Ware v. United States
ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania, to reverse a judgment of that court affirming the judgment of the District Court in an action of debt instituted by the United States on the official bond of one Ware, as deputy postmaster at Kensington, in the county of Philadelphia, for $8000.
The declaration alleged that there was due to the United States from the said postmaster, according to his quarterly accounts of receipts and expenditures for the last quarter of the year 1861 and the first quarter of the year 1862, a balance of $3380.43.
The only question in the cause arose upon the defendant's second plea, which alleged that the defendant, Ware, being postmaster at Kensington, and still continuing to exercise that office, and not having been lawfully removed therefrom, held and retained in his possession the sum of $3450, part of the sum demanded by the United States, as and for his commissions on the postages collected at that office, and for rent of office during the space of eighteen months, commencing April 1st, 1862, and ending September 30th, 1863.
The replication of the United States was a special traverse of this plea, averring in the inducement that on March 13, 1862, the Postmaster-General of the United States discontinued the post-office at Kensington, and that afterwards no letters were deposited in or forwarded by mail from that office; but that all such letters, &c., as had previously been deposited in and mailed at the Kensington office were, after the date aforesaid, deposited in and mailed at the Philadelphia post-office; and that the said Ware, since the 19th of March, 1862, had collected no postages at the said late post-office at Kensington, and, since his quarterly account for the first quarter of the year 1862, had rendered no accounts of receipts and expenditures at the said Kensington post-office; and, concluding: 'Without this, that the said Samuel Ware, for the space of eighteen months, from the 1st day of April, 1862, to the 30th day of September, 1863, was deputy postmaster at Kensington, in the manner and form,' &c.
The defendants, in the rejoinder filed to this replication, averred that, after the said unlawful discontinuance of the post-office at Kensington, the postmaster at Philadelphia received and delivered letters and other mailable matter which, but for the said discontinuance, would have passed through the Kensington post-office, sufficient in quantity to authorize and justify an allowance of commissions to the said Ware, over and above expenditures, at the rate of $2000 per annum, which said commissions, so wrongfully withheld from him, exceed in amount the balance claimed by the United States.
To this rejoinder the United States demurred, and the demurrer was sustained by the District Court. A jury having been called to assess the damages found for the plaintiffs in the sum of $2366.22, for which the court entered judgment.
This judgment was affirmed, on writ of error, by the Circuit Court.
To understand the matter more completely it may be well to state the facts, not disputed, of the case, and also to mention certain acts of Congress in reference to the subject of postmasters.
I. The facts were these:
Previous to 1854, Kensington was a district adjoining the municipality of Philadelphia proper, possessing a distinct municipal organization. In 1854 it was consolidated with the city of Philadelphia, under an act of Assembly of the State of Pennsylvania. The post-office established at Kensington, before the consolidation of the districts, continued to be maintained there until March, 1862, when it was discontinued by the Postmaster-General in the manner stated in the plaintiff's replication.
At the time of this order the accounts of Ware had not been finally adjusted at the department.
After this, the mails were no longer supplied to or distributed through the Kensington office, but through the Philadelphia office and its sub-offices. No postages were collected or received thereafter by the postmaster of Kensington, and no accounts were rendered by him, after the abolition of his office, to the department at Washington.
II. As respected the acts of Congress:
1. The Constitution confers upon Congress power 'to establish post-offices and post-roads.' An act of March 3d, 1825,  provides that the Postmaster-General 'shall establish post-offices and appoint postmasters at all such places as shall appear to him expedient on the post-roads that are or may be established by law.' This act was changed by an act of July 2d, 1836,  which authorized the President, by and with the consent of the Senate, to appoint a deputy postmaster at each office at which the commissions amounted to or exceeded one thousand dollars a year. And this law (under which Ware had been appointed) declares that the appointee 'shall hold his office for the term of four years, unless sooner removed by the President.' But no other repeal of the act of 1825 was made by this act of 1836.
2. By an act of June 22d, 1854,  the compensation authorized or allowed by law, during the period mentioned in the defendant's second plea, to deputy postmasters, was certain commissions on the postages collected at their respective offices in each quarter of the year.
By an act of March 3d, 1847,  no compensation in addition, excepting the receipts from boxes, could be given to deputy postmasters by the Postmaster-General.
Mr. G. M. Wharton, by brief, for the plaintiff in error, Ware.
I. Ware held his office for the term of four years, and was entitled to its emoluments during that term unless sooner removed by the President.
There is no evidence on the record of any such removal, nor is there any proof of express removal even by the Postmaster-General. There is, therefore, no room for an inference that the defendant was removed by order of the President, as consequent on the act of the Postmaster-General.
The alleged power in the Postmaster-General to discontinue any post-office can hardly be construed to carry with it the removal of the postmaster not appointed by himself, else he might do indirectly what he could not do directly. This power in the Postmaster-General ought, therefore, to be construed to apply only to those offices where he has the power to appoint the postmaster.
The power of removal should be coextensive with the power of appointment. The Postmaster-General neither appointed Ware nor established the Kensington office.
II. If illegally removed, Ware was not removed at all, but still continued postmaster at Kensington, de jure, and was entitled to the emoluments of the office, although wrongfully withheld from him. He was, consequently, further entitled to a credit on the books of the department for those emoluments.
III. In a suit by the United States against him for money alleged to be in his hands, he was entitled to claim credit for the amount in which the government was thus equitably indebted to him, the law being, that any credits may be claimed by the defendant when so sued, which had been previously submitted to the consideration of the accounting officers of the Treasury, and been rejected.
IV. The damages claimed to be set off by the defendant, need not arise out of the same transaction, which is the subject of suit.
V. Any claim within the discretion of the head of a department may be set off. A court and jury may do what the head of the department should have done.
VI. The restrictions on this right of set-off appear to be: First. The defendants cannot set off unliquidated damages; nor, secondly, and claim which requires legislative sanction. But these exceptions do not apply to the present case.
Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, the verdict being regulated by peculiar circumstances of each particular case; which cannot be ascertained by computation or calculation, as damage for not using a farm in a workmanlike manner, for not building a house in a good and sufficient manner, on warranty in the sale of a horse, for not skilfully amputating a limb, and other cases of like character. 
In our case the measure of compensation to the defendant, Ware, is to be found in the receipts of the office prior to its discontinuance, and in the allowance theretofore made to him at the post-office department, to wit, at the rate of two thousand dollars per annum.
After the discontinuance, the same mailable matter, yielding the same returns to the treasury, passed through the office at Philadelphia, and in the eye of the law, if the discontinuance and removal complained of were illegal, would stand to the credit of the Kensington post-office, and would be the basis of the salary or commissions of the defendant, Ware. The United States cannot contend that, by their own wrongful act, no revenue was received at the Kensington post-office after 13th of March, 1862; the revenue from the mailable matter which ought to have passed through that office, wheresoever received, would be considered in law as received thereat. The Kensington post-office had been established for many years, and yielded an annual return to the treasury, of which an average could be readily taken. Of course the receipts would increase with the increase of population.
Numerous decisions of this court may be cited as authority for the foregoing legal propositions. 
Mr. Ashton, Assistant Attorney-General, contra:
I. The argument of the other side assumes, as a concessum of the case, that if the Postmaster-General had no authority, under the acts of Congress, to discontinue the office at Kensington, the defendant, Ware, was unquestionably entitled to receive, and can claim by way of defence in this suit, the compensation, allowance, or emolument that he demands for the period subsequent to the discontinuance of that office.
But under the system established by the act of 1854, which was in full force during the period for which the defendant sets up a claim for compensation, no postmaster received or was entitled to any compensation unless he actually collected postages at his office; and, therefore, if for any reason a postmaster failed to collect postages at his office, he earned no compensation. If no postages were collected, he was entitled to no commissions; and commissions were the only compensation allowed or payable to the officers.
Certainly after March 31st, 1862, Ware collected no postages at the Kensington Post-Office, nor were postages collected at that office by any one; so that, whether the action of the Postmaster-General was lawful or unlawful, the defendant cannot make good the claim as he sets it up, for compensation after the discontinuance of his office.
II. Independently of this, the Postmaster-General had authority to discontinue this post-office.
1. By the act of March 3d, 1825, the entire constitutional power of Congress 'to establish post-offices and post-roads,' in so far as post-offices are concerned, was given to the Postmaster-General.
The power to discontinue post-offices is incident to the power to establish them. This was established by this court in Ex parte Hennen.  The Postmaster-General may lawfully do, under the power conferred on him by the act of 1825 to 'establish post-offices,' whatever Congress might lawfully do under the same power conferred on it by the Constitution.
2. Moreover, the power to discontinue post-offices has been in constant exercise by the Postmaster-General, and it is too late, in a collateral way like this, to call in question the legality of his acts in that particular.
3. In addition, Congress has repeatedly recognized the power as one subsisting in the Postmaster-General. Thus the act of July 2d, 1836, section 11, requires him to cause to be certified to the Auditor of the Post-Office Department, 'all establishments and discontinuances of post-offices,'  &c. And again, the act of March 3d, 1851, provided that 'no post-office now in existence shall be discontinued in consequence of any diminution of the revenues that may result from this act.' 
III. The post-office having been discontinued in fact and in law, such discontinuance operated to determine the incumbency of the defendant in the office of postmaster at Kensington, to which he was appointed by the President.
The existence of the office of deputy postmaster at Kensington depended upon the existence of a post-office at Kensington. It could continue not a day after the abolition of the post-office at that place. Now, we have seen that the continuance of a post-office at Kensington was made dependent by Congress upon the will of the Postmaster-General. And when, therefore, he exercised his discretion and discontinued the post-office there, the office to which he was appointed ceased. And unless it is possible to entertain the legal conception of an officer without a subsisting office, we must conclude that the defendant ceased to be deputy postmaster at Kensington on the 19th of March, 1862.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 § 1; 4 Stat. at Large 102.
^2 § 33; Id. 87.
^3 § 1; 10 Stat. at Large, 298.
^4 § 13; 9 Id. 145.
^5 Butts v. Collins, 13 Wendell, 139.
^6 United States v. Giles, 9 Cranch, 212; Same v. McDaniel, 7 Peters, 1; Same v. Ripley, Id. 19; Same v. Robeson, Id. 319; Gratiot v. United States, 15 Id. 336; United States v. Bank of Metropolis, Id. 377; Same v. Wilkins, 6 Wheaton, 135; Same v. Buchanan, 8 Howard, 83.
^7 13 Peters, 261.
^8 5 Stat. at Large, 82.
^9 9 Id. 590.