othel:wille.;to Y01.J,r>sausfactiori, that plaintift'sbad knowledge of the fraud.» In our judgment,these hlstructions are misleading, in that the jury must1ul.ve understood therefro.m that to· defeat the sale on the ground'offraud actual knowledge of the fraudulent purpose of the vendor must be brouJl;ht home to Collins & Bretch. True, it is stated that miJl;ht be proved by but still actual knowledge. pro\red directly or circumstaritially, is the criterion furnished the Jury for determining whether the ,vendees could, be held to be partici'pants in the fraudofthevendor. 'The jury was' not instructed that if the purchase was made by Collins & Bretch'under such circumstances as that the purchasers were thereby put upon inquiry as to the purpose8 of 9aunoll. making, the. sale ..f<) ,them, and instead of making inquiry they\\volded doing,so, tht'n. the jury would be jU$tified in holding them chargeable with arl' the due inquiry would have developed. That such is the recognized rule in Kansas is settled by repeated decisions of the court of. that state. Gollober v. ,Martin, 33 Kan. 255, 6 Pac. Rep. 267; Waferv. Bank. 46 Kan.597; 26 Pac. Rep. 1032. See, also,J0nt'8 v. Simpson, 116U.S. 609,6 Sup. Ct. Rep. 538. A full and very ,clear· statement of the general rule 8pplicableto a question of this character is found in the opinion of CALDwELL,J., in Singer v. Jacobs, 11 Fed. 'Rep. 559. The facts of tHe case now before-the court are such that the jUry could not fairly'decide the issue before them unless they viewed the facts in the light of the principle stated, and the court was 'therefore called upon to instruct the jury in regard thereto. The '.>mission to properly instruct the jury in this particularmade the instructions given and excepted to misleading, and therefore erroneous; and, 8S the error touches. vital issue between the parties, the judJl;ment below must be reversed,and the cause be remanded to the circuit court, with iustruc> ,UoDil 1.0 Irant. a lltlW trial.
UMTBD STATES
e.
PERRY,
Dist. Atty_
(CCrcuUCOWI1 0/ AppeaII, Eighth C,,"cui&. Hay lil8. 1_)
No. 116. L DII'l'RTO'r ATTORNBTa'FjlBS-MTLB.GlL
A district attorney is entitled to mileage for travel· by the most conven'_t ancJ practicable routes. In the dilK:harge,ol hla oftloial duties,thouBh 8uoh rout.e8 are DOt the routes. A district attorney Is entitied to mileage from hit place of abode tc) the pl80e of any belorea commissioner, of a person. obarged witb onme, and to his per diem for the examination of suoh person before sucb commissioner, In any case where, in his judgment, It. WaB necessary lorhimiOattend, and he did aotuallJ' atttmd, suoh examination.
'
I. SAME-DI8CRETION OJ' DT8'I'RTCT A1"rOllNBT.
B.SAr.J;" -MILllAGJ!J
,
Where the district attorney actuqlly and nl!l!etl811rfiy MTels from' tlJe place ot his abode to the place for atl examination, before II commissioner. of II person with crWle, in the disl'harge of his official duty/ he is entitled to mileag. for AUCh travell ' notwithstandinl\' such place of exam nation is at the official headgnarterll ot IUch district attorney.
To
OFFrCTAL HEADQUARTERS.
'TM per diem: compensation allowed by Rev. St. § 824, to a district attorney at.din.g court,.elaeWhel1e than. at. hia place of aboode, in the diSCh.argeQf his 0lllcial dutiea, cannotJbe paid to him for Sundaya. or legal holidays occurring during I: tli.lH;erm of 'tne .court, becauaeprohibited by the proviso to the appropriation March 3, l,887, (24 St. at LargeiP·.54,1,) which to that extent aIl16111\s lWv. St. I ·.. · ,I
AND LEGAL HOLlDAYs.
i,$:
.'Appeal
' .' .
Court, of. the United States for the t>i$trict,of
.
. ' .., · '·. ' ','
, AQtion by William. C. Perry, district attorney, against the Unitecf Smtes', to recover mileage and fees. From a judgment for plaintiff, the United Reverseq..·. J. '(V. Ady, for ,the United$tates· . ·.W. 0; Perry".W. H. and Ohas. Blood Smith, for appellee. ', .. Before CALDWEJ,L and Circuit Judges, and SaiRAs, District ,. .... 1
. SANB,QRK, Circuit Judge. William C. PerrY,.the appellee, was United attorney fO'xt4e, distll ict from July 14, 1885, lItnitdl;uing all this time resided with his famiJy Scott, ill lle brought this action in the United ,States circuit court for· to recover mileage, and emolul;lnder the provisionsQf 359, 24 St. at Large, p. 505, and wall. rendered in below, from which the United States a:ppeAlll. In the performance Qf.his offiQia.l duties he traveled from his pla(}eof abode to the variQullplllC6S of holding United ,$'tatl;ls courts, ,/lQc1, to the places of the examinations, before a,:judgeor comof persons charged with crime, by. the usual, most cQllvenient, Rl}d,: ,QWY rOl,tes.J;>ut these routes were not the routes. He was paid his mileage for this travel by the ,shor,test xou,tes, and thi3 court below held that he was entitled to recover the difference between the amount of the mileage reckoned on the basis of the shortest routes and the amount reckoned on the'bRslsof the only practicable and most convenient routes. This holding of the court is assigned for error. The of;ficialduties,n.ecessarily traveled at appellee, in the various times from his place of abode to the places or examinations, before a jtldge of,coD;l,missiqp,Ql\ His mileage for this travel and his per diem. for attendance were disallowed by the accounting officers of the government, but the court below held he was to is the second error complained of. Mr; Perry necessarily traveled Il.tvarious times from his place of abode to Topeka, Kan., to attend such United States commissioners, and the accounting 'officers of the United States disallowed thisfuileage because. Topeka was the official headquarters of the district attorney, but the .eourt,;belowheldhe was. entitled to l'ecover it, and this ruling is the third error assigned,... M:r. Perry charged in his account the five dollars per diem allowed by'sedion 824, Rev. St. U. S., for 11 days, between October 15, 1888, and September 1B, 1889, each of which ttan;spire.d. during. the session of the United States court, and,was a Sl,lnday
UNITED STATES V. PERRY.
745
or legal holiday, and on each of which days he was necessarily away from his place of abode, and in attend'ance upon that court in his dis" trict. The court below held that he was entitled to recover $55 on this account, and thjs holding is the only other error of which complaint is made. The statute itself disposes of the first three errors assigned. So far as it is material to the questions presented by these assignments, it reads,: "Sec. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts. '" *. '" Sec. 824. '" '" "'For examination by a district attorney, before a judge or commissioner of persons cbargell with crime, five dollars a day for the time necessarily employed. ... '" "'For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examination before a judge or commissioner of a person chargeq with crime, ten cents a mile for going, and ten cents a mile for returning.',' 1. Under this statute it is not only the privilege, but the duty, of the district attorney to travel by the most convenient and practicable routes in the discharge of his official duties, although such routes are not the sbortestroutes, and when he has so traveled he is entitled to ten cents per mile for going, and ten cents a mile for returning, over the routes he has actually traveled. His compensation is not limited to mileage 011 shorter, but imDracticable and inconvenient, routes he does not travel: Any other rule would work great detriment to the public service. The shortest traveled route between two towns is otten so poorly supplied with means of quick and rapid transit that to follow it, in the exigencies of the, public service, would so delay the officer that his services would become useless. The most convenient and practical route of travel is the usual route of travel, and it is such because business and professional men; who are looking with keen vision to their own interests and to the accomplishment of the largest results in the shortest space of time, universally take that route, and thus make it the usual route. If the district attorney in his service of the gO\'ernment selects the routes oftravel chosen by the shrewd travelers who visit the towns and cities of this land in the interest of private gain; if he selects, as the record in this case proves he did, the usual, most convenient, and practicable routes, in the performance of his official duties, and is paid under the statute for the miles he actually travels on such routes,-his time and ability will thus be made ,most useful to the government, and the letter and spirit of the statute will be complied with. 2. A district attorney is entitled to his mileage from his place of abode to the place of any examination before a commissioner of a person charged with crime, and to his per diem for the examination of such person before such commissionar in any case where, in his jUdgment, it was necessary for him to attend, and he did actually attend, such examination. No authority or algument is presented in support of the claim that his mileage and per diem were improperly allowed by the judge below. In the assignment of error it is stated that this allowance should not have
'wasSl}.tisfied that nature and i¢pprtanceof th;e demanded ,the presence, of the diaTheflistrict attqrney is charged with the duty of attending audconducting them on; the part of the United States, whenever the attendance of an attorney is needed. When a perwithc.timebelore ajudg", or comrqissioner, he must deson tennine, whether hispreaence,is neccssaryat the examination, and act for the suggesupon his own judgment. "There is neither law nor thatJiis compenMtioriis upon the opinion of the comptroller 011 the qllestion. of ,the necessity of his attendance. The statute is ll.nd,\mequivocaJ, aeld not Qnly that it entitles him to, ;tbepll7' d!iemcoillpensation,while he is actually engaged in the examinatiolkbefore the commissioner, but also for his time while h8' is necessarily engaged iu the hiVe$tigation of an offense ill co-operation with the is walle, Stanton v·. U. S., 37 , 3. W;ben actql\lly and necessarily travels from the place of his abode to the place of an.examinati(,lJ) before a commissioner of 8 'PElrson chargedwitlticrri,me, in the discharge q[ his official duty, he ,to, ll,lileage Jpr,'iUch travel, llotwithst.atl,ding such place of exis amination a.t, the headquarters of such district attorney. There the that Topeka, where these examito which Mr. Pel,"ry traveled were held, nations W-as the official <listrict attorney; but the court below finds tha,the actuallyattendel1 tJw,se examinations, and actually aod necessarilyJraveled from his place Qfabode to Topeka to attend them, and the statute is imperative that he should be allowed mileage in such " ' cases"froll} qis place of abode. " 4. The prOjvided for a district attorney attending t4an, at ,his place/of: allodc j in the discharge of his section 824 ,Rev· St. V. S., cannot be allowed or paid official tobim or rring during the term of the court, l;lontained in theMt making appropriations lor sunMarch 3, 18S7. found in 24 St. at Large, dry civil p.541, to that extent amends Compensation was provided for, the district attorthe ney for,l'l.ttenQl\nce upon the Unite<i. States courts by sectio0824, Rev. St., in the following words: "For each day of, llisnecessary attendance in a court oftbeUnited States. when the cllurt is held at the place of his ahode, five dollars;' and for his at· when the court is held elilewhlll;e.five dollars for 118Ch day of the tel·m....
In the act making appropriations for sundry civil expenses, approved the appropriation of$225,March 3,1887, is IOUlld; OOO£or payment of United States district attorneys, the following proviso:;' '''Provided. that hereaft'er made fQrthe payment of of; or,: 4letkl$ ,:$ball be. ,to 'pay thet'ees, of t ': ,
747 United States m'arshals or clerks lIpon any wrltor bench warrant for tlJe rest ot any person or persons who may be indicted by any United States jury, or against whom an information may be liled, wherp such person or persons is or are under a recognizance taken by or before any United States commissioner, or otlier officer authoriied by law to take such recognizance, and requiring the apl'eilrallce of such person or persons before the court ill which such indictment is fonnt! or information is filed, and when such nizance has nut been forfpiteli,or said defendant is not in default, unless the court in which such indictment or information is pending orders a warrant to issue; nor shall any part or any money appropriated 1Ie used in payment of a per diem compensation to any attorney, clerk, or marshal for in court except for days wilen court is open by the judge for business, or business is actnally t1'ansacted in court, and when they attend under sections tlV& hun!lred and eighty-three, five hundred and eighty-foul', six hundred and seventy-one, six hundred and sevent.\'-two, and two thousand and thirteen of th& Reviflell Statutes, which fact shall be certified in the approval ot their ae-counts." Sections 583, 584, 671, and 672 relate to terms of court at which the judge cannot be present, and court may be adjourned by his written order, or by the clerk, anI'! section 2013 relates to a term opened under the federal election law. It is urge tby the appellee that this proviso has nQ application to this case, because the per diem compensation he seeks is not for" attendance in a court of the United States wht'n the courtis held at the place or his abode," but for his attendance when the court is heJd elsewhere; and that in the latter case, as he was entitled under section 824 to five dollal'S "for each day of the term," whetherhe was in court or not, the prl1hibition in the proviso of the use of any of the appropriations" for attendance in court, except when the court is open by the judge for business, or business is actually transacted in court," was not intended to anll cannot apply to the payment of his per diem compensatiou " for each day of the term" when he was attending elsewhere than at his place of abo Ie. Such a construction of the proviso is too narrOlv and technical, and cannot be sustained. Under seCtion diiltrict attorneys were not entitled to any per diem compen!ol80tion forSuudays allli holidays ill term time when the court was heJd at their respective places of abode; so that, if the proviso does not apply to cases where they attend away from their places of ahode, it has no 13ffect whatever on the per diem. compensation of district attorneys. If the pl'llviso was ambi!{uous, and the construction contended for by apthus makes it nugatory as to district attorneys, who are expressly named therein anll maniJestly intended to be atfected thereby, while to hoM that it applies to cnses of attendance of district attorneys away from home makes the proviso reasonable, practical,' and etfective, the latter construction must be adopted; but, in our opinion, it is plain and unamhiguous, an,1 was intpndell by the congress to prohibit the payment of any per diem com pellsation to the llJarshals, clerks, and district llttorneys tor attendance upnn comt at any place, on any day except when the court open by the,iulige for or business is actually transacted in court, or they attend under the sections of the Revised Statutes there specially mel1tioileJ. That this is the proper construc-
ar.-
,J!.EPoaTEB · voL 50.
tipDIPwe mearly appeal'S, when we consider the course oClegislationand nEicision'l1pbb this subject., "The appellee also claims thattbi8 proviso was in its effeet, 'and had reference only to the appropriations made in: the act in which it is found. This contention' cannot be susUnder section 824, and a similar provision in section 829, relative tp glarshals, a custom had grown up and received the sanction of ,the accpunting, officers of allowing this per diem compensation for Sundays and legal holidays occurring while court was in session during the term. 'Marshal's Sunday Per Diem Case, 5 Lawrence, Compo Dec. 329. Tn. making appropriations for sundry civil expenses, approved 1886, (24 St'.at'Htrge, 253,) a proviso was inserted prohibitJng tAe 1,1se of any moneY'lloppropriated by that act for the payment of per, compensation to clerks or marshals for attendance in court in exaetlJ'lthe same terms as in the provisoof 1887. It is perfectly evident that the purpose was to stop for one year at least the payment of the PIf; l)ompensation to thl'lse officers for Sundays and holidays. The act the district attorneys, and makes the proniplt\Ongeneral and perOlanent.It does not prohibit the use of any :app*opriated by that, aci,but reads: "Pfovidoo,. that hereafter no part of the appropriation ,made · · · shall be used'.' '" '" nor shall any part of any money appropriated be used. in payment of a per diem: fOl; attendance in court, except when the court is qPen for business. or business is actually transacted in court."
. liwa",:per.(ectly for the congress to increase, diminish. or in cl?llnge the of these officers.. It was the cont:h!lot ,fixed their former .compensation, and it is clear that congress intiendeqby this proviso to change,apd by apt and plain words has the fixed by section 824. That this law isfound in an actIQaking general appropriations will not authorize the courts to disregard or explain it ·away. For many years it has beepll. common of the congress to enact general provisions Q[ law in the acts making appropriations, until there is now little, ifany, presumption that. such provisions not intended to be permanent and general. The, provision which deprived United States commissioners of docket fe(;'s, in certain CR£;es was part of, an act making appropriations, and certainly not, as plain and positive in its terms as is this statute, qut it was held to repeal the, generallltatu,te allowing docket fees. 24 U. S._St.274; fa.riB v. U. S.,23 Ct. C1. 374; McKinstry v. U. S., 40 Fed. U. S., 42 Fed. Rep. 393; Oalvertv. U. S., 37 Fed. Rep. erq,wford v. S·· 40 Fed. Rep. 446. Thil;!:proviso is plain and ,The intent Of the congress is clear from the course of dedSlonand'legislllrtion that led up to the prohibitipn contained in it, and. it must be .held that the court below erred in allowing this $55. 26 Ct.01. 6-11; McMullen V. U. S., 24 Ct. C1. 394. The appellee has presented and argued several questions relative to claiIUshelUade in the court below which were disallowed. As he has taken no appeal. we do not feel at liberty to conside.r them. U. S. v.
:uNrTED STATES.";
EWing, 140 U. S. 142,150,11 Sup.,Ct.. Rep. 743j U. S. v. Hickey, 17 Wall. 9. The judgment is reversed, and the cause remanded,with inatructioll8 to proceed therein in accordance with this opinion.
UNITED STATES tI. BASHAW. (OIrcuCt Oourt
of .AppeaZs,
liXahtJl, Oircuit.
May 93, 1891.)
No. 25.
t.
DISTBICT AnORNEYs--CoJoll'ENBATION IN ltEVENttB CASES.
Under Rev. St. 5888, a district attorney who has rendered lemces In the exam· Ination o:tviolations of the internal revenue laws, referred to him by the collector, Is entitled 'to compensation therefor upon a certi/l:cate of t,he judge before whom such cases are triable,although no proceedings may have beell instituted. '47 Fed. Rep. 40, affirmed.
I. , ,'
SAME-PRA.OTIOE OF DEPARTMENT.
A ruling of the secretary of the treasury, Bnd the practice of the department from 1885, supported by an opinion of the attorney general. from which the solicitor of the treasury dissented, to the effect that district attorneys were not entitled to compensation for: such examinations unless followed by prosecutions, is not binding upon the c\lurta, especially in view of a contrary l1ooision by a district court in 1885. " Where an amelldment the phraseology of a former act, it will be presumed that it was the intentioll to make a corresponding change in its meaning.
STATUTES-AMBNDMBNT-CONSTBUOTION.
Appeal from the Circuit Court of the United states for the Eastern District of Missouri. Petition by Thomas P. Bashaw against the United States to recover for services rendered as a district attorney. Judgment for plaintiff. 47 40. The United States appeals. Affirmed. Fed. Georg6 D. Reynolds, for the United States. Thomas M. Knapp and Tlwmas R. Harris, for appellee. Before CALDWELL and SANBORN, Circuit Judges, and SRIRAS, District Judge. SRmAs, District Judge. At the September term, 1890, of the circuit court for the eastern district of Missouri, the, appellee brought an action against the United States to recover compensation for certain services rendered by him during the years 1887 and 1888 in the capacity of district attorney for the United in said eastern district of Missouri. The petition contained five counts, the second and third being based upon services rendered by the district attorney in examining into a number of alleged violations of the revenue laws of the United States, and which had beeureferred to him for examination by the collector·of the district, under the provisions of section 838, Rev. St. The trial court found in favor of theplairitiff on these counts, and from this and the judgment based thereon the United States hlis appealed to this court. . , . . . . . The question at issue, as stated· in the first, second I and fourth assignmerits of error, is that the court below erred ill receiving any testimony