United States for the Northern District of New York, by Gilbert Mollison, against the propeller Monticello, elaiming damages for the loss of the schooner Northwestern and a part of her cargo, in consequence of a collision with the said propeller. The libel alleged that the collision was occa sioned by the negligence and unskillful manner in which the propeller was navigated, while the schooner was seaworthy and properly manned and managed. The answer of the claimant denied the negligence, &c., and alleged that the schooner was insured, and that the libelant had been paid the insurance money and could not maintain his suit.

The District Court rendered a decree in favor of the libelant, which decree was affirmed by the Circuit Court, on appeal, and the claimant brought the case to this court.

The case is further stated by the court. Mr. R. H. Gillett, for the appellant: 1. Under the circumstances, it was the duty of the schooner to have kept on her course.

St. John. v. Paine, 10 How., 557; Story on Bailments, sec. 611; Handysyde v. Wilson, 3 Car & P., 528; 1 Wm. Rob., 475; 3 Hagg., 414; Conk. Adm., 307-309.

2. The propeller had a right to act upon the supposition that the schooner would perform her duty. Williamson v. Barrett, 13 How., 101, 109; St. John v. Paine, 10 How., 557.

3. The propeller, being free from fault, is not liable for any consequences to the

schooner.

Strout v. Foster, 1 How., 89,92; Conk. Adm., 29, &c.

4. If the libelant is entitled to recover, he is limited to the damages he has sustained beyond the insurance money he has received; otherwise he would receive double damages for the

loss.

Fretz v. Bull, 12 How., 466.

Mr. A. P. Grant, for the appellee: The two vessels were approaching each other from opposite directions, on the same line dead ahead. Each should have ported her helm and passed the other on her larboard hand.

Abbott on Ship., 310; Ang. Law of Car., 2d ed., 657; The Columbine, 2 Wm. Rob.. 27; 10 How., 557; Conk. Adm., 306.

Judge Leavitt, in the case of The Atlantic, says: There can be no doubt of the existence of the rule that it is the duty of vessels, whether propelled by steam or wind, when meeting dead ahead, or nearly so, to port helm and each turn to the right.

Steam vessels are considered in the light of vessels navigating with a fair wind, and should give way to sailing vessels on either tack. Abb. on Ship., 6th ed., 310; Conk. Adm., 306, sec. 3; St. John v. Paine, 10 How., 557.

The collision having been occasioned by the negligence of the propeller, she is liable for all the damages resulting therefrom. Fitzhugh v. The Genesee Chief, 12 How., 443.

Mr. Justice Grier delivered the opinion of

the court:

The appellee in this case filed his libel in the District Court for the Northern District of New York, against the steam propeller Monticello, in a cause of collision.

The libel sets forth that the libelant is owner

of the schooner Northwestern; that on the 15th of September, 1850, the schooner with a cargo of salt was on her voyage from the port of Oswego, in New York, to the port of Chicago, in Illinois; that about half past eight o'clock in the evening, being about ten or twelve miles from Presque Isle, on Lake Huron, and about six miles from land, sailing with a fair breeze, on the course of west-northwest (the wind bebeing south-southwest), the sparks from the chimney of the propeller were seen some six miles off. In order to give a "wide berth "to the approaching vessel, the schooner ported her helm and ran her course a point more to the north. That when from four to six miles apart, a bright light was placed in a conspicuous position on the schooner, and the vessel held steadily to her course, so that the approaching propeller might not mistake the. course of the schooner. That the propeller exhibited no light, except that occasionally thrown out by the sparks from her chimney. That some time after, the master of the schooner, by close observation, discovered that the propeller was directly forward of the beam of the schooner, close upon her, and steering directly for her. He then hailed the steamboat, and ordered his helm aport, but too late to avoid the collision, which caused the schooner to sink immediately.

The answer admits that the lights of the schooner were seen when five miles off, and states that the steamboat was on a course of east-southeast, and continued on that course for a short time after seeing the light of the schooner; but that, as the schooner appeared "far in shore," in order to give her lake about three quarters of a point; and that the room, the propeller bore away into the lake collision was occasioned by the fault of the schooner in not keeping her course.

The answer also alleges, as a defense, that the schooner and cargo had been insured and abandoned to the insurers, who accepted the abandonment, and had paid the insurance to the libelant, prior to the filing of the libel.

1. On the first point, as to the party to whom the fault of this collision is to be imputed, we entirely concur with the judgment of the District and Circuit Courts. The testimony of libelant's witnesses is consistent, and connected with the admissions of the answer and of respondent's witnesses, is conclusive to show that the fault was in the steamboat. The master of the steamboat was not on board on that occasion; and the testimony of the mate, who had command, and by whose obliquity of vision, or want of judgment, the steamboat was so dexterously brought into collision with the schooner, attempts to excuse his conduct by a statement of facts disproved by all the other witnesses, and demonstrably incorrect. He admits that he saw the bright light of the schooner five miles off. He asserts that the schooner's light appeared on the starboard bow of the steamer; this is clearly a mistake in his statement of facts, or if true, was occasioned by the steamer turning out of her course.

The theory of mere negligence or inattention will hardly account for this collision. Defendant's witnesses admit that they at one time mistook the bright light of the schooner for the Presque Isle lighthouse; and it is evident

that, laboring under this delusion, they must have steered directly for the schooner's light, not discovering their mistake till it was too late to remedy it. The night, though dark, had some starlight, by which the land, some six miles off, showed itself above the horizon. With a channel and room to pass as wide as the lake, with the bright light of the schooner full in view for more than twenty minutes before the collision, it cannot be accounted for, except by the hypothesis of the active co-op eration of the officers of the steamboat, caused by a delusion, under which they continued to labor in consequence of a reckless inattention to their duty.

It is contended, on behalf of the respondent, that the fault of the collision is to be at tributed to the schooner, because she did not keep on her course and leave the steamboat to pass as best she could, according to the rules laid down by this court in the case of St. John | v. Paine, 10 How., 557. The answer to this argument is obvious. When the master of the schooner first observed that he was sailing on a line with the steamboat, and ordered his helm to be ported, so as to avoid being on the track of the approaching vessel, they were seven or eight miles or more apart, not in the narrow channel, but in the wide lake. There was no immediate danger of collision. The order was one of extreme caution; it did not tend to produce the collision, for when the light of the schooner was first seen, five miles off, the schooner was sailing steadily on her course of northwest by north, making an angle of one point with the course of the steamer, and continued on that course till she was run down and sunk.

The rules laid down by this court for avoiding collision, should be strictly adhered to, so that conflicting orders may not produce the collision instead of avoiding it. But in the present case, when the schooner changed her course, the vessels were in no danger of collision, being many miles apart in an open sea. They had not approached to that point of danger which brings the rules of the admiralty into exercise, and makes their observance necessary in order to avoid a collision. When the steamer first discovered the light of the schooner, she was sailing steadily on the course adopted, and continued to do so, till the collis ion was produced by the perverse dexterity of the helmsman of the steamboat.

may sue in his own name. But the same reasons why the wrong doer cannot be allowed to set up as a defense the equities between the insurer and insured, equally apply in both courts. The respondent is not presumed to know, or bound to inquire, as to the relative equities of parties claiming the damages. He is bound to make satisfaction for the injury he has done. When he has once made it to the injured party, he cannot be made liable to another suit, at the instance of any merely equitable claimant. If notified of such a claim before payment, he may compel the claimants to interplead; otherwise, in making reparation for a wrong done, he need look no further than to the party injured. If others claim a right to stand in his place, they must intervene in proper time, or lose their recourse to the respondent.

The insurer may at all times intervene in courts of admiralty, if he has the equitable right to the whole or any part of the damages. Under the 34th rule in admiralty of this court, he may be allowed to intervene, and become the dominus litis, where he can show an abandonment, which divests the original claimant of all interest. See 1 Curtis, 340. Under the 43d rule also he may intervene after decree, and claim the damages recovered, by showing that he is equitably entitled to them. But with all this the respondent has no concern, nor can he defend himself by setting up these equities of others, unless he can show that he has made satisfaction to the party justly entitled to receive the damages.

The judgment of the Circuit Court is therefore affirmed, with costs.

Dissenting, Mr. Justice Daniel:

In the case of The Propeller Monticello v. Mollison, in admiralty, and in those of Clapp v. The City of Providence, and of The Bank of Tennessee v. Horn, I dissent from the opinion and decision of this court; not upon the merits of those cases, but upon the ground of a want of jurisdiction in this court to adjudicate them. The reasons for my objection to the jurisdiction of this court, in cases like those above mentioned, have been so frequently assigned in preceding instances before this court, that a repetition of them, on the present occasion, is deemed superfluous. My purpose is simply to maintain my own consistency in adhering to convictions which are in nowise weakened. Judgment affirmed with costs and interest.

Cited Aff'g 1 Low., 184: 17 How., 156; 1 Wall., 53; Wall.. 267: 6 Wall., 225; 19 How., 317; 15 Otto, 634; 554, 371, 487; 1 Cliff., 82; 5 Ben., 205; 1 Flippin, 617: 1 Woods, 75; 1 Biss., 523; 5 Biss., 380-386; 1 Low.. 2 Low, 558.

AND

THE PRESIDENT, DIRECTORS COMPANY OF THE BANK OF TENNESSEE, Pl'ffs in Er.,

Louisiana

LEWIS B. HORN,

(See S. C., 17 How., 157-160.)

insolvent law-effect of, and constitutionality.

solvent petitioner passes to his creditors after the cession to, and acceptance by, the court.

By a law of Louisiana all the property of an in