CLIFFORD, Circuit Justice.
The maximum compensation of the collector of this port as such is $6.000 as was decided by the unanimous judgment of the supreme court. U. S. v. Walker, 22 How. [63 U. S.] 299 (5 [900]*900Stat. 432). The eighteenth section, however, of the act of congress of the 7th of May, 1822, provides that no collector, etc., shall ever receive more than $4,000 annually, exclusive of his compensation as collector, and the fines and forfeitures allowed by law, for any service he may perform for the United States in any other office or capacity. 3 Stat. 69(5. Collectors, at the time this law was passed, were required, in .certain contingencies, solely to execute all the duties in which, otherwise, the co-operation of the naval officer was requisite, and in case of the disability or death of the naval officer, they were also required to act solely until a new appointment was made. 1 Stat. 643. The settled practice of the department also was to require them, without any special law upon the subject, to superintend the light-houses in their respective districts, and to disburse money for marine hospitals and the revenue-cutter service. Such services were uniformly charged as extra services, and as such were allowed by the department. The attention of congress was eventually attracted to the subject, and the result was that the act of the 7th of May, 1822, was passed. The supreme court held that by the true construction of that provision it does not forbid compensation for extra services, which have no affinity or connection with the duties of the office held by the collector. On the contrary, the court held that the provision recognizes such a right, and gives to the collector an additional sum, over and above his salary as an officer, for extra serv- ■ ices rendered as agent, which had no legal connection with his office. Converse v. U. S., 21 How. [62 U. S.] 468. The practice of the department has also uniformly conformed to this rule, as appears by the record in this case. The agreed statement shows that the defendant was appointed, on April 1, 1S57, and continued to perform the duties of the office until March 1, 1861; and it also appears that throughout that period he has been allowed and paid $400 per annum for extra services, in addition to the maximum compensation allowed to the office. The remark, however, should be made that the services for which a ■ compensation has been received are altogether separate and distinct from those charged in set-off, and which are now the subject of dispute. Allusion is made to the subject, not as calling in question the propriety of the allowance, but as showing the settled construction of the provision under which the services were allowed and paid.
The most important objection made to the several claims of the defendant, as exhibited in his set-off, is that every such allowance to a collector for extra services beyond the sum of $400 is prohibited by law, and as that proposition, if sustained, is a complete answer to the entire claim of set-off. it will be first considered.
Support to the proposition is chiefly derived from, or attempted to be derived from, the second section of the act of August 23. 1842, and kindred provisions to be found in subsequent acts of congress. 5 Stat. 510. The prohibition as contained in that provision is that “no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation in any form whatever for the disbursement of public money, or for any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly sets forth that it is for such additional pay, extra allowance, or compensation.” The important words of the section, as contradistinguished from prior provisions upon the same subject, are those which follow the word “therefor,” near the close of the provision. The question as to the true construction of the provision came directly before the supreme court in the case of Converse v. U. S. 21 How. [62 U. S.] 471, and the court expressly held that those words only - show that the legislature contemplated duties imposed by superior authority upon an officer, as a part of his duty, and which the superior authority had, in the emergency, a right to impose, and the officer was bound to obey, although the duties were extra and additional to what had previously been required. “But,” say the court, “those words can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty; and where the service to be performed is of a different character and for a different place, and the amount of the compensation is regulated by law.” Circumstances, such as are recited in the opinion of the court, must be regarded as constituting a case to which the provision under consideration does not apply, else the greatest injustice would be done in numerous eases which may be-supposed, and which are likely, to arise in the ordinary course of public affairs. Were the rule in such cases otherwise, then, indeed, it would be true that an officer of the United States whose salary or compensation does not exceed $10 per quarter, if employed •to proceed to the coast of the Pacific, and there to examine the accounts of all the-principal officers of the government in those distant states, would be entitled to no compensation whatever for his services, although an act of congress directed the proper department to cause the investigation to be made, and fixed the compensation and actually appropriated the money to pay for-such a service. • Foreseeing that such -consequence might follow, the supreme court wisely rejected the construction assumed in the-proposition of the plaintiffs, and adopted the more liberal one to which reference has been made. The reasons for the construction adopted are given at great length in. [901]*901the opinion, and need not be further considered, except to say that, in the course of the opinion, all the acts of congress upon the subject were carefully reviewed. The conclusion of the court was, that the just and fair inference, from all the provisions, is, that no discretion is left to the head of a department to allow an officer who has a fixed compensation any remuneration beyond his salary, “unless the service he has performed is required by existing laws; and the compensation therefor is fixed by law, nor even then if the service performed had any affinity or connection with the duties of the office which he held.” But the converse •of the proposition was also held to be true, that where the service performed was foreign to the duties of the office which he held, and was directed by the proper department in pursuance of the requirements ■of law, and the compensation was fixed by law and actually appropriated, the officer performing the service was entitled to the compensation. Applying that rule to the present case, if is quite obvious what the result must be in respect to each of the three claims presented by the defendant. He does not deny the receipt of the amount claimed by the plaintiffs, but contends that tiie same should be diminished by the set-off filed by him as before explained.
Distilled spirits, wines, and teas when imported were required by the act of March 2, 1799. to be landed under the inspection of the surveyor or other officer acting as inspector •of the revenue for the port, and the officers of inspection were required to brand or otherwise mark the several casks, chests, vessels, and cases containing the importation.
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CLIFFORD, Circuit Justice.
The maximum compensation of the collector of this port as such is $6.000 as was decided by the unanimous judgment of the supreme court. U. S. v. Walker, 22 How. [63 U. S.] 299 (5 [900]*900Stat. 432). The eighteenth section, however, of the act of congress of the 7th of May, 1822, provides that no collector, etc., shall ever receive more than $4,000 annually, exclusive of his compensation as collector, and the fines and forfeitures allowed by law, for any service he may perform for the United States in any other office or capacity. 3 Stat. 69(5. Collectors, at the time this law was passed, were required, in .certain contingencies, solely to execute all the duties in which, otherwise, the co-operation of the naval officer was requisite, and in case of the disability or death of the naval officer, they were also required to act solely until a new appointment was made. 1 Stat. 643. The settled practice of the department also was to require them, without any special law upon the subject, to superintend the light-houses in their respective districts, and to disburse money for marine hospitals and the revenue-cutter service. Such services were uniformly charged as extra services, and as such were allowed by the department. The attention of congress was eventually attracted to the subject, and the result was that the act of the 7th of May, 1822, was passed. The supreme court held that by the true construction of that provision it does not forbid compensation for extra services, which have no affinity or connection with the duties of the office held by the collector. On the contrary, the court held that the provision recognizes such a right, and gives to the collector an additional sum, over and above his salary as an officer, for extra serv- ■ ices rendered as agent, which had no legal connection with his office. Converse v. U. S., 21 How. [62 U. S.] 468. The practice of the department has also uniformly conformed to this rule, as appears by the record in this case. The agreed statement shows that the defendant was appointed, on April 1, 1S57, and continued to perform the duties of the office until March 1, 1861; and it also appears that throughout that period he has been allowed and paid $400 per annum for extra services, in addition to the maximum compensation allowed to the office. The remark, however, should be made that the services for which a ■ compensation has been received are altogether separate and distinct from those charged in set-off, and which are now the subject of dispute. Allusion is made to the subject, not as calling in question the propriety of the allowance, but as showing the settled construction of the provision under which the services were allowed and paid.
The most important objection made to the several claims of the defendant, as exhibited in his set-off, is that every such allowance to a collector for extra services beyond the sum of $400 is prohibited by law, and as that proposition, if sustained, is a complete answer to the entire claim of set-off. it will be first considered.
Support to the proposition is chiefly derived from, or attempted to be derived from, the second section of the act of August 23. 1842, and kindred provisions to be found in subsequent acts of congress. 5 Stat. 510. The prohibition as contained in that provision is that “no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation in any form whatever for the disbursement of public money, or for any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly sets forth that it is for such additional pay, extra allowance, or compensation.” The important words of the section, as contradistinguished from prior provisions upon the same subject, are those which follow the word “therefor,” near the close of the provision. The question as to the true construction of the provision came directly before the supreme court in the case of Converse v. U. S. 21 How. [62 U. S.] 471, and the court expressly held that those words only - show that the legislature contemplated duties imposed by superior authority upon an officer, as a part of his duty, and which the superior authority had, in the emergency, a right to impose, and the officer was bound to obey, although the duties were extra and additional to what had previously been required. “But,” say the court, “those words can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty; and where the service to be performed is of a different character and for a different place, and the amount of the compensation is regulated by law.” Circumstances, such as are recited in the opinion of the court, must be regarded as constituting a case to which the provision under consideration does not apply, else the greatest injustice would be done in numerous eases which may be-supposed, and which are likely, to arise in the ordinary course of public affairs. Were the rule in such cases otherwise, then, indeed, it would be true that an officer of the United States whose salary or compensation does not exceed $10 per quarter, if employed •to proceed to the coast of the Pacific, and there to examine the accounts of all the-principal officers of the government in those distant states, would be entitled to no compensation whatever for his services, although an act of congress directed the proper department to cause the investigation to be made, and fixed the compensation and actually appropriated the money to pay for-such a service. • Foreseeing that such -consequence might follow, the supreme court wisely rejected the construction assumed in the-proposition of the plaintiffs, and adopted the more liberal one to which reference has been made. The reasons for the construction adopted are given at great length in. [901]*901the opinion, and need not be further considered, except to say that, in the course of the opinion, all the acts of congress upon the subject were carefully reviewed. The conclusion of the court was, that the just and fair inference, from all the provisions, is, that no discretion is left to the head of a department to allow an officer who has a fixed compensation any remuneration beyond his salary, “unless the service he has performed is required by existing laws; and the compensation therefor is fixed by law, nor even then if the service performed had any affinity or connection with the duties of the office which he held.” But the converse •of the proposition was also held to be true, that where the service performed was foreign to the duties of the office which he held, and was directed by the proper department in pursuance of the requirements ■of law, and the compensation was fixed by law and actually appropriated, the officer performing the service was entitled to the compensation. Applying that rule to the present case, if is quite obvious what the result must be in respect to each of the three claims presented by the defendant. He does not deny the receipt of the amount claimed by the plaintiffs, but contends that tiie same should be diminished by the set-off filed by him as before explained.
Distilled spirits, wines, and teas when imported were required by the act of March 2, 1799. to be landed under the inspection of the surveyor or other officer acting as inspector •of the revenue for the port, and the officers of inspection were required to brand or otherwise mark the several casks, chests, vessels, and cases containing the importation. When so landed and marked or branded, it was made the duty of the surveyor or chief officer of inspection to give a certificate to the proprietor, importer, consignee, or agent, of the whole quantity of such spirits, wines, or teas, specifying also the name of such proprietor, importer, consignee, or agent, and of the vessel from on board which the importation was landed, and of the marks of each cask, chest, vessel, or ease. 1 Stat. 659. The treasury circular of July 30. 1795. allowed to the supervisors of the revenue for preparing, stamping, and distributing among the inspectors, the sum of one cent for every certificate to accompany foreign and domestic distilled spirits, wines, or teas, which should be actually issued in the surveys and ports of their respective districts. Inspectors of sur-véys and supervisors of the revenue, when acting as such inspectors, were allowed the sum of two cents and one half for every certificate to accompany domestic distilled spirits, signed by them, apd one cent for every such certificate to accompany foreign distilled spirits, signed by them, and issued in the survey under their inspection, or in the ports within the same. When -the revenue act of March 2, 1799, was passed, it became necessary to issue a new circular upon that subject, because the forty-second section of the act devolved the whole duty of providing such blank certificates, under such cheeks and devices as should be prescribed by the proper officers of the treasury, upon the supervisors of the several districts. 1 Stat. 660. The comptroller of he treasury accordingly, on the 28th of October. 1799, issued a new circular, in which he informed the collectors that the duty of numbering and signing all certificates to accompany foreign distilled spirits, wines, and teas bad been devolved upon the supervisors of the revenue. They were allowed by that circular, for preparing, stamping, and distributing among the inspectors of the revenue, the sum of one cent for every such certificate, and the additional sum of one cent for numbering and signing every such certificate, which should be actually issued in the ports comprehended within their respective districts. The duty of preparing and furnishing such certificates was, by the seventh section of the act of April 6, 1802, transferred to collectors; and by the eighth section of the act, it is provided that they shall receive the same compensation as heretofore has been allowed to the supervisors. 2 Stat. 150. Accordingly the secretary of the treasury, Mr. Gallatin, on June 11 of the same' year, issued a circular designating the collector of the customs for this port as the proper officer, under that authority, to furnish such certificates. Granting that the duty is an extra one, still it is a duty directly connected with the office held by the collector, and in no view of the ease can the defendant be entitled to any greater amount from that source of income than the sum of $400 which he has already received.
An examination will next be made of the claim of the defendant for two and a half per cent commissions on all sums disbursed by him in the construction of the marine hospital at Chelsea, in this commonwealth. The authority was conferred upon the secretary of the treasury by the fifth section of the act of March 3, 1855, to erect such marine hospital, for the construction of which the disbursements in this case were made. The sale of the land and buildings previously occupied as a marine hospital was authorized to be made, and a sum of money was appropriated for the construction of the new hospital. equal to the proceeds of such sale; but the act of congress contains no provision fixing the compensation of any disbursing agent, and makes no appropriation for ‘any such purpose. 10 Stat. 669. The subsequent act of June 12, 1858, directs in substance and effect that the collectors of the customs shall act as the disbursing agents of money appropriated for the construction of marine hospitals, and with such compensation, not exceeding one fourth of one per cent, as the secretary of the treasury shall deem equitable and just. 11 Stat. 327. The record shows that $812.55 of the claim of the defendant accrued before the passage of the last-named [902]*902act. authorizing the secretary of the treasury to allow such a compensation. Obviously, all that portion of the claim must be rejected as falling directly within the prohibition of the act of August 23, 1842, as expounded by the supreme couii. Converse v. U. S., 21 How. [62 U. S.] 473. The defendant is clearly entitled to such compensation as the act of June 12, 1858, allows to collectors, as disbursing agents of money for the construction of marine hospitals, but nothing' can be allowed in this suit on that account, because the sum claimed has never been disallowed-by the accounting officers of the treasury. 1 Stat. 575. The result is that no part of this claim can be allowed as a set-off against the demand of the plaintiffs.
Disbursements were also made by the defendant while he held the office of collector, for the light-house establishment, and for purposes outside of the district to which he was appointed, and having no affinity or connection with the duties of the office wliich he held. The sum thus claimed is $9,279, but the agreed statement shows that $564.43 of that sum had not been presented to the treasury department when the suit was brought, and there is no evidence that it has ever been disallowed. The allowance of that sum cannot be made, as there is no evidence to bring the case within any of the exceptions in the act of congress. 1 Stat. 515.
The residue of the claim, amounting to the sum of $8,714.57, was duly presented to the department and was disallowed, as appears by the agreed statement. The services are admitted, and the case, as stated by the parties, falls directly within the rule established by the decision of the supreme court. Converse v. U. S., 21 How. [62 U. S.] 473. The attempt is made to distinguish the case from the operation of the rule there laid down, chiefly upon two grounds. The suggestion in the first place is made that, some parts of the services performed by the collector in that case were not performed by the defendant: but the agreed statement shows, as'the bill of exceptions showed in the case decided in the supreme court, that the sum claimed is two and a half per cent commission upon the disbursement made by the defendant within the period mentioned for light-house purposes, outside of his collection duties, and no evidence is introduced or offered to show that the commission charged is not the proper one, if the defendant is entitled to anything. The respective claims of the defendant were resisted at the department and finally disallowed, upon the ground that he was entitled to nothing; and such is the theory of the plaintiffs here, as is obvious from a careful reading of the agreed statement. The remaining suggestion is that no appropriation was made for any such purpose during the fiscal year ending the 30th of June, 1859, and consequently that no allowance can be made for the fiscal year preceding; but the answer of the defendant to this suggestion is decisive. The unexpended balances of appropriations of a preceding year may always be-applied to the purpose for which they were made in a succeeding year, and undoubtedly it was on account of the excess of the appropriations that the suggested omission occurred. A sufficient amount always stood credited on the books of the treasury, and available as a fund foi that purpose, to pay the just claims of the defendant.
Judgment for plaintiffs. The amount to be computed in conformity to the opinion of the court.