Marston v. United States

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. There has been discussion before us in respect to items and statements of the account between the principal parties, to which no [498] reference is made in the finding. The rule that forbids our looking in such cases beyond the facts found by the court has often been declared. Reed v. Stapp, 3 C. C. A. 244, 52 Fed. 641, and 9 U. S. App. 34; Skinner v. Franklin Co., 6 C. C. A. 118, 56 Fed. 783, and 9 U. S. App. 676. Were the question undetermined by the decision in U. S. v. Wendell, cited in the opinion below, we think there could be no doubt that the act of 1846, as embodied in section 2687 of the Revised Statutes, applies to consuls and consular agents. If it be limited to collectors and other officers of the customs, the last clause of the section is made ineffective and meaningless. Under the regulations prescribed by the president in pursuance of the authority conferred by section 1703 of the Revised Statutes, the consular agent at Almeria was “not authorized in any event to retain more than $1,000, in any fiscal year,” for his compensation, and for all moneys received by a consul or consul general from consular agents under his supervision in excess of $1,000, in the aggregate, he was required to account to the secretary of the treasury. It is conceded, and, there being no-finding to the contrary, it would be presumed, that the consular agent at Almeria remained in office during the entire fiscal year, and became entitled to the full compensation allowed for a year’s service. By section 1703 he was required to pay over to his principal “the residue” only; and, it being found that the settlement ¡ which he made was on the basis of $1,665 collected, it will be presumed that the amount paid over to Marston was $665, and no more. ! If he received more, it was by virtue of some agreement with the agent, ¡in which it is not found and does not appear that the government j has any interest. If later, and before the end of the fiscal year, the agent at Almeria had gone out of office, a readjustment of his account ¡to that date would have become necessary, in which, besides addij tional collections, he or his representative would have been required ¡to surrender the unearned part of the sum so retained. Of that ¡amount, not including the additional collections, Marston would ¡have been entitled to a proportionate share, according to the time !of his service in that fiscal year. But, having remained in office ; and having taken his compensation for the entire year, as he had ¡the right to do, out of the fees collected before October 27th, the agent was bound to account for the fees thereafter collected, to Mars-ton’s successor, who, as the amount, $543.50, was less than his compensation for the remainder of the year, was entitled to retain for his own use the entire sum. It is to be observed that provision is made for all such contingencies in the accounting of consular officers and agents by a regulation which requires the accounts of each fiscal year to be kept open until the end of the year. Marston being chargeable, upon the facts found, with $665 only, and being entitled to retain $322.22 as compensation for his 3 months and 26 days of service, the judgment should have been for $342.78, with interest at . the rate and from the timé stated. The judgment rendered is therefore reversed, with direction that judgment be given upon the finding ¡ for the plaintiff for $342.78, with interest from March 1, 1894, to the date of entry.