902
FEDERAL REPORTER,
vol. 48.
,land-owner 'of any right whatever. A:a Judge Oooley $ays inbis treatise on Constitutional Limitations, the public faith is pledged to compensate him; all publiopropertyfis aubject to his claim, anll, his property cannot be taken without such compensation being awarded to him. But in the act now under consideration there isuot .only an OfUission to provide for compensation, but actual, positive, and' direct legislative interdiction of the making of any compensation to the land-owner at all. In other words, the secretary of war is by it, if these proceedings are to be justified, to depl'ivethe land-owner of his property, nnd at the same time to notify the land-owner that under no circumstance will he be compensated therefor·. Such an act would be clearly within the interdiction of the constitution. It is perfectly apparent from the reading of this act that the legislative power of the United States never intended that condemnation proceedings should be bl:'gun ,and proceeded with to obtain possession of thia property. By the true construction of the act in question it contemplates the acquisition of the land necessary for the improvements in question, not against the will of the owners, and by condemnation, but by the voluntary conveyance from theowners, or from some one who may purchase the same from the owners, and who waul d thereupon transfer the title to the United States; and in that case the United States agreed to expend the sum of $300,000 in the ex;cavations and the removal of obstructions to navigation which' the proposed improvements contemplate. In fact, the only circumstance under which the secretary ,of.war is authorized to make the improvement and expend the appropriation is the free gift of the lands to the United States. My reading of the acts in question compelR .me to the conclusion that congress never intended to authorize the acquisition of these landa by the exercise of eminent domain. . Their possession by the federal government was to depend up1>n voluntary conveyance alone. It follows that the petition roOst be dismissed.
UNITED STATES V. STROBACH.
Court, M. D· · tHabama. May Term, 1888.)
1.
PBBSBNTINGFBAUDULlllNT CLAIMS AGAINST TRB UNITED b'mO'l'MENT, ..
Undllr Rev. St. U. S. S. 5488, the offense of knowingly presenting for payment or approval to any oftlcer in the civil, military or naval service of the United States any false or. fraudulent claim against the United States, an indictment averring the presentation of sucn a olaim to "G. T., .then late marshal of the United States. he being then and there an otl1oer in the oivil servioe of the United States," is not insuftlcient or repugnant, since a marsbal. after the expiration of his term, is still an oftlcer for.th.e purpose of serving prooess then in his hands, and for aettl1ng his accounts with the government.
.. 8A.M:E-S\Tl!'FIOIENCY.
An aVclrment t.hat thf).accused, claiming to be a deputy-marshal of the United States, presented a olaimagainst the government of the United States, "purportingtQ have been for services rendered and payments made by said deputy-marshal" in a oriminal proceediJ;lg mentioned, befor", a oertain United States oommissioner, 8uftlciently shows thali the servicea were performed and payments made for the United States, in the defendant's capacity as'deputy United States marshal.
UNITED STATES 11. BTROBACH. S. SAME-REPUGNANCY.
903
An averment that sucb claim, alleged to have been presented to "G. T., the late marshal," etc., was a claim "in favor of the said G. T., the then late marshal," etc., does not render the indictment bad for repugna.ncy. since the court will take judicial notice that the accounts of deputy-marshals are habitually presented to tbe government in the marshal's name, and the money therefor is paid to him, and by him paid to bis deputies. As the statute makes it an olfense to present the olaim to "any person or oftlcer" in the civil service, etc., it is immaterial that the marshal is not expressly authorized by law to approve a deputy's account. The tact that be is required to incorporate the deputy's account into his own, and to swear that the items therein charged are correct and legal, is sufficient to show that he must pass upon it, within meaning of the statute. Although the act of a federal judge. in passing upon the accounts of ,a United I'ltates marshal In open court,. as required by Act Cong, Feb. 22, 1875. Is, In a sense, the act of the court, yet, as his decision is subject to revision by the accoJ)nting officers of the treasury, it is only quail' judicial, and therefore a to him is a presentation to an .officer In the civil service Of the United States, within the meaning of secUolI. 5438.
SAMB-PRESBNTING TO MARSRAf,.
6.
SAME-l'RERENTING TO JUDGE.
At Law. Prosecution of Paul Strobach for presenting a false claim against the United States. On demurrer to the indictment. Demurrer overruled. W. H; Smith, U. S. Atty., and Samuel F. Rice, for the United States. David Clopton, George Turner, and George H. Patrick, for defendant. Before WOODS, Justice, and BRuCE,J. The defendant is indicted under section 5438 oftha WOODS, Justice. Revised Statutes. So much of the section as refers to the charges against him is as follows: "Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval to or by any person or offi·cer in the civil, milit.ary, or naval servie8 of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining, or aiding to obtain, the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill; receipt, voucher, roll, account, claim. certificate, affidavit, or deposition. knowing the same to contain any fraudulent or fictitious statement or entry, III III · any person so offending in any of the matters set forth in this section shall be punished," etc. The defendant is in an indictment containing four counts. The first count alleges that the defenda[lt, claiming'to be a deputymarshal of the United States, did present for approval, on a day mentioned, to George Turner, then late marshal of the United he being then and there an officer in the civil service of the United States, a false, fictitious, and fraudulent claim against the government of the United States, with intent to defraud the United States,which claim was an account purporting to have been forsarvices rendered a_ld ·payments made by said deputy-m'l.filhal in the case of U. S. v. lIa,rt, in a criminal proceeding before W. H. Hunter, commission3r of the circuit court of the United States, dating from January 19 to January 25, 1880, in:clusive, and in favoi.' of the said George Turner, the then late marshal, lUI aforesaid. which claim was false, fictitious, and fraudulent in the follow·
904
ing staterne9ts and entries thereincontaine:l. (H3re follows a recitation of the alleged false, fictitious, and fraudulent entries.) The Clunt then proceeds:" The defendant well knowing the same to contain the said false, fralldcilenf, and fictitious entries. " The second count charges that the defendant did use a false affidavit of the correctness of the claim mentioned in the first count, for the purpose of aiding to obtain the payment of' said claim, knowing the same to contain false, fraudulent. and fictitious statements and entries, as follows, to-wit. (Here follows a copy of said entries, identical with those contained in the first count.) The count then pl'oceedsas follows: "He, the,said Paul Strobach, deputy-marshal, as aforesaid, well knowing the saine,to,contain each and every false, fraudulent, and fictitious statement and entry aforesaid." The third count charges that the defendant, claiming to have been a deputy-marshal of the United States, did cause said George Turner, then late mar$hal of the United States, to present to and for approval by the d.istrictcourt of the United States for the middle district of Alabama, in open court, at the May term, 1880, the Honorable JOHN BRUCE, judge of the United States district court for the middle district of Alabama, then and there presiding, as well as to and for the approval of said Hon. JOHN BRUCE, district judge, presiding as aforesaid, he being then and there an officer in the civil service of the United States, a false, fictitious, and fraudulent claim upon and against the government of. the .United States. The count proceeds to describe the claim in the same terms as those used in the first count, and concludes with the averment that the defendant well knew said claim to be false, fictitious, and fraudulent in each of the statements and entries aforesaid. The fourth count is in all respects'similar to the second. . To this.indictment the defendant filed his demurrer, alll'ging grounds pf demurrer to each count, which proceed to consider. The law now in force regulating the taxation of costs, and the approval of the accounts of clerks, marshals,and district attorneys, is the act of February 22:, 1875, and entitled "An act regulating the fees and costs, ·and forottier purposes." 1 SupI'.1Rev. St. p. 145. So much of this act as is pertinent to this case is as follows: "8'ectioI1 l.'.'That, before any bill of costs shail be taxed by any judge or other dfficerjor any account payable out of tht\ money of the United States shall be allowed by any officer of the treasury in favor of clerks, marshals, or district attorneys, the Party claiming such account shaU render the same, with the vouchers and items thereof, to a United States circuit or district court, and. in the presence of the district attorney, or his sworn assistant. whose presence shall be noted on the record. prove in open court, by his own oath, or that of other persons having knowledge of the facts to be attached to'saidacCl:>unt, that the services therein charged have been actually and nec·essarily performed, as thel'ein stated;'" ... ... and the court shall thereJ\pon cause to be entered an order approving or disapproving the account, as may be according tolaw. and just." Previotls-tothe enactment of thig,law, the matter of the approval of the acootmts of clerks, marshals, etc., was regulated by section 846 of
UNITED STATES
v.
STROBACH.
905
the Revised Statutes, which provided that such accounts should be examined and certified by the district judge of the district for which the officers were appointed, before they were presented to the accounting officers of the treasury department for settlement. The elements of the offense created by section 5438, which it was the purpose of the first and third counts to charge, are as follows: The presentation for approval to any person or officer in the civil service of the United States of a claim against the United States, which the party presenting knows to be false, fictitious, or fraudulent. The elements of the offense prescribed by the statute, which it was the purpose of the second and fourth counts to charge, are as follo\7s: The using, for the purpose of aiding to obtain the payment of a fulse, fictitious, or fraudulent claim upon or against the government of the United States, ofa false affidavit', knowintt the same to contain any fraudulent or fictitious statement or entry.'; If the (lQunts of this indictment charge against defendlint,as required by the rules of criminal pleading, an offense against the United States, they will be good and sufficient in law. We shall therefore con· sider the counts, and look into the particular grounds of demurrer,to ascertain whether this has been done. It is alleged as ground of demurrer to the first count that it does not sufficiently' charge that Turner, to whom the account was presented for approval, was an officer in the civil service of the United States, because it is alleged that when the account was presented he was the "late mal'shal." There is, however, besides the averment that he was the late marshal, a distinct averment that he was then and there an officer in the civil service of the United States. Now, if a marshal whose term has expired can by law still be an officer in the service oUhe United States, then that fact is· well averred, and there is nothing repugn:ant between the two averments. A marshal whose term has expired is, for the performance of certain duties, still an officer. Section 790 of the Revised Statutes declares that every marshal, or his deputy, when removed from office, or when the term for which the marshal is appointed expires, AhaIl have power to execute all such precepts as may be in their hands, respectively, and the marshal shall be held respunsible for the delivery to his successor of all prisoners who may be in his custody, etc. A mamhal is appointed for a period of four years. When his time is out, it is true he does not hold over until his successor is appointed or qualified, but, by the provisions of the section just cited, he is still an officer for the performance of the duties therein specified. After his term of office expires, it is also his duty to settle his accotlnts with the government, and to do this he must necessarily receive and pass upon the accounts of his deputies. He discharges this duty under the sanction of his official oath, and the obligation of his official bond. When, therefore, the first count of the indictment described Turner as late marshal, and averred him to be, when the account was presented, an officer in the civil service of the United States, the description was accurate and pertinent, and not repugnant. We are of opiriion,there-
906
[pre, that it is sufficiently averred that the account was presented to an officerin the civil service of the United States. It is next stated as ground ordemurrer to the first count that the services ,alleged to have been performed, and payments alleged to have been made, by the defendant,are not charged to have been services and payments for the United States,or that the services were performed and payments made by as, deputy-marshal, so as to show that the the proper officer t9whom said claim should be presented for apprQval. But we thillk it is sqfficiently averred that the services were perfor the The claim is alleged to be a claim against tbeUnited States. IUs alleged to be for services purporting to have been performed, by said deputy-marlilhal in a criminal proceeding the lJnited States commissi9ner, in which the United States was the plainUti', and that it was a cWm in favor of the said Turner, marshal, and against the United States. These averments make it perfectly apparent ,that the s.ecount services rendered the United Sta.tes by a deputyand that marshal was the proper officer to whom his dep,uty should present the account, for allowance. It is next alleged that the first count, is repugnant, because that it jj.VflTS the claim was presented" to George Turner for his approval, and aIsoavers that the (}laim was in, favor ,of. George Turner.. The method of procedure prescril>ed by law for the settlement the accounts of IDeJ:;sllalll, court ,takelil judicilll notice, and which it is, therefore"not to:llver, nlakes it apparent there is no ground f()r fbi!'! objection to reston. The law authorizes the appointment of (Rey.St. § 780,) and prescribes their oath of ,office, (Rev.' St.§ 782,) in which they are required to swear that they will take only,ttwir lawful fees. In all (}ases, except where specially provided by a deputy-marl:lhal has tl)e powers, and may perform the same duties, as the marshal. To, prevent a multiplicity and complication of accounts, the fees of the deputills.arc presented to.the government for allowance through the marshal, and in an account made out in his name, of:whieh the verified account of the deputy for his services forms a ,part. The money collected on this account is paid in the first instance to j4e.marshal,who pays the deputy his share. The accounts of the deputy .ar,e made out against the United States, and in favor of the marshal. It maYdherefore, well be that the account of a in favor .of the nlarshal, and against the United States, was presented to the marshal for his approval. 'l'here is nothing absurd orrepugnllot .in suchan averment. . .But it. is cpntended by that the marElhal is not an .officer Py law to approve a deputy-marshal'saccount. It will be observedth.at t1;:le fjectioJil on which the indictment is based mak(js it an Present a false claim for approval to any,person or officer in the civil, lllilitary, or naval service of the United, States. Thepresentation need not be to an accounting or a\.Jditing officer. It need not be to an at.aU., Jt maybe to any .the civil, lllilitary, or naval
of
UNITED STATES V. STROBAClI.
907
service of the United States. The approval meant by the statute is not, therefore, confined to the passing of the claim by the accounting officers of the treasury, or its approval by a court or judge. When a deputymarshal presents his itemized account for his fees and costs, verified by his oath, to the marshal, who is expected to incorporate it in his own account against the United States, and to make it one of the v\luchers to sustain it, and to swear that he belteves all the items therein charged are correct and legal, and the amounts thereof are justly due to him as therein stated, the deputY' may well be said to present, within the meaning of the statute, his account to the marshal for approval. The marshal adopts the verified accounts of his deputies, swears to his belief in their correctness, and demands pay for them from the United States. He' may, therefore, well be said to approve them. Without such approval, the deputy could not take a step towards the collection of his claim against the government out ofthe treasury. There are other grounds of demurrer to the first oount, but they are either covered by what we have said, or allege defects or imperfections in matters of form only, which do not tend to the prejudice of the defendant, and are therefore not matters upon which the count can be held to be insufficient. Rev. St. § 1025. In our opinion, the count avers with all requisite certainty the presentation by the defendant for approval to an officer in the civil service of the United States, with intent to defraud the United States, of a false, fictitious, and fraudulent claim against the government of the United States, he well knowing the same to be false, fictitious, and fraudulent. This coverseverJT element of the offense described in the statute. It gives the defendant, as well as the. court, notice sufficiently specific of the charge againRt him, and is sufficiently definite to enable him to plead his conviction or acquittal should he ever again be indicted for the same offense. It is alleged as ground of demurrer to the third count, in addition to the grounds urged against the first count, which we need not again particularly notice, that the presentation of the claim allegfld in that count, was a presentation to the district court of the United States, and to the Honorable JOHN BRUCE, district judge therein presiding, neither of which allegations are within the statute, because the district court is not a person or officer in the civil service of the United States, and the Honorable JOHN BRUCE, district judge, is not an officer to whom the claim in this count described call be lawfully presented for approval. It is a presumption of the law that congress legislates with intel1igent purpose, and in view of the existing statutes. Before the of the act of February 22, 1875, heretofore mentioned, the aecounts of marshals wererequired to be examined and <'.ertified by the district judge before they were presented to the accounting officers'of the treasury, (Rev. St. § 846;) and, if the deputy-marshal presented a fraudulent claim against. the United States to a district judge for his approval, he would have been liable to the penalties in section 5438, on which the indictment is founJed. It is claimed, in behalf of def¢ndant, that by the passage of.-' the act of .February 22,1875,aongress intended that deputy-marshaJa,
908
should present their claims in open court for approval, and that the act allows the.m to present false, fictitious, and fraudulent claims with imPQnity. We cannot believe that such was the purpose of this legislation, but that, on the contrary, it was to provide additional guards against the presentation of false claims. The contention of the counsel for defense is that the law only punishes the presentation to a person or officer in the civil service of the United States of a false claim, and that when a false claim is presented for approval to the district court of the United States, in which the district j.udge is presiding, that that is not a presentation thereof to an officer in the civil service of the United, States; in other words, that a United States judge in vacation, and when not engaged in the discharge of his usual ,duties, is an officer in the civil service of the United States, but when engaged in holding a term of court, he ceases to bean officer in the service of the United States, and his identity as such is lost, and he is onlyb; court, or a member of a court. We think that a United States judgei is, at all times an officer in tlie civil service of the United States, within;,tlae meaning of the statute,an:d that when a claim is presented tQ@.!conrt of which he is the presiding officer, it is presented to an officer ,in !the civil service of the United States. The act of approval or required of the court is not a judicial, but only a quasi judicial,tact; !for it is expressly made, by the act of February 22, 1875, subj ectto the revision of the acc-ounting officers of the treasury. ·}Ne think an examination of section 10f the act of 1875 will show, by,its,own terms, that when an account is presented to the court for approval, the. judge ,acts as an officer in the civil service of the United StMes,as:wt'll as a court. The section is somewhat disjointed, but it declares, in substance and effect, that before any bill of costs in favor of clerks, marshals, and district attorneys shall be taxed by a judge or other officer, it shall be presented to the district or circuit court, and that' before any account in favor of the same officers, payable out of the treasury",sball :be allowed by an officer of the treasury, it also shall be presented to the district or circuit court for approval. 'fhe taxing of a bin. ofcoste, is synonymous with approval of a bill of costs. By the express terms of the section under consideration, when a bill of costs is presented ito a court, the judge taxes it. Now, if the contention of counsel is sustained, when an account in favor of the marshal, which is. 01' aUeast may be, a bill of costs, is presented for approval to the same. court, the court alone acts. and the judge does not; so that this absurd:resultfollows, that: when a claim against thegovernmentis called a bill of oosts, if it is a fraudulent bill, it is an offense against the law to present it for allowance; but if the Same identical bill, no matter how false and ,fraudulent, is called an account, it may be presented to the court for allowance with impunity. A construction of the statute which leads tOisuoha result cannot be sound. ,Our, ,eOIiclusion is that section 1 of the act of 1875 was not intended to relieve from the penalties prescribed by section 5438, on which the indictmentis based, any person who shQuld present for allowance to a
909
district or circuit court of the United States a false and fraudulent claim ngainst the government, lthdthat a:presentatidn to the court, under the act of February 22, 1875, is, within the meaning of section 5438, a presentation to an officer in the civil service of the United States. It is contended by cqunsel for the defenoant that the account of a deputy-marshal for his fees is not a:chlim against the United States; but in the first count the account presented to the marshal for approval, and in the third count the account presented' to the district court for approval, arebothl;lverred to be accounts in favor of the deputy-marshal. The grounds of demurre.r, to the second and third COUllts of this indictment are identical; the counts themselves being in all respects similar. t, All grourids except 'one are alleged uncertainty of the cou,nts. Without going into a discussion of them, we are -of opinion that the' counfs aver with all the elements .of the offense which they are intended to charge. They aver, in the language (,)f the for the purpose of aiding to obtain thepaywent of thf;Lclaim. which BElen particularly. dE)scribed in the previous counts, did use a false of the correctneaa>of'said claim, he knowing the same to conti\hl false, fraudulent, and I fictitious statementS and entries. which' are set out in hlec verba." . The relll,aining objection to the counts under consideration is that the;)! .do notjLver that the,sil.WJalse Claim was paymept to -or by any person or officer in the civil, military, ornRvalservice oLthe United States. This ground of demuuer we are of opinion is not well taken. words ofthe upon which these counts are based, of themselves,; fully ,directly, and expressly, without 'ubcertainty or ambiguity, set forth. all necessary to constitute the offense tended to. be punished. 'The counts. under c6nsideration l!-ver all these .elements with a requisite certainty and particularity· It is not, therefore, necessary to make any other averments. U. S. v. Carll, 105, U. S. 611:: SectiolJ. 5438, on. which all counts. of this indictment are founded, is a broad and comprehenslV'e enactment. It is inte6ded to punish the senting for approval or payment of any false and fraudulent claim against the Uni.ted States to .any person or officer inanybranch of the sen:ice oJ the Unite.dSfates,orth'e use of aoY'false recel'pt, voucher, account, .certificate, and affidavit,. to obtain, or aid in obtaining, the approval cir ,payment ofany falsea:rid·frimdulertt claim. . . The elEltnents of the different offenses described in the statute lie within narro* limits. We are Of opinion thllt the several counts of this indictmellt sufficiently describe these offenses,and sufficiently charge the defendant; Our conclusion therefore is that the demurrer to the 1'n.dictment and the several counts thereOf should be'overruled; and it is so .ordered. I BRUCE,
J., concurred.
910 .a ':', t RtORMONDll.
.. ,vol.
48.;
ATWOOD. "
Appeals, Fir,t Ommu.. .. . 1'·1
.!
j'
.
I.PATBN'I:I FOR
.. $biB,
Letters patent 'No. 878,861, issued Marcb&, 1888, to Benjamin S. Atwood, for a duplex box-hinge/to be box, consisting of two 1I11.llges joiqted ,to a,cqnnecting, bellt right 'angles at distances from the joints $Qual to the thickness of the 'side ,arid' cOTer of the bOx,'so that, when applied, a smooth "flush 'with the outeJ' surface ,pf the, box, is presented, alld the cover, wben open, tUrns qver, and ,rest/! against the side, are void for of novelty 1n the oompoDElDt elements and new and useful re.ults in the combinatiOn. .. SAMlO-PRIOR Usll. , , , , ; ' " , , ", , ' " " feature cqver tofallllack againl!t tbe side of tbe box Is found 'Iii tM old I;'jmitb and Pailie double-biuge' and, tbe leaves of the latter were :';.uaight,and applied to the,outslde of tbey could ,be applied to the inside "bY,t,lie s1Jnple mllchaniC$1 device of bendinlil'thll shanlfll, the result being substan: same that obtained in the 'Atwood patent.' ' " 'If.,he feature of:applyIDe':thehiqgeso &S to present a "mooth faoe, a,ush with the . box and cover, wali alltlclpated by the Lovett double whicb the pl'fnolple of the Smith and Paine hinge,: alid could be insertea in tbe,same way. , The .feature in thll patent Of having the cover-leaf press against tbe oonneoting ..lja... wben the bO:l' closed, so as to prevent the from moving backward does not make ,tbe becaliSit 'll/larlng& are old,a"d the prior Smith and Paine duplex binge snows a bearing BRainst' the inlide of tbe link, producing the same result. ' ,i" i , "
"'BiKE. ,"
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combination should o,ttbe bearing, it Is by abingefn wIi.joh,owing to dU'letencea"of atr1lotul'Eia, the bearing , la ObtaJDed 'In Bnentlrely di1rerent manner.. " ':Z,li'll\i. 219" reversed· · , _.J,"" .'. ' '.'
",InEquity. Suit S. Atwood agiJ.inst O.Richf()f ipfringeUlentof;a patent. The patent, below, :&p,injuJ,lctil,)n. and llj:lcQuhting llppeals. ' J'jrederick P. Fish, WilliamK. Ri+hu.'rdBtm,and "ameS J. Jr., {or i! :", .,' ",' , , , '. '
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flfllBOnE. Tuck.er, fi.or;appell,ee. ,COLT, ll, g«lS' "
,CAJ.U'ENTER a,pAt\LDRICH, District ,', I,. '
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J. TIl'i. :letters pabmt No. 878,S61, March ,6. irnprov& ments iIi hinges for boxes an.d chests,. :I,The the llivention, as the,prnd,uction of'f:a whicp,when applieq bQJli prchest, present a, smooth fa?e,flush. with the p{ box or no, part q( it .PElyond the surdrI'hE! Qf two ;the inside ,of box to which the hinge is applied. At the ends of the bent parts otthe leaves are the knuckles, which lie in places the-pox and of the cover. The two parts of the hinge are umted' by a plate having a knuckJoa at each end, and by pins which pass through the knuckles