# The Post Master General of the United States v. Early

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
25 U.S. 136
The Post Master General of the United States v. Early
THIS was an action of debt, commenced in the Circuit Court for the district of Georgia, by the District Attorney of the United States for that district, in the name of the Post Master General of the United States, against the defendants, on a bond executed by them, in Juns, 1820, to the Post Master General of the United States, the condition of which, after reciting that Eleazer Early (one of the coobligors and defendants in the suit) is Post Master at Savannah, provides, that if he shall perform the duties of his office, 'and shall pay all moneys that shall come to his hands for the postages of whatever is by law chargeable with postage, to the Post Master General of the United States for the time being, deducting only the commission and allowances, made by law, for his care, trouble, and charges, in managing the said office,' &c. 'then the above obligation shall be void.' The breach assigned was, that the said E. Early did not pay to the Post Master General the moneys which came to his hands, as post master at Savannah, but that the sum of 7,736 dollars and 64 cents was still in arrear and unpaid. The defendants pleaded to the jurisdiction of the Court, that this was 'not a suit in which the United States are a party, nor is the debt declared on one contracted, authorized, or arising, under a law of the United States, and over which jurisdiction has been given to this honourable Court.' On the argument of the cause in the Court below, the opinions of the judges of the Court were opposed upon the question of jurisdiction, and it was certified to this Court for a final decision. March 9th.
The cause was argued by the Attorney General and Mr. Wheaton, for the plaintiff, and by Mr. Webster and Mr. Berrien, for the defendants.
On the part of the plaintiff, it was contended, (1.) that the laws of the United States gave, and were intended to give, the jurisdiction now in question. If there was any apparent discrepancy in the laws on the subject, it grew out of the fact, that the post office department existed long before the establishment of the present constitution, and Congress had dealt with it as an existing institution of the government. The laws now in force, and the usage which had grown up under them, of the Post Master General taking bonds to secure the official good conduct of his deputies, and bringing suits on them in the Courts of the Union, would be best explained by a recurrence to this historical fact. The Post Office Act of April 30th, 1810, ch. 262. s. 29. which is a consolidation of the former laws on the subject, directs the Post Master General to 'cause a suit to be commenced against any post master who does not
Osborn v. The Bank of the United States, 9 Wheat. Rep. 738, 325. 901, 902. render his quarterly accounts, and pay over the balance to the Post Master General.' And provides, 'that all suits which shall hereafter be commenced for the recovery of debts or balances due to the general post office, whether they appear by bond or obhgations made in the name of the existing, or any preceding, Post Master General, or otherwise, shall be instituted in the name of the Post Master General of the United States.' The 42d section of the same act repeals the former post office laws, with a proviso, saving suits and the bonds given by deputy post masters for the faithful execution of their several duties and offices. The act of the 3d of March, 1815, ch. 782. s. 4. declares, 'that the District Courts of the United States shall have cognizance, concurrent with the Courts and magistrates of the several States, and the Circuit Courts of the United States, of all suits at common law, where the United States, or any officer thereof, under the authority of any act of Congress, shall sue, although the debt, claim, or matter in dispute, shall not amount to 100 dollars.' It was admitted that the clause giving the jurisdiction to the Circuit Courts, was awkwardly expressed in this last section, which seemed to have been drawn upon the supposition that the jurisdiction already resided in those Courts; yet it was insisted that this was equivalent to a declaration of the legislative will, that it should be exercised by them, since the District Courts could not have a concurrent jurisdiction with the Circuit Courts in such suits, unless the latter had, by law, cognizance of the same. If it should be objected, that though the Circuit Courts might have cognizance of actions where any officer of the United States sues under the authority of any act of Congress, yet there is no such act authorizing the Post Master General to take the bond, on which this suit was brought: it was answered, that the authority to sue on such a bond, given in the 29th section of the act of 1810, is an implied authority to take it, and a legislative recognition of the notorious pre-existing practice of office, which is also strongly confirmed by the proviso in the 42d section, saving all suits and the bonds given by post masters. Even if it were doubtful whether he could take a bond for the faithful discharge, by his deputies, of their official duties, without an express authority by law, a bond might certainly be taken to secure the payment of moneys due to the government in the post office department, as well as to an individual, or to a corporation. A mere voluntary bond, taken at common law, for a purpose not unlawful, and adapted as means to attain the end contemplated by the statute, would be valid, and a suit might be maintained upon it in a Court of competent jurisdiction.
Cro. Jac. 32.
5 Cranch, 303.
Bunb. 225. 262. 558. 223. Parker, 37. 279. Hale, in Hargr. Law Tracts, 216. 2 Anstr. 558. Coop. Eq. Pl. 21, 22. Mitf. Pl. 22. Barton's Eq. 59.
2 East's Rep. 362. 1 Chitty's Com. Law, 801. 824. insisted, (1.) that there was no law of Congress which, in terms, required or authorized the Post Master General to take the bond on which the suit was brought. There was, indeed, no express inhibition of such a bond, but the supposed implied authority to take it was negatived by the obvious policy of the post office laws. That policy was to secure the collection of the dues to the department by requiring prompt settlements, enforced by the personal responsibility of the Post Master General, as provided in the 29th section of the act of 1810. It was not meant to rely upon this provision as constituting a ground of defence for a deputy post master sued by the Post Master General for official negligence, upon the primary obligation imposed on him by accepting the office, and not accounting for the public moneys received in his official capacity. It was only contended, that it excluded the idea of the Post Master General being authorized to take a security not expressly authorized by the law, from an agent appointed by him, removable by him, and accountable to him. This inference was supported by the new provision inserted in the 3d section of the amended post office act of 1815, expressly authorizing and requiring him to take such a bond. This was a legislative declaration, negativing the right under any preexisting statute. The question here was not, whether this might not be good as a voluntary bond at common law. Without stopping to inquire whether the United States have a system of unwritten law, to which an official bond, not authorized by any statute of Congress, can be referred for its validity, it was said that the cases cited to show that the bond might be sustained at common law, were foreign to the present inquiry. This was a question of jurisdiction, which depended upon the other question, whether this bond, (admitting it to be valid at common law,) when made the foundation of an action, presented a case arising under the laws of the United States. To make it a case arising under those laws, the bond must not only be valid, but must be authorized by statute; and the case could no more be said to arise under the laws of the United States, than that of a voluntary bond taken by the marshal, or the collector, from their deputies.
Bank of the United States v. Deveaux, 7 Cranch. 85. M'Intire v. Wood, 7 Cranch. 503. United States, upon the bond, or in the form of an express or implied assumpsit to recover the money, the payment of which the bond was intended to secure. Could, then, the United States be considered as parties to the suit, for the purpose of giving the Court a jurisdiction, which it would not take if they were, in fact, parties to the suit, or, (in the words of the Judiciary Act of 1789,) 'plaintiffs or petitioners?' The jurisdiction, as derived from the character of the parties, must depend, not on the question who is the substantial party in interest, but who is the formal party on the record. Independent of the circumstance that the United States had no interest on the face of the bond, which would entitle them to maintain an action on it, they are inhibited from being parties to the suit, even as against the principal obligor, by the express provisions of the Post Office Act of 1810, s. 29., which directed that all such suits 'shall be commenced in the name of the Post Master General of the United States.' Even supposing, therefore, that Congress has legislated upon the unfounded assumption that the jurisdiction was already vested in the Circuit Court, or supposing that the case is a casus omissus, can the judicial power correct the mistake, or supply the defect? Even in the case of choses in action, assigned to the United States as collateral security for debts due to the government, the defect of jurisdiction was incontestible, and attended with great practical inconveniences; and yet Congress has recently refused to supply it, by authorizing suits upon such securities to be brought in the Courts of the Union. The case of Dugan v. The United States, went upon the ground, that in all cases of contract with the United States, they had a right to enforce it by an action in their own names, unless a different mode of suit was prescribed by law. But if, in that case, the treasurer of the United States had been authorized and required to sue, in his official name, on all bills which should be endorsed to him for account of the government, would this Court have sustained jurisdiction of an action brought on such bills by the United States in their own name?
Osborn v. Bank of the United States. 9 Wheat. Rep. 855-857.
3 Wheat. Rep. 172.
2. If, then, the bond was a lawful bond, and the Post Master General was authorized to cause a suit to be commenced on it in his official name, and if the intention of Congress to vest jurisdiction over such suit in the Circuit Courts was sufficiently manifested, the only remaining question would be, whether the laws conferring this jurisdiction were consistent with the constitution, by which the judicial power is extended to 'all cases in law and equity arising under the laws of the United States,' and to 'controversies to which The United States shall be a party.' That this was a case arising under the laws of the Union, was self-evident; and that it was a controversy to which the United States is a party, would appear from an examination of the record. The suit is brought by the District Attorney of the United States, in the name of the Post Master General, not for his own benefit, but as the public agent of the government, and a trustee for the United States. The acts of public officers, within the sphere of their authority, are the acts of the government; and the money to be recovered being the property of the United States when recovered, the United States are parties to the suit. There was a distinction between a formal party to the suit, and a substantial party to the controversy. This distinction might be illustrated by the ordinary principle applicable to assignments of choses in action, where the suit is brought by the assignee in the name of the assignor, but the latter cannot control it.' So, also, the assignee of the crown has a right to sue in the name of the crown. There the crown is no party to the controversy, though a party to the suit. Here the Post Master General is the nominal party on the record, but the United States is the real party to the controversy. In the case of Brown v. Strode, where the suit was brought in the name of 'the justices of the peace for the county of Stafford,' who were citizens of Virginia, against the defendant, a citizen of the same State, to recover a debt due to a British subject, the alien was there considered as the substantial party to the suit, it being brought for his benefit. So, in England, many suits in which the public in concerned, are not brought in the name of the crown. Thus, at common law, independent of any statutory provision, the Attorney General exhibits, in his own name, an information of debt, which is called the king's action of debt; or, if a discovery is wanted, an English information in the Exchequer, called the king's bill in equity. Here the Attorney General is the nominal party, whilst the crown is the substantial party for whose benefit the suit is brought. And the prosecutions under the revenue laws are frequently brought by the commissioners of excise and the customs, or by their order, in the name of the Attorney General; or, in minor cases, by the inferior officers of the revenue; but the public is always considered as the substantial party to the suit.
For the defendants, it was argued, that whatever might be the extent of the judicial power as defined in the constitution, the tribunals inferior to the Supreme Court, and created by Congress, could only exercise such jurisdiction as was expressly conferred upon them by statute. But, it was insisted, that this was not 'a case arising under the laws of the United States,' nor 'a controversy to which the United States are a party.' And, in this view, it was
2. But even supposing the bond in question was authorized to be taken by the laws of the United States, jurisdiction of a suit brought upon it could only be vested in the Circuit Court by some express legislative enactment. Though the case may be included in the constitutional grant of jurisdiction, some act of Congress is necessary to enable the Courts to exercise it. So far from Congress having conferred this jurisdiction on the Circuit Courts, the Post Office Act, whilst it is silent as to the Courts of the Union, expressly confers it on the State Courts. As to the Judiciary Act of 1815, s. 4. the title of that act shows the intention of Congress to limit its operation to the State Courts and to the District Courts of the United States. If it can be construed to extend to the Circuit Courts of the Union, its effect is merely to give them jurisdiction in the specified cases where 'the debt, claim, or matter in dispute, shall not amount to 100 dollars.' The words 'concurrent with the Circuit Courts,' were not intended to give jurisdiction to those Courts. Similar expressions are found in the 9th and 11th sections of the Judiciary Act of 1789, but it had never been supposed that such was their effect. It is possible that the act was passed, upon the mistaken supposition that the jurisdiction was already vested in the Circuit Court. But this could not make the law; and the Court would not construe this particular act contrary to its plain intent, however erroneous the opinion which produced it.
3. The remaining question was, whether the United States were a party to the suit. And even admitting that the proceeds would accrue to their benefit, that the money which the bond was given to secure was their money, for which assumpsit could have been maintained against the principal obligor in their name; still, as it regarded the coobligors or sureties, this was a new contract, not depending on any pre-existing debt, liability, or obligation from them to the United States. Their obligation arises exclusively from the bond, which binds them to the Post Master General alone; no action could be maintained against them by the March 15th.
Mr. Chief Justice MARSHALL delivered the opinion of the Court, and after stating the case, proceeded as follows:

## Notes

* 1 2 Osborn v. The Bank of the United States, 9 Wheat. Rep. 738, 325. 901, 902. render his quarterly accounts, and pay over the balance to the Post Master General.' And provides, 'that all suits which shall hereafter be commenced for the recovery of debts or balances due to the general post office, whether they appear by bond or obhgations made in the name of the existing, or any preceding, Post Master General, or otherwise, shall be instituted in the name of the Post Master General of the United States.' The 42d section of the same act repeals the former post office laws, with a proviso, saving suits and the bonds given by deputy post masters for the faithful execution of their several duties and offices. The act of the 3d of March, 1815, ch. 782. s. 4. declares, 'that the District Courts of the United States shall have cognizance, concurrent with the Courts and magistrates of the several States, and the Circuit Courts of the United States, of all suits at common law, where the United States, or any officer thereof, under the authority of any act of Congress, shall sue, although the debt, claim, or matter in dispute, shall not amount to 100 dollars.' It was admitted that the clause giving the jurisdiction to the Circuit Courts, was awkwardly expressed in this last section, which seemed to have been drawn upon the supposition that the jurisdiction already resided in those Courts; yet it was insisted that this was equivalent to a declaration of the legislative will, that it should be exercised by them, since the District Courts could not have a concurrent jurisdiction with the Circuit Courts in such suits, unless the latter had, by law, cognizance of the same. If it should be objected, that though the Circuit Courts might have cognizance of actions where any officer of the United States sues under the authority of any act of Congress, yet there is no such act authorizing the Post Master General to take the bond, on which this suit was brought: it was answered, that the authority to sue on such a bond, given in the 29th section of the act of 1810, is an implied authority to take it, and a legislative recognition of the notorious pre-existing practice of office, which is also strongly confirmed by the proviso in the 42d section, saving all suits and the bonds given by post masters. Even if it were doubtful whether he could take a bond for the faithful discharge, by his deputies, of their official duties, without an express authority by law, a bond might certainly be taken to secure the payment of moneys due to the government in the post office department, as well as to an individual, or to a corporation.
* ↑ A mere voluntary bond, taken at common law, for a purpose not unlawful, and adapted as means to attain the end contemplated by the statute, would be valid, and a suit might be maintained upon it in a Court of competent jurisdiction.
* ↑ ↑ Dugan v. United States, 3 Wheat. Rep. 172.
* 1 2 Cro. Jac. 32.
* 1 2 5 Cranch, 303.
* 1 2 Bunb. 225. 262. 558. 223. Parker, 37. 279. Hale, in Hargr. Law Tracts, 216. 2 Anstr. 558. Coop. Eq. Pl. 21, 22. Mitf. Pl. 22. Barton's Eq. 59.
* 1 2 2 East's Rep. 362. 1 Chitty's Com. Law, 801. 824. insisted, (1.) that there was no law of Congress which, in terms, required or authorized the Post Master General to take the bond on which the suit was brought. There was, indeed, no express inhibition of such a bond, but the supposed implied authority to take it was negatived by the obvious policy of the post office laws. That policy was to secure the collection of the dues to the department by requiring prompt settlements, enforced by the personal responsibility of the Post Master General, as provided in the 29th section of the act of 1810. It was not meant to rely upon this provision as constituting a ground of defence for a deputy post master sued by the Post Master General for official negligence, upon the primary obligation imposed on him by accepting the office, and not accounting for the public moneys received in his official capacity. It was only contended, that it excluded the idea of the Post Master General being authorized to take a security not expressly authorized by the law, from an agent appointed by him, removable by him, and accountable to him. This inference was supported by the new provision inserted in the 3d section of the amended post office act of 1815, expressly authorizing and requiring him to take such a bond. This was a legislative declaration, negativing the right under any preexisting statute. The question here was not, whether this might not be good as a voluntary bond at common law. Without stopping to inquire whether the United States have a system of unwritten law, to which an official bond, not authorized by any statute of Congress, can be referred for its validity, it was said that the cases cited to show that the bond might be sustained at common law, were foreign to the present inquiry. This was a question of jurisdiction, which depended upon the other question, whether this bond, (admitting it to be valid at common law,) when made the foundation of an action, presented a case arising under the laws of the United States. To make it a case arising under those laws, the bond must not only be valid, but must be authorized by statute; and the case could no more be said to arise under the laws of the United States, than that of a voluntary bond taken by the marshal, or the collector, from their deputies.
* 1 2 Bank of the United States v. Deveaux, 7 Cranch. 85. M'Intire v. Wood, 7 Cranch. 503. United States, upon the bond, or in the form of an express or implied assumpsit to recover the money, the payment of which the bond was intended to secure. Could, then, the United States be considered as parties to the suit, for the purpose of giving the Court a jurisdiction, which it would not take if they were, in fact, parties to the suit, or, (in the words of the Judiciary Act of 1789,) 'plaintiffs or petitioners?' The jurisdiction, as derived from the character of the parties, must depend, not on the question who is the substantial party in interest, but who is the formal party on the record.
* 1 2 Osborn v. Bank of the United States. 9 Wheat. Rep. 855-857.
* 1 2 3 Wheat. Rep. 172.
* ↑ Osborn v. The Bank of the United States, 9 Wheat. Rep. 902.
* ↑ 1 Wheat. Rep. 235. 5 Wheat. Rep. 277.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse