United States v. Babbitt , 24 L. Ed. 480 ( 1877 )

95 U.S. 334 (____)

UNITED STATES
v.
BABBITT.

Supreme Court of United States.

Mr. Assistant Attorney-General Smith for the plaintiff in error.

No counsel appeared for the defendants in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

This case comes before us upon a certificate of a division of opinion of the judges by whom the case was tried in the Circuit Court.

The questions certified are: —

1. Whether it was the duty of the defendant Babbitt, as register of the land-office, to receive the register's fees from the locators of military bounty-land warrants, upon their being located on the public lands, subject to private entry by such warrants, under the acts of Feb. 11, 1847, Sept. 28, 1850, March 22, 1852, and March 3, 1855.

2. Whether, if such fees were charged and received by Babbitt, as such register, his neglect and refusal to account for and pay over to the United States the surplus, over and above the maximum compensation authorized to be by him received, as determined in this case by the Supreme Court of the United States, in United States v. Babbit, 1 Black, 55, constitutes a breach of the conditions of the official bond of Babbitt, as register, as respects himself alone, and also as respects the sureties in the bond, and whether in such case the remedy is not by an action against Babbitt for money had and received.

The reported case, to which reference is made, contains a careful analysis of the acts of Congress mentioned in the first question, and of several others relating to the subject. It is unnecessary to go over the same ground again, or to reproduce any thing there said.

It was held in that case that $3,000 per annum was the maximum compensation allowed to the register by law, and that he was not entitled to hold in addition the fees in question in his own right.

The act of March 3, 1853, requires that "the surplus which shall remain" of such fees, beyond the compensation to which the register is entitled, "shall be paid into the Treasury of the United States as other moneys."

There could be no paying without previous receiving. The latter duty is explicitly declared. The prior one is as clearly to be inferred. Both would be alike implied in the absence of the provision as to paying over.

What is implied in a statute, will, deed, or contract is as much a part of it as what is expressed. United States v. Babbit, supra.

The first question certified must, therefore, be answered in the affirmative.

To the second it must be answered, that, if the register received such fees, the neglect and refusal to pay over to the United States the surplus beyond the compensation to which he was entitled by law was a breach of the condition of his official bond, both as respects himself and the sureties in the bond, and that the United States is under no necessity to proceed against the principal in the bond by an action on the case for money had and received.

The judgment will be reversed, and the cause remanded for further proceedings in conformity to this opinion; and it is

So ordered.