TREASURY DEPARTMENT, Register's Office, January 27, 1837.

I certify that the foregoing entry is truly taken and made from blotter No. 12, page 4187, one of the revolutionary records in this office. T. L. SMITH, Register.

The United States

To JOSEPH Frederick.........Dr.

To his share of the prizes captured by the squadron under the command of John Paul Jones, in the northern seas; the said Frederick acting as boatswain's mate on board the Alliance, as appears by the dividend book for said prizes, filed in this of

fice

Deduct so much paid him by Thomas Barclay, Esq., on account of his prize money

$37 36

1 11

$36 25

I hereby certify the above to be a true copy of the original on file in this office.

T. L. SMITH, Register.

NOTE. Upon reference to the Auditor's office, the dividend book above mentioned is ascertained to be lost.

2d Session.

GAUGERS-NEW YORK.

[To accompany bill H. R. No. 896.]

STATEMENT

EXHIBITING THE

Amount of the fees of the gaugers at the port of New York, and the amount paid them under the provisions of the 2d section of the act of 27th of June, 1834; together with the amount paid for their incidental expenses during said time.

JANUARY 31, 1837.

Printed by order of the House of Representatives.

Mr. SMITH, of Maine, from the Committee of Ways and Means, reported the following documents, to accompany House bill No. 896, which were referred to the Committee of the Whole House on the state of the Union, and ordered to be printed.

TREASURY DEPARTMENT,
January 24, 1837.

SIR: I have the honor respectfully to refer, for the consideration of the Committee of Ways and Means, the enclosed copy of a communication from Mr. Edward R. Painter, made on behalf of the gaugers of the port of New York, claiming an exemption from the operations of the maximum compensation fixed by the proviso in the 2d section of the general appropriation act, approved the 27th of June, 1834, for that portion of the year 1834 which elapsed previous to the date of said law.

I deem it proper to state, for the information of the committee, that the construction invariably given at the department to appropriation acts, is, that they take effect at the commencement of the fiscal year, and not from the date of their approval. In accordance with this construction, the maximum fixed by the section before stated has been considered as embracing in its operation the whole of the year 1834; and the accounts of the respective officers of the customs coming within its provisions have been adjusted and settled upon this principle; it being supposed to have been contemplated by the act that no greater sum than $2,000 should be received by those officers during said year, without regard to the period within which their fees accrued. Should the committee, however, be of opinion that it was not the intention of Congress that the provision respecting the Blair & Rives, printers.

maximum of pay should have a retrospective operation, but to take effect from and after the date of the law, and therefore deem it expedient to recommend legislation upon the subject, I would respectfully suggest, that any action of Congress should be general in its nature, so as to embrace all the officers affected by the proviso. I would also suggest, that as onehalf of the year 1834 had nearly expired before the passage of the law in question, whether it would not be proper to provide that, for the balance of that year, the maximum should not exceed $1,000. I have the honor to be, Very respectfully,

Your obedient servant,

Hon. C. C. CAMBRELENG,

LEVI WOODBURY, Secretary of the Treasury.

1

Ch. of the Com. of Ways and Means, H. R.

CITY OF WASHINGTON, January 21, 1837. The undersigned, in behalf of the United States gaugers of the port of New York, respectfully begs leave to submit again to the honorable Secre tary of the Treasury, for payment, their claim for gauging, in their official capacity, for the first two quarters of the year 1834, made out under the acts of the 2d of March, 1799, and 26th of April, 1816, and consequently not considering it as being affected by the act of the 27th of June, 1834.

The undersigned would further respectfully beg leave to invite the attention of the honorable Secretary to the important fact, that gaugers were not only not named in the said act of the 27th of June, 1834, but that they required no legislation for their relief, as in the cases of collectors, naval officers, surveyors, and weighers, &c., whose fees and emoluments were so materially affected by the free goods, &c., under the act of the 14th of July, 1832, because the last-mentioned act did not repeal the duties on oils, spirits, wines, or any other gaugeable articles.

If, however, the honorable Secretary should still feel himself not at liberty to pass the claim in the affirmative, under existing laws, or any dis cretionary power he may possess, emanating therefrom, would it be asking too much to request that he may refer the claim to the Committee of Ways and Means, for such action thereon as they may think proper to take. Most respectfully,

To the Hon. LEVI WOODBURY,

Secretary of the Treasury.

EDWARD R. PAINTER.

CASE.

Under the act of Congress of March 2d, 1799, chapter 129, sec. 2 specified rates of fees for specified services were given to collectors, naval officers, and surveyors, inspectors, measurers, weighers or gangers. The act of Congress of April 26, 1816, chapter 95, gave an additional allowance of 50 per cent. upon the sum allowed to the measurers, weighers, of

gaugers, under the act first above mentioned. The act of Congress of July 14, 1832, made alterations and amendments in the several acts imposing duties on imports, by the operation of which the fees of the officers above mentioned were materially reduced.

By the act of Congress of 27th June, 1834, ch. 92, sec. 2, the Secretary of the Treasury was directed to pay to the collectors, naval officers, surveyors, and their respective clerks, together with the weighers of the several ports, such sums as would give to those officers, respectively, the same compensation in the year 1834, as they would have been entitled to if the act of 14th July, 1832, above mentioned, had not gone into effect; and the clerks employed by the collectors, naval officers, and surveyors, were to be paid for the year 1832, as if they had been specifically included. The third section of the act of 2d of March of that year "provided, however, that in no case shall the compensation of any other officers than collectors, naval officers, and surveyors, whether by salaries, fees, or otherwise, exceed the sum of $2,000 each per annum." And by the act of Congress of March 3d, 1835, chapter 30, section 3, the Secretary of the Treasury is authorized to pay to the collectors, naval officers, surveyors, and their respective clerks, together with the weighers of the several ports, such sums as will give those officers, respectively, the same compensation in 1835, according to the importations of that year, as they would be entitled to receive if the act of 14th July, 1832, had not gone into effect: "provided, that no officer shall receive under this act a greater compensation than was paid to such officers for the year 1832, and that in no case shall the compensation of any other officers than collectors, appraisers, and surveyors, whether by salaries, fees, or otherwise, exceed $1,500 each per annum; nor shall the union of any two or more of these offices in one person entitle him to receive more than that sum per annum."

A question has been submitted to me for my opinion upon the above case, by or on behalf of the gaugers in the city of New York, whether the provisoes in the acts of 1834 and 1835, as above stated, affect the extent of their right to fees under the acts of Congress of 1799 and 1816, above referred to.

OPINION.

I have assumed, in considering this case, that weighers and gaugers are distinct officers, in the contemplation of the acts of Congress. The language of the acts of Congress of 1799 and 1816 speaks of "measurers, weighers, on gaugers," and yet I do not apprehend that the terms weighers and gaugers are here used synonymously; for the application to me for my opinion is by the gaugers, as distinct from the weighers; and one ground of their belief in the accuracy of the construction of the acts of Congress which they have adopted, is, that the acts of Congress of 1834 and 1835 mention weighers, and have omitted to provide for gaugers. The persons concerned are much better acquainted than I am with the distinct existence and classification of the duties of their respective offices, and my opinion is founded entirely upon the ground that the weighers mentioned in the acts of 1834 and 1835, referred to in the case, are distinct persons from gaugers, and known and recognised as such in the custom-house department; and it may here be properly observed, that the collection act of Congress of 1790 made allowances to measurers, weighers, and gangers

respectively," and spoke of their respective duties as, or wholly, fully distinct.

The compensations were separately given for the several and distinct services of the "measurement," the "weighing," and the "gauging" and "marking." It would appear to me to be a violent construction of the act to say that, when it spoke of weighers only, it meant weighers and gaugers. To proceed, therefore, to the merits of the question: there can be no doubt that the Legislature may, under a proviso in a statute, go beyond the regulations of the statute, and affect vested rights under former laws; but we are not to presume such to have been the intention of the language covered by the proviso, unless the word be too clear and unequivocal to admit of any other construction. A proviso is naturally understood to be inserted to limit, explain, or qualify the operation of the antecedent parts of the same statute, and not to travel out of it and introduce substantial provisions affecting persons not before alluded to. Thus in the case of the act of 1834, the second section provides specified and enlarged allowances to collectors, naval officers, surveyors, clerks, and weighers, and then fellows the proviso that in no case shall the compensation of any other officers than collectors, naval officers, and surveyors, exceed $2,000 a year. The easy and the natural construction is, that the other officers here alluded to were those already mentioned, and not within the benefit of the exception. Clerks and weighers were those other officers, and those two classes of officers are sufficient to uphold the expression, and give aliment and application to the language of the proviso. It is not according to the strict and logical rules of construction to extend to those words any other officers beyond the body of the statute to which the proviso closely and essentially adheres. If the words are permitted to range at large, we cannot give them any precise and definable limits, and they might as well be applied to the district attorney, and to the clerks of courts, and a variety of other officers connected with the fiscal and judicial establishments of the United States. The same objections apply to the extension of the words any other officers in the act of 1835. In this last act the language is, that no officer should receive under that act any greater compensation than was paid in 1832, and that in no case should the compensation of any other officers exceed, &c. It all seems to refer to the compensation provided by that act, and the words cannot, upon any reasonable and fair intendment, be applied to any other officers than those recognised and named in the provision immediately preceding the proviso. The safe rule of interpretation is, to consider the proviso in the acts both of 1832 and 1835 as part and parcel of the sections to which they belong, and as intended to deal only with the persons therein named, and to limit or qualify the operation of the section in respect to such persons.

I am accordingly of the opinion that gaugers are not within the restriction contained in the provisoes to the sections we are considering, and that their fees under the acts of 1799 and 1816 remain unimpaired. This conclusion is not a little strengthened by the fact that the acts of 1834 and 1835 undertake to make provision for the compensation of weighers and clerks by specially naming them, and giving them a privileged and enlarged ratio of compensation. The acts are wholly silent as to gaugers, and the maxim of law es a rule of interpretation applies aptly to the whole provision, that enumeratio unius est exclusio alterius. JAMES KENT.

NEW YORK, July 10, 1835.