CLIFFORD, Circuit Justice.
Unaided by former decisions, the question is ore which would require an elaborate consideration, but it is not a new question, as will presently more fully appear. U. S. v. Walker, 22 How. [63 U. S.] 303.
Collectors receive a prescribed sum called salary, but their principal compensation is now, and always has been, derived from certain enumerated fees, commissions, and allowances authorized by acts of congress. Provision for such fees, commissions, and allowances was first made by the act of the 31st of July 1789, which also allowed to those officers certain proportions of fines, penalties, and forfeitures. 1 Stat. 64.
Those regulations were not satisfactory, and new ones were enacted in their place, as appears by the act of the 18th of February, 1793, and by the act entitled “An act to regulate the collection of duties on imports and tonnage,” passed on the 2d of March, 1799, and by the compensation act, passed on the same day (1 Stat. 316, 627, 786).
By those several acts collectors of the customs were required to keep accurate accounts of all fees and’ official emoluments by them received, and to transmit the accounts to the comptroller of the treasury; but the collectors were allowed to retain to their own use, the whole amount of emolument. derived from these sources, without any limitation. A maximum rate of compensation was first prescribed, by the act of the 30th of April, 1802, as appears by the third section of that act. 2 Stat. 172.
Whenever the annual emoluments of any collector, after deducting the expenses incident to the office, amounted to more than $5,000, the directions and requirements of the act were, that such collectors should account for the surplus, and pay the same into the treasury of the United States. Collection districts were, by the act of the 7th of May, 1822, divided into two classes, usually denominated the enumerated and the non-enumerated ports. 3 Stat. 693.
Emoluments of collectors for the enumerated ports, under the provisions of that act, might reach the sum of $4.000; but the ninth section of that act provided, that whenever the emoluments should exceed that sum in any one year, the collector, after deducting the necessary expenses incident to his office, should pay the excess into the treasury for the use of the United States. The maximum rate of compensation allowed to collectors of the non-enumerated ports, under the provisions of that act, from all sources of emolument therein recognized and prescribed, is $3,000; and the tenth section of the act contains a provision similar to that contained in the ninth section,' requiring collectors of the non-enumerated ports to account for, and pay over, the excess beyond the amount allowed as the maximum rate of compensation. Under those provisions, collectors’might receive the maximum rate of their offices, if the office produced that amount, after deducting the necessary expenses incident to the office, from all the sources of emolument recognized and prescribed by the then existing laws. No one could receive more than the maximum rate, [1083]*1083and his lawful claim might be much less, according to the amount of business transacted in the office. The compensation of collectors remained without any material change from that time until the act of the 3d of March, 1841, was passed, which is the act that gives rise to the principal question in this case. 5 Stat. 432.
Every collector is required by the fifth section of that act to include in his quarter-yearly account, among other things, all sums received by him for rent and storage of goods, wares, and merchandise stored in the public storehouses, for which a rent is paid beyond the rents paid by the collector.
The supreme court held in U. S. v. Walker, 22 How. [63 U. S.] 313, that, if from such accounting the aggregate sums received from that source exceeded $2,000, the collector, by the true construction of the sec-, tion, was directed and required to pay the excess into the treasury as part and parcel of the public money. But the same court held, that when the sums so received from that source did not in the aggregate exceed $2,000, the collector might retain the whole amount to his own use. and that in no case was he obliged to pay into the treasury anything but the excess beyond the $2,000. The conclusion of the court therefore, was, and it was an unanimous conclusion, 'that the compensation of a collector of one of the enumerated ports may be $6,000, and that the compensation of a collector of one of the other ports may be $5,000, according to the state of the importations, and the amount received from rent and storage. The port of Portland is one of the non-enumerated ports. Consequently the collector here may receive as an annual compensation for his services the sum of $3.000 from the sources of emolument recognized and prescribed by the act of the 7th of May, 1822, provided the office yields that amount from those sources, after deducting the necessary expenses incident to the office, and not otherwise; and in addition thereto, he is also entitled to whatever sum or sums he may receive for rent and storage, provided the amount does not exceed $2,000, but the excess beyond that sum he is required by law to pay into the treasury as part and parcel of the public money. None of these principles are attempted to be controverted‘by the plaintiffs, nor can they be with any success, as they are definitely settled by the unanimous opinion of the supreme court. The plaintiffs admit that such is the fact, but insist that no storage as such, within the meaning of the fifth section of the act of the 3d of March. 1841. ever accrued to the United States from dutiable merchandise warehoused in any other than the public stores mentioned in the sixth section of the act of the 14th of July, 1832. entitled. “An act to alter and amend the several acts imposing duties on imports.” 4 Stat. 591.
They do not controvert the fact that the collector is charged with the custody and control of all merchandise warehoused under the laws of the United States, nor that it is his duty to demand and receive of the importer the appropriate expenses of such custody and control; but the argument is, that none of the sums demanded and received for such expenses are properly denominated storage, unless the merchandise was warehoused and deposited in stores leased by the United States. According to their theory, a collector must account for all sums received for such expenses, in every case under the act of the 3d of March, 1841; but unless the same were received on account of merchandise deposited in a public store held under lease, he must in all cases pay the whole amount into the treasury of the United States. But the construction is one that cannot be sustained. First, because if tlie act of the 3d of March, 1841, applies at all to the case, that part of it that provides for the appropriation of the money so received, is as applicable to the case as that which requires the account. Secondly, because storehouses other than those owned or leased by the United States, were recognized in the acts of congress prior to the act authorizing collectors to retain to their own use all sums received for storage, not exceeding $2,000 in any one year. Wines and distilled spirits, under the act of the 20th of April, 1818, might be warehoused “in such public or other storehouses” as might be agreed upon between the importer and surveyor, or officer of inspection, of the revenue for the port where the wines or spirits were landed. 3 Stat. 469.
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CLIFFORD, Circuit Justice.
Unaided by former decisions, the question is ore which would require an elaborate consideration, but it is not a new question, as will presently more fully appear. U. S. v. Walker, 22 How. [63 U. S.] 303.
Collectors receive a prescribed sum called salary, but their principal compensation is now, and always has been, derived from certain enumerated fees, commissions, and allowances authorized by acts of congress. Provision for such fees, commissions, and allowances was first made by the act of the 31st of July 1789, which also allowed to those officers certain proportions of fines, penalties, and forfeitures. 1 Stat. 64.
Those regulations were not satisfactory, and new ones were enacted in their place, as appears by the act of the 18th of February, 1793, and by the act entitled “An act to regulate the collection of duties on imports and tonnage,” passed on the 2d of March, 1799, and by the compensation act, passed on the same day (1 Stat. 316, 627, 786).
By those several acts collectors of the customs were required to keep accurate accounts of all fees and’ official emoluments by them received, and to transmit the accounts to the comptroller of the treasury; but the collectors were allowed to retain to their own use, the whole amount of emolument. derived from these sources, without any limitation. A maximum rate of compensation was first prescribed, by the act of the 30th of April, 1802, as appears by the third section of that act. 2 Stat. 172.
Whenever the annual emoluments of any collector, after deducting the expenses incident to the office, amounted to more than $5,000, the directions and requirements of the act were, that such collectors should account for the surplus, and pay the same into the treasury of the United States. Collection districts were, by the act of the 7th of May, 1822, divided into two classes, usually denominated the enumerated and the non-enumerated ports. 3 Stat. 693.
Emoluments of collectors for the enumerated ports, under the provisions of that act, might reach the sum of $4.000; but the ninth section of that act provided, that whenever the emoluments should exceed that sum in any one year, the collector, after deducting the necessary expenses incident to his office, should pay the excess into the treasury for the use of the United States. The maximum rate of compensation allowed to collectors of the non-enumerated ports, under the provisions of that act, from all sources of emolument therein recognized and prescribed, is $3,000; and the tenth section of the act contains a provision similar to that contained in the ninth section,' requiring collectors of the non-enumerated ports to account for, and pay over, the excess beyond the amount allowed as the maximum rate of compensation. Under those provisions, collectors’might receive the maximum rate of their offices, if the office produced that amount, after deducting the necessary expenses incident to the office, from all the sources of emolument recognized and prescribed by the then existing laws. No one could receive more than the maximum rate, [1083]*1083and his lawful claim might be much less, according to the amount of business transacted in the office. The compensation of collectors remained without any material change from that time until the act of the 3d of March, 1841, was passed, which is the act that gives rise to the principal question in this case. 5 Stat. 432.
Every collector is required by the fifth section of that act to include in his quarter-yearly account, among other things, all sums received by him for rent and storage of goods, wares, and merchandise stored in the public storehouses, for which a rent is paid beyond the rents paid by the collector.
The supreme court held in U. S. v. Walker, 22 How. [63 U. S.] 313, that, if from such accounting the aggregate sums received from that source exceeded $2,000, the collector, by the true construction of the sec-, tion, was directed and required to pay the excess into the treasury as part and parcel of the public money. But the same court held, that when the sums so received from that source did not in the aggregate exceed $2,000, the collector might retain the whole amount to his own use. and that in no case was he obliged to pay into the treasury anything but the excess beyond the $2,000. The conclusion of the court therefore, was, and it was an unanimous conclusion, 'that the compensation of a collector of one of the enumerated ports may be $6,000, and that the compensation of a collector of one of the other ports may be $5,000, according to the state of the importations, and the amount received from rent and storage. The port of Portland is one of the non-enumerated ports. Consequently the collector here may receive as an annual compensation for his services the sum of $3.000 from the sources of emolument recognized and prescribed by the act of the 7th of May, 1822, provided the office yields that amount from those sources, after deducting the necessary expenses incident to the office, and not otherwise; and in addition thereto, he is also entitled to whatever sum or sums he may receive for rent and storage, provided the amount does not exceed $2,000, but the excess beyond that sum he is required by law to pay into the treasury as part and parcel of the public money. None of these principles are attempted to be controverted‘by the plaintiffs, nor can they be with any success, as they are definitely settled by the unanimous opinion of the supreme court. The plaintiffs admit that such is the fact, but insist that no storage as such, within the meaning of the fifth section of the act of the 3d of March. 1841. ever accrued to the United States from dutiable merchandise warehoused in any other than the public stores mentioned in the sixth section of the act of the 14th of July, 1832. entitled. “An act to alter and amend the several acts imposing duties on imports.” 4 Stat. 591.
They do not controvert the fact that the collector is charged with the custody and control of all merchandise warehoused under the laws of the United States, nor that it is his duty to demand and receive of the importer the appropriate expenses of such custody and control; but the argument is, that none of the sums demanded and received for such expenses are properly denominated storage, unless the merchandise was warehoused and deposited in stores leased by the United States. According to their theory, a collector must account for all sums received for such expenses, in every case under the act of the 3d of March, 1841; but unless the same were received on account of merchandise deposited in a public store held under lease, he must in all cases pay the whole amount into the treasury of the United States. But the construction is one that cannot be sustained. First, because if tlie act of the 3d of March, 1841, applies at all to the case, that part of it that provides for the appropriation of the money so received, is as applicable to the case as that which requires the account. Secondly, because storehouses other than those owned or leased by the United States, were recognized in the acts of congress prior to the act authorizing collectors to retain to their own use all sums received for storage, not exceeding $2,000 in any one year. Wines and distilled spirits, under the act of the 20th of April, 1818, might be warehoused “in such public or other storehouses” as might be agreed upon between the importer and surveyor, or officer of inspection, of the revenue for the port where the wines or spirits were landed. 3 Stat. 469.
Whether deposited in the public or other storehouses, the goods were to be kept under the joint locks of the inspector and importer, and no delivery of the same could be made unless the duties were first paid or secured, nor without a permit in writing, under the hand of the collector and naval officer of the port Custody and control were the same, whether the merchandise was deposited in a public or other storehouse; and whether in the one or the other, the expenses of safekeeping were to be paid by the importer or bis agent. The importer and the proper revenue officer might agree upon a storehouse. as a place of deposit, other than one owned or then held under lease by the United States; but as soon as the merchandise was deposited in the storehouse, and the locks of the inspector were affixed to the doors, it became a public storehouse for the purpose of securing the goods under the warehouse system. Suppose it to be so, still it is contended by the United States that the provisions of the act of the 3d of March, 1S41. do not apply to the bonded warehouses described in the rejoinder of the defendants, because they insist that the bonded warehouses therein mentioned were private bonded warehouses, and they contend that pri[1084]*1084vate bonded warehouses are not public storehouses within the meaning of that act, which in point of fact is the only question of any importance in the case. As before remarked, they concede that the act applies to public stores, and that collectors are in all cases required to account quarter-yearly, but insist that they are not authorized to retain any portion of the amount, because private bonded warehouses are not public storehouses. The instructions of the department require collectors to account quarter-yearly for all sums received as storage, whether the merchandise was warehoused in the stores held under lease, or in bonded warehouses, or in any other storehouses authorized to be used for that purpose, as the depositories of imported dutiable merchandise; and unless the act of the 3d of March, 1841, authorizes that requirement, it is difficult to see on what law the instructions are based. But it is not necessary to place the decision upon that ground, because I am of the opinion that private bonded warehouses are public storehouses within the meaning of that act, and of all the subsequent acts of congress upon the same subject. Entry for warehousing, under the act of the 6th of August, 1846, was required to be made in writing, in such form, and to be supported by such proof, as should be prescribed by the secretary of the treasury. Deposit of the merchandise might be made in the public stores, or in other stores, to be agreed on by the collector or chief revenue officer of the port, and the importer, owner, or consignee; but the requirement was that the collector should first take possession of the merchandise, and such other stores as were to be secured in the manner provided in the prior act, for the deposit in public warehouses of wines and distilled spirits, to which reference has already been made. Appropriate expenses were to be paid by the party making the deposit; and the whole proceedings show that the merchandise in the latter as well as in the former case is regarded as being warehoused in the public storehouses of the United States. 9 Stat. 53.
[On writ of error this judgment was affirmed by the supreme court. 5 Wall. (72 U. S.) 647.]
All of the sums in controversy in the case of U. S. v. Walker, 22 How. [63 U. S.] 299, had been received under that law, and yet the distinction set up in this ease never occurred to the supreme court. On the contrary, the court in that case expressly held that the collectors of the non-enumerated ports might receive, in addition to the $3,-000 authorized by the act of the 7th of May, 1S22, whatever sum or sums they might receive for rent and storage, provided the amount did not exceed 82,000 in any one year; and directed the charges against the defendant in that case to be settled in accordance with those principles. Considered in that point of view, that ease is decisive of the question under consideration. The demurrer, it should be remembered, admits ■whatever is well pleaded. The rejoinder not only alleges that the whole sum sued for accrued for storage between the 20th of January, 1858, and the 18th of April, 1861, inclusive, but that the sum accrued was accounted for quarter-yearly, and retained by the collector by virtue of his office, and that the sum accrued was so accounted for and retained, in sums not exceeding ?2,000 in any one year. Taking the admission as made, then it is clear that the only practical question is, whether the bonded warehouses described in the rejoinder are public storehouses within the meaning of the provisions of the act of the 3d of March, 1841, under which the same accrued, and was received, accounted for quarter-yearly, and retained. Argument upon that question is unnecessary in this court, as the question was recently presented to the court in another district of the circuit, and after full consideration was directly decided in the affirmative. Clark v. Peaslee [supra.]
A repetition of the reasons there given for the conclusion is unnecessary, as the opinion has been published, and is in the hands of the parties in this case. Half-storage had been demanded by the collector in that case, and the same had been paid by the merchant under protest. Having made the payment under protest, he brought suit to recover, back the money, upon the ground that private bonded warehouses were not public storehouses within the meaning of the several acts of congress authorizing the warehousing of dutiable merchandise. Able counsel were heard in support of the proposition, but upon full consideration, this court held otherwise, and gave judgment for the collector. Both parties, I believe, have acquiesced in that judgment as a correct exposition of the law of the case, and until reversed by the supreme court, I must adhere to that opinion. Demurrer overruled. Rejoinder adjudged good. Judgment for the defendants.