United States v. Barton , 24 F. Cas. 1025 ( 1833 )

HOPIvIN SON, District Judge.

By the twenty-second section of the act of March 2, 1799 (1 Story’s Laws, 592 [1 Stat. 644]), the collector, in cases of occasional and necessary absence, or of sickness, and not otherwise, may exercise and perform his functions, powers and duties by deputy, duly constituted under his hand and seal; and he is to be answerable for the acts of this deputy. This deputy is not a permanent officer; his appointment is for the necessity or occasion which called for it, and terminates with it. He is the mere personal substitute of the collector; appointed by him, in the cases authorized by the law. The nature and manner of the appointment shows this: and it is made more manifest by what follows; that, in case of the disability or death of the collector, his duties and authorities shall devolve upon his deputy, “if any there be at the time;” which implies-, that there was no such permanent office or officer as a deputy. Under this law, the question would arise, whether as there were cases and circumstances in which a deputy of the collector might perform his functions, including the administering of an oath, it would not be enough, on this hearing, to show that the person who administered the oath, was the deputy of the collector, and refer it to the evidence to be produced at the trial, whether the facts existed which gave him authority to do so.

This case, however, stands on other, perhaps on stronger ground. By the seventh section of the act of March 8, 1817 (3 Story’s Laws, 1650 18 Stat. 397]), every collector “shall have authority, with the approbation of the secretary of the treasury, to employ, within his district, such number of proper persons, as deputy collectors of the customs, as he shall judge necessary, who are hereby declared to be officers of the customs.” The deputy, then, is no longer a mere agent or substitute of the collector, to be appointed from time to time, as the necessity may arise, from the absence, sickness or disability of the collector, but he is a constituted, a permanent officer of the customs, to be appointed with the approbation of the secretary of the treasury. What, then, are his powers? Generally speaking, a deputy, without any limitation of his authority, would have the authority of the principal. When the law creating the appointment and office has imposed no restrictions, we can put none: we must suppose that, as the permanent deputy is the substitute for the temporary officer author-ised by the law of 1799,' he must have the same powers and duties; that is, he may exercise and perform the functions, powers and duties of the collector.

The suggestion that authority to appoint deputies is given only to the collectors of districts adjoining the Canada frontier, has no support, either from the words of the law, its obvious policy, or the practice under it. The act declares that “every collector of the customs” shall have this authority; and every collector has used and exercised it from the passage of the law. When, in subsequent acts of congress, it is declared, that the collector may administer an oath, or perform any other act or duty, it was unnecessary to add. “or the deputy collector,” for that followed of course, if the construction now given to the act of 1817, is correct. If. on the trial,' it shall be thought advisable to give this question a more thorough examination, an opportunity will be afforded to do so.

Ordered, that the defendant, Henry Barton, enter into a recognizance, with sufficient sureties, in the sum of one thousand dollars, conditioned for his appearance at next April sessions of the circuit court of the United States.