Williams v. Wells Fargo & Co. Express

• Decision Date: 03 March 1910
• Docket Number: 3,047.
• Citation: 177 F. 352
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: WILLIAMS v. WELLS FARGO & CO. EXPRESS.

177 F. 352

WILLIAMS v. WELLS FARGO & CO. EXPRESS.

No. 3,047.

United States Court of Appeals, Eighth Circuit.

March 3, 1910

Nathan B. Williams, pro se.

Charles W. Stockton and Edgar P. Mann, for defendant in error.

Before SANBORN, Circuit Judge, and CARLAND and POLLOCK, District judges.

POLLOCK District Judge.

This action was brought by Nathan B. Williams, as informer, to recover from defendant, the Wells Fargo & Co. Express, a penalty of $150. The manner in which it is claimed defendant violated the law, and subjected itself to the payment of this penalty sought to be recovered, as charged in the information, is as follows:

'That the defendant, Wells Fargo & Co. Express, has established and has in operation within the Ft. Smith Division of the Western District of Arkansas, and between points and places therein and divers other places, a private express for the conveyance for hire of packets by regular trips and at stated periods over post routes established by law, and particularly did said defendant, Wells Fargo & Co. Express on the 27th day of February, 1907, so operate such private express between the city of Chicago, in the state of Illinois, and the city of Fayetteville, in the state of Arkansas, and that between said cities the mail is regularly carried; and that said defendant, Wells Fargo &amp Co. Express, did on the date aforesaid accept and carry for hire a certain packet, to wit, of merchandise, and, to wit of the weight of 16 ounces, and, to wit, addressed to Williams & Buchanan of Fayetteville, Ark.; and did carry said packet and deliver the same to the said Williams & Buchanan on the date aforesaid, and dates immediately thereafter; and that the said defendant, Wells Fargo & Co. Express, did carry said packet over a post route established by law; and that said packet was not in its form or nature liable to destroy, deface, or otherwise damage the contents of the mail bag or harm the person of any one engaged in the postal service.'

Against this information defendant lodged its demurrer based on two grounds: (1) Want of legal capacity in plaintiff as informer to maintain the action; (2) want of sufficient statement of facts to warrant recovery of penalty. This demurrer was by the court sustained generally.

Plaintiff refusing to plead over, judgment was entered for defendant. Plaintiff brings error.

If either ground of demurrer be well taken, the judgment must be affirmed.

While the statutory provision of the law claimed by plaintiff to have been violated by defendant is not indicated in the information, it is manifest from the nature of the acts charged against defendant the pleader had in mind section 3982, Rev. St. (U.S. Comp. St. 1901, p. 2712), which provides as follows:

'No person shall establish any private express for the conveyance of letters or packets, or in any manner cause or provide a conveyance of same by regular trips or at stated periods, over any post route which is or may be established by law, or from any city, town, or place to any other city, town, or place between which the mail is regularly carried; and every person so offending, or aiding or assisting therein, shall for each offense be liable to a penalty of one hundred and fifty dollars.'

Therefore, the question first arising for disposition is: May the plaintiff, a private citizen, charged by law with the performance of no public duty, on his own initiative as informer bring and prosecute this information to recover the penalty prescribed for a violation of the act? In this regard it is the insistence of plaintiff his right to so do is clearly authorized by section 4059, Rev. St., which provides as follows:

'All penalties and forfeitures imposed for any violation of law affecting the Post Office Department for its revenue or property shall be recoverable, one half to the use of the person informing and prosecuting for the same, and the other half to be paid into the Treasury for the use of the Post Office Department, unless a different disposal is expressly prescribed. All fines collected for violations of such laws shall be paid into the Treasury for the use of the Post Office Department. ' Act June 8, 1872, c. 335, 17 Stat. 292, 325 (U.S. Comp. St. 1901, p. 2757).

On the contrary, it is contended by the defense this information was clearly instituted by plaintiff without lawful right to so do, for that section 919, Rev. St., in express terms requires an action in the nature of an information to recover the penalty provided for in this section must be brought in the name of the United States. That section provides:

'All suits for the recovery of any duties, imposts, or taxes, or for the enforcement of any penalty or forfeiture provided by any act respecting imports or tonnage, or the registering and recording or enrolling and licensing of vessels, or the internal revenue, or direct taxes, and all suits arising under the postal laws, shall be brought in the name of the United States.'

It is further contended by the defense, as Congress has by section 292, Rev. St., imposed on the Sixth Auditor of the Treasury the duty of superintending the collection of all penalties and forfeitures imposed for any violation of the postal laws, that section evinces a legislative interpretation opposed to the right claimed by plaintiff as informer to prosecute this action. That section reads as follows:

'The Sixth Auditor shall superintend the collection of all debts due the Post Office Department, and all penalties and forfeitures imposed for any violation of the postal laws, and take all such other measures as may be authorized by law to enforce the payment of such debts and the recovery of such penalties and forfeitures. He shall also superintend the collection of all penalties and forfeitures arising under other statutes, where such penalties and forfeitures are the consequence of unlawful acts affecting the revenues or property of the Post Office Department.'

The question thus presented of the right of plaintiff to bring and prosecute this information is embraced by some doubt, for, while plaintiff has cited many authorities which it is claimed support his right, yet, from an examination of the authorities cited and independent investigation made, we fail to find the statutory provisions above quoted to have received judicial construction from any court of the land, and no authoritative decision is pointed out in briefs of counsel. Therefore, the question presented must be ruled by the application of the general principles of the law to the language employed in the act.

It would seem at the common law actions to recover penalties prescribed by the law were often prosecuted by what was known as 'common informers.' Blackstone's Commentaries, Book 3 (Coolidge Ed.) 160, and when a portion of the penalty recovered went to the person or persons informing, and a portion to the sovereign, the action was styled a 'qui tam action.' While it has been held there must be either express statutory authority authorizing an informer to prosecute in his own name, or such right must be given by necessary implication, else such authority will be denied (Barnard v. Gostling, 2 East, 569; Flemming v. Bailey, 5 East, 313; Colburn v. Swett, 1 Metc. (Mass.) 232), yet, on the contrary, it has been ruled where a statute gives a portion of the recovery to an informer who prosecutes for the same, as does section 4059 above quoted, such statute contains sufficient implied authority to support a prosecution by an informer in his own name. Adams, Qui Tam, v. Woods, 2 Cranch, 336, 2 L.Ed. 297; United States v. Griswold, Fed. Cas. No. 15,266; Vandeventer v. Van Court, 2 N.J.Law, 168; Megargell v. Hazleton Coal Co., 8 Watts & S. (Pa.) 342; Drew v. Hilliker, 56 Vt. 641; Nye v. Lamphere, 2 Gray (Mass.) 295.

Applying the foregoing principles to the sections under consideration it must be held, did these sections, which were, respectively, sections 23, 228, and 57 of chapter 335 of the act of June 8, 1872 (17 Stat. 288, 311, 292 (U.S. Comp. St. 1901, pp. 175, 2712, 2757)), entitled 'An act to revise, consolidate and amend the statutes relating to the Post Office Department of the government,' constitute the entire body of the statutory law bearing on the question under consideration, we would feel constrained to uphold the right of plaintiff, a private citizen, as informer, to bring and maintain this action, and more especially as other sections of the act from which these are taken recognize the right of an informer to prosecute in his own name for violations of the postal laws. But the question here involved is one of procedure in the federal courts, and while the language employed in section 4059, 'one-half to the use of the person informing and prosecuting for the same,' would, in the absence of any statutory...