U.S. Supreme Court United States v. Ballard, 81 U.S. 14 Wall. 457 457 (1871)
United States v. Ballard
81 U.S. (14 Wall.) 457
ERROR TO THE CIRCUIT COURT FOR
THE NORTHERN DISTRICT OF OHIO
1. Under the Act of June 17, 1864, "To regulate the foreign and coasting trade in the northern, northeastern, and northwestern part of the United States," &c.;, the collectors mentioned in it are entitled to retain for their own use moneys received by them from the owners of steamers and from engineers and pilots by virtue of the 31st section of the Act of August 30, 1852.
2. Where a demurrer to a special plea which is a complete avoidance of the whole cause of action is overruled and the plaintiff does not reply, but suffers judgment to be entered against him on the plea, the court may properly enter judgment on the whole case, though another plea (a general issue) had been (against the rules of good pleading) filed, on which issue was taken, provided the issue thus raised on the last plea have by the judgment on the demurrer been in fact disposed of and so rendered immaterial.
A statute of August 30, 1852, [ Footnote 1 ] requiring annual licenses for steamboats after preliminary inspections, examinations, and certificates, enacts by the 31st section:
"That before issuing the annual license to any such steamer,
the collector or other chief officer of the customs for the port or district, shall demand and receive from the owner or owners of the steamer, as a compensation for the inspections and examinations made for the year, the following sums, in addition to the fees for issuing enrolments and licenses now allowed by law, according to the tonnage of the vessel, to-wit:"
For each vessel of 1000 tons and over . . . $35.00
For each vessel of 500 tons and over
and less than 1000 tons. . . . . . . . . 30.00
* * * *
"And each engineer and pilot, licensed as herein provided, shall pay:"
For the first certificate granted by any
inspector or inspectors, the sum of . . . $ 5.00
And for each subsequent certificate . . . . 1.00
" to such inspector or inspectors, to be accounted for and paid over to the collector or other chief officer of the customs; and the sums derived from all the sources above specified shall be quarterly accounted for and paid over to the United States in the same manner as other revenue. "
In February, 1857, the Treasury Department promulgated certain general regulations under the revenue laws, in which, after stating some other fees, the above-quoted enactments were set forth as part, thus:
"The following enumerated fees are still to be charged and collected at such ports, and accounted for and paid over to the United States by collectors in the same manner as other revenue: "
For admeasuring every vessel in order to the enrolment
or licensing and recording the same:
If of 5 tons and less than 20 . . . . . . . . . $0.30
Of over 20 and not over 70. . . . . . . . . . . 1.00
Over 70 and not over 100. . . . . . . . . . . . 1.50
For certificate of enrolment. . . . . . . . . . .50
For endorsement on certificate of enrolment . . .20
For license, and granting the same, including the bond:
If not over 20 tons . . . . . . . . . . . . . . .25
Above 20 and not over 100 . . . . . . . . . . . .50
Over 100 tons . . . . . . . . . . . . . . . . . 1.00
For endorsement on a license. . . . . . . . . . .20
For permit to land goods. . . . . . . . . . . . .20
For licenses to steamers, as a compensation
for the inspections and examinations made
for the year under the steamboat law,
approved August 30, 1852, in addition to the
fees above mentioned, for issuing enrolments
and licenses to vessels:
For each vessel of 1000 tons and over. . . . . . . . $35.00
For each of 500 and over, but less than 1000 tons. . 30.00
* * * *
For the first certificate granted by an inspector or
inspectors to each engineer and pilot. . . . . . . . . 5.00
For each subsequent certificate. . . . . . . . . . . . . 1.00
But the regulations called the attention of collectors and other officers of customs to the amount and limit of fees in a great variety of other matters, the regulations occupying several pages.
On the 17th June, 1864, [ Footnote 2 ] Congress enacted:
"That each of the several collectors of customs in the following districts on the said frontiers, to-wit: Cuyahoga &c.;, shall receive an annual compensation of $1,000, and in addition thereto the fees now collected under the general regulations of the Treasury Department of February, 1857, and a commission of 3 percentum on all moneys collected and accounted for by them respectively. provided that the aggregate compensation derived from salary, fees, and commissions, shall not in any case exceed the sum of $2,500. . . . And whenever the aggregate of salary, fees, and commissions shall in any case exceed the said sum of $2,500, after deducting the necessary expenses incident to the said office, for during the same period for which said compensation is allowed, the excess shall, in every such case, be paid into the Treasury of the United States. The fees and emoluments of all kinds to be accounted for as provided by the 12th section of the Act of 7th of May, 1822."
This 12th section of the act of 7th of May, 1822, [ Footnote 3 ] enacts that collectors &c.;, shall account, under oath, for all fees and emoluments of office, and in such manner as the Secretary of the Treasury shall prescribe.
These Treasury regulations of February, 1857, and this Act of 17 June, 1864, being in force, the United States brought suit on the official bond of one Ballard, collector at Cuyahoga,
assigning as breach his nonpayment to the government of moneys received according to law from the owners of steamboats, or compensation for inspection and examination, and of moneys received by him according to law for certificates of engineers and pilots. The defendant pleaded nil debet, concluding to the country, and a special plea of confession and avoidance, founded on the above-quoted statute of June 17, 1864, and asserting that the fees for which he was sued were fees collected under the said general regulations of the Treasury, of February, 1857, and such as he had a lawful right to retain; the whole, with commissions of 3 p.c. on moneys collected and accounted for, amounting to but $2,322.
Upon the first plea, issue was joined; to the second, the plaintiff filed a general demurrer, and the defendant his joinder therein. The circuit court overruled the demurrer, and thereupon, without disposing of the issue to the country, rendered judgment for the defendant. Thereupon the government brought the judgment here; the general question in the case being whether, in view of the 2d section of the Act of June 17, 1864, the collectors of the customs mentioned in that act were entitled to retain for their own use moneys received by them from the owners of steamers, and from engineers and pilots, by virtue of the 31st section of the Act of August 30, 1852. A minor point of pleading (arising from the fact that the court below did not send the case to the jury on the issue joined on the first plea) being also raised.
THE CHIEF JUSTICE delivered the opinion of the Court.
The question is whether the description of fees now collected under the general regulations of the Treasury Department of February, 1857, includes the sums collected under these regulations for licenses to steamers, and as compensation for the inspections and examinations made for the year under the Steamboat Act of August 30, 1852, in addition to the fees for issuing enrolments and licenses.
These sums are collected as fees under the regulations, and are not distinguished from the collector's fees proper, except by the circumstance that they are described as a compensation for inspections and examinations. The provision, that these sums shall be quarterly accounted for and paid over to the United States, does not distinguish them from fees and emoluments to be accounted for under the act of the 17th of June, 1864, or under the regulations of the Treasury Department of February, 1857.
The language of the regulations is, that the fees are to be charged, and collected, and accounted for, and paid over to the United States by collectors, in the same manner as other revenue. This language obviously means that they are to be accounted for in all cases, and paid over, unless retained under authority of law. The Act of June 17, 1864, authorizes the collector to retain the fees and a commission of three percent on moneys collected and accounted for, paying over to the Treasury only the excess beyond two thousand five hundred dollars; and there is no distinction in the regulations between the fees for admeasurement, licenses,
&c.;, and the fees for licenses as a compensation for inspections and examinations.
We think, therefore, that the collector was authorized to retain all descriptions of fees paid him not in excess of two thousand five hundred dollars. It follows that the demurrer was properly overruled; and, as the defendant did not think it proper to reply, but allowed judgment to be entered upon the plea, the other plea of nil debet became immaterial, and the judgment was properly entered for the defendant.
It is therefore
[ Footnote 1 ]
10 Stat at Large, 73.
[ Footnote 2 ]
13 Stat. at Large 134.
[ Footnote 3 ]