8 U.S. 169
4 Cranch 169
2 L.Ed. 584
STHRESHLEY AND OBANNON
v.
THE UNITED STATES.
February Term, 1807
THIS was an action of debt, brought by the United States in the district court of Kentucky district for the penalty of an official bond given by Sthreshley, with Obannon as his surety, dated the 13th of September, 1796, the condition of which was 'that whereas the said Thomas Sthreshley is appointed, under the acts of congress laying duties upon spirits distilled within the United States, and upon stills, a collector of the revenue which shall or may arise, by virtue of the several acts of congress; to be computed from the first day of July, 1796, and to continue until revoked by the supervisor within the counties of Fayette and Clarke, being the first division of the first survey of the district of Ohio.
Now if the said Thomas Sthreshley, his heirs, executors or administrators, shall well and truly superintend the several distilleries and stills, and collect all other duties by law required of him, as mentioned in his said commission, in his division, shall do and perform all the several duties which by law is or shall be required to be done at or within the same; shall collect the duties arising thereon according to law, and duly account for and pay the same to the supervisor of the said district, or some other officer of the United States duly authorised; then this obligation to be void, or else to remain in full force and virtue.'
The defendants pleaded, 1st, general performance; and 2dly, that the appointment of Sthreshley was revoked on the 1st of July, 1797, and that he faithfully executed and discharged all the duties of his said office according to law, accruing from the said 1st day of July, 1796, until the 1st day of July, 1797, inclusive, and all things relative thereto.
The breach, assigned in the replication, was, that Sthreshley 'did not well and truly account for and pay to the supervisor of the district in his said obligation mentioned, or to any other officer of the United States duly authorised to receive the same, the several duties an sing and accruing within his said division during his continuance in office, under the laws of the United States and his said commission, and which by virtue of the said obligation and commission the said laws of the United States did require him to account for and pay over; but hath failed therein and is in arrear to the said United States in the sum of two thousand one hundred and seventy-one dollars and twenty-nine cents, and three fourths of a cent;' upon which breach an issue was tendered and joined; upon the trial whereof a bill of exceptions was taken by the defendants to the refusal of the court to admit evidence that at the time of the revocation of his commission, there were outstanding and uncollected by him duties to the amount of 2,285 dollars and 83 cents which had accrued during his continuance in office, and which constituted part of the account charged against him and for the balance whereof the present suit was brought; and that the defendant had delivered over to his successor in office true accounts of the said outstanding duties, for collection.
This evidence was rejected under the opinion that the defendant, although his commission was revoked, had authority and was in law bound to collect all the outstanding duties which had accrued during his continuance in office.
The verdict and judgment in the court below, being in favor of the United States, the defendants brought their writ of error.
H. Marshall, for plaintiffs in error, suggested a doubt whether the bond was not void, inasmuch as there was no law of the United States which authorised the supervisor to demand it, or required the officer to give it.
JOHNSON, J. How can that question arise upon the plea of performance?
H. Marshall. If the bond is totally void, it will not support a judgment under any form of pleading. He did not, however, mean to press the objection.
The principal question, viz. whether the power of the officer to collect the outstanding duties which had accrued while he was in office, ceased with his removal, was submitted without argument.
Rodney, Attorney General, referred the court to the laws of United States, Vol. 1. p. 304. s. 5, 6 and 16.—Vol. 2. p. 82.—Vol. 3. p. 80 and 421.—and Vol. 4. p. 191.
February 28.
MARSHALL, Ch. J. delivered the unanimous opinion of the court, that the power of the officer to collect the outstanding duties ceased upon his removal from office, and devolved upon his successor.
A contrary construction would be extremely injurious to the revenues of the United States, and could not have been intended by the legislature.
The officer can only be liable to pay over the money he has collected, unless he is charged with a neglect of duty in not collecting.
In the present case the breach assigned is for not paying, and no breach is assigned in not collecting, the duties. The bill of exceptions shows that the defendant Sthreshley had paid over and accounted for all the duties he had collected.
Judgment reversed.
Last modified: October 1, 2009