author: Mr. Justice Wayne

text:
    The United States, Appellants, v. John Rodman, Assignee of Robert M‘Hardy, Appellee.
    A claim to land in East Florida, founded on a grant by Governor' Kin<f<Sran, to Eobert M'Hardy, dated November 8, 1814, confirmed by the Supreme Court.
    The Supreme Court, in the cáse of the United States v. Clark, 8 Peters, 48, say “ that if the validity of the grant depends upon its being in conformity with the royal order of Spain of 1790, it cannot be supported,” but immediately proceeds to show, “ though the royal order is recited in the grant, that it was, in fact, founded on the meritorious consideration of the petitioner having constructed a machine of great value for sawing timber; the recital of the royal order of 1790, in .this grant, is entirely immaterial, and does not affect the instrument.” „ Held, the recital of the royal order, in this case, is quite immaterial.
    The case of the United States v. Wiggins, 14 Peters, 325, which decided that certain proof of the certificate of Aguilar, Secretary of East Florida, was sufficient, cited; and the decision on that point affirmed.
    The Spanish governors of Florida had, by the laws of the Indies, power to make large grants to the subjects of the crown of Spain. The royal order of Spain of 1790, applied to grants to foreigners. These large grants, before the cession Of Florida to the United States, had been sanctioned for many years by the King of Spain, and the authoritieArepreseriting him in Cuba, the Floridas, and Louisiana. This authority has been frequently affirmed by the Supreme Court.
    All application was made £o the Governor of Florida, in 1814, stating services performed by the petitioner for the government of Spain, and the intention of the petitioner to invest his means in the erection of a water saw-mill; and marking the place where the lands were situated, which were asked for. The Governor granted the land, referring to the merits and services of the applicant, and in consideration of the advantages which would result to the home and foreign trade by the use proposed to be made of the land. Held, that-this was not a conditional grant; and that no evidence of.the erection of a water saw-mill was required to be given to maintain its validity, or induce its confirmation.
    APPEAL' from the Superior Court of East Florida.
    The appellee, as assignee of Robert M‘Hardy, presented a petition to the judge of the Superior Court for the Eastern District of Florida, claiming a tract of land containing sixteen thousand acres, situated in that district, on the west side of the river St. Johns, at a place where there is a spring and stream of fresh water, formerly known by the name of “ Old Stores.’?
    The claim was alleged to be founded on a grant, dated November 8,1814, by Governor Kindelan^ the Spanish governor of East Florida. The claim was opposed by the United States.
    The Superior Court of East Florida decided in favour of the claimant, and the United States prosecuted this appeal.
    The case is fully stated in the opinion of the Court.
    It was argued by Mr. Gilpin, Attorney General for the United States; Mr. Downing appeared as counsel for the appellee.
    Mr. Gilpin contended that the decision of the Court below should be reversed, on the following grounds:
    1st. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made.
    2d. That if it be proved or admitted that the alleged grant or concession was ever made, still, that the same was not in conformity to the royal order of 29th October, 1790, by virtue of which it is declared that the concession was made.
    3d. That if it be proved or admitted that the alleged grant or concession was ever made, an$ that it was in conformity to the royal order of 29th October, 1790, still, that the same was granted or conceded, on the condition that the claimant should build a water saw-mill on the land so conceded, which condition never has been complied with.
    4th. That the concession, if ever made, being conditional, and the conditions unperformed, it was incumbent on the claimant to assign reasons sufficient for the non-performance; which he has not done.
    Mr. Gilpin: — This is a claim for sixteen thousand acres of land, on the west side of the river St. Johns; founded on an alleged concession to Robert M'Hardy, by Governor Kindelan, dated 8th November, 1814.
    The Superior Court of East Florida adjudged the claim to be valid. The correctness of this decree is contested by the United States, because there is not, as they allege, competent evidence to establish the concession to M'Hardy; and because, if the concession ever was made, a legal title to the land conceded never accrued to the grantee.
    I. The original concession of Governor Kindelan never has been produced. The sole evidence, of it is an alleged copy, certified by Aguilar, the Governor’s secretary.- The. circumstances under which copies, thus certified, will be admitted" as evidence of-a grant, have been declared by this Court, in the cases of the United States «. Percheman, 7 Peters, 84; The United States v. Delespine, 12 Peters, 65®.; and the United States «.-Wiggins, 14 Peters, 348. ' In the first, the' Court held that the original must be produced, if either-party suggested its necessity; and in the second, there was dLect evidence of the existence of the original. In the last case, the Court admitted the copy, without any direct evidence.to that effect;-but on the express ground that the presumptive testimony of the existence of the original was very strong; and also, that there was a survey proved in conformity with, and referring to the original grant. It is admitted that if the evidence brings the presént case within the rules established in the case of the United States «. Wiggins, the concession is proved. But is such the fact? There was no survey made until 1819, nearly five years after the grant; and it was then made by a person other than the surveyor designated in the order of survey, and at a place different from that named in the grant. The proof that the order of survey was signed by Governor/Kindelan, is far from direct; the signature is identified by a single witness only, and by him with some éxpressíons of doubt.
    II. But if the making of the concessions-in 1814, by Governor Kindelan is established, had a. title under it. valid.by the Spanish law, accrued-to M'Hardy oñ the 24th January, 1818; so as to be ratified and confirmed by the eighth article of the treaty,? 6 Laws of United States, 618. 2 White’s New Rec. 210. The-concession is “ a square of five miles” granted, as it states, “ in consideration*,” first, “of the advantages. which will result in favour of the home and foreign .trade of the province;”. and, secondly, “ in conformity to the provisions of the royal order of 29th October, 1790, in relátion to the distribution of lands to the new inhabitants.” The first consideration, evidently, has allusion to the statement of M'Hardy, in his memorial, that “he intended to invest his means in the erection of a water saw-mill, in consideration of the great scarcity of lumber ih.the province, both in regard to the home consumption and to the purposes of commerce;” the second consideration refers, undoubtedly, to the claim to remuneration arising from his merits and services, also. stated- in his memorial; that is, his fidelity to the government during the rebellious invasion of the province in 1813, and his loss of a crop in that year. It is admitted that the saw-mill never was commenced; and that the land never was taken possession of, occupied, or cultivated.
    This grant is a mere concession; it is not a complete and absolute grant; to make it so, further acts were necessary on the part of the Spanish government and of the grantee; these were, a compliance with the provisions of the royal order of 1790, and with the promise to erect a saw-mill: both of these were conditions annexed to the grant] and neither having been complied with, the grant is not valid.
    1. The royal order of 1790, 3 White’s New Rec. 365, did not authorize the govérnór of East Florida to make such a grant as the claimant contends for. That order w'as issued, as it declares, for the purpose of inviting foreigners into the province; but M‘Hardy was not a foreigner. It limited the quantity of land that might be granted, to a fixed number of acres, proportioned to.-the number of workers actually employed; M‘Hardy employed no workers. An absolute grant of sixteen thousand acres to a Spanish subject, who -made no settlement, could not, therefore, be valid under the authority of the royal order of 1790. This point is distinctly adjudged by this Court, in the case of the United States v. Clarke, 8 Peters, 448; There, the grant recited the royal order of 1790, and also that Clarke “had constructed, from his own ingenuity, a certain machine” of great value. This Court, passing upon the grant, said that “ it was too plain for argument that, if its validity depended on its being in conformity with the royal order of 1790; it could not be supported:” and they held it to be valid only, because it did not depend upon that order, but on the other motives expressed in the grant. If tfié same rule be applied, as it must be, to the present case, then the claim of JVPHardy to sixteen thousand acres cannot be valid under the royal order, but must depend on the other considerations stated by Governor.Kindelan.
    ■ But it is submitted that the recital, in this grant, by Governor Kindelan, of the royal order of 1790, was not superfluous or incorrect. It is the inference drawn from that recital by the claimant, which is erroneous. The grant does not purport to be made “by virtue of” the royal order of 1790, which was applicable especially, if not exclusively, to foreigners; but it was made to a Spanish subject, “ in conformity to the provisions” of that order; that is, according to the regulations which required settlement and cultivation by a certain number of workers. Under the power which the Governor possessed of making grants for services, he made this concession to M‘Hardy for those to whieh he had, in,his memorial, called his attention; but as the grant was large, the Governor required that he should. either comply with the provisions of the royal order,which were recited in the concession, or erect a mill which would be “favourable to the home and foreign trade of the province.” Had the claimant settled the tract, and placed upon it the proper number of workers, then he would have acted in conformity to the royal order of 1790 — -then the grant would have been valid, because one of its conditions would have been complied with.
    2. It is, however, valid, although the provisions of the royal order of 1790 were not complied with, if the other condition was executed — if the wafer saw-mill was erected. Was this done ? .It is'admitted that it was not; and, to obviate the want of all evidence to that effect, it is argued that the terms of the grant do. not imply that such erection is a necessary condition; and that, under the decisions of this Court, such a grant is perfect, without any such proof. That-the terms of the grant imply such a condition is apparent from its face. It is stated to be made “in consideration” of the advantages that are to result from such an establishment; the allusion to the petitioner’s merits is not adduced as one of “the considerations” of the grant; they are not of a character to warrant any donation, much less one of such .unusual magnitude; they are more than compensated by making him the grant, subject to the provisions of the royal order of 1790, in regard to settlement and cultivation; any other grant; any possession of the land, unattended with a compliance with these provisions, was intended to be coupled with this condition of building the saw-mill, which he proposed himself.- In the cases of the. United States v. Kingsley, 12 Peters, 476, and of the United States v. Burgevin, 13 Peters, 85, it was distinctly held, that, where there was a condition in the grant that a saw-mill should be erected, no title accrued without proof of its having been built. It is true that, in those cases, the condition was stated in the grant in terms more explicit than in tlr present case: but this cannot affect the principle established by the Court. If there be a. condition in the grant itself, ascertained from its language, and evincing the intent of both parties at the time the grant was made, the particular language in which the condition is couched is immaterial. The cases of the United States v. Clarke, 8 Peters, 448, and of the United States v. Segui, 10 Peters, 306, do not conflict with these positions. .InHthe former, the grant was not in consideration of a saw-mill to be erected; but in consideration of the- applicant having already constructed, from his own ingenuity, a peculiar mill of great value. In the case of the United States v. Segui, this Court did indeed hold, that where a grant was made in absolute property, thejr would not attach a condition, from the mere fact that the erection of a saw-mill had been stated as an inducement in the memorial ; but it is evident, from the report of that case, that this statement was merely in the memorial, and.not repeated a§ “a consideration” by the Governor in the grant itself.' In the present case it is otherwise; this consideration appears, not merely in the memorial, but in the grant; and besides, it is not,, as Segui’s was, a grant “ in absolute property.”
    It is therefore submitted that the concession, if ever made, was conditional; that the conditions.are unperformed, and, therefore, that the grant is pot valid.
   Mr. Justice Wayne

delivered the opinion of the Court.

The decree of the Court below confirms the title of the appellees to a square of five miles of land, situated in the place known under the denomination of Apprecile Spring, opposite the old store of the house of Messrs. Panton and Leslie, called Hamlet.

The clair -is fouhdéd'upon a concession to Robert M‘Hardy, dated the 8th November, 1814. The memorial for the grant, and the grant are as follows:

His Excellency the Governor:

Don Roberto M‘Hardy, an inhabitant of this province, with due respect represents to your excellency, that since the month of July, 1803, when he came Jo it and was admitted under the protection of his Catholic Majesty, (whom may God preserve,) he flatters himself wjth having the'honour of having been selected and preferred to others of his class for holding commissions of the government, the truth of which is well known to your excellency; and moreover, for the same reason of his fidelity in the year 1812, when said province was invaded by some rebellious inhabitants thereof, your petitioner was arrestéd by them and detained prisoner for the space of twenty-nine days, in consequence of which violence, he suffered the loss of all his crop, and other damages and losses to a great amount, which he does not mention, a? they-are well known to your excellency. In consideration of which, and your petitioner wishing to repair in some measure his said losses, he intends to invest his means' in the erection of a water saw-mill, in consideration of the great scarcity of lumber in this province, both in regard to the home consumption and to the purposes of commerce; and as it is necessary for that purpose to obtain a suitable position, as is the place known under the denomination of Apprecile Spring, opposite the old store of the house of Messrs. Panton and Leslie, called Hamlet, therefore your petitioner supplicates your excellency be pleased, in consideration of the merits he has obtained, and of other circumstances in his favour, to grant him in absolute property a square of five miles in the location designated, and which is vacant; which favour he hopes to receive from the justice of your excellency.

St. Augustine, of Florida, on the eighth, day of November, one thousand eight hundred and fourteen.

Robert' M'Hardy.

DECREE.

St. Augustine, of Florida, eighth of November, one thousand eight hundred and fourteen.

Whereas, the merits, services, and other circumstances which the interested party exposes in this representation, are well known to me, in consideration .of the advantages which will result in favour of the home and foreign trade of this province, and also in conformity to the provisions of the royal order, of the. twenty-ninth of October, one thousand eight hundred and ninety, communicated to this government by the Captain General of the Island of Cuba, and of the two Floridas, in relation to the distribution of lands to the new inhabitants, I have come to the determination of granting to the petitioner, in absolute property, 'the square of five miles of land in the designated place, without prejudice to a better owner, and for the attainment of which, let the secretary’s office issue to him a certified copy of this expedient and decree, which in'all events will serve to him as a title in form. ' Kindelan.

It is contended, on the part of the United States, that the decree should be reversed upon three grounds:

1. That the evidence in the case is insufficent to prove that the alleged grant or concession was ever made.

The .evidence is a certificate from Aguilar, Secretary of the government of East Florida, the same ás that to be found in United States v. Wiggins, 14 Peters, 345, which the Court held to be sufficient proof of the grant.

The second objection is, that if it be proved of admitted that the grant was made, still it is void; because it is not-in conformity to the royal order of the 29th October, 1790, by virtue of which, it declared the concession was made. That royal order will be found in 2 White’s New Rec. 365. It is contended that, under the order, grants can only be made' to foreigners, and that the number of acres granted must be in proportion to workers. The argument is, professing to be made under the . royal order, if the grant is not in accordance with it, it is void; and the United States v. Clarke, 8 Peters, 448, is cited to' sustain the objection. 'f'he authority has been mistaken. The .Court do say in that case, “if the validity of the grant depends upon its being in conformity with the royal order of 1790, it cannot be supported.” But it immediately proceeds to show, though, the royal order is recited in the grant, that it was in fact founded upon a meritorious consideration of the petitioner having constructed a machine of great value, for sawing lumber. The Court say: “We cannot think that the recital of a fact, entirely immaterial, on which fact the grant does not profess to be founded, can release an instrument making other'considérations on which it does profess to be mounded, if the matter, as recited, be sufficient to authorize it. Without attempting to assign motives for the recital of that order, we are of opinion, that in this case the recital 'is quite immaterial, and does not affect the instrument. The real question is, whether Governor Coppenger had power to make itand so it must be said that the. recital of the royal order in this case is quite immaterial. The petitioner for the grant, asks for it, reciting services and fidelity to the government in time of a rebellion; his imprisonment and loss of property to a great amount, in consequence of it; “all of which,” he says, ■“ are well known to your excellency.” In consideration of which, he further states, that, to repair his losses; he intends to invest his means in the erection of a water saw-mill; and then asks his excellency, in consideration of his merits, and other circumstances, in his 'favour, to grant him, in absolute property, a square of five miles, in the place designated in his petition.

The Governor’s decree, upon that petition, first recites the merits and services of the petitioner, which he says are well known to him; and then says, in conformity with the royal order of October, 1790, he grants him, in absolute property, the square of five miles. Now, if it be the fact that the Governor had the power to make a larger grant than the quantity recited in the royal order, which was applicable to a particular class of persons, foreigners; it will not be contended, because he says “ in conformity to the royal order,” that these words shall control a larger grant, made to one who was not a foreigner, but a subject of his Catholic majesty: particularly when it is stated, the considerations of the grant, are the merits and losses of the grantee.. That the Governor had the power to make the larger grant, cannot be denied. It is to be found in the laws of the Indies, in the various regulations under which they granted lands in Florida, for more than forty years; sanctioned by the king of Spain, and thé authorities representing him in Cuba, the Floridas, and Louisiana. The power of the Governor, in this respect, has been frequently affirmed by the decisions of this Court, in cases growing out of claims to land under the eighth article of the treaty with Spain.

The third objection against affirming the decree is that the grant was made upon condition that the grantee should build a water saw-mill on the land granted, which condition has never been complied with; and that it was incumbent on the claimants to assign reasons why this condition was not performed.

A careful perusal of the memorial, will show it certainly was 'not the intention of the memorialist to make the building a mill the inducement to the grant, but his merits, services, imprisonment, and loss of property. When too, the Governor, in the grant, precedes his declaration of the advantages which will result in favour of the home and foreign trade, by an acknowledgment of the petitioner’s merits and services; it certainly cannot be inferred from the first, that it was the sole consideration which induced the Goyernor to make if.. If it be not so, then it cannot be said that the grant would only be perfect upon the performance of a condition precedent; because another consideration or inducement for making it is given, requiring nothing to be done by the petitioner.; • Indeed, from these expressions of the Governor in the grant, no condition can be inferred. They are a mere recital; and if a condition could be implied, it would be so inconsistent with an absolute grant in terms, that it could not for a moment haye any weight against it. But the objection is not new in this Court. The point has been directly decided in The United States v. Segui, 10 Peters, 306. The claim in that case was founded upon a grant of sixteen thousand acres, in consideration of services to the Spanish government, and for erecting machinery for sáwing timber. The Court say, “ It has been suggested by the Attorney General, that though there was no express condition in the grant, one was implied from the consideration in part being the erection of a saw-mill. But we cannot attach any condition to a grant of absolute property, in the whole quantity. It was exclusively for the Governor to judge of the conditions to be imposed on his grant. He appears to have considered the services of the appellee a sufficient ■ consideration, and made the grant absolute.”

The decree of the Court below is affirmed. But as the;Court rejected the survey giv.en in evidence in this case, as it should have done; this Court will direct a survey to be made at the place designated in the decree, for the number of acres decreed, without prejudice to the rights of third parties.

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel. On consideration whereof, it is adjudged and decreed by this Court, that the decree of the said Superior Court, in this cause, so far as it declares the claim of the petitioners' to be valid, be, and the same is hereby, affirmed in all respects; and that a survey be made of the lands contained in the said concession, according to the terms thereof, for the number of acres, and at the place therein designated; provided it does not interfere with the rights of third parties. And it is further ordered by the Court, that a mandate be issued to the surveyor of public lands, directing him to do and cause to.be done, all the acts and things enjoined on him by law, and as required by the opinion and decree of this Court in this case; and that this cáse be remanded to the said Superior Court, for further proceedings to be had therein, in conformity to this decree, and the opinion of this Court, which must be annexed to the mandate.


source: Caselaw Access Project

author: Mr. Justice Story

license: Public Domain

text:
    The United States, Plaintiffs in error, v. Samuel W. Dickson and others, Defendants in error.
    Samuel W. Dickson was appointed a Receiver, of Public Money for the Choctaw district, Mississippi, and entered on the duties ofhis office on the 22d November, 1833, and continued to hold the office until the 26th July, 1836, when he resigned it. He received more than two hundred and fifty thousand dollars of public money, in each year, during the two years of his continuance in office; and, also, more than two hundred and fifty thousand dollars during the portion of the year commencing on the' 22d November, T835, and ending on the 26lh July, 1836. He claimed, under the act of Congress relating to the compensation and salaries of receivers, a compensation of one per cent, on the sum of two hundred and fifty thousand dollars in each year; and also a commission of one per cent, on the money received during the fraction of the year, not exceeding, with, the salary of five hundred dollars, three thousand dollars, in the fraction of the last year. The United States claimed to limit the commissions and salary to the fiscal year, from January 1, to December 31, annually ; and denied his right to more than a portion of the commissions oh the money received by him, limiting the same to the proportion of the year he was in office. Held, thaf the receiver was entitled to charge his commissions on the whole sum received by him in the part of the year he was in office; the same not exceeding, with his salary, the amount of three thousand dollars.
    The receiver was entitled to calculate his yearly commission on the amount of public money received by him during a year, commencing from the date ofhis appointment, instead of calculating it by the fiscal year, which commences with the calendar year; on the first day of January in every year. He had a right to charge the whole . yearly maximum of commissions, for the fractional portion of the year in which he resigned.'
    IN'error to the Circuit Court of the United States for the Southern District of Mississippi.
    Samuel W. Dickson, the defendant, was appointed by the President of the United States, Receiver of Public Money for the Choctaw district, in the state of Mississippi, and entered on the duties ofhis office on the 22d November, 1833, and retained the office, performing the duties thereof until the 26th July, 1836¿ having on that day resigned the same.
    The United.States claimed a large balance as due to them, and-the defendant paid, in Natchez, the whole sum alleged to be due by him, with the exception of the items charged to him in the treasury transcript, which were the subject of controversy in this case.
    A suit was instituted by the United States on the official bond of Samuel W. Dickson, and his sureties, in May, 1839, in the District Court of the United States for the Southern District of Mississippi, in which the United States claimed certain .sums .of money received by Samuel W. Dickson, as Receiver, and not paid over to the United States. These sums were claimed by the defendant, and had been retained by him as his official compensation for the annual period of his service in the office, from the 22d November, 1833, and for the fraction of the last year in which he was in office, commencing on the 22d November, 1835, and ending on the 26th July, 1836; during which latter period he had received public money exceeding in amount two hundred and fifty thousand dollars.
    On the trial of the cause the Court charged the jury, that the defendant Dickson was entitled to credit for three thousand dollars as compensation, including his salary of five hundred dollars for the year commencing November 22, 1833, and ending November 22, 1834; that he was entitled to the same compensation for the year commencing November 22, 1834, and ending November 22d, 1835 ; and for the fraction of the year between the 22d November, 1835, and the 26th July, 1836, he was entitled to two thousand five hundred dollars, commissions.
    To this charge of the Court the United States excepted, and prosecuted this writ of error; .a verdict and judgment for the defendants having been given, conformably to the opinion of this Court.
    The case was argued by Mr. Birchard, and Mr. Gilpin, Attorney General, for the United States. No counsel appeared for- the defendants,
    Mr. Birchard, for the United States, contended that the Court erred,
    1st. In allowing the Receiver to calculate his yearly commission. on the amount of public money received in a calendar year, commencing with the date of his appointment, instead of the fiscal year fixed by law.

      2d. In allowing the Receiver the whole yearly maximum of two thousand five hundred dollars of commissions for the fractional portion of the year in which he resigned.
    In this case the accounting officers settled the accounts as is required by law, quarterly. The last quarter of each year terminating on the 31st day of December, annually.
    The’instruction given to the jury by the Court below, makes his first year commence on the 22d day of November, 1833, and end twelve months thereafter: and so of the succeeding years. The fractional period, which it treats as a full year, begins November 22d, 1835, and ends July 26th, 1836. It treats the terms used in the statute, “ any one year,” as any period of time, equal to twelve calendar months, whether it consists of portions of any two fiscal or calendar years. It disregards the beginning of quarters, weeks, or months, and has no reference to the accounting'days by-quarters, or the fiscal year established by law, and recognised by Congress, and the department from the first establishment of the treasury to the present time.
    It is respectfully submitted that the entire legislation of Congress shows that the terms “ any one year,” when used in.reference to the subject of accounting, import that portion of time intervening between the 1st day-of January and álst day of December; and that to give the phrase, as used in the act of- 20th April, 1818, 3 Story, 1710, any other meaning, or such a meaning as will make it embrace any twelve consecutive months* composing parts of any two years, will subvert-the design of Congress, introduce perplexity in accounts, and occasion great inconvenience, if it does not producembsurdities.
    The act of 1818 is not an isolated piece of legislation, to be construed without reference to any other law. There are other statutes, so directly connected with the subject-matter, that they should be considered, if doubt's may reasonably be entertained as to its true ponstruction. It is but part and parcel of a code, and must be examined in reference to the system of laws, of which it forms a part, in order that from the whole a construction may be given to it, which will lead to no inconvenient results, or defeat the legislative will.
    In Pennington v. Cox, 2 Cranch, 35, it was held, that the details of one part of a law or code may contain regulations restricting or modifying the extent of a general expression used in another part of the same act, and that the whole should be taken into view for'the purpose of discovering the mind of the legislature.’ And in Fisher et al. ads. The United States, 2 Cranch, 399, 400, Mr. Justice Washington, (in a dissenting opinion, but on this.point agreeing with every member of the Court,) said, “ that if, from a view of the whole law, or from other laws in pari materia, the evident intention is different from the literal import of the terms employed to express it in a partícula? part of the law, that intention should prevail, for that, in fact,'is the will of the legislature.”
    “ So, if the literal expressions of the law would lead to absurd, unjust, dr inconvenient consequences, such a construction should be given as to avoid those consequences, if, from the purview of the law, and giving effect to the words used, it may fairly be done.”
    It is by these rules that I propose to test the correctness of the opinion of the Court below. By reference to the 6th sec. act of 10th May, 1800, 1 Story, 786, it will be seen that Receivers were required to render quarterly accounts to the Secretary of the Treasury. That they were appointed not for a term of years, but during good behaviour, or the pleasure of the President' for the time being, and that they were entitled to a commission of one per cent, on the moneys received. The act of March 26, 1804, 2 Story, 932, sec. 14,'gave them a salary of five hundred.dollars, and a half of one per cent, in addition. The law of compensation thus stood until 1818, when the act in question was passed. At this period all the operations of the government were' well understood. The departments were formed, the days of rendering and settling accounts were established and known. The act of 1817, 3 Story, 1632, sec. 13, was in force, making it the duty of the Secretary of the Treasury to cause all the accounts of his department to be settled within the year. The accounting days had been established for more than a quarter of a century, dividing each year into four quarters, and commencing and terminating the fiscal year on the first day of January, and the 31st óf December. • There has been no innovation on the part of the Executive or Congress, in this respect, since the formation of the government.
    Lopking at the object to be accomplished by the act of 1818, can it be supposed that .the term “any one year” was ever intended to be so understood as to embrace any other period than that established by usage and recognised by all the laws — any other than the well known days — the four fixed quarters constituting a year ? At each of which the Receiver was required to render complete accounts, with the vouchers necessary to a prompt settlement. Especially when we reflect, that these settlements were to pass at the close of the yea? from' the Auditor and Comptroller to the Register of the Treasury, there with the vouchers forever to remain as a finished piece of business. That the balances were to be certified to the Secretary of the Treasury as the basis of the future action of himself and Congress; and that certified copies from the Register were made evidence in all legal proceedings. The laws evidently, as well as the law makers, contemplated, at that date, that the four quarters of any one year would constitute the entire account of that year) and that the accounts of any two years could not be "blended together without a violation of ,the legislative will. Such a thing as beginning or terminating an'annual or quarterly account in the middle of a quarter, a month, or a week, (except at the commencement or termination of office, when it arose ex necessitate,) was then, as now, alike unknown to the department and the laws, and would effectually break in upon that simplicity and order of keeping accounts, which has been wisely, and for necessary purposes, established for more than half a, century.
    If, then, the terms of the act of 1818 were of doubtful import, might it not be claimed, that an exposition contemporaneous with the law itself, and always uniform, is strong, if not conclusive evidence of its own correctness ? May it not be claimed with propriety, that in all their enactments; touching the subject of accounts, Congress have legislated in express reference to the existence of this principle as a fundamental one? If so, the rule is conclusive. -It seems to me, there is no doubt upon the point. Yet I will not press it further than to observe, that it behooves us to be- cautious in the inquiry, whether inadvertently or intentionally a special innovation has been introduced by this act.
    It is contended that the act may receive such a construction as will harmonize with the laws and usages upon the subject of accounts, fully effect the object of its framers, and give to each and every sentence its appropriate meaning, without the least violence to the language employed.
    , To do this, it must be examined here as it has been by the several eminent lawyers who, at various periods, have presided in the general land office and treasury department, all of whom adopted the rule which was applied in settling this account, and all of whose settlements are erroneous, if the Court below was not in error, In 1818, no ’such thing as a term of years for the office of a Receiver of public money was known to the law. The 1st section of the act of May 18, 1820, 3 Story, 1790, first limited the office to the term of four years, and the same act, iri the second section employs words limiting and defining the word year,'as there used, so as to' clearly distinguish it from the accounting year. No aid in construing thé aot of 18.18 can be derived from this posterior law. We must look to the state of things existing at the time of its passage, for what it meant then h means now. It is evident that the amount of one and a half per cent, had become exorbitant at some offices, owing to the increase and irregularity of land sales, and that the object was to limit the expenses of each office to a fixed sum per annum. It is manifest that Congress considered six thousand dollars a year an adequate compensation to both Register and Receiver; that let the business be more or less at any office, in any one year, this sum out of the public treasury was considered enough to pay for all the services which the two officers would be able to bestow upon one set of plats and books. And that, if little business was to be done, a less sum would be ample pay for it. Hence, a salary of five hundred dollars per annum was appropriated for each office, and five thousand dollars limited as the maximum commissions for both offices. This sum is all that the law designed to appropriate, and this is not given absolutely,but only upon condition that the receipts of the office should be such as to entitle the officers to the sum of three thousand dollars each. Nothing can be found in the old mischief or the new remedy; nothing in the' title or text of the act to induce the belief that any change in the time, the manner' and form of rendering and closing accounts was designed. The terms of the law are such that they could have been literally complied with, without preventing the final adjustments required to be made yearly by the act of 1817, sec. 13, and the then existing Treasury regulation. Any one year naturally imports, the fiscal and calendar year. It is tortured into an unnatural meaning, unknown to the common acceptation of the words, if made to embrace parts of different years.
    But for argument sake, let it be admitted that the construction, which stood unshaken till 1837, is erroneous; that according to the judicial term “ any one year” does not, as in the common acceptation, import the fiscal and calendar year, known to the laws and the almanacks; that an entire,thing may be composed of different portions of entirely different things, and still retain its identity, and let us trace the consequences which must follow. If the path remains plain, free from perplexity and confusion, then construction may prevail' without public detriment, and without resulting in embarrassment or absurdity.
    There are seventy land offices, each having .a Register and Receiver, who are bound to return tjieir accounts quarterly, on the last days of March, June, "September, and December, annually, with the vouchers necessary to a prompt settlement. These accounts, the Commissioner of the general land office is obliged to settle and pass over to the first Comptroller, who revises and approves them; reports the result to the Secretary of the Treasury ; and then files them with the Register of the Treasury. At this stage of the business, the law supposes the work to be finished. In making the settlement the accounting officer is required to ascertain the money brought into the Treasury during the year, and to allow the Register and Receiver each a" commission of one per cent, thereon, if the sum does not exceed two thousand five hundred dollars. With four accounting days, at stated periods, the work is simple and produces no difficulty. Will it be equally so if the accounting days per annum are doubled ? But doubling the number will not effect the object, for of the whole one hundred and forty officers, scarce any two will be found who entered upon duty on the same day. It must be trebled, giving twelve accounting days for each officer, four for the quarterly fiscal accounts required by law, four to give the data on which the Register’s commission is to be computed, and four for that of the Receiver; and as to these last accounts, those of .one officer will be no check upon those of the other, because, from the nature of the case, both accounts will not cover the same period of time. Again, the result will often give to one officer commissions on the sales of á calendar year to the amount of five thousand dollars, while the other on the same sales will be entitled to but two thousand five hundred dollars, a thing which is manifestly against the spirit of the law. It is notorious, that in years past repeated sales within a year have been held at a newly opened land'office, and that in the following year, the sales have been nominal only. The annual reports of the department show frequent cases where one quarter’s receipts amount to near a million, and the receipts of the preceding year falls short of twenty thousand dollars; while a third year has n.et to the treasury over two hundred and fifty thousand dollars.
    Try the rule oi the Court below by the operations of such an office, supposing the Register to enter upon duty the 1st of January, and the Receiver on the 1st of May, for the year 1834; and that during the year 1834 no sales are had; that in March, 1835, a sale brings over three hundred thousand dollars, and in December, 1835, a second sale brings other three hundred thousand dollars; that in 1836, no sales are had, and the office is discontinued on.the last day of December. In this case, the Register will have held office just three years, and under the rule of the Court, he could receive as commissions but two thousand five hundred dolíárs; it being the maximum upon the sales from 1st of January to 31st of December, 1835. The Receiver, however, who held office three- months less, and performed only equal labour; would be allowed the maximum of two thousand five hundred dollars on the sales in March, 1835, as it would be within his first year; and also the maximum on the sale of December, 1835, as that would fall in his second year, from his entrance upon duty. I submit that Congress never contemplated such a result; and yet, under the rule of the Court, such cases would be of daily occurrence. It is doubted if a single officer can be found whose accounts have been settled since the year 1818, without varying greatly, possibly thousands, from what this rule would give.
    [Here an account, settled .by Justice M‘Lean, was read, showing the rule of adjustment in 1820, when he was Commissioner of the General Land Office, to be as contended for now.]
    But the unequal results as to the officer is not the only objection. In the case put, and in all that can happen, it compels the accountant to blend the operations of different years together. Instead of an account being closed at the end of a year, as the law contemplates, the officer is compelled to keep it open, and often to overhaul a business which, in legal contemplation, is already settled. Thus, in the case put, the account of the Receiver, which the law . looks upon as closed on the 31st of December, 1834, must be re-opened, and;three-fourths of.a year’s commissions allowed in the first quarter of 1835. And the account for the year 1835 could not be closed at the end of that year, because out of the sums received, an allowance must be made to the Receiver for the year 1836, during which no sales were had. Instead of being provided with given data upon which to make his annual estimates, the Secretary of the Treasury, under such a plan of doing business, must ever act upon conjecture, and can never inform Congress, at the opening of, or during a session, of the actual state of the treasury; for he can never possess accurate data until near a year has elapsed from the day of the date of the officer’s last appointment.
    Could the department, with this rule in operation, ever form, at the close of the year, an estimate of the annual net receipts of such offices as New York, Philadelphia, Boston, Baltimore, and New Orleans, which would approximate accuracy by from ten to fifty thousand dollars ? The list of officers is from ten to two hundred at each of those places, each of whose salary, or pay, is in like manner limited, it would be- difficult, if not impossible. It would seem that the- inconveniences which flow from'the rule, and the apparent effect it will have in defeating the legislative int.ent to regulate and equalize the pay of Registers, and Receivers, prove its unsoundness. More especially as by considering the words “ quarter,” “ yearly,” of the act of 1800, to mean fourth parts of the “any one year,” mentioned in-the act of 1818; and the phrase “any one year,” to import simply the said four quarters, an easy and natural sense and meaning is allowed to each phrase; all vexation, confusion, and apparent inequality of .emoluments is avoided, and perfect harmony is found to exist between this law and all others upon the subject of accounting.
    Have the United States- been prejudiced by the supposed error in this case ? A pro rata allowance of commissions from November 22'd, 1833, to December 31st, as will be seen, has been allowed by the jury, although it does not-appear that any sale was made, or money paid into the treasury during that time. This error; if it be one, is carried th jugh. the whole term of the Receiver, (Rec. 10, 11,) and deducts from the receipts of 1834 over twenty-seven hundred dollars.
    2d. The Court erred in'treating the fraction of two quarters and twenty-six days as a full year,- and allowing therefor twenty-five hundred dollars, instead of fourteen hundred and twenty-eight dollars, the pro rata allowance. The receipts of this fractional year were two hundred and eighty-five thousand nine hundred and fifty-nine dollars. The receipts of the residue of the year were two hundred and forty-nine thousand nine hundred and thirty-seven dollars. The accounting officers allowed Dickson fourteen hundred and twenty-eight dollars, and to his successor, for the residue of the year, ten hundred and seventy-two dollars. ' The decision of the Court below gives all to Dickson, and leaves nothing for his successor, without taking double commissions out of the collections of that year.
    Dickson resigned after serving half a year. Can he have all that Congress provided for keeping the office open for the year 1836; and shall his successor have nothing ? We must suppose that in 1818 Congress knew that land sales occurred at irregular periods; that money from this source was collected in unequal quantities; and that the accounts of each year would be settled separately. All this was notorious. It was well known that the footing of accounts on the 31st of December, would enable the accountant to adjust the commissions upon principles of equity as between different officers and the government. Can it be inferred that an' innovation upon the fundamental principles of settling accounts was designed ? Can we presume that by implication, a door was meant to be opened, out- of which public money was to flow, in the shape of land-office emoluments, at a greater rate for each office than six thousand dollars per annum ? The law does not, in direct terms, appropriate more; and the. Constitution prohibits the payment of what an act has not appropriated. The money received 'for lands is public money. . The sole title of any officer to' any part of it must be derived from the act. That only gives him title by prescribing to the accountant the duty of making him an allowance, when he closes his yearly account. If Mr. Dickson’s fraction of a year will draw full pay, by what rule can any other man’s fractional year be deprived of full pay ? The cases have been frequent, in times past, and may be expécted to be so in future, where a new office has realised to the amount of say three millions in a year, one per cent, of which, to each officer, ihakes an aggregate of sixty thousand dollars.
    ■ Suppose a public land sale at some such office to take place éach month in twelve, and each sale to amount to two hundred and fifty thousand dollars, and a new set of officers to be given for each month ; will each month not be a fractional year ? and wi'l not each fraction be as well entitled to the maximum of two hundred ánd fifty thousand dollars as Mr. Dickson’s fraction ? When, any one year is thug multiplied into twelve years, the cost of the office per annum will be sixty-one instead of six thousand dollars; and the manifest intention of the legislature will be defeated. It will not do to say that this is an extreme case, for the substantial facts as supposed have often occurred in practice. Let the rule of the Court below be forced upon the department, and it.is powerless, and cannot prevent hereafter the results supposed. The President must keep land offices supplied with officers. He cannot force these officers to continue .in service after they choose to resign. He cannot refuse to sell lands when the laws direct a sale-. • He is bound by oath to see all laws executed, and must employ the means given for that purpose.' Will it be wise to suppose that men having adverse pecuniary-interests to be subserved by a contrary course, will hold themselves long to the guidance of a rule of conscience more fair than the one which this Court is to pronounce lawful ? It is far more likelyv that public officers will square their consciences to the morality of the rules judicially established.
    Is there any difficulty to prevent the application of a rule which will accomplish the object of Congress, in requiring annual settlements? Does not the whole of “any one year,” as well as the whole of any other object, comprise all its parts ? Does not the law contemplate that each land office has one Receiver always, and never but one ? Can it be doubted, that the object of the act of 1818, was to limit the whole expenses of an office to six thousand dollars per year ? If there is no difficulty in discovering the answers, then why shall not practice give efficacy to the law, and make it mean what its makers -.meant ? Tbé general land office and the Comptroller have done this. They found that Dixon had received and paid into the Treasury in 1826, money sufficient to entitle him to the maximum of commissions, and that' his successor had also done the same' thing, and they allowed each his due proportion. They gave to each what he earned, and broke down no rule in so doing, and opened no door'through which the nation may be plundered, or the Treasury pillaged. In what was their error ? Did they a wrong ?
    It has been supposed, that the case of an officer, who should; be discontinued after three months’ service, he having, in that time, paid two hundred and fifty thousand dollars into the Treasury; would be a case of hardship, and it has been asked, if the Government would not be a gainer under the rule contended for, if the successor, in the last three quarters, should make no sales, and of consequence earn no commissions; or- whether, to avoid the supposed evil, the Government would give to the latter the earnings of the former ? To all this I have to observe, that in examining the accounts as settled by the department, ever since 1818, I have never found any case of hardship of the kind. In the case supposed,- it would be easy to avoid all injustice, by allowing to each man what he earned. The incumbent .of the first quarter of the year earned full commissions, therefore give it to him. The incumbent for the last three quarters earned none, and would of course neither claim or receive any. Each would have his own, and the United States would retain nothing which the law designed to bestow upon others. Thus, in Dixon’s case, if, for the half of the year 1836, he would claim the compensation of ihe full year, and reverse the settlement of the department, he-should prove his case fully by showing to the Court that no other officer earned an^r commissions during the same period. This he did not do, and could not have done. • Without this proof, the presumption pf law is that the accounts were properly,and equitably adjusted. Such.also is the fact.
    Mr. Gilpin, the Attorney General, for the United States.
    The very full examination of the questions connected with this case, by Mr. Birchard, the Solicitor of the Treasury, leaves little room for further remark. It may not, however, be useless to advert to the long settled system, which has prevailed, with manifest advantage of the public interest, and with no injustice, taking the whole system together, to individuals; and also to notice the unbroken series of laws which seem, td establish its accordance with legislative intention. The points at issue, do not, in the present instance -involve any considerable sum of money, but their settlement is extremely important in the keeping of the accounts at the Treasury. It is very desirable that all doubt in regard to them should be Temoved, and thát- a system, uniform in itself, and in - accordance with the judicial interpretation of the law, should be'at once, and generally, introduced into the Treasury Department, if that now .existing be incorrect.
    The compensation of all officers charged with the collection of the revenue, whether derived from the customs or the public lands, depends, not .on-a fixed salary, but ón their receipts. It is graduated either by a commission on moneys collected, or by the amount of fees received. It depends, therefore, on their own accounts. These accounts must be examihed and adjusted to fix their compensation.
    The mode, therefore, of keeping and rendering them, should be such as to exhibit, with entire uniformity, and accordance of parts, the two things'; the correct discharge of duty in collecting the public money, and the exact amount of compensation due therefor. For each of these objects are the accounts required. .They should be so framed as to exhibit each, whenever they are adjusted. The rule adopted-to effect this, and practised from the beginning of the government, has been to adjust the accounts of these officers on the first days of January, April, July, and October. If their term of office commenced on an intervening day, the first account was required to be adjusted; when the firsLof these days arrived;'if it terminated between them, the account was settled for the. fraction that elapsed between the last of those days, and the end of the official term. For these regular periods, che accounts were rendered ; the commissions, fees, and emoluments, during these, were returned and calculated'; the compensation was adjusted and allowed according to them. In carrying out the system on these principles, the fiscal year has been invariably regarded as coincident with the calendar year, commencing on the first of January, and ending on the thirty-first of December.
    ■ In the case now before the Court, the Receiver was appointed to .office on the 22d November, 1833, and held it until the 26th July, 1836. During his first year, according to the mode of settling his accounts at the Treasury, his official term was for the fraction intervening between the 22d November and the 31st December. It then extended through the years 1834 and 1835. It embraced the two quarters of 1836,bo the 1st July, and the fractional period of the third quarter, up to the 26th of that month. The District Judge of Mississippi, has declared this adjustment to be at variance with the law, and has decided that the first year of the Receiver’s official term was for twelve months, ending on the 22d November, 1834; the second ending on the same day of 1835.; and that the interval between that day and the following 26th of July, is to be regarded as the fraction of his third official year.
    It is obvious that the annual compensation, derived from commissions on moneys, or fees received during the year, may differ considerably, as it is calculated by one of these modes, or the other. It may differ in favour, or against the officer, according to the period of the year, at which the moneys or fees are received. Neither the one mode, nor the other, however, will operate uniformly for, or against the officer; that depends on the amount and period of the receipts, taken in connection with the time his official term began. The propriety, therefore, of the regulation of the Treasury Department, as compared with that, now established by the District Judge, is not to be tested by its effect to increase or diminish the amount of an officer’s compensation. Whatever mode-this Court shall direct henceforth to be pursued, it will not, by so doing, augment or diminish the average compensation. It may lessen or increase it in a particular case, accordingly as greater or less sums of money happen to be received at a. particular period, but the general result of either plan, will not be to give, oh the average, either greater or less compensation.
    Is it a matter of equal'indifference, as regards the fiscal operations of the Treasury ? Will the public accounts be kept with the same uniformity, simplicity, and accordance with the views of the legislature, if the annital term — the “ year’ of the officer —is made to commence and end with the day of his appointment, in each successive year.”
    Such a regulation will be attended with manifest public inconvenience, and it is contrary to the whole scope of legislative enactments.
    1. The invariable'practice of the government has been to make the compensation of' its officers, annual; to allow them a certain sum “for the year.”- Not less invariable, has been its practice to require that their accounts of the moneys they collect, shall be rendered- “ quarterlythat is for every three months. When the amount of annual compensation is made to depend on the amount of money collected, it. must be ascertained from these accounts. Hence it follows, as a necessary consequence, that the accpunts must be for periods corresponding with the periods of compensation. If the period of compensation be irregular, and governed by each particular case, the'accounts must be equally irregular; they must be made up for the period of compensation, since the Compensation depends fipon them. It will thus be seen, that if the year is to be such as is designated by the' District Judge, there must be a settlement of the accounts when it expires; and this at the end of each year throughout the term of the officer. If the quarterly accounts are to agree with this year, then are they equally, irregular; but if not, then musf there be a'division in the-account of that quarter, in every year when the annual term expires; or there must be kept two sets of accounts, embracing exactly the same items of moneys collected, but closing at different days, by one of which, the commissions are to b'e ascertained, and, by the other, the general fiscal duties. Could any thing lead to greater confusion, and irregularity, than such a system asthis? -- Yet it cannot be obviated, if the fiscal year is to be made to vary with the appointment of the officer.

      It cannot be said that the accounts may be kept, according to the usual system, throughout the term of office, and then adjusted for the fraction of the closing quarter. This plan will not accord with the law. The law says the officer is to receive a commission for collections “ during the year;” that year is either- the one beginning with the date of his appointment, or it is the fiscal year heretofore adopted at the Treasury-. They cannot be blended during the term. Take the case of the defendant. He is entitled to all the commissions he receives in each year, provided they do not exceed two thousand five hundred dollars. Suppose that the commissions up to the- 22d November, 1834, amount to that sum; will he not require that the account should be then adjusted and closed ? Must it not he so; or, if not, does it. not become necessary to dissect informally one of the q larterly accounts of every year?. At the end of his term he will demand that the amount of his' commissions shall- be made apparent in each year of his -term; and this can only be done by a revision of the whole series of accounts, and a re-adjustment of what has been oncé settled; a revision and re-adjustment not only fraught with inconvenience, but directly contrary to that provision of law which requires the settlement of. accounts quarterly, and their deposit with the Register, so as- to constitute an unalterable and permanent record.
    But the inconvenience does not end here. It is well known that the compensation of different officers may depend on commissions upon the same sums of money collected.- Thus, the Register and the Receiver are entitled to commissions on the same sums of money collected at the land offices; the Collectors, Naval Officers, and Surveyors are entitled to fees on the same entries at the custom houses. The accounts, therefore, of the moneys so received should correspond; they are thus a check upon .each other, and they obviate a multiplicity of accounts. Yet how can this be accomplished, if the' annual terms of each of these officers are made to differ entirely from those of the others, by commencing with the day of their appointment ?
    . To such inconvenience^ shall-we be led if we change the settled systerh, adapted at the Treasury immediately -after the organization of the government, and followed, Without deviation, for fifty years, it ‘is true that an argument ab inconvenient! is not to be pressed against the clearly ascertained rights of individuals, nor is a construction made by the executive officers, to be presented as a controlling authority or precedent to a judicial tribunal. But in this case it is to be remembered that the end to be attained is not the interest of an individual, but the best mode of effecting a great public object; that besides, in point of fact, the interest of the individuals is not, a.s a'general rule, affected injuriously by one system more than the other; and that the whole subject is one to which the test of public convenience or the reverse may be applied with peculiar propriety. The construction adopted by the Treasury Department may not have in itself any controlling weight, but it is to be recollected that its adoption, at an early period, fixed a rule for the settlement of accounts and compensation well known to the country and the legislature; numerous larvs upon these subjects have since been passed; and it is not, therefore,an unjust inference that Congress has intended its legislation'to be applicable to that construction.

      2. If the series of acts of Congress is examined, it will not be less apparent that, from the beginning of the government, they have contemplated annual salaries asjhe compensation of. these officers, and quarterly settlements of their accounts; and this, not for arbitrary and uncertain periods, but for distinct and ascertained fiscal terms. ■ This.is thé case as well with officers of the customs as with those connected with the public lands. The regular days of quarterly settlement, as adopted at the Treasury, are also recognised by these acts.' 1 Story’s Laws, 17. 26. 129, 150. 157. 228. 592. 665. 782. 7S6. 2 Story’s Laws, S68. 932, '933. 950. 1309. 3 Story's Laws, 1632. 1710. 1790. 1792. 1853. 1857. 1876. 1916. It seems impossible to construe these various provisions as fixing a different rule or period for accounting and for making compensation. The compensation is “for the year;” for the duties performed “during the year;” for the duties embraced in the' accounts as rendered and settled “ for the year.” Fixed annual compensation is that which is almost universally established for all offices.- The exceptions are comparatively few; and those few Congress are constantly removing, as they grow up from some incidental circumstance. The fund from which this compensation is paid does not affect its character or amount. Whether it is paid by á commission out of the accruing revenue, before it goes into the treasury, or whether it is drawn from the Treasury afterwards, is immaterial, if the sum fixed be so much “ for the year.” If the sum and the term are both' fixed, the compensation is in reality a salary, and the payment .of it is tó be allowed and accounted for, exactly as if it were a.salary, payable by annual-appropriation out of the Treasury. The mere fact that the compensation is for the collection of money, cannot warrant an increase in proportion to the amount collected. From the Treasurer Of the. United States down to the Collector of the smallest port, there are numerous officers charged with the management of the public moneys, yet such a general rule has never been adopted.
    It would seem, then, that whether we take the system established by public convenience, and by the construction early given to the regulations made for the settlement of accounts and the payment of compensation depending on those accounts; or whether we follow the general scope of the long series of legislative enactments, we are equally authorized to adhere to the existing practice, in preference to that which the decision of the District Judge of Mississippi will introduce- in lieu of it.
   Mr. Justice Story

delivered the opinion of the Court.

This is a case of a writ of error to the Circuit Court, for the Southern District of Mississippi.

The defendant in error, Samuel W. Dickson, was duly appointed a Receiver of Public Moneys, for the Choctaw district, in Mississippi, and entered upon the duties of his office, on the 22d of November, 1S33. He continued to hold the office until the 26th of July, 1836, when he resigned it. In May, 1839, a suit was instituted upon his official bond, against him and his sureties, to recover certain sums of public moneys received by- him, and not paid over. At the trial of the cause, Dickson insisted upon certain credits tó be allowed to him, and proved the receipt by him, while Receiver,- into his office, as Receiver of public money, amounting to more than two hundred and fifty thousand dollars, in each year, during-the two years of his continuance in office: and also of more than two hundred and fifty thousand dollars for the fraction óf a year,'commencing on the 22d of November, 1835, and ending'on the 26th of July, 1836, when he resigned his office; and he also proved the depositing of sufficient amounts in Natchez, to entitle him to credit for the disputed items of his account. Upon this evidence, the Court below charged the jury that Dickson was entitled to credit for three thousand dollars, as compensation, including his salary of five hundred dollars, for the year commencing on the 22d of November, 1833, and ending on the 22d of November, 1834; and to the like compensation for the year commencing on the 22d of November, 1834; and ending on the 22d of November, 1835 : and that for the fraction of a year between the 22d of November, 1835, and the 26th of July, 1836, he was entitled to two thousand five hundred dollars for commissions. To this opinion, and charge of the Court, a bill of exceptions was taken by the United Statés; and a verdict having been found accordingly by the jury, and judgment rendered thereon; the present writ of error has been brought to revise that judgment.

Upon the argument in this Court, two points have been made, on behalf of the United States: First, That the charge of the Court below was erroneous, in allowing the Receiver to calculate his yearly commission on the amount of public moneys re.céived by him, during a year, commencing from the date of his appointment ; instead of calculating it by the fiscal year, which commences with the calendar year, or on the first day of January of every year. Secondly, That the charge of the Court below was erroneous, in allowing the Receiver to charge the whole yearly maximum of commissions for the 'fractional portion of the year in which he resigned.

- The validity of these objections to the charge of the Circuit Court, must essentially depend upon the true interpretation of the act of the 20th of April, 1818, ch. 118. Originally, the Receivers of Public Moneys in the land offices, were paid a commission of one per cent, on the moneys received by them, as a compensation for clerk hire, receiving, and keeping, and transmitting the public moneys to the Treasury of the United States. This was originally provided by the act of the 10th of May, 1800, ch. 55. § 6. By the act of the 26th of March, 1804, ch. 35. § 14, the compensation was increased by an addition of one-half per cent, to the former commission, and also of an annual salary of five hundred dollars, with the exception of the land . office of Marietta, where the annual Hilary was two hundred' dollars, only. Then came the act of the 20th of April, 1818, ch. 118, which provided “that instead of the compensation now alio wed by law to the Receivers of the Public Moneys, for the lands of the United States, they shall receive an annual salary of five .hundred dollars each, and a commission of ohe per cent, on the moneys received, as a compensation for clerk -hire, receiving, safe keeping, and transmitting such moneys to the Treasury of the United States: provided always, that the whole amount which any Receiver of Public Moneys shall receive, under the provisions of this act, shall not exceed for any one year, the sum of three thousand dollars.”

The -main controversy in the present case, turns upon the meaning of the phrase, “ any one year,” in the foregoing section. Does it mean “ any one year” calculated, from the date of the commission of the Receiver ? or does it mean “ any one year” commencing with the calendar year, that is, with the 1st of January of each year; which is commonly called, in matters connected with the Treasury Department, the fiscal year ?

The argument addressed to- us on behalf of the government, is, that it means the latter. It is said that all accounting officers (with some'unimportant exceptions) are required by law, and the regulations of the Treasury Department, to render quarterly accounts of the moneys received by them, and of the disbursements made-by them, at the end of each quarter of the calendar year; (see act of 10th of May, 1800,ch. 55;) and that all the accounts kept at the Treasury Department are governed by this mode of proceeding: and that if any other mode of keeping the accounts were adopted, it would introduce endless embarrassment and confusion into the Department, and take away the only adequate means of ascertaining from time to time the exact financial state thereof, as to debts, and credits, and disbursements, which is so esséntial to the public security, and regular operations of the government. And hence; in order to give full effect to this system, it is contended that it is necessary, in all laws of this character, to construe the year to mean the fiscal year.

Admitting the argument in its full force, (and we are not disposed to controvert the propriety of the present mode of-keeping the public accounts, as being founded as well in law, as in public convenience,) still it does not appear to us to justify the conclusion attempted to be drawn from it. In short, we do not perceive what connexion the mode of keeping the accounts in the Treasury Department, has with the compensation allowed by law to any public officer. That compensation is to be ascertained from, the terms of the law allowing it; and whenever the. amount is' once ascertained, according to those terms, it is to be allowed and credited to the officer, whatever may be the form in which the public accounts are kept, or the particular times at which they are required to be rendered and settled. Nor are we able' to understand why the accounts of any public officer may not be made up regularly at the end of every fiscal quárter, allowing such compensation as he has then earned and is entitled to by law, where his precedent term-of service has been less than a full quarter, in consequence of an intermediate appointment to office. The allowance for the fraction of a quarter may just as readily be made at the commencement' of his term of service, by reason of such an intermediate appointment, as it may be where his office terminates in the midst of a quarter; in which case, (as is admitted,)' from necessity,' the fraction .is brought into his closing official account.

It has been also- argued, that the uniform construction given to the act of 1818, ever since its passage, by the Treasury Department, has been, that the act has reference to the fiscal year. The construction so given by the Treasury -Department to any law affecting its arrangements and concerns, is certainly entitled to great respect. Still, however, if it is not in conformity to the true intendment and provisions of the law, it cannot be permitted to conclude the judgment of a Court of justice. The construction given to the laws by any department of the executive government, is necessarily ex parte, without the benefit of an. opposing argument, in a suit where the very matter is in controversy ; and when the construction is once given, there is no opportunity- to question or revise it by those who are most interested in it as officers, deriving their salary and emoluments therefrom, for they cannot bring the case to the test of a judicial decision. It is only when they are sued by the government for some supposed default or balance, that they can assert their rights. Their acquiescence, therefore, is almost from a moral necessity, when there is no choice but obedience, as a matter of policy or duty. But, it is not to be forgotten, that ours is a government of laws, and not of men; and that the Judicial Department has imposed upon it, by the Constitution, the solemn duty to interpret the laws,.in the last resort; and however disagreeable that duty may be, in cases where its own judgment' shall differ' from that of other high functionaries, it is not at liberty to surrender, or to waive it.

. The present question, then, must be decided upon the same principles by which we ascertain the interpretation of all other laws; by the intention of the legislature as it is to be deduced from the language and -the apparent object of the enactment.

The object of the act of 1818, manifestly is to provide a suitable compensation for the Receivers and Registers of Public Moneys for the public lands. The compensation is for services-to be rendered by them, officially, during their continuance in office; and up to a certain point, at least, it is in exact proportion to the extent and duration of those services, and the responsibility incurred thereby. The compensation is measured by years. It is to be by an annual salary, and by a commissiori not exceeding an annual amount. The words are, that “they shall receive an. annual salary of five hundred dollars each.” The natural interpretation of these words, certainly is, that the salary is to commence at the time when the service is to commence; and that they are to be contemporaneous with each other. We believe' this to be the uniform interpretation of all laws of this sort; and that when any person takes office in an intermediate time between one quarter and another, the practice is to pay him a proportion of the quarter’s salary, accordingly; and if he leaves office before the end of his„o,fficial year, to pay him for the like proportion of the last quarter. Indeed it was admitted at the argument, that this is the rule adopted at the Treasury Department itself, in relation to the salaries of officers, viz.: that it is begun and ended with the official year; and not with the fiscal year.- Nor was it suggested that, in this particular, any difficulty arose, as to the mode of -keeping and settling the official accounts, at the Treasury, at the end of each quarter, or .of -the fiscal year.

If, then, the natfiral interpretation of the words of the act, as-to the salary; has reference to the official year, and not to the fiscal year; what ground is there to'presume that Congress, in the subsequent words regulating the commission, did not use the word year in the like sense ? There is nothing in the language or in the nature of the compensation, which leads us to the conclusion that Congress had in view the fiscal year, or the mode of keeping the accounts in the Treasury Department, as guides to fix the interpretation of the word year. For aught that appears, it was used in its ordinary sense. The words are, and a commission of one per cent, on the moneys received, as a compensation for clerk-hire, receiving, safe keeping, and transmitting such moneys of the United States; provided always, that the whole amount \vhieh any Receiver of Public Moneys shall receive under the provisions of this act, shall not exceed, for any one year, the sum of three thousand dollars.” The commission is on the moneys received by any one officer, not by one or more officers, during any one year of his sérvices; not during' any one calendar year, for the services ot one or more officers in that year. It is his compensation for clerk-hire, paid by him, and for his responsibilities in receiving, keeping, and transmitting the public moneys; and not*for his services and responsibility in connexion with other officers. The commission is a compensation attached to the particular officer for his yearly service, and not to the office itself for a fiscal year. If the intention of the legislature had been what the argument for the United "States supposes, the language of the proviso would have been different; it would have been,'provided that the United States shall not, in any one calendar year, pay more than one per centum upon all the moneys received during that year; and that the commission for any one year to whomsoever paid, shall not, in the whole, exceed the sum of twenty-five hundred dollars. It need not be. said, how' entirely different in its scope and legal intendment such language is from that of the present proviso ; and yet the argument is, that the Court should give them precisely the same interpretation. We cannot but think that this is to call upon the Court, not to expound the act as it is, but to frame its provisions anew, upon a conjecture of what might have been the original intention and object of Congress.

It is further urged, that unless we interpret the words to refer to the fiscal year, great inconveniences may arise; ánd the government may, by there being several Receivers in office during one and the same fiscal year, each of whom may have received more public moneys than would entitle him to the maximum of commissions, be compellable to pay more than twenty-five hundred dollars in one year; nay, may actually pay twice or thrice that amount. Suppose it might be so, it would be a case of very rare occurrence; and to put an extreme ca'se is not a good test of the fair and just interpretation. of any statute. In such a case each successive Receiver would only receive his just proportion of the year’s salary, and no- more commission than Congress itself had established to be a reasonable compensation for his expenditures and responsibilities in receiving, safe keeping, and transmitting the public moneys. There- is 'nothing in the reason of the case, why each successive officer, ’who has incurred the full responsibility, by the receipt of two hundred and fifty thousand dollars, should not receive the whole commission up to that extent. The argument ab‘ inconvenienti, therefore, under such circumstances, does not address itself to this Court with the force which it has been supposed to possess. It amounts merely to this, that the act is defective in some of its details; and does not reach all the. cases which ought to be provided for'.'

But there would be inconveniences, not to say apparent hardr ships, upon the Receivers, in adopting the construction contended for on behalf of the government. Thus, suppose a Receiver should die, or be removed from office without' any default off his own part, during the fiscal year, and after he had received and become responsible for public moneys' exceeding two hundred and fifty thousand dollars; in such a case, the extent of the act woitld seem fairly to entitle him to the full commission of two thousand five hundred dollarsand yet, according to the argument, he would be compelled to submit to an apportionment, which might reduce it to a quarter part thereof.

There is another consideration not unimportant in the construction of the act; it is, that the limitation of the compensation which' any Receiver is to receive for any on'e year, is not, including his salary, to exceed the sum of three thousand dollars.' So that here we have both salary and commissions united together in the. ascertainment of the amount; and, of course, the year, with reference to each, must have the same period of commencement and termination. If, therefore, the • salary is to be ascertained ffiy the official year, as has been already suggested, it would seém to be an irresistible conclusion, that the same period must be assigned for the commissions.

Passing from these considerations to another, which necessarily brings under review the second point of objection to the charge of the Court below; we are led to the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting cjause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso carves special exceptions only out of the enacting clause; and those who set up any such exception, must establish it as being within the words as well as within the reason thereof. Applying this rule to the circumstances of the present case, how doek it stand? The enacting clause gives to each Receiver a commission of one per cent, upon all the public moneys received by him. This was precisely in conformity to the antecedent laws. The proviso limits that per centage to an amount not exceeding two thousand five hundred dollars; for any one year. Until, then, the per centage of the particular Receiver has reached that amount, in whatever period of the year it may arrive, the proviso, according to its very terms, has no operation: and when that maximum is reached, the per centage ceases, whether any more public moneys are received by that officer or not. The case, then, of the present Receiver falls directly within the enacting clause. He seeks- only the maximum commissions upon the moneys actually received by him during his continuance in office; and the proviso either does not touch his case, or it only operates to cut off all subsequent commissions from him, for other moneys received during his continuance in office. The proviso contains no limitations of his per centage, by connecting it with, or making it dependent upon the commissions, or the receipt of public moneys by his successor in office. The proviso is, that he shall receive no more for any one year; not that any other Receiver may not receive a like compensation accruing from his subsequent appointment and receipts in office, for the portion of any year which is then unexpired.

Upon the whole, we are of opinion, that there is no error in the charge and opinion of the Court below; and, therefore, the judgment is affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Sonthernv District of Mississippi, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed.


author: Mr. Justice M‘Kinxey

text:
    Barnett and Eliza Levy, Plaintiffs in error, v. Edmund and David Fitzpatrick, Defendants in error.
    The mortgagees, in Louisiana, filed, in the Circuit Court, their petition, stating the non-payment of the debt due on their mortgage, and that, by the laws of Louisiana, the mortgage imports a confession of judgment, and entitles them to executory process, which they prayed for. Without any process requiring the appearance of the mortgagors, one of whom resided out of the state, the judge ordered the executory process to issue. Two of the defendants, who were residents in the state, prosecuted a writ of error on this order, to the Supreme Court of the United States. Held, that the order for executory process was not a final judgment of the Circuit Court, on which a writ of error could issue.
    By the eleventh section of the judiciary act of 1789, no civil suit shall be brought before the Courts of. thé United States, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. The construction given to these provisions, by this Court, is, that no judgment can be rendered by a Circuit Court against any defendant, who has not been served with process issued against his person, in the manner pointed out; unless the defendant waive the necessity of such process, by entering his appearance to the suit. •
    The case of Toland v. Sprague, 12 Peters, 300, cited!
    As the debtors were not before the judge, in the Circuit Court, when he granted, in this case, the order for process, the order for the process could not be regarded as a final judgment, from which a writ of error could be prosecuted, under the 22d section of the judiciary act of 1789. By the laws of Louisiana, three days’ notice of a sale under such process was required to be given to the' debtors, or the sale would be utterly void. . Upon that notice, the debtors had a right to come.,into Court and file their petition, and set up, as matter of defence, every thing that could be assigned for error in a Court of Errors; and they could pray for an injunction in' the Circuit Court, to.stay the executory process, till the matter of the petition would be heard and determined. In the proceeding on the petition and answer, the whole merits of the case between the parties, including the necessary questions of jurisdiction, could be heard, and a final judgment rendered. Articles 738, 739, of the Louisiana Code oif Practice.
    IN error to the Circuit Court of. the United States, for the Eastern District of Louisiana.
    In the Circuit Court, Edmund and David Fitzpatrick, citizens of the state of Virginia, filed a petition, stating that the plaintiffs in error, Barnett and Eliza Jjevy, citizens of Louisiana, and resident in the Eastern District of Louisiana, were indebted to them. in solido, in the sum of twelve thousand one hundred dollars, with interest, at the rate of ten per cent., until paid, from the second day of February, 1838. That on the ,26th of March, A838, Barnett Levy, Eliza Levy, and one Moses E. Levy, (Moses E. Levy being then a resident in the state of Mississippi, and not within the District cf Louisiana,) gave their obligation, duly executed by them, to the said Edmund and David Fitzpatrick,. binding themselves and each of them, in solido, to pay to them the said sum of twelve thousand one hundred dollars, on the 2d of February, 1839, with interest, &c., “ negotiable and payable at the residence of the said Barnett Levy in the state of Louisiana.” The petition alleged that a demand of payment of the said obligation had been duly made at,the residence of Barnett Levy, but- the obligors had wholly failed to pay the same.. The petition stated that a public act of hypothecation and mortgage, at the timé the obligation was given, was executed by M. A. Levy, Barnett Levy, and Eliza Levy, by which certain real estate and slaves were given in pledge for the security of the said debt; which was duly recorded in the proper office in the parish of. Madison, in the state of Louisiana. The mortgagé was joint, not joint and several.
    The petition asked that executory process might issue in the premises; and that, after due proceedings, the land and-slaves might be sold, to pay the debt and interest due the petitioners, under executory process.
    The petition also alleged .-.that the act of hypothecation imported a confession of judgment, and entitled the petitioners.to executory process. The bond, and a certified copy of the act of- mortgage,- were annexed to the petition.
    The mortgage, executed by Eliza Levy and Barnett Levy, in their proper persons, and by Barnett Levy, under a power of attorney from M. A. Levy, which was not annexed to or filed with the mortgage, stipulated that one-third of the debt should be paid on the 2d of February, 1839; one-third on the 2d of February, 1840; and the residue on the 2d of February, 1841; “ and on failure to pay the said note in the three, several instalments, as aforesaid, or any one thereof at its maturity, they hereby impower and authorize the said Edmund Fitzpatrick and David Fitzpatrick, or either of them, to avail themselves of all the advantages of this special mortgage, and to proceed to seizure and sale of the said lands and slaves hereby mortgaged, by executory process, according to law, for the whole sum of twelve thousand one hundred dollars.”
    The Honourable Í?. K. Lawrence, judge of the Circuit Court, gave an order for process on the petition, “ as prayed for.” Two of the mortgagors, the defendants in the Circuit Court, prosecuted this writ of error to the Supreme Court. The errors assigned, in- the petition, for the wfit of error in the Circuit Court, were the following:
    1st. No oath, or affidavit has been made by the creditors, or either of them, that the debt is due upon which the order- of seizure and sale has been obtained. See Civil Code of Louisiana, art. 3361.
    2d. The power, of attorney, if any exists^ of Moses A. Levy, one of the defendants, is not attached to the papers nor filed in this suit, and. there is no authentic evidence of it; there is a mere recital of it in the act.
    3d. The certified copy of the act of mortgage is. not completed, inasmuch as a certified copy of said power- of attorney does not accompany it; though said act declares that said power of attorney was attached to it, and is of course an important part of the record.
    4th. Though the written obligation may be joint and several, yet the act of mortgage is only joint, and it' is indivisible; therefore it is illegal to proceed by executory process against any one or two of the joint obligators, to the exclusion of the .other one or two.
    5th. The proceedings generally are irregular and illegal, and cannot be sustained.
    . Lastly, That .no presentment or demand of payment of "the note or obligation sued upon was made before the commencement of this suit, at the place where the same was made-payable, and that no protest or other evidence of such demand is exhibited.
    The case was submitted; on the part of the plantiifs in error, on a printed argument, by Mr. Garland; and was argued at the bar, by Mr. Coxe, for the defendant.

      The decision of the Court having been given on a point not presented by the assignment of errors, or in the arguments of the counsel, the arguments are omitted.
   Mr. Justice M‘Kinxey

delivered the opinion of the Court..

The defendants in error addressed a petition to the Circuit Court for the Eastern District of Louisiana, stating that the plaintiffs in error were indebted to them, in solido, in the sum of twelve thousand one hundred dollars, with interest at the rate of ten per cent, per annum, by their certain writing obligatory,, executed by them and one Moses A. Levy, who was then out of the jurisdiction of the Court. To secure the payment of which sum of money, the said Barnett Levy, for 'himself, and as attorney in fact, for the- said Moses A. Levy, together with the said Eliza Levy, by. a public act, hypothecated and mortgaged ■to the petitioners, a certain tract of land and several slaves therein mentioned, which public act, they alleged, imports a confession of judgment, and entitled them to executory process; which they prayed the Court to grant. Without any process requiring the appearance of the debtors, one of the judges signed an order directing the executory process to issue. To reverse this order, they sued out this writ of error.

Had this proceeding taken place before a judge of competent authority, in Louisiana, the debtors might have appealed from the order of the judge to the Supreme Court, of that state; and that Court might, according to the laws of Louisiana, have examined and decided upon the errors which have been assigned here. 'But there is a marked and radical difference between the jurisdiction of the Courts of Louisiana, and those of the United States. By the former, no regard is paid to ffie citizenship of the parties; and in such a case as this, no process is necessary to bring the debtors before the Court. They having signed and acknowledged the authentic act, according to the forms of the' law of Louisiana, are, for all the purposes of obtaining executory process, presumed to be before the judge. Louisiana Code of Practice, articles 733 and 734. An appeal will lie to the Supreme Court of Louisiana, from any interlocutory or incidental order, made in the progress of the cause, which might produce irreparable injury. State v. Lewis, 9 Mart. R. 301, 302. Broussard v. Trahan’s heirs, 4 Mart. R. 497. Gurlie v. Coquet, 3 N. S. 498. Seghus v. Antheman, 1 N. S. 73. State v. Pitot, 12 Mart. R. 485.

• The jurisdiction of the Courts of the United States is limited by law, and can only be exercised in specified cases. By the 'eleventh section of the judiciary act of 1789, it is enacted "That the Circifit Courts shall have original cognisance, concurrent with the Courts of the several states, of all suits of a civil nature^ at common law, or in equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and ft' citizen of another state. And no civil suit shall be brought before said Courts, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time .of serving the writ.” The construction given by this Court, to these provisions is, that no judgment can be rendered- by a Circuit Court, against any defendant who has not been served with process issued against his person, in the manner here pointed but; unless the defendant waive the-necessity of such process by entering-his appearance to the suit. Toland v. Sprague, 12 Peters, 300.

And by the 22d section of the same ac final judgments in civil actions, commenced in the Circuit Court., by original process, may be re-examined, and reversed or affirmed, upon a writ of error. It is obvious that the debtors were not before the judge, in this case, by the service of - process, or by voluntary appearance, when he granted the executory process. In that aspect of the case, then, the order could not be regarded as a final judgment, within the meaning of. the.22d section of-the statute. But was the order a final judgment, according to the laws of Louisiana ? The fact of its being subject to appeal does not prove that it was, as has already been shown. Nor could it, per se, give to the execution of the process, ordered by the judge, the dignity of a judicial sale. Unless at least three days previous notice were given, to the debtors, the sale would be utterly void. Grant and Olden v. Walden, 5 L. R. 631.

This proves that some other act was necessary, on the part of the plaintiffs, to entitle them to the fruits of their judgment by confession. And in that act is involved the merits of the whole case; because, upon that notice, the debtors had.a right to- come into Court and file their petition, which is technically called an opposition, and set up, as matter of defence, every thing that could be assigned for error here, and pray for an injunction to stay the executory process till the matter of the petition could be heard and determined. And upon an answer to the petition coming in, the whole merits of the case between the parties, including the necessary questions of jurisdiction, might have been tried, and final judgment rendered. Articles 738, 739, of the Code of Practice. From this view of the case, we think the order, granting executory process, cannot be regarded as any thing more than a judgment nisi. To such a judgment a writ of error would not lie. The writ of error, in this case, must therefore be dismissed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is ordered and adjudged, by this Court, that this writ of error be, and the same is hereby, dismissed, with costs.