United States v. Matthews/Concurrence Brown

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Concurring Opinion

United States Supreme Court

173 U.S. 381

United States  v.  Matthews

Mr. Justice BROWN, concurring in the result only.

Did the opinion of the court rest solely upon the ground, stated in the opinion of the court of claims, that a deputy marshal is not an 'officer' or 'other person whose salary, pay or emoluments are fixed by law or regulations,' as specified in Rev. St. § 1765, nor a civil officer receiving from the United States a salary or compensation allowed by law, and therefore not within the act of June 20, 1874 (18 Stat. 109), I should have been disposed, though with some doubt, to acquiesce in the opinion. While I think a deputy marshal is beyond all peradventure an officer of the United States, yet as his compensation is by fees not paid directly by the government, but by agreement with the marshal, subject only to the limitation that such fees 'shall not exceed three-fourths of the fees and emoluments received or payable' to the marshal 'for services rendered by him' (such deputy), I think it a grave question whether he is within the spirit of either of the sections above quoted. I consider it a reasonable construction to hold that these sections are limited to those who receive a salary or other compensation directly from the government or one of its departments, and doubt their application to one who, although holding a permanent appointment as an officer, receives no pay directly from the government, but only such compensation as his superior may choose to allow him. Douglas v. Wallace, 161 U.S. 346, 16 Sup. Ct. 485.

But I cannot concur in so much of the opinion as intimates that under an act of congress making an appropriation for the prosecution of crime, under the direction of the attorney general, the attorney general has a discretion to direct any portion of it to be paid to one of an class of persons who are forbidden by a previous act from receiving any additional pay or compensation beyond such as is allowed to them by law. This could only be done upon the theory stated in the opinion that the appropriation act, being a special and later enactment, operated necessarily to ingraft upon the prior and general statute an exception to the extent of the power conferred upon the attorney general. I do not think the two acts stand in the relation of a prior general statute and a subsequent special one, but rather the converse. The prior acts are general acts, applicable to all officer of government whose salaries or compensations are fixed by law; the latter act makes a particular appropriation for the detection of crime, and vests the attorney general with power to direct to whom it shall be paid. But there can be no inference from it that he has a discretion to pay it to any one who is forbidded by law to receive it. I had assumed it to be the law that a later act would not be held to qualify or repeal a prior one, unless there were a positive repugnancy between the provisions of the new law and the old, and even then the prior law is only repealed to the extent of such repugnancy. This was the declared doctrine of this court in Wood v. U.S., 16 Pet. 342; in McCool v. Smith, 1 Black , 459; in Daviess v. Fairbairn, 3 How. 636; in Cope v. Cope, 137 U.S. 682, 11 Sup. Ct. 222; in Furman v. Nichol, 8 Wall. 44; in Ex parte Yerger, Id. 85; in U.S. v. Sixty-Seven Packages, 17 Wall. 85; and in Red Rock v. Henry, 106 U.S. 596, 1 Sup. Ct. 434.

In this case I see no intent whatever on the part of congress to vary or qualify the prior law. Both enactments may properly stand together, and the prior ones be simply regarded as limiting the application of the later.

In justice to the attorney general, it ought to be said that his offer of $500 for the arrest and delivery of McNeil was a general one, and that he did not assume to say that any officer of the government who was forbidden by law from receiving extra compensation should receive any portion of the reward. There was no attempt on his part to disregard the previous limitation, or to offer it to any one who was forbidden by law from receiving it. The subsequent action of the acting attorney general in refusing to pay Matthews the reward, upon the ground that the arrest of McNeil was performed in the line of his duty, is a still clearer intimation that no such construction as is put by the court upon the offer of reward was intended by the attorney general.

For these reasons, I cannot concur in the opinion, though I do not dissent from the result.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).