#### McLEAN'S CASE. George McLean *v.*The United States.

*On the Proofs.*

*A surveyor of customs performs the duty of collector at Pittsburgh, Pennsylvaniar from the 15th March,*1867, *wntil the 20th April,*1869. *Por the same period he is a designated depositary of public moneys. Pittsburgh being a non-einimeratedport, the Treasury allows the surveyor a maximum compensation of*$5,000 *a year, and refuses to allozo commissions on transfer deposits.*

I. The maximum compensation fixed by law to which a surveyor of customs performing the duties of collector at a non-enumerated port is entitled, is $3,000 a year as surveyor, and $2,000 a year from rents and storage, under the *Acts 3d March,*1841, (5 Stat. L., p. 432, § 5,) and *3d March,*1857, (11 Stat. L., p. 229, § 8,) and these are the only statutes affecting the compensation.

II. The compensation of a public officer acting as a designated depositary of >( public moneys examined and stated.

III. A designated depositary of public moneys is not entitled to commissions-on transfer deposits.

*218*The Reporters1*statement of tlie case:

The following were the facts found by the court :

That the petitioner was a surveyor of customs performing the duties of collector at Pittsburgh, in the State of Pennsylvania, from the 15th March, 1867, until the 20th of April, 1869, a period of two years and thirty-seven days.

That for the same period he was a depositary of the public money of the United States, duly designated under the *Act of 6th August,*1846. (9 Stat. L., p. 59.)

That he received as deposits in—

The fiscal year ended June, 1867... $41, 722 28

The fiscal year ended June, 1808. 174, 682 63

The fiscal year ended June, 1869.'... 1, 492,489 17

And transfer deposits—

In the fiscal year ended June 30, 1867. $545,000

In the fiscal year ended June 30, 1868. 2,190,000

In the fiscal year ended June 30,1869. 1, 089,343

That said claimant received from storage or rents, beyond the rents paid by him, in the year from March 15, 1868, to March 15, 1869, $1,111. And the claimant has been paid by the United States, as compensation for his services in said period of two years and thirty-seven days, the sum of $7,417.51.

*Messrs. Chase, Hartley, and Coleman*for the claimant :

The claimant was “ surveyor of customs, acting as collector,” at Pittsburgh, Pennsylvania. By the sixth section of the *Act August*6, 1846, ch. 90, (9 Stat. L., 59,) he was, by virtue of his office, a “ depositary” of public moneys belonging to the *customs,*without additional compensation. Uipder the power conferred upon the Secretary of the Treasury by the fifteenth section of the *Aet*1846, he was, in addition, created a “ *designated, depositary”*of public money *not connected toith the*customs/ and for his services in this latter capacity compensation is provided by the *Act March*2, 1853, ch. 89, (10 Stat. L., 172,) as follows:

*“Be it enacted, &c.,*That the depositaries which have been or may be designated by the Secretary of the Treasury, under .the fifteenth section of the act of 6th August, 1846, to receive payments and give receipts or certificates of deposit for public money from miscellaneous sources, other than the transactions of the respective offices for which they are or may be com*219missioned, may be paid in fall compensation for receiving, ■safely keeping, and paying out suck public money, after the 1st day of March, 1849, at the rate of one-half of one per ■centum for the first one hundred thousand dollars ; oue-fourth •of one per centum for the second one hundred thousand dollars; and one-eighth of one per centum for all sums over two hundred thousand dollars; any sum which may have been allowed to such depositary for rent or other contingent expenses in respect to the custody of such public money, being deducted from such compensation before any payment shall be made therefor: Provided, That no compensation shall be allowed for the •above services when the emoluments of the office of which said ■designated depositary is .in commission amounts to the maximum compensation fixed by law; nor shall the amount allowed to any of said designated depositaries for such services, when added to the emoluments of the office of which he is in commission, be more than sufficient to make the maximum compensation fixed by law : *And provided*further, That the whole allowance to any designated depositary for such services shall not exceed fifteen hundred dollars per annum.”

The first question is, what *“maximum compensation'11*is “fixed by law ” for the “ office of which the claimant was in commission ? *”*that being the ultimate measure, likewise, of his compensation as depositary. The claimant was “ in commission ” as surveyor of customs at Pittsburgh, Pennsylvania, under the *Act March*2,1831, ch. 87. (4 Stat. L., 480.) The compensation of certain customs officers, including collectors and surveyors, is, in addition to a small amount paid under the name of salary, derived from various fees and allowances. These are affixed by law to specific services, and inure to the benefit of the officer performing the service until they reach a certain limit in annual amount, when the surplus passes into the Treasury. That limit is the “maximum.” “The. maximum *compensation*fixed by law ” is the greatest amount that an officer can, under any possible state of things, lawfully retain, hold, or receive from all the sources prescribed by *law.*— United *States*v. *Walicer,*(22 How., 299, 308, 314.)

Now, the sources from which "the claimant, as surveyor of customs, may by law derive compensation, are these :

1. A salary under § 5, *Act March 2,*1831, ch. 87, (4 Stat; L., 482) $350

*2202. Fees aud commissions, established by the *Act of March*2,1799, ch. 23, §2, and other acts *in pari*materia, and recognized and limited by the *Act of May*7, 1822, ch. 107, § 10. (3 Stat. *h.,*693)".$3,000

3. The additional compensation permitted by the eighteenth section of the same act of 1822 . 400

4. Storage receipts, recognized and limited by the *Act of March*3,1841, ch. 35, § 5. (5 Stat. L., 432). 2, 000

Total per annum. 5, 750 '

It is admitted on all sides that, from the *fourth*source, above enumerated, the claimant may, as surveyor, receive $2,000 per annum, if earned. It is undisputed that from the *third*source the surveyor may receive the further sum of $400 per annum, if earned. The principal question relates to the amount that this surveyor may receive from the *second*source above described. The *Act March*2,1799, ch. 22, is the ground-work of the present customs system. By that act the offices of *collector*and *surveyor*were recognized and described ; and a perusal of its twenty-first section will discover iheir respective powers and relations. The collector was made the principal officer; the surveyor was but a subordinate, “ subject in all cases to the direction of the collector.” In each district there could be but one principal port, called the port of entry, and one collector there stationed. There might be several subordinate ports, called ports of delivery, and at such ports surveyors might be stationed as well as at the port of entry, having, however, none but the limited powers peculiar to that office. The collector alone could receive entries, and grant clearances, and collect duties. He alone was responsible for the receipt and disbursement of public money in his district, and for the general conduct of business. The collectors gave bonds ranging from $2,000 to $60,000, while no surveyor of a non-enumerated port was bonded in a greater sum than $1,000. (See *Act March*2,1799, ch. 23, § 1.)

Such being the status of these officers, the *Act March*2,1799, ch. 23, prescribes certain fees and commissions to be charged by them for the several services they were authorized to perform. And the *Act May*7,1822, ch. 107, §§ 9 and 10, limited the amount to be received .from such sources of emolument; *221fixing, by the tenth section, the maximum *oft( emoluments17 from the sources then recognized,*at all ports not enumerated in the ninth section, (hence called i( *non-enumerated,11)*for collectors at $3,000, and for surveyors at $2,000. It will be observed that the system created by the act of 1799 was adapted to the sea-port or frontiers where direct importations of foreign goods could be made. It is the same now in use in those sections. The port of entry and collector were placed where foreign importations would be likely first to arrive. The idea was not then entertained of collecting duties at points far in the interior, accessible to imports only by transhipment. It is true that the act of 1799 placed ports of entry and collectors at some of the points on the Mississippi and Ohio, now classed with Pittsburgh under the act of 1831; but it is to be remembered that the Louisiana purchase was not then made, and it was possible to import from Spanish territory directly to those points without transshipment. The *Act February*13, 1807, ch. 14, substituted at those places ordinary surveyors, New Orleans having become the port of entry by the *Act February*24,1804, ch. 13, and those surveyors were in turn discontinued by the *Act May*7,1822, ch. 107, § 3.

Such being the condition of affairs, Congress passed the *Act March*2,1831, ch. 87, ingrafting upon the revenue system a feature entirely novel, and requiring for its administration a class of officers corresponding precisely neither to collectors nor surveyors. The new idea was not developed into a complete plan, but merely sketched in outline by the law, and left to be administered by analogy to and in harmony with the ancient system, of which it became a part. The new officer, though styled a surveyor, is clothed with powers before unknown to any officer of that name. For example, (1) he is wholly independent of the control of any collector; (2) while surveyors of other non-enumerated ports give bonds of $1,000, his are $10,000; (3) he collects duties, and is accountable directly to the Treasury; receives entries, and discharges all the functions of a collector under the warehousing laws; (4) he appoints and dismisses his subordinates, and administers the affairs of his port with all the powers of a collector, subject to no supervision but that of the Treasury Department; and, finally, (5) he alone, of all surveyors, is subjected to the responsibilities imposed by the sub-treasury act. He is in fact a *collector*in everything but *222in name, and is accordingly, in practice, considered and denominated *u surveyor and acting collector.”*

To prevent the doubts which had given rise to repeated re-viewals of the question, the attention of Congress was called to it, and the eighth section of the *Act March*3,1857, chapter 108, enacted accordingly as follows: (11 Stat. L., *229.)*

Sec. 8. “ That the provisions of the fifth section of the act entitled ‘An act making appropriations for the civil and diplomatic expenses of the Government for the year 1811,’ approved the third day of March, 1811, which established and limited the compensation of collectors of customs, shall be construed to apply to surveyors performing, or having performed, the duties-of collectors of the customs, who shall be entitled to the same compensation as is allowed to collectors for like services in the settlement of their accounts.”

It is plainly an enlarging act, designed for the benefit of surveyors acting as (or “performing the duties of”) collectors, and by equalizing them with collectors to settle some existing doubt, to establish some .disputed right, or to confer some new benefit. The description points unequivocally to these officers, and these alone; and the only point in which surveyors of any kind differed from collectors, in regard to compensation, lay in the discrimination drawn by the ninth and tench sections of the act of 1822. To equalize them in that respect was the only possible benefit it could confer. Such was the mischief and such the remedy.

Such has been its interpretation by the accounting officers, in practice, ever since its passage to the present time. A contemporaneous understanding of a statute, corroborated by an undeviating usage of long continuance, must govern judicial construction, unless plainly repugnant to the law. — 2 *Dwarris on*Statutes, p. 693; *Laird*v. *Stuart,*(1 Cranch, 299,309;) *United States*v. *Fillebrown,*(7 Peters, 28, 49;) *Wetmore*v. *The United States,*(10 Peters, 647, 656;) *United States*v. *The*“ *Recorder,”*(1 Blatch., 218, 222, 223, and cases there cited.)

It follows that the claimant could receive from those sources of “ emoluments” a maximum sum of $5,000, (viz, $3,000 under the tenth section of the act of 1822, and $2,000 under the fifth section of the act of 1841.) This is the “ maximum of *emolu*ments.”— *United States*v. *Walker,*(22 How., 299, 314.)

But this limit is only partial; it extends to nothing but *“*emol-*223aments,” technically so called. It does not extend to *salary.*For salary is not included within the limit fixed by the tenth section of the act of 1822, since that limit is applied in terms to *emoluments*alone; and the eighth section of the same act in terms distinguishes between *emoluments*and *salary,*which is there expressed to be “ *in addition*to emoluments.” Salary is not included within the $2,000 limit of the fifth section of the act of 1841, for that limit is expressly confined to a particular source, viz, storage. Salary is indeed mentioned in that latter part of the section which specifies aggregate maxima; but it must be remembered that by the very terms of the act of 1857, above cited, the claimant stands under this act of 1841 not as a surveyor, but precisely as a *eolleetor,*and with respect to collectors the provision is, that all their allowances shall not exceed $0,000. Now, this *salary*is by law payable out of the Treasury; and is in nowise connected with, or dependent upon, the “emolument receipts.” He accordingly, as *surveyor, <&e.,*now claims, by way of salary, at the rate of $350 per annum.

For similar reasons, it is plain that the $400 additional compensation, permitted by the eighteenth section of the act of 1822, is not to be taken as a part of the $5,000 above described, and it is so admitted at the Treasury. The term *compensation*is of general import, comprising all the special sources above enumerated. It is not found in the tenth section of the act of 1822, nor in the act of 1841. It *is*found in the eighteenth section of the act of 1822, used, plainly, as a term of the most general signification, in evident contrast to the term emoluments, as found in the tenth section of the same act. The term “maximum compensation,” found in the act of 1853, is new in this connection. The use of that peculiar and unaccustomed phrase indicates some special intention-which, considering the object of the law, and the broad signification of the term, could be nothing else than to adopt, as a maximum limit, the greatest amount which the officer might by possibility receive from any and all sources. The use of the current term “ emoluments,” in that connection, implies no restriction, as it is but subsidiary to the central and controlling expression, “ maximum compensation,” whose novelty shows it to be the special embodiment of the legislative intention. Had the maximum of *e-mohments*been intended as the limit, the word compensation would not have been introduced, the sense by no means requiring it. A further *224argument may be drawn from tbe fact (coupled with the beneficial character of the law; as shown below) that the limitation of compensation is found in a *proviso,*and “it has become consecrated almost as a maxim in the interpretation of statutes, that when the enacting clause is general in its language and objects, and a proviso is afterward introduced, the proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms.”— *United States*v. Dielcson, (15 Peters, 141,163.) The *“*maximum compensation fixed by law,” in this case, is therefore $5,750.

The next step is to ascertain if any commissions were earned under the act of 1853. And here a new question arises as to the moneys upon which such commissions are to be computed. The amounts of public money received and disbursed by the claimant, as designated depositary, arising from *“*miscellaneous sources other than the transactions of his office of surveyor,” are arranged by the Treasury Department under two heads, styled respectively *“deposits”*and *“transfer deposits;”*the latter comprising amounts received from the Treasurer or any Assistant Treasurer, or other designated depositary, or national bank depositary; and the former comprehending amounts received from all other sources. The Treasury attempts to draw a distinction between them, and to allow commissions only on the former. We claim commissions on both, within the prescribed limits as to amount. The purpose of the act of 1853, above cited, is, as well expressed by its title, *“*to provide compensation to such persons as may be designated by the Secretary of the Treasury to receive and keep the public money, under the fifteenth section of the act of 6th August, 1846, *for the additional services required under that act.”*

What, then, were the additional services required of the claimant .under that act, by virtue of the designation of the Secretary *%*As surveyor, acting as collector, the claimant was, by force of the sixth section of the act of 1846, without any special designation, a depositary for certain purposes in respect to the moneys collected by him in the line of his duty as surveyor. For these services compensation was already provided in that capacity by prior laws. The surveyor, *as such,*could be required, under the act of 1846, to receive no moneys but those properly connected with the affairs of that office. The sixth section of the act of 1846 by no means contemplated a promis*225cuous mixture of duties; it is to be applied, *singula*singulis, as prescribing a'gelieral rule for “ all public officers, of whatever character,” to be applied to each within the sphere of his legitimate duties. The same is true of the tenth section and other parts of the act. (2 Dwarris on Statutes, p. 716.) Now, the *u*designation ” made by the Secretary of the Treasury,'Under the fifteenth section of the act of 1846, introduces the claimant into a sphere wholly distinct from that of surveyor. In his new capacity as *u designated*depositary,” he is required to give new and distinct bonds, under the eighth section of the act of 1846, and becomes invested with new and independent functions and responsibilities. The two offices of surveyor and “ designated depositary,” though united in one person, are distinct and unconnected in their nature. As surveyor, he is but an administrative officer of the customs, charged with the collection, and incidentally with the disbursement, of no moneys but such as are connected therewith. As designated depositary, he is a Government banker — a sub-treasurer of the United States — charged with the custody of public moneys of every kind.

The moneys styled by the Treasurer “ transfer deposits ” were received and disbursed just like any other moneys. They were “ deposited ” by the Treasurer, or some other depositary, on the order of the Secretary, and paid out like other moneys, on the order of the Treasurer. They may be correctly and precisely described, in the language of the fifteenth section of the act of 1846, as *“payments*made by others having public money to pay to the United States.” They consist in large degree of payments made by national bank depositaries of moneys due to the United States from them. Being deposited with the claimant, to be drawn for by the Treasurer as a “ disbursing officer ” of the United States, *(Act September*2,1789, ch. 12, § 4,) or by some other disbursing officer or agent, they are, by force of the *Act March*3,1857, ch. 114, again brought expressly within the fifteenth section of the act of 1846, “ as well as any moneys deposited by any receiver, collector, or other person, which shall be the moneys of, or due or owing to, the United States.” Under any other construction the Secretary might deprive a depositary of all compensation. Under the *Act of March*3, 1865, ch. 78, § 3, (13 Stat. L., 469,) and the sixth section of the act of 1846, he may direct the disposition of public money *226to be paid to the United States, by collectors and “ all other public officers,” in such a manner as to prevent any particular depositary from receiving any of these so-called “ deposits,” and hence from earning any commissions; while at the same time he may be required to disburse millions of transfer deposits wholly uncompensated.

The compensation of these officers at the best is shamefully inadequate. The claimant, in addition to the various and burdensome duties of a collector of customs, received and disbursed, without the loss of a dollar to the United States, *five and a half millions*of the public money in two years — upward of *two wnd a half millions a year;*and for all this the law allows him a little less than $3,000, and even that is denied by the Treasury. Here, if ever, is a case for the fullest application of that rule of construction which resolves all doubts in laws of this kind in favor of the *officer.*— Moore’s *Vase,*(4 C. Cls., 139;) *United States*v. Morse, (3 Story,.87.)

*Mr. Assistant Attorney-General McMichael*for the defendants :

The claimant asks this court to decide that his maximum compensation includes the maximum compensation of a collector of a non-enumerated port, together with all possible (and impossible it might be said) salaries, emoluments, and extra pay which are supposed to attach themselves to the office of surveyor of such ports. Taking the argument of the claimant’s counsel, that the *Aet March*3, 1857, does apply to surveyors of non-enumerated ports, why should a surveyor receive the salary and extra pay supposed to be attached to his office if he is performing the duties of a collector, for this act says, *“*Such surveyor shall be entitled to the same compensation as is allowed to collectors for like services ?” The act does not say the “ same compensation, in addition,” &c.

The question now to be answered is, What,is the .maximum compensation of a collector of a non-enumerated port, as we are admitting, for argument’s sake, that the act of 1857 applies *t*The decision of the Supreme Court, in *United States*v. *Walker,*(22 Howard, 299,) having fixed that compensation, all that remains to be done is to substitute the word *“*surveyor ” for “ collector” in the decision, and we have the maximum compensation or emolument or pay of the surveyor of the port of Pittsburgh, *227§3,000, and in addition $2,000 for storage. This decision was rendered subsequent to the passage of the act of 1857, and the application to the present discussion must be taken with this decision in view as to the maximum emolument or compensation of such collectors or surveyors acting as such. It was decided, in *United States*v. Wallcer, that the *Act March*3, 1841, sec. 5, did not apply to, or did not recognize an increase in, the maximum pay of a collector, surveyor, or naval officer of a non-enumerated port, except as to the limit of $2,000 for storage. The claimant quotes this case in his own favor, and then says, “ This decision only extends to emoluments, and does not include salary.’7 The exact language of that decision on this point is as follows: “ That under no possible state of things can such collectors (of non-enumerated ports) lawfully retain, hold, or receive more than five thousand dollars as their annual salary or *compensation*from all sources of emolument.” But, even admitting that the word “ emolument ” does not include salary or compensation, the *Act March*3,1853, under which they bring this suit, contains this proviso: “ *Provided,*That no compensation shall be allowed for the above services, when the emoluments of the office of which said designated depositary is in commission, amounts to the maximum compensation fixed by law; nor shall the amount allowed to any of the said designated depositaries for such services, when added to the emoluments of the office of which he is in commission, be more than sufficient to make the maximum compensation allowed by law.” The word “ emolument” is an interchangeable one with “compensation,” and has so been considered for years, in the Treasury ; and, if this was not the case generally, it is so specially, in the act recited *supra.*The claims for $350 and $400 are not made in the petition, and therefore the aggregate is greater in the brief than in the petition. A claim not set forth in the petition cannot be added in *argument.*— Baird v. *The United States,*(5 O. Ols. R., 348, and *ante*p. 13.)

As to his claim as a designated depositary, the ruling of the Treasury Department in this matter has always been that *“*transfers,” which is a technical word, signifying the transfer of public moneys already in the Treasury from one branch of said Treasury to another, are not such receipts from miscellaneous sources for which receipts or certificates of deposit are given, and upon which commissions are to be allowed, and this *228ruling is sustained by the law. The first section of *Act March*2,1853, which provides for compensation for receiving, safely keeping, and paying out such public moneys only as are paid to the United States, under the provisions of the fifteenth section *Act August*6, 1846, does not make provision for commissions on “ transfers.” There is but one United States Treasury, represented by branches throughout the United States, and a payment made to the Government through any one of these branches is a payment into the Treasury. Bub when that payment has once been made, a withdrawal of it from one branch to another, or from one vault to another, cannot certainly be held to be a new payment to the United States, subject to another commission. Most payments to the United States, through designated depositaries, are small and irregular, involving much trouble and labor in their receipt, while *“*transfers *”*are generally made in large sums, and in assorted and sealed packages, involving little or no trouble in their receipt. It is fair to presume that the compensation mentioned in *Act March*2,1853, was provided as much in view of the labor involved in receiving payments and issuing receipts and certificates as with a view to the safe-keeping of the public moneys.

Loüxng-, J.,

delivered the opinion of the court:

In the able arguments at the bar it was correctly said that the first question in the case was, “Whatmaximum compensation is fixed by law for the office of which the claimant was in commission 9”

The record shows that on this question there have been for years at the Treasury Department doubts not yet solved; and the question requires the construction of the many statutes relating to the subject.

The ninth section of the *Act of May*7,1822, (3 Stat. L;, p. 695,) specified the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, and hence those ports are called enumerated ports, and for these ports the act fixed the maximum compensation of collectors at $4,000; of naval officers, at $3,000; of surveyors, at $2,500 per year.

The tenth section of the act for “all other ports,” which are hence called non-enumerated ports, fixed the maximum com*229pensation of collectors at $3,000 *•,*of naval officers, at $2,500 j of surveyors, at $2,000 per year.

The act of 1831, ch. 87, (4 Stat. L., p. 480,) allowed foreign merchandise to be imported 'into Pittsburgh, Cincinnati, and other places specified in the act, and the duties to be received and paid in such places of importation. And the act charged surveyors in those ports with performance of prescribed services in collecting the duties, and gave to such surveyors for the performance of such services “ an annual salary of $350.” And thus, under these acts, the maximum compensation receivable by a surveyor at Pittsburgh for performing the duties of a collector was $2,350.

Then the fifth section of the act of 1841, ch, 35, (5 Stat.L., p. 432,) allowed *“ every collector of customs, naval officer, and surveyor of ports,'”*to retain $2,000 (if received) from rents and storage, and at the same time limited the maximum compensation of collectors to $8,000; of naval officers, to $5,000; of surveyors, to $4,500.

The words in this section, *u*every collector of customs, naval officer, and surveyor of ports, ” in their ordinary meaning, include those officers in the non-enumerated as well as in the enumerated ports. But the sums specified in it, of $8,000, $5,000, and $4,500, are the maximum compensations of collectors, naval officers, and surveyors in the enumerated ports only.

And the section has been construed by the Supreme Court in the case of *The United States*v. *Walker,*(22 How., 299,) A. D. 1859. "Walker was a collector in a non-enumerated port, and he claimed the maximum of $8,000 specified in the act for collectors and the $2,000 allowed from rents and storage; and the court held that the maximum of $8,000, as specified in the act, applied only to collectors in the enumerated ports, and that Walker, as the collector of a non-enumerated port, was entitled to only $3,000 under the act of 1822, and to $2,000 when received from rents and storage, under the fifth section of the act of 1841, which allowed that sum to all the officers mentioned in it.

Under this decision of the Supreme Court, the fifth section of the act of 1841 added $2,000, if received from rents and storage, to the $3,350 prescribed by previous statutes cited, as a compensation for surveyors of non-enumerated ports perform*230ing tbe duties of collectors, tlius making the maximum compensation receivable by them $4,350.

Then the eighth section of the act of 1857 (11 Stat. L., p. 229) amended the fifth section of the act of 1841, and provided that it should be construed “ to apply to surveyors performing or having’ performed the duties of collectors, who shall be entitled to the same compensation as is allowed to collectors for like services in the settlement of their accounts.”

As collectors of non-enumerated ports were entitled io $3,000, that sum became, under the act of 1857, the compensation of surveyors of non-enumerated ports performing the duties of collectors.

But the act of 1857 necessarily repealed the provision for a salary of $350 for such surveyors in the act of 1831, for otherwise their compensation would have been more than that of collectors, instead of the same, as the act of 1857 prescribed.

And thus, under the acts of 1841 and 1857, the maximum compensation receivable by surveyors of non-enumerated ports performing the duties of collectors was $5,000, viz: $2,000 if received from rents and storage, and $3,000 as such surveyors.

And we think the acts referred to are all the acts affecting the compensation of the claimant as surveyor.

The eighth section of the act of 1870 amends the fifth section of the act of 1841, and is retroactive in its operation; and it provides that the said fifth section “ shall be construed to have authorized and to authorize the naval officers and surveyors therein mentioned to receive the maximum compensation of $5,000 and .$4,500, respectively, as *therein named,*out of any and all fees and emoluments by them received.”

These sums of $5,000 and $4,500 are the maximum compensation of naval officers and surveyors in the enumerated ports. And this eighth section of the. act of 1870, in amending the fifth section of the act of 1841, specifies those described sums as “ *therein*mentioned,” that is, as mentioned in the fifth section of the act of 1841; and it has been said that the Supreme Court decided in the case before cited that those sums mentioned in the fifth section of the act of 1841 were applicable only to officers in the enumerated ports. And for the reasons and on the authority of that decision we hold that those sums *231in' the eighth section of the act of 1870 are applicable only to naval officers and surveyors in the enumerated ports.

We have thus reached our solution of the first question made. The claimant was in commission of the office of a surveyor at Pittsburgh, and under the act of 1831 the duties of a collector prescribed in it belonged to that office by law. And under the acts of 1841 and 1857 $3,000 and $2,000 (if received from rents and storage) were the emoluments belonging by law to that office, and making its maximum compensation $5,000 per year when received from all its sources of emolument.

Put the claimant held another office, viz, that of depositary of public moneys, for which he was not commissioned, but to which he was appointed by the Secretary of the Treasury under the *Act 6th August,*1846, (9 Stat. L., p. 59.) This act prescribes the duties of depositaries but did not fix their compensation, and this was done by the act of 1853, (10 Stat. L., p. 172.) The title of this act is, “ *An act to provide compensation to such persons as may he designated by the Secretary of the Treasury to receive and Iceep the public money, tender the eighteenth section of the act of the 6th of August,*1846, *for the additional services required tender that*act.” The enacting clause prescribes the compensation in the form of a specified commission upon the amounts received, and then follows these provisos: *“Provided,*That no compensation shall be allowed for the above services when the emoluments of the office of which said designated depositary is in commission amounts to the maximum compensation fixed by law; nor shall'tke amount allowed to any of said designated depositaries for such services, when added to the emoluments of the office of which he is in commission, be more than sufficient to make the maximum compensation fixed by law: *And provided further,*That the whole allowance to any ■designated depositary for such services shall not exceed $1,500.”

It is on the construction of these provisos that the rest of this case must depend. The act seeks to compensate deposit-aries for their services as its general purpose, and the enacting clause effects this. Then the first clause of 'the proviso excepts the case it specifies, and no other, from the enacting clause, and thus withholds all compensation from a depositary only when the maximum compensation of the office for which he is commissioned is derived from that. In any other case the first clause of the proviso does not act at all, but the second clause *232comes in and allows tbe depositary so much for bis services as depositary as will, when added to tbe amount received from tbe office for wbicb be is in commission, make up tbe maximum compensation of that, provided the allowance so to be added does not exceed $1,500.

The result is, that if tbe depositary receives from tbe office for wbicb be is commissioned its maximum compensation, be is to be allowed nothing for bis services as depositary. But if be receives from tbe office for wbicb be is commissioned less than its maximum compensation, be is to be allowed for bis services as depositary so much of $1,500 as will make up such maximum compensation.

Under the construction of tbe statutes wbicb we have made. tbe claimant was entitled to—

1. For compensation as surveyor, x>erform-ing tbe duties of collector from March 15, 1867, *tq*March 14,1868.$3,000 00

For commissions as depositary for tbe fiscal year ended June 30, 1867. 208 61

For fiscal year ended June 30, 1868 .. 686 70

-$3,895 31

2. For compensation as surveyor, performing the duties of collector from 15th March, 1868, to 14th March, 1869. 3,000 00

Do. from 15th March, 1869, to 20th April, 1869. 306 49

For rents or storage from 15th March, 1868-, to 20th April, 1869. 1, 111 00

For commissions as depositary for the fiscal year ended 30th June, 1869. 582 51

To make up bis maximum.'. 5,000 00

He was then entitled in all to. 8,895 31

Of which be was paid and received... 7,417 51

Leaving due to him. 1,477 80

Tbe petitioner claimed commissions on tbe transfer deposits specified in tbe statement of facts. We think be is not entitled to them, for the reason stated at tbe bar, “That transfers *233of money are clearly not payments to the United States, because such moneys are already in the possession of the United States.”

The petitioner also claimed that he might be entitled to $400 as additional compensation, limited by the eighteenth section of the act of 1822, for services therein specified. But there was no evidence that any such services had been performed by the claimant.

And on the facts stated the court finds that the claimant is entitled to recover judgment against the United States for the sum of $1,477.80.

The Chief Justice dissented.