112
FEDERAL REPORTER.
vol 54.
suspension from his pqsition at navy yard he went to Washington .to,petition either for reinstatement or· an investigation ot the charges that had been preferred against him, and that, in pU1'" suance Qthis'applicatiOO1, the meeting of the board of investiga.tion was ordered. and that in returning to Mare island the plain. tiff came of his own motion to attend the llleeting of that boord. If such were the facts, (and there, is nothing in the complaint to negative that assumption,) the plaintilf is not entitled to recover his travelirig exPenses. The demurrers are sustained.
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STATES v. BEE at ILl. SERVICE BEGINS.
(Circuit Court ot' Appeals, Ninth, Circuit. January 16, 1893.) Under Re"\t. St. § 1740; 11-. person residing at Apia In the Friendly and Navigators' l$lj\.D.ds, who reQeived notiGe .troIQthe department ot state in June, Francisco, and there await his instructions and 1874, to proceed to commission II,s consul at ,Apia, and who lett Apia July' 3, 1874, arrived in San Francisco, August 21st.: took the oath ot office September 14th, executed his bond. September 15th and sailed for Apia November 18th, arriving Janu,ary I, 1875,1s not entitled to salary prior to January 1, 1875, except tor the, time he was awaiting instructions, (from September 15th to October 14th;) and for the time occupied In the voyage, (from November 14th to January 1st.)
San
2.
8AME-OVERPAYMENT-LIABILITY Oll' BONDSMEN.
BondsIQen that a consul shall truly and taJth:tully df8. charge of his office, and taithfully pay over and deliver up all moneys which' shall come into his hands, are liable tor moneys which he gets as overpayments of salary, and talls to return to the government.
8.
SAME-NEGLECT OF GOVERNMENT TO SUE.
The neglect ot the, treasury department In claiming or suing tor moneys paid to a consul in excess of his salary does not discharge' the sureties on his bond frOIQ their liability therefor, although such neglect continues long enough to afford the surettes a good defense ag1tinst any but the govern· ment, tor publio interest should not· be prejudiced by the neglect ot public officers.
the
In Error futhe Circuit Conrt of the United States for the Northern LJistrict of California. At Law. Action by the United States against Frederick A. Bee and William Bell, bondsmen of S. A. Foster, to recover an excess of salary paid to Foster While acting as United States consul. The district court gave jUdgmE:lnt for plaintiff, but tlrls was reversed on writ of error by the circuit court. Plaintiff brings error. Judgment ofcircmt court reversed. ' ' Charles A. Garter and, Willis G. Witter, for the United States. Thomas Riordan, for defendants in error. Before McKENNA and. GILBERT, Circuit Judges, and HAWLEY, District , . ' '" GILBERT, {lliocuit Judge. This Case involves the construction of section 1740oftb.e Statutes of the United Sta:I:.ea,wbich reads as follows: ', ," , "
UNITED BTA TEa 11. BEE.
113
"Sec. 1740. No ambassador, envoy extraordJ.nary, m1n1ster plenipotentiary, minister resident, commissioner, charge d'a1fa1rs, secretary of legation, assistant secretary of legation, interpreter to any legation, or consulate, or consul consul, or commercial agent, mentioned in Schedules B and C, shall be entitled to compensation for his services, except from the time when he reaflhes his post and enters upon his officIal duties to the time when he ceases to hold such office, and for such time as is actually and necessarily occupied in receiving his instructions, not to exceed thirty days, and in making the direct transit between the place of residence, when appointed, and his post of duty, at the commencement and termination of the period of his official service, for which he shall in all cases be allowed and paid, except as hereinafter mentioned, and no person shall be deemed to hold any such office after his successor is. appointed and actually enters upon the duties of his ofllce at his post of dUly, nor after his official residence at such post has terminated, If not. so relieved.. But no such allowance or payment shall be made to any coruml general, consul, or commercial agent, not embraced in Schedules B and C, or to any vice consul, vice commercial agent, deputy consular, or con· sular agent for the time so occupied in receiving instructions or in such transit as aforesaid; nor shall any such officer as is referred to in this section be allowed compensation for the time so occupied in such transit at the termi· nation of the period of his official service If he has resigned, or been recalled therefrom for any malfeasance."
In June, 1874, S. A. Foster, who was residing at Apia, in the Friendly and Navigators' received notice from the depart· ment of state to proceed to San Francisco, and there to await his in· structions and commission as consul at Apia. He left Apia on July 8, 1874, and arrived at San Francisco August 21, 1874. On September 14:, 1874, he received notice of his appointment as consul, and took his oath of office, executed his bond, and on the following day forwarded the same to Washington. On November 18th he sailed for Apia, where he aITived on January 1, 1875. He immediately entered upon the discharge of his duties as consul, and continued to act as such un· til September 28, 1876. On July 3, 1875, he notified the department that he had drawn for one year's salary from July 1874, to July 1, 1875, at $1,000 per annum. The draft was forwarded to the secretary, and was paid. In September, 1875, on an adjustment of his accountill, the department decided that he was not entitled to salary prior to January 1, 1875, except for the time he was awaiting instructions, to wit, from September 15, 1874, to October 14, 1874, and for the time occupied in transit, from November 18, 1874, to January 1, 1875, and fixed the amount due from him on account of overpayment at $298.93. After this adjustment Foster continued to make drafts for his salary, and the drafts were regularly paid, without deduction of the amount which was claimed to be due. Foster's term expired in September, 1876, and he died in 1877. The matter rested thus for 12 years, when the account was again adjusted, and Foster was allowed a credit of $85 for errors made by himself in drawing his drafts, and this action was commenced in. the district court against Foster's bondsmen to recover $213. A judgment was rendered in the district court in favor of the United states for that amount, and on writ of error to the cir· cuit court that judgment was reversed, whereupon the cause was brought on writ of error to this colUrt. The case is presented on an agreed statement of facts. The defenses madetd the action are threefold: First, that Foster was entitled to aU the money' paid him;· second, that the terms of the v.54F.no.1-8
114
So"far as the first defense is concerned, it is suffi.cientto say the I'ltatuteis plain, and susceptible of but one interpretation, and under ita pr0Visi0l;lS and the stipulated facts there can be no question that the full amount sued for. .' Does 'the, bond, by its terms, hold the defendants liable for this mone)? .Their undertaking was that Foster should "truly and faith· the duties of his said office according to law, and truly and faitblUl1y pay over and deliver. up all etc., which shall oomeinto his hands." It would be a narrow and unreasonable interpretation of this instrument to say that it held the bondsmen liable for moneys that came into Foster's hands from other sources, but that it did hold them liable f9r moneys that the government migh1 received by Foster overpay him for salary. '!'he money having in excess of the salary then justly due him, it his duty to repay the excess to the government. The performance of that duty, and the accountjng for this money, were as fully secured to the United States by the tenus of the bond as waS t1le discharge of any duty pertaining to his offilie, or the paytnent of any other moneys that might come into his hands as such offieer. Neit)lei'does the negligence treasUl1 department release the It is trUe, as. urged,' that the officers of the government refused to pay the overdraft'm the first instance, and, it, was their duty to have deducted the 6verpayment from the subsequent drafts for sallLry. If the obligee:in the bond were any ofuert1la/nthe governlnent, this defense might, avail in behalf of the sureties. But the neglect of the United States officials does not excuse Foster's wrong, in the :first instance; in drawing for more money than was due him, or his subsequent failure to refund the sable. All the property of the United States· is held in trust for the It is now well settled upon grounds of public policy that the public intere'!!lts shlLll not be prejudiced by the neglect of the officers, or agents to whose care they are confided. U. S. v. Nashville, C. & St.L. Ry. Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006; VanBrocklin v. State of Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep. 670; U. S. v. Insley, 130 U. S. 263, 9 Sup. Ot. Rep. 485. . The judgment of theeircuit court is reversed, with instructions to enter judgment for plaintiff, and for eosts.
t'6leaae
smeties.
the.suNties liable for the money; third, that the the treasury'department was of such' a character as to
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UNITED STATES v. ADAMS et
at
(CIrcuit Oourt, D. Nevada. November 7, 1892.) OJUTJllD STATES MABBBAL-BOND-LUJULITY.OF SmucTIEs-LACHElI.
The faUure of the U.nited States to present their claim aga1nBtthe estate of a deceased United' States marshal constitutes no defense to an action agalnsttWi!,suretles>on his ofticial bond. Laches can never be lmputed to -any case broUi1l.t to a Pl;lbUo .