(dissenting).
The majority opinión grounds the reversal of the judgment upon the conclusion that “Cooke was an independent officer of the government, accountable directly to the United States for moneys he collected in his official capacity as a separate collector of customs in charge of a separate port of entry at Beaumont, and that Gunter was not responsible for his default.”
I cannot agree with this view. In my opinion, the duties of Gunter as acting collector extended to supervision over and responsibility for funds collected by any of those employed in his District, including Cooke at Beaumont, and that for Cooke’s failure to collect and safely keep customs funds, Gunter and his bond were responsible.
As completely as my associates adopt, I reject, the theory of the defense that Cooke was a separate and independent officer at Beaumont, a separate port of entry, appointed by and responsible to the Secretary, and though he reported to the Secretary through Gunter at Port Arthur, he was not a subordinate of Gunter so as to make Gunter and his surety liable for his default.
Because the question is an interesting one, and not free from doubt, I think it desirable to set down the reasons for my dissent.
What Cooke and Gunter were to do, and what the relations of their duties and doings to each other, was fixed by law; what they did is clearly shown in the record, which is without conflict.
In 1915 Cooke was appointed, by the Secretary of the Treasury, deputy collector of customs in charge of the port of entry at Beaumont, in customs collection district No. 21. As such, he executed a bond to the then collector,1 which bond was renewed from year to year. When Gunter had come in as active collector in 1928, Cooke had not been reappointed as deputy collector. He had, however, been appointed acting appraiser, and had taken the oath as such. He testified that though he had run a more or less one man office at Beaumont, and Mr. Gunter never undertook to point his duties out to him, he did come frequently to supervise his work and inspect his office, and that he was instructed to arid did send his reports to Gunter. In his work as deputy collector, except when on leave of absence, he personally and exclusively handled in-coming vessels, took up and collected customs fees and import duties arising thereout. As a part of these activities, he would appraise, estimate, and collect the duties and deposit the collections, when checks, in the Federal Reserve Bank in Houston; when cash, in the government depository in Beaumont, both depositories having been designated by the Secretary of the Treasury. He made and kept a permanent record at Beaumont of the tonnage taxes and other duties, and, in addition, made up schedules showing, as to dutiable consumption entries, the entry, the amount collected, and by whom paid, sending them each month to the Secretary of the Treasury through the collector’s office *854at Port Arthur. To the collector’s office at Port Arthur he sent a daily report, consisting of copies of the vessels’ manifests and a copy of the amounts collected for that day. Of this record three copies were made, one going to the bank, one to Port Arthur, and one to Washington.
Gunter testified that deputy collectors of customs at ports- of entry come into office under civil service, and remain unless guiity of some misconduct requiring dismissal. Deputies are appointed by the Secretary at the nomination of the collector of customs, who is required to nominate the man highest in the civil service list. Change in the office of collector does not affect the office of deputy collector. That he had no authority to discharge Cooke, but he could and did file charges ágainst him. That the deputy collector’s office in Beaumont, though a port in the district of which he is collector, and under his administrative jurisdiction, is in fact handled separately from the headquarters office, and he, Gunter, depended as to business transacted there, upon Cooke’s reports. That he could, of course, have inspected Cooke’s acts and checked the ships to see whether tonnage taxes were due, but Cooke handled these matters and sent the schedules on each vessel at the end of each month to Port Arthur, and they, with all collection vouchers, were then forwarded to Washington. That he had no right to receive the funds from Cooke; they were all to be deposited in banks as above. He testified, however, that the duties of his office embraced the collection of customs duties throughout the entire district, including Beaumont, and that Cooke was under his administrative jurisdiction in the sense that all of the district was under the administrative jurisdiction of the,headquarters office of the collector for the district, and he further testified that though as collector he had general supervision over the district, he could not lawfully cash checks paid to him as collections; all he could do with checks or with funds that he collected was to deposit them, and Cooke, the deputy collector was under the same duty as to the collections he made.
Appellant concedes that if the duties Cooke performed were Gunter’s duties, performed for him by Cooke, or if Gunter had received, or had the right to receive, the funds embezzled, he would be responsible under his bond. It insists that the duties breached were Cooke’s not Gunter’s; that Gunter never had the funds in his possession, nor any right to receive them; that he cannot, therefore, be held responsible for Cooke’s failure to deposit and account for them.
Appellee insists as earnestly that the duties Cooke performed were Gunter’s duties; that Gunter was obligated to and he did receive through Cooke the customs, dues and ■duties collected at Beaumont; and that through Cooke, Gunter failed in the performance of his duties, to deposit and account for the funds embezzled. That in short, in all that he did there Cooke was acting for and as Gunter, as collector of district 21, embracing and including Beaumont.
Whether appellant or appellee is right depends upon the proper understanding and construction of the statutes creating the office of collector, fixing its duties, and providing for their discharge, through officers and employees appointed by the Secretary on the collector’s nomination. Appellee contends that under the reorganization of the customs service as authorized by the Act of August 24, 1912,2 and the amendments thereto,3 the collection of customs duties was provided for through customs collection districts, each in charge “of a collector of customs, officially designated by the number of the district for which he was appointed, and not by the name of the port where the headquarters are situated.” It particularly contends that under this system for the discharge and administration of his duties, the collector is authorized to nominate, for appointment by the Secretary, such deputy collectors and other customs officers, laborers, and employees as he should deem necessary, the Secretary to prescribe their designation and duties where not otherwise defined by law. Under this system, while the Secretary makes the appointment, the collector nominates and designates for appointment, the persons so appointed are under his direction and control, and he is responsible to the United States for the performance by them for him of the duties the statute enjoins upon him. These duties, among others, are to receive the entries of all ships or vessels, and of the goods, wares, and merchandise imported in them, to estimate the *855amount of the dues payable thereon, and to receive all moneys paid for duties. These duties are to be discharged as provided for by statute and the customs regulations of the Treasury made under authority of law. Of these regulations the following are deemed material.
Article 1182 provides that the Secretary of the Treasury will appoint deputy collectors and prescribe their duties, when not otherwise defined by law; that they are officers of the customs and will perform the functions prescribed by law for collectors. Article 1183 authorizes deputy collectors in charge of ports of entry “under the general supervision and direction of the collectors, to enter and clear vessels, receive entries of merchandise, collect duties, and perform all other services prescribed by law, the regulations of the department, or the instructions of the collector; such deputy collectors to be bonded to the collector in a reasonable sum.” Article 1078 provides that “at each port all collections * * * will be deposited daily by the collector at a headquarters port, or the deputy collector in charge at a port of entry in the name of the collector of the district, * * * Depositing officers located in a city or town where there is no depository must forward such receipts to the headquarters port or deposit in the designated depository in the district, as directed by the collector, when the aggregate collection amounts to $100.”
On the basis of the statutes and regulations, and of the facts' as to Cooke’s having made bond to the collector, and having conducted his office as he did, appellee insists that Cooke though appointed by the Secretary, was responsible to the collector, and the collector was responsible for him.
Appellant, pointing to 34 Stats. 880, enacted February 6, 1907, authorizing the Secretary of the Treasury to appoint a deputy collector, and providing that “whenever [he] shall appoint a deputy collector at a port of entry where there is no collector, he shall designate the collector through whom such deputy shall report, but the bond of such deputy shall run to the Government, and the deputy shall be financially responsible directly to the Government,” insists that, however Cooke was in fact appointed, under this statute he was not a deputy to the collector, but an officer holding directly under the government. That he was, in short, the holder of a separate and independent office for the performance of the duties of which as holder, he was responsible directly to the government, and not to the collector.
There is considerable contention between appellant and appellee as to whether this statute was repealed by later laws, particularly by the Act of August, 1912, under which the customs service was reorganized, and by the amendments to it. A study of the statutes does leave the matter in doubt. The absence of expressly repealing clauses, and the difficulty of determining whether a later statute so conflicts with a former as to repeal it by implication, makes it difficult to say whether this particular statute has been repealed or not. But I do not think,.this material, for I find it not inconsistent with statutes carried forward in the Code, as in force under the reorganization. Those statutes all provide for the appointment of deputy collectors by the Secretary, and there is a special statute, long in force, section 37, title 19 U.S.C.A., authorizing the Secretary, whenever in his opinion the public interest demands it, to clothe any deputy collector at a port other than the district headquarters, with all the powers of his principal appertaining to official acts, and to require such deputy to give bond to the United States for the faithful discharge of his official duties.
If Cooke had been appointed in this case as such special deputy, and a bond had been required of him to the United States, it might well be argued that such appointment created him an independent officer, for whose acts and duties the collector was in no sense responsible. But he was not so appointed. He was appointed as deputy to and under the collector, and he was required to, and did, make bond to the collector as such.
Thus appointed and thus acting, I think there is no doubt that for his defalcations in regard to the customs dues in question which it was the duty of the collector to receive through him as deputy, the collector and his bond are liable to the United States. Cleveland Columbus R. R. v. McClung, 119 U.S. 454, 462, 7 S.Ct. 262, 267, 30 L.Ed. 465, and Cooke and his bond are liable to the collector. Dignan v. Shields, 51 Tex. 322.
In the Cleveland Case, where the deputy had been appointed by the collector under an earlier statute, with the approval of the Secretary instead of as now, appointed by the Secretary upon nomination of the collector, it is said:
“There can be no doubt that the collector is answerable for all the acts of his deputies *856in the performance of their official duties under him. The real question here is, therefore, whether the collection of the carrier’s charges was a part of the official duty of the collector. If it was, the collection by the deputy was an official act, and the principal officer is liable accordingly.”
In the Dignan Case, the liability of the collector and of the surety on the collector’s bond was sustained, and they were required to account for moneys collected by a deputy collector, who had been appointed in the same way by the collector.
Appellant argues that under the present statutes the collector and the deputy collector stand differently to each other. I do not think so. No change of substance in the relation between the collector and his deputy has occurred. The only change is in the manner of their appointment. That this is so is made manifest by the customs regulations. That this is so is made more manifest by Cooke’s act in giving a bond to the collector, and by the testimony which shows beyond question that the duties performed by Cooke at Beaumont, were the duties of the collector, performed by Cooke for him, and under, his supervision and control. Appellant cites as directly in support of its position, only United States v. Collier, 25 Fed.Cas. p. 527, No. 14,833, an action on a collector’s bond on which recovery was denied for moneys stolen from a deputy collector, without neglect or default on the part of the collector or his deputy. The' court, Betts, District Judge, and Nelson, Circuit Justice, decided that, since the collector had no other connection with the deputy than to propose him to the Secretary for his approbation, had no right to remove or control him, and the 4th section of the Act of- March 3, 1849 (9 Stat. 400), secured for the deputy a compensation independent of the collector, and gave him, in his section of the. district, the same standing in respect to' fees and commissions as the collector had at San Francisco, this would rather render the deputy collectors in California agents of the government, than of the collector personally. But the real ground of the decision appears later in the finding that “even if the defendant stands in law responsible for the conduct and liability, of the deputy, and is to be regarded as the holder for the benefit of the United States of tire purloined funds, still it being found by the verdict of the jury that the moneys w.ere stolen, defendant would be exonerated from all liability for them,” but see contra, Boyden v. United States, 13 Wall. (80 U.S.) 17, 20 L.Ed. 527, Smythe v. U. S., 188 U.S. 156, 23 S.Ct. 279, 47 L.Ed. 425. This case was appealed and affirmed by a divided court without opinion. It is therefore without weight as a precedent for appellant’s position.
The United States relies upon the general principles that the duties prescribed by statute are as much a part of the condition of the bond as if they were written therein,, that the bondsmen of an officer are liable for moneys lost or embezzled by his deputies- or clerks, and that receivers of public moneys are held to a strict accountability. Smythe v. United States, Boyden v. United States, supra. It relies, too, on Pond v. U. S. (C.C.A.) 111 F. 989, a suit on an internal revenue collector’s bond, conditioned, for the faithful performance of the duties as-well of the deputy as of the collector, and on United States v. Bryan (C.C.) 82 F. 290, 292, a suit upon a post master’s bond for moneys, embezzled by his clerk.
None of the cases cited are precisely in¡ point. All were decided under different laws, and regulations, and under different facts,, from those here under review. Except, as in their application of principles, they indirectly point the way, they are without controlling force. They bear, however, E think, in favor of liability in this case. Indeed, under the circumstances of Cooke’s-original appointment, including particularly his giving bond to the collector, and the way and manner in which the collection duties at the Beaumont office were discharged, by him, under the supervision and direction, of the collector, it seems quite plain to me that it cannot be reasonably said that the-duties he performed there were not the duties of the collector, and that the responsibility for moneys collected by him there was-not the collector’s.
. I think the judgment was right,, and: should be affirmed.
37 Stat. 434.
The Acts of August 1, 1914, 38 Stat. 623; March 4, 1923, 42 Stat. 1453; Jan. 13, 1925, 43 Stat. 748; Title 19 U.S.C.A. §§ 1 to 37, inc.