#### SAM HENDERSON Jr., Administrator, et al., v. THE UNITED STATES.

[No. 22543.

Decided May 15, 1907.]

*On the Proofs.*

The question oí law in this case is whether a postmaster and his money-order superintendent are disbursing officers within the meaning of Revised Statutes, section 1059.

I.The superintendent of a money-order division in a post-office has no account with the Government and, consequently, no credit can be allowed to him by the auditor of the Post-Office Department ; and therefore he is not a disbursing officer within the intent and meaning of the Revised Statutes, section 1059, and can not by a decree of this court obtain relief from “responsibility for funds stolen from him.

II.A postmaster is not a disbursing officer within the meaning of the statute, although it extends to disbursing officers of the Executive Departments.

III.The term “ *other disbursing officer*” in the statute must be confined to the class of disbursing officers previously described therein. The rule is that when general words follow particular and specific words they must be confined to things of the same kind or class. Postmasters who disburse Government funds to their employees or redeem money orders drawn upon their offices do not belong to the class whose duties are exclusively those of disbursing the Government funds.

IY. The *Act 17 March, 1S8%*(22 Stat. L., 29), as amended by certain subsequent acts, provides a remedy for postmasters for losses of money in their hands which is exclusive.

*450
      *The Reporters'*statement of the case:

The following are the facts of the case as found, by the court:

I. The decedent, Edgar Hincks, was, on June 7, 1900, the superintendent of the money-order division of. the post-office at New Orleans, La., where he had been eiirployed for about twelve or fourteen years, the greater part of which time he was cashier of the said post-office.

Said Edgar Hincks gave bond direct to the United States, the Fidelity and Deposit Company of Maryland qualifying as surety on March 5, 1900, conditioned for the faithful discharge of all the duties and trusts imposed on him either' by law or by the rules and regulations of the Post-Office Department of the United States, and to faithfully account for and pay over to the proper officials all moneys which should come into his hands, and upon the termination of his term of office or employment to return to the proper officials all property of whatever kind which should then be in his possession.

Said Hincks died on August 18, 1901, and the administrator of his estate has been substituted for him as claimant in the case.

II. The money-order division, where Hincks performed his duties, was located on the first floor of the post-office building, in a room about 35 feet long, which was divided into two parts by a wooden partition about 6 feet high, extending the entire length of the room. One side of this partition formed a corridor, 6 to 8 feet wide, for the use of the public, and the other side formed the money-order room proper, which was used by the employees for the transaction of the business of the money-order division. There was no entrance from the corridor into the money-order room, nor could the employees of the money-order division see into the corridor, except by looking directly through the paying and receiving tellers’ windows, which were cut in the partition. No outsider was allowed on the employees’ side of the money-order room.

III. The public entrance to the corridor of the money-order division was a large double or folding door that opened inward into the corridor directly in front of the window through which money orders were paid by Hincks. The back of the partition inside the money-order room formed a *451counter or sbelf extending the whole length of the partition, and was supplied with drawers and cupboards underneath. Behind the partition and on each side of this window were wooden lattice screens extending the full width of the counter and to the top of the window. Beyond the right screen was a case containing pigeonholes, in which postal advices were filed and to which it was necessary for Hincks to constantly refer in cashing money orders. Beyond the left screen was another case similar to that on the right, in which miscellaneous papers and envelopes were kept. Beyond this case and still farther to the left, at the extreme end of the partition and counter, was a window of ground glass, which opened inward over the counter and was fastened on the left side on hinges. The distance from this window to the center of the paying teller’s window, where Hincks stood in cashing-money orders, was about 8 feet, and the distance from the paying teller’s window to the middle of the case on the right, where the postal advices were filed, was about *7*or 8 feet.

It was not possible for persons standing in front of the paying teller’s window at Hincks’s position or farther to the right in front of the advice file case to see a slight opening of the window on the extreme left. The screen on the left side of the paying teller’s window, as well as the file case, would intei’rupt the view.

. IV. The use of this window at the end of the partition was not necessary in the transaction of the business of the money-order division, and Hincks could have had it closed entirely and nailed up at any time had he so desired.

V. It was the duty of the messenger or porter to sweep out . the corridor of the money-order division and also to open the outer doors for the admission of the public into the corridor at 9 o’clock each morning. The porter did this by climbing-up on the counter from inside the money-order room and crawling through the window at the left end of the partition. After opening the doors he would return in the same way and close the window after him. There was no lock upon the window, but it was fastened with a latch or bolt that did not catch at all, and anybody from the outside could push the window open. The porter noticed the fact that the *452latch did not work when he first went through the window, some seven or eight months before the alleged robbery, and this defect existed before he came to the office, it being shown by a cut or mark, something like an eighth of an inch deep, made by the latch or bolt in the counter in opening the window.

VI. The use of this window by the porter was an everyday occurrence and was authorized by Hincks’s predecessor and’.continued without special authorization by Hincks. Hincks and the other clerks arrived at the office about 8.80 o’clock a. m. Sometimes Hincks would be at his desk and at other times at the paying teller’s window when the porter used this window, as above described, and the method of its use was well known to Hincks.

VII. It was the daily custom on June 7, 1900, and for a considerable time before, for the remittance clerk, whose desk was in another room, to deliver to the claimant, Hincks, a tray containing the cash received from other money-order offices, done up in bundles, with the amounts marked. This was receipted for and checked up by the decedent, Hincks, and then placed on the counter behind the window, inside the money-order division, at approximately 1 o’clock on every afternoon, where it remained until it was taken by Hincks, or some employee of the *money-order*division, *for*deposit in the office of the assistant treasurer .of the United States in the same building, at some time between 1 and 2 o’clock, before the assistant treasurer closed his office. Some money was kept on the desks and counters by the predecessor of the decedent, Hincks.

VIII. On June 7,1900, the remittance clerk, in accordance with this custom, between 11 and 11.30 o’clock a. m. placed in a tray about 12 by 7 inches and turned over to Hincks at his desk in the money-order division from the surplus money-order funds $4,038, of which $3,958 was in currency and $80 in gold, which had been received on that day from various post-offices throughout Louisiana and Mississippi. This currency was in eight packages, which, if strapped together, would have made a bundle or package the length and width of a bank note and about '4 or 5 inches thick. This money was placed by Hincks upon the counter in front of, and *453directly in line with, the opening of the window at the left of the paying teller’s window, which was used by the porter in crawling through to open the entrance doors, as before described. Shortly after 1 o’clock, when the customary hour arrived to deposit the surplus money-order funds with the assistant treasurer of the United States, this window was found to be open or ajar (perhaps 8 inches), the package of currency had disappeared, and the envelope containing the $80 in gold at the bottom of the package, was all that was left of said money-order funds. An investigation of the disappearance of said funds was made by the postal authorities, but no trace of them was ever obtained; neither was the identity of the person or persons who stole them ever established.

IN. Previous to June 7, 1900, a number of robberies had been committed in the corridor of the money-order division and people had had pocketbooks and other valuables taken, which fact was a matter of common knowledge to Hincks and the other employees of the money-order division.

X. About a week previous to the day this money disappeared the remittance clerk, while turning over to Hincks the postal surplus money-order funds, called Hincks’s attention to the fact that this window to the left of the paying teller’s window was open or ajar and' that there was at that time a large package of money lying on the counter near the said open window. The remittance clerk thought that there was great danger from this fact, and called attention to it for this reason, but Hincks simply laughed and replied that there was no danger, and closed the window.

XI. The money-order' division was supplied with a safe, and the desk where Hincks usually sat, which was about the middle of the room, in the performance of his duties when not cashing money orders, was equipped' with drawers in which he could have easily placed the money,-and where it would have been perfectly secure.

XII. The predecessors of Hincks always placed these surplus money-order funds in the money drawers kept for that purpose, where they remained until the time came to deposit them in the subtreasury or in the bank. Hincks never followed this practice.

*454
      *Messrs. George A. and William B. King*for claimant.

*Mr. Frederick DeC. Faust*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

AtkiNSON, J.,

delivered the opinion of the court:

This suit was brought against the United States under sections 1059 and 1062 of the Revised Statutes to obtain a decree from this court for the sum of $3,957.95 of postal funds which is alleged to have been stolen, without fault or negligence on his part, in June, 1900, from one of the plaintiffs, Edgar Hincks, who was at that time superintendent of the money-order department of the post-office at New Orleans, La.

James R. G. Pitkin was postmaster, and Hincks when he entered upon his official duties gave a bond in the sum of $7,000, payable to the United States, conditioned upon the faithful discharge of his duties as such superintendent, the Fidelity and Deposit Company of Maryland being his security. In the settlement of his accounts with the United States the postmaster was charged with the sum of $3,957.95, it being the amount alleged to have been stolen from said Hincks. Demand was made upon the Fidelity and Deposit Company for said shortage and payment was refused. Suit was then brought in the United States district court at New Orleans upon the bond of Hincks for the recovery of the loss, to the United States, and said suit is .now awaiting the disposition of the case by this court, suit having been brought here May 22, 1901, alleging that the loss occurred without fault or negligence on the part of any of the plaintiffs.

A demurrer was interposed by the defendants to the petition, upon the ground that neither Postmaster Pitkin nor the surety company had privity of interest or any cause of action against the United States upon the facts alleged in the petition; that neither of the parties plaintiff Avas a disbursing officer of the United States under sections 1059 and 1062 of the Revised Statutes, and therefore the court was without jurisdiction. The demurrer was argued and was overruled without prejudice, subject to a subsequent hearing of the case upon the facts.

*455Plaintiffs’ counsel now concede that the surety company has no standing before the court, and that the petition as to it should be dismissed. Plaintiffs Hincks and Pitkin have departed this life and the administrators of their respective estates have been substituted in their places, and they are, therefore, the remaining plaintiffs in this action for relief.

The two questions upon which the court is required to rule are: (1) Were Postmaster Pitkin and his money-order superintendent *disbursing officers of the United States;*and (2) if so, was the loss of the $3,957.95 of money-order funds of the United States attributable to *the fault or negligence*of either or both of them ? Sections 1059 and 1062' of the Revised Statutes read as follows:

“ Sec. 1059. The Court of Claims shall have jurisdiction to hear and determine the following matters:

> “ Third. The claim of ’any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible.”

> “ Sec. 1062. Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, • or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth th^ amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts.”

We are clearly of the opinion that plaintiff Hindis, who was only a superintendent of the money-order division and acting wholly under the authority and direction of the postmaster, was not *a disbursing officer*of the United States under the sections of the Revised Statutes above quoted. The Post-Office Department had no account with him in any manner as an officer of the Government, consequently no credit could be allowed to him by the Auditor for the Post-*456Office Department, nor can he be allowed, for the same reason, credit by this court for the funds alleged to have been stolen from him.

As to losses in post-offices by robberies and other casualties, provision is made specifically as to the manner in which relief to postmasters (not clerks or assistants) can be obtained. The act of March 17, 1882 (22 Stat. L., 29), as amended by the act of May 9, 1888 (Supp. R.. S., 91, 585-586), as amended by the act of June 11, 1896 (29 Stat. L., 458), pruvides:

> “ That the Postmaster-General be, and he is hereby, authorized to investigate all claims of postmasters for the loss of money-order funds, postal funds, postage stamps, stamped envelopes, newspaper wrappers, ancl postal cards belonging to the United States in the hands of such postmasters resulting from burglary, fire, or other unavoidable casualty, ancl if he shall determine that such loss resulted from no fault or negligence on the part of such postmasters, to pay to such postmasters or credit them with the amount so ascertained to have been lost or destroyed, and also to credit postmasters with the amount of any remittance of money-order funds, or postal funds, made by them in compliance with the instructions of the Postmaster-General, which shall have been lost or stolen while in transit by mail from the office of the remitting postmaster to the office designated as his depository, or after the arrival at such depository office, and before the postmaster at such depository office has become responsible therefor: Provided, That no claim exceeding the sum of $10,000 shall be paid or credited until after the facts shall have been ascertained by the Postmaster-General and reported to Congress, together with ■ his recommendations thereon, ancl an appropriation made therefor.”

In the case of the *United States*v. *Fordyce*(122 Fed. R., 962), which is in all essential points similar to the case at bar, it was held, we believe correctly, that—

> “ It may be added that the only way provided by law for a postmaster to obtain relief in cases of robbery or larceny is by applying to the Postmaster-General, under the provisions of the act of May 9, 1888 (25 Stats., 135), c. 231 (U. S. Comp. St. 1901, p. 2616), in which cases if the evidence is satisfactory to that officer, he may, in his discretion, allow the postmaster credit for the amount thus lost. But with this exercise of the grace and favor of the United States in such cases the courts have nothing to do. It is commit*457ted to another tribunal, which alone has authority in the premises, and that, too, as a matter of discretion which the courts have no power to control in that officer nor to exercise themselves.”

Nor do we believe that Postmaster Pitkin was *a disbursing officer*of the United States under said sections 1059 and 1062 of the Revised Statutes. It is true that this court has held in *Hobbs's case*(17 C. Cls. R., 189) that “ the disbursing officers’ act” (secs; 1059 and 1062 R. S.) is not limited to officers of the Army and Navy, but also extends to disbursing officers of the Executive Departments as well. This Anew Ave adhere to as the correct construction of this statute. Under the la>v of *noscitur a sociis,*the words “ other disbursing officer ” in this act must relate to the same class of disbursing officer, AA'hich had been previously enumerated, because it is universally agreed that when general words follow particular and specific words the former must be confined to things of the same kind or class. *(Sutherland on Statutory Construction,*secs. 268-270.) Departmental disbursing agents, whose only business is to disburse the funds of the Government, are, as was held in *Hobbs's case*(supra), as much disbursing officers, under the statute, as “ *paymasters, quartermasters, and commissaries of subsistence."*But postmasters, Avho disburse Government funds to their employees or pay out funds on money orders draAvn upon their offices, can not be regarded as of the *same class*■of officers whose duties are confined exclusively to disbursing the funds of the United States. Consequently we conclude that neither Postmaster Pitkin nor the superintendent of the money-order pepartment under his control can be classed as coming Avithin the provisions of the “ disbursing officers’ act.”

This conclusion, we think, is strengthened by the fact that the act of May 9, 1888 (supra), provides that the Postmaster-General shall investigate all claims of postmasters for the loss of money-order funds, postal funds, etc., and if the facts show that such losses resulted through no fault or neglect of the postmaster, credit may be allowed to him for such amounts as may be proved were actually lost. Section 1059, Revised Statutes (supra), authorizes this court to make *458similar investigation and allowance under like circumstances to any disbursing officer of the United States. Had the Congress intended to class postmasters as “ *other disbursing officers*” of the Government, a double remedy for relief would be extended to them. That is to say, they could proceed as they saw fit to elect, either under section 1059, through this court as a medium, or before the Postmaster-General under the act of May 9,1888 (supra), which became a law twenty-two years after the adoption of section 1059 of the Revised Statutes. We can not believe that the Congress ever intended to refer this class of cases to this court for adjudication, for the reason that the act of May 9, 1888 (supra), was enacted for the special purpose of providing for their disposition, and hence a double remedy is clearly unnecessary. Inasmuch, therefore, as the court is without jurisdiction in the case before us, there is nothing left for us to do but to dismiss the petition. But aside from this, we may add that the findings show plaintiffs would not be entitled to recover, because they were not “ without fault or negligence.”

Petition dismissed.