.no ground is laid for obtaining either an order of commitment, or a warrant of removal under the provisions of section 1014: of the Revised Statutes; that the record and papers submitted in support of the application made, show that the United States oirouit court in Illinois has, in the equity suit of Oorbin v. Boies et ai., as a means of enforoing the performance on part of Graves of the order for the payment of a named sum of money into court, ordered his arrest and imprisonment until suoh order is obeyed; and that this is a oiviI remedy, in aid of whit:',h the judge of the Northern distriot of Iowa has no authority to order the arrest and imprisonment of the party prooeeded II.gainst, and no authority to order bis removal into Illinois. T.lle applioation is therefore refused.
HAINES v. McLA.uGHLIN and others·
(Oircuit OOU'I't, No D. Oalifornia. October 22,1886.)
COSTS-WITNESS NOT SUBP<ENAED-TRAVELING FEES.
Traveling fees of witnesses coming voluntarily- upon the request of a party, without having been subprnnaed. from another district more than 100 miles from the place of trial. and beyond the reach of a subpcena, cannot be taxed as costs against the losing party; following Spaulding v. TuckeJ1', 2 Sawy. 50.
M. A. Wheaton and John Garlen, for plaintiff. Hull McAllister and T. V. O'Brien, for defendant. Before SAWYER, oirouit judge, and SABIN, distriot judge.
but the law knows no request. It commands or is silent. and a party who attends 'pursuantto law,' attends pursuant, or in obedience to the commands of the law."
SAWYER, J. Sinoe the oase of Spaulding v. Tucker, 2 Sawy. 50, deoided in August, 1871, after careful oonsideration, and, as was supposed at the time, in aocordance with the then existing authorities, the rule has been regarded as settled in this circuit that traveling fees of witnesses coming voluntarily upon the request of a party, without having been subprenaed, from another district, more than 100 miles from the place of trial, and beyond the reach of a subprena, could not be taxed as costs against the losing party. This prinoiple was recognized and adopted by Mr. Justice McLEAN in Dreskill v. Parish, 5 McLean, 241; by Judge LEAVITT in v. Barney, 2 Fish. Pat. Cas. 245; and by Mr. Justioe NELSON and Judge SHIPMAN in an anonymous case, (5 Blatohf. 134;) and the principle is the same acted upon by Mr. JustioeGRIER in Parker v. Bigler, 1 Fish. Pat. Cas. 289.· In Spaulding v. Tucker, after considel'ing the cases herein cited, it was said by the judge delivering the opinion: "I think, under the present statute, to attend 'pursuant to lmo,' is to attend under the obligatory requirements of the law. The party may request,
In a recent case, however, that distinguished jurist, Mr. Justice of Mr. Circuit JUdge COLT, in the First circuit, overruled these decisions, in U. S. v. Sanborn, 28 Fed. Rep. 299, and on the authority of this case we are to reconsider the rule, as long established in this circuit. Did that oase stand alone, I should not hesitate to yield my own impressions, whatever they might be, to authority so eminent. But we have seen that it does not stand alone, and that in three, at least, of the other cirouits, the ruling has been different, having the sanction of three eminent justices of the supreme court. In U. S. v. Sanborn the court seems to attach some importance to the fact that the rule adopted, had long prevailed in that circuit, whatever the case might have been in other circuits. But the case is governed by the same statute, which is applicable to all the circuits. Whichever rule is the proper one, should, therefore, be followed in all the circuits, and it is highly important that the point should be authoritatively settled by il. decision of the supreme court. With the utmost respect for those taking the other view, I shall, for the present, adhere to the rule heretofore established in this circuit; and my associate, for the purposes of this case, will adopt the view of Mr. Justice GRAY. If desired, a certificate of opposition of opinion will be made, and it is to be hoped that the case will be taken up for an authoritative decision. I will venture to make an additional observation in support of the rule, apparently adopted in the Second, Sixth, and Ninth circuits. The true rule rests upon the proper construction of the statute. Section 823 says in plain, unequivocal terms: "The following, and no other, cOlnpensation shall be taxed and allowed to · '" '" witnesses '" '" '" in the several states and territories, except in cases otherwise expressly provided by law." The provision is expressly prohibitory,-and "no other compensation" can be taxed and allowed, than such as is clearly "expressly provided." The only express provision of which I am aware, applicable to the case, is that fonnd in section , 848, which reads: "For each day's attendance in court · '" '" pU'l'suant to law '" ",' '" one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearlUg, and five cents a mile for returning." Do the words "pnrsuant to law" mean anything 1 Do they add anything-any qualification or limitation-to the provision 1 And, if so, what 1 And, if not, why were they so carefully introduced into the statute 1 Ins one of the best-settled canons of statutory construction, that some force must, if possible, be given to every phrase and word of· a statute. Does not "pursuant to law" mean, "npon the requirement of, or in obedienoe to; the law 1" "to attend under the obligatory requirements, or pursuant to tlte commands, of the law 1" Is this a strained or unnatural construction'? If this be not the meaning of the phrase, then what meaning can be attributed to it, that will in any possible
GRAY, of the supreme court, with the
degree add to, qualify, or limit the meaning of the other language used? Rejecting this construction, if some other rational, qualifying meaning, that the words will l'easonably bear, cannot be suggested, then, it must be conceded, I think, that the phrase "pursuant to law" does not mean anything; and it will thus be stricken from the statute by judicial construction, in violation of the canon of statutory construction cited. The law has fixed the limit to which a subpama can run, and it has provided other and less expensive means for obtaining the testimony of witnesses residing beyond the jurisdiction of the court to . send its subprena. If 'Parties can tax the traveling fees of witnesses who come, voluntarily, upon request, and not pursuant to the commands of the law, for a distance of 10 miles beyond the reach of a subprena, they can do it for witnesses who come from any part of this wide world, and make the expenses of litigation intolerably burdensome to their opponent in case of final success, as in this case. It is said as a reason for allowing traveling fees to voluntary witnesses, that testimony is Qften much more when delivered by the witness in person upon the stand, in the presence of the jury, than when taken by deposition. This may in some instances be so, but, when so, this mode of producing the testimony is for the special benefit of the' party, who desires it in that particular form. If he thinks it more for his interest to adopt the mode more expensive than that provided by law, he ought, himself, to pay the extraordinary expense over that of the ordinary mode provided for obtaining the testimony. If this is not so, then it is suggested that congress, and not the courts, should amend the law by striking out from the statute the words "pursuant to law;" thereby leaving the section without any qualification or limitation.
Au, Adm'x, etc., v.
L. E. & W. R. Co.
(Oircuit Oourt, N. D. Ohio. November 8, 1886.)
NEGLIGENCE-RAILROAD COMPANIES-DUTY OF CONDUCTOR.
The highest duty of the conductor of a railroad train is to supervise its management with all reasonable skill, so that those whose lives are dependent on his care shall be protected from any peril of collision with another train, and ifis gross ne£,llgence to omit that supervision to do other work about the train.
2. SAME-CONTRmUTQRyNEGLIGENCE OF FELLOW SERVANT-CASE IN JUDGMENT.
A train being upon a steep grade, and closely followed by another. the conductor employed himself about cutting out one of the cars, ,throwing the switches to'side-track it, etc., neglecting the duty of seeing that the cars detached were held in place; and, a brakeman being asleep, that portion of the train escaped down the grade, killing, by collision, anollher brakeman on the second train. Held. that the company was liable for the want of careful supervision by the conductor, and that the negligence of the sleeping brakeman was immaterial. .