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some other official bonds consent is given by express provision,13 none is given in the postmaster bond statute. Petitioner urges that consent by implication is given. Attention is called to the words "legal intendment" in the quotation from Corporation of Washington v. Young and to a comment upon the Young case in the Howard case that these words show that "consent may, under some circumstances, be assumed to have been given

.14 These expressions are used to base an argument that the statutes and regulations of the postal service establish consent by intendment. The precedent chiefly relied upon for this position is the Howard case. This was a suit, without express consent of the United States, on a bond of a clerk of the district court, alleging breach by failure to pay over money deposited with the clerk in settlement of prior litigation. The bond was a statutory bond naming the United States as sole obligee and assuring that the clerk would faithfully discharge the duties of his office. This Court analyzed the statutory requirements and the “peculiar relation” of the clerk to the court to determine the intendment of the Congress as to the standing of the private litigant to sue on clerks' bonds. Consideration was given to the fact that "the great mass of litigation ... has always been between individuals," 15 that "the practice of a century” required a ruling that the bond covered them and that it could

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13 40 U. S. C. § 270a-d (laborers and materialmen may sue on bond of contractor for government building); 22 U. S. C. § 103 (“any person injured” may sue on bond of consul); 22 U. S. C. § 78 (same as to bonds of consular officers acting as administrators in foreign countries); 22 U. S. C. $$ 170, 171 (same as to bonds of marshals of consular courts); 28 U. S. C. $$ 496, 500 (same as to bonds of U. S. marshals); 11 U.S. C. $ 78 (h) (same as to bonds of referees, trustees and designated depositories in bankruptcy); 7 U. S. C. $S 247, 249 (same as to bonds of warehousemen under the Warehouse Act).

184 U. S. 676, 691. 16 Id., p. 687.

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165

Opinion of the Court.

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not be said of the clerk's bond, as it was said of the lottery bond, that it was given primarily for the governmental authority. This Court concluded that even though "generally speaking ... in the absence of a statute” the obligation cannot be put in suit in the name of the obligee without his consent, the factors of custom, similarity of governmental and private use of the courts and the surrounding circumstances, in the absence of words declaratory of intention, evidenced an intendment to permit suit without consent on the clerk's bond. "In our opinion, Congress intended that the required bond should protect private suitors as well as the United States, and therefore, no statute forbidding it, a private suitor may bring an action thereon for his benefit in the name of the obligee, the United States. Such must be held to be the legal intendment of existing statutory provisions.'

We conclude in the present instance, however, that circumstances, practice, statutes and regulations combine to forbid reading into this situation a "legal intendment” to permit suit without the consent of the United States. Assuming the bond declared upon here is intended to cover the users of mail service, its beneficiaries are legion in comparison with the users of a court's depository. Moreover, the United States has a very substantial interest in a postmaster's bond. The statutory duties of a postmaster require him to act as a fiscal officer for the government at his office. He is responsible for postal savings deposits, money orders, stamps, and salary disbursements as well as for the property of the service, buildings, mail bags and other equipment."? Such circumstances weigh against a holding that the Congress intended to let a private user of the mails, wronged by the

16 Id.,

P. 692.

17 Postal Laws and Regulations SS 105-06, 443, 1626, 1408, 1426, 1430 (21), 137, 235, 1866–70.

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principal of a postmaster's bond, sue wherever he might find defendants and gain for himself such priority on the bond as vigilance could obtain."

Apparently it is not customary for the United States to consent to suit by mail users upon postmasters' bonds. No case has been called to our attention where such permission has been granted though the requirement for a bond has been in existence since 1825.19 Rarely has a private individual sought recovery.20 The contention of petitioner cannot be said to be supported by any continued administrative practice. On the other hand, the United States has undertaken repeatedly and successfully to recover on the bonds for the losses of mail users. Recovery has been allowed on the theory of a suit by a bailee for loss of property in his possession.21

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In the absence of express legislation the government is not entitled to priority. See United States v. State Bank of North Carolina, 6 Pet. 29, 35; Mellon v. Michigan Trust Co., 271 U. S. 236, 239; United States v. Knott, 298 U.S. 544, 547.

The first statute permitting private suits on public contractors' bonds to the United States made no provision for government priority. 28 Stat. 278. By a later amendment private suits were forbidden until six months after completion of the contract and settlement of the contractors' accounts and the government was given priority. 33 Stat. 811; see Illinois Surety Co. v. Peeler, 240 U. S. 214, 217. The present statute requires two bonds, one for the government and a second for laborers and materialmen. 40 U. S. C. § 270a-d.

Act of March 3, 1825, 4 Stat. 103. * Cf. Wile v. United States Fidelity & Guaranty Co., 6 Alaska 48; Idaho Gold Reduction Co. v. Croghan, 6 Idaho 471; 56 P. 164.

* National Surety Co. v. United States, 129 F. 70 (C. C. A. 8); American Surety Co. v. United States, 133 F. 1019 (C. C. A. 5); United States v. American Surety Co., 163 F. 228 (C. C. A. 4); United States v. American Surety Co., 155 F. 941 (N. D. III.); Gibson v. United States, 208 F. 534 (C. C. A. 1); United States Fidelity & Guaranty Co. v. United States, 229 F. 397 (C. C. A. 8); United States Fidelity & Guaranty Co. v. United States, 246 F. 433 (C.C. A.9); United States v. United States Fidelity & Guaranty Co., 247 F. 16 (C. C. A. 6); United States v. Griswold, 8 Ariz. 453; 76 P. 596.

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There are over 44,000 post offices under the Post Office Department 22 and it is common knowledge that millions of items of mail go through them each year. It is rather obvious that numerous claims, many of them for small amounts, are likely to arise in the course of many transactions.23 Under the Department's Regulations there is a fairly complete administrative formula for handling these claims from discovery to satisfaction.24 These facts, along with the substantial interest of the government in the bonds, convince us that the Congress intended that claims on the bonds would be handled through the government rather than through various suits by individuals.

Affirmed.

23

Report of the Postmaster General, 1939, p. 126.

Compare the Department's experience with claims on domestic insured mail during the fiscal year ending June 30, 1939. Payments were made in connection with 113,846 claims, and the average payment amounted to only $3.87. Report of the Postmaster General, 1939, p. 120.

24 Postal Laws and Regulations & 816:

"The loss, rifling, damage, wrong delivery of, or depredation upon registered or other mail, and the failure to collect or remit C. 0. D. funds shall be investigated by the Chief Inspector, who shall ascertain the facts.

"2. When the Chief Inspector finds that the facts ascertained in connection with such an investigation establish the responsibility, by reason of fault or negligence, of a postal employee or mail contractor or an agent or employee thereof, the Chief Inspector shall demand the amount of the loss from such employee or contractor.

“6. If full recovery is not made and the Chief Inspector determines that further proceedings should be had, he shall present the facts to the Solicitor for the Post Office Department for advice as to the advisability of suit by the United States for recovery of the amount involved. Upon receipt of the reply of the Solicitor the Chief Inspector shall, if he deem proper, prepare the request of the Postmaster General upon the Solicitor of the Treasury for suit.

"7. All amounts recovered under the provisions of this section shall be paid to the United States and to the senders or owners of the mail as their interests shall appear.”

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McCARROLL, COMMISSIONER OF REVENUES OF ARKANSAS, v. DIXIE GREYHOUND LINES, INC.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE

EIGHTH CIRCUIT.

No. 138. Argued December 14, 1939.-Decided February 12, 1940.

A state tax allocated to highway purposes and imposed on each

gallon of gasoline, above twenty, brought into the State by any motor vehicle for use as fuel in such vehicle, held a forbidden burden on interstate commerce as applied to gasoline carried by interstate motor buses through the State for use as fuel in the course of their interstate transportation beyond the state line. P. 180.

In the circumstances, the imposition is not compensation for the privilege of using the state highways. 101 F. 2d 572, affirmed.

APPEAL from a decree which reversed the action of the District Court in denying an injunction and in dismissing the bill in a suit to restrain the enforcement of a state gasoline tax, 22 F. Supp. 985, and which directed that court to enter a decree of injunction.

Messrs. Frank Pace, Jr. and Amos M. Mathews, with whom Mr. Louis Tarlowski was on the brief, for appellant.

Mr. A. L. Heiskell, with whom Messrs. Walter Chandler and J. H. Shepherd were on the brief, for appellee.

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

An Arkansas statute prohibits entry into the State of any automobile or truck "carrying over twenty (20) gal

* Act 67 General Assembly Arkansas, approved March 2, 1933—

"Section 1. On and after the passage of this Act it shall be a violation of the law for any person, co-partnership or company to drive

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