United States v. Jonas

ERROR to the Circuit Court for the District of Louisiana.

An act of May 29th, 1830, authorized 'the appointment of a Solicitor of the Treasury,' prescribed his duties, &c.; and enacted, among other things, that—

'The said solicitor shall have charge of all lands and other property which have been or shall be assigned, set off, or conveyed to the United States in payment of debts;. . . and to sell and dispose of lands assigned or set off to the United States in payment of debts.'

An act of March 3d, 1863, entitled 'An act to prevent and punish frauds on the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,' in its ninth section, enacts:

'That for the purpose of realizing as much as may properly be done, from unproductive lands and other property of the United States, acquired under judicial proceedings or otherwise, in the collection of debts, the Solicitor of the Treasury be, and he is hereby authorized, with the approval of the Secretary of the Treasury, to rent for a period not exceeding three years, or sell any such lands, or other property, at public sale, after advertising the time, place, and conditions of such sale for three months preceding the same, in some newspaper published in the vicinity thereof, in such manner and upon such terms as may in his judgment be most advantageous to the public interests.'

These acts being in force, the Solicitor of the Treasury put up for sale at auction certain land, with houses upon it, in New Orleans, which a debtor of the United States had conveyed to it in payment of debt. The land was bid off by George Jonas for $30,000. A deed was tendered to him. The deed purported to be made between

'E. C. Banfield, Solicitor of the Treasury of the United States, duly appointed and qualified as such, and herein acting in such capacity for and on behalf of the United States of America, party hereto of the first part, and George Jonas, of the city of New Orleans, State of Louisiana, party hereto of the second part.'

It properly recited that the land had been transferred and set over to the United States in payment of a debt due to it. It further recited that 'under the provisions of section nine of an act of the Congress of the United States of America, entitled 'An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,' approved March 3d, 1863,' and after due and legal notice on certain days and in certain newspapers (all particularly specified), the land had been exposed to sale at public auction, at the St. Charles Auction Exchange, and that Jonas had bought it.

It concluded:

'In witness whereof the said E. C. Banfield, Solicitor of the Treasury, as aforesaid, hath hereunto set his hand and caused his seal of office to be affixed the day and year first above mentioned.' And E. C. Banfield, Solicitor of the Treasury, signed it. But there was nothing in, on, or about, with or apart from the deed, to show that the sale was made with the approval of the Secretary of the Treasury. This deed Jonas refused to accept. The land was thereupon again put up for sale 'on account and at the risk of the said George Jonas,' and sold for $21,500; and the United States sued Jonas in the court below for $8500, the difference between the sums bid at the sales.

The point of the controversy was whether the consent and approval of the Secretary of the Treasury is necessary to authorize the sale and conveyance of property acquired by the United States under judicial proceedings, or otherwise, in the collection of debts.

The government contended, and asked the court so to charge, that the law did not require 'a tender to defendant, as a part of the proof of title, of the written approval or consent of the Secretary of the Treasury to said sale or transfer of said property, in any form, in order to convey a complete title.' This the court declined to do, and charged 'that unless the deed of conveyance of the property executed by the solicitor, tendered by the United States to Jonas, at the time when it was tendered to him, bore upon its face, or by means of papers connected therewith, written proof, certain and patent to the defendant, that the Secretary of the Treasury had, in accordance with section nine of the act of March 3d, 1863, approved and authorized the sale of the property at auction by the Solicitor of the Treasury, then that no such deed was tendered as would convey to him a complete and undoubted title,' and that he 'could not be compelled to pay the loss in price resulting from the second sale.' The United States excepted; and judgment having gone for the defendant the government brought the case here.

The question, therefore, for decision was, whether the approval of the Secretary of the Treasury was necessary to the sale or transfer of the property in question, and if so, whether it was incumbent on the plaintiffs to produce this approval when the deed was tendered, in order to put the defendant in fault so as to subject him to suit.

Mr. C. H. Hill, Assistant Attorney-General, for the United States:

1. Had the act of 1863 not been enacted, the sale to Jonas would have been clearly binding on him, and the deed offered to him clearly good. Then the question is, whether the act of 1863 was intended to qualify and limit the powers originally given by the act of 1830, or whether rather it was intended to confer additional powers upon the Solicitor of the Treasury?

Repeals by implication of acts are not favored, and yet if the act of 1863 has the force which the defendant contends it has, it must have repealed in a manner only implied, a large part of the act of 1830.

The two statutes may be reconciled by confining the act of 1863 to unproductive property only, which may be done by construing the words 'and other property' as ejusdem qeneris with the property first mentioned, namely, unproductive land; that is to say, property of an uncertain value, which it is best should be sold at public auction; and leaving the powers of the Solicitor of the Treasury, under the act of 1830, to dispose generally of the property of the United States, unaffected by the later statute.

If the power conferred by the act of 1830 to sell this land remains unimpaired, then the recital in the deed that it was done under the act of 1863 cannot affect the validity of the sale, if the Solicitor of the Treasury had power to make it; nor would the fact that it was sold by auction; for the act of 1830 is silent as to the mode of sale.

If, however, the act of 1863 repeals the act of 1830, or qualifies it, the Solicitor of the Treasury has no longer power to sell any of the property of the United States by private sale. This restriction would cripple his power to an extent that it can be well conceived would often be very detrimental to the public.

2. But if this sale, in order to be sustained, must have been made in conformity with the act of 1863, then the court will presume the approval of the Secretary of the Treasury. It is not necessary that his approval should appear either in the conveyance or be matter of record in any respect.

The Solicitor of the Treasury is a public officer performing public duties, and it is a very maxim of the law that where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the rule is 'Omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium.'

The approval of the Secretary of the Treasury is not a muniment of title, but is a matter collateral to the title, with which the grantee of the property had nothing to do. The deed of conveyance of the Solicitor of the Treasury transferred the title. The question whether the secretary had approved it, is a matter between the government and the solicitor, and not a thing essential in order to make title.

Mr. P. Phillips, contra.

Mr. Justice DAVIS delivered the opinion of the court.