616
FEDERAL REPORTER.
not lawfully be done in Maine, the circumstanoe that other aots were intended to be done in New XOl'kin pursuance of the agreement oan· not render lawful the aotthat was done in Maine. In' such a case as this there is no room to apply the fiction of the law that the place of performance of a oontract is to be deemed the place of making it. Here the question of the illegaUty of the agreement arose before any. thing was, done in New Yor.k, .because of the character of the agree. ment, and not, because of the character of acts intended to be per. formed in pursuance of the agreement. The plaintiff, for what he did in performance of his agreement within the state of New York, oould not be indicted in. Maine, but for whab he did in Maine he could be there indicted, and thatacUs the foundation of his claim to reo oover in this action. He is asking the law to enforce a olaim founded on a violation of the law. It is upon this point that I base my de. cision, and I find nothing in any case cited, including Pritchardv. Norton, 106 U. S. tliatshould compel a different oonclusion. But it may be added that it is far fNm clear that New York oan be held to be the plaoe of performance of the agreement in question. As executed in Maine, the agreement constituted a present assign. ment, then and there made by of an interest in a claim then belonging to him, a oitizen of Maine. The plaintiff was to be paid one·third of such sum as might be received by Webster by virtue of the will.. A reception of money by Webster, before any division with the plaintiff, was clearly contemplated, and there is nothing whatever to indioate thatsucih division was to be made in New York. The situs of Webster's pel'sonal property is Maine, and what the agree· ment provided for is a division of a portion of his property. It seems _ difficult, therefore, to hold that New York was by the agreement made the place of performance. My deoree, therefore, is that the plain. tiff cannot recover, and his action is accordingly dismissed. . Inasmuch as no appeal can be taken from my decree, I have de· layed promulgating ,this opinion in order to submit it to Mr. Justice BLATCHFORD, when holding conrt in this distriot, and, having so sub. mitted it, I am authorized by him to say that he conours therein.
UNITED STATES
V.
CHASE and others.
(Distriot (Jourt, N. D. New York. January 28, 1886, POST-OFFICE-MoNEY-ORDER DEPARTMENT-EMPLOYMENT OF CLERKS-POWEB .OF POSTMASTER.
A postmaster has no authority to employ clerks to assist him in the moneyorder department, and to pay them out of government funds in his hands, . without the authority of the postmaster lteneral.
.
At Law.
UNITED STATES 11. CHASE.
617
Gwrge B. Wellington, Asst.U. S. Atty., for plaintiff. George ·P. COm&tock and George Doheny, for defendants. COXE, J. From January 1,1876, until January 1,1884, the defendant Austin C. Chase was postmaster at the city of Syracuse, New York. During that period he retained, from moneys received by him officially, . the sum of $5,894.91, which he expended for clerk hire in the moneyorder department of the office. This action is to recover that sum, with interest, the plaintiff contending that the expenditure was unauthorized. Prior to October 1, 1876, the yearly salary of the postmaster at Syracusewas $4,000, and he was allowed the sum of$500 per annum for clerk hire in the money-order department. On that day his salary was reduced to $3,000, and he was allowed, in addition thereto, whatever sum, not' exceeding $1,000 per annum, might accrue as commissions on the action of the domestic and international money-order business of the Office. The.allowance of $50P fbr clerk hire was discontinued, and no new allowance was made. The letter announcing these changes was dated at Washington, September 25, 1876, a!1d was signed by the superintendent of theimoney-order system. The postmaster was also notified that the employment of any portion of the time paid for, out of postal funds, of his clerks in performing money-order service, was strictly prohibited,and that all clerical service req,uisite for the transaction of money-order business, not authorized to be paid for out of the allowances made by the post-office department, must be performed by him in person, or paid for out of the commissions accruing to him from his money-order business. This letter simply stated the law as it existed in the statutes and regulations of the department. The defendants insist that the $1,000 allowed as commissions was intended for the postmaster personally, as compensation for his services and responsibility in taking charge of and managing so extensive a business; that it was not the intention of the department to reduce his salary, but simply to divide it, paying $3,000 for the general business, and $1,000 for the money-order business. He retained this sum, $4,000 annually; as his own; and, finding it impossible to transact the business of the money-order department without assistance, he employed two clerks, and paid them as before stated. It is because the department refused to allow this disbursement that the deficiency appears in his account. The <luestion to be determined is whether the postmaster was justified in employing these clerks, and paying them out of government funds, without the authority of the postmaster general. The defendants insist that he (Chase) ,was justified in so doing by the necessities of the situation; that it for,hitn to transact the. business alone, and, as the department' failed tofumish the necessary assistants, it wasipermissible for him, to procure theJllhimself. It is thought that is this contention. It was the .evident no authority t1;1e law to design of congress to vest in the :pbstmaster general the managemlmt' and throughout the country, He \Vas, the control of the various general agent of the govei'nmertt, charged with the Bupervisfoti'Of'the
618
"
money-order system. It was {Ol:" him to determine what sum, if any, should be expended for clerk hire. Nowhere is this duty devolved upon the postmaster. If the postmaster general failed to make an allowance, -assuming his power to do .so the Revised Statutes,-it did not, for that reason, become proper for the postmaster, disregarding the express instructions of his supl:lriors, to employ such clerks as in his judgment were necessary. To concede such power to the postmaster would permit him to usurp the authority which the law has vested in the postmaster general. If the contention of the defendants is correct, a postmaster is at liberty to employ as many clerks as he sees fit, and the question of necessity is for a jury, and not for the post-office department, to determine. Surely this was :not the intention of the. law-makers. In the present case theemploY+nent was not only without authority of law, but it was in the face ofan express prohibition 'by the department. The postmaster was plaiply informed that after October 1st his salary would be 83,000; that, for transacting the money-order business, he would be allowed commissions not exceeding $1,000, with nothing for clerk If he fOl,lnd it impossible to do the work personally, he could hut it is entirely clear that, if he saw fit to do this, .it was his duty W pay for it. The department may have acted. with injustice; the postmaster may. have received less than his serdqes wereworthjbut this does not answer the proposition that the order of September 25th was one which the department was to make, and one whlch it was the postmaster's duty to obey', The case of U. S. v. Dick, if the report furnished to the CFlurt correctly states the facts, cannot be .regarded as a controlling authority, as the question now presented was not involved. The is, entitled to the judgment demanded in the complaint.
CO. «(JVrcuit 1.
OF
N. Y" and another t1. Ry. Co. and others. 1
,WABASH,
ST. L. & P.
(J()wt,
B. D.MiBBOUN. December 3,0, 188B.
RAILROAD OOMPAN1ES-RECJIlIVEB8-0RDERS OoNCERNINGBURRENDER Oll' PROPERTYEAil1' OF THE MIilBISSlPPI, AND MANAGEMENT OF WUATIS RETAINED -JURISDIOTION-COURT OBLIGATIONS.
The Wabash system of roads was originally placed in the hands of rt'ceivers in a suit instituted by the Wabash Company itself. A suit to foreclose ageneral mortgage'()n the Waballh])rOperty. was subsequently instituted, and consolidated with the first suit. The receivers first appointed were retained in possession, and have administered the whole property ever since. They have . been. app,,(o.inted bytbe courts fanciIIary adminis,tration, a,s well as by this court.. Recently they were removed in the Seventh circuit, and a receiver, appointed by the circuit court of that circuit in a foreclosure suit pending be,fore it, ordered to take j>osses'sion of the main WabaSh lines within the juriediction of, that court. In the suit instituted here the mortgage has been fore0,
F. Rex, Esq., olthe St. Louis bar.