United States Fidelity & Guaranty Co. v. United States

91 F.2d 848, 1937 U.S. App. LEXIS 4361

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 25, 1937
• Docket: No. 8200
• Status: Published

Opinions

FOSTER, Circuit Judge.

The United States brought this suit against Alto A. Gunter and the United States Fidelity & Guaranty Company, respectively principal and surety on the official bond given by Gunter when acting as collector of customs for customs collection district No. 21, to recover $2,024.30, money embezzled by Wilbur Cooke, deputy collector for the same district. Motions of defendants for a directed verdict were overruled. The court charged the jury that defendants were liable and left nothing for the jury to decide but the amount of the embezzlement. There was a verdict in favor of the United States for $1,250.42, upon which the judgment appealed from was entered. Other provisions of the judgment are not material to this appeal. Error is assigned to the denial of the motions for verdict and to the charge of the court fixing liability.

The question for decision is whether Cooke was an independent officer of the customs for whose defalcations Gunter was not responsible¹ or was Gunter’s agent for whose acts he was accountable. This presents a mixed question of law and fact.

The following material facts are not in dispute: Customs collection district No. 21 includes as separate ports of entry Port Arthur and Beaumont, Tex., which are some 20 miles apart, with headquarters at Port Arthur, where Gunter was stationed. Ships coming to the district are boarded off the bar at Sabine by customs officers, but if destined to Beaumont they are entered and cleared there and not at Port Arthur. Gunter was assistant collector of customs for the district. Under provisions of the Act of March 4, 1923, § 4 (19 U.S.C.A. § 8), he was required by the Secretary of the Treasury to act as collector of the district and to give the bond in suit. He served in that capacity from June 27, 1928, to January 28, 1929. The condition of the bond is as follows :

“The condition of the foregoing obligation is such, That whereas the Act approved March 4, 1923, ‘An Act to provide the necessary organization of the Customs Service, etc., requires the said Alto A. Gunter to act as Collector of Customs for Customs Collection District No. 21, with headquarters at Port Arthur, Texas, until a Collector has been appointed and duly qualified.

“Now, therefore, if the said Alto A. Gunter has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office, according to law (including disbursements made by direction of the Secretary of the Treasury under authority of section 3639, U.S.Revised Statutes [31 U.S.C.A. § 521 and note]), then the above obligation to be void and of no effect; otherwise, it shall abide and remain in full force and virtue.”

Cooke was given a probationary appointment for six months as deputy collector of customs at Beaumont on July 17, 1916, by the Secretary of the Treasury, pending a final decision as to making Beaumont a regular customs station. Cooke was regularly appointed deputy collector of customs in charge at Beaumont about February 15,' 1921, took the oath required by statute, and executed a bond to Robert E. Latimer, the then collector of the district, in the sum of $1,000, to guarantee the faithful performance of his duties. This bond was renewed and kept in force until May 3, 1929,' when it was superseded by another bond. Both the oath and bond recite that Cooke had been appointed to serve as deputy collector in charge of the customs station at Beaumont, Tex.

Cooke was also customs inspector and assistant appraiser of merchandise. He was in sole charge and the only customs officer at Beaumont. He entered and cleared all vessels entering the port of Beaumont and collected all fees and dues from them. He also collected duties on goods imported. Except the amounts he embezzled, he deposited all moneys of the United States he received in the Federal Reserve Bank at Houston or in the designated federal depository at Beaumont to the credit of the Treasurer of the United States according to his instructions. Cooke kept the required itemized account of the amounts collected and of the deposits he made, except the amounts embezzled, which he omitted from his records. He made out a report monthly from his records and sent one copy direct to Washington. He sent one copy to Gunter at Port Arthur. This copy was not kept at Port Arthur, but was required to be forwarded by Gunter to the auditor at Washington. Cooke also made daily reports to Gunter, but these consisted only of the manifests of ships arriving at Beaumont.

The petition alleged embezzlement of fees and duties received from nine vessels, but the record is silent as to five of these items. He embezzled approximately the amount of the tonnage dues paid by the following vessels, the Rotterdam, the Lumina, and the Markland, which vessels arrived at Beaumont respectively on July 27, August 22, and October 6, 1928. These vessels respectively paid tonnage dues of $301.-62, $224.12, and $226.34. He also embezzled $505.96, import duties on goods brought in by the ship Edgemore, which arrived at Beaumont on December 6, 1928. Cooke made entries in his books and deposited and accounted for all the fees received from these ships except the tonnage dues and the import duties he embezzled. The judgment entered was based on these four items.

Cooke testified, without contradiction, that in respect of tonnage dues, after a vessel had visited Beaumont five times in one year, she was. exempt from payment of the tonnage tax on the next trip. Certificates were made out for tonnage dues and given to the master of the ship, but no record was kept at Port Arthur or Beaumont of the number of times the ship visited the port in one year. Cooke also testified that Gunter frequently came to Port Arthur and looked over his books; that inspectors were sent from Washington to audit his accounts, from time to time; but that no auditor could detect his embezzlement from an inspection of his records.

Gunter testified that he did not at any time while acting as collector have any reason to suspect Cooke of being guilty of embezzlement or defalcation; and that the embezzlement was discovered through an incident which revealed an irregularity in collecting funds and carrying them over for some ten.days.

The Secretary of the Treasury is authorized by law to appoint deputy collectors of customs and prescribe their duties when not otherwise defined by law. 19 U.S.C.A. § 6. Deputy collectors so appointed have authority by law to receive entries, collect duties, and to perform any and all functions prescribed by law for collectors of customs, subject to such regulations and restrictions as the Secretary of the Treasury shall prescribe, 19 U.S.C.A. § 36, and the Secretary of the Treasury is authorized, whenever in his opinion the public interest demands it, to clothe any deputy collector, at a port other than the district headquarters, with all the powers of his principal appertaining to his official acts; and may require such deputy to give bond to the United States in such amount as he may prescribe for the faithful performance of his official duties. 19 U. S.C.A. § 37.

The Customs Regulations provide, in substance, as follows: Under article 1182 deputy collectors are designated as officers of the customs and required to perform the functions prescribed by law for collectors, except the disbursement of moneys. Article 1183 provides that deputy collectors in charge of ports of entry shall, under the general supervision and direction of collectors, enter and clear vessels, receive entries of merchandise, collect duties, fees, and other moneys, issue documents to v'essels, and perform all other services prescribed by law, the regulations of the department, or the instructions of the collector. Such deputy collectors in charge shall be bonded to the collector in a reasonable sum. Article 1078 provides that all collections at a port of entry in charge of a deputy collector shall be deposited daily by him in the designated depository at the port of collection, to the credit of the Treasurer of the United States in the name of the collector for the district.

In addition to the above-cited statutes and regulations, in determining the accountability of Gunter and Cooke, it is necessary to consider the provisions of Rev.St. § 3639, as amended, 31 U.S.C.A. § 521. The section refers to many public officers by designation and provides that collectors'of customs, surveyors of customs acting as collectors, and all public officers of whatsoever character are required to keep safely all public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper department or officer of the government, to be transferred or paid out. The statute does not specifically mention assistant collectors of customs acting as collectors or deputy collectors of customs, but they would be included in the general clause applying to all public officers. By intention and necessary implication, they are covered by the statute.

From the above-cited facts, statutes, and regulations, it is plain that Cooke was an independent officer of the customs in full charge at Beaumont, a separate port of entry, with all the powers and duties at that port of the collector of the district. He collected money of the United States which it was his duty to hold safe until directed by proper authority to transfer it. He was directed by the Secretary of the Treasury to transfer it to the Treasurer of the United States by depositing it in the designated banks. Gunter had no duties to perform in respect of this money.

Nevertheless, it is argued on behalf of the government that because the Secretary of the Treasury did not require a bond from Cooke in favor of the United States, 19 U. S.C.A. § 37 does not apply; and that by failing to exact a bond from Cooke, Gunter was guilty of a breach of duty. Under section 37 it was discretionary with the Secretary of the Treasury to require a bond from Cooke in favor of the United States. His discretion was exercised by the regulation requiring a bond to the collector of the district. Gunter could not have exacted a bond from Cooke to himself as there was an existing, valid bond in favor of the collector of the district which was available to Gunter and the United States.

It is also argued that the provision of article 1078 above cited that the money should be deposited in the name of the collector of the district made Gunter accountable for it. If the provision be strictly construed, it has no application as there was no collector of the district. But at most it is a mere detail. The important provision is that the money be deposited to the credit of the Treasurer of the United States, thereby transferring it and putting it out of the possession of the officer collecting it.

It is further contended on behalf of the government that although Cooke was a deputy collector in charge at Beaumont, he was an agent and subordinate of Gunter as Gunter had supervisory jurisdiction over him; and that Gunter as collector of the district, which must be considered as a whole, was accountable for all the money collected by Cooke and responsible for its payment to the United States.

It is a general rule that when public money of the United States for which he is accountable is actually or constructively in the custody of a federal official, through a subordinate, embezzlement by the subordinate is not a defense to a suit on the bond of the official. In this connection it is immaterial whether the subordinate is appointed under the civil service laws or directly by the official. Boyden v. U. S., 13 Wall. 17, 20 L.Ed. 527; Smythe v. U. S., 188 U.S. 156, 23 S.Ct. 279, 47 L.Ed. 425; Cleveland, Columbus, etc., R. R. v. McClung, 119 U.S. 454, 7 S.Ct. 262, 30 L.Ed. 465; Bryan v. U. S. (C.C.A.) 90 F. 473, 53 L.R.A. 218; Pond v. U. S. (C.C.A.) 111 F. 989; Dignan v. Shields, 51 Tex. 322. It may be noted that in Pond v. U. S. the bond also covered the collector’s deputies and section 3148, Rev.St. referred to has been omitted from the code.

It is true Gunter had general supervisory authority over Cooke and the right to give him instructions pertaining to his duties, supplementary to and not in conflict with the law or the Treasury Regulations, but that fact of itself would not make him responsible for Cooke’s embezzlement if Cooke were an independent officer of the customs, himself accountable directly to the United States. As well might it be said that the Secretary of the Treasury,'who has absolute control of all customs officials, would be responsible for that reason. In the view we take of the case, it does not fall within the rule above set out. Decisions tending to support the rule are not in point. We conclude that Cooke was an independent officer of the government and accountable direct to the United States for moneys he collected in his official capacity as deputy collector of customs in charge of the separate port of entry of Beaumont and that Gunter was not responsible for Cooke’s embezzlements. The following authorities, although not controlling, are persuasive and tend to support these views: Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286, 32 L.Ed. 203; U. S. v. Collier, Fed.Cas. No. 14,833; State v. Kolb, 201 Ala. 439, 78 So. 817, 1 A.L.R. 218; Scott County v. Fluke, 34 Iowa, 317.

In United States v. Collier, supra, a note by the reporter indicates the judgment was affirmed by- the Supreme Court, the justices being equally divided. While this adds nothing to the authority of the decision, neither does it detract from it. In Cleveland, Columbus, etc., R. R. v. McClung, 119 U.S. 454, 7 S.Ct. 262, 30 L.Ed. 465, and Dignan v. Shields, 51 Tex. 322, cited above as authority for the general rule, the deputy collectors of customs were acting as cashiers in the office of the collectors at the headquarters port and neither was in charge of a separate port of entry. These cases do not compel a conclusion different from that above stated.

The condition of the bond does not cover defaults by Cooke and there is no statute or regulation to be read into it that would make Gunter and his surety liable at all events. However, in view of a new trial, we may consider whether Gunter was guilty of any breach of duty that would make him responsible under the condition of his bond. This would require a showing of causal connection between the loss and Gunter’s negligence or disregard of duty. Deal v. U. S., 274 U.S. 277, 47 S.Ct. 613, 71 L.Ed. 1045. The duties of collectors of customs as prescribed by statute are, generally, to enter and clear vessels arriving in port, collect fees and duties, and keep proper records and make reports of same. 19 U.S.C.A. §§ 33, 34, 35. A collector is required to take an oath of office in which he swears “that he will use his best endeavors to prevent and detect frauds against the laws of the United States imposing duties upon imports.” 19 U.S.C.A. § 21. This also defines part of his duties. Gunter had general supervision over Cooke and was bound to use reasonable care and prudence in exercising it, but it was not his duty to audit Cooke’s accounts nor was he obliged, unless his suspicions were aroused, to seek extraneous evidence to verify them. It appears from the record that Cooke had been in the post office department under his true name of Wm. H. Cook and was dismissed for offenses, but it does not appear that he was prosecuted criminally. It is not shown that this was known to Gunter or any one else in the custom service Cooke had been in charge at Beaumont for some sixteen years before his embezzlement involved in this suit occurred. No doubt in that time he had built up a reputation for honesty and efficiency. The monthly statements transmitted by Cooke through Gunter would not necessarily arouse suspicion as to the collection of tonnage dues as there was no way for Gunter to determine from them whether the vessel was exempt on that particular trip. The daily statements sent to Gunter perhaps would show that the vessel brought in dutiable merchandise, but did not necessarily show'whether the duty had been collected as the goods might have been landed under bond for storage or transshipment. Nor would it appear from the monthly statements that import duties had not been collected. Gunter testified that he entertained no suspicion of Cooke. Cooke testified that his embezzlements could not have been detected by an audit of his books. To show that Cooke was an embezzler was not evidence of breach of duty by Gunter. It is certain that the most meticulous discharge of his duties by Gunter would not have prevented the first embezzlement. And this is true in only a slightly lesser degree as to the others. The conclusion we reach is that Gunter was not guilty of any breach of duty that would warrant a recovery on his bond against him or his surety.

Considering the facts shown by the record, appellant was entitled to a directed verdict. Having overruled the motion to that effect, it was the duty of the court to charge the jury fully as to the basis of liability alleged. For the errors assigned, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

1 “Know all men by these presents, that we, Wilbur Cooke, of Beaumont, Texas, as principal and the United States Fidelity & Guaranty Company, Baltimore, Md. as surety, are held and firmly bound unto Robert E. Latimer,, the Collector of Customs for Collection District No. 21, and to his successors, in the sum of One Thousand No/100 dollars ($1000.00) for the payment of which, well and truly to be made, we bind ourselves, jointly and severally, our joint and several heirs, executors, administrators, successors and assigns, firmly by these presents.

“Sealed with our seals and dated this 15th day of August, 1916.

“The condition of the foregoing obligation is such that whereas the Secretary of the Treasury has appointed the said principal to the office of Deputy Collector of Customs in charge of the port of entry of Beaumont, Texas, in Customs Collection District No. 21:

“Now, Therefore, if the said Wilbur Cooke has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge all the duties of the said office according to law, subject to such regulations as the Secretary of the Treasury shall proscribe and shall truly account for all moneys and property collected by or intrusted to him and shall save the said Collector of Customs harmless from any liability or damage incurred by him by reason of any wrongful act or omission of said principal, then the above obligation shall be void and of no effect; otherwise, it shall remain in full force and effect.”