UNITED STATES.
or served upon the defendants, although there is a recital, in the motioJ;l and order appointing a curator ad hoc, that, "on showing the court that defendants cannot be found, as sheriff's return shows," etc. Neither does the record show that any citation was issued or served upon the curator ad hoc, nor does it appear that the curator ad hoc acknowledged the issuance and service of any citation. These proceedings were invalid from the beginning, for want of citation. The demurrer to the third count should be sustained.
McKINSTRY 17. UNITED STATES. (Circuit Court, 8. D. Atabama.
21, 1889.)
When the words of a statute prescribing compensation' tor a public oftlcel'.are loo'se.and- obscure, and of two interpretations, they should be construed liberaJiy in favor of the oftlcer, and not striotly in favor of the United States. " ' ,., A;oommissionerof oourt must, in Alabama,.begiq a criminal oas" by ,
.. 'UNITED STATES COMMISSlONBR-FEES-STATEMENTS IN CRIMINAl, CASES.
'such necessary statements ail depositions.
a complaint sustained by sworn statements of the complainalitand his witnelliles; arid, there being no speci,llo fee provided therefor in the fee.bill, he may charge-for
a.SAME-ACRNOWLEDGMENTS TO RJliCOGNIZANOBS.
4..SAME-DoOKJI'f FEliiS.
,
On Motion for New Trial. See 34 Fed. Rep. 211. The petitioner brought suit in the United States circuit court,S.D. Alabama, against the United States for fees due him from the United States as one of the commissioners of that court. The itemized bill sued ,on to the sum of $1,823.45, llnd is the aggregate ofseYeratac-counts which petitioper had made ,out, and which had been formallyapproved by the court and presented to department, and 'Qponwhiph various sums had been allowed, amounting in the aggregate to $666.46, leaving as. halancedueto the commissioner, sum ,of $1,15$:99. })n the"trialof the case, the petitioner proveq testimony and documentary evidence that he had. t1;lt; s.ervices Jor which he claimed and upon the case was submitted. 'The court rendered an opinion with regard to th'El1aW' oftheml.'8e,'and thereupon referred the matter to a special' master, to report the of the account' in accordance with the opinion of the court. McKfuiaf:riJ v. U. S., 34"F;m. Rep. 211... dThe mastermade report in accordance there,with I findi ng for services rendered by the p.etitionerI ComJ
J.
Esq"of
bar:.·
:miSsMher, he
,a c!eClW'of$666'.46, leaving a balance due thepe1JItioner of $226:59.
\Val!
thesutri '&f $893.05, 'whi(}hwu subject to
confirmed' by the court, lind thereupon the court entered the JolltHvitlg findings offact and conclusions of law:· ' baving by the coutt, the court, upon the evidence, tinds ,the facts to be ,as follows: . , {\ ...
.,
"FINDINGS OF ,FACTS.
"(I) The claimant, William D. McKinstry, was a commissioner of the circuit court of the United States for the southern district of Alabama on and before 10th, 1887, and is now such C.9mmissioner. "(2) That said commissioner actually performed the following services during the period covered by the accounts sued Oll, viz.: 131 oaths to c?mplaint,\.ea.l0c., .tlliu/{complain,t. ea. 10c;, $ 26 20 143 00 130 warrants Issued', 'ea. 1.00. and fihng warrants, ea. 10c., 2 warrants iSSUed, ea. 1.00, but not filed, 2 00 08 warrants filed only, ea. IOc., '-.. 5 80 116 subpoenas issued, ea. 25c.. and filing subp's, ea. 10c., 40 60 .),6. !ssued\ ea.·. 2.5c., bllt not fl led, .. " -. '. 4 00 filed only, ea. IDe., . -. 5 50 76 daIS hearing and deciding crim'l charges, $5.00 per diem, 880 00 324 oaths administered to witness on trial of cause, ea. 10c., 32 40 156 drawing same, 4 fol., ea. 600.; .'. 93 60 qfjustillcati<m t9 bOnds. ea. 10c.,820 195 certificates to witnesses for attendance, ,ea. 15c., · . 29 25 195 oaths,.towitnesses as to travel and attendance, t"a.l0o., . · 19 50 proceedings,2fol., ea. 2Oc., .-' 8M 20 187 certificates to transctiptOf proceedings, Ifol., ea. 150:, 23 05 82 copies of .process 4 fol , ea. 40c., · . , 12 80 MakIng report for the month of March in dnplicate, 12 fol.,15c., 1 80 Making report fot the month of AptillDduplicate,19 foh,15c., 2 85 Making report for the month of Mayin"duplicate, 49 fol.,I5c., 7 35 Making report for the month of June in duplicate, 24 fol., 15c., 3 60 Making report for'the month of July in duplicate. 24 fol., 150., S 60 Making'report for them.onth of August in duplicate, 34fol·· 150., 5 10 Makin,grepQrUor the month of Sept. in duplicate, 31 fol.,I5Co, 4 65 ToW,.,,' . . .". ' - '. .;, - $893 05 "His Sllld,aedounts for fees were duly verified by oath.andpresentecJ to the proper oontt aDd approved. and were' dnlypresl'ntPd for payment to the ac· counting Qftlcera of the treailliry,and $666.46aUowed and paid tllereon, "CONCJ,USION OF LAW.
findings the court of law, that the 11:1 entitled to recover the sum of two lluridred und twenty-six and j)l'ty-nine'one-himdredths dollars." ' ( ..
r' .A.
,;lew has been entered' in 'the .case, accompanied :witq.,the fQll!>wi.ng stipuJ,atipJl ;of cQunsel: " againRt clll.imant in opinion SjiFed. PNte. Stl:O'JW/8 Case, to findaa that v:ere not alIo,wed. reildere.d. a The undIsputed testimony of chumant showUig that clkliimnt hud rendered all the services charged, and that his accounts containing charges thl'refor had been dUly approved by the court. T·lie"acoountsunder oath and disallow·
-815
and dockets showing entriesebarged for. being in evidence; for. the items ;Of: Complaint, as certificates at 15,cents at. 20 cents perfoHo. Acknowledgments to recogDocket entries. ;Copies. except of warrant. un4er nizances. charge for copy of ' Entering returnll of warrants and subpQenall. l)er diem . Gertific.l/.tes of witnesses J in duplicate. .:I;t is stipulatel1 and agreed that the.aboveshall be consIdered as the propos!.tipns involyedin the application for rehearing, and that the services charged for were duly proven on tlie trial to have been rendered, except as found differently in the opinion of the court. [Signed] "GREGORY L. &; H. T. SMITH. "GEORGE H. PATRICK.. .' "Att'ys W. McKinstq, . [Signed].. D. U. S· .l\,ttorney. .. ":rune ;J.7th·.1 8 8 9 . . . . . "It isfq.r;ther agreed tl;Jat the question,O£ of the said .circ"l:t court to bear and determine causes based ,UPQll Claims thl! goverment.like the claims or demands embraced in this 8uit. shall be consid·eved 88 'if dUly pleaded arid at iSSu.e on the otlginaltrial,of the case. r . & R ...T. SHITH, ' ·. . .' .. Signed. "QEOJtGEH, PATRICK, .·. ' . . .. Signed, .''D.,WICKERSHAM, U, S. Atty, for -June .. '." .' , . '.
:1.'1
n.
J'
.
'j"
-'
"'; , : '
;
G. L;& H.P.8m:ithandG.11. Patrick, for the motion. M·.D. ,Wicket'8ham, U.· S. Dist.Atty. Before LAMAa,Justiee, and'PARDEE"J. PARDEE, J., (after Btilti'rlg:tM jaetsa8dboV6.) The motion for a new ,trial ha,s. upop.briefs$ on the one siq.el.\s toithe ,and to jurisdiction. .At the outset, to say been rendered more aqd difficul.t thefact,tllatthe petJ,tiqner upon his claiD,l as a J;unning ,QQC()untagainst theVnitedStates, allo'Ying.credits as had therqon,' inl!!tead -of suing on the disallowed .So .far as I have rej:lOxdbefore metit to be impossible to .tell :xteJils ofthepetitiQner'saccount were allowed .by $e, anq what were iE'ejgcted. On this motion for a new tpe United of plea to the.jurisdiction. Its exact pemnency.ia ;Ifwell taken, itw0u!<V)e in aid.of the mo[ti<>n for· a new 1:JeGauBP, prior to qismissing.tpe suit for waI:l-tof oece8sa.ry tQ. the.. Dlotiop for a new. jnl.'isdi<;tion-, Further than this, I must corifess that I do not exactlyunderstan<l the points sought to be made by the clilltrict fl,ttorney. . -. 'fhe first of ,the first section act, llvproved ,Ma:rch 3, 1a87, entitled" An acho 'provide for the bririgmg of suits againstthegov'ern:ment ofthe tInited.St8:tes," provides..J.i.: . . ',!', , ,_ ' " '.'::.",,',"'" .'" .-' , :I t , " ,.', _ . ":,., _ ,:,:,-, , ... «That ()tclllflll$. have to and <;1etermine·tlle .foll?wing i claims uPl>lh :(1rmte4, for. .pt;p.lliQJlSl 01,': upon ;regiII
or
'818
I'EDERAL REPORTER,
vol. 40.
hlcasesnot sounding in tort, in respect of which claims the party wbuld bti,entitlElq. to redress against the United States either in a court of law, if the United States were suable: provided, however, that'llOthiogin this section shall be construed as giving to either of the courts hprein mentioned jurisdiction to hear and determine claims growing out of the late civil and commonly known as' war claims,' or to hear and determine other claims w,hich have heretofore been rejected, or reported on adby any conrt, department, or commission authorized to hear and determine the same." ' The second section of.the said act provides"'rhat the, district courts'olthe United,States shall have concurrent jurisdicti6invitfl the court,ofclaims as to named in the precedjng section, where the amount of t'he claim does not exceed one thousand dollars; and the circ;uit courts of the United States shall have such concurrent jurisdiction in:allclises 'where the amount of such claim exceeds one thousand dollars, and doesJiot llxceed ten thousand dollars. It ' i, . .c,I<J :',lji .: .' '. ,:;
It seemB to be perfectly clear that the petitioner's claim ia one embraced within the prOVl.ShmBOf the first clause of the first section, and is not wi'hinthe 'proviso thereto., It is well understood that in passh{glthe saidltcLOf'March 3, 1887, making a direct and decided innovation in regard to allowing suits to be brought against the government; and that.<\for purposes of relieving the, court of claims, and to relieve suitors from the expense. of going to the capital, the jurisdiction was conferred upon the circuit and district courts. '. AS TO nNDINGS OF THE COURT.
urges that he was' entitled to a finding of fact as to whetljerthe services he sued for, and which were not allowed by the court; 'had or not beeD rendered. The evidence on the subject is full andclear.iThe law provides for the trial 'of this class 'of cases by the cdtirf without a jury, and, that the court shall cause a written6pinion to in the ca,use, setting forth, the, specific findings by the court of 'therein, and the conclusioD.s 'of the court upon all questions of law involved in the ,case.' The law also provides, to a certain extent, fOl" art itppeal or writ of error, and in aCQntingency, for the examination ,and action of the attorney ganeral. Whether the petitioner has rendered the which he-derna:nds' fees from the gov-ernment; seehlB tobea tbeutmost impo:rtan<Je in the determination of the case, and f01"'$.ri"iritelligentreviewthereofby an appellate court, or by the depart' , , , ' '
TIH,
COMPLA1NTs.
of the, JteiisedS1:4,tu'tes pro:rldes as follows: "For any crime or offense against. the Vnited States. th!,\ offendermaY."br ,a.nl,' 1usticeQt' of by anY,commissionerof the ch:cuit ,* ".. and agreeabl,f to 'the usil,al /Doile of proce:;;8 " oltel?ders in, and ,f?tates.b& andimprlsope;d. 01' balled, as the 98$6 may be. for trtal befdi-e, such court lif,th'eUnited as by law,hl\8 cogn,izance- dt t,he offerille. of ttif;process shall bluetUl'n'ed as llpeedily as'lluiybe into theclerk'soft'ice'of
M'KINSTRY II. UNITED STATES.
817
such court, together with the recognizances of the witnesses for their appearance to testify in the case." The Code of Alabama (1876) provides as follows: The complaint is an allegation made before a proper magistrate "Sec. that a person has been guilty of a designated public offense. Sec. 4648. Upon a complaint being made to any one of the magistrates. specified in section 4026. that sucli offense has. in the opinion of the complainant, been committed,the magistrate must, examine the complainant, and such witnesses as he llIay propose on oath. take their depositions in writing. and cause them, t,o be subscribed by the persons making them. Sec. 4649. The depositions set forth the facts stated by the complainant and his witnesses tending to establish the com¢.ission of the offense. and the guilt of the defendant." From these sections, it is clear that a commissioner of the circuit court of the United States in the state of Alabama, in order to proceed agreeably to the usual of process against offenders:insuch state, must receive the complaint when presented, must thecbmplainant and such witnesses as he may propose, on bIlth, take'their depositions in w:riting, ,and cause them to be subscribed by the pel'sons ,making them; and it follows that if. the petitioner in this case has ,done and these servioosinconnectionwith his office, in complaints brought of violations against the laws of the United States, he has performed necessary duties imposed upon him by his office, under the statutes. Section 847 ()f the Revised Statutes provides, with regard to commissioners' fees, as follows: ' "'For taking and certifying depositions to file,20cel1ts for each folio; ... '" "'for issuhlg' any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services!' The petitionerolaimed for 130 complaints, 5 folios,each, at 15 cents; ,130 oaths at 10 cents,and 130 filings, 10 cents each, and the court rejected the claim, holding on the point as follows: .. There is no authority found in the statutes fOI' a charge for a complaint. section 828 nor 847 prescribes a fee for drawing a ,complaint in a criminal, prosecution, nor for any like serVice; but. as a compl<\int is sworn to and filed, Ithink the petitioner is entitled to the fee prescriIJed for administering an oath, anditor fiiing a paper in a case. While it was admitted in the.argument by plaintiff's counsel that there is no fee allowed for complaint eo nom,ine. it wasUl'ged that he should be allowed compensation for taking depositions aithe rate of 20 cents a folio, under st:ction 847, Revised Statntes,inasmUch as he is required, in the preliminary examination of a criminal charge. to reduce to wl'itip,gthe testimony of the, complainant and such witnesses as MiDay propose in support of his complaint. The Criminal Code of this state requires this. and calls sllch testimony ·'d'eposition.' Oodt' Ala. vol. 2. :4257. ' But it does 'not require such testimony to be certified and tHed by the magistrate. Mr' does 'it reqUire such testimony to be taken With the sama formalities aljl;srequired by the statute In the taking ojhdepos,i,tions. Code Ala. §§ 2807,2l:!08. "The Criminal Code only requires thatthe testimony shaH be signed by §§ 4256,4286,. That to ,writing by It 'commisiiioner"is not a depositton. incQnt8mpl&ticn of section ,8\l1-. Revised Statutes, whleh,prescribeS a fee for taking arid tions to file, see Nail Factor1J v. Goming, 7 Blatchf. 16, and also opinidn;tn \'.40F.no.14-52
CQUllt' 'fol' the southern jiilitrjptQf , As shown of t):W 9wnplaiI)t W!1-s, ,prpper to t,he:performance Of the petitioner's uuties. It 'is conceded that he can',not be unless it for In 'that part of the fee... tf 'tbll, provision 'jn relatIon tq ta)dng .is takllD and. l!di\d technically, presuming' everything for the government . nothing for the· petitioner,the finding of the court 'on the claim 'fOil con1plaints was:right. On the other hand, if the provision'istakeriand constru.ed'liberally"ahd on the theory that the. govern6f wIthout compensatlOn, then the petltlOner would seem to be entltled to for, takingc'omplaints.Jand; reducing them to writing, as cElrtifying,depositionsto tile· ., "Depoaitionsjln,the,moliltgeneral, sense oBbe word, are the written stateAl!ibama. 34 Fed. Rep. 17, (filed February 21, 1888.)", ! ..
U..8. j :ln
,in a speci..l :
clenote,ll made orally by a. peJ:'sonou oath before conhnissionllF"or' other officer· 'Of the. .not in open 'court,' andtakend'Qwrdp'wrfting by the exatQirier,alid under his direction."
j,u4icia\pl'Qceeding.'
0$
Deposition" is used
RaIl. &'1.. Lir.... '..' , I '. . wordll·ofthe.atatute prescrlbing:com.pensationto·a public of,tlcerare and ·obsl'Urlil. ia,nd'admitof; two illterpretations, they shouldb.e B.. v· M01'BI/,S Story,87·
Inview0f;tbe fact thatithe gO"Vtlmmelilt reqlliresthe commissioner to take the complaint in writing, and has not otherwise provided compen;il!1tl9Jl.;fl>); thEt tb,atia epnstructi9,Il ,of tbf-tt-will ,allow ,pa.ytnent. to be madertiherefor,ia8 for taking'and certifying depositions, should be adopteav·,,' ' \.; ,';" ,; J;' : ; ,
the statute allowing Compensation therefor, seems' to apply wiihequal ,force The Mr\rice. is .. paY?lent, th!l't, the . lo ,under sectlOn fo!., .an cents. Itlnay"pe that the tQ iIi the l;ltl!-kljl;W wasoriginaUyintended, for an acknowledgooljlut: of the ,conveyances ; but it appears that it is the ·dlltyof thecornmissioner:. to take acknowledgments ofre<logdiiahces' for appearances' in there is littlediffererice iti'fact the: t)'v0 ,. is not ,f;.s' forcing . tg Jlpld ,tbat the asqllotl;ld above, ca,se.,. In fllCt,Itaklt,iUrom,the,,recordin:this calle thll.t the first comptrbller.has ·never ,declined.!toaJlow rsuqh·· a '£ee, ;but, has practially'held that,' no matacknowledgment cduldbe'lillowed' for 'in.acase<; entit\ed ..:Jee. £ . 'M.,ed. .. ¥ar.,Q ..·.U.S.., 35 Fed l!.Y ....·
The tea!3t>rlil1g w'ith
to
·. 886, 764.,. 0.
p..
..
$.,37 ;!fed. ' i e··
,,;1.; ."
,:.!
,'i::;! '" ".\,'" .. , ..(
.;', ; -,
,.:,.. 1\ I . f 1 T · '"
. ,.
.!
"
t1. UNITED STATESo ,:')
819
Under the provisions of Rev. St. §§ 828, 847,eomrriissioners orthe circuifcourt, in certain cases, are entitled to docket fees. U. S. v. Wallace, 116 U. S. 398, 6 Srip. Ct. Rep. 408. In the act of congress entitled "Ail ltct making appropriations to supply deficiencies in the appropriations for'the fiscal year ending June 30, 1886, and for prior years, and for other purposes," (chapter 903, 24 St. at Large, p. 274,) is the following provision: i'For' teelot commissioners, and justices of the peace acting as commiSsioners, $50WIUO:" provided, that for issuing any warrant or writ, and for any other necessary lJervice, commissioners· may be paid thedsame compensation as is allowed::toclerksfor like services; but they shall Dot ,be entitled to any docket fees;" The construction and effect of this provision has been before the court of claims'ft.nd several of the district and circuit courts, and conflicting decisions· have resulted. Severa.'l very able district judges have held that the ,said legislation does n.ot take away the right of commissioners to receive docket Jees" .but only exceptE! their payment out of the sum appropriated by the said act. See Bell v. U. S., 35 Fed. Rep. 889; Rand v. U. S., 36 Fed. Rep. 671; Hoyne v. U. S., 38 Fed. Rep. 542. The contrary ruling, i. that the proviso of the said act, quoted above, was positive amendatory legislatioIl, and enacted for the purpose of cutting off docket fees, is held by the court of claims in Faris v. U. S., 23 Ct. CI. 374; by Judge· TOVLMIN of this district, in Strqng v. U. S., 34 Fed. Rep. 17; and by Judge SIMONTON, of South Carolina, in Calvert v. U. S., 37 Fed. Rep., 762'"i The one denies ll.!1y substantial effect to the legislation; the other gives full effect to it as general legislation, the fee-bill. There is no question of the power of QOngress to, as a rider upon an appropriation :in an appropriation bill. ,It has been too often done to be questioned at this day. Thepoil1t for determinatidn now is, what was the intention of the law-maker in the provision under consideration? Looking to' the llct itself, I :6Q:d' tha.'tc<m$i'e'ss there.in rilade five specific for the of e., for the year 1883 and prior years, for 1884, 1885, 1886; and in the general appropriation act, approved the same day, I find still another appropriation for the same purpose for the, year 1887. To the appropriation fol,', 1886 the is attached. Tlle are unconditional in every respect. It is hardly to be supposed that congress intended to provide an amended and restri,cted fee-bill for cOJ;llmis8ioners for the year 1886, leaving prior and subsequent years for which provision was made at the ,rone time,. to the operat$on of the old fee-bill. As to docket fees, the language ofthelegi81ation is peremptory,-"but they. shall not be allowed fees·.",'rhe1egislation in follows so closely the (feciaioti of the supreme court In U. S. v. Wcilkl.ce, B'upm, totheeffectthatin certain cases commissioners are entitled to docket fees, an allowance which 'theretoforeh&d:Jrt:teUYlouslybeen resisted by the,treasury department; li:ha t we can almost say that "the misohief to
e.,
820
FEDERAL REPORTER"
cOnt:IUlted the text-books and the adjudged cases, and have noticed the of the law,.-the courts on one side commissioners to to pay therefo!',keep dockets, and, the congress, on the other, but, for the reasons.,.aforesaid. and those given by Judge TOULMIN in Strong v. U., S., iJUpra, I am constrained to hold that thelegisll1tjon in question was general, and not restricted, and that thereby the coplmissioners' fee:bill was soamended as not to allow,docket fees under any circumstances. On the other points submitted on this motion for. a new trial, I agree with the trial judge inhis opinion on file in this case and in the case of #trong v.U. S. As certain findings of fact and allowances have been refused the petitioner to which. according to this opinion, he is entitled, it is necessary that a new trial should be granted in the case. An order to that effect will be entered. LAMAR, Justice. Having sat with the circuit judge on the hearing of this motion, after due consideration and consultation we agreed in the general conclusions, andI aBsignedto him the preparation of the opinion. I have examiiled'the above opinion prepared by him,and concur fully ' ,with the,viewstberein presented.
UNITED STATES f1·. CHAIRES
et al. " ,
Oourt, N. D. FlCYt1da. December 19,'1889.) 'L .TURY-.l'tmy
·to S:.u4lC"":SELECTINGFROM 'PaTi , RE!V.
21 U.S. at Large, 43,requiring the court to appqillta jury who shall be: Ii 'oitlzen of -good standing; andshali Teside in ,the district in which' the court is h,eld, ,and, w,ho shall b"e, a well-knoWll,member Of'the, pri ncipal. political par,ty in the that.to which the cler}l: belongs, is dire9tory merely, and not m a n d a t o r y . ' .
the district, and. not from the entire terriWry within the distridt,ls bad, there baing no inj\1ry Qr averred. 8,$.UllC., ' ' ,,', ' ,: A plea is 'also bad under this statute,which, in efl'ect,set forth that the defend, ants citizens.Qf L. county, in said dlstrictjtbat the,oifense charged , was if at all, in sai!! L. county j and that noneof the names placed in t,he . . jury-box froIinV'hich the grand jury was drawn were citizens of said L. county. " wrrn RI!lGARD TiO POLlTiIOAL,AFFILIATIONS., i ' , second, plea was to tile, effect that the. jury' 811d ,the clerk, in selecting names to be placed in the jurY-box from which the grand jury whioh found the indictment against defendants was drawn. did not CQmply,with the law, aI/dselect such without ,to party afti,liations, but did select; lIuch nl;lmes'wfth regard to the piLrtyalllillations of the No in , jUry or in'ejlidioewas averred. Held tblllt, Wbile the plea was defectivem form &Jld the mattilrBSet fOl'tb,c were so pleaded as tQ p.\1t the court on inquirr, aud tlie demurrer thereto would be overruled, and the district attorneyordered tb traverse the same.,' ;, , ,' : '.
v.. S: § 802,plea thatOil" DISTRICT.were retnrnep,on an order of c,?urlf.from PE1rmitting, to be partsofa dIstriCt, a tbe Jurors drawn from an alleged dlvislon of
Indictment fOf Violation of Election LawsiBrought against ,Benjamin ,Chaires, J. L. Agnew,and DooW()oten.