the postmaster general,and can be exercised by him at his discretion. (4) If the lease executed by the late postmaster general to complainant is a valid contract, the complainant is entitled to the stipulated rent for the entire term, and may recover the same by suit in the court of claims; but I .know of no other remedy. The law' does not authorize the postmaster general to bind the United States a parby an agreement that a post.office shall not be removed ticular building during a period of four years, or any other period. Besides, the lease in question does not show that the late postmaster general undertook to make such a contract, and the answer avers that the lease expresses the whole contract. (5) The contract, such as it is, is with the "United States, by Horace Maynard, postmaster general," and this court has no jurisdiction to grant any relief upon it or against the government. The exceptions to the answer are overruled.
MOYERS and :>thers.
(aircuit Court, W. D. Tennessee. December 23,18132.)
VRlMINAL LAW-WITHHOLDING PIllNSION-ILLEGAL FEIllS;
REv. ST. f 5485.
Any scheme or contrivance by Which, under the, guise of a loan or other dealing, the claim agent or attorney retains more than his legal fee, 18 a violation of the statute against withholding pension money or taking illegal fees, And while the pensioner, who has unconditionally and without restraint or limitation received the money, may do with it what shepleases,-except to pay the attorney a larger fee for his services than allowed by law,-may lend it to him, or buy property from him with it, the8e transactions must be with the utmost good faith, and no use of them to evade the statute will be tolerated.
Criminal Information. This was a criminal intormation against Gilbert and George C. Moyers, in which they are jointly charged with demanding, receiving, and retaining from a pensioner illegal fees as ber attorneys in the prosecution of her claim, and also with unlawfully withholding from her a portion of her pension money in violation of the provisions of section 5485 of the Revised Statutes. On motion of the George C. Moyers, supported byaffidavits, a severance was granted, and thereupon Gilbert Moyers was separately put upon bis trial under a general plea of not guilty.
, The trial of this case occupied six days, and was vigorously con· tested at every point, resulting in a mistrial. The witnesses ex.amined on each side were numerous, and many questions were raised on objections to evidence, and by the efforts of both sides to impeach witnesses or their testimony. Only such features of the evidence are given in this report as will serve to ex.plain that portion of the charge here, which relates to the oonstruction of the statute alid the oharacter of the offense oharged under it. There was little or no contest on the proof showing that the claim of the pensioner, an old colored woman named Melvina Rogers, who can neither read nor write,was prepared in the claim office of the defendant Gilbert Moyers in this city, together with the proof in support of it, and was by him filed for allowance in the pension bureau at Washington, he being her attorney of record in the case there, and having also at the time an office in the latter city. Her pension was allowed, and the certificate thereof is dated December 12, 1881. Pensioners in this district are paid by the agency at Knoxville, Tennessee, and accordingly a voucher was sent from said agency to be executed by the pensioner for the arrears of pension money due her. This 'voucher was filled up at the defendant's office here by his brother, George C. Moyers, and executed by the pensioner, in which the agency was informed that the post-office address of the pensioner was "Care of 56 Court street, Memphis,"-that being the number and location of his office here. A check dated December 31, 1881, was thereupon issued by the United States pension agents at Knoxville, on the receipt of this voucher, for the sum of $1,674.13, and sent according to the above direction, and was received at the defendant's office from a letter-carrier. On Friday, January 6, 1882, the pensioner, on learning ·of the arrival of this check, went to the defendant's office to see about it, when and where she met both the defendants. After some conversation about getting the check cashed, George C. Moyers took it from the office and made an arrangement with a Mr. Lehman for his indorsement of the same in consideration of being paid 2 per cent. therefor, to which the pensioner assented, although there was some conflict in the proof as to why this assent was given. The money was then obtained from a bank here by Leh. man, who retained his 2 per cent. (about $34) and handed the balance of the amount to George C. Moyers. During the most of thiR transaction the pensioner remained in the office with Gilbert Moyers in conversation with him about this pension matter, and on the arrival of George C. Moyers with the money it was all placed in her
UNITED STATES 'D. MOYERS.
hands, and she immediately handed back to one of them (the proof was conflicting as to which one) the sum of $400. The testimony was very conflicting as to the nature of the transaction about the $400; that of the government tending to show that it was exacted as compensation for the services of th6se men as her pension attorneys, and that of the defendant tending to establish that it was a voluntary loah. The pensioner then left the office with the balance of her money, but without receiving or requesting of either of these defendants any note, due-bm, receipt, or other written evidence whatever concerning this transaction about the $400, and without tbe same being tendered to her by either of them. The next day, Saturday, a son of the pensioner went to the office of. these defendants and complained of his mother's dissatisfaction with what bad occurred, and on the following day, Sunday, George C. Moyers went to the pensioner's house, when further talk about it was had, and thence George O. and this son went together to Gilbert Moyers' residence, where an angry conversation ensued, when finally Gilbert said he would have nothing more to do with it; his testimony tending to show that he directed his brother to return the money to the pensioner. The next day, Monday, January 9, 1882, Gilbert Moyers having that morning left Memphis for Washington, George C. Moyers paid back to. the pensioner's son $100 of the money for his mother, and gave him for her his own individual promissory note payable to her, simply, for $300, and due one year from date, without The note was antedated January 6, 1882. It was proven that Gilbert Moyers was wholly insolvent, and there was some conflict about the degree of George C. Moyer's solvency; the proof of the government tending to show that he had nothing in Tennessee subject to execution, and that of the defense, that he was amply good for the amount of the note. After the institution of this case George C. Moyers paid the pensioner $300, tbe amounts of the above note, but no interest was paid thereon. The payment was publicly made in the office of the clerk of this court and in his presence, and the pensioner executed to Moyers a receipt for the $300 paid to her, the clerk attending to the matter for her, and preparing her receipt. Wm. F. Poston, Dist. Atty., and John B. Olough, Asst. Atty., for the Government. H. C. Young and Geo. Gillham, for defendant. HAMMOND, J., (charging jury orally.) It is part of the history of this country that the government of the United States is more
to its' pensioners than any other government. 1 have seen it stated, and presume it fs true, that the military pension roll of the government of the United States exceeds that 'of all the other civilized nations in the world. !tis a matter which is known to you and to all of us thatenormoDs sums are annually appropriated, amounting to many millions of dollars, to pay pensioners. It is also a part of the history of these pension laws, that, owing to the depredations made upon the appropriations by parties who were not entitled to' receive them, there came to be great scandals in the administratiOl1';()f 'the fund. Pension agents and parties who were interested in and about the collection and distribution of these funds, under' the guise of collecting fees and being paid' for their services in one way and another, pocketed a great deal of the money, so that it did not go to the purpose for which it was intended. In order to protect these pensioners congress enacted a series of laws, which have, from time to time, grown more rigid. They consist of two classes. In the early administration of the law the checks and money were sent in the ordinary course of business to the attorneys engaged in collecting pensions. Congress subsequently enacted statutes which prohibited the sending of pension checks to the attorneys of the pensioners, and a system of laws and postal regulations which have been read and referred to in your hearing, making very stringent provisions against the delivery of those checks to agents and attorneys engaged in the collection of pensions. They cannot get possession of them except by some evasion of these statutes; and the books which contain the history of the prosecution of this class of offenses, show that there is always connected with these cases some method or scheme by which the laws protecting the delivery of the check are sought to be evaded, and the check diverted into the hands of the attorney or agent. To illustrate the strictness of those laws,-I am inclined to think when the postmaster of this city delivered the letter containing the check at the office of this defendant, he violated these statutes; and, if so, he could be prosecuted for delivering the letter at the office of Gilbert Moyers. He should have delivered it to the pensioner or some member of her family. In addition to the laws which were designed to prevent the check from going into the hands of any other person than the pensioner, congress enacted others imposing penalties upon agents or attorneys for the violation of its policy, and its declared purpose that the money should go to the pensioner and not to the agent or attorney, except the small fee that was allowed for his services. At first that
UNITED STATES. V.
fee might be fixed by agreement between the. parties-the agent filing a duplicate copy of his contract with thellension-office--provided it exceed $25. Then the'pepsioner had sqrnepower to fix the amount within tbe limit. Congress ultimately repealed thoseprovisthat in all eases the agent or ions and enacted a niore attorney should receive only $10 for his, Services:; This may seem, and perhaps is, in some cases, a, small compensa.tion, but we have nothing to do with that; it is in the power of congress to <10 this, and. it has said that' in all oases· t4e agent or attorney: Shall not receivea largeroompeusation for his services than $10. .The object of this to fix afee.beyond which no one oan.go, and in order to enforce that statute, and see that it was not violated, COD.gresshas enacted this statute, <:&ev. St. § 5485:)
,. Any agent or attorney or other petson instrumental in prosecuting any claIm for or, bounty land, who 'Ihalldirectly or indirectly.contract for, demand or receive, or tetain, any compensation for his. Bel'vices or illstrumelltality in prosecuting :fpr or b01,1ntylAonl1 than is prowho shall wrongfully withhold vided In the, title pertaining to frpm a pensioner 01: claimant the whole or any part of the pension or' claim allowed and due suchpension'er or claitnant, shall be deemed guilty of a high misdemeiuior; and, upon conviction thereof, shall, for every such offense. tie fined not exceedin'g$500, or imprisoned,at hard labor not exceeding. two yew:s, or both, at the-discretion of the court."
On a former occasion, in the trial of btte of these ea,seEl, I had casion to say wnat I say to you iiow in the same way, about the policy' of the government with regard to pension funds:
"The statute, you will perceive, prescribes the punishment for two offenlles in relation to the prosecution of a claim for pension,-one, the contraCting fot, demanding, receiVing, or retaining of a greater compensation for the services than allowed by law; the'other, the withholding by the agent of the whole, or any part, of the claim allowed. The plain purpose of aU those stringent prOVisions of the pension laws which the district attorney ha!;l read in your hearing, is to secure absolutely to the pensioner the bounty of the government. It cannot, on any pretext, be lawfully diverted, directly or -indirectly, while on its way to the pensioner. It is not assets for the payment of debts, and can be in no way pledged or impounded for that purpose, and all dealings in that direction are null and void. There is a somewhat policy which protects the salaries of the officers of the state and federal governments. and it is generally recognized everywhere. But here congress has, by the most stringent special legislation, sought to protect these pensioners, . so munificently indowed, 'against all possibility of being defrauded by the agents they employ to collect their dues from the government. Nothingloos than the unconditional payment of the full amount, less the small fee allowed, \villdischarge the agent from the penalties of this statute, whenever, by any
contrivance of his, he comes into possession of the warrants or the money they represent. All else is a wrongfnl withholding under this statute. It is the duty of the courts and juries to so enforce these legislative commands that there shall be no evasion of them." U. B. v. Ryckman, 12 FED. REP. 46.
Now, gentlemen of the jury, it is perfectly plain from these statutes and from these cases-not only the one cited, but many others-that in the prosecution of claims like this there can be no scheme whereby this statute may be evaded; and any contrivance that the ingenuity of the agent or attorney can devise, even with the consent of the party entitled to the pension, to pay a larger fee than $10, violates the statute. It is immaterial whether the pensioner consents to it or not ; nor how much he may be willing to waive this statute, and pay the agent or attorney more than the law allows him. Under no possible construction of any contract that they make, or any agreement that the pensioner makes, can the agent receive or retain more than $10; and by no sort of contrivance or device, either under the disguise of a loan or the purchase of properly or a gift, or any other scheme, can he demand or receive or retain any more than the fee allowed by law. The law protects this pension fund as long as the relation of the agent or attorney exists; and it makes no difference what the relation is, or how it is created,-whether by the ordinary contract of an agent and attorney, or by any implied con;ract ,of an agent and attorney, which he holds or sustains in the case. Any person who becomes instrumental in the prosecution of the claim and the collection of the money is liable under the provisions of these statutes, if violated. If the pensioner carries one of these checks to the bank, and the bank takes it for collection and collects the mopey, the bank becomes a person instrumental in the prosecution of that claim, and if the bank fails to pay it over, irrespective of any discount, the bank would be liable under this statute. If a person should find one' of these pension drafts in the road, and thereby become the possessor and holder of it, and should undertake to collect it, and kept the money, he would become an instrument in the collection of that pension claim and would be liable. I am justified in ruling this way by a decision of the supreme court of the United States: A man became, under the state laws, guardian of one of these pensioners. He executed a bond and filed it under the state law. A pension to which his ward was entitled came to him, and, he having a right to collect, it was paid him by the treasury of the United States. Many years afterwards he refused to pay that money over. He was prosecuted under this statute for wrongfully
UNITED' STATES V. MOYERS.
retaining pension money, convicted, and 'the conviotion was sustained by the supreme conrt of the United States. ,That establishes, beyond controversy, the policy of these statutes and the stringency with which they are enforced by the courts. U. S. v. Hall, 98 U; S.343. Something has been said in the argument about these laws being unconstitutional. I cannot agree to that. No man has any claim to this money as a matter of right-no pensioner. It is paid to every pensioner as a bounty from the government. Every man, as a matter of duty, owes his services as a soldier to the government, and thousands of men render those services and never receive any compensation except while a soldier; but the government has allowed and does allow these pensions and these rewards to the soldiers themselves while they are disabled, and to those who are dependent on them when they'are deceased. Then it is not a right; it is a bounty; and if the government chooses to say that the money shall go absolutely to the pensioner, irrespective of the claims of anycreditor or anyone else, it has a right to say so; and there is no doubt that such is the policy of the legislation, and that this is the spirit in which it has been administered by both the state and federal courts, both of which have ruled upon these points just as I am ruling now. After the pensioner receives his money it is his own, and he may do with, it what he pleases, except to pay to his agent or attorney any greater sum than $10, directly or indirectly. An agent or attorney cannot receive such payment directly or indirectly; if be does, he becomes liable under this statute, whether it is paid out of the pension fund or not. Outside of this the pensioner may lend him money or buy property of him, paying him for the same, whether it be with pension money or any other money, if it be a transaetion made in good faith and not a device to evade this statute. But under any such device, no matter what form it takes, if this be the objeet, the statute is :violated. We will now come to the partieulars of this case. Tbe defendant here is indicted under six counts, the first four of which charge him with demanding, receiving, and retaining a lll-rger fee than $10. The first charges bim with demauding; the second, with receiving; the third, with retaining; and the fourth, with demanding, t:eceiving, and retaining a larger sum than $10. The fifth and sixth counts charge bim with wrongfully withholding a portion of the money. It is not necessary that there should be any formal demand. This statute v.15,no.6-27
.r\' "FEDERAL REPORTER.
means that any'request, l:lii'ect or indirect, made by the agent for a. larger fee than $10,isJa!Violation of :the statute; and any receipt of itwhicb is for ,the purpose of violating this statute, and retainirlgor getting more than the law allows Tor his services, is unlawful. Of course, if the defendant receives the money for the purpose of depositing it in the bank, and he does that with it, this is not a wrongful receipt of it. If he receives it for the purpose of paying <lebts that the pensioner wants him to pay, that is not a wrongful re., but if he receives it f0r the purpose of appropriating it to the benefit 'Of himself, the law implies) from the fact that he appropriates it to' his own use after he receives it, an intention on his part to violate this'statttte, unless he can show to you that .he has received it f0rsorneother purpose and applied it to that purpose. The same mary be said of "retaining" the pension :money or :aportion thereof. 1£11. person kept the m<:mey,with. the consent of the pensioner, for any other purpose than retaining. it for hisowDuse, such retention would be lawful; but whenever it takes the form cif appropriating it to 'his own use, the law implies an animus to violate this statute, and ·the only way to negative that hdo show that it was received with some other, intention and appropriated according to that intention. . ·.With reference to the subsequent payment of the money that was made: The fact that a mail retains the money and subsequently repays it is a fact which depends forits value on the circumstances underwhicih the pa;y'ment was made. Of course, if he retains the money but subsequentlj'does pay iil:over, a misapprehension of some contraotorother circumstance like that, and payment is voluntarily made as soon astha matter comes to his knowledge, that kind of payment may be a circumstanoe from which the jury might infer that it was not his intention to retain the ·money· wrongfully and in violation of this statute. But after the offense has been committed in wrongfully withholding the money, the mere fact that he repents and agrees to pay it back, either under the stress of threatened prosecution or of some demand that is made of him, would not relieve the offense of its criminal character. The subsequent payment must be ma.de under circumstances that convince you that the original withholding was not for a wrongful purpose. If the refunding was made under circumstances which are inconsistent with the idea the original holding was rightful, such as being coerced by threats or demands for the return of the money or of a prosecution, the return of it would not cancel the offense. That fact .might be considered in mitigation of the puniShment, but with that you have nothing to do.
Commg now to the testhnony in this case" if you believe the th'ere can be no doubt whatever the government's defendant's guilt. They testify beyond all question that the'defendant did demand; recehre, and retain a larger 'campe'lisation for his services than $10. If they tell the tJ;uth abo-q,t, it there c,an be certainly no doubt of his gu'ilt, and the only quJstion' wIth you \v"lll be whether or not on that evidence will coD.victthe defendant. Did they speak the truth and do 'you believe them, or do you believe the testimony of the defendant, offered to show that the transaction was a loan to in good faith of the money, 'and not a retention, receiving, or demanding more than his legal fees ? I;Tha.t isa question with which this court has nothing to do. 'It is entirely for you to determine. It is a function' of yours upon which I would 'not trench, and r do not propose to say which would in any way influence your. decision, and I to be careful not to' say anything which shall interfere with your determInation of that tion. But it is my duty to give you in charge certain rules for your guidance in weighing and testing the. evidenCe on which you act.
The court then proceeded to charge the jury the rules for test- ' evidence and applying them to the testimony in this
OQU1't, D. Oregon.
January Ii, 1883.)
1, VOLUNTARY CONVEYANCE TO CHILDREN.
But a conveyance to a grandchild under like circumstances, upon a promise to said child and its father to make. the same,is.not voluntary, but a conveyance for a valuable consideration, and therefore valid as against such lien.